Enforcement of Interim Measures

This chapter addresses national courts’ enforcement of interim measures of relief issued by international arbitral tribunals. The topic is treated in three parts: the evolution of the legal framework for such enforcement, examples of measures that have been enforced, and suggestions for drafting interim measures to maximise their potential enforceability.

Evolution of legal framework for enforcing arbitral interim measures

Strengthening arbitral interim measures

When the United Nations Commission on International Trade Law (UNCITRAL) started work on what became the 1976 version of the UNCITRAL Arbitration Rules (the 1976 Rules), delegates engaged in perhaps the first sustained discussion of arbitral interim measures in an international forum. These measures were understood to be temporary orders directing a party to take protective or conservatory steps in support of an arbitration, such as by preserving goods, assets or evidence. Delegates ultimately included Article 26 in the 1976 Rules, which not only stipulated that a party did not waive its arbitration agreement by seeking interim measures from a court but also broadly authorised tribunals themselves to issue such interim measures. This was a momentous step for an international body to take since, ‘[h]istorically, national law not infrequently denied arbitrators the power to order interim measures’.^[2] However, even Professor Pieter Sanders, who helped draft the 1976 Rules, regarded this provision as having only modest impact at the time. As he wrote soon after the Rules were adopted, ‘[t]he question of interim measures only occasionally presents itself in an arbitration’ and, even with the new Rules, arbitral interim measures would not ‘exist where the applicable national (procedural) law provides for the exclusive jurisdiction of the Courts’.^[3] True to Professor Sanders’ assessment, parties’ recourse to these measures grew only gradually in subsequent years.^[4] Today, however, Professor Sanders’ view that arbitral interim measures have marginal significance no longer holds true. As this chapter explains, parties now frequently seek interim measures from tribunals, and a growing number of national courts enforce such measures, relying on various legal grounds.

The drafters of the 1976 Rules also included a clause providing that ‘interim measures may be established in the form of an interim award’^[5] and, further, authorised tribunals ‘to make interim, interlocutory, or partial awards’ in addition to final awards.^[6] The 1976 Rules also stipulated that the award ‘shall be final and binding on the parties’.^[7] By emphasising that interim measures might take form as binding awards, the drafters seemed to anticipate that such measures might be treated as enforceable awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed in New York in 1958 (the New York Convention). However, in the subsequent decades, hopes for the enforceability of interim measure awards under the Convention have not been widely realised.

The New York Convention itself does not describe enforceable awards in any way that expressly includes or excludes interim awards – a point acknowledged by most scholars who have addressed the issue, including those who doubt interim awards’ enforceability under the Convention.^[8] After all, Article III of the Convention, requiring that ‘[e]ach Contracting State shall recognize arbitral awards as binding and enforce them’,^[9] never defines ‘award’, much less expressly restricts enforceability to awards that are ‘final’ (though it is often said to do so).

By the time UNCITRAL returned to the topic of arbitral interim measures about a decade after promulgating the 1976 Rules – when drafting the Model Law on International Commercial Arbitration (1985) – some delegates thought that there might be alternative ways of enforcing such measures (that is, other than seeking to style them as ‘awards’ for the purposes of the New York Convention). Thus, delegates debated whether to include language in Article 17 of the Model Law to provide that, if ‘enforcement of any such interim measure becomes necessary, the arbitral tribunal may request [a competent court] [the Court specified in [what became Article 6 in the Model Law]] to render executory assistance’.^[10] However, as the leading commentary on the Model Law explains: ‘The Working Group ultimately decided not to address this question because it touched on matters dealt with in laws of national procedure and court competence and would probably be unacceptable to many States.’^[11]

