International Arbitration Act, 2017 (Act No. 15 of 2017)SchedulesSchedule 1 : Uncitral Model Law on International Commercial ArbitrationChapter IVA : Interim Measures |
Section 1. Interim measures
Article 17. Power of arbitral tribunal to order interim measures
| (1) | Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. |
| (2) | An interim measure includes any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to: |
| (a) | Maintain or restore the status quo pending determination of the dispute; |
| (b) | Take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; |
| (c) | Provide a means of preserving assets out of which a subsequent award may be satisfied; |
| (d) | Preserve evidence that may be relevant and material to the resolution of the dispute; or |
| (e) | Provide security for costs. |
| (3) | A measure referred to in paragraph (2)(e) may only be ordered against a claiming or counter-claiming party. |
Article 17A. Conditions for granting interim measures
| (1) | The party requesting an interim measure under article 17(2)(a), (b), (c) or (e) shall satisfy the arbitral tribunal that: |
| (a) | Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and |
| (b) | There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination. |
| (2) | With regard to a request for an interim measure under article 17(2)(d), the requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent the arbitral tribunal considers appropriate. |
[Schedule 1(Article 17A)(2) substituted by section 33 of the Judicial Matters Amendment Act, 2023, Notice No. 4597, GG50430, dated 3 April 2024]
Section 2. Provisions applicable to interim measures
Article 17D. Modification, suspension, termination
The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal’s own initiative.
Article 17E. Provision of security
The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
Article 17F. Disclosure
The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the measure was requested or granted.
Article 17G. Costs and damages
The party requesting an interim measure shall be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.
Section 3. Recognition and enforcement of interim measures
Article 17H. Recognition and enforcement
| (1) | An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of article 17I. |
| (2) | The party who is seeking recognition or enforcement of an interim measure shall promptly inform the court of any termination, suspension or modification of that interim measure. |
| (3) | The court referred to in paragraph (1) where recognition or enforcement is sought may, if it considers it proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties. |
Article 17I. Grounds for refusing recognition or enforcement
| (1) | Recognition or enforcement of an interim measure may be refused only: |
| (a) | At the request of the party against whom it is invoked if the court is satisfied that: |
| (i) | Such refusal is warranted on the grounds set forth in article 36(1)(a)(i), (ii), (iii) or (iv); or |
| (ii) | The arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with; or |
| (iii) | The interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law of which that interim measure was granted; or |
| (b) | If the court finds that: |
| (i) | The interim measure is incompatible with the powers conferred upon the court unless the court decides to reformulate the interim measure to the extent necessary to adapt it to its own powers and procedures for the purposes of enforcing that interim measure and without modifying its substance; or |
| (ii) | Any of the grounds set forth in article 36(i)(b)(i) or (ii), apply to the recognition and enforcement of the interim measure. |
| (2) | Any determination made by the court on any ground in paragraph (1) of this article shall be effective only for the purposes of the application to recognize and enforce the interim measure. The court where recognition or enforcement is sought shall not, in making that determination, undertake a review of the substance of the interim measure. |
Section 4 Court-ordered interim measures
Article 17J. Court-ordered interim measures
| (1) | The court, at the request of a party, shall have the same powers in relation to arbitration proceedings, irrespective of whether its juridical seat is in the territory of the Republic, as it has for the purposes of proceedings before that court to make— |
| (a) | orders for the preservation, interim custody or sale of any goods which are the subject matter of the dispute; |
| (b) | an order securing the amount in dispute but not an order for security for costs; |
| (c) | an order appointing a liquidator; |
| (d) | any other orders to ensure that any award which may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by the other party; or |
| (e) | an interim interdict or other interim order. |
| (2) | The court shall not grant an order in terms of paragraph (1) of this article unless— |
| (a) | the arbitral tribunal has not yet been appointed and the matter is urgent; |
| (b) | the arbitral tribunal is not competent to grant the order; or |
| (c) | the urgency of the matter makes it impractical to seek such order from the arbitral tribunal, and the court shall not grant any such order where the arbitral tribunal, being competent to grant the order, has already determined the matter. |
| (3) | The decision of the court upon any request made in terms of paragraph (1) of this article shall not be subject to appeal. |
| (4) | The court shall have no powers to grant interim measures other than those contained in this article. |