Published: 2026-02-27 00:00
In the complex proceedings of international commercial arbitration, the resolution of a dispute is often not achieved in a single step but constitutes a continuous and dynamic process. During this process, certain procedural or substantive issues may become obstacles hindering the efficient progress of the proceedings, or may need to be determined urgently to guide subsequent hearings. The interlocutory award is a crucial procedural tool designed to meet this need. It refers to an interim decision on the procedural or substantive issues of the case, made by the Arbitral Tribunal during the arbitration proceedings and before the final award is rendered, aimed at facilitating the conduct of the arbitration proceedings. The interlocutory award allow the Arbitral Tribunal to hear and decide on specific issues in advance without interrupting the overall proceedings, thereby guiding the direction for the subsequent arbitration process.
I. Rule Text
Article 39. Interlocutory Award
1. If the Arbitral Tribunal deems it necessary or if the parties make a request to which the Arbitral Tribunal agrees, the Arbitral Tribunal may make an interlocutory award on the relevant procedural or substantive issues of the case before making a final award.
2. The making and performance of an interlocutory award shall not affect the procession of the arbitral proceedings or the final award made by the Arbitral Tribunal.
Ⅱ. The Main Purpose and Significance Analysis of “Interlocutory Award”
The core purpose of this article is to equip the Arbitral Tribunal with tools to advance the proceedings, thereby enhancing the efficiency, manageability, and predictability of the arbitration process. This provision is not necessarily a substantive norm concerning the final allocation of liability, but rather a procedural mechanism serving the smooth progress of the arbitration proceedings.
First, this provision helps enhance procedural efficiency. In the complex international commercial arbitrations, parties may have intense disputes over preliminary issues, such as the applicable law, the scope of evidence discovery, appraisal, or prior performance obligations under the contract. If all issues had to be resolved together in the final award, proceedings could be stalled for long periods due to these preliminary disputes. The interlocutory award system allows the Arbitral Tribunal to rule on such key issues in advance when necessary. Once made, subsequent proceedings can unfold rapidly within the framework established by that award, avoiding unnecessary delays and resource waste.
Second, this provision helps focus the issues in dispute. For certain core substantive issues in a case, such as the validity of a specific contract clause, the applicability of a particular method for calculating losses, or whether one party has committed a fundamental breach, making an interlocutory award in advance can help clarify the focus for subsequent hearings. This assists parties in adjusting their strategies, concentrating their resources on arguing the remaining issues, and may even facilitate a settlement based on a clearer understanding of the facts and legal position.
Ⅲ. Analysis of Article 39, Paragraph 1: Initiation Requirements, Applicable Timing, and Content of the Interlocutory Award
This paragraph stipulates the methods for initiating an interlocutory award and the scope of matters that can be decided. It helps understanding how the interlocutory award system operates.
Regarding the method of initiation, “if the Arbitral Tribunal deems it necessary” is the primary path for activating the system. This grants the Arbitral Tribunal broad procedural autonomy, enabling it to proactively identify and decide on issues that hinder the proceedings or urgently need clarification based on the needs of case management. Determining whether it is necessary falls within the Arbitral Tribunal’s discretion, typically considering factors including whether the issue is a prerequisite for subsequent proceedings, whether an advance ruling would help save overall time and costs, and whether the issue is relatively independent and separable. Besides the Arbitral Tribunal initiating an interlocutory award on its own motion, parties may also submit a request. However, such a request must be approved by the Arbitral Tribunal. This design both responds to the parties’ procedural needs and prevents the parties from employing delay tactics through repeated or frivolous requests for interlocutory awards. When reviewing a party’s request, the Arbitral Tribunal will assess its reasonableness, urgency, and overall impact on the proceedings.
Regarding the applicable timing, this provision clarifies that an interlocutory award may be made before making a final award. First, this clarifies the procedural positioning of the interlocutory award as an interim decision made prior to the final award. Second, it emphasizes that the function of the interlocutory award is to serve the making of the final award, primarily used to resolve preliminary, independent disputes that, if left to be dealt with together in the final award, would hinder the efficient progress of the proceedings or affect the quality of the final award. Third, from the perspective of procedural conclusion, “before making a final award” also implies that once the Arbitral Tribunal has deliberated on all disputed matters and rendered the final award, there is no need and no possibility to initiate an interlocutory award.
