Journal of Law & Commerce

Vol. 41, No. 2 (2023) ● ISSN: 2164-7984 (online)

DOI 10.5195/jlc.2023.257 ● http://jlc.law.pitt.edu

COURT-ORDERED INTERIM MEASURES IN INTERNATIONAL

ARBITRATION: A COMPARATIVE APPROACH

Ilias Bantekas and Ikram Ullah

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative

Works 3.0 United States License.

This journal is published by Pitt Open Library Publishing.

 COURT-ORDERED INTERIM MEASURES IN INTERNATIONAL
ARBITRATION: A COMPARATIVE APPROACH

Ilias Bantekas * and Ikram Ullah **

ABSTRACT

This paper argues that there is a distinct cross-border law concerning

court-ordered interim measures in aid of international arbitration, which is
made up of two key (intertwined) sources, namely: the relevant provisions of
the UNCITRAL Model Law on International Commercial Arbitration and
supporting case law and legislation in both Model Law states and non-Model
Law states. The principles identified in this paper are assumed to qualify as
general principles of law. In order for a court at the seat to grant interim relief
in international arbitral proceedings the requesting party must demonstrate a
prima facie case worthy of consideration, the likelihood of irreparable harm
and a balance of inconvenience. There is at present no general consensus as
to ex parte interim measures, with many states and national courts showing
significant reluctance to grant these on account of the absence of procedural
guarantees that they entail. In equal measure, in the absence of bilateral or
multilateral treaties that allow national courts to recognize and enforce
foreign interim measures in respect of arbitral proceedings seated abroad,
states are equally reluctant to allow parties seated in other jurisdictions to
approach their courts for interim relief on the ground that the other party has
assets or interests there. Although the courts of some powerful nations allow
for such requests, there is no general rule in this regard, and none is expected
in the near future.

*
Professor of Law, Hamad bin Khalifa University (Qatar Foundation), College of Law and Adjunct
Professor, Georgetown University, Edmund A. Walsh, School of Foreign Service.
**
Assistant Professor of Law, International Islamic University, Islamabad, Pakistan.

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252 JOURNAL OF LAW AND COMMERCE [Vol. 41:251

I. INTRODUCTION

On 13 June, 2022, in ZF Auto. U.S. v. Luxshare, Ltd. and AlixPartners

v. The Fund for Prot. of Inv. Rights in Foreign States, 1 the U.S. Supreme
Court decided whether 28 U.S.C. § 1782 can be used to obtain information
and documents in aid of private international arbitrations conducted overseas.
Sadly for the international arbitration community, it held that U.S. federal
law provides little to no authority for federal courts to order discovery arising
from requests by parties to arbitral proceedings abroad. Although requests to
foreign courts are only of indirect interest in this Article, this judgment
exemplifies that absence of perfect synergy between national courts in aid of
international arbitration, for which there is otherwise near-perfect global
synergy and consensus. Arbitral tribunals are dependent on the courts, of the
seat (or other) in order to resolve certain procedural disputes over which they
have no discretionary powers or authority. 2 However, one should not go as
far as argue that tribunals are subservient to the courts. The authority of the
courts extends only to those issues of the arbitral process that are either
outside the scope of the parties’ agreement (e.g., third party disclosure) or
which are covered by a public policy rule (e.g., absence of equal treatment).
This conclusion is further justified by the prohibition of appeals against
arbitral awards. There are two (key) reasons for this compulsory relationship
between tribunals and the courts. The first ensures for all persons the right to
a fair trial and the maintenance of public policy rules. If the courts were
unable to appoint a chairman, impose interim measures or assess procedural
irregularities the arbitral process may never culminate in an award, or worse
still, the stronger party has every incentive to manipulate its weaker
counterpart. The second reason is that because the authority of the tribunal is
contractual in nature it extends only to those persons that have granted it
relevant authority under contract. 3 As a result, third parties, such as experts,
witnesses, persons in possession of assets or evidence of relevance to the

1
ZF Automotive US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022).
2
See Markham Ball, The Essential Judge: The Role of the Courts in a System of National and
International Commercial Arbitration, 22 ARB. INT. 73 (2006).
3
Exceptionally, the Luxembourg Court of Appeals has gone so far as to hold that if the arbitration
clause stipulated that all disputes arising from the contract are to be resolved by arbitration, then the parties
may not order interim measures from the courts as this is beyond what the parties agreed. Court of Appeals
judgment, Oct. 21, 2009, [2010] Journal des Tribunaux Luxembourg 72.

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2023] COURT-ORDERED INTERIM MEASURES 253

arbitral proceedings, are under no contractual obligation to adhere to an order

of the tribunal, even if their participation in the proceedings is deemed
crucial. Moreover, such persons may have no incentive to cooperate with the
tribunal. If the lex arbitri did not empower the courts to assist the tribunal by
addressing binding orders to third parties (where appropriate), the right to
fair trial of the original parties would be severely jeopardized. 4 Furthermore,
an order of the tribunal on the parties themselves (e.g. to produce evidence)
is only binding as a matter of contract (based on their agreement to adhere to
institutional rules which permit the tribunal to issue an order).
Once the tribunal has been constituted, the role of the courts is to ensure
against the eventuality of non liquet (i.e. that a dispute may not be
conclusively resolved because of the absence of a sufficient body of
substantive rules), eliminate dead ends which effectively terminate
proceedings (e.g. disagreement over substitute arbitrator), as well as
safeguard vital interests of the parties (through interim measures) so that
these may be available during and at the end of proceedings. It is instructive,
although by no means effective or practical, that certain legal systems
aspiring to be arbitration-friendly prohibit recourse to the courts once the
tribunal has been constituted. The Slovak Supreme Court, for example, has
affirmed that upon commencement of arbitral proceedings the courts have no
authority to issue interim measures (as opposed to enforcing an interim
measure ordered by a tribunal). 5 Equally, in accordance with Article 1506(1)
of the French Code of Civil Procedure (CCP), which provides that the parties
may seek interim measures from the courts in international arbitration prior
to the constitution of the tribunal, it is implicit that once the tribunal has been
constituted any interim remedies can only be sought by the tribunal itself. 6
An interim measure issued by the courts must necessarily conform to an
action that already exists under the lex arbitri. 7 Advanced legal systems will
provide for a range of possible actions established under statute or judge-

4
See Ilias Bantekas, Equal Treatment of Parties in International Commercial Arbitration, 69
I.C.L.Q. 991 (2020).
5
Ruling of the Slovak Supreme Court, June 12, 2013, File no. 5, 24/2013.
6
See also Sociétés Elf Aquitaine and Total v MX and others, Supreme Cassation Court judgment
(12 Oct. 2011), [2012] 1 Rev Crit DIP 121.
7
See A. Tsang, Transnational Rules on Interim Measures in International Courts and Arbitrations,
INT. ALR. 35 (2011); S.M. Ferguson, Interim Measures of Protection in International Commercial
Arbitration: Problems, Proposed Solutions, and Anticipated Results, 12 CURRENTS INT’L TRADE L.J. 55
(2003).

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254 JOURNAL OF LAW AND COMMERCE [Vol. 41:251

made law. Some national statutes stipulate that if a particular action does not
exist the courts may adapt existing actions to the parties’ request if by doing
so they do not violate the lex arbitri. One of the obvious problems with
requesting interim measures from the tribunal is that the request itself offers
an opportunity to the other party to dissipate its assets or otherwise dispose
of the evidence in its possession. In order to mitigate against this eventuality,
Article 17B of the Model Law provides for the possibility of preliminary
orders, whereby the tribunal is authorized to grant interim measures without
notice to the other party. Preliminary orders are tantamount to ex parte
applications before national courts and given the limited authority of arbitral
tribunals in respect of interim measures it is natural that the parties will prefer
to apply ex parte to the courts rather than rely on tribunals’ preliminary
orders. 8 This conclusion is further justified by the fact that interim measures
imposed by tribunals affect only the parties to arbitration and hence have no
legal consequences with respect to third parties.
Interim measures granted by arbitral tribunals entail significant
enforcement limitations, chiefly because their orders are not binding upon
third parties, 9 whereas the requesting party may desire an enforceable (erga
omnes) instrument for use in the seat as well as abroad. Several domestic
laws, such as Article 11(3) of the Spanish Arbitration Act (AA), allow the
parties to seek interim measures from the courts either before or during
arbitral proceedings. 10 Another option is to empower tribunals to render
interim measures in the form of awards, although this is certainly unusual in
developed arbitral jurisdictions. 11 In this manner the requesting party need
not seek court assistance given that the award (on interim measures) is
enforceable as such. The OLG Frankfurt has held that interim relief is in

8
See H. Houtte, Ten Reasons Against a Proposal for Ex Parte Interim Measures of Protection in
Arbitration, 20 ARB. INT. 85 (2004) (noting ex parte interim measures in support of arbitration are rare
and difficult to achieve).
9
See the pre-1998 version of the German ZPO, § 1036; in Germany, there was little, if any chance,
of interim relief in the pre-1998 regime. See also J. SCHÄFER, ARBITRATION IN GERMANY: THE MODEL
LAW IN PRACTICE 226, 228 (K. Böckstiegel, S.M. Kröll & P. Nacimiento eds., 2d ed. Kluwer 2015).
10
Under the Arbitration Act, art. 23, (B.O.E. 2003, 60) (Spain) interim measures granted by the
arbitral tribunal shall be subject to setting aside and enforcement proceedings regardless of the form of
those measures.
11
In French law, for example, decisions on interlocutory issues and generally all those that do not
terminate the procedure are not afforded the status of awards. See Société Crédirente v Compagnie
Générale de Garantie, Paris Court of Appeals judgment (29 Nov. 2007), [2009] Rev Arb 741.

