In international arbitration, interim measures, also known as “provisional” or “conservatory” measures, are temporary remedies issued by an arbitral tribunal to protect parties’ rights, preserve assets or maintain the status quo until a final award is issued. They are comparable to injunctions in litigation but tailored for the arbitration process. Examples of interim measures include, inter alia, preservation of assets to ensure enforcement of a potential award, orders to maintain or restore the status quo to prevent irreparable harm, protection of evidence critical to the dispute, or security for costs to ensure the claimant can cover the respondent’s legal expenses if the claim fails.
Enforcing interim measures can be complex because their recognition and enforcement depend on national laws and local courts. Some jurisdictions may not recognize or enforce interim measures issued by arbitral tribunals, leading parties to seek such measures directly from local courts. Understanding the legal framework of the relevant jurisdictions is essential when seeking or enforcing interim measures in international arbitration.
Authority of Arbitral Tribunals to Grant Interim Measures
Arbitral tribunals derive their authority to grant interim measures from several sources:
- Arbitration Agreements: Parties sometimes consent to such powers through the arbitration clause or rules incorporated into their agreement.
- Institutional Rules: Leading arbitral institutions explicitly empower arbitral tribunals to order interim measures (see, e.g., the UNCITRAL Arbitration Rules, Article 26; the ICC Arbitration Rules, Article 28;[1] the LCIA Arbitration Rules, Article 25; the new 2025 SIAC Rules, Rule 45; the HKIAC Rules, Article 23; the ICDR Rules, Article 27; the Swiss Arbitration Rules, Article 29).
- National Arbitration Laws: Domestic laws, notably those based on the UNCITRAL Model Law on International Commercial Arbitration (“UNCITRAL Model Law”), provide a statutory basis for interim measures.
The UNCITRAL Model Law provides a comprehensive framework for arbitration proceedings, including interim measures. Articles 17A – 17J, introduced in the 2006 amendments, outline the scope, conditions, and enforcement of interim measures.
Form of Decision on Interim Measures
Arbitral tribunals can issue interim measures in different forms, primarily as orders or awards. The decision depends on factors like the arbitration rules, legal framework, and enforcement strategies.
Article 17 of the UNCITRAL Model Law (Power of arbitral tribunal to order interim measures) provides that arbitral tribunals may grant interim measures in the form of an “award” or “in another form”:
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
The ICC Arbitration Rules authorize tribunals to grant interim measures they deem appropriate, and these can be issued in the form of either an order or an award.[2] This flexibility allows tribunals to tailor their approach based on the specific needs of the case and the enforcement landscape. Other arbitration rules contain similar provisions. The Swiss Arbitration Rules, for instance, stipulate in Article 29.2 that interim measures may be granted in the form of an interim award.[3]
The form is relevant, especially for enforcement. Interim measures issued as procedural orders are, as the wording itself states, “procedural” in nature. They are also more flexible as they can be modified or revoked by tribunals. On the other hand, procedural orders face challenges in enforcement as they are not final awards. Interim measures issued as awards are more formal and generally considered binding decisions on specific issues, which may enhance their enforceability in certain jurisdictions; however, this is not always the case.
Enforcement of Interim Measures in International Arbitration: A General Framework
Whether interim measures will be enforced depends on a number of factors and the rules in the enforcement jurisdiction. To address these challenges, the 2006 amendments to the UNCITRAL Model Law included provisions aimed at enhancing the recognition and enforcement of interim measures across jurisdictions. Articles 17G and 17H of the UNCITRAL Model Law provide for the recognition and enforcement of interim measures, expressly stipulating that interim measures shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which they were issued, subject to the provisions of Article 17 I.
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention“), a cornerstone of international arbitration, primarily focuses on the recognition and enforcement of final arbitral awards. It does not explicitly address interim measures; hence, its applicability to partial awards on interim measures depends on the jurisdiction in question and the approach taken by local courts. The New York Convention also does not provide a definition of an “award“. This has resulted in different interpretations and practices across jurisdictions.
