Interim Measures - Chapter 8 - Asian Leading Arbitrators' Guide to International Arbitration

David A R Williams QC is a member of Bankside Chambers in Auckland, New Zealand and Essex Court Chambers in London, England. Mr Williams has extensive experience as counsel and arbitrator in international commercial arbitrations. His experience as an arbitrator includes numerous investment treaty disputes and CAS sports arbitrations. Mr Williams was a member of the ICC Court of International Arbitration from 1999-2002, and the London Court of International Arbitration from 2000-2005. He is presently a member of the Board of Directors of the American Arbitration Association. He also serves as Chief Justice of the Cook Islands and as a Judge of the Dubai International Financial Centre Court.

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Originally from Asian Leading Arbitrators' Guide to International Arbitration

I. INTRODUCTION – NATURE OF INTERIM MEASURES – POWERS OF TRIBUNAL

An arbitral tribunal, like a Court, may need to take steps during the proceedings to order a party to act or refrain from acting in a certain way until the conclusion of the proceedings. Such orders are usually referred to in the arbitral context as provisional, conservatory or interim measures. The most recent work on this subject by UNCITRAL utilizes the phrase “Interim Measures”1 and it shall be used in this chapter.

There are two important questions that an arbitral tribunal must confront, when one of the parties to an arbitration requests the tribunal to order interim measures. First, does the tribunal have the power to issue the order which is sought or does this fall within the jurisdiction of the relevant State Court? Secondly, if it does have the necessary power would it be appropriate to exercise it in the circumstances of the particular case?

One crucial difference between the powers of the Courts and arbitral tribunals is that the latter may only make orders against the parties to the arbitral proceedings. It is for this reason that the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”) and most, if not all, of the national laws in the Asia-Pacific Region, provide that Courts may make such orders against non-parties in support of, or as an aid to, the arbitral proceedings.