The article deals with provisional and protective measures in international arbitration and in particular with such issues as the authority and the requirements to issue provisional and protective measures as well as the subject matter of such measures. With the main focus on the present best practice for international arbitration in Switzerland, the article briefly also touches upon the ICC Pre-Arbitral Referee, the new ICDR Emergency Measures Rule and the revision of article 17 of the UNCITRAL Model Law.
With the enumeration of the different types of provisional and protective measures, e.g. orders to continue with a contractual performance, orders which prohibit behaviour likely to cause personal injury, orders with the purpose of securing the enforcement of the award, orders for security of costs, and further the possibility to render preliminary orders in ex-parte proceedings, the author shows that there is a vast field of application for interim remedies.
Dependent on the applicable arbitration rules which may or may not grant authority to the arbitral tribunal to issue provisional and protective measures, it may be advisable to address the issue in the individual arbitration clause through specific provisions taking the special needs of the particular case into consideration.
Provisional and protective measures in international arbitration are very helpful and efficient remedies to secure and enforce a party’s claims and prayers for relief. With the revised article 17 of the UNCITRAL Model Law and its forthcoming adoption into the national laws of many countries, a further major step into the direction of transnational arbitration rules for the recognition of provisional and protective measures issued by arbitral tribunals will be achieved.ASA Bulletin