Interim (security) measures in arbitration are the instrument that preserves the value of an enforceable award: until the arbitration issues its final decision, assets, evidence or the existing state of affairs must remain protected. The Georgian Law on Arbitration regulates this field with Articles 17 through 23, and two blocks stand out within it: measures applied by the arbitration itself and measures applied by the court in support of the arbitration. On this page we explain the full chain of these norms — from the application and its conditions to enforcement through the court and the grounds for refusal.
The Application of Measures by the Arbitration (Article 17)
Under the first paragraph of Article 17, before the commencement of the arbitral proceedings or at any stage of the proceedings, prior to the rendering of the final arbitral award, a party may apply to the arbitration by motion for the application of interim measures in respect of the arbitral claim, provided this does not contradict the arbitration agreement. On the basis of the party’s application, by a written decision and within a reasonable time, the arbitration may order the party to maintain or restore the original state of affairs until the final award; to take measures connected with preventing harm to the other party or to the arbitral proceedings; to carry out measures to preserve the assets against which the subsequent award will be enforced; or to keep and preserve evidence that may be relevant to the dispute and its resolution.
The Conditions of Application and Security (Article 18)
Article 18 establishes the conditions a party must substantiate when requesting measures: first, the non-application of the measures may cause such harm that its avoidance will be impossible by imposing on the other party an obligation to compensate the harm; second, the harm caused by the non-application of the measures significantly exceeds the harm that may be caused to the party against whom the measures are directed; and third, a well-founded assumption exists that the claim will be satisfied, although this assumption does not influence the subsequent decision to be rendered by the arbitration. For measures of the evidence-preservation type, these requirements apply only to the extent the arbitration considers appropriate. The arbitration may demand that the party requesting the measures provide a corresponding security, and where it establishes that the measures should not have been applied, the party bears responsibility for any costs and harm caused, which the arbitration may order to be compensated at any stage of the proceedings.
Modification, Disclosure and the Court’s Role (Articles 19, 20, 21)
Article 19 entitles the arbitration, if it considers it necessary, to modify, suspend or annul the measures it has applied, at the request of a party or, in exceptional cases, on its own initiative after prior notice to the parties. Article 20 allows the arbitration to demand that the parties immediately declare information relating to material changes in the circumstances on which the request or application of the measures was grounded. Article 21 determines that measures applied by the arbitration are binding and must be enforced through an application to the court — irrespective of the country in which the decision on the measures was rendered. Where a party applies to the court, it must immediately inform the court of any suspension, modification or annulment of the measures, and the court may demand the provision of a security.
Court Refusal and Court-Applied Measures (Articles 22, 23)
Article 22 separately establishes the grounds on which the court may refuse recognition and enforcement of the measures: refusal is possible where the party against whom the measures are directed proves that the refusal rests on the circumstances of non-recognition of international awards provided for by the same law, that the security ordered was not provided, or that the measures were suspended or annulled by the arbitration or by the court of the country concerned; likewise where the court considers that enforcement of the measures exceeds its competence, except to the extent of a change of form necessary for enforcement. Such a decision extends only to recognition and enforcement — the court does not examine the measures on their merits. Article 23, in turn, confirms that a party may apply directly to the court with a request for interim measures, and that in these matters the court has the same powers as in civil proceedings, applying the rules established by the Civil Procedure Code of Georgia.
Frequently Asked Questions
Below we answer the questions most frequently asked about interim measures in arbitration.
When may interim measures be requested from the arbitration?
Before the commencement of the arbitral proceedings or at any stage of them, prior to the final award, provided this does not contradict the arbitration agreement. The decision is rendered in writing.
What must a party substantiate when requesting measures?
The conditions of Article 18: the risk of irreparable harm, the balance between the harms, and a well-founded assumption that the claim will be satisfied. The arbitration may also demand the provision of a security.
How are measures applied by the arbitration enforced?
They are binding and are enforced through an application to the court, irrespective of the country in which the decision on the measures was rendered.
May one apply directly to the court before the arbitral proceedings?
Yes. Under Article 23, a party may apply to the court with a request for interim measures; in these matters the court has the same powers as in civil proceedings.
How We Help on Legal.ge
The advocates of Legal.ge draft applications for interim measures in arbitration and before the courts: we substantiate the conditions of Article 18, prepare the written motion and the necessary security package, map the correct route of court support, and defend you at the recognition and enforcement stage against grounds of refusal. Contact our team — we will assess your dispute and make timely use of the means of protection provided by the law.