11. Interim measures
An effective arbitration agreement operates within a statutory framework that already grants the tribunal broad default authority to order interim measures of protection, such as maintaining the status quo, preserving assets, or preventing harm to the arbitral process. Under section 35 of the Arbitration Ordinance (Cap. 609), this authority exists automatically unless the parties expressly agree otherwise. While the tribunal has the power to modify or terminate these measures and can require the requesting party to provide security, these powers are inherent to the statutory regime.
Furthermore, it is a settled principle of Hong Kong law that requesting interim measures from a court is not incompatible with an agreement to arbitrate. Section 21 confirms this compatibility regardless of whether the request is made before or during arbitral proceedings, meaning parties do not need to “enhance” their agreement with specific clauses to preserve this right.
Parties must also distinguish between formal interim measures and “preliminary orders”. A tribunal may grant a preliminary order on an ex parte basis (without notice to the other side) to prevent the frustration of a requested interim measure. While such an order is binding on the parties, the Arbitration Ordinance explicitly states that it is not subject to enforcement by a court and does not constitute an award. Only after the tribunal has heard the other party and potentially converted the order into a formal interim measure can court enforcement be sought.
Finally, for urgent protection before a main tribunal is constituted, the Arbitration Ordinance empowers the Court of First Instance to enforce relief granted by emergency arbitrators. It is important to note that enforcement is not automatic; both emergency relief and tribunal-ordered interim measures require the leave of the Court before they can be enforced in the same manner as a court judgment or order.
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