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How Enforceable are Interim Measures? A Study of India, Singapore, Hong Kong and London
Introduction
Interim measures are temporary orders issued by a court or an arbitral tribunal to preserve the status quo, protect assets or evidence, or prevent irreparable harm during a dispute resolution process. Different jurisdictions have different rules and practices regarding the availability, scope and enforceability of such measures. This article will compare and contrast the legal frameworks and recent developments in four major arbitration hubs: India, Singapore, Hong Kong and London. These hubs are chosen because they represent different legal traditions, such as common law (India and England), civil law (Singapore) and mixed law (Hong Kong), which may influence their attitudes towards arbitration and interim measures.
India
Interim measures by arbitral tribunals
Under Section 17 of the Arbitration and Conciliation Act, 1996 (the Act),[1] an arbitral tribunal has the power to order any party to take any interim measure of protection as it deems necessary in respect of the subject matter of the dispute. The tribunal can also require a party to provide appropriate security for such a measure.
Section 17(2) of the Act provides that any interim measure ordered by an arbitral tribunal shall be deemed to be an order of the court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908,[2] in the same manner as if it were an order of the court. This provision was introduced by the 2015 amendment to the Act to enhance the efficacy of interim measures by arbitral tribunals and reduce judicial intervention.
However, Section 17 of the Act only applies to arbitrations seated in India. Therefore, any interim measure ordered by an arbitral tribunal seated outside India cannot be directly enforced in India as there are no relevant provisions in the Act that permit the enforceability of such orders.
Interim measures by courts
Under Section 9 of the Act, a party may apply to a court for any interim measure of protection before, during or after the arbitration proceedings. The court has the same power to grant interim measures as it has for, and concerning, any proceedings before it.
Section 9(3) of the Act states that once an arbitral tribunal has been constituted, the court shall not entertain an application for interim measure unless it finds that circumstances exist that may not render the remedy provided under Section 17 efficacious. This provision was also added by the 2015 amendment to avoid parallel proceedings and ensure that parties seek interim relief from the arbitral tribunal as far as possible.
Section 9 of the Act applies to both domestic and international arbitrations, irrespective of whether the seat is in India or not. Therefore, a party can seek interim relief from an Indian court even if the arbitration is seated outside India, subject to certain conditions.
One such condition is that the interim measure sought from the court must be in respect of any property or asset that is within its jurisdiction. This was clarified by the Supreme Court in Bharat Aluminium Co v Kaiser Aluminium Technical Services Inc [(2012) 9 SCC 552],[3] where it held that Indian courts have no power to grant interim measures concerning foreign-seated arbitrations unless such measures are directed against a person or property within their jurisdiction.
Another condition is that the interim measure sought from the court must not be contrary to any order passed by the arbitral tribunal. This was affirmed by the Delhi High Court in Future Retail Ltd v Amazon.com NV Investment Holdings LLC [(2020) SCC Online Del 1636],[4] where it held that a court cannot grant an interim measure that would negate or render ineffective an order passed by an emergency arbitrator seated outside India.
Emergency arbitration
Emergency arbitration is a mechanism that allows parties to obtain urgent interim relief from an emergency arbitrator before the constitution of the main arbitral tribunal. Many institutional arbitration rules provide for emergency arbitration, such as SIAC,[5] ICC,[6] LCIA,[7] HKIAC,[8] etc.
However, emergency arbitration is not recognized under the Act and there is no provision for enforcement of emergency arbitrator orders in India. Therefore, parties who obtain emergency relief from an emergency arbitrator seated outside India may face challenges in enforcing such orders in India.
One option is to apply to a court under Section 9 of the Act for interim relief based on the emergency arbitrator order. However, this may not be a straightforward process as the court may not give due regard to such an order or may even refuse to grant relief on various grounds.
Another option is to request the main arbitral tribunal to convert or confirm the emergency arbitrator order into an interim measure under Section 17 of the Act. However, this may not be feasible if the main arbitral tribunal is not constituted in time or if the emergency arbitrator order is challenged or set aside by a court at the seat of arbitration.
Singapore
Legal framework for the enforcement of interim measures in Singapore
Singapore is a leading arbitration hub in Asia and globally, with a supportive and pro-arbitration legal regime. The International Arbitration Act 1994 (IAA)[9] applies to international arbitrations seated in Singapore, while the Arbitration Act 2002 (AA)[10] applies to domestic arbitrations seated in Singapore.
