Article 9

Arbitration Agreement and Interim Measures

by Court
shahla ali and odysseas g. repousis

It is not incompatible with an arbitration agreement for a party to

request, before or during arbitral proceedings, from a court an interim
measure of protection and for a court to grant such measure.

1. Travaux Préparatoires
Article 9 is concerned with the compatibility of an arbitration agreement
in connection with a request for interim measures from the courts (as
opposed to such a measure being granted by an arbitral tribunal). The
article was discussed under the common ground that pre-arbitration
attachments and interim measures applied for or granted by the courts
should not be seen as incompatible with an agreement to arbitrate
disputes between the parties. At the same time, it was equally clear that
the Model Law also ought not to prescribe or exclude any specific rules in
relation to the possible measures that may be requested from or granted
by a court, with a view to ensuring respect for domestic laws and
jurisprudence and its separation from the international arbitral legal
system, as well as to provide the maximum extent of freedom to the
parties of the arbitration agreement.1 Court-ordered interim measures
may be important to ensure the effectiveness of arbitration, because the
arbitral tribunal may be unable to respond to a party’s need effectively,
for example, where interim measures may be required before the arbitral
tribunal has been constituted, or where such a measure is sought against a
third party outside the jurisdiction of an arbitral tribunal and thus
warranting the granting of court-ordered interim measures. As has

1
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Third Session, UN Doc. A/CN.9/216 (23 March 1982), paras 39, 69.

160

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 1 . tr ava ux p r é paratoires 161

been demonstrated in a number of cases, the practice of court-ordered

interim measures serves to render the outcome of arbitration more
effective, and also serves to reinforce the procedural powers of arbitra-
tors, without, however, encroaching such powers.2
Given that the broad principle contained in article 9 necessarily
embraced the issue of interim measures of protection granted by arbitral
tribunals or the courts, it was suggested that the drafting of article 9 be
modelled upon article 26(3) of the 1976 UNCITRAL Arbitration Rules,
article VI(4) of the 1961 Geneva Convention and article 4(2) of the 1966
European Convention providing a Uniform Law on Arbitration
(Strasbourg Uniform Law).3 Article 26(3) of the 1976 UNCITRAL
Arbitration Rules provides that ‘[a] request for interim measures
addressed by any party to a judicial authority shall not be deemed
incompatible with the agreement to arbitrate, or as a waiver of that
agreement’.4 Although reference to article 26(3) of the 1976
UNCITRAL Arbitration Rules was made at first, it was subsequently
suggested that a neutral and passive approach ought to be adopted
under the Model Law, in order to declare a principle of compatibility
rather than the adoption of the perspective of article 26(3) of the
UNCITRAL Arbitration Rules, as that article was drafted from the view-
point of the adopting parties.5 While another possible approach would
have been to grant the parties the right to request interim measures from
the courts, it was noted that article VI(4) of the 1961 Geneva Convention
had already taken such an approach to the issue.6 Even after further
drafting, the discussions still centred on the issue of the clarity of the
2
Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd, House of Lords, England, 17
February 1993, [1993] AC 334, 365 (where Lord Mustill stated that ‘[t]he purpose of
interim measures of protection … is not to encroach on the procedural powers of the
arbitrators but to reinforce them, and to render more effective the decision at which the
arbitrators will ultimately arrive on the substance of the dispute’); NCC Intl AB v. Alliance
Concrete Singapore Pte Ltd, Court of Appeal, Singapore, 26 February 2008, [2008] SGCA 5,
[2008] 2 SLR(R) 565; Front Carriers Ltd v. Atlantic & Orient Shipping Corp., High Court,
Singapore, 19 July 2006, [2006] SGHC 127, [2006] 3 SLR(R) 854; Pathak v. Tourism
Transport Ltd, High Court, Auckland, New Zealand, 20 August 2002, [2002] 3 NZLR
681; The Owners of the Ship or vessel ‘Lady Muriel’ v. Transorient Shipping Ltd, Court of
Appeal, Hong Kong, 27 March 1995, [1995] HKCA 615; UNCITRAL, Analytical
Commentary on the Draft Text of a Model Law on International Commercial
Arbitration, UN Doc. A/CN.9/264 (25 March 1985), art. 9, para. 2.
3
UN Doc. A/CN.9/216 (n. 1), para. 39.
4
The provision of art. 26(9) of the 2010 UNCITRAL Arbitration Rules is identical.
5
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), paras 52–53.
6
Ibid., para. 54.