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2023] COURT-ORDERED INTERIM MEASURES 255

exceptional circumstances possible even when an award has been rendered

(assuming that the challenging party is lawfully pursuing set-aside
proceedings), but the claim for relief cannot be tantamount to suspending the
application of the terms of the award. 12
Exceptionally, local courts may be empowered to assist arbitral
proceedings seated abroad by ordering that certain actions be undertaken
within their jurisdiction. By way of illustration, Belgian courts enjoy
authority under the country’s 2013 Arbitration Law in respect of certain suits
and actions linked to arbitrations seated abroad, namely: with respect to the
validity of arbitration agreements; 13 adoption of provisional or conservatory
measures; 14 taking of evidence 15 and recognition and enforcement of
provisional or conservatory measures ordered by a tribunal (seated abroad). 16
It is equally possible for the courts of the seat to be requested to issue certain
world-wide orders, such as Mareva injunctions (essentially interim freezing
orders), 17 but their success will depend on the existence of bilateral or
multilateral agreements for the enforcement of civil judgments.
This Article examines the authority of the courts to order interim
measures in support of local, as well as (although less so) foreign 18
international arbitral proceedings. As a result, it is beyond the scope of this
Article to assess the authority and practice of interim relief by tribunals,
whether following the tribunal’s constitution, 19 or prior to that. 20 In doing so,
we are in search of general principles on the basis of the case law and practice

12
Oberlandesgericht [OLGZ] [Higher Regional Court] June 13, 2013, SchH 6/13, judgment (Ger.).
13
C.JUD. (Belg.), art. 1676.
14
Id. art. 1696.
15
Id.
16
Id. art. 1709.
17
The Supreme Court of Cyprus, for example, has shown a distinct inclination in the use of such
orders in order to assist arbitrations seated there. See Seamark Consultancy Services Ltd v Joseph Lasala
and Others, 1A AAD 162 (2007).
18
See V.V. Veeder, The Need for Cross-border Enforcement of Interim Measures Ordered by a
State Court in Support of the International Arbitral Process, in NEW HORIZONS INT’L COM. ARB. AND
BEYOND 237, 241 (Albert Jan van den Berg ed., 2005).
19
See L.A. Tucker, Interim Measures Under Revised UNCITRAL Arbitration Rules: Comparison
to Model Law Reflects Both Greater Flexibility and Remaining Uncertainty, 1 INT’L COM. ARB. BRIEF
15, 15 (2011); P.J.W. Sherwin & D.C. Rennie, Interim Relief Under International Arbitration Rules and
Guidelines: A Comparative Analysis, 20 AM. REV. INT’L ARB. 317 (2009).
20
See E. Collins, Pre-Tribunal Emergency Relief in International Commercial Arbitration, 10 LOY.
U. CHI. INT’L L. REV. 105 (2012).

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that has been accumulated over the course of the past forty years,21 although
our focus will be on the revised UNCITRAL Model Law on International
Commercial Arbitration and Articles 17 and 17J. Article 17 sets out the
criteria which the courts must follow for making such an order, but Article
17J extends this authority of the courts to arbitrations set elsewhere. It reads
as follows:
A court shall have the same power of issuing an interim measure in relation to
arbitration proceedings, irrespective of whether their place is in the territory of
this State, as it has in relation to proceedings in courts. The court shall exercise
such power in accordance with its own procedures in consideration of the specific
features of international arbitration. 22

Both Articles 17 and 17J of the Model Law express, in the opinion of
the authors, the current trend in respect of the authority of courts to order
interim measures arising from international arbitral proceedings. It is
important, therefore, to examine international practice, both judicial and
legislative, that seeks to implement these provisions directly (e.g., as
concerns Model Law member states), as well as indirectly (in relation to non-
member states). 23

II. COURT-ORDERED MEASURES IN THE UNCITRAL MODEL LAW

Although the Model Law has, through Article 9, settled that the
application for interim measures is not incompatible with the arbitration
agreement, it does not expressly stipulate whether the forum court enjoys the
power to issue interim measures. 24 Therefore, it was thought that the mere

21
See C.C. Higgins, Interim Measures in Transnational Maritime Arbitration, 65 TUL. L. REV.
1519 (1991); D.R. Bucy, How to Best Protect Party Rights: The Future of Interim Relief in International
Commercial Arbitration Under the Amended UNCITRAL Model Law, 25 AM. U. INT’L L. REV. 579
(2010).
22
United Nations Commission on International Trade Law, Model Law on International
Commercial Arbitration (1985), with amendments as adopted in 2006, https://uncitral.un.org/en/texts/
arbitration/modellaw/commercial_arbitration.
23
S. Menon & E. Chao, Reforming the Model Law Provisions on Interim Measures of Protection,
2 ASIAN INT’L ARB. J. 13 (2006).
24
U.N. Secretariat, Settlement of Commercial Disputes: Preparation of Uniform Provisions on
Interim Measures of Protection, Note by the Secretariat, ¶ 75, Comm. on Int’l Trade Law, U.N. DOC.
A/CN.9/WG.II/WP.119 (Jan. 30, 2002); U.N. Secretary General, Comm. on Int’l Trade Law, Analytical
Commentary on Draft Text of a Model Law on International Commercial Arbitration, Report of the
Secretary General, ¶¶ 1–5, Comm. on Int’l Trade Law, U.N. DOC. A/CN.9/264 (Mar. 24, 1985).

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2023] COURT-ORDERED INTERIM MEASURES 257

adoption by some regimes of Article 9 may not be sufficient, in and of itself,

to establish the power of the courts to issue interim measures, 25 which in turn
gave rise to the need for the formulation of a provision such as Article 17J in
the 2006 amendments to the Model Law. While drafting the Model Law,
deliberations over a provision regarding the court’s power to issue interim
measures started with an important question as to whether the procedure to
be followed by the court while deciding on an application for interim relief
should be laid down in the Model Law. 26 Apart from the expression of
compatibility element, it was also agreed that other elements, such as the type
and range of interim measures, should not be included in the provision as
they form an integral part of the domestic legal regime of Model Law states. 27
Hence, from the very beginning, there was a degree of consensus whereby
the details of the range and scope of interim measures were left to the law of
each state and in accordance with established practice.
The rationale militating against the incorporation of a detailed list of
procedural rules and measures in the 2006 version of the Model Law may be
traced to a proposal put forward by the International Chamber of Commerce
(ICC) during the negotiating rounds. It proposed that there is a need to
harmonize the law on arbitration across the globe and that the Model Law
should ensure the implementation of fundamental principles of justice, i.e.,
due process, fairness and equality. This notwithstanding, there was
significant divergence among States as to the precise scope of available
measures and it was felt that instead of formulating detailed rules for the
purpose of precision and certainty by altering the concepts in vogue in those
regimes, this task should be left to each State by freely adopting a common
denominator. The reason for the approach suggested by the ICC was that the
solutions rendered by the Model Law, which are considered foreign by the

25
U.N. DOC. A/CN.9/WG.II/WP.119, supra note 24, at ¶ 75.
26
U.N. Secretariat, Possible Features of a Model Law on International Commercial Arbitration:
Questions for Discussion by the Working Group, Working Paper Submitted to the Working Group on Int’l
Contract Practices at its Third Session (New York, Feb. 16–20, 1982), ¶ 25, U.N. DOC.
A/CN.9/WG.II/WP.35 (Dec. 1, 1981).
27
Report of the Working Group on International Contract Practices on the Work of Its Third
Session, ¶ 69, Comm. on Int’l Trade Law, U.N. DOC. A/CN.9/216 (Mar. 23, 1982).

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receiving states, might not ultimately be accepted and hence be

counterproductive. 28
The formulation of uniform and detailed rules as to the powers of court
was again considered in the Working Group meetings held for the 2006
amendments. 29 As a matter of fact, it was observed that the various aspects
of interim measures were treated in different ways in the variety of domestic
legal systems by means of different types of classification. In international
arbitration specifically, the parties while applying to the foreign courts for
interim measures are compelled to fulfil conditions with which they are
unfamiliar. 30 The other point is that the provisions dealing with the court’s
power to grant interim measures were absent in the legislation of a number
of jurisdictions, which led to the reluctance or unwillingness of certain courts
to grant the interim remedy sought. This unwillingness was the result of an
absence of similar provisions empowering the courts of particular states to
issue interim measures. Moreover, there was considerable uncertainty as to
“whether and under what circumstances such court assistance was
available.” 31 Hence, the conclusion was that the involvement of courts on
matters pertaining to interim relief in support of arbitration varies from
country to country. For that reason, it has become more difficult to predict
the degree to which a court may be willing to intervene. 32 Therefore, initially,
it was proposed that there should be uniform rules as to the situations wherein
a party to arbitration may apply for judicial interim measures.33 However,
this option was not universally supported by the Working Group.
Although there was consensus in favor of an article making express
reference to the empowerment of domestic courts to issue interim measures,
which was subsequently reflected in the final version of Article 17J, there

28
U.N. Secretary General, Analytical Compilation of Comments by Governments and International
Organizations on the Draft Text of a Model Law on International Commercial Arbitration, ¶ 2, Comm.
on Int’l Trade Law, U.N. DOC. A/CN.9/263/Add.1 (Apr. 15, 1985).
29
U.N. DOC. A/CN.9/WG.II/WP.111, supra note 24, at ¶ 9.
30
U.N. Secretary General, International Commercial Arbitration Possible Future Work: Court-
Ordered Interim Measures of Protection in Support of Arbitration, Scope of Interim Measures that May
Be Issued by Arbitral Tribunals, Validity of the Agreement to Arbitrate, ¶ 7, U.N. DOC.
A/CN.9/WG.II/WP.111 (Oct. 12, 2000).
31
Report of the Working Group on Arbitration on the Work of Its Thirty-Second Session, ¶ 86,
Comm. on Int’l Trade Law, U.N. DOC. A/CN.9/468 (Apr. 10, 2000).
32
U.N. DOC. A/CN.9/WG.II/WP.111, supra note 24, at ¶ 9.
33
U.N. DOC. A/CN.9/WG.II/WP.111, supra note 24, at ¶ 2.

