Interim Measures in International Arbitration
UNCITRAL Arbitration Rules, following the recognition of arbitral tribunals’ competence to grant interim measures, and it can be deducted from its definition in Article 26 that an interim measure, just like its equivalent in the domestic litigation, can be ordered by an arbitral tribunal before the final decision on the case.
Accordingly, such an order of interim measures can ask a party of the dispute to maintain the status quo or restore it until a final decision is given, take necessary action to prevent any current or imminent harm or prejudice to the arbitral process, or refrain from taking such action which may be the cause of harm, provide preserving assets from which an award may be satisfied, or preserve evidence material relevant for the dispute resolution.
As of late 1990s and early 2000s, there has been an outstanding increase in the number of parties who seek interim measures from arbitral tribunals. In time, this increasing trend has found its place in the rules of other arbitral institutions, as well.
Arbitration Rules of ICC has regulated conservatory and interim measures under its Article 28 as “Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate”.
This regulation in the ICC Rules was one of the latest additions in the trend as interim measures competence of arbitral tribunals were added into the rules of LCIA in 2014 and SIAC in 2016. These rules also recognize interim measures ordered by national courts for a case whose merits are being made subject of arbitration at a later stage.
For conditions that have to be satisfied in order to request an interim measure from an arbitral tribunal, the UNCITRAL Model Law (Article 17A) asks from the party requesting such measure to show that there exists a harm which outweighs possible harm that the other party may endure if the measure is granted and that harm may not be adequately reparable if the measure is not ordered. Further, there has to be a reasonable possibility indicating that the party requesting for such measures will succeed at the end of the arbitral process.
Urgency factor of interim measures led to regulations on ‘emergency arbitrators’. This was the case in Kompozit LLC v. Republic of Moldova (SCC Arb. EA 2016/095, 2016) where the claimant requested an emergency award for interim measures and for this request the Stockholm Chamber of Commerce appointed an emergency arbitrator. Such procedure is also regulated under the arbitration rules of international institutions, as Article 29 of the ICC Rules sets an example by expressing that “A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures…”.
The decision given by an emergency arbitrator also takes the form of an order with which parties undertake to comply however, the arbitral tribunal is not bound by this decision. This procedure is further regulated in Article 9B of the LCIA Rules of 2014 and also in Rule 30 and Schedule 1 of the SIAC.
What is still debatable about the interim measures ordered by an arbitral tribunal is their enforceability. It is safe to state that there is yet no international agreement regulating the enforcement of interim measures ordered by an arbitral body. In this absence, enforcement of such measures is generally handled by bilateral treaties among states and in some cases, by the regulations of national laws.
While the New York Convention is considered as a ground to claim enforcement of such orders on interim measures, the text of the New York Convention does not include any reference to interim or conservatory measures within its scope of application. UNCITRAL Model Law (Article 17H), on the other hand, regulates that “An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued”.
The situation in Turkey is regulated both under the Turkish International Arbitration Law No. 4686 of 21 June 2001 and the Arbitration Rules of the Istanbul Arbitration Centre (ISTAC). As in line with the rules of international bodies, the Turkish International Arbitration Law (Article 6) does not find it incompatible with an arbitration agreement when a party of the dispute requests interim measures from a court, before or during the arbitration proceedings.
As it recognizes the competence of the arbitral tribunal to issue orders on “interim measures of protection or an interim attachment during arbitral proceedings” upon the request of a party. However, it underlines that the arbitral tribunal shall not issue such orders “that are required to be enforced through execution offices or to be executed through other official authorities or that bind third parties”.
The Turkish law allows the party which requested the interim measure to apply to a competent court for assistance when the other party fails to comply with those interim measures. While the Turkish law reserves the rights of parties to issue their requests in accordance with the Turkish Code of Civil Procedure and the Turkish Code of Execution, it also emphasizes that any such decision given by a national court ceases to have effect where an arbitral decision becomes enforceable or where the arbitral tribunal rejects to hear the case in its decision.
ISTAC Arbitration and Mediation Rules (Article 31), on the other hand, allows a party of a dispute to apply to its Secretariat in order to initiate the Emergency Arbitrator Procedure, as regulated within the Annex I of the ISTAC Rules, when the situation is so urgent that that party cannot wait for the sole arbitrator or the arbitral tribunal to begin its duty.
However, it also recognizes the competence of the sole arbitrator or the arbitral tribunal to issue orders on interim measures, upon the request of a party. ISTAC Rules, just like the Turkish International Arbitration Law recognizes the right of parties to apply to a national court for interim measures and does not consider it as incompatible with or as waiver of the arbitration agreement.