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 162 article 9 : interim meas ures

language of the article to ensure that the principle of compatibility

between an arbitration agreement and a request for an interim measure
from a court is laid down clearly.7
At one point in the course of the discussion, the issue of whether or not
the article should include or specify lists and areas of interim measures
considered compatible with an arbitration agreement was raised – for
example, to include interim measures for securing evidence.8 Ultimately,
the Working Group agreed that it would be unnecessary to list possible
interim measures; on the contrary, the general and unspecific approach
adopted in article VI(4) of the 1961 Geneva Convention was considered
more desirable and appropriate in light of the broad and wide application
of such a provision across different jurisdictions, as well as diverse
arbitration contexts.9 As to the term to be used in respect of ‘interim
measures’, the Working Group preferred the language used in the
UNCITRAL Arbitration Rules over the wording from the 1961 Geneva
Convention, and decided to adopt ‘interim measure of protection’
instead of ‘interim measure or a measure of conservation’.10 This was
reflective of the intention behind the drafting, which was that article 9
would cover a wide range of interim measures, including pre-award
attachments. Its range was agreed to be even broader than previous
wording of article 17, which dealt with the issue of interim measures of
protection by an arbitral tribunal.11 Although there is a lack of a defini-
tion or an exhaustive list of interim measures, the latest version of the
Model Law has potentially provided further guidance on this issue.12 The
new definition under article 17 raises the issue of the applicability of that
definition to interim measures under this article, and whether or not in
light of the new material on interim measures added to the Model Law in
2006, this previous Working Group discussion in respect of the specifi-
city of the interim measures under this article needs to be revisited,

7
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Fifth Session, UN Doc. A/CN.9/233 (28 March 1983), para. 81.
8
Ibid., para. 81.
9
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983),
para. 188.
10
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), paras 24–25.
11
Ibid., para. 26.
12
See the new Model Law art. 17 definition of ‘interim measures of protection’, as well as art.
17J – for further, see below at ‘4. Defining “Interim Measure of Protection”’.

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 2 . p r o t e c t i o n u n d e r in t e r i m m e a s u r e s 163

particularly bearing in mind the concept of excluding court intervention

from arbitral proceedings to the greatest extent possible.

2. Protection under Interim Measures

The Working Group noted that it would be more appropriate to include a
general formulation of principle under article 9 rather than to specifically
list the various possible forms of interim measure available to the parties
and the courts.13 This broad approach meant that this provision of the
Model Law would not add to, or detract from, the types of interim
measures of protection courts could grant under the relevant local
legislation. However, the Analytical Commentary indicated certain
kinds of interim measure were considered available to be granted by a
court in an arbitral context, such as interim measures sought by the
parties to conserve the subject matter or to secure evidence, and also
other measures that may be required from a third party, or to ensure
future enforcement of an arbitral award (e.g. pre-award attachments and
any similar seizure of assets).14
In implementing article 9, a number of jurisdictions included a list of
types of court-ordered interim measures allowed under their respective
civil procedure laws in the adoption of article 9 of the Model Law. These
jurisdictions include California, Oregon, Texas, Hungary, India, New
Zealand, Scotland, Zambia and Zimbabwe. For example, article 9 of the
Zimbabwe Arbitration Act 1996 provides a detailed list of possible court-
ordered interim measures. In other jurisdictions, a list of types of tribunal-
ordered interim measures is included and court-ordered interim measures
are defined by reference to that list. For example, section 12(1) of the
Singapore International Arbitration Act provides that an arbitral tribunal
has the power to make orders or give directions to any party in respect of:
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
(d) the preservation, interim custody or sale of any property which is or
forms part of the subject matter of the dispute;
(e) samples to be taken from, or any observation to be made of or
experiment conducted upon, any property which is or forms part
of the subject matter of the dispute;
13
UN Doc. A/CN.9/245 (n. 9), para. 188.
14
UN Doc. A/CN.9/264 (n. 2), art. 9, para. 4.

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 164 article 9 : interim meas ures

(f) the preservation and interim custody of any evidence for the pur-
poses of the proceedings;
(g) securing the amount in dispute;
(h) ensuring that any award which may be made in the arbitral proceed-
ings is not rendered ineffectual by the dissipation of assets by a
party; and
(i) an interim injunction or any other interim measure.
Section 12A (2) of the Singapore International Arbitration Act goes on to
provide that:
the High Court or a Judge thereof shall have the same power of making an
order in respect of any of the matters set out in section 12(1)(c) to (i) as it
has for the purpose of and in relation to an action or a matter in the court.

In addition to sections 12(1) and 12A(2), article 9 of the First Schedule

also transposes into Singaporean law article 9 of the Model Law.
In a slightly different manner, the New Zealand Arbitration Act
includes a general definition of interim measures that may be ordered
by a tribunal and cross-references that definition in its legislative coun-
terpart to article 9 of the Model Law.15
Other than pre-award attachments,16 measures protecting the subject
matter of the dispute17 and measures intended to secure evidence,18 the
implementation of article 9 under the legislation of various jurisdictions
has also led to its extension to measures relating to the protection of trade
secrets and proprietary information19 – for example, the relevant laws in
California,20 Oregon21 and Texas22 expressly allow those US State courts
to grant preliminary injunctions for the purpose of protecting trade
secrets or conserving goods which are the subject matter of the dispute
to be arbitrated.23

15
See Schedule 1, Chapter 2, s. 9 (1) and (2) of the New Zealand Arbitration Act.
16
UNCITRAL, Report of the United Nations Commission on International Trade Law on
the Work of Its Eighteenth Session, UN Doc. A/40/17 (21 August 1985), para. 96.
17
Ibid.
18
UN Doc. A/CN.9/264 (n. 2), art. 9, para. 4.
19
Ibid.
20
See California Code of Civil Procedure, s. 1297.93.
21
See Oregon International Commercial Arbitration and Conciliation Act, ORS § 36.470.
22
See Texas Civil Practice and Remedies Code, s. 172.175, Subchapter G, Chapter 172,
Title 7.
23
See also A. Tanielian, ‘Arbitration Still Best Road to Binding Dispute Resolution’ (2013) 5
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction (discuss-
ing the Federal Arbitration Act and support for arts 9 and 17 in the USA).