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2023] COURT-ORDERED INTERIM MEASURES 259

was a difference of opinion on the standards and criteria to be used by the

courts in issuing interim measures. As a result, two variants on the powers of
local courts were deliberated. One view (first variant) was that the court
should bring into use the procedures and standards laid down in the forum’s
procedural laws. The alternative view (second variant) was that the court
should exercise its power “in accordance with the requirements set out under
Article 17.” 34 However, the general view tilted in favor of the first variant
and towards the application by the court of its own procedural standards on
the basis that this solution “would have to provide flexibility for the court to
adapt to the specific features of international arbitration.” 35

III. CONDITIONS TO BE FULFILLED IN ORDER TO SECURE INTERIM

MEASURES FROM THE COURT

Like any other remedy, the applicant has to fulfil certain conditions
before the court to secure the relief of interim measures. Jurisdictions the
globe over do not diverge on these conditions intensely; however, some apply
them as a three-phased test, whereas others employ them as a two-phased test
by combining the second and third phases into one. The conditions to be
fulfilled to secure the requested interim measures from the court depend on
the kinds of interim measures being sought. In general terms, a three-stage
test is adopted by the courts while determining the merits of an application
for interim relief. First, the merits of the case will be assessed as a preliminary
matter in order to ensure that there is a prima facie case or a serious question
to be decided. Second, the court must determine whether the refusal to grant
the interim relief will result in irreparable injury to the applicant. Finally, on

34
Report of the Working Group on Arbitration on the Work of Its Thirty-Eighth Session, ¶¶ 76–
77, U.N. DOC. A/CN.9/524 (June 2, 2003). See also U.N. DOC. A/CN.9/468, supra note 24, at ¶¶ 85–87;
Settlement of Commercial Disputes Preparation of Uniform Provisions on Interim Measures of Protection:
Note by the Secretariat, ¶¶ 19, 67, 77–79 U.N. DOC. A/CN.9/WG.II/WP.119 (Jan. 30, 2002); Report of
the Working Group on Arbitration and Conciliation on the Work of Its Forty-Second Session, ¶ 91, U.N.
DOC. A/CN.9/573 (Jan. 27, 2005).
35
U.N. DOC. A/CN.9/524, supra note 24. See also U.N. Doc. A/CN.9/468, supra note 24; U.N.
DOC. A/CN.9/WG.II/WP.119, supra note 24; U.N. DOC. A/CN.9/WG.II/WP.119, supra note 24; U.N.
DOC. A/CN.9/573, supra note 24.

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a balance of the two, the court should come to a conclusion as to whether

there is merit or a balance of convenience in granting the interim relief. 36
The jurisdictions which have converted the three-stage test into a two-
pronged alternative accumulate the second and third prongs under the single
heading of “balance of convenience.” 37 For instance, in order to consider the
infliction of irreparable harm, a Canadian court has held that the issue of
irreparable harm, and hence the adequacy of damages as a remedy for the
parties, is very closely connected to the balance of convenience. 38
The variants of these tests have also been applied in different
jurisdictions. In Germany, the court will grant interim relief if the applicant
convinces the court that he or she is more likely to secure a judgment on the
merits pertaining to the monetary or non-monetary claims and that if the
interim relief to maintain the status quo is not granted, the enforcement of the
judgment to realize such claim would become either difficult or impossible. 39
Hence, the plaintiff has only to demonstrate a greater likelihood of a
judgment in his or her favor to the exclusion of proof under the two tests.
Nevertheless, without disagreeing with the varied employment of these tests,
what follows is an analysis of the three-staged test.

IV. MAKING A PRIMA FACIE CASE

As a first test, the applicant has to prove the existence of a prima facie
case. In this regard, it is worth exploring, which this segment does, how far
the applicant should go to prove a prima facie case to be entitled to this relief
and also how far a court should go into the case before it decides the issuance

36
For Canada, see RJR MacDonald, Inc. v. Canada (Att’y Gen.), [1994] 1 S.C.R. 311; Manitoba
(Att’y Gen.) v. Metro. Stores (MTS), Ltd., [1987] 1 S.C.R. 110. For Ireland, see Osmond Ireland on Farm
Bus. v. McFarland [2010] IEHC 295; Campus Oil, Ltd. v. Minister for Industry and Energy (No. 2) [1983]
IR 88. For New Zealand, see Klissers Farmhouse Bakeries, Ltd. v. Harvest Bakeries, Ltd. [1985] 2 NZLR
143; Safe Kids in Daily Supervision, Ltd. v. McNeill [2012] 1 NZLR 714. For India, see Embassy Prop.
Devs. v. Jumbo World Holdings, Ltd. (2013) (Madras HC); House Prods. Pvt., Ltd. v. Meediya Plus
(2005) 2 MLJ 256; Adhunik Steels, Ltd. v. Orissa Manganese and Minerals Pvt., Ltd. (2007) AIR SC
2563; Aravind Constr. v. Kalinga Mineral Corp. (2007) 6 SCC 798.
37
See RJR MacDonald, supra note 36, para. 48; British Columbia (Att’y Gen.) v. Wale, (1986), 9
B.C.L.R. (2d) 333 at 345, aff’d (1991); Mercer Gold Corp. (Nev.) v. Mercer Gold Corp. (BC), 2011
CanLII 1664 (B.C. Sup. Ct.) (Can.).
38
Roxul (West), Inc. v. 445162 BC, Ltd., 2001 CanLII 362 (B.C.C.A) (Can.).
39
Zivilprozessordnung [ZPO] [Code of Civil Procedure], §§ 916, 917, 935 (Ger.).

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2023] COURT-ORDERED INTERIM MEASURES 261

of interim measures. Prior to the verdict of the House of Lords in American

Cyanamid Co. v. Ethicon Ltd, 40 a plaintiff in Canada, in order to comply with
the first test, was mandated to demonstrate a “strong prima facie case” as to
the merits. However, this judgment held that the requirement to establish the
prima facie case need not be “strong.” In order to make a prima facie case,
in the words of Lord Diplock, the plaintiff only has to satisfy the court that
“the claim is not frivolous or vexatious; in other words, that there is a serious
question to be tried.” 41 Since then, Canadian courts have usually gone on to
apply the American Cyanamid standard.
Even so, the American Cyanamid test may not be suitable (or sufficient)
in all situations. For instance, with respect to Mareva injunctions, the
applicant must prove, inter alia, a strong prima facie case. 42 Similarly, in
Innovative Marketing Inc. v. D’Souza, 43 a Canadian court established that a
worldwide Mareva injunction will be granted if the applicant is successful in
proving a strong prima facie case on the merits 44 and a real risk of dissipation
of assets by the defendants. 45 A New Zealand court has held that the “strong
arguable case” test for freezing orders or for service out of jurisdiction is
different from the test concerning interim injunctions because the adjective
“strong” creates a higher threshold.46
Similarly, Lord Diplock’s statement in American Cyanamid that the
absence of frivolousness and vexatiousness in the claim of the plaintiff will
mean that there is a serious question to be tried has been largely rejected in
Australia, where it was held that “the governing consideration is that the
requisite strength of the probability of ultimate success depends upon the
nature of the rights asserted and the practical consequences likely to flow
from the interlocutory orders sought.” 47 For an interlocutory relief to be

40
See American Cyanamid Co. v. Ethicon, Ltd., [1975] A.C. 396, 407 (Can.).
41
See American Cyanamid Co. v. Ethicon, Ltd., [1975] A.C. 396, 407 (Can.).
42
Chitel v. Rothbart, 1982 CanLII 1956 (Can. Ont. C.A.). In the same case, a Mareva injunction
was explained as it “ties up the assets of the defendant, specific or general, pending any judgment adverse
to the defendant so that they would then be available for execution in satisfaction of that judgment. It is
certainly ordering security before judgment.”
43
Innovative Mktg., Inc. v. D’Souza, 2007 CanLII 5529 (Can. Ont. S.C.).
44
Chitel, supra note 42.
45
Fed. Bank of the Middle East v. Hadkinson, [2000] 2 All ER 395 (Can. U.K.C.A.).
46
See Safe Kids, supra note 36.
47
Port Coogee No. 790 Pty, Ltd v Coastal Dev Mgmt Pty, Ltd [2014] WASC 400 (Austl.). See also
Beecham Group, Ltd v Bristol Lab’ys Pty, Ltd (1968) 118 CLR 618 (Austl.); Australian Broad Co v

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secured from the court, there must be an identification of legal or equitable

rights which a final remedy is sought. If the applicant cannot make such
identification, the foundation of the interim relief will disappear. 48 The extent
to which the court will need to consider the legal merits of the plaintiff’s
claim for final relief, in deciding whether to impart interim relief, will depend
on the facts of each case. Hence, there is no hard and fast rule.49
Whatever the standards by which to evaluate the existence of a prima
facie case, the general view is that the threshold of “a serious question to be
tried” is a low one, determined by a judge through a preliminary assessment
of the merits of the case without making a prolonged examination thereof. 50
In Ireland and Canada, the existence of a fair bona fide question has not been
perceived as a matter requiring examination of facts or law and should be
reserved for trial. 51 An Irish court went further by saying that there is no need
for the plaintiff to prove his likelihood of success on the merits, for he only
needs to demonstrate the existence of a fair bona fide question.52 Hence, the
likelihood of success does not require proof of the existence of a serious
question to be tried. For instance, leave granted by an appellate forum on the
merits indicates the involvement of a serious issue. However, the refusal to
grant such leave in a case that involves the same issues will not be tantamount
to the absence of a serious question. After having satisfied the ingredients of
the first prong of the test, the court should move to consider the second
prong. 53

O’Neill (2006) 227 CLR 55, 65–71 (Austl.); Public Service Ass’n & Pro Officers’ Ass’n Amalgamated
Union of New South Wales and State of New South Wales, Dir Gen of the Dep’t of Premier and Cabinet
[2013] NSWIR Comm. 4 (Austl.). For the Indian approach, which is similar to that of Australia, see
Techmo Car Spa v. Madras Aluminium Co., (2004) 2 ARBLR 284 (India).
48
Samsung Elecs Co v Apple Inc (2011) 217 FCR 238, 254–62 (Austl.); see also SZTYO v
Minister for Immigr and Border Prot [2015] FCA 30 (Austl.).
49
Samsung, supra note 48, at 256–62; see also Buller v. Murray Grey Beef Cattle Soc’y Ltd [2014]
FCA 1127 (Austl.).
50
RJR MacDonald, supra note 36.
51
Osmond Ireland, supra note 36. For Ireland, see Kinsella v. Wallace [2013] IEHC 112. For
Canada, see RJR MacDonald, supra note 36.
52
Crossplan Invs., Ltd. v. McCann [2013] IEHC 205 (Ir.); RJR MacDonald, supra note 36;
Manitoba, supra note 36.
53
Crossplan Invs., supra note 52.

