Interim relief is where the simplistic slogan “arbitration instead of litigation” usually stops working. 

German arbitration law is explicit about this. Under section 1033 ZPO, it is not incompatible with an arbitration agreement for a party to request interim measures from a court before or during arbitral proceedings. In other words, choosing arbitration on the merits does not mean giving up the court system when urgent coercive relief is needed. At the same time, section 1041 ZPO authorises the tribunal to order interim or protective measures unless the parties have agreed otherwise. 

The 2018 DIS and 2026 ICC Rules reflect the same basic division of powers. Article 25.3 DIS permits parties to seek interim or conservatory measures from any competent court at any time. Under Article 29(2) ICC, parties may apply to a competent judicial authority before the file is transmitted to the tribunal and, in appropriate circumstances, thereafter. The 2026 ICC Rules additionally provide for an emergency arbitrator mechanism (Article 31 ICC). Under the 2026 ICC Rules, the emergency arbitrator may also grant preliminary orders directing another party not to frustrate the purpose of the emergency application. Such a request may be made and decided without notice to all other parties. If the order is granted, however, the emergency arbitrator must immediately give the other parties a reasonable opportunity to present their case (Appendix IV, Article 7 ICC).

The practical limitation is enforcement. Tribunal-ordered interim measures do not automatically carry the same coercive weight as a court order. Under section 1041 ZPO, court involvement is still needed to declare such measures enforceable. That is why urgency analysis must be concrete. If the likely risk is asset dissipation, evidence destruction, confidentiality leakage, supply interruption, or threatened IP misuse, the real question is not just whether interim relief is theoretically available in arbitration. It is whether it can be obtained and enforced quickly enough where it actually matters. Sometimes the strategic answer is “arbitration on the merits, court for the emergency.”

This is an area the current German arbitration reform seeks to strengthen in Germany: proposed section 1041 ZPO Draft, read together with proposed section 1025(2) ZPO Draft, would make enforcement more rule-based and extend it to certain measures ordered by foreign-seated tribunals.

Forum choice cannot sensibly ignore urgency. In some disputes, courts remain the stronger first responder. In others, the combination of arbitration and court support is entirely workable.

Key takeaway 

If urgent protective measures may become business-critical, the dispute clause should be tested against the speed and enforceability of interim relief, not only against the merits procedure. 

German Disputes Bites series

We hope you are enjoying our series of blogs on Litigation vs Arbitration. This series will cover different aspects of the choice between a litigation or arbitration forum. Previous posts in the series:

• German Disputes Bites – Arbitration vs Litigation: confidentiality doesn’t make a dispute invisible

• German Disputes Bites – Arbitration vs Litigation: deciding who decides?

• German Disputes Bites – Arbitration vs Litigation: tribunal choice is key strategic phase

• German Disputes Bites – Arbitration vs Litigation: procedural flexibility is an advantage if managed

• German Disputes Bites – Arbitration vs Litigation: choosing the right forum for enforcement

• German Disputes Bites – Arbitration vs Litigation: Arbitration gets messy when dispute is not bilateral

• German Disputes Bites – Arbitration vs Litigation: speed depends on lifecycle realities