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Interim Measures in
International Commercial
Arbitration: A Comparative
Review of the Indian
Experience
Bibliographic
reference
'Chapter 1: The Contours of
‘Interim Measures’', in Ajar
Rab , Interim Measures in
International Commercial
Arbitration: A Comparative
Review of the Indian
Experience, (© Kluwer Law
International; Kluwer Law
International 2022) pp. 9 -
12
© 2022 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Chapter 1: The Contours of ‘Interim Measures’
In any adjudicatory mechanism, interim measures serve as an essential tool and remedy.
(28) Often the final relief sought in litigation or arbitration may be insufficient to protect
the rights of an aggrieved party as there is a period between which the claim is made,
and the relief is finally awarded. The period intervening in the final adjudication may
result in crucial evidence decomposing or disappearing. A recalcitrant party may
dissipate assets to make enforcement of the award impossible, or it may take steps to
delay or derail arbitration proceedings. Thus, an interim measure, in broad terms, is a
remedy that seeks to safeguard the rights of parties pending the final adjudication of
their dispute. The effect of interim measures is to distribute the risk for the duration of
the main action between the parties, shifting it from the party applying for the interim
measure to the other party. (29)
Surprisingly, interim measures have been granted by courts in every legal jurisdiction,
yet there is no widely accepted definition of ‘interim measures’. (30) They represent
different concepts depending on jurisdiction and legal culture and hence, can take
various forms. In the context of arbitration, such measures become important as arbitral
tribunals devoid of the power to grant interim measures deprive tribunals of being a
‘one-stop’ mechanism for resolving disputes, leading to delay, inefficiency, and costs.
1. DEFINITION OF ‘INTERIM MEASURES’ IN ARBITRATION
Different scholars define interim measures differently, but by and large such definitions
P 10 address the aim or purpose of such measures. Most often, a reference is made to the
definition given by the European Court of Justice, i.e., interim measures are ‘intended to
preserve a factual or legal situation so as to safeguard rights’. (31) An attempt to bring
about a consensus on the definition of interim measures was made in the 2006 Model Law
Revisions in the context of arbitration. The language of Article 17(2) of the Model Law now
describes an interim measure as ‘any temporary measure … 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’. Though this definition does not define interim measures per se, it nonetheless
throws light on the nature of interim measures.
2. NATURE OF ‘INTERIM MEASURES’
According to the definition contained in Article 17(2) of the Model Law, interim measures
are (a) temporary instead of permanent and final. This aspect is vital as it implies that
such measures can be modified, suspended, or terminated at any time. The definition
also clarifies that (b) such measures can be issued at any time before the issuance of the
award by which the dispute is finally decided, clearly establishing a broad timeline for
issuing such measures. It also specifies that an interim measure cannot operate after the
award unless such relief is merged with the award. It is pertinent to mention that these
characteristics of interim measures are the same in court proceedings and arbitration
proceedings.
3. CLASSIFICATION OF ‘INTERIM MEASURES’
Currently, measures sought during arbitration proceedings are referred to as provisional,
conservatory, protective, or just interim measures. Commonly, these references are used
to mean the same thing and are often used interchangeably. (32) However, Born
distinguishes ‘interim’ and ‘provisional’ measures from ‘protective’ or ‘conservatory’
measures. The former pertains to decisions made before the final award where the
interim measure is granted usually to protect the party during the arbitration
proceedings. Such a measure can be altered or eliminated while passing the final award.
The latter is designed to protect or conserve particular rights regardless of it being
granted in an interim or final award. (33) However, the reference to interim measures as
‘protective’ and ‘conservatory’ refers more to the purpose of the interim measures. In
contrast, the words ‘provisional’, ‘interim’, or ‘interlocutory’ refer to the time period of
the measures.
In the Model Law and the UNCITRAL Arbitration Rules (UNCITRAL Rules), these measures
are known as interim measures. In the English version of the ICC Rules, they are known as
conservatory or interim measures. Irrespective of their terminology, they are intended to
P 11 operate as holding orders to protect the status quo and the integrity of the
proceedings pending the outcome of the arbitral process. (34) Article 9 of the Model Law
uses the term interim measures of protection, but Chapter IVA of the Model Law refers to
‘interim measures’ only.
3.1. Reference to an Intervening Period
However, not too much literature is available that adequately distinguishes these
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 measures. That is probably the reason the different references are used interchangeably.
Surprisingly, not enough attention has been paid to the classification of interim
measures. The word ‘interim’ may be read as belonging to or connected to the
intervening period of the dispute, i.e., a temporal relationship to the final award. An
interim measure, then, is nothing but a reference only to the time period. Any order which
does not end the dispute should be an interim measure since the intervening period may
be anything that takes place between the arbitral tribunals’ formation and the
culmination of proceedings. (35) It does not refer to either the nature of the interim order
or its form or content. It only refers to the time period within which the same shall remain
in force and the time period during which either party can seek interim measures, i.e.,
during the course or before the final disposal of any proceeding.

