ICDPASO Commercial Arbitration Rules Interpretation Series24“Provisional Measures”

In international dispute-resolution proceedings arising from cross-border trade, investment, and other commercial disputes, interim measures (also referred to as interlocutory measures) are temporary decisions made by a court or an arbitral tribunal, pursuant to authority granted by law or agreement, to protect the lawful rights and interests of the parties before, during, and after the proceedings so that such rights may be realized and effectively safeguarded. Interim measures take various forms and are a key procedural tool to ensure the effectiveness of arbitral proceedings and the enforceability of awards.

Article 24 of the ICDPASO Commercial Arbitration Rules (the “Rules”) constructs a complete and internally coherent interim-relief system through a “closed-loop” design featuring: a typology list + a structured reasoning framework + security as risk offset + disclosure of changed circumstances + dynamic adjustment + damages for wrongful applications + judicial coordination. Through clause-by-clause commentary, this article aims to analyze the tribunal’s discretionary factors under Article 24 and the parties’ practical pathways for operation. It also situates Article 24 within the broader evolution of global arbitration rules modeled on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”), and conducts a comparative review against the arbitration rules of major institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the Singapore International Arbitration Centre (SIAC), and the Hong Kong International Arbitration Centre (HKIAC), as well as the related regulations under the newly revised Arbitration Law of the People’s Republic of China adopted at the 17th Session of the Standing Committee of the 14th National People’s Congress (the “New PRC Arbitration Law”). The objective is to provide enterprises with clear guidance and strategic recommendations for effectively using interim relief mechanisms in international business operations.

I. Origin of the Issue: From “Ultimate Success on the Merits” to “Timely Relief”

In international commercial disputes, the greatest risk is often not “how difficult the legal issues are,” but “how narrow the time window is.” In scenarios involving supply-chain delivery, construction projects, M&A transactions, intellectual property, and data compliance, if a party rapidly transfers assets after a dispute erupts, destroys key evidence, alters the project site, or delays and interferes with the arbitration through parallel proceedings, the final award may become a “victory on paper.”

The systematic introduction of interim measures into international commercial arbitration can be traced back to the UNCITRAL Model Law (1985), whose original term “interim measure of protection”1 was rendered in Chinese as “临时措施,” and has since become a standard term in international commercial arbitration legislation and practice.

The institutional purpose of interim measures is to: control risks in advance, before the merits are decided, through preservation, prevention, and procedural-protection tools—so that the arbitration remains meaningful and the award enforceable. Interim measures are therefore often called the “lifeline” of international arbitration.

II. Institutional Positioning and Boundaries: Three Attributes and the “Non-Prejudgment Principle”

1. Three Attributes: Preservation, Prevention, and Procedural Protection

Functionally, interim measures can be grouped into three categories:

Preservative (preservation-oriented): securing the basis for future enforcement, typically asset preservation and security.

Preventive: preventing the expansion of present or imminent harm, including cease-and-desist measures and orders to maintain or restore the status quo.

Procedural-protective: preventing obstruction of the proceedings, destruction of evidence, or interference with witnesses, typified by evidence preservation.

2. Boundary Control: No Final Determination on the Merits, but Permitting “Prima Facie Review”

The core difficulty of interim measures lies in the tribunal having to decide under time pressure and incomplete information. Modern rules generally adopt a prima facie framework:

The tribunal does not make a final determination on the merits; however, it will make a prima facie assessment sufficient to support interim relief with respect to the legal basis of the right, urgency, risk of harm, and proportionality. At the same time, risks of wrongful harm are offset through security, dynamic adjustment, and liability for wrongful applications, balancing efficiency and fairness.

III. Text of Article 24 “Provisional Measures”

Article 24. Provisional Measures

1. Upon application by either party, the Arbitral Tribunal may, as it deems appropriate, grant such provisional measures, including but not limited to:

(a) maintain the status quo or restore to the original status before the dispute is resolved;

(b) take measures to prevent or avoid:

(i) existing or imminent damage;

(ii) obstruction to the arbitral proceedings;

(c) provide property preservation for the enforcement of arbitral awards;

(d) preserve substantive evidence related to the dispute.

2. If a party requests provisional measures, it shall state the reasons why the requesting party is entitled to such provisional measure.

3. The Arbitral Tribunal may require the requesting party to provide security in connection with the provisional measure requested.

4. The Arbitral Tribunal may require the parties to disclose without delay material changes in the circumstances on which the provisional measure is requested or granted.