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V. IRREPARABLE HARM

After having proved the existence of a prima facie case, at the second
stage, the court will ascertain if the harm to be inflicted on an applicant by
the refusal to issue an interim measure will be irreparable. In other words, the
court will only determine if the harm incurred by the plaintiff with the refusal
of the interim measure will not be remedied by the decision on the merits in
his favor, 54 since damages would not constitute an adequate remedy. A
Canadian court elaborated on the term “irreparable” by stipulating that it
“refers to the nature of the harm suffered rather than its magnitude.” Harm
would be irreparable if it cannot be quantified in monetary terms or cured
because in the event of a favorable decision the plaintiff will not be able to
collect damages from the defendant. This may be the case, for instance,
because the court’s judgment will put a party out of business, 55 because a
party undergoes market loss of a permanent nature or irrevocable harm to its
business reputation, 56 or because the refusal to issue an injunction against
particular conduct will result in the permanent loss of natural resources.57
However, the impecuniosity of the defendant will not automatically entitle
the plaintiff to seek interim relief from the court on the ground that the
plaintiff will not subsequently be able to collect damages from the
defendant. 58
In an Irish case, Osmond Ireland v. McFarland, 59 as to the second
ground, it was held that impossibility instead of difficulty of assessment of
loss should be a basis for characterizing the granting of damages as an
inadequate remedy. 60 In Curust, the plaintiff sought an injunction to restrain
the first defendant from granting the second defendant the manufacturing,
sale and distribution rights over particular products, including rust primer
paint, in the territory of Ireland and the United Kingdom. Such a remedy was
sought on the grounds, inter alia, that under a contract between the plaintiff

54
In House Prods. Priv. Ltd v. Meediya Plus, 2 MLJ 256 (2005) (India).
55
RL Crain Inc. v. Hendry, 1988 CanLII 5042 (Can. Sask. Q.B.).
56
American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 (HL) (appeal taken from Eng.) (U.K.).
57
MacMillan Bloedel Ltd v. Mullin, 1985 CanLII 154 (Can. B.C. C.A.).
58
Hubbard v. Pitt [1976] QB 142 (Eng.).
59
Osmond Ireland on Farm Bus. v. McFarland [2010] IEHC 295 (H. Ct.) (Ir.).
60
See Curust Fin. Servs. Ltd. v. Loewe-Lack-Werk Otto Loewe GMBH [1994] 1 IR 450 (SC) (Ir.)
(relied on by the Court).

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and the first defendant, such rights were exclusively conferred on the
plaintiff. However, while entertaining the issue as to whether the damages
were an adequate relief for the plaintiff, finally, it was held that loss incurred
by the plaintiff, if successful on the merits and defeated on the issue of
injunctive relief, would manifestly and exclusively constitute a commercial
loss in a very stable market. 61
In the case law of Ireland, the second ground recognized in Campus Oil,
i.e., the adequacy of damages to compensate a party for losses incurred in the
time between the application for interim relief and the final outcome on the
merits, was further divided into two elements, namely whether:
(1) If the plaintiffs were to succeed on the merits, they would be adequately
compensated by an award for damages; and
(2) If the defendants were successful on the merits, they could be adequately
compensated under the applicants’ undertaking as to damages for any loss which
they would have sustained by reason of the granting of interlocutory relief. 62

Whether damages are an adequate remedy responds to the question of

whether “it is just, in all the circumstances, that a plaintiff should be confined
to his remedy in damages.” 63 In Australia, the question of whether the
adequacy of damages must be satisfied as a separate element before the
impartation of interim relief has attracted some controversy. 64 The condition
that one needs to establish the inadequacy of damages before the grant of
interim relief was held to be a separate requirement in Castlemaine
Tooheys, 65 whereas it was not mentioned as such in the Australian
Broadcasting case. 66 However, these two extremes were reconciled by
terming the question of inadequacy of damages as one of the issues ordinarily
needed to be settled when the court assesses balance of convenience and
justice. 67 Australian courts will also “make an assessment of the likelihood
that the final relief (as granted) will adequately compensate the plaintiff for

61
Id.
62
Campus Oil Ltd v. Minister for Indus. & Energy (No. 2) [1983] IR 88 (SC) (Ir.).
63
Evans Marshall & Co Ltd v. Bertola S.A. [1973] 1 WLR 349 at 379 (Eng.).
64
Johnson v Cetin [2011] WASC 344 (7 Dec. 2011) (Austl.).
65
Castlemaine Tooheys Ltd v S Austl [1986] 161 CLR 148 (Austl.).
66
Australian Broad Corp v O’Neill [2006] HCA 46 (Austl.).
67
See Lime Nominees Pty Ltd v Adelaide Brighton Cement Ltd [2014] WASC 503 (28 Sept. 2006)
(Austl.); Samsung Elecs Co Ltd v Apple Inc (2011) FCR 238, 254–62 (Austl.). See also Buller v Murray
Grey Beef Cattle Soc’y Ltd [2014] FCA 1127 (3 Oct. 2014) (Austl.).

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2023] COURT-ORDERED INTERIM MEASURES 265

the continuing breaches that will have occurred between the date of the
interlocutory hearing and the date when final relief might be expected to be
granted.” 68

VI. BALANCE OF INCONVENIENCE

At the third stage (which is the final one) to secure interim relief, the
applicant has to prove that the balance of inconvenience lies in his or her
favor. The balance of inconvenience means: “a determination as to which of
the two parties will suffer the greater harm from the granting or refusal of an
interlocutory injunction, pending a decision on the merits.” 69 It is stated that
owing to the low threshold of the first prong of the test and the difficulties
involved in the application of the second prong, this third prong is in most
cases determinative of the issuance of interlocutory injunctions.70 However,
the factors involved in the proper evaluation of “balance of inconvenience”
are many in number and cannot be listed because these elements necessarily
vary in each case. 71
In the case law of Ireland, the balance of inconvenience is linked very
closely and directly to the risk of injustice. 72 This relationship has further
been elaborated on by the Singapore Court of Appeals. 73 Since the balance
of inconvenience involves balancing the risk of doing an injustice, it is more
weighty when compared with mere convenience.74 The court should conduct
a balancing exercise between the injustice that might be suffered by the
plaintiff if the injunction is refused and the plaintiff subsequently succeeds
on the merits and the injustice that might be suffered by the defendant if the
injunction is granted and the plaintiff later loses on the merits.75

68
Samsung Elecs Co Ltd [2011] FCR 238 (Austl.) para. 66; Patrick Stevedores Operations No 2
Pty Ltd v Mar Union of Australia [1998] 195 CLR 1 (Austl.), paras. 65–66; Sports Data Pty Ltd v Prozone
Sports Austl Pty Ltd [2014] FCA 595 (Austl.).
69
See American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 (HL) (appeal taken from Eng.)
(U.K.).
70
Id.
71
Id.
72
See Allied Irish Bank PLC v. Diamond [2011] IEHC 505 (H. Ct.) (Ir.).
73
Maldives Airport Co. Ltd. v. GMR Malé Int’l Airport Pte Ltd. [2013] SGCA 16 (Sing.).
74
Kolback Sec. Ltd. v Epoch Mining NL [1987] 8 NSWLR 533, 536 (Austl.).
75
Films Rover Int’l Ltd v. Cannon Film Sales Ltd [1987] 1 WLR 670 (U.K.); Madaffari v Labenai
Nominees Pty Ltd [2002] WASC 67 (Austl.).

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In Australian case law, the interrelationship between establishing a

prima facie case and the balance of convenience was elaborated in the case
of Castlemaine Tooheys, 76 where it was stated that if the existence of a
strong, overwhelming or powerful prima facie case concerning a serious
question is established, the injunction would be granted even if the balance
of convenience does not strongly lie in favor of the claimant seeking the
injunction. Conversely, on the face of a marginal prima facie case concerning
a serious question, the injunction will be granted if the balance of
convenience strongly favors the applicant. 77

VII. CAN THE COURT GO BEYOND THE THREE-PRONG TEST?

The three-pronged test has created certainty and predictability in the

jurisprudence developed on the issuance of interim measures. For this reason,
the applicant has an opportunity to predict the chances of his or her success
before the court. However, an ancillary but important question emerges if the
court is or should be bound by the three-pronged test while deciding such
application, or if it should have the power to go beyond three-pronged test to
apply some other test while trying the application of the interim measures.
In New Zealand, Article 17J is not incorporated in the Arbitration
Amendment Act 2007 or the Arbitration Act 1996. Hence the courts derive
their power to issue interim measures from Section 9 of the 2007 Act, which
is the corresponding provision for Article 9 of the Model Law. Section 9(2)
of the 2007 Act states that the “High Court or a District Court has the same
powers as an arbitral tribunal to grant an interim measure under Article 17A
for the purposes of proceedings before that court, and that article and Article
17B apply accordingly subject to all necessary modifications” (emphasis
added). 78
It should be noted that Article 17B of the Model Law is incorporated in
the Arbitration Act of 1996. It has been held that in deciding the application
of interim measures, given that the tribunal cannot consider the issues beyond
those stated in Article 17 of Schedule 1 to the Arbitration Act 1996, the same
restrictions would equally apply to the court. For instance, the matters set out
in Article 17B(1) of the Model Law “must” be proved before the arbitrator