Both the IAA and the AA empower arbitral tribunals to order interim measures, such as injunctions, security for costs, preservation of evidence, or disclosure of documents. The IAA also allows parties to apply for emergency arbitrator relief before the constitution of the arbitral tribunal.
Under section 12(6) of the IAA and section 28(2) of the AA, parties can seek leave from the Singapore High Court to enforce interim measures granted by arbitral tribunals or emergency arbitrators as if they were orders made by the court. This means that parties can invoke the coercive powers of the court to ensure compliance with the interim measures, such as contempt of court sanctions or attachment of assets.
Conditions and Limitations
However, there are some conditions and limitations for such enforcement:
First, the interim measure must be in the form of an award or another form that satisfies certain requirements under section 2G of the IAA or section 2A of the AA. These requirements include that the interim measure is made in writing, signed by the arbitrator or a majority of them, states the date and place of arbitration, and is delivered to each party.
Second, the court may refuse to grant leave for enforcement if it is satisfied that:
- The interim measure is incompatible with the public policy of Singapore;
- The interim measure has been set aside or suspended by a competent authority;
- The arbitral tribunal or emergency arbitrator had no jurisdiction to grant the interim measure; or
- The party against whom the interim measure is invoked was not given proper notice or was unable to present its case.
Recent developments on enforcement of interim measures in Singapore
In recent years, there have been some notable cases before the Singapore High Court that shed light on some aspects of the enforcement of interim measures in Singapore.
In CXG and another v CXI and others [2023] SGHC 244,[11] the court clarified that parties intending to enforce interim measures granted in Singapore-seated arbitrations do not need to be concerned about the existence of a more or most appropriate forum. The court rejected the defendant's argument that the court should not exercise its jurisdiction to hear an application for enforcement under section 12(6) of the IAA based on the forum non-conveniens doctrine, which allows a court to decline jurisdiction if there is another forum that is more suitable for the dispute. The court held that the forum non-conveniens doctrine does not apply to applications for enforcement under section 12(6) of the IAA, as such applications are not substantive actions but ancillary proceedings that support arbitration.
Enforcement of interim measures in Singapore is generally straightforward and efficient, as long as the interim measures are granted in Singapore-seated arbitrations and comply with the formal requirements under the IAA or the AA. However, parties should be aware of the potential challenges and limitations of enforcement, especially when dealing with foreign-seated arbitrations or interim measures that are not in the form of an award. Parties should also consider the practical implications and costs of enforcement, such as the need to identify and locate the assets or conduct of the other party that are subject to the interim measures.
Hong Kong
The legal framework for interim measures in Hong Kong arbitration
Hong Kong is a leading arbitration hub in Asia and has a modern and pro-arbitration legal framework based on the UNCITRAL Model Law.[12] The Arbitration Ordinance (Cap. 609)[13] governs the conduct of arbitration in Hong Kong and provides for the power of arbitral tribunals and courts to grant interim measures in aid of arbitration.
Under section 35 of the Arbitration Ordinance, an arbitral tribunal may, at the request of a party, grant any interim measure that it considers appropriate. Such interim measures may be in the form of an order or an award. The types of interim measures that an arbitral tribunal may grant include:
- maintaining or restoring the status quo pending the determination of the dispute;
- taking action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
- providing a means of preserving assets out of which a subsequent award may be satisfied; or
- preserving evidence that may be relevant and material to the resolution of the dispute.
Under section 45 of the Arbitration Ordinance, a party to arbitral proceedings (whether seated in Hong Kong or elsewhere) may also apply to the Hong Kong courts for any interim measure that the court has the power to grant. The types of interim measures that the court may grant include:
- injunctions (including anti-suit injunctions);
- orders for inspection, photographing, preservation, custody or detention of property;
- orders for the sale of property;
- orders for taking evidence of witnesses; or
- orders for security for costs.
The court may grant such interim measure before or during arbitral proceedings, or after an award is made but before it is enforced. The court may also grant such interim measure irrespective of whether a similar power may be exercised by an arbitral tribunal under section 35.