5. Upon the application by either party, the Arbitral Tribunal may modify, suspend or terminate the provisional measure granted, or the Arbitral Tribunal may, under special circumstances, modify, suspend or terminate the provisional measure granted at its own discretion after notifying the parties in advance.

6. If the Arbitral Tribunal subsequently determines that the provisional measures should not have been granted under the then circumstance, the requesting party shall be liable for all losses caused to other parties by such measures.

7. A party’s application to judicial authorities for provisional measures shall not be deemed as a derogation or waiver of the arbitration agreement.

The structure of Article 24 may be summarized in seven steps:

Enumerated types — clarifying the scope of interim measures the tribunal may grant;

Duty to substantiate — requiring the party to explain “what is sought” and “on what basis”;

Security — a risk-offset tool;

Disclosure of changed circumstances — bringing information asymmetry under procedural governance;

Modification/suspension/termination — enabling dynamic proportionality;

Damages for wrongful applications — deterring “weaponization” of procedure;

Judicial coordination — reconciling arbitral autonomy with court assistance.

This “closed loop” means interim measures are not a one-off act, but a sustainably managed procedural mechanism.

IV. Paragraph (1): Clarifying Types — “List-Based” Design and “Risk Mapping”

Paragraph (1) consolidates interim measures into four high-frequency scenarios and preserves flexibility through the phrase “including but not limited to.” This design enables parties to quickly map real-world risks onto rule-defined categories, while allowing tribunals to develop a relatively stable discretionary framework.

1. Maintain the Status Quo or Restore to the Original Status: Preventing “Fait Accompli” from Crowding Out the Award

“Maintain the status quo or restore to the original status” often corresponds to injunctive relief or restorative orders. In construction projects, equipment delivery, long-term supply, or corporate control disputes, if one party unilaterally alters the status quo (e.g., suspending supply, dismantling or altering works, taking over a site, forcibly disposing of equipment), restoration may be extremely costly or even irreversible even if the final award favors the other party. Such measures emphasize reversibility and least-intrusive intervention. Tribunals typically consider whether the status quo is stable, whether change would produce irreversible consequences, and whether milder alternatives exist.

2. Prevent or Avoid Damage / Obstruction to the Arbitral Proceedings: Protecting Both Substantive Interests and Procedural Integrity

Item (2) covers two risk types: (i) existing or imminent damage, such as ongoing misappropriation of trade secrets or continuing breach causing supply-chain collapse; and (ii) obstruction to the arbitral proceedings, such as destruction of evidence, interference with witnesses, or improper parallel proceedings used to delay or pressure. The value here is elevating procedural order into an independently protectable interest, empowering tribunals to safeguard procedural integrity and adjudicative authority through interim measures.

3. Provide Property Preservation for the Enforcement of Arbitral Awards: Locking in the Enforcement Base

Property preservation is especially critical in cross-border disputes. Its purpose is not “early enforcement,” but preventing “winning yet being unable to enforce.” In assessing such requests, tribunals may weigh the risk of asset dissipation, alignment between the preserved scope and the disputed amount, impact on the respondent’s operations, and security arrangements—applying proportionality.

4. Evidence Preservation: Countering Loss of Evidence and Information Asymmetry

Evidence preservation commonly arises where evidence is held by the other party and faces risk of destruction or alteration (e.g., electronic data, construction-quality records, logistics and warehousing records). Such measures strongly reflect the procedural-protection attribute and can directly enhance the adjudicability of subsequent merits hearings.

5. Relevant Provisions of Other Institutions

ICC Rules (2021): primarily grant broad authority for the tribunal to order interim or conservatory measures it deems appropriate, may require security, and measures may be issued in the form of an “order” or an “award”2.

LCIA Rules (2020): in provisions on “interim and conservatory measures,” cover preservation of evidence, monies, documents, goods, samples, property, site or thing, and clarify that—to order on a provisional basis, subject to a final decision in an award, any relief which the Arbitral Tribunal would have power to grant in an award. The Arbitral Tribunal also shall have the power to order any claiming, counterclaiming or cross-claiming party to provide or procure security for Legal Costs and Arbitration Costs, such terms may include the provision by the applicant of a cross-indemnity3.

SIAC Rules (2025): in addition to broad powers over procedure and evidence/asset preservation, introduce the protective preliminary order mechanism in emergency arbitration, allowing protective preliminary orders under specific conditions, with tight timelines and ex post notification 4.

HKIAC Rules (2024): further clarify that an emergency arbitrator may issue necessary temporary directions before making an “emergency decision,” strengthening access to emergency relief 5.

