Tribunals, however constituted, will have some powers to grant interim measures. The precise extent of those powers may depend on the terms of the arbitration agreement, the institutional rules (if any) under which the reference is conducted, and the laws of the seat. A typical institutional rule is Article 28 of the ICC Rules: “Unless the parties have otherwise agreed . . . the arbitral tribunal may, at the request of a party, order any interim or conservatory measure . . . The arbitral tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party . . . . ”
The purpose is, however, clear. It is to ensure that the status quo between the parties remains pending the final award. These temporary measures are designed to hold the position: to “preserve a factual or legal situation so as to safeguard rights the recognition of which is sought from the court having jurisdiction as to the substance of the case.”
In cases of real urgency, the fact that a tribunal has not been appointed is an obvious impediment to the granting of any relief. The appointment of the entire tribunal can take some considerable time and valuable opportunities can be lost whilst there is no tribunal to make a decision. This lacuna is addressed in a number of ways but nowadays mainly by an emergency arbitrator as discussed in Chapter 7 or by recourse to national courts.
In some cases, national law provides a route. Indeed, in some countries, national law provides that only the national courts can grant interim measures. Article 17 of the UNCITRAL Model Law provides: