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(6) intro + tribunal power (interim measures of protection (IMPs) Orders…

- - - - pre-award attachments (most common) - freezing orders.v powerful remedy to give. Can be far reaching. Ct has recognised its power to issue worldwide freezing order
        
        measures to protect trade secrets and proprietary information (typically intellectual property) if a competitor steals market share using IP, it is hard for the ct to restore irrepable harm. -> springboard order /injunction … stop defendant from using the defendant from using it to get ahead in industry
        
        measures to protect the subject-matter of the dispute (if a painting was stolen by party B from A..protect specific property )
        
        measures to secure evidence: ie locking down computer hard drive
- - - - parties could expressly state "arbi tribunal cannot grant interim relief". If it is silent, it would be assumed that parties intended it to have. Parties cannot do this in national ct.
      - Parties’ arbitration agreement
        Art 17(1) ML:
        “Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures.”
        
        V broad. It used to be narrower. In 2016 there were sigfig revisions to ML. pre2016 version required "relief sought necc, relief sought wrt subject matter of dispute".
        Modern approach can do almost anything
      - Inter partes applications to tribunal
        Art 17A ML
        
        inserted by 2016, setting out test that artrib must set out before granting interim measure
        
        “(1) The party requesting an interim measure under article 17(2)(a), (b) and (c) shall satisfy the arbitral tribunal that:
        (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and [(1)HARM THAT CANNOT BE COMPENSATED] [HARM LIKELY/NOT TO SUFFER(2) LIKE THE "MORAL OF LESS CONVENIENCE"]
        (b) There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.” - AMERICAN Cyanamid case TEST LORD DIPLOCK HOL
        
        Three stage test
        
        Damages not an adequate remedy
        
        Balance of convenience: party A stands more to lose than party B, we don't grant this injunction
        
        Reasonable possibility of success
        
        Easy test to satisfy in practice. Tribunal will rather grant imp than let a party do something that renders the arb ineffective.
      - Ex parte applications to tribunal
        
        “(1) Unless otherwise agreed by the parties, [parties can agree not to do exparty] a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested. [if A wants to make EP application he will seek freezing order n he will ask for a prelimm order . PO will be crafted in terms to stop B from frustrating it. When A first goes to tribunal and asks for those things, he cannot get interim measure at that stage. The IM can only be made when both parties are heard. BUT in natcts once u hear it, u can freeze it.
        (2) The arbitral tribunal may grant a preliminary order provided it considers that prior disclosure of the request for the interim measure to the party against whom it is directed risks frustrating the purpose of the measure.
        (3) The conditions defined under article 17A apply to any preliminary order ...”
        ^none of this can happen bef tribunal is constituted [ONE OF THE BIGGEST LIMITATIONS. The composition of tribunal is itself fertile ground for dispute. Parties can delay the process at tt stage too. If parties need imp to lockdown property at the first stage, it cannot realistically wait for constitution to ask for interim measure [B would have a lot of time to frustrate that endeavour]. To combat this, fall back position is going to natct before tribunal comes into existence.can ask natct to hold the (???). Some institutions have bcome inventive to grant imp before trib exists. LCC has done this. Created emergency arbitrator. Arbitrator can grant interim measure.. Parties specify under arbitration rules .. After tribunal is formed, EA falls away.
        If its an adhoc arbi or AA doesn't have procedure, u go to natct n pray
        
        Art 17B ML
        
        party seeking but doesn't tell the other side. interesting procedure … different from domestic ct jurisdiction
        
        Art 17C ML
        
        “(1) Immediately after the arbitral tribunal has made a determination in respect of an application for a preliminary order, the arbitral tribunal shall give notice to all parties of the request for the interim measure, the application for the preliminary order, the preliminary order, if any, and all other communications, including by indicating the content of any oral communication, between any party and the arbitral tribunal in relation thereto.
        (2) At the same time, the arbitral tribunal shall give an opportunity to any party against whom a preliminary order is directed to present its case at the earliest practicable time.
        …
        (5) A preliminary order shall be binding on the parties but shall not be subject to enforcement by a court. Such a preliminary order does not constitute an award.” [this makes it useless. Binds parties between themselves and infront of the tribunal. But if prelim order is breachedby B, nothing can be done. If interim measure sought exparte and it was granted, then B squirrels it off to a weird jurisdiction, there is nothing A can do. [in practice, it is useless for party to go ex parte.. This makes natcts esp impt in this area. Parties need more natcts for exparte.