6. Features of the Four-Type Design in Paragraph (1), adopting the legislative technology of “typical scenario enumeration + open clauses”

(1) User-friendly and easy to invoke: typifies high-frequency scenarios, reducing cognitive load for drafting applications and tribunal review—especially helpful for in-house counsel and lawyers.

(2) Clear structure and predictable discretion: corresponds respectively to status-quo conduct, harm/procedural-risk prevention, property preservation, and evidence preservation.

(3) Balancing openness and certainty: “including but not limited to” preserves flexibility while the list supplies concrete adjudicatory anchors.

(4) Compared with certain institutions that still rely on more principle-based drafting for interim measures, ICDPASO’s “classified examples + functional description” reflects a finer-grained and more practice-oriented rule design.

V. Paragraph (2): Threshold and Reasoning Structure — From Subjective Request to Objective Justification

Paragraph (2) requires the party to state “the reasons why the requesting party is entitled to such provisional measure”. Though concise, it performs two key functions: (i) transforming an application from a petition-style narrative into a reviewable argumentative submission—requiring the applicant to specify not only what is sought but why it should be granted; and (ii) providing structured input enabling the tribunal to form a discretionary path quickly, improving procedural efficiency.

This aligns with practices under other rules. For example, while the ICC Rules (2021) do not detail what must be “stated”, the requirement that such measure shall take the form of an order, giving reasons effectively drives structured presentation of grounds 6.

Internationally, interim measures typically turn on four core elements (terminology varies by institution, but logic converges) 7:

Urgency: what irreversible or irreparable consequence will occur absent immediate intervention;

Harm and causation: what harm exists and how it relates to the respondent’s conduct or the status quo;

Proportionality and alternatives: whether the measure exceeds what is necessary and whether milder alternatives exist;

Prima facie basis of right: not proof of ultimate success, but showing the request is not manifestly unfounded.

Accordingly, in the ICDPASO context, applicants who present facts via “timeline + risk chain + evidence”, and address the above four elements in a structured manner, are often better positioned to obtain swift interim relief.

VI. Paragraph (3): Security — A “Risk-Offset Valve” Between Efficiency and Fairness

Paragraph (3) provides that the tribunal “may require” the requesting party to provide security. Security matters because interim measures can immediately restrict the respondent’s disposition rights and business operations; if later found improper, losses should be compensable, balancing efficiency and fairness.

ICC Rules (2021): explicitly allow interim measures to be conditioned on “appropriate security” 8.

LCIA Rules (2020): allow security by way of deposit, bank guarantee, or in any other manner for all or part of the amount in dispute, permit cross-indemnity as a condition, and allow decision of amount payable under such cross-indemnity and any consequential relief by awards 9.

UNCITRAL Model Law: recognizes the tribunal’s power to require security for interim measures, and tends to require security more readily for a preliminary order.10

Other major regimes (including SIAC, HKIAC, and the UNCITRAL Arbitration Rules) adopt similar mechanisms and generally emphasize tribunal discretion as to form, amount, and conditions.

In practice, tribunals are more likely to require security where: the measure materially affects operations (freezing core accounts, blocking delivery, restricting disposition of key assets); the factual basis remains uncertain; or the measure may cause quantifiable direct losses (shutdowns, storage and demurrage, etc.).

Parties should avoid assuming “if the application is reasonable, security is unnecessary”. Even where the claim appears reasonable, tribunals may still require security for risk control and enforcement practicality. Applicants are advised to:

Proactively propose a security plan: e.g., bank guarantee, cash deposit, insurance products, third-party guarantee, and suggest a reasonable range for the amount to improve success rates and shorten review time.

Design flexibility: for long-term or phased measures, propose “dynamic security”, such as a smaller initial security that may be adjusted as the measure continues or circumstances evolve.

Security plays a balancing role: it protects legitimate applications while discouraging abuse of procedural rights. Parties and counsel should treat security design as a strategic component—offering practical proposals that protect interests and demonstrate respect for procedural fairness, enhancing persuasiveness and operability.

VII. Paragraph (4): Duty to Disclose Material Changes — Preventing “Imbalance” and “Rigidity”

Paragraph (4) provides that the Arbitral Tribunal may require the parties to disclose without delay material changes in the circumstances on which the provisional measure is requested or granted. This creates a dynamic good-faith reporting mechanism to address inherent information asymmetry. Interim measures are often granted in emergencies; if the underlying situation has fundamentally changed—e.g., the respondent has provided sufficient security, the harm risk has disappeared, evidence to be preserved has been lost or secured, or the subject matter has stabilized—continuing the measure may cause unnecessary ongoing restrictions, even turning into procedural pressure. Thus, disclosure of material changes is not merely procedural—it is a good-faith constraint ensuring interim relief remains “necessary and proportionate”, and it supplies a factual foundation for the dynamic adjustment mechanism in paragraph (5).

