Arbitration and interim measures
What are interim measures in arbitration?
A provisional measure is a judicial or arbitral decision intended to preserve the rights or property of a party, pending a decision on the merits of the dispute.
In arbitration, these measures make it possible in particular to prevent one party from making the execution of the award illusory (e.g. freezing of accounts, seizure, prohibition of action, etc.).
Can arbitrators order interim measures in France?
In domestic arbitration, arbitrators do not have the general power to order interim measures, unless:
The parties have expressly granted them this power in the arbitration agreement;
These are measures with a contractual scope (e.g.: prohibition on breaking a contract, temporary obligation, etc.).
⚠ For any measure requiring public force (e.g. seizure), only a state judge is competent.
Which judge is competent to order a protective measure in connection with an arbitration?
In French law: the interim relief judge of the district court has jurisdiction, even in the presence of an arbitration clause. This ensures rapid protection before or during the arbitration proceedings.
Can a judge be asked for interim measures even in the event of an arbitration clause?
Yes. The presence of an arbitration clause in no way prevents the jurisdiction of the state judge to order interim protective or investigative measures (Article 1449 CPC).
This is an exception to the principle of the negative effect of the arbitration clause.
Can a precautionary measure be requested even before the arbitrators are appointed?
Yes. In French law, as in comparative law, it is entirely possible to apply to a state judge to obtain a protective measure even before the start of arbitration, when the urgency justifies it.
Can a protective measure be requested during arbitration proceedings?
Yes, and in two ways:
Before the arbitrators themselves, if the agreement allows it or if they have been given the power to do so.
Before a state judge, in cases where the measure requires a public authority or in the event of failure of the arbitrator.
What is the legal basis for interim measures in domestic arbitration?
Articles 1449 and 1468 of the Code of Civil Procedure:
Article 1449 authorizes referral to the state judge, despite an arbitration clause, for provisional or protective measures.
Article 1468 specifies that arbitrators may order any measure necessary to protect a right, subject to their jurisdiction and respect for public order.
Can arbitrators order interim measures in international arbitration?
Yes. In international arbitration, arbitrators have broader powers to order interim measures (including conservatory measures), unless the parties stipulate otherwise.
Arbitration institutions (ICC, LCIA, ICSID, etc.) often provide for this power in their regulations.
What is a protective order issued by an international arbitrator? Is it enforceable?
It depends on the law of the state in which enforcement is sought.
In some countries (e.g. England, Singapore), arbitral protective orders are directly enforceable.
In France, they are not enforceable in themselves: it is often necessary to request their exequatur or to contact a state judge for their forced execution.
Are there any emergency interim measures before the constitution of the arbitral tribunal?
Yes. Many institutions (e.g., ICC, SCC, SIAC, ICSID) provide for the possibility of appointing an "emergency arbitrator" to order interim measures even before the arbitral tribunal is constituted.
What is an emergency arbitrator?
This is a temporary arbitrator appointed by an arbitral institution to urgently deal with a request for an interim or protective measure before the arbitral tribunal is formed.
The decision rendered is generally binding, but subject to confirmation by the court once constituted.
Can a precautionary measure be combined with a request for exequatur?
Yes. In practice, a party may request the exequatur of an arbitral award while requesting a precautionary measure to guarantee its execution (e.g., precautionary seizure of accounts).
Are interim measures limited to certain types of disputes?
No. They are possible in all types of arbitrable disputes:
Commercial disputes
Construction disputes
Investment Disputes
Corporate conflicts
But they must be proportionate, urgent and motivated.
What are the criteria for obtaining a protective measure in arbitration?
The applicant must demonstrate:
A risk of irreparable or difficult to reverse harm;
The urgency of the situation;
An appearance of right (fumus boni juris);
The proportionality of the requested measure.