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 2 . p r o t e c t i o n u n d e r in t e r i m m e a s u r e s 165

Case law in this area tends to be equally broad – cases from Canada, for
example, illustrate how the arrest of a ship for the purposes of enforcing
security for a possible future arbitral award,24 Mareva (i.e. freezing)
injunctions, garnishment (i.e. seizure of assets before judgment or
award)25 and even an interim order to secure the evidence of a witness26
were all deemed interim measures that could be granted by the courts
under article 9 in support of agreements to arbitrate. However, a leading
Hong Kong case held that a subpoena was not an interim measure of
protection and it was further held that a party seeking the court’s
assistance in such a context would have to proceed under article 27 of
the Model Law instead.27
Other examples include orders authorising the inspection of a prop-
erty to preserve evidence,28 and orders to access premises to retrieve
property.29
Due to their broad and draconian nature, it may be something of a
surprise that Mareva injunctions may nonetheless be granted by the
courts in support of arbitral proceedings. It has, however, been held
that the concept of an ‘interim measure of protection’ under article 9 is
wide enough to cover a Mareva injunction because the order allows a
‘reduction in the risk of the amount of the claim, or part of it, being
dissipated or otherwise put out of the plaintiff’s reach before the resolu-
tion of the dispute’.30
In the United States, it has been held that article 9 ‘confirms that a
party’s request to a court for an interim measure already within its legal
arsenal is compatible with that party’s desire to submit the merits of the
dispute to arbitration’.31 For example, in Stemcor, the Fifth Circuit held
that the Louisiana attachment statute could be used as a basis to seek pre-

24
Frontier Intl Shipping Corp. v. The Owners and all others interested in the ship ‘Tavros’ and
Passport Maritime SA [2000] 2 FC 445.
25
Silver Standard Resources Inc. v. Joint Stock Co. Geolog, Cominco Ltd and Open Type Stock
Co. Dukat GOK [1998] CanLII 6468 (BCCA).
26
Delphi Petroleum Inc. v. Derin Shipping and Training Ltd, Federal Court – Trial Division,
Canada, 3 December 1993.
27
Vibroflotation AG v. Express Builders Co. Ltd [1994] HKCFI 205.
28
Lady Muriel (n. 2).
29
Roko Construction Ltd v. Aya Bakery (U) Ltd [2007] UGHC 31.
30
Katran Shipping Co. Ltd v. Kenven Transportation Ltd [1992] HKLD G9.
31
SCL Basilisk AG, Thorco Shipping A/S v. Agribusiness United Savannah Logistics LLC,
Agribusiness United Inc., Agribusiness United DMCC Inc., Agribusiness United DMCC
(Dubai) LLC, Sonada Agro Ltd (UK) LLC, Judgment, 14 November 2017, 11th Cir., Case
No. 16–15535 (on appeal from SD Ga), 17. See also ibid., 14–15 (finding that art. 9 ‘reflects
the policy that a party’s resort to a court for an order to preserve assets (in the event of

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 166 article 9 : interim meas ures

award attachment, by finding that: ‘[r]eading Louisiana law to allow for

pre-suit attachment in aid of arbitration makes sense of the statutory
scheme as a whole because other provisions of Louisiana law assume that
some state-law preliminary remedies are available to aid arbitration’.32

2.1 ‘Interim’
It has been held that applications ought to be denied by the courts
where the measure sought is not of an interim nature. In Relais
Nordik v. Secunda Marine Services Ltd,33 the court refused an
application for mandatory compliance with the terms of the agree-
ment as such an order would essentially have decided the substance
of the dispute that was subject to arbitration. In that case, the
applicant was in fact seeking to have the merits of its claim adjudi-
cated immediately. Similarly, in Frontier Intl Shipping,34 an
application for an award of costs was denied by the court as an
award of this nature was not considered an interim measure of
protection under article 9. Specifically, an award of costs to be
collected immediately without any determination on the merits was
incapable of being characterised as interim protection because it was
found to merely amount to a payment and was thus neither ‘interim’
nor ‘protective’ in nature.
An order requiring details of a party to be provided or disclosed was
equally not categorised as an interim measure of protection; the same
was true in respect of an order permitting inspection unless the party
would suffer serious and irreversible damage were the order not to be
granted.35
Hence, from the cases available, it appears that the essence is embodied
in the terms ‘interim’ and ‘protection’, such that the order must be one of