Two developments during the 15 years following promulgation of the Model Law in 1985 augmented the importance of interim measures’ enforcement. First, parties’ requests for arbitral interim measures appeared to increase steadily as UNCITRAL ultimately recognised.^[12] Second, the view gradually gained ground that tribunal-ordered interim measures (even when styled as interim ‘awards’) were not widely enforceable under the New York Convention.^[13] The Supreme Court of Queensland, Australia, rendered its key decision on this point in the Resort Condominiums International case in 1993.^[14] A US claimant had brought a US arbitration in the state of Indiana against an Australian respondent; the dispute arose under an agreement for reciprocal rights to use timeshare properties controlled by each party. The arbitrator issued an interim arbitration order and award, enjoining the respondent during the arbitration to continue to carry out the parties’ agreement and to refrain from entering into any similar agreement with another entity. The claimant sought to enforce this interim award against the respondent in its home jurisdiction; the Queensland Supreme Court refused. On the one hand, the Court rejected the view that there could be only ‘one final award’ enforceable under the New York Convention (as the respondent had argued), given that bifurcation of proceedings yielding partial final awards was increasingly common.^[15] However, the Court found that an award under the New York Convention must be ‘binding’ on the parties^[16] in the sense that it ‘determines at least all or some of the matters referred to the arbitrator for decision’, which it contrasted with an interim measure that, by its nature, ‘may be rescinded, suspended, varied or reopened by the tribunal which pronounced it’.^[17]

Some US courts have expressly rejected this conclusion, enforcing arbitral interim measures because they finally dispose of a particular request relating to the dispute, even if the measure does not itself resolve part of the dispute.^[18] Thus, for example, in Polydef kis Corp v. Transcontinental Fertiliser Co,^[19] involving disputed implementation of a charter party contract between a Greek shipowner and a US trader, a federal court in Pennsylvania confirmed an ‘award’ by arbitrators sitting in London, directing the respondent provisionally to pay a portion of the compensation sought by the claimant into an escrow account – to be controlled jointly by counsel for both parties.^[20]

At the United Nation’s 40th anniversary celebration of the New York Convention in 1998, several speakers identified the need to strengthen interim measures as a crucial next step in enhancing the Convention’s support for inter­national arbitration. In particular, V V Veeder warned that ‘for too long, there have been difficulties enforcing an arbitrator’s order for interim measures’, given that ‘the better view of [the New York Convention’s] application excludes any provisional order for interim measures from enforcement abroad as a Convention award’.^[21]

Mr Veeder opined that an arbitral interim measure ‘could be at least as [important as], if not more important than, an arbitral award’ because, without such measures, ‘it is sometimes possible for a recalcitrant party to thwart the arbitration procedure – completely and finally’ (for example, by dissipating assets out of which an award would be paid).^[22] He thus concluded that the lack of enforceability of interim measures ‘strikes at the heart of an effective system of justice in transnational trade’ and went so far as to recommend ‘a supplementary convention to the New York Convention on the enforcement by State courts of an arbitral tribunal’s interim measures’.^[23]

When UNCITRAL subsequently identified problems raised at that 1998 conference that one of its working groups should address, it included the problem of arbitral interim measures’ enforceability and – appearing to echo Mr Veeder – explained: ‘The prevailing view, confirmed also by case law in some States, is that the Convention does not apply to interim awards.’^[24] Not all scholars agreed about the New York Convention’s limitations. For example, Albert Jan van den Berg, a leading scholar of the Convention, specifically criticised UNCITRAL’s report because it ‘does not give a source for this statement’ and noted that ‘there does not appear to be a “prevailing view” on this question’ since – at least as at 2000, when Mr van den Berg voiced his critique – ‘[t]he reference to case law “in some States” is, to my knowledge, limited to one Australian court decision, which is moreover not entirely persuasive’.^[25] Mr van den Berg found greater wisdom in the ‘pragmatic view’ exemplified by US case law, which he said recognised that ‘no major obstacles to the enforcement of a “temporary” award seem to exist’.

An award will be enforced in accordance with its terms. If one of the terms is that the order contained in the award is for a limited period of time, the enforcement will correspondingly cover that period of time. If the interim award is subsequently rescinded, suspended or varied by an arbitral tribunal, that will as a rule be laid down in a subsequent interim award, which can also be enforced.^[26]

Mr van den Berg’s description of the regime that he thought could be implemented pursuant to the New York Convention closely resembles the solution that UNCITRAL’s Working Group II began to develop in 2001, albeit in the form of a statute. Thus, responding to the pleas of Mr Veeder and others at the 1998 conference, UNCITRAL’s Working Group II pursued the goal of enhancing interim measures’ enforceability by producing a revised Model Law on International Commercial Arbitration, which was completed in 2006.^[27]

Expanding court enforcement of arbitral interim measures

A background report prepared in 2000 by UNCITRAL’s Secretariat for this drafting project summarised the national legislation relating to court enforcement of arbitral interim measures that existed at the time. (In subsequent years, several practitioners and scholars have examined enforcement in greater detail; together, these various surveys confirm that, in those states that have sought to authorise enforcement of arbitral interim measures, there are many approaches.^[28]) For example, some states have sought to interpret or define ‘award’ (when implementing the New York Convention or the Model Law) so that interim awards that embody provisional measures might also be enforceable thereunder.

