Grounds for denying an application for interim measures during an Arbitration:

When considering an application for interim measures, arbitrators should take into account the factors listed below, if any of them apply, the request for the interim measure(s) may be denied.

1. Arbitrators may decline an application for an interim measure in any of the following situations: 

i) the measure sought is incapable of being carried out;

Arbitrators should consider whether the interim measure is capable of being carried out. Otherwise, it may be a waste of time and money to grant such a measure.

ii) the measure sought is incapable of preventing the alleged harm;

Arbitrators should only grant measures that are capable of preventing the alleged harm. If the specific measures applied for are not capable of preventing the alleged harm, arbitrators may, on their own motion, grant a different and effective type of interim measure that is more appropriate. In doing so arbitrators should be very careful not to go beyond what has been requested.

iii) the measure sought is tantamount to final relief;

Arbitrators should consider denying an application that is, in fact, a disguised application for a final award on the merits. For example, where the subject matter of the dispute between the parties relates to the storage charges of a warehouse where goods are kept and the main claim requests a transfer of such goods to a different place, an interim measure having the same effect (i.e. transfer of the goods), will be tantamount to a final relief because it will involve a decision on one of the main claims.

iv) the measure sought is applied late and without good reason for the delay.

Arbitrators should consider denying applications for interim measures which are made late and without good reason being provided for the delay. Arbitrators need to be satisfied that the applicant has made the application promptly, i.e. within a reasonable time of becoming aware of the necessary facts.

2. Arbitrators may deny a request for an interim measure where the opposing party declares, or undertakes, in good faith that it will take steps to render the interim measure unnecessary. 

Instead of granting interim measures, arbitrators may decide it is more appropriate to accept an undertaking made in good faith by the party against whom the measures are sought. In such circumstances, arbitrators may decide on the application solely based on the undertaking offered by the opposing party without considering whether or not the requirements for an interim measure have in fact been satisfied.

-courtesy CIArb

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