Interim urgent measures in arbitration – A mechanism for prompt and effective protection of the rights and interests of involved parties

Interim urgent measures play a crucial role in commercial dispute resolution by protecting parties’ lawful rights and interests. Many enterprises choosing arbitration over court proceedings remain uncertain about how these measures apply and whether they work effectively. This article analyzes current legal provisions on interim urgent measures in arbitration, offering readers a clear and practical perspective.

1.Overview of interim urgent measures in arbitration

Interim urgent measures are legal tools designed to protect the parties’ lawful rights and interests during dispute resolution, preventing irreparable harm or serious interference with the enforcement of arbitral awards.

The Law on Commercial Arbitration 2010 (“the LCA”) recognizes and regulates interim urgent measures in arbitration, thereby establishing a necessary legal framework that allows the parties to request timely intervention from the arbitral tribunal in urgent situations. Specifically, Clause 1 Article 48 of this Law stipulates: “1. The disputing parties may request the arbitration council or a court to apply interim urgent measures under this Law and relevant laws, unless otherwise agreed by the parties”.

Interim urgent measures in arbitral proceedings may include: prohibiting or compelling the performance of certain acts, seizing assets, prohibiting changes to the current condition of the disputed property, etc., similar to certain measures stipulated in Article 114 of the Code of Civil Procedure 2015 (“the CCP”).

2.Competent authorities to apply interim urgent measures

Under current Vietnamese law, both the Court and the Arbitral Tribunal can apply interim urgent measures during arbitration. The choice of authority depends on the timing, whether the Arbitral Tribunal has been established and which option is more convenient for the party.

However, the authority of the Arbitral Tribunal is limited in several respects. First, the Arbitral Tribunal may only apply interim urgent measures after it has been established; if not yet constituted, the party must request the Court to apply such measures. Second, interim urgent measures issued by the Arbitral Tribunal only apply to the disputing parties and have no effect on third parties. Third, the Arbitral Tribunal may only apply six (06) measures as prescribed in Clause 2 Article 49 of the LCA; the remaining measures stipulated in Article 114 of the CCP fall exclusively under the Court’s jurisdiction. Fourth, the enforcement of interim urgent measures issued by the Arbitral Tribunal remains a significant challenge, as the LCA lacks a clear coercive enforcement mechanism in cases of non-compliance. Therefore, in practice, to ensure enforceability, parties often prefer to request the Court to apply interim urgent measures since Court orders can be compulsorily enforced under the Law on Enforcement of Civil Judgment.

The Court plays an essential supporting role in applying interim urgent measures during arbitration, especially before the Arbitral Tribunal is established or when the requested measure exceeds the Tribunal’s authority. This mechanism protects the parties’ lawful rights and interests, prevents irreparable harm and ensures arbitral awards can be enforced.

3.Timing for requesting the application of interim urgent measures

The timing of a request for interim urgent measures critically affects how well the parties’ lawful rights and interests are protected. Because interim urgent measures aim to prevent immediate harm, requests must be submitted as soon as a violation or risk of infringement is detected. Delays may cause irreparable damage or make the protective measure meaningless. Therefore, “urgency in timing” is a fundamental condition for ensuring this mechanism works effectively in arbitral proceedings.

Depending on the stage of the arbitration process, the law allows parties to submit a request for interim urgent measures either before or after the Arbitral Tribunal has been established.

• Before the Arbitral Tribunal is established, the authority to apply interim urgent measures belongs to the Court. This stage is often sensitive as assets, evidence or the current state of affairs may be at risk of rapid change. Allowing the Court to apply interim urgent measures before the Arbitral Tribunal is formed serves as a crucial mechanism to prevent acts of dispersing, transferring, destroying assets or falsifying evidence – factors that could render a future arbitral award unenforceable or cause irreparable harm to one party.
• After the Arbitral Tribunal has been established, the parties may directly request either the Arbitral Tribunal or the Court to consider applying one of the legally prescribed interim urgent measures. However, since the coercive enforceability of arbitral decisions remains limited, in practice, parties often still prefer to request the Court to apply interim urgent measures at this stage to ensure the most effective outcome.

4.Procedures for requesting the Arbitral Tribunal to apply interim urgent measures 

4.1 General conditions

A party to the dispute may request the Arbitral Tribunal or the Court to apply interim urgent measures when:

• There are indications that its lawful rights and interests may be seriously infringed and irreparably harmed without timely intervention;
• There is clear evidence supporting the request and the proposed measure;
• If necessary, the requesting party may be required to provide financial security.

4.2 Request dossier

The requesting party must submit a written request for the application of interim urgent measures to the Arbitral Tribunal or the Court, clearly stating:

• Information on the parties and the dispute;
• Reasons for the necessity of applying interim urgent measures;
• The specific interim urgent measure requested;
• Evidence and documents substantiating the request.

Upon receiving the dossier, the Arbitral Tribunal or the Court will review the request based on the principles of promptness, timeliness and protection of the lawful rights and interests of the parties. If the request is accepted, the Arbitral Tribunal or the Court shall issue a Decision on the Application of Interim Urgent Measures in writing and send it to the parties and relevant authorities and organizations for enforcement.

5.Observations and recommendations

From a practical perspective, TNTP believes that applying interim urgent measures in arbitral proceedings represents a positive advancement in Vietnamese law. This approach aligns more closely with international practice and provides stronger protection for the parties’ rights. However, the enforcement mechanism for interim decisions of the Arbitral Tribunal remains weak and limited in scope. This creates difficulties for injured parties seeking to protect assets or prevent violations.

Therefore, individuals and enterprises opting for arbitration as a dispute resolution method should proactively consider and plan for the application of interim urgent measures as soon as a dispute arises. In cases involving third parties or requiring measures not listed in Clause 2 Article 49 of the LCA, it is advisable to request the Court to apply interim urgent measures to ensure practical effectiveness.

TNTP hopes this article provides useful insights for individuals and enterprises considering arbitration as an effective and flexible dispute resolution method.