Of the states that have enacted legislation based on the 1985 Model Law, some have added a provision to its Article 17 (which generally authorises tribunals to issue interim measures) expressly permitting court enforcement of interim measures.^[29] Many of these enactments authorise parties to request such enforcement,^[30] some require a request from the tribunal^[31] and some contemplate requests from either a party or arbitrators.^[32] As a further variation on each approach, some statutes require that leave be sought from a court before an enforcement action will be judicially entertained.^[33] By contrast, some contracting states have formally modified their implementation of the New York Convention so that it would apply ‘as if a reference to an award in those provisions were a reference to such an order’ for interim measures.^[34] Other states have enacted legislative regimes that deal separately with enforcement of arbitral interim measures. A few jurisdictions have even authorised enforcement of arbitral interim measures by treaty.^[35] However, many countries have not addressed this issue at all in their legislation and certainly most had not done so in the years prior to UNCITRAL’s adoption of the revised Model Law in 2006 (the 2006 Model Law).^[36] Moreover, one feature common to many of the laws that did address this issue (especially those adopted in earlier years) was that they confined enforcement to interim measures issued by a tribunal seated in the court’s own state,^[37] making development of a uniform transnational regime all the more desirable.^[38]

The 2006 Model Law sought to replace this widely varying legal landscape with one comprehensive regime addressing both arbitral interim measures and their judicial enforcement. Thus, the revised Model Law includes a sprawling new Article 17 on interim measures, of which subsections 17H and 17I establish an explicit right and mechanism to enforce arbitral interim measures in the national courts of any relevant jurisdiction. Article 17H requires that an arbitral interim measure, no matter how styled (as an award, an order or a decision) ‘shall be recognized as binding and . . . enforced upon application to the competent court, irrespective of the country in which it was issued’, subject to certain limited grounds for non-enforcement set forth in Article 17I. These include the grounds already established for non-enforcement of merits awards under Article 36 of the Model Law (which derives, in turn, from Article V of the New York Convention), plus a few grounds relevant only to interim measures, such as that a party has not fulfilled a tribunal requirement to post security for the interim measure.^[39]

The drafters also included in the 2006 Model Law several provisions in response to the temporary nature of interim measures, starting with a clause confirming that a tribunal that has issued an interim measure may at any time ‘modify, suspend or terminate’ it.^[40] This power to revise interim measures is necessary since the facts known to a tribunal (or its appraisal of facts already known) may change as the arbitration progresses. To make this revision authority fully effective, the drafters authorised tribunals to require any party that has obtained an interim measure ‘promptly to disclose any material change in the circumstances on the basis of which the measure was requested or grounded’.^[41] Similarly, a party that has obtained court enforcement of such a measure ‘shall promptly inform the court of any termination, suspension, or modification of that interim measure’.^[42]

A further provision seeks to broaden the possible scope of enforcement by authorising any court that confronts an interim measure that is ‘incompatible with the powers conferred upon [it]’ to ‘reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that . . . measure’.^[43] Finally, the drafters included a closing provision reaffirming that any court entertaining a motion for enforcement of an interim measure ‘shall not, in making that determination, undertake a review of the substance of the interim measure’.^[44]

To gauge the impact of the Model Law’s innovation in enforcement of interim measures, one must place subsections 17H and 17I in the larger context of the entire new Article 17, comprising 11 subsections that reflect a dramatic shift in understanding as to the importance of interim measures in international arbitration. Quite unexpectedly, what UNCITRAL launched as a relatively narrow project to provide for transnational enforcement of arbitral interim measures grew into a much broader legislative undertaking, ultimately encompassing new provisions in Article 17 that (1) define the permissible categories of arbitral interim measures, (2) establish the conditions on which tribunals may grant them, and (3) stipulate a number of other procedural matters regarding their issuance, including the possibility of a subsequent award of damages to an affected party if the tribunal later determines that the interim measures should not have been granted.^[45]

