Last edited 10 Oct 2016

Provisional relief

The term ‘provisional relief’, also known as ‘provisional remedy’ and ‘interim remedy’, refers to preliminary injunctions that are issued by a court while an arbitration proceeding is pending.

Arbitration is a private, contractual form of dispute resolution, which provides for the determination of disputes by a third party arbitrator or arbitration panel or tribunal.

The aim of provisional relief is to preserve the ‘status quo’, i.e. the position between the parties, and ensure the effectiveness of an arbitration award pending the outcome of a dispute resolution. The court can order relief if a party establishes that any arbitration award made in its favour would be rendered ineffectual without such relief.

A common form of provisional relief is an order to ‘preserve assets’ that are in dispute. For example, a court or tribunal might restrain a sale of the property that is the subject of the dispute, such as a building. Relief can also be granted to one party for the non-performance of the other party as a result of the dispute.

Provisional measures are said to be ‘conservative’ in nature, as they are intended to preserve the effectiveness of the arbitration process, as opposed to awarding one party an advance of the relief they seek from the dispute resolution process. As such, it is unlikely that provisional relief will be granted where it would materially prejudice or disadvantage the other party.

According to section 39 of the Arbitration Act, the parties are free to agree that the tribunal will have the power to order any relief that it would have the power to grant as a final award on a provisional basis as relief to one or other party.

The granting of provisional relief will often depend on:

  • The parties’ agreement set out in the arbitration clause in the contract.
  • Whether the parties have adopted the provisions of any institutional rules of arbitration.
  • The jurisdiction in which the arbitration will take place, as this might limit or prescribe the tribunal’s powers.

The Arbitration Act states that, unless otherwise agreed by the parties, the tribunal has the power to order as provisional relief:

  • A declaration on any matter.
  • A sum of money.
  • A party to do or refrain from doing anything.
  • Specific performance of a contract.
  • The rectifying, setting aside or cancelling of a deed or other document.
  • Simple or compound interest from any date considered appropriate.

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