878 28 ASA BULLETIN 4/2010 (DECEMBER)

INTERIM MEASURES UNDER THE REVISED UNCITRAL

ARBITRATION RULES
GEORGIOS PETROCHILOS
*

The revised UNCITRAL Arbitration Rules, which came into effect in
August 2010 (the 2010 Rules or, where the context permits, simply the
Rules), regulate interim measures in greater detail than most other sets of
arbitration rules.
1
In part, this is due to having the benefit of UNCITRALs
extensive prior work on an even more detailed regulation of the matter, in
Articles 17-17J of the UNCITRAL Model Law on International Commercial
Arbitration (the Model Law). This work had been completed just before the
revision of the UNCITRAL Rules started.
2
A further reason was the
recognition that more specific guidance will help parties and arbitrators in
respect of several issues, in particular the circumstances in which interim
measures may be granted and revoked. Such guidance is perhaps particularly
useful in the context of ad hoc proceedings under arbitration rules with a
vocation to apply in conjunction with any domestic arbitration law (or even
international law) and with the imprimatur of the United Nations.
The 2010 Rules, just like the 1976 Rules before them, regard the
concept of interim measures as comprising both provisional and conservatory
measures.
3
And in the literature, too, the notion of interim measures is
broadly conceived, to encompass measures to preserve evidence, to protect
assets, or in some other way maintain the status quo pending the outcome of
the arbitral proceedings themselves.
4

The 1976 Rules contained a rather curt provision, Article 26, setting
forth four basic rules:

*
Freshfields Bruckhaus Deringer LLP, Paris.
The author, together with Jan Paulsson, served as consultant to the UNCITRAL Secretariat in
preparing a report on the revision of the UNCITRAL Arbitration Rules, in 2006; thereafter
participated in the preparation of the 2010 revision of the UNCITRAL Rules as a delegate for Greece.
1
The relevant provision, Article 26 of the 2010 Rules, is appended to this paper. Cf Article 26 of the
Swiss Rules; Article 23 of the ICC Rules; Article 25 of the LCIA Rules; Article 21 of the AAA Rules;
Article 32 of the SCC Rules; Rule 39 of the ICSID Arbitration Rules.
2
UNCITRALs Working Group II devoted nine sessions to the issue of interim measures under the
Model Law, starting in March 2002 and completing the project in January 2006.
3
See Article 26(2)(a)-(d) of the 2010 Rules; and chapter II below.
4
N Blackaby, C Partasides, A Redfern, M Hunter, Redfern and Hunter on International Arbitration
(5
th
edn 2009) p 321.

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28 ASA BULLETIN 4/2010 (DECEMBER) 879
(a) On application by a party, the tribunal may order any interim
measures it deems necessary in respect of the subject-matter of
the dispute.
(b) The tribunals decision may take the form of an interim award.
(c) The tribunal is entitled to seek security from the requesting
party.
(d) An application for interim measures from a judicial authority,
rather than the arbitral tribunal, is not incompatible with, or a
waiver of, the arbitration agreement.
The 2010 Rules preserve, in their Article 26, these basic rules and
expand on them.
1
Before turning to the salient revisions in the 2010 text, a
few words may be helpful about its legislative history.
A report prepared for the UNCITRAL Secretariat in 2006 on the
revision of the 1976 Rules identified a number of questions that could
usefully be addressed in respect of interim measures. One of them was [i]n
what circumstances. . .under what conditions. . .and in what procedure
interim protection may be granted.
2
The report went on to say:
The choice that presents itself is whether article 26 should
mirror, in part at least, the proposed revised Article 17 of the
Model Law or, rather, anticipate the lignes directrices of that
proposed revision. This question involves not only practical
considerations of timing, but also the question of legislative policy
whether the [UNCITRAL] Rules should go to the level of detail
required of the Model Law.
3

