Originally from The American Review of International Arbitration (ARIA)

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ABSTRACT

In deciding requests for interim measures, some arbitral tribunals have applied low standards, allowing those measures in any case in which the applicant’s claim is not frivolous and in which the applicant could suffer substantial, although remediable, harm. The underlying premise for doing so is a claim that interim measures are intended to prevent any prejudice to the parties’ rights and that achieving this goal requires maintaining the status quo. This article examines the justifications for lowering the standards for granting interim measures. It concludes that none of them justifies lowering the standards. It then provides possible ways to deal with the tension between the desire to protect the parties’ rights pending the case’s final resolution and the risk of reaching a decision that prejudices those rights.

I.   INTRODUCTION

Many arbitration rules allow arbitral tribunals to grant interim and conservatory measures.  However, most do not include clear standards for when these measures can be granted,  while rules that do provide standards require a very low threshold for granting requests for interim measures.  Regardless of the applicable rules, some arbitral tribunals dealing with requests for interim measures have applied very low standards, granting these requests in any case in which the applicant’s claim is not frivolous and in which the applicant could suffer substantial, although remediable, harm.  In lowering the standards, tribunals have deviated from the requirements for granting these measures under most national legal systems, which set higher standards for them. 

The underlying premise for lowering the standards for interim measures is the  claim that these measures are intended to prevent any action that could prejudice the parties’ rights before the case’s final resolution and that the way to prevent such prejudice is to maintain the status quo ante and prevent any aggravation of the dispute.  Thus, tribunals have stated that interim measures could be granted to maintain the status quo pending the case’s resolution. 

Some commentators have defended this approach stating that, when faced with a request for interim measures, a tribunal should not delve into the case’s merits, thus implying that the benefit of the doubt regarding the merits of the applicant’s claim should be given to the applicant.  In addition, they state that tribunals have the ability to avoid any substantial harm that could result from a meritless application by applying a proportionality test under which requests would be denied if harm alleged by the opposing party outweighs the harm that could be suffered by the requesting party in the absence of the measures.  Finally, they state that the protections now available to the opposing party under many providers’ rules in the form of cost awards and cross-indemnities would remedy any harm that could befall the opposing party.

This article analyzes the above justifications for lowering the standards for granting interim measures and concludes that none of them justifies lowering the standards. After an analysis of the justifications for lowering the standards, the article provides possible solutions to deal with the tension between the desire to protect parties’ rights pending the case’s final resolution and the risk of reaching a decision that prejudices these rights.