Therefore, the enforceability of such awards under the New York Convention largely depends on their characterization in a specific jurisdiction. Some jurisdictions interpret the New York Convention as applying only to awards that conclusively resolve a portion of the substantive dispute. Interim measures, being temporary and subject to modification, may not meet these criteria.[4]
Enforcement of Interim Measures in International Arbitration: A Comparative Analysis
The United States
The United States remains a leader in the enforcement of awards granting interim measures. United States courts typically acknowledge the authority of arbitrators to issue partial or interim awards before the final award is granted. While only a final award is generally enforceable under the Federal Arbitration Act, several federal courts will regard a partial or interim award as “final” and subject to recognition and enforcement if the award conclusively resolves a distinct and independent claim.[5]
In CE International Resources Holdings LLC v. SA Minerals Ltd et al., a Federal District Court in New York City confirmed that an award of temporary equitable relief is separable from the arbitration’s merits and can be immediately recognized and enforced.[6] In Sharp Corporation et al. v. Hisense USA Corporation et al., the U.S. District Court for the District of Columbia discussed the enforcement of an emergency arbitral award, finding that enforcement would not violate U.S. public policy.[7]
Another notable case is Ecopetrol S.A. et al. v. Offshore Exploration and Production LLC).[8] In this case, the U.S. District Court for the Southern District of New York addressed the enforceability of interim arbitral awards and granted a petition to confirm both the Interim Award and the Supplemental Interim Award, thereby recognizing that interim awards — those resolving specific issues prior to a final award — can be subject to judicial enforcement in the U.S.[9]
The United Kingdom
UK courts generally enforce partial or interim decisions only if they qualify as “awards” under Sections 66 and 100(1) of the Arbitration Act 1996. What constitutes an “award”, however, is frequently debatable.[10] Hence, a partial award issued in England, Wales, or Northern Ireland under Section 47 of the Arbitration Act that finally resolves some of the issues in dispute can be enforced as an award under Section 66.[11] However, provisional orders or procedural decisions that are subject to further tribunal review are generally not enforceable.
Singapore
Singapore, another common law jurisdiction, has adopted a similar approach in recent years. In 2015, the Singapore Court of Appeal confirmed that awards ordering interim relief are considered “final” regarding the issue they adjudicate (i.e., whether the requested relief is warranted) and can be enforced under the Singapore Arbitration Act.[12] In 2022, the Singapore High Court ruled that an emergency arbitrator’s award from Pennsylvania is enforceable in Singapore, despite the Singapore International Arbitration Act not explicitly stating this.[13]
France
French courts recognize and enforce all decisions that qualify as “awards” under French law.[14] An award is defined by case law as a decision that fully or partially resolves the dispute submitted to the arbitrators.[15] This suggests that partial awards may be enforced in France; however, the enforcement of decisions on interim measures is more controversial despite precedents where the Paris Court of Appeal found that a decision whereby a tribunal ordered interim measures for the duration of the arbitral proceedings did constitute an award.[16]
Therefore, the enforceability of interim measures in France depends on whether they are issued as awards or orders. French courts have shown a tendency to enforce interim measures that are framed as awards, viewing them as final decisions on specific issues.
Switzerland
Whether a partial award is enforceable in Switzerland depends on whether it qualifies as an award under the Private International Law Act (“PILA”). Swiss courts distinguish between procedural orders and interim awards. Swiss courts recognize and enforce only partial awards that decide on one or more prayers for relief or claims and finally resolve a part of the dispute, i.e., have a res judicata effect.[17] A procedural order issued during the proceedings that can be revoked or amended at any time during the arbitral proceedings, due to its lack of finality, is not considered an award.[18] Interim or preliminary awards, which clarify a preliminary issue, are generally not enforceable in Switzerland but may be subject to challenge under specific circumstances.[19] Whether a decision constitutes an award depends not on the label but rather on the contents of the decision. In practice, this has to be assessed on a case-by-case basis.