The report primarily recommended the latter of the two options above.
Specifically, the report suggested to maintain the structure and content of the
existing article 26, making the clarifications that practice has shown are
necessary or at least highly desirable and to give broad guidance on the
purposes of, and conditions for, interim measures.
4
A draft revised Article

1
The 2010 text does not explicitly provide that interim measures can be issued in the form of an
interim award, but this follows clearly from the general rule in Article 34(1): The arbitral tribunal
may make separate awards on different issues at different times.
2
See J Paulsson & G Petrochilos, Revision of the UNCITRAL Arbitration Rules (2006), available at
<www.uncitral.org> para 203.
3
Ibid, para 205.
4
Ibid, para 206. The proposal contained a description of the purposes for which an interim measure
may be granted and the requirements to be satisfied by the applicant.
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880 28 ASA BULLETIN 4/2010 (DECEMBER)

26 basically incorporated in the UNCITRAL Rules central provisions of the
revised Articles 17-17G of the Model Law.
5

The Secretariats first draft, of December 2006, adopted the proposed
draft text and dealt with three additional points,
6
which rightfully placed
emphasis on the arbitral tribunals ongoing jurisdiction to police interim
measures it has issued (and the parties ongoing duty of co-operation with the
tribunal in that regard). It is worth noting that the Secretariats draft survived
very largely intact the three subsequent revisions of the draft text of the 2010
Rules. In particular, it was strongly felt within the Working Group that the
Rules should provide quite specifically worded guidance, rather than being
framed in broad, conceptual terms.
7
Nevertheless, it was recognized that the
Rules are not, as the Model Law is, an instrument of legislative nature,
directed to legislators. . .[needing] to provide detailed regulations, but rather
a text of a contractual nature. . .directed to the parties.
8
Accordingly, the
Rules do not deal with recognition and enforcement of interim measures
(Model Law Articles 17H and 17I), court-ordered measures (Model Law
Article 17J), nor do they address the availability of ex parte interim measures
(or preliminary orders; Model Law Article 17B) as we will see below.
I. Conditions for granting interim measures
In common with most other arbitration rules and several national
arbitration statutes, Article 26 of the 1976 Rules provides little guidance as to
the preconditions for the grant of interim measures. Several requirements
have, however, emerged in practice, the principal ones of which are codified
in Article 26(3) of the 2010 Rules.

5
Ibid, para 207. A short-form proposal for a revised Article 26 was set out ibid, para 208, as an
alternative option.
6
See UN Doc A/CN.9/WG.II/WP.145/Add.1 (December 2006) para 24. The additional points were: the
tribunals power to modify, suspend, or terminate an interim measure; the tribunals power to request
the applicant party to disclose relevant changes in circumstances since the interim measure was
granted; and the potential liability of the applicant party in case it later transpires that the interim
measure should not have been granted.
7
An illustration of the consensus on this point is the discussion on Switzerlands proposal for
simplified, more conceptual text. The Swiss proposal can be found in UN Doc
A/CN.9/WG.II/WP.152 (September 2008); the Working Groups discussion and conclusions are
summarized in UNCITRAL Working Group II, Report of Fiftieth Session, UN Doc A/CN.9/669
(2009) paras 86-90.
8
UNCITRAL Working Group II, Report of Fiftieth Session, UN Doc A/CN.9/669 (2009) para 101.
G. PETROCHILOS, INTERIM MEASURES UNDER THE REVISED UNCITRAL ARBITRATION RULES
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Prima facie jurisdiction
This is not a requirement explicitly set out in the Rules (either in their
2010 revision or the original 1976 version), but it is one which is necessary in
the nature of things. It is a requirement whose importance can be seen when a
request for an interim measure is made at an early stage of the proceedings,
while a jurisdictional challenge is on foot. The question of whether an arbitral
tribunal can grant interim measures at that stage has generated a substantial
amount of controversy. One can see the validity of concerns over the
legitimacy of interim measures granted by a tribunal that is yet itself to
determine its jurisdiction. Nevertheless, in practice interim measures have
been granted prior to the resolution of a jurisdictional challenge, and for
obvious reasons of fairness and efficiency of the process.
9

