Title

XIV.2.5 - Power of arbitral tribunal to order interim measures

Content

No. XIV.2.5 - Power of arbitral tribunal to order interim measures

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.

Commentary

It is generally acknowledged today that the legal basis for the arbitral tribunal's competence to issue 'interim orders of protection' or 'conservatory measures' lies in its competence to decide on the merits of the dispute. In authorizing a private tribunal to decide existing or future disputes between them, the parties have vested in the arbitrators the inherent power to issue measures of provisional relief connected to the subject matter of the dispute, which serve to safeguard the efficiency of the tribunal's decision-making. One is dealing here with an 'accessory' competence of the arbitrators. Thus, provisions in modern arbitration laws such as Art. 17 UNCITRAL Model Law, which authorize the tribunal, at the request of a party, to order any interim measures of protection it considers necessary in respect of the subject-matter of the dispute, do not establish the tribunal's power to issue interim relief, but merely confirm a general principle of international procedural law.

References

Arbitration Rules

Australian Centre for International Commercial Arbitration (ACICA) Arbitration RulesDIS Arbitration Rules 1998, downloadable at http://www.dis-arb.deSwiss Rules of International Arbitration 2006UNCITRAL Arbitration Rules 1976UNCITRAL Arbitration Rules 2010 (revised)

International Legislation

Organization for the Harmonization of Business Law in Africa (OHADA), Uniform act on arbitrationUNCITRAL Model Law on International Commercial Arbitration

Model Laws

UNCITRAL Model Law on International Commercial Arbitration with Amendments, 2006

National Legislation

Austrian Arbiration Law 2006English Arbitration Act 1996IPRG - Swiss Private International Law Act (PILA)Scottish Arbitration Bill 2009Zivilprozessordnung - German Code of Civil Procedure

Contract Clauses

1. Interim Measures from Arbitral Tribunal Binding on PartiesEmployment ContractArbitration

(...) The arbitrator may grant injunctions or other relief in such dispute or controversy (...)


2011Construction & O&M ContractDispute Resolution

(...) the Guarantor unconditionally and irrevocably agrees to be (...) bound by any interim order (...)


Loan ContractChoice of Law, Venue and Jury Trial Waiver

(...) The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers (...)


2011