Arbitral Interim Measures – Enforcement Pitfalls

Abstract

This article addresses the enforcement of arbitral interim measures in international arbitration. The authors find that although the enforceability of arbitral interim measures is critical for the efficacy of arbitration, there does not appear to be any worldwide recognized binding instrument requiring national courts to enforce such measures. In particular, the New York Convention does not explicitly address arbitral interim measures, which thus results in different views. Also, although the UNCITRAL Model Law explicitly provides for the recognition and enforcement of arbitral interim measures, it is merely a non-binding guideline. Consequently, the enforceability of arbitral interim measures appears to be left to the tender mercies of the national legal orders and courts. This necessarily leads to significant uncertainty for arbitration practitioners and users. The authors believe that such a state of affairs is undesirable, but they do not foresee any indication that a significant improvement could be brought about within a few years. On this basis, the authors conclude that the requesting party, usually, must seriously consider filing a request for interim measure directly with a national court.

Keywords: interim measure, provisional relief, enforcement, execution