But it is also important in such cases that there be a demonstrable basis
for jurisdiction, even on a provisional basis. It is now settled that in order to
grant interim measures a tribunal must be satisfied that there is a prima facie
basis for exercising jurisdiction on the merits of the dispute.
10
This is of
course without prejudice to the final determination on jurisdiction.
Prima facie case on the merits
It goes without saying that a party with a manifestly weak case should
not obtain interim measures, which in most cases will put the other party at a
disadvantage throughout the proceedings. In fact, the rule is best stated as an
affirmative requirement that the applicant party show a prima facie good case
to cross the threshold (or fumus boni iuris, in the traditional phrase). The
2010 Rules codify this classical requirement. Article 26(3)(b) stipulates that
the applicant must satisfy the tribunal that. . .[t]here is a reasonable
possibility that [it] will succeed on the merits of the claim. A finding to that
effect by the tribunal is of course without prejudice to any subsequent final
determination on the merits, and does not constitute res judicata because it is
simply a finding on a possibility.
11

9
The Rules permit a tribunal to determine a jurisdictional issue at the time it considers appropriate in
the circumstances, ie either as a preliminary question or in an award on the merits (Article 23(3)).
Such an award can of course be the final award, and the Rules also permit the tribunal to order interim
measures at any time prior to the final award (Article 26(1)).
10
See G Born, International Commercial Arbitration (2009) p 1993; D Caron, D Caplan, M Pellonp,
The UNCITRAL Arbitration Rules: A Commentary (2006) pp 535-536; S Baker and M Davis, The
UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal
(1992) p 139.
11
See Article 26(3)(b) of the 2010 Rules: The determination on this possibility shall not affect the
discretion of the arbitral tribunal in making any subsequent determination.
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The importance of a prima facie good case as a cornerstone of an
application for interim measures can be seen in three rules which
complement this requirement:
the power of the tribunal to modify, suspend, or terminate an
interim measure, in exceptional cases even of its own initiative
(Article 26(5));
the possibility that the applicant furnish security as a condition for
the granting of the measure sought (Article 26(6)); and
the applicants liability for costs and damages to the other party if
later in the proceedings it transpires that the measure should not
have been granted in the first place (Article 26(8); as to which see
paragraphs 19-21 et seq below).
Two caveats must be entered. First, how strong a case must be
demonstrated calls for judgement in the circumstances of each case,
especially in the light of the specific interim measure that is being sought: the
more far-reaching the measure the higher the threshold will be. Secondly,
where the measure being sought is conservatory (e.g., to preserve evidence or
to extend a contractual deadline pending the arbitration) and in that sense not
intended to favour either party, the requirement of a prima facie good case is
less compelling and may in fact be entirely inapposite. The 2010 Rules deal
with this latter caveat in Article 26(4).
Threat of imminent harm
As noted, under Article 26(1) of the 1976 Rules an arbitral tribunal
may take any interim measures which it deems necessary. Necessity has
been interpreted as including a degree of urgency as well as the threat of
substantial harm.
The urgency requirement is straightforward. As noted by a
commentator, if the making of a decision could await the final determination
of the parties case, there is inherently no basis for seeking interim protection
of rights.
12
If the risk of harm remains in some way remote, avoidable, or
contingent on future events, there is no compelling reason for a tribunal to
interfere with the parties rights prior to a full and final determination. Yet in
the nature of things, the required degree of urgency is inevitably a subjective
standard, and calls for pragmatic judgement in all circumstances.