Regarding the content, this provision explicitly states that an interlocutory award may address relevant procedural or substantive issues of the case. Procedural issues are the most common area for interlocutory award. Looking at the international commercial arbitration rules, the ICC Arbitration Rules①, the SCC Arbitration Rules②, the SIAC Rules③ and the HKIAC Administered Arbitration Rules④ all provide that interim measures may take the form of an order or an award, which includes the interlocutory award.
Interlocutory awards on substantive issues must satisfy the conditions of being necessary and severable. For example, ruling first on whether a party constitutes breach of contract or tort, leaving the calculation of damages for later; or ruling first on the interpretation of a key contract clause to guide subsequent fact-finding. It is important to note that interlocutory awards typically deal with issues that are final or determinative, meaning the decision on that issue will have substantive binding force, rather than being mere procedural scheduling instructions.
Ⅳ. Analysis of Article 39, Paragraph 2: Procedural Independence of the Interlocutory Award
This paragraph clarifies the unique status of the interlocutory award within the arbitration proceedings, elucidating its relationship with the arbitration process and the final award. Whether an interlocutory award is made and performed does not affect the procession of the arbitral proceedings. This establishes the principle of procedural independence of the interlocutory award.
First, the act of the making of an interlocutory award does not mean the arbitration proceedings are suspended. While making the interlocutory award, the Arbitral Tribunal can and should continue to advance other aspects of the proceedings, such as scheduling subsequent hearings or receiving evidence.
Second, even if a party fails to perform the interlocutory award, the arbitration proceedings will not automatically be suspended. The non-performance may constitute an adverse factor in subsequent proceedings, serve as a factual reference for the Arbitral Tribunal in making the final award, or even trigger separate enforcement proceedings. However, the Arbitral Tribunal’s power and process to make a final award on the main disputes of the case are not directly affected.
Ⅴ. Conclusion
Article 39 of the ICDPASO Commercial Arbitration Rules, through its two concise paragraphs, establishes a flexible and efficient interlocutory award system. It is not only a procedural management tool in the hands of the Arbitral Tribunal for clearing procedural obstacles and focusing on core disputes, but also a dynamic communication bridge, providing parties with earlier certainty, potentially catalyzing settlement or optimizing subsequent legal strategies. For arbitrators, skillful use of this provision demonstrates proficiency in managing complex procedures and professional competence. For parties and their representatives, understanding and strategically utilizing this provision is an important part of optimizing arbitration strategy and protecting their own rights and interests.
In today’s increasingly complex and specialized international commercial arbitration landscape, the existence and effective use of the interlocutory award provision significantly enhance the capability of the ICDPASO Commercial Arbitration Rules to handle complex disputes. It reflects the evolution of modern arbitration from the simple paradigm of a single final award towards a focus on refined procedural management and phased dispute resolution, demonstrating ICDPASO’s commitment to providing international commercial entities with a high-standard dispute resolution service that is efficient, rigorous and fair.
① ICC Arbitration Rules (2021), Art. 28.1, which provides that: “Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The arbitral tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an award, as the arbitral tribunal considers appropriate.” ② SCC Arbitration Rules (2023), Art. 37.3, which provides that: “An interim measure shall take the form of an order or an award.” ③ SIAC Rules (2025), Art. 45.1, which provides that: “Unless otherwise agreed by the parties, the Tribunal may, at the request of a party, issue an order or an award granting any interim or conservatory relief it deems appropriate. The Tribunal may order the party requesting interim or conservatory relief to provide appropriate security in connection with the relief sought.” ④ HKIAC Administered Arbitration Rules (2024), Art. 23.3, which provides that: “An interim measure, whether in the form of an order or award or in another form, is any temporary measure ordered by the arbitral tribunal at any time before it issues the award by which the dispute is finally decided, that a party, for example and without limitation: (a) maintain or restore the status quo pending determination of the dispute; or (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; or (c) provide a means of preserving assets out of which a subsequent award may be satisfied; or (d) preserve evidence that may be relevant and material to the resolution of the dispute.”