arbitral victory) or to protect trade secrets (in the course of arbitral discovery) is
compatible with having the merits of a dispute determined in an arbitral forum’).
32
Stemcor USA Inc. v. CIA Siderurgica Do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), 379.
See also Everspeed Enters. Ltd v. Skaarup Shipping Intl, 754 F. Supp. 2d 395 (D. Conn.
2010), 405 (finding that it had ‘jurisdiction and authority to grant injunctions and
provisional remedies in the context of pending arbitrations, including international
arbitrations’ under Connecticut’s pendente lite statute).
33
(1988), 24 FTR 256, Federal Court – Trial Division, Canada, 19 February 1988.
34
See n. 24.
35
See China Ocean Shipping Co., Owners of the M/V Fu Ning Hai v. Whistler Intl Ltd,
Charters of the M/V Fu Ning Hai, Hong Kong Court of First Instance judgment (24 May
1999), unrep.; Consolidated Projects Ltd v. The Owners of the Tug .De Ping., unrep.

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 3. gra n t o f in te ri m m ea s u re b y co u r ts 167

a protective nature and that it is something done pending final determi-

nation of the issues on the merits.36

3. Grant of Interim Measure by Courts

A general principle that may be gleaned from existing case law on article
9 appears to be that courts will exercise their discretion sparingly37 and
grant interim measures cautiously.38 Circumstances in which the courts
may be more willing to grant interim measures of protection include
where the arbitral tribunal does not have the power to grant all the relief
that is sought under a single application,39 and particularly where the
arbitral tribunal has not yet been constituted40 – although in the latter
case, it is possible that while the supervising court will recognise its own
broad jurisdiction to award interim measures, it may decline to issue the
injunction sought as the arbitral tribunal would be better positioned to
review the merits of the dispute. For example, section 12A(6) of the
Singapore International Arbitration Act provides that:
In every case, the High Court or a Judge thereof shall make an order …
only if or to the extent that the arbitral tribunal, and any arbitral or other
institution or person vested by the parties with power in that regard, has
no power or is unable for the time being to act effectively.41

The criteria applied by the courts for the grant of interim measures of
protection will depend on the relevant civil procedure provisions and

36
See e.g. Tavros (n. 24), where the court held that a final cost order was neither interim nor
protective within the meaning of art. 9. The court stated that ‘interim protection is
“interim” in that it is something done pending final determination of the issues on the
merits’.
37
Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd [1998] 4 HKC 347, 355 (where
Findlay J held that ‘[t]he legislature has provided for the intervention of the courts, but, in
my view, this jurisdiction should be exercised sparingly, and only where there are special
reasons to utilise it. A special reason would be where the arbitral tribunal does not have
the power to grant all the relief sought in a single application’); NCC Intl (n. 2), [2008] 2
SLR(R) 565, para. 53 (holding that ‘[t]he court will intervene only sparingly and in very
narrow circumstances, such as where the arbitral tribunal cannot be constituted expe-
diently enough, where the court’s coercive enforcement powers are required or where the
arbitral tribunal has no jurisdiction to grant the relief sought in the matter at hand’).
38
Transorient Shipping Ltd v. The Owners of the Ship or vessel ‘Lady Muriel’, Hong Kong
High Court judgment (27 March 1995), unrep.; (1995) 10(7) International Arbitration
Report J-1.
39
Leviathan Shipping (n. 37).
40
TLC Multimedia Inc. v. Core Curriculum Technologies Inc. [1998] CanLII 3901 (BCSC).
41
Cap. 143A.

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 168 article 9 : interim meas ures

other tests for the particular measure in the relevant jurisdiction. The
Zimbabwe Arbitration Act 1996, as cited above, is an example of where
requirements have been added in the implementation of article 9 for the
grant of interim measures, including the absence of an arbitral tribunal,
its lack of competence or urgency of the matter. In African Mixing
Technologies Ltd v. Canamix Processing Systems Ltd, the Supreme
Court of British Columbia held that while it had jurisdiction to order
interim measures in respect of an arbitration seated in South Africa, it
rejected the claimant’s application finding that there was no evidence
indicating that the arbitral tribunal could not order the relief requested,
whose order could subsequently be enforced in Canada.42

4. Defining ‘Interim Measure of Protection’

There was no definition of the term ‘interim measure of protection’
under article 9, which, as the previously discussed case law shows, left
much room for discretionary interpretation and determination by the
forum courts. The same is also true with regard to whether or not the
measures sought fell within or outside the ambit of article 9.
Although the wording of article 9 was not altered in the 2006 amend-
ment of the Model Law, a new definition of ‘interim measure of protec-
tion’ was introduced under article 17. While the amended Model Law
(2006) provides a clear definition and scope of interim measures of
protection under article 17(2), article 17 and the new additions to the
Model Law following article 17 concern interim measures of protection
granted by arbitral tribunals instead of interim measures granted by the
courts.
Article 9 remains a statement of a principle, and as noted above, was
not intended to provide guidance as to the conditions under which
interim measures of protection may be granted by the courts, nor list
the interim measures which might possibly be granted by the court, nor
set out any regulations or rules which the court ought to have in mind
when granting such interim measures of protection. In Pathak v. Tourism
Transport Ltd, the New Zealand High Court observed that article 9(1) of
Schedule 1 of the New Zealand Arbitration Act (as then in force) (the
legislative counterpart to article 9 of the Model Law) authorised the court
‘to act in aid of and to assist the arbitral process by ordering interim

42
African Mixing Technologies Ltd v. Canamix Processing Systems Ltd, Supreme Court of
British Columbia (First Instance) (2014) BCSC 2130.

