Professional Documents
Culture Documents
RIJKSUNIVERSITEIT GRONINGEN
TABLE OF CONTENTS
I.
INTRODUCTION............................................................................................................. 2
II.
III.
1.
2.
3.
IV.
CONCURENT JURISDICTION.....................................................................................8
THE GRANTING OF AN INTERIM MEASURE............................................................9
1.
2.
3.
4.
FORM......................................................................................................................... 10
V.
VI.
CONCLUSION............................................................................................................ 12
VII.
SOURCES..................................................................................................................14
I.
INTRODUCTION
Teams participating in the 22 Willem C. Vis International Commercial Arbitration Moot came across
several interesting issues. One of them was related to the grant of an interim measure of an emergency
arbitrator provided for by the 2012 ICC Rules of Arbitration. This particular remedy allows the parties
to be granted an order resembling the final award, by an emergency arbitrator, prior to the constitution
of their respective arbitral tribunal. The issue of interim measures 1 immediately spiked my interest.
While this particular case is entirely fictional, the real life disputes, settled by the international
commercial arbitration, may be just as complex. They arise between parties who operate on an
international level, sometimes deal with goods on volatile markets and are more often than not related
to business transactions of great monetary value.
Even though the arbitration procedure is often said to be considerably less time consuming and speedy
than court litigation it still takes the arbitrators more than two years, on average, to render the final
decision.2 Hence the parties confronted with an immediate threat to their rights must seek a remedy of
interim measures allowing them to mitigate such threats.
There is however many legal issues related to such remedies that will be further explored herein. This
paper first explores the legal nature and purpose of interim measures. It then further explores the issue
of authority of the arbitration tribunals and national courts to grant interim measures and their
enforcement. It explains the conditions under which such measures can be granted to the requesting
party and what form they should take. It also explores different safeguards that prevent abuse of
interim measures and aims to provide answers to abovementioned questions trough analysis of
different legal systems, multilateral agreements, practice of the arbitration tribunals and legal theory
developed by some of the most respected commentators in the field of international commercial
arbitration.
1 Different authors and legal systems provide different terms for interim measures such as provisional measure,
interim relief and precautionary measure. I will only use the term interim measure herein in order to avoid any
misunderstandings.
2 See Born B. Gary, International Commercial Arbitration - Comentary and Materials, 2nd edition,
Kluwer Law International, Transitional Publishers, Hague, 2001, p. 935 [hereinafter Born,
International Commercial Arbitration].
2
The aim of the paper is to provide any interested person with the knowledge essential to understand
how the interim measures can be obtained and what difficulties a requesting party may face on the way
from application for such remedy all the way to its enforcement.
II.
III.
agreement and the tribunal must therefore rely on applicable provisions of international treaties or
national law.
1.2. THE INTERNATIONAL TREATIES
International arbitration conventions have little to say about the authority of the arbitration tribunal to
issue such interim measures. 10 Provisions addressing the question of whether and when can an arbitral
tribunal grant such measures can neither be found in the New York convention nor 1961 European
Convention on International Commercial Arbitration for example.
1.3. APPLICABLE NATIONAL LAW
The applicable national law plays an important role in the tribunals decision to grant interim
measures. Different legal systems provide certain limits to the authority of arbitrators to issue orders
for interim measures. Some legal systems 11 for example contest the authority of arbitration tribunals to
grant an interim measure altogether, or explicitly state that the courts will not aid in enforcement of
such awards.12 Other legal systems 13 provide for an exhaustive list of possible interim measures that an
arbitration tribunal may issue, or provide that arbitration tribunal has the same authority to issue
interim measures as a national court, which would have the jurisdiction in the dispute at hand. Some
legal systems on the other hand go a step further and allow the arbitration tribunals to be quite creative
with the issuing of the interim measures providing them with an authority to fashion any remedies that
they believe will do justice between the parties. 14
The parties to the arbitration agreement must hence pay due consideration to the applicable national
law. In fact, an arbitrator will seldom grant an interim measure unless the applicable national
legislation applicable to the arbitration procedure allows them to do so since such measure may
otherwise not be enforceable in a national court. This is where the national law may trump the
contractual provisions included in the arbitration agreement and render them either invalid or de facto
useless.
10 Born, International Commercial Arbitration, p. 922.
11 See for example Thailand on p. 776, Italy on p. 448 and Israel on p. 435 in Newman W. Lawrence,
Colin Ong, Interim Measures in International Arbitration, Juric, cop, New York, 2014 [hereinafter
Newman and Ong, Interim Measures in International Arbitration].
