The proposed new text of Article 26 concerning interim measures of protection is a considerable expansion from the 1976 rule. It reflects the extensive practical experience of arbitrators with different types of interim measures. It also reflects the convergence of legal standards into a set a generally applicable transnational norms.
The 1976 version of the rule was concise, perhaps to a fault. It permitted the arbitral tribunal to “take any interim measures it deems necessary in respect of the subject matter of the dispute. ” The only specific example mentioned, although not by way of limitation, was “measures for the conservation of the goods forming the subject matter in dispute. ” The 1976 rule further provided that interim measures could be taken in the form of an award, that the applicant could be called upon to furnish security, and that a request for interim measures addressed to a judicial authority would not be deemed a waiver of the agreement to arbitrate.
The proposed draft makes changes, large and small, that would bring the text of the rule in line with contemporary practice. Many of the changes would bring the text into correspondence with chapter IV A of the UNCITRAL Arbitration Model Law.
The draft states that a tribunal may “grant” interim measures, whereas the 1976 rules use the verb “take.” The change is indicative of the use of arbitral interim measures to provide what in common law parlance is relief in the nature of a preliminary injunction. Indeed many of the changes incorporate fundamental concepts of American preliminary injunction practice: maintaining or restoring the status quo; prevention of imminent and irreparable harm; relative balance of hardships; and “reasonable possibility” of success on the merits. Drafting an express provision for issuance of ex parte temporary restraining orders (“TRO”) has been very controversial within the Working Group, as the ex parte nature of the relief is perceived as a violation of due process in some countries. On this point the draft, exceptionally, references the applicable lex arbitri rather than establishing a general rule: it provides that the rule neither creates any right, nor extinguishes any right that may exist under applicable law, to an ex parte TRO.
Readers of the Working Group’s report on its February 2009 session will note that an “alternative proposal” was presented — and garnered considerable support — that would have retained much of the brevity if the 1976 rule and left the elaboration of types of interim measures and the conditions for granting them largely to applicable domestic law. The rejection of the “alternative proposal” is indicative of the extent to which the nature of arbitral interim measures, and the conditions for their issuance, have become transnational rules — part of the international law of international arbitration.
The proposed draft eliminates the reference to “the subject matter in dispute” — reflecting the contemporary understanding that the conservation of goods or other physical assets is far from the only reason or even the principal reason for the granting of interim relief.
The draft notably omits reference to the possibility of granting interim measures in the form of an interim award. One assumes this does not mean a tribunal may never put interim measures in that form. Instead this change appears calculated to discourage the tendency of some arbitrators to use the “award” designation to enhance judicial enforceability of interim measures, even though the interim measures decision may not finally resolve any issue in the arbitration and thus may lack the essential characteristic distinguishing an award from an order.