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 4 . d e fin i n g ‘interim m easure of protection ’ 169

measures of protection which an arbitral tribunal, cannot, for practical or

legal reasons, order’.43
By contrast, such provisions are set out under the new articles added to
the Model Law in 2006, for example under article 17J and 17(2). This was
emphasised in a Singapore Court of Appeal case, namely that article 9
itself does not provide any positive guidance on the granting of interim
measures of protection by the courts, and it merely declares the principle
of compatibility between an agreement to arbitrate a dispute and a
request of an interim measure of protection from the courts.44 This
thus raises the question of whether or not the definition of ‘interim
measure’ under the revised article 17 can and ought to be applied to
article 9.
A review of the protective measures that have previously been granted
by the courts under article 9 demonstrates that such measures readily fall
within the definition of ‘interim measure’ under the new article 17.
Similarly, where the courts declined to grant applications, the measures
sought would have fallen outside of the definition of ‘interim measure’
under article 17. It is evident that even though the definition of ‘interim
measure’ encompasses those measures granted by an arbitral tribunal, it
may be usefully applied to interim measures granted by the courts.
The application of the definition to both articles 9 and 17 offers several
advantages. Where national courts might previously have had to look to
domestic law for guidance as to what measures fall within and outside the
ambit of article 9, a definition under article 17 leaves far less doubt.
Second, the uniform application of the definition not only ensures that
there is consistency between what the courts and arbitral tribunals con-
sider to be interim measures, but also ensures that even across jurisdic-
tions there will be greater uniformity in such measures. Given the
importance of such measures to the effectiveness of arbitration, such
consistency and predictability can only serve to inspire wider confidence
in the arbitral process.45

43
Pathak (n. 2), para. 40. See also Marnell Corrao Associates Inc. v. Sensation Yachts Ltd
(2000) 15 PRNZ 608, para. 74 (where the New Zealand High Court found that art. 9 of
Schedule 1 was ‘limited to “interim measures of protection” which the arbitral tribunal …
cannot order in time to give necessary protection’).
44
Swift-Fortune Ltd v. Magnifica Marine SA [2006] SGCA 42.
45
S. Ferguson, ‘Interim Measures of Protection in International Commercial Arbitration:
Problems, Proposed Solutions, and Anticipated Results’ (2003) 12 Currents Intl Trade
LJ 55.

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 170 article 9 : interim meas ures

Even so, it is suggested here that this also potentially raises the issue of
whether or not by reading article 9 consistently with the definition under
article 17, the power of the courts to interpret the principle of compat-
ibility is fettered. As mentioned above, the power of the courts to grant
interim measures may generally be considered wider than that of an
arbitral tribunal, particularly as regards third parties to arbitration. If
article 9 is to be read consistently with the definition under article 17, it
raises the issue of whether or not the definition in the context of article 9
is unnecessarily restrictive, given the list of orders set out under article 17,
which must be compared with interim measures that might be available
from courts of different jurisdictions. Further potential issues may also be
caused in reading the two articles consistently in respect of jurisdictions
where such measures may not be available or granted by the courts.
If the term ‘interim measure’ under article 9 is not to be read consis-
tently with the definition under article 17, however, this may lead to a
great deal of confusion as to whether interim measures under the two
articles overlap, and what forms of interim measure might be granted by
the court, but not by an arbitral tribunal, and vice versa.
The issue may arguably be resolved by the new article 17J of the Model
Law. The power of the courts in respect of interim measures for arbitral
proceedings are the same as those it would exercise in court proceedings.
This reflects the drafting of article 9 with the aim of not overburdening
the provisions of the Model Law and instead leaving it to member States
to implement the court’s powers of interim measures in arbitration in a
manner consistent with domestic law. At the same time, this provision is
also consistent with the principle that has emerged from the case law on
article 9, whereby although the court has a wide discretion and concur-
rent jurisdiction with an arbitral tribunal, such powers will usually be
exercised carefully, bearing in mind the needs of the arbitration itself.46

5. Comparison of Article 9 with Article 17

Both article 9 and article 17 of the Model Law address the issue of interim
measures of protection – article 9 is concerned with court-ordered
interim measures, while article 17 deals with interim measures issued
by an arbitral tribunal. Unlike article 17, article 9 does not expressly
empower a court to order interim measures in support of arbitral pro-
ceedings. It merely declares that the granting of a party-requested interim

