A Regulatory and Comparative Analysis
THE AUTHORS:
Thomas R. Snider, Partner & Head of International Arbitration at Charles Russell Speechlys
Ahmad Anani, Head of Capital Markets and Regulation at Charles Russell Speechlys
Etidal Alwazani, Legal Director at Charles Russell Speechlys
Introduction
Certain disputes are so time sensitive that even brief delays can cause irreparable harm. In international arbitration, interim measures are essential to prevent such harm and ensure the process remains meaningful, as justice delayed can effectively be justice denied. Interim relief protects parties from imminent risks without prejudicing the tribunal’s final decision.
The role of urgent measures in arbitration is highly debated because it balances the need for swift protection with respect for party autonomy and minimal court intervention. Jurisdictions vary in how they regulate this balance, making it crucial to understand these differences to evaluate the effectiveness of any interim-measures regime.
This article examines the regime governing interim measures under Law No. 2 of 2017 Promulgating the Qatari Civil and Commercial Arbitration Law (the “Qatari Arbitration Law”), focusing on the respective roles of national courts and arbitral tribunals. The analysis is limited to the statutory framework applicable to onshore arbitration in Qatar.
Court Jurisdiction Over Interim Measures in the Presence of an Arbitration Agreement
Article 8 of the Qatari Arbitration Law establishes the principle that, when a valid arbitration agreement exists, a court seized of the dispute must decline jurisdiction. However, Article 9 introduces a specific regime concerning interim relief. Under this provision, parties are permitted to seek interim measures from the urgent-matters judge in situations where immediate protection is necessary, and the arbitral tribunal is unable to act in a timely manner.
Article 9 delineates the boundaries of judicial intervention. It states that:
“Where the arbitral tribunal, or any person vested by the parties with relevant authority, has no jurisdiction or is unable to act effectively at the time, the competent judge may, upon application of a party, order interim or conservatory measures including those set out under Article 17(1) whether before or during the arbitral proceedings. Such an application shall not be deemed a waiver of the arbitration agreement.”
This wording clarifies that the principle preventing court jurisdiction due to an arbitration agreement (the so-called negative effect) does not apply to interim measures proceedings. The urgent-matters judge retains a narrowly defined jurisdiction to grant interim measures, but only in circumstances where the arbitral tribunal does not have jurisdiction or cannot act effectively at the relevant moment. In adopting this approach, the Qatari Arbitration Law favours a targeted and limited model of judicial support, ensuring that court involvement remains exceptional and is strictly subsidiary to the arbitral process.
This approach prompts a comparison with established regional and international models. The following overview contrasts Article 9 of the Qatari Arbitration Law with the UNCITRAL Model Law on International Commercial Arbitration 2006, as well as the approaches taken in Singapore and the UAE, focusing on the scope of court authority in each system.
Comparative Table: Court Powers to Grant Interim Measures in Arbitration
The following table outlines the circumstances under which courts in various jurisdictions may grant interim measures during arbitration, providing a comparative perspective on the different approaches adopted.
| Benchmarked Model | Reference | When the Court May Grant Interim Measures |
|---|---|---|
| UNCITRAL Model Law (2006) | Article (9), 17J | At any time, before or during arbitration, regardless of tribunal constitution or ability to act. The court retains broad authority to grant interim measures upon a party’s request. |
| The Qatari Arbitration Law | Article (9) | Only if the arbitral tribunal has no jurisdiction or is unable to act effectively at the relevant time. |
| Singapore International Arbitration Act | Section 12A | Only where the arbitral tribunal has no power or is unable to act effectively at the time. In non-urgent matters, the court may act only after notifying the tribunal and obtaining its permission or the written agreement of the parties. |
| UAE Federal Law No.6 of 2018 on Arbitration | Article (18) | At any time, before or during arbitration, regardless of tribunal constitution or ability to act. The court retains broad authority to grant interim measures upon a party’s request. |
This comparative table demonstrates two principal approaches regarding the role of courts in granting interim measures during arbitration. The first is the Broad “Free-Choice” Approach, which is adopted by the UNCITRAL Model Law and is also seen in the legislative framework of the United Arab Emirates. Under this system, courts possess full parallel authority to issue interim relief. Parties are not required to demonstrate that the arbitral tribunal is unable to act before seeking judicial intervention. This arrangement allows parties to freely choose whether to approach the courts or the arbitral tribunal for interim measures. While this ensures immediate access to judicial protection, it also increases the likelihood of judicial involvement in the arbitration process.
