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Interim measures and enforcement
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CitationYeşilırmak, A. (2021). Interim measures and enforcement. Effective Legal Writing: Written Submissions in International Arbitration, 4 - 13 October 2021, virtual symposium.
Interim or conservatory measures are forms of remedy or relief aimed at protecting and preserving the rights of a party pending the final resolution of a dispute. They are temporary in nature and in certain circumstances may have a decisive effect on certain issues in a case or on the claimant’s ability to prosecute its claim Interim or conservatory measures in international arbitrations may be granted by arbitral tribunals, by emergency arbitrators (where the applicable rules permit) and by competent national courts. The appropriate forum in respect of interim or conservatory measures will depend on the applicable laws and arbitration rules. Where two or more avenues are seemingly open for the applicant, the most effective and advantageous avenue will need to be identified. However, parties should beware of any rules and/or judicial (or arbitral) attitudes forbidding a second “bite at the cherry” in case the first avenue fails to produce the desired outcome. The types of interim or conservatory measures that an arbitral tribunal, emergency arbitrator and/or a national court judge, as applicable, may grant differ depending on the applicable laws and arbitration rules, but they generally include: - preservation of the status quo until the tribunal’s final decision on the merits, such as an order restricting financial or other transfers outside the ordinary course of business that are made principally to evade enforcement efforts; - preservation of property or evidence; payment of deposits or advances on arbitration costs; interim orders requiring performance of obligations; - orders prohibiting aggravation of the parties’ dispute; and - security for costs. Interim or conservatory measures may be issued in the form of orders, decisions, awards (interim or partial) or recommendations. The form granted may differ on a case-by-case basis, and also depending on the applicable arbitration rules and/or laws. Important consideration when seeking interim measures may include: - Whether an interim or conservatory measure from the arbitral tribunal will assist in realising the desired aim or outcome. - Whether, under the applicable laws and arbitration rules, the arbitral tribunal possesses the power to and can effectively grant the required interim or conservatory measure required in the circumstances of the case. - Whether any interim or conservatory measure granted by the arbitral tribunal will be voluntarily complied with by the counter-party. If not, a national court's assistance may be required in respect of enforcing the tribunal-issued measure. There are substantial divergences between various jurisdictions as regards the legal test that must be satisfied for a national court to intervene and assist with the enforcement of a tribunal-issued measure, as well as in respect of the types of measures available. The same divergence exists where interim or conservatory measures are alternatively (or additionally, where permitted) sought directly from a national court(s). An unenforceable order or award from the arbitral tribunal is near-worthless, so parties must consider the enforceability of any interim or conservatory measures before applying for them. The same is true of interim or conservatory measures ordered by a court that are incapable of enforcement for some reason, e.g., absence of any debtor assets in the jurisdiction. The time and costs consequences of any enforcement proceedings should be considered as part of the financial implications of applying for an interim or conservatory measure, and considered by parties prior to making an application.