76
See case cited supra note 65.
77
See also Marsh v Baxter [2013] WASC 209 (Austl.).
78
See Safe Kids, supra note 36.

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for securing the interim measures and this is also true in respect of the court’s
power. Then, courts deliberate the question of whether the court could
consider matters other than those which the plaintiff “must” prove to be
successful in his or her application for interim measures. Again, by
analogizing its powers to those of an arbitrator, the court concluded that it
cannot consider the matters other than those which the plaintiff has to prove.
It elaborated that, just like the arbitrator, the court cannot consider issues such
as public interest, the consequences to the innocent or the overall justice of
the case, because the tribunal derives its powers from the arbitration
agreement and hence is not accoutered with any discretion to consider these
two issues. Although the court did not say that just like the arbitrator, it also
cannot consider these issues while imparting interim measures, but the
manner by which it construed its powers and constraints to be identical to
those of arbitrators, it may safely be assumed that the court also cannot
consider these.
Nonetheless, the prevalent approach is that the courts are empowered to
go beyond the three-staged test. For instance, Canadian courts have been
assessing the public interest factor while deciding interim relief applications
in the course of civil litigation. 79 In fact, it was expressly stated by a Canadian
court that in assessing a balance of inconvenience, a court must consider,
inter alia, if either party will incur an irreparable loss, the forcefulness of the
plaintiff’s case, the public interest and the appropriateness of maintaining the
status quo. 80
Similarly, in Australia, while balancing inconveniences and injustice,
courts shall take into consideration the hardships and prejudices likely to be
suffered by a third party or the general public were the injunction to be
granted, 81 as well as public interest. 82 This is so because the parties’
adherence to their contractual obligation is a public policy concern. 83

79
See Mercer Gold Corp. (Nevada) v. Mercer Gold Corp. (BC), [2011] CanLII 1664 (Can.
B.C.S.C), wherein the court was declared obligated to take into consideration, inter alia, the public interest
while assessing the balance of inconvenience ground.
80
Id.
81
Samsung, 217 FCR 238 para. 66; Patrick Stevedores, 195 CLR 1 at 65–66; Sports Data, FCA
595.
82
Castlemaine Tooheys, 161 CLR 148, 154–56; Esposito v. The Commonwealth [2013] FCA 546.
83
Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd [2016] QDC 134 para. 27 (Austl.).

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In India, the Supreme Court applied the three-pronged test, namely that
the issuance of an interim order must be “just and convenient” 84 and not
against the public interest.85 The move beyond the three-pronged test was
justified by the Indian Supreme Court in Dorab Cawasji Warden v. Coomi
Sorab Warden and Others, 86 wherein it held that the grant of interim relief is
an equitable relief, which rests in the discretion of the court after considering
the facts and circumstances of each case. In this regard, the three-pronged
test is neither exhaustive nor complete in granting or rejecting interim orders
because exceptional circumstances may require the application of wholly
different tests from the ones described above.

VIII. REQUIREMENTS TO BE FULFILLED FOR A COURT TO ASSUME

JURISDICTION

The hierarchy of courts in each jurisdiction is normally different and so,

the level of court in each hierarchy empowered to issue interim measures is
different from that of other jurisdictions. This could be a reason why the
Model Law does not define the competent court with jurisdiction to entertain
the application of interim measures. Rather, the Model Law leaves the matter
of assigning the competency of a domestic court to the domestic law. In
Australia, for example, the Supreme Court is normally competent to hear
applications for interim measures. 87 In the Philippines, however, the power
to issue interim measures is vested in regional trial courts. 88 In New Zealand,
the court competent to issue interim measures has not been specified in the
relevant legislation, which states that: “court means a body or organ of the
judicial system of a state.” 89 However, Section 9(2) of Schedule 1 of the
Arbitration Act 1996 states that such a court may be the District or the High
Court. 90

84
Hindustan Petroleum Corp. v. Sri Sriman Narayan (2002) 5 SCC 760 (India). See also Adhunik
Steel Ltd. v. Orissa Manganese and Minerals Ltd. (2007) 7 SCC 125 (India).
85
Prabhjot Singh Mand v. Bhagwant Singh (2009) 9 SCC 435 (India).
86
Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117 JT (India).
87
Australian International Arbitration Act 1974, § 18(3).
88
Alternative Dispute Resolution Act, Rep. Act No. 9285, §§ 3(k), 28 (2004) (Phil.).
89
Arbitration Act 1996, sch 1, § 2(b) (N.Z.).
90
See id. § 9(2) (replicating the provisions of the Model Law in the Arbitration Act 1996).

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After identifying the competent court, the next important issue is

whether such court has jurisdiction to entertain claims for interim measures.
For the purposes of jurisdiction, Canadian law requires that the applicant
should prove the existence of a “real and substantial connection” between the
court and the defendant, or the subject matter. 91 In most jurisdictions, this
kind of connection in respect to the interim measures to be issued and
enforced domestically is not that difficult to ascertain because the factors to
be considered are usually clear. In Canada, the following presumptive
connecting factors are exhaustive and as a result they prima facie entitle a
court to assume jurisdiction over a dispute where:
(1) the defendant is domiciled or resident in the province;
(2) the defendant carries on business in the province;
(3) the tort was committed in the province; and
(4) a contract connected with the dispute was made in the province. 92

In Canada, although the situation is not clear, these connections may

well be used by the court in assessing jurisdiction in international disputes.
Similar conditions for the assumption of jurisdiction are laid down in
Norway, where an application for interim measures in relation to persons,
asset or property will be made to the court in whose territorial jurisdiction
that person or the property is situated or is expected to arrive in the near
future. 93 The same principles will apply for the interim measures in relation
to foreign arbitration. A similar approach has been adopted in the Philippines,
where the court will assume jurisdiction if the defendant resides there, the
company has its place of business there, the act sought to be enjoined is to be
performed there or the property is situated there. 94
It should be noted, however, that even after the establishment of
jurisdiction on the basis of any of the above presumptive connecting factors,
Canadian courts may yet deny jurisdiction on forum non conveniens
grounds. 95 The relevance of forum non conveniens in deciding the
assumption of jurisdiction is also reflected in other regimes. For instance,

91
Club Rosters Ltd v. Van Breda, [2012] 1 S.C.R. 572, 618 (Can).
92
Id.
93
See The Dispute Act 2008, § 32-34 (Nor.).
94
See Special Rules of Court on Alternative Dispute Resolution, A.M. No. 07–11-08-SC, Rule 5.3
(Sept. 1, 2009) (Phil.).
95
See Club Rosters [2012] 1 S.C.R. at 576.

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Rule 6.28(5)(b) to (d) of the New Zealand High Court Rules states that an
application must establish, inter alia, that “New Zealand is the most
appropriate forum for the trial.” The appropriateness of the forum is assessed
on whether New Zealand or foreign courts can or are in a better position to
deliver the most effective relief and that the plaintiff will incur an unfair loss
if a New Zealand court declines to assume jurisdiction.

IX. EXTRATERRITORIALITY OF COURT’S POWER TO ISSUE INTERIM

MEASURES

Courts have long been reluctant to use their power to issue interim
measures in support of foreign-seated arbitration largely due to lack of their
territorial jurisdiction over foreign arbitrations. However, there are many
instances in international arbitration when, for the benefit of arbitration,
courts feel compelled to impart this remedy in relation to foreign arbitration.
Such need for arbitration to have interim measures issued by the court has
begun to attract universal recognition. For instance, in the course of the
UNCITRAL Working Group meetings, the proposal that the court should be
given power to issue interim measures in support of arbitration even if it was
seated in some other jurisdiction received acceptance on the basis of its
practical significance. For instance, to “secure assets, follow a vessel,
preserve evidence, or ask for actions to be taken in a different jurisdiction
from the one where arbitration took place” has become a key element of the
modern practice of international arbitration. In order to deal with this
proposal, it was suggested that Article 17J should be included in the list of
exceptions in Article 1(2) of the Model Law. This suggestion was rejected
on the ground that Article 1(2) defined the scope of the Model Law and the
Working Group was not assigned with the task of revising that part of the
Model Law. Therefore, the phrase “taking place in the country of the court
or in another country” was added directly into the text of Article 17J. 96
As far as judicial practice regarding the court’s power to issue interim
measures in relation to arbitration seated abroad, three general approaches
are discernible. First, the courts are empowered to grant interim measures in
relation to foreign arbitration. Second, their powers in this regard have been

96
Report of the Working Group on Arbitration and Conciliation on the Work of Its Forty-Third
Session, U.N. DOC. A/CN.9/589, at 21 (Oct. 12, 2005); see Report on the Working Group on Arbitration
on the Work of its Thirty-Eighth Session, U.N. DOC. A/CN.9/524, at 12 (June 2, 2003).

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subjected to the parties’ agreement or the arbitral tribunal’s prior approval.

Third, the courts do not have power in this regard. With respect to the first
approach, Article 1033 of the German Zivilprozessordnung (ZPO, German
Code of Civil Procedure) empowering the court to issue interim measures for
domestic arbitrations has been extended to foreign arbitrations or those
arbitral proceedings whose seat has not been designated. In accordance with
Article 1025 of the ZPO. In Hong Kong, although Article 17J of the Model
Law has not been given effect, the courts are empowered to issue interim
measures in foreign arbitration proceedings. 97 Hong Kong courts, in the
course of exercising the power of interim measures, must give regard to the
fact that such power is:
(1) ancillary to the arbitral proceedings outside Hong Kong; and
(2) for the purposes of facilitating the process of a court or arbitral tribunal
outside Hong Kong that has primary jurisdiction over the arbitral proceedings. 98

Furthermore, in international arbitration, Hong Kong courts will grant

the interim measures after taking into consideration that:
(1) the arbitral tribunal does not have power to impart all the interim relief
sought by the party in a single application because it would be more appropriate
to seek all the relief from the court than some from the arbitrator and some from
the court;
(2) the relief should have no impact on third parties to the arbitration over whom
the arbitrator does not have any jurisdiction; 99
(3) the arbitral tribunal having jurisdiction to impart the interim measures has
not yet been constituted. 100

In Hong Kong, notwithstanding the fact that the arbitrators in an

arbitration seated abroad have the power to impart interim measures, the
courts may grant that remedy on the ground that the legislative intent of the
Model Law was to “make the same assistance available to international

97
See Arbitration Ordinance (2011), Cap. 609, Div. 4 §§ 45, 60 (H.K.); see also The Owners of the
Ship or Vessel “Lady Muriel” v. Transorient Shipping Ltd. [1995] 2 H.K.C. 320 (C.A.) (H.K.).
98
See Arbitration Ordinance (2011), Cap. 609, Div. 4 §§ 45, 60 (H.K.); cf. Interbulk (HK) Ltd. v.
Safe Rich Indus. Ltd., [1992] 2 H.K.L.R. 185 (C.F.I.) (H.K.) (demonstrating Hong Kong courts previously
held themselves powerless to issue interim measures in respect of foreign arbitration).
99
See Leviathan Shipping Co. v. Sky Sailing Overseas Co., [1998] 4 H.K.C. 549 (C.F.I.) (H.K.).
100
See Hsin Chong Construction (Asia) Ltd. v. Henble Ltd., [2005] HCCT 23/2005 (C.F.I.) (H.K.).

