INTERIM MEASURES OF PROTECTION

What are interim measures of protection?

 Interim measures of protection are provisional reliefs that any party to an arbitration
agreement may ask for from the arbitral tribunal or, in appropriate cases, the
courts.

Power of Arbitral Tribunal to Order Interim Measures

 Subject to contrary agreement, at the request of a party, the arbitral tribunal has
inherent power to take such interim measures of protection as the arbitral tribunal
may consider necessary in respect of the subject matter of the dispute
The arbitral tribunal is deemed constituted when:
1. the sole arbitrator or the third arbitrator has been nominated;
2. has accepted the nomination; and
3. written communication of the nomination and acceptance has been
received by the party making the request

Court Jurisdiction to Grant Interim Relief

Section 28 of the ADR Act and Model Law Article 17
 The submission of a dispute to arbitration does not exclude the exercise of
jurisdiction of the court to grant interim measure of protection in aid of arbitration.
Section 14 of Republic Act No. 876
 The court is allowed to take measures to safeguard and/or conserve any matter
which is the subject of the dispute in arbitration.
Section 28 of the ADR Act and 14 of Republic Act No. 876 operate on the same principles
that:
a) The arbitrator/s, in the first instance may, upon application of a party to the
arbitration, grant appropriate relief on an interim basis;
b) The court of jurisdiction may, upon application of a party to the arbitration,
grant an interim measure of protection which the arbitrator/s do not have
the authority to grant or are unable to act effectively upon; and
c) The exercise of jurisdiction of the court should be in aid of the arbitral
process.
When and where request for interim measures of protection is made
1. Arbitral tribunal
After the constitution of arbitral tribunal and in the course of arbitral proceedings

2. Court

a) Before arbitration is commenced;

b) After arbitration is commenced but before the constitution of the arbitration tribunal,
or
c) Even after the constitution of an arbitral tribunal and at any time during arbitral
proceedings, but only to the extent that the arbitral tribunal has no power to act or
is unable to act effectively

The application may be filed with any Regional Trial Court which has jurisdiction over
any of the following places:

1) Where the principal place of business of any of the parties to the arbitration is
located;
2) Where any of the parties who are individuals resides;
3) Where any of the acts sought to be enjoined are being performed, threatened
to be performed or not being performed; or
4) Where the real property subject of the arbitration, or a portion thereof is
situated.

Forms and contents of the petition

The petition must be verified and it must state the following:

(a) The fact that there is an arbitration agreement;

(b) The fact that the arbitral tribunal has not been constituted, or if constituted, has no
power to act or would be unable to act effectively;
(c) A detailed description of the relief sought;
(d) The grounds relied upon for the allowance of the petition.

Grounds for granting interim relief

(a) The need to prevent irreparable loss or injury;

(b) The need to provide security for the performance of any obligation;
(c) The need to produce or preserve evidence; or
(d) The need to compel any appropriate act or omission.
Types of interim measure of protection the court may grant

(a) Preliminary injunction directed against party to arbitration;

(b) Preliminary attachment against property or garnishment funds in the custody of a
third person;
(c) Appointment of receiver;
(d) Detention, preservation, delivery, or inspection of property; or
(e) Assistance in the enforcement of an interim measure of protection granted by the
arbitral tribunal, which the latter cannot enforce effectively.

Notice and hearing

 The court proceeding for a petition for the grant of an interim measure of protection
is summary and as far as practicable, shall be conducted in one day and only for
purposes of clarifying facts

Filing of comment or opposition: 15 days from receipt of the notice

Hearing: not later than five days from the lapse of the period for filing comment or
opposition

Evidence required by court:

(1) The fact that a dispute has been submitted to the arbitral tribunal for
determination;
(2) That during the arbitration proceedings, an application was made by the
applicant for the arbitral tribunal to issue an interim measure of protection; and
(3) The application was granted.

 Granted
o The court cannot change, increase, or decrease the security ordered by the
arbitral tribunal.

 Denied on the ground of newly discovered evidence

o The court shall refer the matter back to the arbitral tribunal for appropriate
determination.

