Author: Stefan Kröll*
Published: August 2012
Most modern arbitration laws and institutional rules now explicitly allow for interim relief by arbitral tribunals. The traditional hostility towards arbitral interim relief has largely been abandoned and the national arbitration laws either directly confer the required powers on the tribunal or entitle the parties to do so. The former approach can, for example, be found in the UNCITRAL Model Law (as amended in 2006) where Article 17(1) provides:
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.
Today, some national laws and several arbitration rules even go as far as to allow for interim relief to be granted ex parte. Irrespective of this there are two typical weaknesses which still limit the use of arbitral interim relief in practice. The first weakness concerns the availability of interim relief at the preformation stage. Unlike state courts, arbitral tribunals are in general appointed for particular disputes. Consequently, during the weeks and months before the tribunal has been constituted there may not be any arbitral authority available on short notice when interim relief is needed. Numerous arbitration institutions such …
*The author is an independent arbitrator in Cologne and a visiting lecturer at Bucerius Law School in Hamburg. My special thanks go to Dmitry Marenkov for his help in preparing this article, in particular for providing the information about Russian law. A largely abbreviated version of this article has appeared in the Tijdschrift voor Arbitrage (Netherlands Arbitration Journal), 2012, 47.