46
Transorient Shipping (n. 38); TLC Multimedia (n. 40).

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 5. comparis on of article 9 with arti cle 1 7 171

measure by a domestic court is not incompatible with an agreement to

arbitrate disputes between the parties. Article 9 is also silent on the
requirements of granting such interim measures, as well as the types of
available interim measures.47 As discussed above, such matters are
usually dealt with under the relevant domestic law, and there is much
room for interpretation by local courts. Although article 17(2) provides a
detailed definition of the term ‘interim measure of protection’, whether
the same applies to court-ordered interim measures under article 9
remains in doubt (as discussed above) because article 17 is principally
concerned with tribunal-ordered interim measures, and there may be
some differences between those measures and the measures available for
the courts to order in respect of court proceedings that are applicable to
arbitral proceedings. Pre-2006 case law had suggested that article 9
prevails over article 17 due to the limits of the application of article 17
in contrast with the general principle expressed in article 9.48
The key advantage court orders hold over tribunal-ordered interim
measures is that the tribunal only has a binding power over the parties to
arbitral proceedings, whereas court-ordered interim measures may be
issued against third parties who are not involved in the arbitral proceed-
ings. To a large extent, the jurisdiction of an arbitral tribunal is depen-
dent on the parties’ will and consent. As the tribunal has no enforcing
power, tribunal-ordered interim measures may be difficult to enforce or
uphold in the absence of the parties’ cooperation. Ultimately, the request-
ing party may have to resort to court enforcement, or court-ordered
interim measures, which are fully enforceable within the relevant juris-
diction. Certain arbitration laws (in line with article 17H of the Model
Law) also allow for the embodiment of tribunal-ordered interim mea-
sures into court judgments. For example, section 61 of the Hong Kong
Arbitration Ordinance provides as follows:

61. Enforcement of Orders and Directions of Arbitral Tribunal

(1) An order or direction made, whether in or outside Hong Kong, in

relation to arbitral proceedings by an arbitral tribunal is enforceable

47
D. Bucy, ‘How to Best Protect Party Rights: The Future of Interim Relief in International
Commercial Arbitration under the Amended UNCITRAL Model Law’ (2010) 25 Am. U.
Intl L. Rev. 579 (noting that art. 9 ‘lacks clear guidance on the courts’ role in ordering such
measures once arbitral proceedings are initiated’).
48
Trade Fortune Inc. v. Amalgamated Mill Supplies Ltd [1994] CanLII 845 (BCSC).

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 172 arti cle 9 : interim measures

in the same manner as an order or direction of the Court that has the
same effect, but only with the leave of the Court.
(2) Leave to enforce an order or direction made outside Hong Kong is
not to be granted, unless the party seeking to enforce it can demon-
strate that it belongs to a type or description of order or direction that
may be made in Hong Kong in relation to arbitral proceedings by an
arbitral tribunal.
(3) If leave is granted under subsection (1), the Court may enter judg-
ment in terms of the order or direction.
(4) A decision of the Court to grant or refuse to grant leave under
subsection (1) is not subject to appeal.
(5) An order or direction referred to in this section includes an interim
measure.49
Initially, the draft Model Law expressly allowed a party to request a court
to render assistance in the execution of such measures where the need
arose.50 However, this statement was not included in the final draft of the
Model Law because the Working Group was of the opinion that this
would be unlikely to be accepted by many States.51
As discussed above, under article 9, the words ‘interim measure of
protection’ may potentially denote a wider range of possible measures
than those under article 17, particularly in the context of article 17J.
Where the court considers it appropriate, the court may order interim
measures in relation to matters beyond the subject matter of the dispute
being arbitrated.52 One example may be where a court issues measures of
protection beyond the scope of an arbitral tribunal’s jurisdiction where
there is a need to secure assets in order to avoid endangering the potential
outcome of other non-arbitral proceedings.53
This, however, is not to downplay the significance of the new article 17
in comparison to article 9. It may be more efficient, for example, to seek
interim measures issued by a tribunal in comparison to those ordered by a
court. In light of the relevant case law setting out the position that the
court’s power to order interim measures in support of an arbitration
should be exercised with care, it may well be easier to convince an arbitral
49
Cap. 609 (emphasis added).
50
UNCITRAL, Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (14
December 1982), Pt C, arts V and XIV (hereinafter, ‘Second Draft’).
51
UN Doc. A/CN.9/245 (n. 9), para. 72.
52
UN Doc. A/40/17 (n. 16), para. 168.
53
P. Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model
Law Jurisdictions (Sweet & Maxwell, 2010), para. 4A-019.

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 6 . i nt e r i m me a s u r e s ou t o f j u r i s d i c t i o n 173