The enforcement of interim measures in Hong Kong arbitration
An interim measure granted by an arbitral tribunal seated in Hong Kong is enforceable in Hong Kong with leave of the court under section 61 of the Arbitration Ordinance. The court may refuse to enforce such interim measure only if:
- the interim measure is incompatible with the powers conferred on the court (unless the court decides otherwise);
- the arbitral tribunal's decision concerning the provision of security was not complied with;
- the interim measure was terminated or suspended by the arbitral tribunal or, where so empowered, by the court; or
- there is a ground for setting aside or refusing recognition or enforcement of an award under section 81 (which mirrors Article 34 and Article 36 of the UNCITRAL Model Law).
An interim measure granted by an arbitral tribunal seated outside Hong Kong is enforceable in Hong Kong with leave of the court under section 63B of the Arbitration Ordinance. The court may refuse to enforce such interim measure only if:
- there is not sufficient proof that it was granted by an arbitral tribunal;
- it has ceased to have an effect or has been suspended by an arbitral tribunal or a court;
- it is incompatible with the powers conferred on the court (unless the court decides otherwise);
- it relates to a dispute that is not capable of settlement by arbitration under Hong Kong law;
- its recognition or enforcement would be contrary to public policy; or
- there is a ground for setting aside or refusing recognition or enforcement of an award under section 81.
An interim measure granted by a Hong Kong court in aid of arbitration is enforceable as an order of the court under section 45(6) of the Arbitration Ordinance. A party who fails to comply with such an order may be liable for contempt of court.
The Arrangement between Hong Kong and Mainland China on mutual assistance in interim measures
One of the most significant developments in recent years regarding interim measures in Hong Kong arbitration is the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of Mainland China and Hong Kong (the "Arrangement"), which was signed on 2 April 2019 and came into effect on 1 October 2019.[14]
The Arrangement is a groundbreaking agreement that allows parties to Hong Kong arbitrations to apply directly to Mainland courts for interim measures, and vice versa. This makes Hong Kong the only jurisdiction outside Mainland China that enjoys such a privilege.
The Arrangement applies to institutional arbitrations seated in Hong Kong or Mainland China. The types of interim measures that may be granted by the courts under the Arrangement include:
- property preservation, which means taking measures to prevent the property of a party or relevant person from being transferred, disposed of or dissipated;
- evidence preservation, which means taking measures to prevent evidence from being destroyed or damaged or from being lost; or
- conduct preservation, which means prohibiting a party from taking certain actions or ordering a party to take certain actions.
The procedure for applying for interim measures under the Arrangement is as follows
- Before an arbitral tribunal is formed, a party may apply for interim measures to the court of the place where the property or evidence is situated, or where the conduct is to be performed, by submitting an application letter and relevant supporting documents.
- After an arbitral tribunal is formed, a party may apply for interim measures to the arbitral tribunal, which may then forward the application to the court of the place where the property or evidence is situated, or where the conduct is to be performed.
- The court may require the applicant to provide security for granting the interim measures.
- The court may modify, suspend or terminate the interim measures upon application by any party or per the law.
Hong Kong has a robust and supportive legal framework for obtaining and enforcing interim measures in arbitration, both within its jurisdiction and across borders. The Arrangement between Hong Kong and Mainland China is a remarkable achievement that further strengthens Hong Kong's position as a leading arbitration hub in Asia and beyond.
London
The Legal Framework
The main source of law governing the enforcement of interim measures in London arbitration is the Arbitration Act 1996 (the Act).[15] The Act applies to both domestic and international arbitrations seated in England and Wales or Northern Ireland.
Section 44 of the Act gives the court the power to grant interim measures in support of arbitration, such as injunctions, preservation of evidence, or appointment of receivers. However, this power is subject to two limitations: first, the court can only act if the arbitral tribunal has no power or is unable for the time being to act effectively; and second, the court can only act if the matter is urgent or the application is made with the agreement of the parties or the permission of the tribunal.
Section 66 of the Act allows the court to enforce an arbitral award as if it were a judgment or order of the court. However, this provision only applies to final awards and not to interim measures, unless they are issued in the form of an award.
Therefore, if an interim measure is issued by a tribunal or an emergency arbitrator in the form of an order or a direction, it cannot be enforced under section 66 of the Act. Instead, it may be possible to enforce it under section 44 of the Act, by applying for a similar interim measure from the court. Alternatively, it may be possible to rely on section 37 of the Senior Courts Act 1981,[16] which gives the court general power to grant injunctions.