Comparatively, this reflects frontier governance thinking in international arbitration and aligns with the spirit of Article 17 F “Disclosure” of the UNCITRAL Model Law.11 It also echoes modern rules: SIAC Rules (2025) emphasize prompt disclosure of material changes related to security orders and allow modification or revocation 12; HKIAC Rules (2024)require immediate disclosure of any material changes under provisions on Interim Measures of Protection and Emergency Relief 13. The above indicates that “major change disclosure” has become a common configuration of high-quality rules. In addition, Article 24 integrates this duty with later mechanisms—modification/suspension/termination (paragraph (5)) and damages for wrongful applications (paragraph (6))—forming a coherent supervision-and-correction loop.

Relative to PRC arbitration practice, paragraph (4) adds an expressly articulated continuing disclosure duty that earlier rules often did not clearly specify, incorporating the international norm of dynamic supervision into written rules. This enables more refined and fair case management and provides parties clear guidance on good-faith obligations, enhancing both fairness and efficiency.

VIII. Paragraph (5): Modification, Suspension, Termination — Dynamic Proportionality and Procedural Due Process

Paragraph (5) establishes dynamic adjustment: any party may apply for modification, suspension, or termination; under special circumstances, the tribunal may adjust the provisional measure granted at its own discretion after notifying in advance. The mechanism has two institutional implications:

First, it emphasizes dynamic proportionality. The legitimacy of interim measures rests on the objective circumstances at the time of issuance. If circumstances materially change, the necessity or appropriateness of the original measure may weaken or disappear. Thereby, timely adjustment reflects ongoing proportionality review and ensures relief remains matched to risk.

Second, it guarantees procedural due process. Even when the tribunal adjusts measures granted at its own discretion, it must notify the parties in advance, safeguarding the parties’ opportunity to be heard and maintaining transparency and fairness of proceedings.

This design aligns with mainstream international rules. Under LCIA Rules (2020), Article 25 “Interim and Conservatory Measures” similarly emphasizes due process (giving all other parties a reasonable opportunity to respond) and allows consequence measures for non-compliance with security orders (e.g., stay or dismissal of claims)14. HKIAC Rules (2024) expressly empower tribunals to 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 15. Article 24(5) of the Rules reflects the growing international consensus on dynamic management of interim measures.

Strategically, respondents need not insist on “total rejection” of interim measures. They can propose more proportionate alternatives—e.g., a bank guarantee instead of a freeze, third-party supervision instead of an injunction, narrower scope or shorter duration instead of long-term restrictions—guiding the tribunal to optimize and recalibrate measures under a “minimum necessary” approach, which can often protect its own rights and interests more effectively.

Linked with paragraph (4)’s disclosure duty, paragraph (5) completes a “disclosure–review–adjustment” loop, enhancing flexibility and responsiveness. While granting discretion and initiative to the tribunal, it also preserves procedural participation through prior notice, balancing efficiency and fairness.

In the year 2022 when this rule was formulated, this provision pioneered the systematic and institutionalization of the dynamic supervision mechanism for interim measures domestically, enhanced the precision of arbitration procedure management, reflected the innovation of the rule design, and also provided parties with clearer expectations and behavioral guidance.

IX. Paragraph (6): Damages for Wrongful Applications — A Hard Constraint Against “Weaponizing Procedure”

Paragraph (6) provides that if the Arbitral Tribunal subsequently determines that the provisional measures should not have been granted under the then circumstance, the requesting party shall be liable for all losses caused to other parties by such measures. The core function is to define clear consequences to prevent interim measures from being abused as procedural pressure tools. Potential damages liability compels applicants to carefully verify factual bases and evidence chains, deterring malicious or reckless applications and preventing interim measures from becoming commercial coercion instruments.

This policy orientation is reflected in judicial practice. For example, in case Intellectual Property Court of PRC Supreme People's Court (SPC), (2024) SPC IP Admin. Final 917, the court addressed loss items (e.g., payment losses, logistics and storage fees, freight, stacking and re-handling fees) and causation in a dispute over liability for wrongful preservation, evaluating harm resulting from an improper application 16. The case warns parties: despite the urgency of preservation/control/interim measures, applicants must reasonably anticipate whether the basis is sufficient, scope is necessary, and harm is foreseeable—otherwise they may face both damages and reputational costs. Paragraph (6) internalizes these judicial principles into arbitration rules, requiring parties to rationally assess both likelihood of success and misfire costs.

