Interim Measure before Constitution of the Arbitral Tribunal: State Court or Emergency Arbitrator

An interim measure before the arbitral tribunal is constituted requires a prompt decision on the correct protection route. An arbitration agreement does not automatically remove state-court protection. At the same time, the tribunal can act under the Vienna Rules only once the file has been transmitted. Confusing these stages can lead to an unsuitable application and a loss of valuable time.

The central issue is therefore not simply whether the parties agreed to arbitrate. The concrete risk, the procedural stage and the authority that can actually order or enforce the requested measure must be identified together.

This article explains a state-court application under section 585 ZPO, measures by the arbitral tribunal under section 593 ZPO and the corresponding rule in Article 33 of the Vienna Rules. The separate question whether the Vienna Rules contain an Emergency Arbitrator mechanism is addressed only as a boundary to the procedural choice.

Interim Measures before Constitution: The First Decision

Before the arbitral tribunal is constituted, there is usually no tribunal that can decide an application for interim or conservatory measures. Under the Vienna Rules, the file is transmitted to the tribunal under Article 11 only once the statement of claim has been properly received, all members of the tribunal have been appointed and the advance on costs has been paid in full.

Article 33 paragraph 1 expressly links the tribunal’s power to that transmission. If this point has not yet been reached, the party must review state-court protection. This is not a free tactical choice between identical forums. It is a question of which decision-maker can act at the procedural stage in issue.

This must be distinguished from the organisational question whether the Vienna Rules provide an Emergency Arbitrator. That separate boundary is explained in the article on an Emergency Arbitrator under the Vienna Rules. The present article focuses on authority for the concrete protection request.

What Section 585 ZPO Allows despite an Arbitration Clause

Section 585 ZPO confirms that an arbitration agreement does not prevent a party from applying to a court for an interim or conservatory measure before or during the arbitration, or prevent the court from ordering such a measure. The arbitration clause therefore does not close the state-court protection route.

The state-court application does not decide the merits and does not replace the agreed arbitration. It is designed to address a concrete risk in time where the tribunal cannot yet act or where a measure requires a state authority or judicial enforcement.

The article on interim measures despite an arbitration clause provides the general framework. In the situation considered here, the precise procedural stage must be added to that analysis.

When the Tribunal Can Act under Article 33

Under Article 33 paragraph 1 of the Vienna Rules, unless the parties have agreed otherwise, the arbitral tribunal may order interim or conservatory measures against another party on request once the file has been transmitted to the tribunal. The other parties must be heard before the decision, and the tribunal may require appropriate security.

The order must be made in writing under Article 33. Unless the parties have agreed otherwise, it should state the reasons and identify the date and place of arbitration. These requirements concern a measure by an already functioning tribunal and are not the same as the requirements for an application to a state court.

Article 33 paragraph 5 also provides that the parties may apply to a competent national authority for interim or conservatory measures or for enforcement of a measure already ordered by the tribunal. Such an application does not infringe or waive the arbitration agreement and does not affect the tribunal’s powers. The applications must nevertheless be coordinated in procedural and practical terms.

Coordinate the State Court and the Tribunal

The two protection routes do not operate in isolation. A state court may be particularly important where the measure must affect a third party, requires public enforcement or the tribunal cannot yet decide because of the early stage of the proceedings. The requested measure and its place of enforcement should therefore be considered from the beginning.

After transmission of the file, the tribunal should be told which state-court applications have been made and which measures have been ordered. State-court submissions should in turn disclose the arbitration stage and the relevant arbitration agreement. This reduces the risk that two decision-makers act on different facts or differently framed requests.

The application should also distinguish protection of the subject matter from a final decision on the claim. An interim measure is not a substitute for an award and does not finally decide the tribunal’s jurisdiction.

What the Application Must Say about Risk and Relief

An application must describe the threatened interference concretely. In an asset-transfer case, the assets at risk, the identifiable act and the timeline should be stated. Where evidence may be lost, the relevant records, the risk of access or destruction and the specific preservation measure belong in the application.

Section 593 paragraph 1 ZPO refers to the risk that enforcement of the claim will be frustrated or substantially impeded, or that irreparable harm will occur. These criteria also help structure a state-court application under section 585, without treating the two proceedings as identical.

The requested order should be as precise as possible. A blanket prohibition on every disposition may be too broad. A better application connects the protected subject matter, the prohibited act and the duration of the measure in a way that can be decided and enforced.

Organise the Documents for an Urgent Application

The first file should contain the arbitration agreement, main contract, amendments and incorporated terms. Add current correspondence, proof of service and a short chronology of the events.

The material supporting the concrete risk is equally important. This may include account movements, register extracts, notices of delivery or disposition, technical records, messages or information about witnesses. The application should show what is established and what remains a provisional inference.

In a VIAC proceeding, also secure the filing date of the statement of claim, appointment notices, the status of the advance on costs and the notice that the file has been transmitted. These details determine whether Article 33 is available.

The topic page on preparing arbitration proceedings provides further guidance on claims, evidence and procedural stage.

Common Mistakes in Choosing the Protection Route

A frequent mistake is to send the request only to VIAC while overlooking that the file has not yet been transmitted to a constituted tribunal. At this early stage the institution and the tribunal do not automatically perform the same decision-making function.

It is equally problematic to assume that an arbitration agreement excludes state-court interim relief. Section 585 ZPO expressly answers that question differently. Failing to review the state-court route can leave a real protection option unused.

Finally, enforcement should not be considered only after the substantive application is drafted. Section 593 ZPO contains specific rules for court enforcement of a tribunal measure. The measure, seat, place of enforcement and suitable form of security must therefore be considered together.

Next Steps before a Decision is Made

First document the procedural stage: has the statement of claim been received, have all arbitrators been appointed, has the advance on costs been paid in full and has the file been transmitted? Second, describe the concrete risk through a chronology and the available supporting material.

Third, formulate the requested measure so that it can be decided and enforced. Keep the state-court application, the Article 33 application and any security separate. Fourth, ensure that communications to VIAC, the tribunal and the state court are based on the same procedural record.

The correct order depends on the case. Before transmission of the file, review of the state-court route under section 585 ZPO will often be central. After transmission, Article 33 of the Vienna Rules may open the tribunal route. Both require careful coordination rather than a generalised choice.

Frequently Asked Questions about Interim Relief before Constitution

Can I approach a state court before constitution despite an arbitration clause?

Yes. Section 585 ZPO does not prevent an application to a court for an interim or conservatory measure. The application should explain the risk, the requested measure and the procedural stage.

Does a state-court application waive the arbitration agreement?

No. The application does not decide the merits or remove the arbitration agreement. Article 33 paragraph 5 of the Vienna Rules also confirms that an application to a competent national authority does not in principle infringe or waive the arbitration agreement.

Can the arbitral tribunal order a measure before the file is transmitted?

Article 33 paragraph 1 of the Vienna Rules links the tribunal’s power to transmission of the file. Before that point, state-court protection under section 585 ZPO should be reviewed in particular.

Next step

Contract, arbitration clause, correspondence and deadlines should be collected. It can then be assessed whether negotiation, preservation or arbitration is central.