Temporary order of protection, when issued

The Special ADR Rules provide that an ex parte preliminary order may be granted when
1. The petitioner alleges in the petition that there is urgent need to either
 a. Preserve property;
b. Prevent the respondent from disposing or concealing the property; or
c. Prevent the relief prayed for from becoming illusory because of prior notice
2. The court finds that the reason/s given by the petitioner are meritorious
Validity of the ex parte temporary order of protection: 20 days
Posting of bond: within five days from receipt of the order
Remedy of the respondent
 The respondent has the option of having the temporary order of protection lifted by
posting an appropriate counter-bond in an amount to be determined by the court.

Possible grounds for objection

(a) The validity of the arbitration agreement which results in a lack of jurisdiction of the
arbitral tribunal to issue the questioned order; or
(b) Independently of the validity of the arbitration agreement, that the arbitral tribunal
did not have jurisdiction to issue the interim measure; or
(c) That it was issued by an arbitrator who was appointed without proper notice to the
complaining party; or
(d) That it was issued without proper notice to the complaining party of the arbitration
proceedings; or
(e) That the complaining party was denied the opportunity to be heard on the issue of
interim relief; or
(f) That the interim measure itself was inherently invalid because it is alleged to be
contrary to law or public policy; or
(g) That the evidence did not justify the grant of the measure nor the nature of the
interim relief nor its scope; or
(h) That on the basis of supervening facts after the issuance of the interim order, it
should be rescinded or substantially modified; or
(i) That the arbitral tribunal gravely abused its discretion in denying an application by
the complaining party to provide security, such as a counter bond, the purpose of
which is to avoid the issuance of the interim relief prayed for; or
(j) That the arbitral tribunal gravely abused its discretion in requiring counter-security
as a condition for refraining from issuing the interim relief prayed for in an amount
or of such nature which in the circumstances appears unreasonable; or
(k) That the interim relief granted by the arbitral tribunal was grossly disproportionate
to or unnecessary in light of the assigned cause for which it was issued; or
(l) That the security required by the arbitral tribunal for the grant of interim relief is
inadequate.
The court shall NOT deny an application for assistance in the implementing an interim
order of protection ordered by an arbitral tribunal on any or all of the following grounds:
1. The arbitral tribunal granted the interim relief ex parte; or
2. The party opposing the application found new material evidence, which the arbitral
tribunal has not considered in granting the application, and which, if considered,
may produce a different result; or
3. The measure of protection ordered by the arbitral tribunal amends, revokes,
modifies or is inconsistent with an earlier measure of protection issued by the court.

Types of interim measures of protection that a tribunal or court may grant

(a) Those which are aimed at facilitating the conduct of arbitral proceedings
 Those which are intended to ensure confidentiality of the arbitration
proceedings

(b) Those which are aimed at avoiding losses or damages, and measures aimed at
preserving the status quo
 Status quo orders requiring a party to continue performing a contract of refrain
from taking certain actions prejudicial to the interest of a party during the arbitral
proceedings until the award was made

(c) Those which are aimed at facilitating the enforcement of the award
 Orders that require that appropriate security be provided such as a bond for
issuance of injunction or attachment, or for the sale of perishable goods

Issuance of preliminary orders

 The arbitral tribunal may only grant a preliminary order rather than an interim
measure if it considers that there is a reasonable basis for concern that the purpose
of the requested interim measure will be frustrated before all parties can be heard.

 Preliminary order has a narrower scope than an interim measure. It is limited to

directing the other party to take no action to frustrate the purpose of the interim
measure of protection granted until both parties can be heard on the matter.

Form of an interim measure of protection

 The ADR Act does not indicate in what form an order granting interim relief should
be made.
Cross Border Enforcement
 A Philippine court may have no legal obligation to enforce an interim order issued
by a foreign arbitral tribunal unless it is made in the form of an arbitral award and
even that to be enforceable, should be a final award.

What happens when a party refuses to comply with the provisional relief ordered
by the tribunal?
Arbitrators have certain ways in enforcing their orders:
1. In matters relating to evidence, the tribunal may presume negative interference if the
party refuses to produce evidence before the tribunal
2. It can also use sanctions to force the compliance or if it has control over any property
involved in the dispute, it may possess the same to enforce its orders.
INTERIM MEASURES OF PROTECTION

(Model Law Articles 9 & 17)

Group 4

Cabero, John Michael Angelo A.

Igoy, Rovi Anne Trizza E.

ADR

5:30 - 6:30 W

6:30 - 7:30 Th