I. INTRODUCTION
An interim measure is a type of legal protection intended to avoid risking the outcome of the proceedings before the granting of final legal protection. Although arbitral proceedings are resolved more quickly than a conventional lawsuit, there is still a lapse of time between the determination of the dispute and the recourse to arbitration and the final verdict of the arbitral tribunal. During this period, the interests of the party who may be proven right at the end of the arbitration over the topic of dispute can be safeguarded by interim measures, just as in traditional proceedings.
II. WHAT ARE INTERIM MEASURES?
- Interim Injunction: An interim injunction is a form of interim measure that provides temporary measures against any difficulty or impossibility of enforcing the judgment of the proceedings owing to developments that may arise regarding the matter under consideration. The relevant actions include preserving the evidence, seizing assets and impeding their sale to third parties, and, if required, liquidating the assets in question while keeping the proceeds.
- Interim Attachment: An interim attachment is a temporary seizure of a debtor’s property to ensure prompt payment of a debt. An interim attachment may be imposed if the debtor does not have a fixed residence and there is a possibility that they will transfer their assets to a third party.
These interim measures are quite significant since both of them protect the interests of the person who can be justified as a consequence of the proceedings.
III. POWER OF ARBITRATOR TO ORDER INTERIM MEASURES
- Power of Arbitral Tribunal Pursuant to International Arbitration Law No. 4686
Article 6 of International Arbitration Law No. 4686 (“MTK”) stipulates that “Unless otherwise agreed, an interim injunction or an interim attachment may be decided upon by the arbitrator or arbitral tribunal during arbitral proceedings at the request of one of the parties.” The article continues as follows: “If a party fails to comply with an interim injunction or interim attachment order issued by the arbitrator or arbitral tribunal, the counterparty may seek the assistance of the competent court in obtaining an interim injunction or interim attachment order,” which gives the counterparty the right to ask the court to compel the defiant party to comply.
The submission of suitable collateral may influence the arbitrator’s or the arbitral tribunal’s decision on an interim injunction or an interim attachment. Moreover, the parties to an arbitration agreement may agree that no interim injunction orders may be imposed by an arbitrator or arbitral tribunal, and that only the court can enforce interim measures.
- Power of Arbitral Tribunal in Arbitral Proceedings pursuant to Code of Civil Procedure no. 6100
Article 414 of Code of Civil Procedure no. 6100 (“HMK”) states that “Unless otherwise agreed, the arbitrator or arbitral tribunal may decide to impose an interim injunction or to preserve evidence during arbitral proceedings at the request of one of the parties. The existence of a suitable collateral may influence the arbitrator’s or arbitral tribunal’s decision to impose an interim injunction.” According to paragraph 2 of the same article, the court will consider, at the request of one of the parties, whether to execute an interim injunction issued by the arbitrator or arbitral tribunal if there is a valid arbitration agreement.
Paragraph 3 in Article 414 of HMK states: “When the arbitrator or arbitral tribunal, or another person designated by the parties, may not be expected to act in a timely or effective way, one of the parties may petition to the court for an interim injunction or evidence preservation. Otherwise, petitions to the court can only be submitted if the arbitrator or arbitral tribunal approves it, or if the parties have a written agreement to that effect.” As such, the clause allows the parties to request an interim injunction or the preservation of evidence from the court. However, in situations other than those specified in the clause, the request for an interim injunction or the preservation of evidence must be accompanied by an approval from the arbitrator or arbitral tribunal, or a written agreement between the parties.
IV. CONCLUSION
In conclusion, the parties to arbitration may require a variety of interim measures to be provided by the arbitrator or the courts to attain the desired outcome at the end of the proceedings and to protect their rights that may arise if they win the case. In this context, the power of the courts to decide on interim measures, as well as the limits of this authority, are critical in arbitration proceedings. In Türkiye, arbitrators and courts are both permitted by law to rule on interim measures. Since injunctions imposed by arbitrators have limited legal effect, injunctions that fall under the jurisdiction of executive organs can only be obtained through the courts.
To avoid losing rights in arbitral proceedings and to handle the process safely and effectively, we recommend seeking professional guidance from experts trained in applicable national and international legislation.
