Arbitration: Interim Relief

Interim measures of protection and conservation (or “interim measures”) may be granted by arbitral tribunals or by specially appointed “emergency arbitrators” in order to protect parties during (im-)pending arbitral proceedings.

Classical examples of damages that a party might suffer while an arbitration goes on are, inter alia,

• dissipation of assets by a debtor;
• destruction of the object of the dispute;
• intentional loss of market value of a company;
• misuse of intellectual property; etc.

Interim measures therefore aim to avoid that a party suffers irreparable damages during the delay of the arbitration.

According to most arbitration rules, unless the parties agree otherwise, the arbitral tribunal may at the request of a party grant any interim measure it deems appropriate. The form for granting these measures may be either through Orders or Interim Awards. It is also usually required that the arbitrators give a reasoned decision for granting or not the measure.

Although most national laws recognise the authority of arbitral tribunals to grant interim measures, they usually establish that the parties are not prevented from also seeking interim relief before national courts.

In the recent past, some arbitral institutions have included emergency arbitrator mechanisms in their disputes. Axel Benjamin Herzberg is a member of the ICC Commission on Arbitration & ADR Task Force on Emergency Arbitrator Proceedings and is, as is the entire team at BODENHEIMER, highly familiar with interfacing issues of interim relief before state courts, arbitral tribunals, and emergency arbitrators.

BODENHEIMER REPRESENTATIVE MATTERS AS PARTIES’ COUNSEL

Obtained pre-judgment and pre-award, ex parte asset freezing orders from courts in Berlin and Munich to secure the client’s claims against defaulting debtors based in, inter alia, Uruguay and Hong Kong. Successfully froze the client’s assets early on in the proceedings, leading to total recovery for the client

Obtained an interim order from an ICC arbitral tribunal in a matter against a U.S. Respondent, to compel payment of the advance on costs; in parallel, coordinated pre-award attachment proceedings in aid of arbitration before the U.S. District Court for the Southern District of New York (handled by correspondent counsel in New York)