3.2. Reference to a Measure of Protection

Therefore, an interim measure of protection should be distinguished from an interim
order as an interim measure of protection is needed for a specific limited time until the
final protection is granted, i.e., temporary relief reserving a right pending the final relief.
(36) On the other hand, an interim order may refer to any procedural order passed during
the pendency of proceedings.
The phrase that describes them best is ‘interim measures of protection’ clearly
identifying their nature, period, and objective. The said phrase should be used to identify
such measures and help distinguish these measures from procedural orders issued
before the passing of the final award.
The use of the phrase ‘measures of protection’ would also help courts and tribunals
identify their true objective. The expression ‘interim measure of protection’ is wide
enough to mean and include all those measures which are ordinarily granted in
arbitration proceedings. Thus, the court or tribunal can grant an interim measure which
would (a) have the effect of mitigating loss and as a measure for preservation or (b)
custody or sale of goods which are the subject matter of dispute, and (c) can take
measures designed provisionally to determine and stabilise the relationship of parties in
a long term project and preserve their right either before initiation or during pending of
arbitral proceedings. (37)
P 12
The importance and need for interim measures of protection have substantially grown
due to globalisation and the increased confidence in arbitration. With arbitration
proceedings becoming more and more complex and taking longer to finish, the need for
interim measures of protection is only logical. Interim measures of protection typically
include anti-suit injunctions, security for costs, interim payments, sale, holdings in escrow
accounts, injunctive relief, preserving remedies, handing over of property or information,
inspection, administration of companies, and orders as to confidentiality. (38) Interim
measures can also extend beyond preserving the status quo to require restoring a
previous state of affairs or taking new actions. (39) However, the regime of interim
measures in arbitration in India has not caught up with international arbitral practice.
P 12

References
28) Julian D.M. Lew, Loukas Mistelis & Stefan Kröll, Comparative International Commercial
Arbitration ¶23-1 (2003).
29) Ibid., at ¶ 23-2.
30) Stephen Bond, The Nature of Conservatory and Provisional Measures, in ICC (ed.),
Conservatory and Provisional Measures in International Arbitration 8 (1993)., c.f. Ali
Yesilirmak, Provisional Measures in International Commercial Arbitration 4 (2005).
31) Mario Recihert v. Dresdner Bank, Case 261/90 [1992] ECR 2149, ¶34, c.f. Ali Yesilirmak,
supran. 30, at 4-5; Van Uden Maritime BV, trading as Van Uden Africa Line v.
Kommanditgesellshcaft in Firma Deco-Line [1998] ECR 7091, 7133, ¶37, c.f. Lew, supran.
28, at ¶ 23-2.
32) Ali Yesilirmak, supran. 30, at 4-5.
33) Gary Born, International Commercial Arbitration2606-2607 (2021).
34) Nigel Blackby, & Martin Hunter, Redfern and Hunter on International Arbitration 313
(2015).
35) Eduardo Z. Jaramillo, The Relationship Between Interim and Final Award: Res Judicata
Concerns, in A. van den Berg (ed.), Arbitration Advocacy in Changing Times 248 (2011).
36) Ali Yesilirmak, supran. 30, at 6.
37) The Hyderabad Cricket Association v. Visaka Industries Limited MANU/AP/0744/2011,
¶10.
38) James E. Castello, Arbitral Ex Parte Interim Relief: The View In Favour, 58 (3) Dis. R. J. 66
(2003).
39) Gary Born, supran. 33, at 2606, 2607.

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