WHEN ARE PARTIES ENTITLED TO REQUEST INTERIM MEASURES IN ARBITRAL PROCEEDINGS?

In the course of resolving disputes through commercial arbitration, the timely protection of the parties’ lawful rights and interests constitutes an important factor in ensuring the effectiveness of arbitral proceedings. In practice, while a dispute is pending resolution, situations may arise in which, absent prompt intervention, the disputed assets may be dissipated, their status may be altered, or certain actions by one party may adversely affect the resolution of the dispute.

In order to address such circumstances, arbitration law has established a mechanism for the application of interim measures. Currently, the Law on Commercial Arbitration 2010 and the arbitration rules of arbitral institutions in Viet Nam, including the Arbitration Rules of the the Middle Commercial Arbitration Center (MCAC), contain specific provisions governing the parties’ right to request interim measures as well as the authority of the arbitral tribunal to consider and decide upon the application of such measures.

1. Right to Request Interim Measures

Pursuant to Article 48 of the Law on Commercial Arbitration 2010, during the course of arbitral proceedings, the parties are entitled to request either the arbitral tribunal or a competent court to apply interim measures for the purpose of protecting their lawful rights and interests. The submission of a request to a court for the application of interim measures shall not be deemed a waiver of the arbitration agreement or a refusal to resolve the dispute through arbitration.

2. Authority of the Arbitral Tribunal to Grant Interim Measures

Pursuant to the Law on Commercial Arbitration and the Arbitration Rules of the MCAC, the arbitral tribunal is empowered, upon the request of the parties to the dispute, to grant interim measures in order to protect the parties’ lawful rights and interests, to prevent harmful acts, or to avert adverse situations pending the issuance of the final arbitral award. The arbitral tribunal may grant one or more of the following interim measures:

• prohibiting any change to the status quo of the disputed assets;
• prohibiting or requiring any party to the dispute to perform or refrain from performing certain acts in order to prevent conduct that may adversely affect the arbitral proceedings;
• ordering the attachment of the disputed assets;
• ordering the preservation, storage, sale, or other disposition of any assets of one or more parties to the dispute;
• ordering provisional payment between the parties;
• prohibiting the transfer of rights in respect of the disputed assets.

Where the arbitral tribunal has not yet been constituted, or where a party requests a court to apply interim measures, the competent court shall have jurisdiction. In such circumstances, if the parties have agreed on a specific court for the application of interim measures, that court shall have jurisdiction. In the absence of such agreement, jurisdiction shall lie with the court at the place where the interim measures are to be enforced.

Where the arbitral tribunal has already received a request for one or more interim measures from a party and a duplicative request is subsequently submitted to a court, the court shall refuse to consider and return such request, unless the requested measures fall outside the jurisdiction of the arbitral tribunal.

The application of these measures plays an important role in ensuring that the assets related to the dispute are preserved and that the rights and interests of the parties remain protected during the period in which the arbitral tribunal is considering and resolving the dispute.

3. Procedure for Requesting Interim Measures

The procedure for requesting the application of interim measures by the arbitral tribunal is specifically provided for in Article 50 of the Law on Commercial Arbitration 2010.

First, the requesting party must submit a written application to the arbitral tribunal. An application for interim measures shall include the following principal contents:

a) the date of the application;

b) the name and address of the party requesting the interim measures;

c) the name and address of the party against whom the interim measures are requested;

d) a summary of the dispute;

e) the reasons necessitating the application of interim measures;

f) the specific interim measures requested and the relevant requests.

Together with the application, the requesting party must provide the arbitral tribunal with evidence demonstrating the necessity for the requested interim measures.

Second, as determined by the arbitral tribunal, the requesting party shall be required to provide security in the form of money, precious metals, gemstones, or negotiable instruments in an amount determined by the tribunal and corresponding to the potential damage that may arise if the interim measures are applied improperly, in order to protect the interests of the party against whom such measures are requested. Such security shall be deposited in a blocked bank account designated by the arbitral tribunal.

Third, within three (03) working days from the date of receipt of the application, and once the requesting party has fulfilled the security requirement as prescribed above, the arbitral tribunal shall consider and decide whether to grant the requested interim measures. If the request is rejected, the tribunal must notify the requesting party in writing and state the reasons for the refusal.

Fourth, the enforcement of a decision of the arbitral tribunal granting interim measures shall be carried out in accordance with the laws governing civil judgment enforcement.

4. Conclusion

Allowing the parties to request interim measures contributes significantly to ensuring the effectiveness of arbitration as a method of dispute resolution. This mechanism not only helps prevent actions that may cause damage to the parties but also facilitates the conduct of arbitral proceedings in a fair, objective, and efficient manner.

In the context of increasingly dynamic commercial activities and the growing complexity of commercial disputes, the availability of interim measures is regarded as an important legal tool that enhances the practical effectiveness of commercial arbitration as a dispute resolution mechanism.

The article above has analyzed in detail is "When are parties entitled to request interim measures in arbitral proceedings?". For more detailed information or legal assistance, please contact the MCAC Secretariat:

• Hotline: 0935 925 068
• Email: contact@mcac.vn
• Read more: Is the arbitral tribunal empowered to collect evidence, or is it limited to the evidence submitted by the parties?