tribunal to issue an interim measure, particularly as the arbitral tribunal

may be in a better position to assess the merits of the matter at hand and is
already familiar with the circumstances.54 As such, the new article 17 plays
an important role in lending greater clarity to the empowerment of arbitral
tribunals to exercise such power in respect of interim measures, despite the
potential difficulties of enforcement when compared with court-ordered
interim measures.55 It should therefore be clear that courts are increasingly
ready to assist arbitrations in this way even though they may remain
cautious with the actual exercise of their powers. The introduction of the
new article 17J in the 2006 version of the Model Law should further remove
any reluctance local courts may entertain in this regard.
It remains to be seen whether or not the absence of a definition of
‘interim measures’ will lead to reliance by the courts on the new defini-
tion under article 17 for guidance, even though article 17 deals with
interim measures granted by tribunals rather than the courts. It is
suggested here that the issue needs to be approached with some care, so
as not to unnecessarily limit or broaden the scope of interim measures
normally available to be sought from domestic courts in aid of arbitra-
tion.56 In view of the potential confusion this may cause, it may be
necessary in future to examine with greater care the types of interim
measures that may be more appropriately issued by the courts, for
example, against third parties, or prior to the formation of an arbitral
tribunal, and to limit the scope of this article (and the interference of the
courts in the arbitral process) in preference to tribunal-ordered interim
measures under the 2006 amendments to the Model Law. Consideration
of this issue may well be informed by how cases under the amended
provisions of article 17 proceed, including whether or not the enhanced
material on tribunal-ordered interim measures leads to a reduction in the
number of applications for interim measures applied for before the
courts, as one commentator has suggested would be the likely conse-
quence of the 2006 amendments.57

6. Interim Measures Out of Jurisdiction

By virtue of article 1(2) of the Model Law, the principle enshrined in
article 9 applies regardless of whether the application is made to a court of
54
Ibid., para. 4A-020.
55
Ferguson (n. 45).
56
See also Bucy (n. 47), pp. 579–609.
57
Ferguson (n. 45).

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 174 article 9 : interim measures

a Model Law State or to a court of another State.58 The principle under

article 9 should also apply even if the place of arbitration is undetermined
or located in a foreign jurisdiction.59 As such, the scope of application of
article 9 is potentially wider than most of the provisions in the Model
Law, as it is exempt from the restriction of having the place of arbitration
located in the territory of an enacting State. Numerous cases have illu-
strated this point when concerned with disputes that had been submitted
to foreign arbitrations or where the arbitral clauses providing that orders
should be left to arbitral tribunals were involved.60
The starting point in respect of interim measures of protection is to
ensure that the measure may be executed in the jurisdiction of the court
from which the measure is sought. In this regard, Frontier Intl Shipping61
is illustrative. In that case, the court declined to award security for a
counterclaim in arbitration as there were no assets within the jurisdiction
that the court might move against for the purposes of enforcement, and
the court would not make the stay of court proceedings on the matter
conditional upon such a security.
Such a case raises the issue of whether or not parties to arbitration may
expect to be successful seeking an interim measure of protection from a
court outside of the jurisdiction where the arbitration is seated. The
evolution of case law in Hong Kong on this issue may well demonstrate
the development of the attitudes of the courts in this regard. The case of
Katran Shipping Co. Ltd62 in 1992 established that arbitration would be
considered international if a substantial part of the obligations of the
commercial relationship are to be performed outside of Hong Kong. This
was followed by Interbulk63 in the same year, where it was held that Hong
Kong courts have no jurisdiction to grant interim relief where a valid
arbitration agreement provides for arbitration outside of Hong Kong,
58
See Model Law, art. 1(2), which states that: ‘The provisions of this Law, except articles 8, 9,
17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in the territory of this
State.’
59
Front Carriers Ltd v. Atlantic & Orient Shipping Corp. [2006] SGHC 127; Econ Corp. Intl
Ltd v. Ballast-Nedam Intl BV [2002] SGHC 293; Amican Navigation Inc. v. Densan
Shipping Co. [1997] CanLII 6263 (CF); Tavros (n. 24); Delphi Petroleum (n. 26); TLC
Multimedia (n. 40); Trade Fortune (n. 48).
60
See, for instance, Interbulk (Hong Kong) Ltd v. Safe Rich Industries Ltd (1992) 2 HKLR
185; Silver Standard Resources Inc. v. Joint Stock Co. Geolog [1998] BCJ No. 2887;
Transorient Shipping (n. 38); Transfield Philippines Inc. v. Luzon Hydro Corp.,
Philippines Supreme Court judgment (19 May 2006).
61
See n. 24.
62
Katran (n. 30).
63
Interbulk (n. 60).

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 6 . i nt e r i m me a s u r e s ou t o f j u r i s d i c t i o n 175

even though the court considered it open to argument that it might be

more ready to assist a party to an international arbitration agreement.
However, in 1995, the court held in Lady Muriel64 that Hong Kong courts
have an inherent jurisdiction to issue interim measures of protection in
aid of foreign arbitrations, because of the exception to the principle of
non-intervention created under article 9 of the Model Law. The Hong
Kong Arbitration Ordinance now provides that:
Leave to enforce an order or direction made outside Hong Kong is not to
be granted, unless the party seeking to enforce it can demonstrate that it
belongs to a type or description of order or direction that may be made in
Hong Kong in relation to arbitral proceedings by an arbitral tribunal.65

This is similar to section 12A(3) of the Singapore International Arbitration

Act. In Singapore, in Swift-Fortune Ltd v. Magnifica Marine SA, the High
Court had set aside a Mareva injunction, finding that court-ordered
interim measures under the Singapore International Arbitration Act
were intended to apply to arbitrations seated in Singapore and thus did
not apply to arbitrations seated outside Singapore.66 This finding was
upheld on appeal.67 However, in Front Carriers Ltd v. Atlantic & Orient
Shipping Corp., the High Court held that Singaporean courts had the
power to grant interim measures (including a Mareva injunction) in aid
of arbitrations seated outside Singapore.68 In 2009, the International
Arbitration Act was amended, with section 12A now providing that a
court has the power to order interim measures.69 The position in
Singapore is therefore very similar to that applied in Hong Kong, whereby
court-ordered interim measures are available for ‘foreign’ arbitrations, but
such power is discretionary. Overall, and bearing in mind the caveats
above, the evolution of legislation and the courts’ position on granting
interim measures in respect of foreign arbitrations reflect an increasingly
supportive attitude towards arbitration, even where such arbitrations take
place outside of the court’s jurisdiction.

