The Draft Arbitration Rules of the Patent Mediation and Arbitration Centre (PMAC) include important provisions on interim measures, designed to offer urgent protection in patent disputes. Under Article 26 of the Draft Rules, interim measures are temporary decisions granted before the final ruling on the merits of a dispute. These measures are critical in patent cases, especially in fast-moving sectors like pharmaceuticals, where irreparable harm can occur if a competitor enters the market before a decision is made.
The Draft Rules give arbitral tribunals broad discretion to order any interim measure deemed appropriate to maintain the status quo, preserve assets, or safeguard evidence. To obtain such a measure, the applicant must demonstrate that harm not adequately reparable by damages is likely without the intervention, and that this harm outweighs any harm the other party might face. Notably, the Draft Rules omit the commonly required demonstration of a likelihood of success on the merits, which is unusual and may invite debate.
A distinctive feature of the Draft Rules is the express permission for parties to seek interim measures on an ex parte basis—without prior notice to the opposing party—when prior disclosure risks frustrating the measure’s purpose. This is uncommon in arbitration rules and aims to enhance the speed and effectiveness of urgent relief.
However, to safeguard against unjustified interim decisions, the Draft Rules impose cost liability on applicants if the measure is later found to have been wrongly granted, although they do not explicitly provide for damages liability.
These provisions reflect a balance between flexibility, speed, and fairness in handling urgent patent disputes, marking a noteworthy development in arbitration rules under PMAC.