12 See for example Japan in Newman and Ong, Interim Measures in International Arbitration, p. 477.
13 See for example Vietnam on p. 901, England on p. 275 and Hong Kong on p. 375 in Newman and
Ong, Interim Measures in International Arbitration.
14 See for example USA on p. 869, Norway on p. 577 and Mexico on p. 526 of Newman and Ong,
Interim Measures in International Arbitration.
7
15 Some exceptions such as appointing an emergency arbitrator however may allow for the party to
obtain an interim measure prior to constitution of a proper arbitration tribunal.
16 Born, International Commercial Arbitration, p. 935.
17 Redfern D. Alan, Arbitration and the Courts: Interim Measures of Protection--Is the Tide about to
Turn, Texas International Law Journal, 30.1.1995, p. 72.
9
Some legal systems24 in fact choose to do just that, whereas other 25 give the national courts the right to
aid arbitration proceedings by granting interim measures explicitly. Some 26 do so at the exclusion of
the authority of the arbitration tribunals to issue such remedies. It is therefore important that the parties
consider that when for example choosing the seat of arbitration.
24 See for example Japan on p. 477 at Newman and Ong, Interim Measures in International
Arbitration.
25 See for example Australia on p. 24, Finland on p. 281 and Ireland on p. 397 at
Newman and Ong, Interim Measures in International Arbitration.
26 See for example Argentina on p. 2 at Newman and Ong, Interim Measures in
International Arbitration.
11
3. CONCURENT JURISDICTION
When two or more courts from different systems have jurisdiction over the same claim or dispute the
problem of concurrent jurisdiction arise. If permitted to pursue the same claim at more than one court
simultaneously, the parties may find themselves in an awkward legal position where the respective
courts issue contradicting decisions.
The same problem could arose if the parties to the arbitration agreement sought a remedy of interim
measure at the arbitration tribunal and national court simultaneously. To avoid such contradictory
decisions different measures are in place. Whereas the national legal systems usually solve the
problem by the implementation of the lis pendens doctrine into the national legislation on litigation
procedure, the procedural rules of international arbitration often impose measures such as an
obligation of disclosure on the party requesting an interim measure from a court. 29 The ICC rules for
example provide that the party must communicate any application submitted to the court as well as
any measure taken to the ICC Secretariat, which in turn has to inform the arbitral tribunal.
27 See Hon J. Edgar Sexton, Caught between Arbitrators and the Courts: Interim
Measures in the U.S. International Arbitration, Canadian Arbitration and Mediation
Journal, 2012, p. 1.
28 Roth Marianne, Interim measures, p. 433.
29 Ibid.
12
IV.
In addition to the fact that interim measures may play a crucial role in preserving the rights of parties
pending the final decision, the interim measure may also have a considerable effect on the outcome of
the proceedings and some authors even suggest that they may often decide the dispute. Hence the
conditions and standards for granting interim measures may play very important role in international
commercial arbitration proceedings.
14
6. FORM
In most cases, deciding upon the form of the provisional measures falls under the discretion of the
arbitration tribunal.37 They can be rendered either in a form of a procedural order or as an interim
award. In that regard the tribunals usually take into consideration the kind of measure being invoked
and the applicable procedural law. However, arbitrators are usually in favour of issuing an informal
procedural order because a more formal interim award may appear too similar to a decision on the
merits of the dispute38.
Form in which the requested interim measure is granted may however play an important role when a
party requests a recognition and enforcement of such measure by the competent court. When the
application of these interim measures is drawn up in the form of a written decision it is more likely to
be executed by the national court on the territory where the interested party that has made a relevant
application39.
35 Redfern D. Alan, Arbitration and the Courts: Interim Measures of Protection--Is the Tide about to
Turn, Texas International Law Journal, 30.1.1995, p. 79.
36 Alan D. Redfern, M. Hunter, Nigel Blackaby, Constantine Partasides, Law and
Practice of International Commercial Arbitration, 4th edition, Sweet & Maxwell,
2004, p. 335.
37 Roth Marianne, Interim measures, p. 430.
38 Ibid.
39 Yu Prytyka, Interim Measures in International Commercial Arbitration, Law of Ukraine: Legal
Journal, 201, p. 152.
15
16
V.
