Arbitral Interim Measures: Fact or Fiction? - Chapter 11 - ICDR Handbook on International Arbitration & ADR - Third Edition
Originally from the ICDR Handbook on International Arbitration & ADR - Third Edition
The practical importance of interim measures of protection is well understood by litigation and arbitration practitioners alike. From, and in some cases even before, the outset of court or arbitration proceedings, problems may arise that can have a major, at times determinative, effect on the final outcome. A classic example is when existing evidence that would influence the result may be destroyed or “lost.” Another example is when there is a risk that identifiable assets that could satisfy a claim may be placed out of reach and therefore will not be available if the claim were to succeed.
In all civilized countries, courts have developed detailed procedures under which parties to their proceedings may apply for, and in appropriate circumstances, obtain a variety of interim measures. For example, in England, a party to an action in the courts may obtain interim measures, including orders to freeze assets, require interim payments, search and seize property in the hands of a party, preserve documents and other forms of evidence, restrain or compel particular acts or conduct by a party, or provide security for costs. Such orders may be enforced against persons within the territorial jurisdiction of the court, by proceedings for attachment or contempt.
At first sight, the ability of parties to a commercial arbitration to obtain interim measures from the arbitral tribunal might not appear to pose any particular problem. For example, parties who agree to arbitrate under the International Arbitration Rules of the American Arbitration Association (AAA international rules) have the benefit of Article 24, which authorizes the tribunal, at a party’s request, to “order or award whatever interim or conservatory measures it deems necessary, including injunctive relief and measures for the protection or conservation of property.”