Part 4A Interim measures

Division 1 Interim measures

17   Power of arbitral tribunal to order interim measures

(cf Model Law Art 17)

(1)  Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.

(2)  An interim measure is any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:

(a)  maintain or restore the status quo pending determination of the dispute, or

(b)  take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself, or

(c)  provide a means of preserving assets out of which a subsequent award may be satisfied, or

(d)  preserve evidence that may be relevant and material to the resolution of the dispute.

(3)  Without limiting subsection (2), the arbitral tribunal may make orders with respect to any of the following:

(a)  security for costs,

(b)  discovery of documents and interrogatories,

(c)  giving of evidence by affidavit,

(d)  the inspection of any property which is or forms part of the subject-matter of the dispute,

(e)  the taking of photographs of any property which is or forms part of the subject-matter of the dispute,

(f)  samples to be taken from, or any observation to be made of or experiment conducted on, any property which is or forms part of the subject-matter of the dispute,

(g)  dividing, recording and strictly enforcing the time allocated for a hearing between the parties (a stop clock arbitration).

Note. Subsections (1) and (2) are substantially the same as Art 17 of the Model Law. There is no equivalent subsection (3) in the Model Law.

17A   Conditions for granting interim measures

(cf Model Law Art 17A)

(1)  The party requesting an interim measure under section 17 (2) (a), (b) or (c) must satisfy the arbitral tribunal that:

(a)  harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and that harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted, and

(b)  there is a reasonable possibility that the requesting party will succeed on the merits of the claim.

(2)  The determination on the possibility referred to in subsection (1) (b) does not affect the discretion of the arbitral tribunal in making any subsequent determination.

(3)  With regard to a request for an interim measure under section 17 (2) (d), the requirements in subsection (1) (a) and (b) and subsection (2) apply only to the extent the arbitral tribunal considers appropriate.

Division 2 Preliminary orders

17B   

Note. Art 17B of the Model Law, which provides for ex parte requests for interim measures together with applications for preliminary orders directing parties not to frustrate the interim measures, has been omitted.

17C   

Note. Art 17C of the Model Law, which contains safeguards for the party against whom a preliminary order is directed under Art 17B, is omitted as a consequence of the omission of Art 17B.

Division 3 Provisions applicable to interim measures

17D   Modification, suspension, termination

(cf Model Law Art 17D)

The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, on application of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal’s own initiative.

Note. This section is substantially the same as Art 17D of the Model Law but contains no reference to preliminary orders as a consequence of this Act not including an equivalent of Arts 17B and 17C of the Model Law.

17E   Provision of security

(cf Model Law Art 17E)

(1)  The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.

(2) 

Note. Subsection (1) is the same as Art 17E (1) of the Model Law. Art 17E (2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

17F   Disclosure

(cf Model Law Art 17F)

(1)  The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted.

(2) 

Note. Subsection (1) is the same as Art 17F (1) of the Model Law. Art 17F (2) is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

17G   Costs and damages

(cf Model Law Art 17G)

(1)  The party requesting an interim measure is liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances, the measure should not have been granted.

(2)  The arbitral tribunal may award such costs and damages at any point during the proceedings.

Note. This section is substantially the same as Art 17G of the Model Law but the reference to applications for preliminary orders is omitted as a consequence of this Act not including equivalents to Arts 17B and 17C of the Model Law.

Division 4 Recognition and enforcement of interim measures

17H   Recognition and enforcement

(cf Model Law Art 17H)

(1)  An interim measure issued by an arbitral tribunal under the law of this State is to be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, subject to the provisions of section 17I.

(2)  An interim measure issued by an arbitral tribunal under the law of another State or Territory is to be recognised as binding in this State and, unless otherwise provided by the arbitral tribunal, enforced on application to the Court, irrespective of the State or Territory in which it was issued, subject to the provisions of section 17I.

(3)  The party who is seeking or has obtained recognition or enforcement of an interim measure must promptly inform the Court of any termination, suspension or modification of that interim measure.

(4)  The Court may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

Note. This section differs from Art 17H of the Model Law to the extent necessary to apply Art 17H as incorporated in this Act in the context of domestic commercial arbitrations.

17I   Grounds for refusing recognition or enforcement

(cf Model Law Art 17I)

(1)  Recognition or enforcement of an interim measure may be refused only:

(a)  at the request of the party against whom it is invoked if the Court is satisfied that:

(i)  such a refusal is warranted on the grounds set out in section 36 (1) (a) (i), (ii), (iii) or (iv), or

(ii)  the arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with, or

(iii)  the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State or Territory in which the arbitration takes place or under the law of which that interim measure was granted, or

(b)  if the Court finds that:

(i)  the interim measure is incompatible with the powers conferred on the Court unless the Court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance, or

(ii)  any of the grounds set out in section 36 (1) (b) (i) or (ii) apply to the recognition and enforcement of the interim measure.

(2)  Any determination made by the Court on any ground in subsection (1) is effective only for the purposes of the application to recognise and enforce the interim measure.

(3)  The Court must not, in making a determination with respect to the recognition or enforcement sought, undertake a review of the substance of the interim measure.

Note. This section is substantially the same as Art 17I of the Model Law but has been modified to the extent necessary to apply Art 17I as incorporated in this Act in the context of domestic commercial arbitrations.

Division 5 Court-ordered interim measures

17J   Court-ordered interim measures

(cf Model Law Art 17J)

(1)  The Court has the same power of issuing an interim measure in relation to arbitration proceedings as it has in relation to proceedings in courts.

(2)  The Court is to exercise the power in accordance with its own procedures taking into account the specific features of a domestic commercial arbitration.

Note. This section is substantially the same as Art 17J of the Model Law but has been modified to the extent necessary to apply Art 17J as incorporated in this Act in the context of domestic commercial arbitrations.