Interim Measures of Protection

Model law Arts. 9 and 17

Interim Measure of Protection

- May be issued to prevent or minimize any disadvantage resulting from delay in the hearing and
determination of the dispute and the implementation or enforcement of the award.
- Modus vivendi orders intended to provisionally determine and stabilize the relationship of parties
in a long-term project
- It may also include orders intended to secure evidence which would otherwise be unavailable at
a later stage
*** if a party fails to comply with an interim measure of protection as ordered by the arbitral tribunal,
such failure may be taken into account in the final award and in the assessment of damages to be
included in the award.
*** where the order would require compliance by a third person, not a party to the arbitration, it
should be obtained from the court.
Model Law Articles 9 and 17
- Should be treated as complementary to each other.

POWER OF ARBITRAL TRIBUNAL TO ORDER INTERIM MEASURES

- Subject to contrary agreement of the parties, at the request of a party, an arbitral tribunal has
inherent power to take such interim measures of protection as the arbitral tribunal may consider
necessary in respect to the subject matter of the dispute
- May include but shall not be limited to:
 Preliminary injunction directed against a party
 Appointment of receivers
 Detention, preservation or inspection of property that is the subject of the dispute in
arbitration

Constitution of Written application for interim relief is Order granting or denying

arbitral tribunal transmitted to the arbitral tribunal and the the application for
party against whom the relief is sought interim relief

Written application must describe in appropriate details the:

 Precise relief
 Party against whom the relief is requested
 Ground for the relief
 Evidence supporting the request
Order granting or denying the application shall be binding upon the parties.
Either party may apply with the court for assistance in implementing or enforcing the order.
Court Jurisdiction to Grant Interim Relief
GENERAL RULE: The submission of a dispute to arbitration does not exclude the exercise of
jurisdiction of the court to grant interim measures of protection in aid of
arbitration. (ADR Act Section 28, Model Law Article 17)
RA 876, Section 14: Allows the court to take measures to safeguard and/or conserve any matter
which is the subject of the dispute in arbitration.
ADR Act, Sec. 28 and RA 876, Sec. 14 operate on the same principles:
a. That the arbitrator/s, in the first instance, may, upon application of a party to the arbitration,
grant appropriate relief on an interim basis;
b. That the court of jurisdiction may, upon application of a party to the arbitration, grant an interim
measure of protection which the arbitrator/s do not have the authority to grant or are unable to
act effectively upon; and
c. That the exercise of jurisdiction of the court should be in aid of the arbitral process.
Sections 28 and 29 of the ADR Act
- Make clear that even before the appointment of the sole arbitrator or the constitution of the
arbitral tribunal, if the need for interim relief arises, application may be made with the court by
the party adversely affected.
*** When the order of the tribunal directs or enjoins the performance of an act by a third person,
who is not bound to comply with it, the application is made with the court to enforce the arbitral
tribunal’s order.

Role of the RTC

Sections 28 & 29 of the ADR Act:
- Do not confer authority upon the court to review the determination of the arbitral tribunal
- The right of a party to renew the application with the court is open to question when:
 the tribunal fails or refuses to act on an application for interim relief because it finds the
application unmeritorious; or
 the tribunal refuses or fails to act upon an application without regard to the intrinsic merit
of the application
- The order of the arbitral tribunal would be interlocutory and would not be subject to appeal.
*** There must first be an order of the arbitral tribunal granting the interim relief and the court’s
assistance is invoked for the purpose of implementing or enforcing that order. (Section 29)
When to File
Rule 5 of Special ADR Rules:
An application for interim relief shall be made in the form of a petition filed with the court
a. Before arbitration is commenced,
b. After arbitration is commenced but before the constitution of the arbitral tribunal, or
c. Even after constitution of an arbitral tribunal and at any time during arbitral proceedings, but at
this stage, only to the extent that the arbitral has no power to act or is unable to act effectively.
*** A party cannot ask the court to enjoin arbitration proceedings as an interim relief in a proceeding
under Rule 3 Special ADR Rules.

Where to File
An application for the grant of interim relief under rule 5 may be filed with any Regional Trial
Court which has jurisdiction over any of the following places:
a. Where the principal place of business of any of the parties to the arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are being performed, threatened to be performed,
or not being performed; or
d. Where the real property subject of the arbitration, or a portion thereof is situated.
*** Where a Rule 3 petition is pending before a Regional Trial Court, a party thereto may file an
application for interim relief before the same court.
- An application before another court or in another case will be treated as and initiatory pleading
to which shall be appended a certification against forum shopping.

Form and Contents of Petition

The petition must be verified and it must state the following:
a. The fact that there is an arbitration agreement;
b. The fact that the arbitral tribunal has not been constituted, or if constituted, has no power to act
or would be unable to act effectively;
c. A detailed description of the relief sought;
d. The grounds relied upon for the allowance of the petition.
*** The measures of protection that a court may grant includes garnishment of funds in the custody
of a bank or a third person.
Grounds for Granting Interim Relief
a. The need to prevent irreparable loss or injury;
b. The need to provide security for the performance of any obligation;
c. The need to produce or preserve evidence; or
d. The need to compel any appropriate act or omission.

Type of Interim Measure of Protection Court may Grant

a. Preliminary injunction directed against a party to arbitration;
b. Preliminary attachment against property or garnishment of funds in the custody of a third person;
c. Appointment of a receiver.
d. Detention, preservation, delivery or inspection of property; or
e. Assistance in the enforcement of an interim measure of protection granted by the arbitral tribunal
which the latter cannot enforce effectively.
Notice and Hearing
Summary proceeding - in order to provide speedy relief to a party who files a petition for the grant of an
interim measure of protection.
- Shall be conducted, as far as practicable, in one day and only for purposes of clarifying facts.

Verified Petition – a Court will Court will allow

copy served upon determine if respondent to file a
respondent before it is sufficient in form comment or opposition to
filed in court and substance the petition within 15 days

Court shall set the case for There shall be attached to the
hearing not later than 5 days petition, opposition or comment
from lapse of period for filing the documents supporting the
comment or opposition allegations in the pleading

Court shall hear the Court may render judgment only on the basis of the
parties only if there is a allegations substantiated by supporting documents and
need for clarification or limited to what is prayed for therein if parties file opposition
further argument or comment on or before the day of hearing.

Temporary Order of Protection, when Issued

Special ADR Rules - an ex parte preliminary order may be granted when the petitioner alleges in the
petition that there is an urgent need to either:

a. Preserve the property

b. Prevent the respondent from disposing or concealing the property or
c. Prevent the relief prated for from becoming illusory because of prior notice and the court finds
that the reasons/s given by the petitioner are meritorious

*** The court shall issue an ex parte temporary order of protection, which shall be valid only for 20
days, and require the petitioner to post a bond, within five days from receipt of the order, to
answer for any damage that respondent may suffer as a result of the court’s order.

Possible Grounds for Objection

a. The validity of the arbitration agreement which results in a lack of jurisdiction of the arbitral
tribunal to issue the questioned order; or
b. Independently of the validity of the arbitration agreement, that the arbitral tribunal did not have
jurisdiction to issue the interim measure; or
c. That it was issued by an arbitrator who was appointed without proper notice to the complaining
party; or
d. That it was issued without proper notice to the complaining party of the arbitration proceedings;
or
 e. That the complaining party was denied the opportunity to be heard on the issue of interim relief;
or
f. That the interim measure itself was inherently invalid because it is alleged to be contrary to law
or public policy; or
g. That the evidence did not justify the grant of the measure nor the nature of the interim relief nor
its scope; or
h. That on the basis of supervening facts after the issuance of the interim order, it should be
rescinded or substantially modified; or
i. That the arbitral tribunal gravely abused its discretion in denying an application by the
complaining party to provide security, such as a counter bond, the purpose of which was to avoid
the issuance of the interim relief prayed for; or
j. That the arbitral tribunal gravely abused its discretion requiring counter-security as a condition
for refraining from issuing the interim relief prayed for in an amount or of such nature which in
the circumstances appears unreasonable; or
k. That the interim relief granted by the arbitral tribunal was grossly disproportionate to or
unnecessary in light of the assigned cause for which it was issued; or
l. That the security required by the arbitral tribunal for the grant of interim relief is inadequate.

*** Duty of the court, after hearing the petition, is to balance the relative interests of the parties and
inconveniences that may be caused and on that basis resolve the matter within 30 days

a. From the submission of the opposition, or

b. Upon lapse of the period to file the same, or
c. Form the termination of the hearing.

*** The court shall not deny an application for assistance in implementing an interim order of
protection ordered by an arbitral tribunal on any of the following grounds:

a. The arbitral tribunal granted the interim relief ex parte; or

b. The party opposing the application found new material evidence, which the arbitral tribunal has
not considered in granting the application, and which, if considered, may produce a different
result; or
c. The measure of protection ordered by the arbitral tribunal amends, revokes, modifies or is
inconsistent with an earlier measure of protection issued by the court.

*** The court shall refer the matter back to the arbitral tribunal for appropriate determination if the
court finds there is sufficient merit in the opposition to the application based on newly discovered
evidence.

*** The court may not change the nature or amount of the security required by the arbitral tribunal
if the security required by the arbitral tribunal is determent by the court to be either exorbitant
or insufficient.
*** The court shall defer action on any pending application for an interim measure of protection filed
by a party to an arbitration agreement arising form or in connection with a dispute hereunder
upon being informed that an arbitral tribunal has been constituted pursuant to such agreement.

The court may act upon such petition only if it is established by the petitioner that the arbitral
tribunal has no power to act on any such interim measure of protection issued by the arbitral
tribunal which it is unable to effectively enforce.

Problems Arising from Concurrence of Jurisdiction to Grant Interim Relief

 Whether the relief granted by the court before an arbitral tribunal is constituted may be set aside
or modified by the arbitral tribunal thereafter

Special ADR Rules:

In case of a possible conflict between an interim measure of protection issued by the court and
that issued by the arbitral tribunal, the court shall refer the matter to the arbitral tribunal which
shall have authority to decide such question.

Any interim measure of protection issued by an arbitral tribunal shall upon its issuance, be
deemed to have modified, amended, revised or revoked on previously issued by the court to the
extent that the court’s order is inconsistent with the tribunal’s order.

Additional Interim Measures that Tribunal May Grant

Section 29, ADR Act

- Allows the taking of measures beyond the ordering the doing or preventing the doing of a certain
act by a party, which indisputably lies within the authority of the arbitral tribunal.

Types of Interim Measures of Protection that a Tribunal or a Court May Grant

- The types of interim measures of protection that an arbitral tribunal may take may be classified
into three groups:

a. Those which are aimed at facilitating the conduct of the arbitral proceedings
 To ensure confidentiality of arbitration proceedings
 Orders for inspection, photographing, preservation, custody or detention of the property
by the tribunal, expert or a party.

b. Those which are aimed at avoiding losses or damages, and measures aimed at preserving the
status quo
 Status quo orders --- they require a party to continue performing a contract or refrain
from taking certain actions prejudicial to the interest of a party during the arbitral
proceedings until the award was made
 c. Those which are aimed at facilitating the enforcement of the award.
 Orders that require that appropriate security be provided such as a bond for the issuance
or injunction or attachment, or for the sale of perishable goods

Issuance of Preliminary Orders

- The arbitral tribunal may only grant a preliminary order if it considers that there is a reasonable
basis for concern that the purpose of the requested interim measure will be frustrated before all
parties can be heard.

- Decision to require security should be left to the discretion of the arbitral tribunal.

Preliminary Order

- Has a narrower purpose that an interim measure.

- It is limited to directing the other party to take no action to frustrate the purpose of the interim
measure of protection granted until both parties can be heard on the matter.
- Consistent with a “stop order” requiring a party to refrain from takin any action that might affect
the position of the parties until both parties had been heard.
- Limited life: 20 days --- the arbitral tribunal cannot extend it beyond this period UNLESS the
preliminary order is converted into an inter partes interim measure.

- Preliminary orders would be in the nature of procedural orders and not of awards and no
enforcement procedure would be provided for preliminary orders in Model Law Article 17.

Form of an Interim Measure of Protection

ADR Act: does not indicate in what form an order granting interim relief should be made.

- If issued in the form of an award, its judicial enforcement may trigger the application of Model
Law Articles 34 or 35
- If issued in the form of a simple order, the issue nevertheless is whether Model Law Articles 35
and 35 may be invoked
Special ADR Rules:

- Do not require that an interim measure of protection issued by the arbitral tribunal should be in
the form of an award
- The interim measure of protection that it issues may be in the form of an order
Cross Border Enforcement
- Not addressed in the Model Law or explicitly in the ADR Act.
GERMAN COURT: may order an interim relief granted by an arbitral tribunal to a party in a foreign
arbitration and may recast it, if necessary, for the purpose of enforcement.
PHILIPPINE COURT: may have no legal obligation to enforce an interim order issued by a foreign
arbitral tribunal unless it is made in the form of an arbitral award, and even that
to be enforceable, should be a final award.

1958 New York Convention

- Requires that it should be a final award and not one which may be revised by the arbitral tribunal.
- An interim order evidently is subject to revision or termination at any time by the arbitral tribunal.