Since these other provisions are addressed to tribunals rather than to courts, they may appear to have little to do with enforcement. However, the improved guidance to tribunals was in fact linked to the goal of improving the enforcement of interim measures. A primary reason why the Model Law now specifies which interim measures tribunals may issue – and when and how they may do so – is to reassure courts that were asked to enforce arbitral interim measures that they were issued pursuant to a tribunal’s clear authority, and to encourage national legislatures to enact a Model Law that requires courts to enforce such measures.^[46] Additionally, as noted by the UNCITRAL Secretariat (and agreed by delegates):

Reports from practitioners and arbitral institutions indicate that parties are seeking interim measures in an increasing number of cases . . . To the extent arbitral tribunals are uncertain about issuing interim measures of protection and as a result refrain from issuing the necessary measures, this may lead to undesirable consequences, for example, unnecessary loss or damage may happen or a party may avoid enforcement of the award by deliberately making assets inaccessible to the claimant. Such a situation may also prompt parties to seek interim measures from courts instead of the arbitral tribunals in situations where the arbitral tribunal would be well placed to issue an interim measure.^[47]

Thus, a final reason why UNCITRAL developed a detailed regulation regarding arbitral interim measures was to give tribunals greater confidence in exercising their interim authority. Indeed, UNCITRAL delegates subsequently imported nearly all the provisions on tribunal interim measures from Article 17 of the Model Law into Article 26 of the updated Arbitration Rules (2010), which is more likely to guide the actual conduct of arbitrations than is the Model Law.

According to UNCITRAL, nearly 120 jurisdictions have adopted legislation based on the Model Law, and more than 35 of those that have done so in the past dozen or so years have included the 2006 revisions (albeit sometimes with modifications).^[48] Strikingly, however, even some courts in jurisdictions that have not adopted the revised Model Law (or any other statute directly addressing enforcement of arbitral interim measures) have nonetheless enforced such measures. Thus, parties and their counsel now seeking to enforce an arbitral interim measure in a jurisdiction that has not adopted the 2006 Model Law will want to examine national legislation to see if there are other enactments (along the lines of the various approaches previously described) potentially authorising such enforcement as well as to consult national jurisprudence to determine whether legislation that does not expressly provide it nonetheless has been judicially so construed.

What accounts for this growing solicitude for arbitral interim measures? It seems likely that the dramatic shift in perspective reflected in the revised Model Law (i.e., the recognition that arbitral interim measures are important and that their enforceability may be crucial to the effectiveness of international arbitration itself) stimulated a broader awareness in the world of trans­national dispute resolution. Moreover, UNCITRAL’s work coincided with complementary changes both in national laws (for example, practically no jurisdiction now confines the issuance of interim measures to courts instead of arbitrators)^[49] and even in prevailing views as to the scope of the New York Convention. As expressed by Gary Born:

the constitutional character of the Convention contemplated that Contracting States’ legislation would need to change, to give full effect to the Convention, and that States’ views of non-arbitrability and public policy would evolve over time; there is no reason that the term ‘award’ should not include reasoned, signed decisions by arbitrators on requests for provisional measures when Contracting States have (almost universally) recognized the authority of arbitrators to grant such relief.^[50]

Recent case law on enforcement of arbitral interim measures orders

The United States continues to be at the forefront of the enforcement movement. For example, in the 2012 CE International Resources case, a federal district court in New York City confirmed its long-standing jurisprudence that ‘an award of temporary equitable relief . . . was separable from the merits of the arbitration’ and was therefore capable of immediate recognition and enforcement.^[51] Although the district court did not expressly refer to the New York Convention (or its statutory implementation, under the Federal Arbitration Act)^[52] as the basis for enforcing the interim award, the case involved foreign parties and probably constituted a ‘non-domestic award’ falling within US courts’ expansive application of the New York Convention.^[53] Several similar decisions have been issued in other US cases in recent years.^[54]

