The Singapore High Court in PT Pukuafu Indah and others v Newmont Indonesia Ltd and another [2012] SGHC 187 has confirmed that under the Singapore International Arbitration Act, the Court has no power to set aside interim orders of the arbitral tribunal as such orders do not fall under the definition of “award”.

The policy argument as to why the Singapore Act was drafted in that manner, to deliberately omit the power to set aside interim orders, was set out as follows:

26     The temporary character of interim orders, as distinct from the finality of awards, also necessitates a separate approach towards these orders. It is possible that interim orders may be modified or terminated during the course of the arbitral proceedings. While the courts are willing to enforce these orders to ensure that the arbitration progresses smoothly, allowing parties to challenge an interim order would have the undesirable effect of staying the arbitration while judicial determination of the issue is pending. The better remedy, and one which could be determined with proper consideration of the substantive context of the dispute and which focuses on the actual merits of the grounds for ordering such relief, would be to have recourse to the arbitral tribunal and not the courts.

The provisions in Malaysia’s Arbitration Act 2005 would appear to also lead to a similar result in that a Court has no power to set aside an interim order (or interim measure) given by the tribunal. Section 2 of Malaysia’s Act also sets out that an “award” does not include interlocutory orders. Therefore, section 37 of Malaysia’s Act which provides for the setting aside of an “award” should not apply to interlocutory orders made by the tribunal.

Similar to the Singapore position, section 19 of Malaysia’s Act also provides that interim measures granted by the tribunal can be enforced by way of enforcement under section 38 (and be subject to opposition under section 39). There is an explicit omission to refer to section 37 for setting aside.