64
Transorient Shipping (n. 38).
65
Cap. 609, s. 61(2).
66
[2006] 2 SLR(R) 323 (Prakash J.).
67
Swift-Fortune (n. 44).
68
[2006] 3 SLR(R) 854 (Ang J) (noting, however, that under s. 4(10) of the Civil Law Act
(Cap. 43, 1999 rev. edn), the court would have such power only where it had personal
jurisdiction over the defendant and where ‘there is a recognisable justiciable right
between the parties’ under Singapore law).
69
Cap. 143A.

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 176 article 9 : i nterim measures

7. Contracting Out of Article 9

Article 9 is silent regarding the possibility of contracting out of it, and it is
not clear from the wording of the text whether an arbitration agreement
to exclude court-ordered interim measures can be valid. The advantages
of such an exclusion in an arbitration agreement are that the dispute
resolution procedure stays genuinely confidential, and even before the
arbitral proceedings commence, any possible interim measures shall be
administered discreetly outside of the judicial system.70
It was indicated in the travaux préparatoires that article 9 should
neither be construed as precluding such exclusion agreements, nor as
positively endorsing the use of such exclusions.71 In other words, article 9
is to be read as taking a neutral stance on this issue. It should be noted
that article 9 is directed at the courts instead of the parties. It only sets out
a broad principle that all interim measures of protection that may be
granted by local courts under their respective procedural laws are com-
patible with an agreement to arbitrate a dispute. It should thus be possible
to contract out of article 9 if a court attaches due weight to the overriding
principle of party autonomy – the recurrent theme of the Model Law. As
has been held by the Delhi High Court where the parties agreed to refer
their dispute to arbitration in Singapore and, for subsidiary matters, to
confer upon the courts in the Singaporean jurisdiction to resolve disputes
arising out of their arbitral agreement, the parties had validly excluded
the power to grant interim measures of protection from exercise by the
Indian courts in aid of their arbitration (which was, for those purposes,
considered a foreign arbitration).72
The implementation of article 9 by member States, or even other
arbitration rules, may also serve to limit the application of the principle
embodied in article 9. For example, although article 25.3 of the LCIA
Arbitration Rules similarly declares that applications for interim mea-
sures to local courts are permissible,73 it expressly states that the parties
are not entitled to apply for interim measures in relation to any order for
security of costs when the arbitration is underway, thus removing one
type of interim measure of protection from use by the parties where those
rules are applied.74

70
Binder (n. 53), para. 2–100.
71
UN Doc. A/40/17 (n. 16), para. 97.
72
Max India Ltd v. General Binding Corp., Delhi High Court, India (16 July 2009).
73
See LCIA Arbitration Rules (2014), art. 25(3).
74
Ibid., art. 25(4).

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 7. contra cting out of a rticle 9 177

In addition, when the parties have consented to the application of

expedited arbitration rules or emergency arbitration rules, court-ordered
interim measures may not be available to the parties if such interim or
urgent relief could have been granted by an expedited tribunal or an
emergency arbitrator. This issue has recently arisen in an LCIA arbitra-
tion seated in a non-model law jurisdiction (England). Specifically, in
Gerald Metals SA v. Timis,75 the English High Court had to determine
whether it had the power to grant interim relief (in the form of a world-
wide freezing order) despite the fact that interim relief could have instead
been granted by an expedited tribunal or an emergency arbitrator. In this
respect, it should be noted that the differences between article 9 of the
Model Law and section 44 of the English Arbitration Act are significant,
particularly section 44(3) and (5). Unlike article 9, section 44(3) requires
that the case is urgent and under section 44(5) that the arbitral tribunal or
other institution or person is either not competent or unable to act
effectively. In Gerald Metals, the applicant had previously applied to
the LCIA Court ‘for the appointment of an emergency arbitrator, with
a view to seeking emergency relief’, but the ‘LCIA rejected Gerald Metals’
application for the appointment of an emergency arbitrator’.76 Gerald
Metals then sought to obtain a freezing injunction from the English High
Court by invoking section 44 set out above. However, the court ruled that
it did not have the power to grant interim relief because Gerald Metals’
request for an emergency arbitrator under the LCIA Rules had already
been considered and rejected by the LCIA Court.
This decision of the English High Court in Gerald Metals is significant
because it may further limit the application of article 9 where the parties
have consented to the application of expedited arbitration rules or emer-
gency arbitration rules.

75
[2016] EWHC 2327 (Ch).
76
Ibid., para. 13.

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