Interestingly, the judge in CE International Resources addressed the type of temporary relief granted by the arbitrator – an issue that is not so often discussed but may have important implications in practice (see ‘Practical considerations for enforcing arbitral interim measures’, below). In this case, the sole arbitrator, seated in New York, had issued an interim award ordering the posting of prejudgment security of US$10 million or, in default of doing so, enjoining the respondent from transferring any assets, wherever located, up to US$10 million. The respondent argued that the type of interim relief granted by the arbitrator was not available under the law of the seat of arbitration and that the arbitrator thus exceeded his powers, manifestly disregarding the law and breaching public policy.^[55] The district court rejected this view, noting the parties’ agreement to resolve their dispute under the American Arbitration Association (AAA) International Centre for Dispute Resolution Rules, which allowed the arbitrator to take ‘whatever interim measures [he] deems necessary, including injunctive relief and measures for the protection or conservation of property’.^[56] The district court further concluded that: ‘Nothing about enforcing an order rendered in accordance with the procedures to which the parties agreed offends either New York law or New York public policy.’^[57]

Other common law jurisdictions have recognised the enforceability of arbitral interim measures in recent years. For example, in 2015, the Singapore Court of Appeal confirmed that awards ordering interim relief are ‘final’ as to the issue they adjudicate (i.e., the issue of whether the requested relief is warranted) and, therefore, can be enforced under the Singapore Arbitration Act.^[58] In this case, the ‘interim relief’ at stake was somewhat unusual: an arbitral order compelling one party to comply with a prior decision by a dispute adjudication board, constituted under a 1999 FIDIC (International Federation of Consulting Engineers) Red Book contract, which ordered the party to pay an amount of money to the other party.^[59]

In 2022, the Singapore High Court ruled that an award from an emergency arbitrator seated in Pennsylvania (under the International Arbitration Rules of the International Centre for Dispute Resolution) was in principle enforceable in Singapore, even though Singapore’s International Arbitration Act (IAA) did not expressly so provide.^[60] Engaging in a ‘purposive interpretation’ of the IAA, the court concluded that the legislature intended to make foreign emergency arbitrators’ awards enforceable, even if they did not say this in so many words in Part 3 of the IAA.^[61] The Supreme Court of India reached a similar conclusion in 2021, ruling that an award by an emergency arbitrator in an India-seated arbitration under the Arbitration Rules of the Singapore International Arbitration Centre was enforceable under the Indian Arbitration and Conciliation Act of 1996.^[62]

Courts in certain civil law jurisdictions have also followed this trend. For example, in 2014, the commercial court in Kinshasa is reported to have enforced an International Chamber of Commerce (ICC) emergency arbitrator decision that had granted an anti-suit injunction against one of the parties, forbidding it from commencing certain court actions in the Democratic Republic of Congo (DRC).^[63] Although the court apparently noted that the New York Convention had not yet entered into force in the DRC, it is reported to have nevertheless relied on local law to accept the enforcement of the emergency arbitrator decision.^[64]

Recent enforcement of arbitral interim measures by civil law courts has ranged from straightforward application of statutes clearly providing for such enforcement to more creative interpretations of relevant legislation to decide in favour of enforcement. An example of the former is the 2019 decision by the Superior Court of Justice of Lima, Peru, enforcing an interim measure granted by an arbitral tribunal seated in Washington, DC.^[65] The tribunal ordered the respondent, a Peruvian company, not to transfer, sell, encumber, conceal or otherwise dispose of its assets other than in the ordinary course of business. The Court noted that the interim measure was not enforceable pursuant to the New York Convention but held that the measure was enforceable under Article 48.4 of the Peruvian Arbitration Law, which was added in 2008 and apparently based on Article 17H of the 2006 Model Law.^[66]

The Cairo Court of Appeal adopted more innovative reasoning in 2018 when it recognised and enforced an arbitral order for interim measures issued by an arbitral tribunal seated in Paris.^[67] The tribunal had enjoined the Egyptian respondent from pursuing an action in an Egyptian court aimed at liquidating a performance bond. The Court of Appeal held that arbitral interim measures finally resolved the parties’ dispute with respect to the provisional measures sought in the arbitration and could therefore be enforced.^[68] Notably, the Court stated that granting the enforcement was consistent with the objectives of the New York Convention, namely to favour the enforcement of arbitration agreements and arbitral awards, to ensure predictability in international commercial dealings and to establish consistency among jurisdictions.^[69]