12
A Yesilirmak, Provisional Measures in International Commercial Arbitration (The Hague: Kluwer
Law International, 2005) p 178.
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Similarly, the degree of threatened harm to a partys rights (or to the
integrity of the arbitral process) is difficult to define with exactitude. The
2010 Rules do, however, take a stance on whether the harm should be
irreparable, in the sense that it cannot be readily compensated by an award
of damages. Strict application of such a criterion is problematic: commercial
losses can in principle be rectified by an award of damages,
13
which means
that any application for interim measures could be defeated. The better
position is that serious, substantial or grave harm is a more realistic
formulation of the standard, and this accords with arbitral practice.
14
As has
been observed:
Requiring a standard less that irreparable [harm] makes
sense since an act prejudicial to the right of one of the parties
should not be characterized as being acceptable simply because
damages are available. From a commercial point of view which
is the position that a tribunal in international economic arbitration
has to take the disruption to business relations and the waste
resulting from such acts cannot be truly compensated by damages.
What lies behind this requirement is the basic principle of
reasonableness, meaning that the possible injury caused by the
requested interim measure must not be out of proportion with the
advantage which the claimant hopes to derive from it.
15

Thus, Article 26(3)(a) of the 2010 Rules reproduces verbatim the
language of Article 17A(1)(a) of the Model Law, requiring that the
threatened harm be not adequately reparable by an award of damages. By
way of counter-balance, Article 26(3)(a) goes on to say that the threatened
harm must substantially outweigh the harm that is likely to result to the party
against whom the measure is being sought again, following Article
17A(1)(a) of the Model Law.
II. Forms of interim measures
Article 26(1) of the 1976 Rules empowers arbitrators to take any
interim measures. . .in respect of the subject-matter of the dispute. This
provision has been rightly described as at once expansive and limited
regarding the authority to grant various types of interim measures.
16
It can be

13
See Baker & Davis (note 14 above) p 140.
14
See Caron et al (note 14 above) p 537; Baker & Davis (note 14 above) p 140; Born (note 14 above) p
1982.
15
K Berger, International Economic Arbitration (1993) p 336.
16
Baker & Davis (note 14 above) p 133.
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884 28 ASA BULLETIN 4/2010 (DECEMBER)

regarded as limited in the sense that it specifically requires that measures
relate to the subject matter of the dispute. Broad as this definition may have
been intended to be, the language does not clearly include measures which
seek to preserve the position of one party (e.g., an order to refund part of an
advance on costs that one party was forced to make in default of payment by
its opponent
17
) or the integrity of the proceedings.
18
While commentators
agree that an expansive, or at least non-exhaustive, interpretation is the better
one,
19
clarity was needed.
The formulation of Article 26(1) under the 1976 Rules has caused
uncertainty in two contexts. First, the Iran-US Claims Tribunal, in granting
measures to stay parallel judicial proceedings, relied on its inherent powers
to do so, avoiding the question of availability of such measures under Article
26.
20
Secondly, some uncertainty lingers regarding orders for security for
costs.
21
The circumstances where such orders can play a crucially useful role
are obvious, in particular where the claimant has undergone a divestiture of
assets and become a litigation vehicle. A commentator has noted that
while the UNCITRAL Rules are sweeping in their
authorization of interim measures deemed necessary in respect of
the subject-matter of the dispute, such preliminary steps would not
seem to include the purely procedural security for costs order.
22

Yet in two recent unreported cases UNCITRAL tribunals have found
that the wording of Article 26 of the 1976 Rules does not exclude the power
to order security for costs.
23
Further, recent ICSID jurisprudence indicates
that such orders may be granted in investment disputes, although only in