The Act does not expressly address the enforcement of interim measures issued by foreign tribunals or emergency arbitrators. However, there are some indications that such measures may be enforceable under section 44 or section 37 of the Act, depending on the circumstances and the form of the measure. For example, in Gerald Metals SA v Timis [2016] EWHC 2327 (Ch),[17] the court enforced an interim measure issued by an emergency arbitrator under the LCIA Rules by granting a freezing injunction under section 44 of the Act. In Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3704 (Comm),[18] the court enforced an interim measure issued by a foreign tribunal under the LCIA Rules by granting a worldwide freezing order under section 37 of the Senior Courts Act.
The Practical Considerations
Before seeking to enforce an interim measure in London arbitration, some practical considerations should be taken into account:
- The choice of forum: The applicant should consider whether to apply to the High Court or to the Commercial Court, which is a specialist court within the High Court that deals with complex commercial disputes. The Commercial Court has a dedicated arbitration claim form and a guide for arbitration claims that provide useful guidance on how to commence and conduct such proceedings.
- The choice of procedure: The applicant should consider whether to apply for an interim measure without notice (ex parte) or with notice (inter partes). An ex parte application may be appropriate when there is a risk of delay or frustration of justice if notice is given. However, an ex-parte application requires a high degree of candour and full disclosure of all material facts and arguments. An inter-parte application may be preferable when there is no urgency or when the applicant wishes to avoid potential challenges or cost consequences for applying ex-parte.
- The choice of remedy: The applicant should consider what type of interim measure to seek from the court, such as a freezing injunction, a search order, a disclosure order, or a specific performance order. The applicant should also consider whether to seek ancillary orders, such as a cross-undertaking in damages, security for costs, or disclosure of assets. The applicant should be prepared to demonstrate that the interim measure is necessary, proportionate, and not oppressive.
- The choice of evidence: The applicant should consider what evidence to submit in support of the application, such as witness statements, expert reports, documents, or exhibits. The evidence should be relevant, clear, and concise. The evidence should also address any potential defences or objections that may be raised by the respondent, such as lack of jurisdiction, breach of natural justice, or abuse of process.
Enforcing interim measures in London arbitration can be a complex and challenging process that requires careful planning and execution. However, if done properly, it can be an effective way to protect one's rights and interests in arbitration.
Conclusion
This article has examined the enforcement of interim measures in four jurisdictions: India, Singapore, Hong Kong and London. It has highlighted the similarities and differences in their legal frameworks, procedures and practices, as well as the advantages and challenges of each system. The article has also discussed some of the factors that may influence the choice of seat and forum for arbitration, such as the availability, effectiveness and enforceability of interim measures. The article has concluded that there is no one-size-fits-all solution for parties seeking interim relief and that they should carefully consider their options and strategies in light of the specific circumstances of their case.
References
[1] the_arbitration_and_conciliation_act,_1996.pdf (India code.nic.in)
[3] Bharat Aluminium Co vs Kaiser Aluminium Technical ... on 6 September 2012 (indiankanoon.org)
[4] Amazon.Com Nv Investment Holdings Llc vs Future Retail Limited on 6 August 2021 (indiankanoon.org)
[5] Singapore International Arbitration Centre
[6] International Chamber of Commerce
[7] London Court of International Arbitration
[8] Hong Kong International Arbitration Centre
[9] International Arbitration Act 1994 - Singapore Statutes Online (agc.gov.sg)
[10] Arbitration Act 2001 - Singapore Statutes Online (agc.gov.sg)
[11] [2023] SGHC 244 (litigation. sg)
[12] UNCITRAL Model Law on International Commercial Arbitration 1985, With amendments as adopted in 2006
[13] Cap. 609 Arbitration Ordinance (elegislation.gov.hk)
[14] Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region (doj.gov.hk)
[15] Arbitration Act 1996 (legislation.gov.uk)
[16] Senior Courts Act 1981 (legislation.gov.uk)
[17] Gerald Metals SA v Timis – One Essex Court: High Court Judgment Template (oeclaw.co.uk)
[18] Cruz City 1 Mauritius Holdings v Unitech Ltd and others - One Essex Court: https://www.oeclaw.co.uk/images/uploads/judgments/Cruz_City_v_Unitech_-_2015_1_All_ER_305.pdf
- In India interim measures are available before and after the commencement of arbitration, but their enforcement depends on the discretion of the courts
- In Singapore interim measures are available before and during the arbitration, and their enforcement is mandatory for domestic and international awards.
- In Hong Kong interim measures are available before, during and after the arbitration, and their enforcement is mandatory for domestic awards and optional for foreign awards.