In this regard, the Cairo Court of Appeal expressly referred to the 2006 Model Law’s text, providing for enforcement of arbitral interim measures, which the Court said ‘derives from the New York Convention and implements its guarantees and standards’.^[70] The Court further recalled that Egypt’s arbitration law is inspired by the Model Law,^[71] although it was enacted well before the 2006 revision. The Court found it would be inconsistent to allow arbitral tribunals to issue interim measures but then refuse to recognise or enforce them.^[72]

Brazil’s highest court for non-constitutional matters also grappled with questions of statutory construction when, in 2019, it decided to enforce an interim measure granted by a tribunal in an ICC arbitration seated in New York. The tribunal had ordered the respondent to avoid dissipating certain assets, pending issuance of its final award.^[73] Noting that an interim measure was not eligible to be enforced as a foreign arbitral award under the New York Convention, the court examined the two main categories of interim relief that a Brazilian court can grant. One category is for ‘urgent’ relief (requiring a showing of something like irreparable harm and a likelihood of success on the merits), while the other is conditioned on a party’s prima facie evidentiary showing that it merits relief. The court decided to treat the foreign arbitral tribunal’s interim measure as constituting such prima facie evidence, which the respondent did not rebut. The Court explained that the respondent could have opposed enforcement, for example, on one of the grounds for resisting enforcement of an arbitral award under Article 38 of the Brazilian Arbitration Law, similar to the grounds under Article V(1) of the New York Convention.^[74]

Notwithstanding these examples of national courts’ increased willingness to enforce foreign arbitral interim measures, there are other jurisdictions that remain reluctant to take this path. For instance, although the Korean Arbitration Act was revised in 2016 and largely incorporates provisions on interim measures from the 2006 Model Law, it nevertheless limits enforcement of interim measures to those issued by tribunals seated in South Korea.^[75] Similarly, in 2010, the Chilean Supreme Court rejected the exequatur of arbitral interim measures granted abroad regarding assets located in Chile,^[76] while the Russian Federation’s Presidium of the Highest Arbitrazh Court reaffirmed in 2010 its position that only awards finally deciding (part of) the merits of a dispute can be enforced in the Russian Federation.^[77]

Practical considerations for enforcing arbitral interim measures

Even if a relevant court stands ready to enforce an interim measure issued by an arbitral tribunal, the party seeking such a measure may still need to attend to the form of the relief sought, to maximise the likelihood of effective enforcement. Although interim measures can take numerous forms, they often consist of non-monetary relief – generally an injunction to one party to do (or refrain from doing) something. However, the efficacy of injunctive relief mainly depends on the tools available in each jurisdiction to force compliance with the judicial injunction or to sanction a party’s failure to comply.

In a number of common law jurisdictions, courts may have the power to hold the recalcitrant party in contempt for failing to comply with the judge’s decision enforcing the interim measure.^[78] For example, in CE International Resources, the party enjoined by the arbitral tribunal to post security or to refrain from transferring assets abroad (in the order as enforced by the court) failed to comply. As a result, the district court subsequently held the respondent in civil contempt, imposing daily civil fines and issuing a civil commitment order.^[79]

By contrast, in most civil law jurisdictions, there is no equivalent to the common law concept of contempt of court.^[80] That said, courts in those jurisdictions are not powerless in the face of a party that refuses to comply with an injunction, or any other form of non-monetary relief. For instance, in France, a judge can order an astreinte (i.e., the payment of a fine for each day the debtor delays compliance with the judgment).^[81] Luxembourg, Belgium, the Netherlands and Italy have similar mechanisms.^[82] In Germany, courts enjoy a comparable power, although the fine is paid to the state and not to the petitioner.^[83]

In certain civil law jurisdictions, such as France, the power to order a pecuniary sanction such as an astreinte is primarily granted to judges to ensure the enforcement of their own decisions.^[84] Accordingly, it is questionable whether an enforcing court would have the ability to order an astreinte to ensure compliance with its own decision enforcing an interim measure actually ordered by an arbitral tribunal. The situation may be different in countries, such as Switzerland, where the courts do not appear to directly enforce the arbitral interim measure but rather issue their own provisional order, mirroring the interim measure initially ordered by the tribunal.^[85] Nevertheless, even in France, it would still be possible for the beneficiary of the enforced interim measures order to request the imposition of an astreinte later from a judge who specialises in matters of enforcement, if circumstances so justify.^[86]

