Provisional Measures - Chapter 9 - Practical Guide to International Arbitration
Originally from Practical Guide to International Arbitration
It often is necessary for an arbitral tribunal, or in some cases a national court, to decide certain issues while the decision on the merits in an arbitration is pending. In these situations, the tribunal or court may grant the parties temporary relief through so-called “provisional,” “interim,” “conservatory,” or “precautionary” measures. Such measures typically require immediate attention and therefore tend to be addressed at the outset of a dispute and before the merits.
This chapter examines the main aspects of provisional measures, including when and how they are used in arbitration, and the manner in which they are enforced.
Since arbitral institutions and jurisdictions differ in their approach, parties should consult the specific arbitration rules and laws applicable to their case. Parties also should consult their arbitration agreement, which may contain other relevant provisions or restrictions.
A. THE PURPOSE OF PROVISIONAL MEASURES
Provisional measures function as a tool used by an arbitral tribunal or court to temporarily order a party to do something, or to refrain from doing something, prior to the issuance of the final arbitral award.
In some cases, provisional measures ensure the effectiveness of an arbitration by promoting a fair and orderly procedure. In other cases, provisional measures preserve the possibility that the remedy awarded can be given effect at the end of the case. Parties should bear in mind, however, that tribunals do not decide the merits of the case when granting provisional measures. To do so would be premature, because a tribunal faced with an application for provisional measures typically follows a limited and expedited schedule for written and oral submissions from the parties, which would not encompass all of the arguments pertaining the merits of the dispute. Most arbitral tribunals take great pains to avoid prejudging the merits of the parties’ dispute when ruling on a provisional measures application.