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arbitration as would be to domestic arbitration.” 101 Egypt follows the second

approach. Article 1 of the Egyptian law limits its application to domestic
arbitration, subject to the parties’ agreement. 102 Hence, the power of courts
to grant interim measures in relation to foreign arbitration exists only if
agreed by the parties, otherwise such power is only in respect of arbitration
over which the courts possess jurisdiction.
Although now almost extinct, there used to exist a third approach of not
allowing courts to issue interim measures in respect of foreign arbitrations.
For instance, the Malaysian High Court did not have this power in relation to
foreign arbitration. 103 However, the subsequent Arbitration (Amendment)
Act 2011, by inserting Subsection 3 to Section 11 of the Arbitration Act 2005,
conferred such powers on the High Court. To restrict the powers of courts to
issue interim measures in domestic arbitrations to the exclusion of foreign
arbitration is obviously an unsustainable idea that is also apparent from the
experience of Singapore and India. In the Swift-Fortune case, 104 the
Singaporean High Court interpreted Section 12(7) of the International
Arbitration Act 2002 by holding that the court did not have the power to issue
interim measures with respect to foreign-seated arbitration. Even so, this
approach was eradicated by the International Arbitration (Amendment) Act
2010, which, by adopting Article 17J of the Model Law, replaced Section
12(7) with a new Article 12A, which conferred power on courts to grant
interim relief in relation to foreign-seated arbitration. 105 Singaporean courts
went even further by stipulating that under Section 12A they possess power
to issue interim measures in support of domestic arbitration to preserve assets
situated outside Singapore. It was held that “this exercise of power to grant
interim measures is not unlike the exercise of the court’s powers and
jurisdiction in granting an injunction that covered assets outside Singapore,

101
See Case Law on UNCITRAL Texts (CLOUT), at 7–8, U.N. DOC.
A/CN.9/SER.C./ABSTRACTS/64 (Apr. 12, 2007); cf. Case Law on UNCITRAL Texts (CLOUT), at 5–
6, U.N. DOC. A/CN.9/SER.C/ABSTRACTS/79 (Oct. 31, 2008) (discussing a case from the Philippines).
102
See Law No. 27 of 1994 (Promulgating the Law Concerning Arbitration in Civil and
Commercial Matters), vol. 10 bis, 21 Apr. 1994 (Egypt).
103
Aras Jalinan Sdn Bhd v. Tipco Asphalt Public Co., [2008] 5 CLJ 654 (Malay.).
104
Swift-Fortune Ltd v. Magnifica Marine, [2006] S.G.C.A. 42 (Sing.).
105
International Arbitration Act of 1994, § 12A (1994) (amended 2010).

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provided the court has in personam jurisdiction over the parties to the local
proceedings.” 106
In India, the court’s power to issue interim measures was restricted to
domestic arbitrations under Section 2(II) of the Arbitration and Conciliation
Act 1996, which concerns those sections with extraterritorial effect, but did
not include Section 9. To remedy this, the Indian Supreme Court opined that
Indian courts have the power to issue interim relief in support of foreign-
seated arbitration. 107 Although the principles laid down in this judgment were
arbitration friendly, they were premised on weak foundations and were
subsequently found to be invalid and incorrect. 108 This later judgment
expressly held that the Indian Arbitration and Conciliation Act does not
extend the powers of courts to issue interim measures in foreign-seated
arbitrations. Finally, Section 2(II) was inserted in the Indian Arbitration and
Conciliation Act of 1996 by the Arbitration and Conciliation (Amendment)
Act 2015 No. 3 of 2016, which extended Section 9 to international
arbitrations.

X. POWERS OF COURT TO GRANT INTERIM MEASURES BEFORE THE

COMMENCEMENT OF ARBITRAL PROCEEDINGS

Issuance of interim measures before the initiation of arbitral proceedings

is one of those points where arbitration needs courts the most. Although, in
an attempt to autonomize arbitration with court assistance, arbitral
institutions now introduce emergency arbitrators for the issuance of interim
measures. However, the need for the court at this juncture has not yet
completely been wiped out.
The travaux to the 1985 version of the Model Law manifests that the
availability of interim measures from the court before and during the
arbitration proceedings received universal agreement during the deliberation
of Article 9. 109 In fact, domestic courts can normally impart interim remedies
before the constitution of the arbitral tribunal and hence before the

106
Five Ocean Corp. v. Cingler Ship Pte Ltd. (PT Commodities & Energy Resources, intervener),
[2015] S.G.H.C. 311 (Sing.).
107
See Bhatia Int’l v. Bulk Trading S.A. & Anr, (2002) 4 SCC 105 (India).
108
See Bharat Aluminium Co. v. Kaiser Aluminium Tech. Serv., Inc., (2012) 9 SCC 552 (India).
109
See Int’l Trade L. Comm’n, Rep. of the Working Group on International Contract Practices on
the Work of Its Third Session, ¶¶ 39, 68, U.N. DOC. A/CN.9/216 (Mar. 23, 1982).

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commencement of arbitral proceedings. States which empower the courts to

issue interim measures before the commencement of arbitral proceedings
include Egypt, 110 Japan, 111 Germany, 112 the Philippines, 113 Turkey 114 and
Malaysia. 115 Hong Kong, on the other hand, allows interim measures before
the commencement of arbitration subject to the following conditions:
(1) the arbitral proceedings are capable of giving rise to an arbitral award
(whether interim or final) that may be enforced in Hong Kong under this
Ordinance or any other Ordinance; and
(2) the interim measure sought belongs to a type or description of interim
measure that may be granted in Hong Kong in relation to arbitral proceedings by
the court. 116

Indian courts used to subject the issuance of interim measures before the
commencement of arbitration proceedings to the condition that the applicant
ought to demonstrate manifestly his or her intention to have recourse to
arbitration. In a judgment pronounced before the amendment of the Indian
Arbitration and Conciliation Act, 1996, the Indian Supreme Court
highlighted the fact that although under Section 9 the application for the
interim measure can validly be made before the commencement of arbitration
proceedings, nonetheless “the provision does not give any indication of how
much before.” The word “before” was held by the Indian Supreme Court to
mean that the applicant “must be able to satisfy the court that the arbitral
proceedings are actually contemplated or manifestly intended” and are
certainly within a reasonable time. 117
However, Subsection 2 was inserted in Section 9 by the Arbitration and
Conciliation (Amendment) Act 2015 No. 3 of 2016, which mandated that the
arbitration proceedings must be commenced within ninety days after the date

110
See Law No. 27 of 1994 (Promulgating the Law Concerning Arbitration in Civil and
Commercial Matters) al-Jarīdah al-Rasmīyah, vol. 16 bis, 21 Apr. 1994, art. 14 (Egypt).
111
See [Arbitration Law], Law No. 138 of 2003, art. 15, translated in (Japanese Law Translation
[JLT DS]), (Japan).
112
See ZIVILPROZESSORDNUNG [ZPO] [CODE OF CIVIL PROCEDURE], §§ 926, 1041 (Ger.).
113
See Special Rules of Court on Alternative Dispute Resolution, A.M. No. 07-11-08, Rule 5
(Sept. 1, 2009) (Phil.).
114
See Turkish International Arbitration Law M. 6; see also HUMK. M. 414.
115
See Arbitration Act 2005, § 11 (Malay.).
116
See Arbitration Ordinance, (2011) Cap. 609, § 45(5) (H.K.).
117
See Firm Ashok Traders & Another etc. v. Gurumukh Das Saluja & Others (2004) 1 SCR 404
(India). See also Sundarum Fin. Ltd. v. NEPC India Ltd., AIR 1999 SC 565 (India).

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2023] COURT-ORDERED INTERIM MEASURES 275

of the issuance of interim measures. 118 In order to fulfil the Indian legal
requirement of initiation of arbitration proceedings, it is important to
understand when arbitration proceedings are considered as having
commenced. “Commencement of arbitration proceedings” has been defined
in Section 21 of the Arbitration and Conciliation Act 1996, which provides
that “the arbitral proceedings in respect of a particular dispute commence on
the date on which a request for that dispute to be referred to arbitration is
received by the respondent.” 119
The tradition of stipulating specific time limits, in which the arbitration
proceedings must be commenced, can be seen in other jurisdictions. 120 For
instance, in Chile, the applicant must commence arbitration proceedings
(both domestic and foreign) within a maximum of thirty days after the
issuance of interim measures. 121 In Thailand, the interim measure will lapse
if the arbitration is not commenced within thirty days after the issuance of
such order. 122 In Turkey, with regard to international arbitration, the
mandatory period of thirty days has been stipulated to commence the
arbitration proceedings, otherwise the interim measures are considered to
have automatically been lifted. 123 In respect of domestic arbitration, the
period is two weeks. 124
It should be noted that not every legal system specifically addresses the
time period for the initiation of arbitration proceedings. In that regard
discretion is conferred on the courts to specify such time limit. If within such
period the arbitration proceedings are not initiated by the interim relief
creditor, the relief would stand elapsed. 125 Some jurisdictions grant discretion
to the court to set out the time within which a party should launch arbitration

118
See The Arbitration and Conciliation Act, 1996, § 9 (India) (amended 2016).
119
See id. § 21.
120
See The Arbitration and Conciliation Act, 1996, § 21 (India); see Nat’l Bldg. Constr. v. Ircon
Int’l Ltd., (1998) 44 DRJ 399 (1997) (India) (citing The Arbitration and Conciliation Act, 1996, § 21).
121
See Juzgados Civiles [J. Civ.] [Civil Court], 26 May 2005, “Constructora Sidgo Koppers Salfa
Limitada c. Lurgi,” Rol de la causa: 5234-2005, civil, (Chile).
122
See Arbitration Act, B.E. 2545 at s.16 (2002) (Thai).
123
See Turkish International Arbitration Law, supra note 114, at M. 10(A).
124
See HUMK, supra note 114, at M. 397.
125
For instance, see Civil Provisional Remedies Act, Law No. 91 of 1989, art. 37, 1–3, translated
in (Japanese Law Translation [JLT DS]) whereunder the court must give two weeks or more time.
Similarly, for Germany, see ZIVILPROZESSORDNUNG, supra note 112, at § 926 and for Hong Kong, see
Arbitration Ordinance, supra note 97, at §§ 45(2), 60(1).