Conclusion
In conclusion, while partial awards on interim measures are important in international arbitration, their enforceability is not uniform across jurisdictions. Enforcement of decisions on interim measures largely depends on their form and the jurisdiction where enforcement is sought.
To enhance enforceability, tribunals should try to issue interim measures in the form of awards rather than orders, as some jurisdictions are more inclined to enforce awards. Parties, on the other hand, must consider the legal framework and the willingness of local courts to enforce such measures. In some jurisdictions, concurrent powers exist between state courts and arbitral tribunals, allowing parties to seek interim relief from either forum. A thorough understanding of the legal frameworks in relevant jurisdictions is essential to navigate and utilize interim measures in arbitration proceedings effectively.
[1] On interim measures in ICC Arbitration, see Conservative and Interim Measures in ICC Arbitration.
[2] ICC Arbitration Rules, Article 28(1).
[3] Swiss Arbitration Rules, Article 29.2.
[4] See The New York Convention Guide, “Interim or Partial Awards”, https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1806.
[5] Challenging and Enforcing Arbitration Awards: USA – Global Arbitration Review.
[6] CE International Resources Holdings LLC v. SA Minerals Ltd et al., 2012 US Dist. LEXIS 176158, 6, 7 (SDNY).
[7] Sharp Corporation et al. v. Hisense USA Corporation et al., 292 F. Supp. 3d 157 (DDC 2017). For more information on emergency arbitrations, see also Enforcement of Emergency Arbitration Decisions and ICC Emergency Arbitration.
[8] Ecopetrol S.A. et al. v. Offshore Exploration and Production LLC, 46 F. Supp. 3d 327 (SDNY 2014).
[9] Ecopetrol S.A. et al. v. Offshore Exploration and Production LLC, 46 F. Supp. 3d 327 (SDNY 2014).
[10] In determining whether or not a decision is an award for the purposes of a challenge under Section 68 of the English Arbitration Act, the courts have considered a number of factors, including, inter alia, the substance (not the form) of the decision; the nature of the issues with which the decision deals, whether the decision is final in the sense that it disposes of the matters submitted to arbitration so as to render the tribunal functus officio, either entirely or in relation to that issue or claim; the tribunal’s description of the decision, which is relevant but not determinative; and how a “reasonable recipient” would consider the “objective attributes of the decision”; see Challenging and Enforcing Arbitration Awards: United Kingdom – England & Wales – Global Arbitration Review.
[11] Challenging and Enforcing Arbitration Awards: United Kingdom – England & Wales – Global Arbitration Review.
[12] PT Perusahaan Gas Negara (Persero TBK) v. CRW Joint Operation [2015] SGCA 30.
[13] CVG v. CVG [2022] SGHC 249.
[14] Challenging and Enforcing Arbitration Awards: France – Global Arbitration Review.
[15] Cass. civ. 1, 12 October 2011, No. 09-72.439.
[16] Paris Court of Appeal, 7 October 2004, No. 2004/13909 / Cour d’appel [CA] Paris, Société Otor Participations et autres c/ Société Carlyle Holdings 1 et autre, Oct. 7, 2004, N° rép. Gén.: 2004/13909 (“La limitation de mesures provisoires ordonnées par le tribunal arbitral à la durée de l’instant ne remet pas en cause l’autorité de chose jugée de sa décision, que les arbitres ont pu exprimer sous forme de sentence, choix de procédure auquel aucune des parties ne s’est oppose. . . . Le prononcé d’astreintes ou d’injonctions constitue un prolongement inhérent et nécessaire à la fonction de juger pour assurer une meilleure efficacité au pouvoir juridictionnel et ne caractérise ainsi aucun dépassement de la mission de l’arbitre.”).
[17] Challenging and Enforcing Arbitration Awards: Switzerland – Global Arbitration Review.
[18] B. Berger and F. Kellerhals, International and Domestic Arbitration in Switzerland, 4th ed., para. 1699; SFSC Decision 136 III 597, 10 November 2010.
[19] Challenging and Enforcing Arbitration Awards: Switzerland – Global Arbitration Review.