17
At least one interim award to that effect has been made by a tribunal under the 1976 Rules, in an
investment-treaty dispute in 2008.
18
Paulsson & Petrochilos (note 6 above) para 203.
19
See Baker & Davis (note 14 above) p 133 (the list [in Article 26(1) of the 1976 Rules] is clearly
exemplary, rather than exclusive); Caron et al (note 14 above) p 539 (These are clearly intended
only as examples, and not as limits on the arbitral tribunals power to order any other measures. . .);
Born (note 14 above) p 1959 ([T]he UNCITRAL Rules are correctly understood as granting a
tribunal the authority to issue any measures. . .[which] have some connection to the contract,
contractual or legal rights, property, requested relief, or other issues in dispute).
20
See E-Systems, Inc v The Islamic Republic of Iran, et al., Interim Award (1983) 2 Iran-US CTR 51; G
Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) pp 137-139.
21
See eg W Gu, Security for Costs in International Commercial Arbitration, (2005) 3 Journal of
International Arbitration 167.
22
N Rubins, In God We Trust, All Others Pay Cash: Security for Costs in International Commercial
Arbitration, (2000) 11 Am Rev Intl Arb 307, 343-344.
23
See Ragnwaldh & Eliasson, Security for Costs in Investment Arbitration in K Hobr, A Magnusson,
M hrstrm (eds) Between East and West: Essays in Honour of Ulf Franke (2010) 395.
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exceptional circumstances.
24
What circumstances may be regarded as
exceptional is far from settled. It should be clear on any view that the factors
which are particularly relevant in such an inquiry would include (a) the risk
of an inability to pay on the claimants part, (b) the existence of bad faith (for
example through intentional divestiture of assets) and, on the other hand, (c)
the exacerbation of a claimants financial precariousness through unsavoury
actions taken by the respondent.
25

Under the 2010 Rules, a tribunals power to order security for costs is
clearly encompassed in Article 26(2)(c), which refers to measures that
[p]rovide a means of preserving assets out of which a subsequent award may
be satisfied.
26
Clearly an award can (and a final award must) include a costs
determination (Article 40(1)), including legal and other costs incurred by the
parties to the extent allowed by the tribunal (Article 40(2)(e)).
More broadly, the intention in Article 26 was to ensure that the
definition of interim measures in the Rules would be wide.
27
Accordingly, the
subject-matter restriction has now been removed, and Article 26(2) sets forth
a capacious definition:
An interim measure is any temporary measure by which, at
any time prior to the issuance of the award by which the dispute is
finally decided, the arbitral tribunal orders a party, for example
and without limitation to. . .,
followed by an indicative list, by way of broad guidance, of the kinds
of measures that fall within the broad definition in Article 26(2). The
indicative list includes measures whereby the tribunal may order a party to:
(a) maintain or restore the status quo pending determination of the
dispute;
(b) take action that would prevent, or refrain from taking action that
is likely to cause, (i) current or imminent harm or (ii) prejudice
to the arbitral process itself;
(c) provide a means of preserving assets out of which a subsequent
award may be satisfied; or

24
See Libananco Holdings Co Limited v Turkey (ICSID Case No ARB/06/8) Decision on Preliminary
Issues, 23 June 2008, paras 56-60.
25
See Ragnwaldh & Eliasson (note 27 above) 411-415.
26
See UNCITRAL Working Group II, Report of Forty-seventh Session, UN Doc A/CN.9.641 (2007)
para 48.
27
UNCITRAL Working Group II, Report of Fiftieth Session, UN Doc A/CN.9/669 (2009) para 92.
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886 28 ASA BULLETIN 4/2010 (DECEMBER)

(d) preserve evidence that may be relevant and material to the
resolution of the dispute.
III. Liability for Costs and Damages
Article 26(8) of the 2010 Rules addresses the liability of an applicant
for the costs and damages resulting from an interim measure when upon later
examination it appears that the measure ought not to have been granted in the
first place. The concern addressed in Article 26(8) is the case where in light
of the outcome of the case [the measure granted] turns out to have been an
undue measure.
28
An example would be a case where the underlying claim
on the merits is ultimately held to have been unfounded. Nevertheless, the
rule is broader: the arbitral tribunal may award costs and damages at any
point during proceedings, not only after a final determination in an award.
29

The provision mirrors Article 17G of the Model Law, with improvements in
the wording; and Article 17G in turn is inspired from section 1041(4) of the
German Code of Civil Procedure in its 1998 revision.
30