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proceedings. The Polish Civil Procedure Code in its Article 733 mandates
the court to set the time limit for that purpose, which in any event must not
be longer than two weeks. 126
Whether by statute or judicial discretion, the specification of definite
time limits is rational. While considering the amendment to the Model Law
on the point of interim measures, it was proposed that interim measures
should remain alive for a specific limited time since this is consistent with
the right of the respondent to be heard. The other reason for prescribing the
time period for the validity of the interim measure is that it might have been
issued ex parte and the applicant might be in need of having it renewed from
the court or the tribunal. 127 The Indian Supreme Court has vindicated the
stipulation of time limits by claiming that when a party makes an application
seeking interim measures, said party, in fact, not only implicitly accepts the
existence of a final and binding agreement, but also accepts the creation of a
controversy mandated to be referred to arbitration proceedings between the
parties. 128 All this establishes that the right of submitting an application for
interim measures before the commencement of arbitration proceedings is
premised on a condition that there must be a manifest intention on the part of
the applicant for the interim measures to be linked to arbitral proceedings.
For this reason, the courts in India were supposed to issue interim orders on
condition that the applicant in a time specified by the court would take
effective steps, such as by issuing a notice of proceedings to the defendant.129

XI. INTERACTION BETWEEN THE POWER OF COURT AND ARBITRATOR ON

THE POINT OF ISSUANCE OF INTERIM MEASURES

Advancement of arbitration is manifest from the empowerment (or

discretions) of the arbitrator to issue interim measures. However, this power
of arbitrator coexists with that of the court and this gives rise to some

126
See art. 733 k.p.c. (1964 r. Dz. U. Nr. 43, poz. 296) (Pol.).
127
See U.N. Secretary-General, International Commercial Arbitration, ¶ 26, U.N. DOC.
A/CN.9/WG.II/WP.111 (Oct. 12, 2000).
128
See Sundaram Finance Ltd. v. Nepc India Ltd., (1999) 1 SCR 89 (India); see also Ikram Ullah,
English and Indian Legal Perspective on Third-Party Disclosure in Arbitration: It is Time to Assimilate
Third Party Into the Family of Arbitration, 31 ARB. INT’L 127, 146 (2015) (demonstrating Indian courts’
forward-thinking stance towards complex procedural issues in international commercial arbitration).
129
Id.

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2023] COURT-ORDERED INTERIM MEASURES 277

questions—for instance: should the court decline an application for interim

measures if it is made without securing any prior permission from the
arbitrator; how should the court entertain an application for an interim
measure if such application has already been adjudicated by the arbitrator
and declined? This section discussed the interaction or conflict between the
powers of the court and the arbitrator on this point. Beginning with the Model
Law, it does not deal with the possible conflict between the powers of the
court and those of arbitral tribunals. 130 In the deliberations of the Working
Group meeting, it was suggested that the courts should not entertain an
application for interim measures if an application for the same relief had
already been declined by the arbitral tribunal. Such proposal could not gather
support because it was felt that the courts should not be prohibited from
taking up the case de novo when so prayed by the applicant. 131 In subsequent
meetings of the Working Group, again the obscurity was highlighted,
namely: what would be the outcome if the powers of the court and the
arbitrator to issue interim measures were coextensive or the power of the
court superseded that of the arbitrator? In this respect, it was suggested that
the power of the courts should be limited to circumstances where either the
arbitral tribunal was unable to issue interim measures or could not (for
whatever reason) function in that regard effectively, as would be the case
where interim measures were needed to bind a third party or the arbitral
tribunal is not yet constituted. However, despite this proposal gathering some
support, it was not accepted due to the involvement of far-reaching practical
and legal repercussions. It was decided that the complex issues raised by this
proposal might be considered by the Working Group at a later stage. 132
The fact that the Model Law is silent on this point implies that the
powers of the court and the arbitrator to grant interim relief are independent
of each other. The jurisdictions which have not yet incorporated Article 17J
are still relying on an Article 9-type provision in their legislation. It is usually
provided in such circumstances that Article 9 prevails over Article 17J in the

130
See U.N. Secretary-General, International Commercial Arbitration, ¶ 2, U.N. DOC.
A/CN.9/263/Add.1 (Apr. 15, 1985); see also U.N. Secretary-General, International Commercial
Arbitration, ¶ 2. U.N. DOC. A/CN.9/263/ (Mar. 19, 1985).
131
See Comm’n on Int’l Trade L., Rep. of the Working Group on Arb. and Conciliation on the
Work of Its Forty-Second Session, ¶¶ 31, 92 U.N. DOC. A/CN.9/573 (Jan. 27, 2005).
132
See Comm’n on Int’l Trade L., Rep. of the Working Group on Arb. and Conciliation on the
Work of Its Forty-Third Session, ¶ 103 U.N. DOC. A/CN.9/589 (Oct. 12, 2005).

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sense that despite the power of the arbitrator to issue interim measures, any
party can also seek that remedy from the courts. 133 This approach has been
adopted in Austria, where the right of a party to apply for judicial interim
measures is completely independent of the right to seek an interim remedy
from the arbitrator. 134 Equally, in Chile, a party need not secure the prior
permission of the arbitral tribunal to seek interim measures from the court
even after the composition of the arbitral tribunal. 135 Similarly in Germany,
Article 1033 of the ZPO, which deals with the court’s power to issue interim
measures, does not lay down any condition for securing permission from the
arbitrator prior to an application to the courts. 136 New Zealand’s law is even
more explicit on this point. Although it allows the court to grant interim relief
even if the applicant has not secured prior permission from the arbitrator,
where a party applies to a court for an interim injunction or other interim
order and an arbitral tribunal has already ruled on any matter relevant to the
application, the court shall treat the ruling or any finding of fact made in the
course of the ruling as conclusive for all purposes of the application. 137
In India, where no prior permission from the arbitrator is required, 138 a
court can issue interim measures even if the application for interim measures
was made to the arbitral tribunal and is still under consideration by the
tribunal. 139 In this regard, the sole fact that the arbitrators have been
appointed to their office is not a ground for dismissal of the application for
interim measures from the court. 140 This approach was justified in Atul Ltd.
v. Parakash Industries Ltd., 141wherein the court held that the empowerment
of an arbitrator to issue interim measures by no means substitutes the power
of the courts in this regard. As a result, where an arbitrator has been vested

133
See Trade Fortune Inc. v. Amalgamated Mill Supplies Ltd., [1994] CanLII 845 (Can. B.C. S.C.).
134
See ZIVILPROZESSORDNUNG [ZPO] [CIVIL PROCEDURE STATUTE] § 585, https://www.ris.bka
.gv.at/GeltendeFassunG.wxe?Abfrage=Bundesnormen&GesetzeGesetze=10001699 (Austria).
135
See Law No. 19971 art. 9, Sobre Arbitraje Comercial Internacional [About International
Commercial Arbitration], Septiembre 10, 2004, DIARIO OFICIAL [D.O.] (Chile).
136
ZIVILPROZESSORDNUNG [ZPO] [CODE OF CIVIL PROCEDURE], § 1033, https://dejure.org/
gesetze/ZPO/ 1033.html (Ger.).
137
See Arbitration Act 1996, sch 1 art. 9(3) (N.Z.).
138
See Shin Satellite Pub. Co. v. Jain Studios Ltd., 153 (2008) DLT 604 (India).
139
See Nat’l Highway Auth. of India v. China Coal Constr. Grp. Corp. (2006) AIR 2006 Del 134
(India).
140
See Escorts Fin. Ltd. v. Mohd. Hamif Khan, 2001 VAD Del 392 (India).
141
See Atul Ltd. v. Prakash Indus. Ltd., 2003 IIIAD Del 459 (India).

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2023] COURT-ORDERED INTERIM MEASURES 279

with the power to issue interim measures, such power does not oust the
jurisdiction of the court and hence the powers of the court to issue interim
measures will remain intact even during the pendency of arbitration
proceedings.
In Uppal v. Cimmco Birla, 142 the applicant filed an application for an
interim order before the arbitral tribunal, which was declined. He did not
challenge this order before the courts. The applicant subsequently filed an
application before an Indian court for the same kind of interim measure
without having disclosed the fact that he had already requested a similar relief
from the arbitrator and that this had been declined. The Indian court found
the suppression of this fact to be of a grave nature and as a result the
application for ex parte interim relief would stand quashed. 143 The Indian
court’s reasoning seems to be in line with the travaux of the Model Law, as
it was also proposed therein that an applicant should be mandated to inform
the court of any development in the arbitration proceedings on the substance
of the dispute, as well as any proceeding concerning interim measures. 144
In Hong Kong, in a case concerning an arbitration seated in London, it
was held that in arbitrations seated outside Hong Kong, the courts of that
country should decline to impart the interim measures if the party did not
secure a prior approval from the arbitrator to launch such an application in
the court, unless the court is satisfied that justice requires it to grant such
interim measures in order to protect the plaintiff from a serious and
irreparable harm in the arbitral proceedings. 145 This view was upheld later in
domestic arbitration by a Hong Kong court in Hsin Chong Construction
(Asia) Ltd v. Henble Ltd, 146 where it was held that a plaintiff should first seek
the assistance of the arbitral tribunal already seized of the dispute. Where a
tribunal has yet to be constituted, the applicant will have to demonstrate the
existence of a serious risk that the defendant will remove the asset from the
court’s jurisdiction to render the arbitral award ineffective.