If the imposition of an astreinte turns out to be impossible (whether immediately by the enforcement court or at a later stage), the beneficiary of the order may end up with relatively limited options to force compliance with the injunction. Indeed, it will most likely be left with the sole remedy of seeking an award of further damages from the tribunal against the enjoined party for failing to comply with the interim measure (which arguably constitutes a tort or a breach of the arbitration agreement). Moreover, there may be a further question as to whether this claim for extra damages should be made before the arbitral tribunal that issued the interim measure or before the courts of the country in which this order was enforced (and not complied with).

Accordingly, parties seeking injunctive interim relief from an arbitral tribunal would be well advised to anticipate, to the extent possible, in which jurisdictions these injunctions are likely to be enforced if the enjoined party does not voluntarily comply. Depending on the coercive tools available in these jurisdictions, the requesting party may want to consider asking the arbitral tribunal itself to accompany its injunction with a self-contained pecuniary sanction in the case of non-compliance, akin to an astreinte, to the extent that this possibility is available to the tribunal.^[87] A self-contained pecuniary sanction such as this – which might be enforced by a court directly against the enjoined party’s assets – may avoid the need to resort to subsequent court litigation regarding the enjoined party’s failure to comply with the injunctive interim relief. This could prove very useful, as interim measures are often issued in a context of urgency.

Parties seeking interim relief should also consider whether the measure requested from the arbitral tribunal (including any associated pecuniary sanction for non-compliance) constitutes a known form of relief in the potential place, or places, of enforcement. As illustrated by CE International Resources, the non-availability of a certain type of relief in the place of enforcement might raise concerns regarding the compatibility of the interim measure order issued by the arbitral tribunal with the public policy of the place of enforcement, thus creating a risk that enforcement is refused. For instance, it was suggested by one commentator on the Egyptian case discussed earlier (see ‘Recent case law on enforcement of arbitral interim measures orders’, above) that an anti-suit injunction of the type issued by the arbitral tribunal in Paris was contrary to the enjoined Egyptian party’s constitutional rights (to seek relief against a third party) and thus to Egyptian public policy.^[88] In the same vein, some jurisdictions consider that disproportionate damages are contrary to their international public policy^[89] and thus may frown on interim measures that are accompanied by particularly heavy sanctions for non-compliance.

Finally, parties seeking (and arbitral tribunals granting) interim measures should also consider whether the law of the seat has any requirement as to whether those measures should be issued in the form of an arbitral ‘award’ or of an ‘order’. Indeed, in its 2022 decision in EGF v. HVF, the High Court of England and Wales commented, in an obiter, that, absent party agreement, arbitrators in England-seated arbitrations do not have the power to issue interim measures in the form of an award, and that the choice of the UNCITRAL Arbitration Rules to govern the arbitration does not constitute a party agreement to that effect.^[90] To reach this conclusion, the High Court considered that the interim measure at stake was not final by its very nature (since it could be revisited by the arbitral tribunal at any time)^[91] and that ‘the UNCITRAL Rules do not provide in Article 34 for any standing exception to the unqualified provision at Article 34.2 that awards are to be final and binding on the parties’.^[92]

In theory, the form in which an interim measure is issued should not affect its enforceability, since many jurisdictions favour substance over form and thus treat arbitral orders granting interim measures in the same way as awards for purposes of their enforcement (or set-aside),^[93] or even have specific rules providing for the enforcement of arbitral orders.^[94] However, some jurisdictions might adopt a more formalistic approach and decline to enforce an arbitral order granting interim measures that is not styled as an award.^[95] In fact, this seems to have been the tribunal’s concern in the aforementioned EGF v. HFV case, as its decision to issue the requested interim measure in the form of an award, instead of an order, was taken with ‘regard to the vagaries of enforcement’.^[96] Hence, prior to favouring one form over the other, parties and arbitrators should also consider, in addition to the law of the seat, the law of those states where enforcement of the requested interim measure might be sought.

Notes