From an international perspective, Article 17G (Costs and damages) of the UNCITRAL Model Law provides that where measures should not have been granted, the party requesting shall be liable for costs and damages, and the arbitral tribunal may award such liability at any point during the proceedings 17. Article 24(6) of the Rules is the modern governance “landing point” that turns “wrongful application” from moral evaluation into a clear liability rule.

Article 39 of the New PRC Arbitration Law likewise provides, in the context of preservation and behavioral injunctions, that parties may apply for property preservation or request an order that the other party take certain actions or be prohibited from taking certain actions, and that if the application is erroneous, the applicant shall compensate the respondent for the loss as a result of the preservation 18. This aligns closely with paragraph (6) of the Rules, forming a dual-layer “rules–law” constraint that strengthens the duty of prudence in interim-measures applications.

By introducing damages liability for wrongful applications, paragraph (6) builds a risk-control and balancing mechanism, clearly defining legal consequences and substantially enhancing the seriousness and predictability of the procedure. Its liability logic aligns with PRC judicial standards for reviewing wrongful preservation, giving parties concrete behavioral guidance and highlighting prudence. It is also among the earlier and more systematic provisions in domestic arbitration rules to expressly stipulate damages for wrongful interim-measures applications, strengthening arbitration’s self-correcting capacity and demonstrating forward-looking completeness in rule design.

X. Paragraph (7): Judicial Coordination — A Compatibility Clause for “Court Coercive Power + Arbitral Autonomy”

Paragraph (7) clarifies that a party’s application to judicial authorities for provisional measures shall not be deemed as a derogation or waiver of the arbitration agreement.. This is crucial in practice. Particularly under PRC law, asset preservation and behavioral preservation still largely rely on the court’s coercive power. If parties fear that seeking court assistance will be misunderstood as “abandoning arbitration”, they may miss the best time window for necessary relief, materially undermining the enforceability of a future award.

The institutional function is to position judicial preservation support as auxiliary and protective to arbitration—not an alternative path conflicting with arbitral autonomy. It eliminates procedural concerns at the rules level and provides a clear normative basis for “pre-arbitration preservation” or parallel “arbitration + preservation” operation, ensuring interim relief channels remain open and effective.

This approach is consistent with mainstream international rules. LCIA Rules (2020) explicitly allow parties to apply to courts for interim measures before the formation of arbitral tribunal and, after the formation of the Arbitral Tribunal, in exceptional cases, emphasizing it as a party right and requiring appropriate information-sharing with the arbitration 19. HKIAC Rules (2024) refer to the coordinating body as a “competent authority” 20.

More importantly, paragraph (7) dovetails with Article 39 of the New PRC Arbitration Law, which similarly recognizes that in emergency, parties may apply to courts for preservation/injunctions before applying for arbitration, and provides that arbitral institutions shall submit such preservation applications to courts in accordance with law 21.

By establishing coordination between arbitration and judicial authorities for interim measures, paragraph (7) demonstrates practicality and foresight: it dispels misconceptions that “seeking judicial preservation equals waiving arbitration”, encourages timely use of lawful protections, and prevents substantive loss due to procedural hesitation. By precisely aligning with the New PRC Arbitration Law, it also refines the operational pathway for exercising rights at the institutional level, offering parties clear procedural guidance for coordinated use of arbitration and judicial resources, and reinforcing the completeness of arbitration through external judicial support, which is an important part of promoting the integrity of arbitration procedures.

Conclusion

Overall, Article 24 of the Rules does not merely pursue “stronger relief”, but constructs, through a seven-layer (seven-paragraph) design, an interim-measures governance system that balances efficiency, due process, and enforceability: it lowers comprehension barriers through a typology list; enhances reviewability through a duty of substantiation; offsets information asymmetry and misfire risk through a disclosure of material changes mechanism; achieves proportional calibration through dynamic adjustment; counters weaponization of procedure through damages liability for wrongful applications; and unlocks court assistance through a judicial-coordination clause.

Against the backdrop of the New PRC Arbitration Law’s express recognition of preservation and behavioral injunctions and its strengthened damages liability for wrongful applications, Article 24 rests on an even firmer foundation. If parties, at the early stage of a dispute, can establish three checklists—assets, evidence, and risks—pre-arrange security resources and alternative options, and prepare structured substantiation materials as required by paragraph (2), they are more likely to obtain effective relief within the critical time window—thereby transforming a “final award” into an “enforceable outcome”.