142
See Uppal Eng. Co. (P) Ltd. v. Cimmco Birla Ltd., 121 (2005) DLT 539 (India).
143
Id.
144
See U.N. Secretary-General, International Commercial Arbitration, ¶ 26, U.N. DOC.
A/CN.9/WG.II/WP.111 (Oct. 12, 2000).
145
See The Owners of the Ship or Vessel ‘Lady Muriel’ v. Transorient Shipping Ltd. [1995] 2
H.K.C. 320 (C.A.) (H.K.).
146
See Hsin Chong Construction (Asia) Ltd. v. Henble Ltd., [2005] HCCT 23 (C.F.I) (H.K.).

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XII. CONCLUSION

The extensive debates on court-ordered interim measures clearly

exhibits the tensions between those schools of thought that see the role of the
courts as restricted in their relations with arbitral tribunals and those that view
the courts as an extension of the role and authority conferred upon tribunals.
It is not easy to reconcile the two, even though the adherents of both views
effectively aim at creating liberal legal systems that attract as much
arbitration business as possible. No doubt, given that arbitral tribunals will
never achieve the degree of authority enjoyed by the courts in the adoption
of interim orders—other than through their limited contract-based power—
the courts will always play a significant role in those arbitral proceedings
where interim measures are crucial to at least one of the parties. Even so, it
should not be assumed that jurisdictions with dedicated judicial chambers
facilitating arbitral tribunals will be granted liberal powers to adopt and
enforce interim measures outside of the generally accepted three-pronged
test. Any such move would go far beyond any notion of arbitration-
friendliness, because it would inhibit those parties to contracts with an
arbitration clause from choosing seats of this nature. 147 Hence, jurisdictions
have to strike a sensible balance between what can reasonably be expected
of the courts of the seat in relation to requests for interim orders, so that
outcomes are subject to prudent parties’ legitimate expectations.
Even so, this Article exhibits a tendency favoring the granting of interim
measures, not only in the context of advanced judicial systems in the
industrialized world, but also in domains that are either influenced by the
common law (chiefly England) or developments stemming from the
UNCITRAL Model Law, such as India and Pakistan. 148 This Article has

147
National competent courts have generally adopted wide discretionary powers in relation to
arbitral procedural matters thrust open them by arbitral tribunals, or the parties to arbitral proceedings.
This is true, at least, in matters concerning language, number of arbitrators, the dispatch of written
communications and requirements concerning the signing of awards. See Ilias Bantekas, Party Autonomy
and Default Rules Regarding the Choice of Number of Arbitrators, 22 CARDOZO J. OF CONFLICT RESOL.
31, 31–43 (2021); Ilias Bantekas, Receipt of Written Communications in International Commercial
Arbitration, 31 AM. REV. J. OF INT’L ARB. 85, 85–107 (2021); Ilias Bantekas, Language Selection in
International Commercial Arbitration, 36 OHIO STATE U. J. ON DISP. RESOL. 125, 129–51 (2021); Ilias
Bantekas, The Requirement of Signed and Dated Awards: Are Arbitrators Ever Entitled Not to Sign?, 39
ASS’N OF SWISS ARB. BULL. 642, 642–55 (2021).
148
See Ikram Ullah, Interim Measures in Arbitration under the Pakistani Legal Regime, 29 ARB.
INT’L 653, 653–70 (2013).

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shown that national courts, at the level of the high court or that of the court
of appeal, as well as supreme or cassation courts, possess an excellent
understanding of the exigencies of arbitration, as well as the commercial
value of arbitration-friendly courts for host states, and in this light will
endeavor to facilitate interim relief requests that are sound and reasonable.
The Article has shown, indirectly at least, the existence of serious
transnational judicial dialogue in the assessment of appropriate and best
practice standards pertinent to interim relief. The majority of the national
judgments surveyed in this Article, particularly those issued by common law
courts, either directly referred to judgments by other courts, or otherwise used
language and methodology employed elsewhere. This development
underscores one of the hypotheses of this Article concerning the transnational
character of interim relief in international commercial arbitration. The
literature has viewed judicial dialogue as central to effective transplants. 149
Courts that refer to judgments of their more experienced and busier
counterparts, aspire to draw from best practices as well as the authority of
these other courts. 150 By so doing they lend credence to their own judgments.
Experienced courts, in turn, will refer to and cite other courts where they are
attempting to decipher the existence of a customary rule, 151 uniformity, 152 or
where they too are seeking authority for an issue that has received little
attention in the past, or which is new and emerging. 153

149
See VICKI JACKSON, CONSTITUTIONAL ENGAGEMENT IN A TRANSNATIONAL ERA (Oxford Univ.
Press 2010); Gary Jeffrey Jacobson, The Permeability of Constitutional Borders, 82 TEX. L. REV. 1763,
1763–1818 (2004).
150
See Philip M. Moremen, National Court Decisions as State Practice: A Transnational Judicial
Dialogue?, 32 N. CAROLINA J. OF INT’L L. 259, 259–309 (2006) (arguing that national judgments not only
create state practice, but that judicial dialogue among national courts solidifies such practice into
customary law).
151
See R. v Jones (2007) 16 UK HL 33 (AC) (concerning judicial dialogue to ascertain the existence
of an offence under customary law). See Roger O’Keefe, Customary Crimes in English Law, 72 BYIL
293, 293–335 (2002).
152
See Brian Flanagan & Sinead Ahern, Judicial Decision-Making and Transnational Law: A
Survey of Common Law Supreme Court Judges, 60 ICLQ 1, 18022 (2011) (suggesting that guidance and
uniformity in judicial interpretation is the key reason why common law judges refer to foreign court
decisions).
153
See, e.g., Thorley, The Influential Judgment, Singapore International Commercial Court in B2C2
Ltd. v. Quoine Pte Ltd. [2019] SGHC(I) 3 (concerning its regulation and status of cryptoassets and smart
contracts).

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The new battleground is certainly the use of courts, other than by parties
to arbitral disputes at the seat, to order interim measures. From a commercial
point of view, one might wonder as to the incentives of the courts to enforce
interim measures demanded by parties abroad. For rich industrialized states,
the incentive may well end up being the expectation of reciprocity,
particularly where the volume of requests is even; however, for other less
developed states this is certainly not the case. The provision of efficient legal
services has emerged as an industry in and of itself throughout the last
decade. 154 Industrialized and newly-wealthy countries have realized that
speedy and effective dispute resolution mechanisms anchored within national
legal systems have the potential to attract interested fee-paying end users
while benefiting the local legal profession and peripheral services, such as
translators, clerks, legal executives, administrators, and others. 155 When a
professional activity becomes an industry it also feeds into the local
economy. 156 Legal fees generate taxes, 157 and end-users must also use hotels,
restaurants, public and private transport, and airlines. Additionally, if they
have enjoyed their experience, end-users will most likely return as tourists.
The legal services sector in the United Kingdom is estimated to contribute
3% of the country’s GDP, 158 and a large part of that is due to the London
Commercial Courts, 159 which largely attract international end-users. 160
These are all significant considerations for both developing and
developed states and the importance of arbitration for national economies and

154
Everyone’s a Law Company, PRACTICE, July–Aug. 2019, https://thepractice.law.harvard.edu/
article/everyones-a-law-company/; see Ilias Bantekas, The Globalization of English Contract Law: Three
Salient Illustrations, 137 L. Q. REV. 130 (2021).
155
See Suzanne Van Arsdale, User Protections in Online Dispute Resolution, 21 HARV. NEGOT. L.
REV. 107, 109, 125, 132–33 (2015).
156
See Horst Eidenmuller, The Transnational Law Market, Regulatory Competition, and
Transnational Corporations, 18 IND. J. GLOB. LEGAL STUD. 707, 713 (2011).
157
Robert W. Wood, IRS Form 1099 Rules for Settlements and Legal Fees, BUS. L. TODAY (Jan. 28,
2020), https://businesslawtoday.org/2020/01/irs-form-1099-rules-settlements-legal-fees/.
158
See THECITYUK, LEGAL EXCELLENCE, INTERNATIONALLY RENOWNED (2017), which
demonstrates that the legal sector alone was found to generate 311,000 jobs in the United Kingdom.
159
See Commercial Court, GOV.UK, https://www.gov.uk/courts-tribunals/commercial-court, for a
discussion regarding the London Commercial Courts, which is a subdivision of the Queen’s Bench
Division of the High Court of Justice and is comprised of several specialist chambers, including insurance,
construction, contract and business, financial, commercial and others.
160
In 2017–18, 70% of the Commercial Court’s work was intentional in nature, see JUDICIARY OF
ENG. & WALES, THE COMMERCIAL COURT REPORT, 2017–2018, at 7, 9 (2019) (U.K). See Ilias Bantekas,
The Rise of International Commercial Courts: The Astana International Financial Center Court, 33 PACE
INT’L L. REV. 1, 1–41 (2020).

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DOI 10.5195/jlc.2023.257 ● http://jlc.law.pitt.edu
2023] COURT-ORDERED INTERIM MEASURES 283

particularly the legal professional field (judges, courts, lawyers etc.) has not
gone unnoticed. In the absence of multilateral treaties whereby national
courts would be obliged to enforce interim orders’ requests by the courts of
other states, such requests must come from the parties themselves. The
practice is sparse, and many countries may be apprehensive of such a trend
mushrooming. The fear might be that such requests constitute an indirect way
of bypassing the (intentional) absence of bilateral or multilateral agreements
concerning the cross-border enforcement of interim orders. That Article 17J
of the Model Law exhorts states to entertain such requests is neither here nor
there. It is hoped that the current transnational judicial dialogue among the
courts of sophisticated jurisdictions and those applying the UNCITRAL
Model Law will lead to a uniform regime of interim relief in respect of
international arbitral proceedings that is not constrained by the limitations of
domestic civil procedural law. Such development must of course be counter-
balanced to deter frivolous and unfounded interim relief requests. A set of
guidelines by UNCITRAL in this respect that highlight best practices would
go a long way to not only educating local judges, but also removing any
ambiguity or otherwise fear to adopt relief measures that might at first glance
seem radical or contrary to long-held domestic practices.

Vol. 41, No. 2 (2023) ● ISSN: 2164-7984 (online) ● ISSN 0733-2491 (print)
DOI 10.5195/jlc.2023.257 ● http://jlc.law.pitt.edu