Conversely, the Limited “Court-Subsidiarity” Approach is adopted by Qatar, Singapore. In these jurisdictions, the powers of the courts are strictly complementary to those of the arbitral tribunal. Court intervention is only permitted when the tribunal lacks jurisdiction or is unable to act effectively. This approach maintains arbitration as the primary forum for dispute resolution, ensuring that the role of the courts is limited to serving as a safeguard in exceptional circumstances.
Although the Qatari Arbitration Law draws heavily from the UNCITRAL Model Law, especially in its recognition of both arbitral tribunals’ and courts’ powers concerning interim measures, it is not a wholesale adoption. Instead, Qatar’s legislation adopts the foundational principles of the UNCITRAL framework and adapts them to the unique legal and procedural landscape of Qatar. This approach ensures that the law remains true to the spirit of the UNCITRAL Model Law, yet incorporates tailored provisions that reflect the specific context and requirements of arbitration within Qatar.
The Arbitral Tribunal’s Power to Issue Interim Measures
The question of whether arbitral tribunals possess the authority to issue interim relief was once a point of contention. However, this issue has now been conclusively resolved. The current focus of debate centres not on the existence of such powers, but rather on their legal basis, specifically, whether the authority is an inherent aspect of the tribunal’s mandate or if it depends upon explicit agreement between the parties.
According to Article 17(1) and (2) of the Qatari Arbitration Law, arbitral tribunals are expressly empowered to grant interim or provisional measures at the request of either party, unless the parties have agreed otherwise. The types of relief that may be ordered include:
- Maintaining or reinstating the status quo while the dispute is being determined;
- Preventing current or imminent harm, or taking steps to avoid actions that could prejudice the arbitral process;
- Preserving assets from which an eventual award may be enforced;
- Safeguarding evidence that may prove relevant to the dispute.
In summary, the Qatari Arbitration Law establishes that arbitral tribunals possess the authority to grant interim measures as a default position. This power is considered an inherent aspect of the tribunal’s mandate to resolve disputes efficiently and fairly. Unless the parties have specifically agreed to exclude this authority, the tribunal is presumed to have the competence to order such measures.
This approach mirrors the UNCITRAL Model Law, which similarly presumes that tribunals hold the power to grant interim relief unless expressly limited by party agreement. It also aligns with the frameworks adopted in Singapore (under the IAA) and the United Arab Emirates, where the inherent authority of the arbitral tribunal to provide interim protection is recognised unless the parties stipulate otherwise.
By incorporating this principle, the Qatari regime ensures that tribunals are equipped with the necessary procedural tools to protect parties’ rights and maintain the integrity of the arbitral process, thereby supporting the broader objectives of effective and timely dispute resolution.
Enforcement of Tribunal Interim Measures
The enforcement of interim measures granted by arbitral tribunals has historically presented considerable challenges, primarily because tribunals themselves lack the direct powers of enforcement that are vested in state courts. This limitation frequently results in both practical and legal difficulties when seeking to ensure that interim measures ordered in the course of arbitration are effective and respected.
Under Article 17(3) of the Qatari Arbitration Law, a party who obtains a provisional measure or interim award from an arbitral tribunal is required to secure written authorisation from the tribunal before seeking enforcement through the courts. Only after this formal permission has been obtained may the party approach the competent judge to request enforcement of the tribunal’s decision.
The process necessitates that the party seeking enforcement first acquires the tribunal’s written consent. Upon receiving this authorisation, the party is then entitled to petition the competent judge for an enforcement order. The law obliges the judge to uphold the tribunal’s measure unless the order or award is found to contradict the law or public policy. It is notable that, in contrast to the UAE Federal Law No. 6 of 2018 on Arbitration (Article 21(4)), which introduces a fifteen-day period for enforcement applications, the Qatari Arbitration Law does not stipulate any specific statutory deadline for such requests.
Key Features of the Qatari Enforcement Process
- Recourse to the courts is conditional upon obtaining approval from the arbitral tribunal. This requirement reinforces the tribunal’s central role in the process and differs from the UNCITRAL Model Law, which does not require such permission.
- Any application made to the court must be served on all parties involved, with copies of both the court petition and the tribunal’s written permission provided to each party.
- The competent judge is mandated to uphold the tribunal’s order unless it violates law or public policy.
- As of now, there are no reported decisions from the Qatari courts regarding the application of Article 17.