RECOGNITION AND
MEASURES
ENFORCEMENT OF INTERIM
The very purpose of interim measures is to safeguard the rights of a party facing an imminent threat
during the course of a litigation procedure. Without a speedy acquisition and enforcement an interim
measure hence loses its value for the requesting party. In case of interim measures granted by the
courts in aid of the arbitration procedures the enforcement does not represent a particular problem. The
authority of the courts is established upon the sovereignty of the state and finds its legal basis in its
legislation. Since the state has a monopoly upon the use of any coercive means on its territory the
national courts as its body have no problem at enforcing the decisions even against the will of the
parties in the litigation proceedings.
There are however important limitations upon what an arbitral tribunal can do to enforce its decisions.
The authority of the arbitration tribunal is based on the consensual will of the parties to settle their
dispute by the use of its service. In addition the arbitration tribunal is composed of private individuals
and not state officials. While they may be persons of gravitas and will usually have considerable
powers conferred upon them by the parties, or by operation of law, they do not possess the same
powers to enforce their decision as does the court 40.
The lack of such power of the arbitration tribunal creates a need for assistance from the courts. In
order to make arbitration agreements effective, the parties must be able to force one another to comply
with the decision. This need has long been recognized in domestic legislation as well as the
international treaties, such as the Geneva Protocol and the New York Convention.
As already explained above 41 multilateral treaties do not deal with the interim measures specifically
but do empower the national courts of the Contracting Parties with an authority to enforce arbitration
awards. National legislation may however contest enforcement of the interim measures issued by the
arbitration tribunals.42
40Redfern D. Alan, Arbitration and the Courts: Interim Measures of Protection--Is the Tide about to
Turn, Texas International Law Journal, 30.1.1995, p. p73
41 See 2.2. The International Treaties herein.
42 Hereinafter MAL.
17
An important development in this respect is the Model Law on International Commercial Arbitration
designed to assist the states in reforming and modernising their laws on arbitral procedure. It was
amended in 2006 and provides that an interim measure shall be recognized as binding and enforceable
upon application to the competent court, irrespective of the country in which it was issued. 43 This is
especially important in cases where the seat of the arbitration is located in a neutral state where the
party who the interim measure is aimed to constrain does not have any assets in.
The MAL also imposes certain safeguards and obligations upon the party that requested the interim
measure. It must for example inform the court enforcing the measure of any termination, modification
or suspension of such remedy.44
VI.
CONCLUSION
Interim measures are the legal instrument that allows a party facing the imminent threat to its rights to
secure its position pending the final award. This remedy is all the more important in the context of
international commercial arbitration due to specific risks that parties face in such disputes. The aim of
the interim measures is to maintain the status quo, preserve the assets, preserve the necessary evidence
or protect the arbitral process itself.
The requesting party must show that it is facing imminent threat of irreparable harm unless the
proposed interim measure is granted. It must further show that this potential threat outweighs the harm
caused by implementation of the requested interim measure to the other party, unless the interim
measure aims at the protection of evidence or arbitral procedure itself. The party must also be mindful
of the fact that it may be liable for any damages caused to the other party by implementation of the
interim measure.
An analysis of the national legislations governing the arbitration proceedings shows that most systems
grant the arbitration tribunals an authority to issue interim measures. Resorting to the courts in order to
provide enforcement of such interim measures does not however preclude the parties right to
afterwards continue the proceedings in accordance with their respective arbitration agreement. 45 The
decision on whether to request such measures at the national courts or the arbitration tribunal is
therefore in the hands of the requesting party that must carefully consider all the important factors. In
general it may be preferable for the party to request interim measures from the national courts in cases
where they are to be granted ex parte, against third parties or prior the arbitration tribunal has been
constituted.
The authority of the tribunals and courts to grant such relief may be limited by the arbitration
agreement and subsequent choice of rules of the institutional arbitration, multilateral treaties and
applicable national law governing the litigation or arbitration process.
In cases where the interim measure was granted by the tribunal in the arbitration procedure the party
must make sure that the remedy can be enforced by a competent court in order for the measure to be
fully effective.
VII.
SOURCES
-
Redfern D. Alan: Arbitration and the Courts: Interim Measures of Protection--Is the Tide
about to Turn, Texas International Law Journal, 1995;
Hon J. Edgar Sexton: Caught between Arbitrators and the Courts: Interim Measures in
the U.S. International Arbitration, Canadian Arbitration and Mediation Journal, 2012;
20