The provision is carefully worded (if the tribunal later determines that,
in the circumstances then prevailing, the measure should not have been
granted), to make clear that the original grant of interim measures is not
impugned: what is required is a fresh determination of the situation in the
light of the circumstances which the tribunal possesses at that later point in
time. The clarity of the wording is an improvement from Article 17G of the
Model Law.
A more substantial difference from the Model Law is this. The Model
Law states that a party requesting interim relief, which the tribunal later
determines should not have been granted, shall be liable for any costs and
damages. By contrast, the Rules indicate that the applicant may be liable in
such circumstances. This was to reflect that liability must be founded on a
law (and not all national laws provide for such liability
31
) while the function
of the corresponding provision in the Rules was primarily to serve as the

28
APRAG, Report on 50th Session of Working Group II of UNCITRAL (2009) para 67.
29
See UNCITRAL Working Group II, Working Paper of the Fiftieth Session, UN Doc
A/CN.9/WG.II/WP.154/Add.1 (2009) para 32; and on Article 17G of the Model Law, UNCITRAL
Working Group II, Report of Thirty-ninth Session, UN Doc A/CN.9/545 (2003) para 65.
30
Section 1041(4) reads: If a measure ordered under subsection 1 proves to have been unjustified from
the outset, the party who obtained its enforcement is obliged to compensate the other party for damage
resulting from the enforcement of such measure or from his providing security in order to avoid
enforcement. This claim may be put forward in the pending arbitral proceedings.
31
See UN Doc A/CN.9/WG.II/WP.127 (2004).
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28 ASA BULLETIN 4/2010 (DECEMBER) 887
vehicle through which that liability, when provided for by law, would deploy
its effects.
IV. Preliminary Orders
The Model Law since 2006 contains two provisions, Articles 17B-C,
on preliminary orders. This is a mechanism whereby the applicant seeks an
interim measure without notice (ex parte) and a direction that the other party
not frustrate the purpose of the interim measure requested.
32
The
availability of preliminary orders by arbitral tribunals is a matter on which
national laws diverge sharply. Certain laws (e.g. English law) will not
tolerate them at all, while others specifically envisage them, with the majority
of laws being silent on the matter.
33

After considerable debate on the matter, it was decided not to deal with
preliminary orders in any way which is the position typically adopted in
arbitration rules.
34
The consensus view that ultimately prevailed was that
given the divergence of national laws on an issue regarded as one of
principle, it was not appropriate for the Rules to take a position on it. It was
also thought that, notwithstanding the general rule in Article 1(3),
35
inclusion
of a provision that could quite possibly be at variance with the law of the
arbitration might give tribunals false comfort that they are empowered to
grant such measures.
36
(Indeed, it was argued by some that the
characteristics of preliminary orders [run] counter to the consensual nature of
arbitration.
37
) An earlier compromise had been to include a provision
(quickly dubbed the non-rule) to the effect that the Rules did not prejudice
any power that might otherwise exist to make preliminary orders without
taking a stance on whether such power could possibly be found in the
tribunals general procedural power in Article 17(1) or, rather, required

32
See Article 17B(1) of the Model Law.
33
See UN Doc A/CN.9/WG.II/WP.125 (2003). See further Redfern and Hunter (note 4 above) p 323.
34
Article 39(4) of the ICSID Rules even prohibits the grant of ex parte interim measures, stating that
[t]he tribunal shall only recommend provisional measures, or modify or revoke its recommendations,
after giving each party an opportunity of presenting its observations. Cf Article 26 of the Swiss
Rules.
35
These Rules shall govern the arbitration except that where any of these Rules is in conflict with a
provision of the law applicable to the arbitration from which the parties cannot derogate, that
provision shall prevail.
36
UNCITRAL Working Group II, Report of Forty-seventh Session, UN Doc A/CN.9/641 (2007)
para 55.
37
UNCITRAL Working Group II, Report of Fiftieth Session, UN Doc A/CN.9/669 (2009) para 101.
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888 28 ASA BULLETIN 4/2010 (DECEMBER)

specific authorization by the applicable arbitration law.
38
But the wording
was awkward and capable of little improvement, the provision raised more
questions than providing answers, and it was discarded by the Committee of
the Whole at the last stage of the process.
39

