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.