Comparative Table: Overview of Interim Measure Enforcement
The following table provides a comparative analysis of the requirements and grounds for court enforcement of arbitral interim measures across several arbitration frameworks. This structured summary highlights whether tribunal authorisation is required prior to seeking enforcement and outlines the main grounds upon which national courts may refuse or review such applications.
| Benchmarked Model | Reference | Is Tribunal Authorisation Required Before Enforcement? | Court’s Refusal Grounds / Review |
|---|---|---|---|
| UNCITRAL Model Law (2006) | Arts. 17H–17I | No. The Model Law permits direct court enforcement of interim measures “upon application” by the party, unless the tribunal has stipulated otherwise. | The court may refuse enforcement if the tribunal’s measure has been terminated, is inconsistent with the court’s powers, or for general award refusal grounds such as an invalid agreement or breach of public policy. |
| The Qatari Arbitration Law | Art. 17(3) | Yes. The law explicitly requires a party to obtain written permission from the arbitral tribunal before approaching the court for enforcement. | Enforcement is refused if the measure violates Qatari law or public policy. |
| Singapore International Arbitration Act | Section 12(6) | No. The law requires only the court’s leave to enforce arbitral orders; tribunal authorisation is not needed. | Enforcement may be refused where the tribunal order was ultra vires (beyond the tribunal’s power), enforcement would breach public policy, or the enforcement attempt is considered abusive. |
| UAE Federal Law No.6 of 2018 on Arbitration | Article 21(4) | Yes. The law provides that a party may only approach the court to enforce an interim measure after obtaining written permission from the arbitral tribunal. | Refusal grounds are not explicitly defined; the law does not enumerate specific bases for court refusal. |
The systems examined reveal distinct models for the enforcement of interim measures issued by arbitral tribunals. These differences reflect varying priorities in balancing the effectiveness of enforcement with the role courts play in supporting arbitration. Specifically, the UNCITRAL Model Law and Singapore permit parties to seek enforcement directly from the courts, with no requirement to obtain prior authorisation from the arbitral tribunal. In contrast, Qatar and the UAE require parties to secure approval from the tribunal before approaching the courts, though the formality of this requirement varies between the two jurisdictions.
The divergence in these approaches results in notable practical consequences. In jurisdictions where tribunal approval is not required, the process of enforcement is generally more streamlined, allowing for expedited court involvement. Conversely, systems that mandate tribunal authorisation seek to maintain the tribunal’s oversight of enforcement actions, thereby reducing the risk of duplicative or inconsistent orders. Within this context, the Qatari regime adopts a model that emphasises coordination between the tribunal and the courts, while still permitting judicial support when appropriate.
There are also important differences regarding the scope of judicial review and the grounds upon which a court may refuse to enforce an interim measure. Under the UNCITRAL Model Law and Singapore legislation, courts are empowered to assess whether the measure falls within the tribunal’s powers, remains in force, or would breach public policy. The Qatari regime, in addition to considering public policy, provides a wider ground for refusal, allowing courts to reject enforcement if the measure conflicts with Qatari law. The UAE framework, on the other hand, is less prescriptive, offering minimal legislative guidance and not specifying particular grounds for refusal.
Conclusion
The Qatari Arbitration Law adopts a hybrid approach that carefully balances the autonomy of arbitral tribunals with the supportive role of the courts. This structure is designed to maintain the tribunal’s authority over the proceedings while ensuring that judicial intervention is available when required, particularly in cases of urgency where effective relief is necessary.
In comparison with other leading arbitration jurisdictions, Qatar’s system demonstrates a coherent alignment with contemporary arbitration practices. By integrating features that reflect both international standards and the specificities of the local legal environment, the Qatari framework manages to uphold procedural integrity and predictability. The regime’s mechanisms for the enforcement of interim measures are crafted to facilitate prompt and effective relief, reinforcing the credibility and reliability of arbitration as a dispute resolution method within Qatar.
ABOUT THE AUTHORS
Thomas R. Snider is a Partner & Head of International Arbitration at Charles Russell Speechlys. He is a globally recognized international arbitration specialist whose experience covers a wide range of industries, sectors, and types of disputes. Tom’s practice focuses on international commercial arbitration, international investment disputes, state-to-state arbitration, and foreign sovereign immunity issues.
Ahmad Anani is the Head of Capital Markets and Regulation at Charles Russell Speechlys. He has more than 25 years of experience within the GCC. His practice spans a wide range of legal areas including mergers and acquisitions, initial public offerings (IPOs), joint ventures, property law, and labor law. Renowned for his strategic insight and in-depth knowledge in corporate, financial, and policy matters, Ahmad is a distinguished authority in his field.
Etidal Alwazani is the Legal Director at Charles Russell Speechlys. With over nine years of experience, she specialises in policy development, regulatory frameworks, and legal consultancy across the Middle East. She has played a pivotal role in guiding government entities through complex regulatory landscapes and development initiatives. Her expertise spans sectors including industry, tourism, culture, justice, the judiciary, real estate, and finance, contributing significantly to transformative projects.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