The conclusion to draw from the legislative history is not that
preliminary orders are impermissible under the 2010 Rules. In fact, tribunals
have granted ex parte interim relief under the 1976 Rules, in cases of
extreme urgency.
40
And Article 17(4) of the 2010 Rules is worded in a way
that paves the way for ex parte communications:
All communications to the arbitral tribunal by one party shall
be communicated by that party to all other parties. Such
communications shall be made at the same time, except as otherwise
permitted by the arbitral tribunal if it may do so under applicable
law.
41

Rather, the conclusion to draw from the negotiating history very much
reflects the non-rule which was ultimately discarded. The Rules take no
position on the source of the authorization necessary to issue provisional
orders, or on the propriety of such orders. These questions will doubtless
generate some spirited debates in the years to come and materials for the
next revision of the Rules.

38
The relevant provision, Article 26(9), can be found in the Working Groups final draft presented to the
Committee of the Whole for consideration in June 2010; see UN Doc A/CN.9/703/Add.1 (2010) 5.
The provision read:
Nothing in these Rules shall have the effect of creating a right, or of limiting any right which may
exist outside these Rules, of a party to apply to the arbitral tribunal for, and any power of the arbitral
tribunal to issue, in either case without prior notice to a party, a preliminary order that the party not
frustrate the purpose of a requested interim measure.
For commentary see UNCITRAL Working Group II, Report of Fiftieth Session, UN Doc A/CN.9/669
(2009) paras 100-112.
39
See UNCITRAL, Report of Forty-third Session, UN Doc A/65/17 (2010) paras 121-125.
40
See Caron et al (note 14 above) p 543 and the references.
41
Article 17(4) of the 2010 Rules.
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28 ASA BULLETIN 4/2010 (DECEMBER) 889
Appendix : Article 26 of the Revised UNCITRAL Arbitration
Rules - Interim measures
1. The arbitral tribunal may, at the request of a party, grant interim
measures.
2. An interim measure is any temporary measure by which, at any
time prior to the issuance of the award by which the dispute is finally
decided, the arbitral tribunal orders a party, for example and without
limitation, to:
(a) Maintain or restore the status quo pending determination of the
dispute;
(b) Take action that would prevent, or refrain from taking action
that is likely to cause, (i) current or imminent harm or (ii)
prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent
award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the
resolution of the dispute.
3. The party requesting an interim measure under paragraphs 2 (a) to
(c) shall satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely
to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the
party against whom the measure is directed if the measure is
granted; and
(b) There is a reasonable possibility that the requesting party will
succeed on the merits of the claim. The determination on this
possibility shall not affect the discretion of the arbitral tribunal
in making any subsequent determination.
4. With regard to a request for an interim measure under paragraph 2
(d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent
the arbitral tribunal considers appropriate.
5. The arbitral tribunal may modify, suspend or terminate an interim
measure it has granted, upon application of any party or, in exceptional
circumstances and upon prior notice to the parties, on the arbitral tribunals
own initiative.
ARBITRATION NEWS & NOTES

890 28 ASA BULLETIN 4/2010 (DECEMBER)

6. The arbitral tribunal may require the party requesting an interim
measure to provide appropriate security in connection with the measure.
7. The arbitral tribunal may require any party promptly to disclose any
material change in the circumstances on the basis of which the interim
measure was requested or granted.
8. The party requesting an interim measure may be liable for any costs
and damages caused by the measure to any party if the arbitral tribunal later
determines that, in the circumstances then prevailing, the measure should not
have been granted. The arbitral tribunal may award such costs and damages
at any point during the proceedings.
9. A request for interim measures addressed by any party to a judicial
authority shall not be deemed incompatible with the agreement to arbitrate, or
as a waiver of that agreement.