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CHAPTER 8
ARBITRAL INTERIM MEASURES:
FACT OR FICTION?
Raymond J. Werbicki
I. Introduction
The practical importance of interim measures of protection is well
understood by litigation and arbitration practitioners alike. From, and in
some cases even before, the outset of court or arbitration proceedings,
problems may arise that can have a major, at times determinative, effect
on the final outcome. A classic example is when existing evidence that
would influence the result may be destroyed or lost. Another example
is when there is a risk that identifiable assets that could satisfy a claim
may be placed out of reach and therefore will not be available if the
claim were to succeed.
In all civilized countries, courts have developed detailed procedures
under which parties to their proceedings may apply for, and in
appropriate circumstances, obtain a variety of interim measures. For
example, in England, a party to an action in the courts may obtain
interim measures, including orders to freeze assets, require interim
payments, search and seize property in the hands of a party, preserve
documents and other forms of evidence, restrain or compel particular
acts or conduct by a party, or provide security for costs. Such orders may
be enforced against persons within the territorial jurisdiction of the court,
by proceedings for attachment or contempt.1
At first sight, the ability of parties to a commercial arbitration to
obtain interim measures from the arbitral tribunal might not appear to
pose any particular problem. For example, parties who agree to arbitrate
under the International Arbitration Rules of the American Arbitration
See McCreary Tire & Rubber Co v. Seat SpA, 501 F.2d 1032; Channel Tunnel
Group v. Balfour Beatty [1993] AC 334 (HL); NCC International AB v. Alliance
Concrete Singapore Pte Ltd [2008] 5 LRC 187 (Singapore CA).
3
See Mark Appel, Emergency and Interim Relief in International Arbitration, ADR
Currents, vol. 7, no. 1 (Mar.-May 2002), p. 1.
4
Report of the U. N. Secretary-General, Settlement of Commercial Disputes,
A/CN.9/WG.II/WP.108 (Jan. 2000), at 104.
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II. Limitations
What may limit or prevent an arbitral tribunal from granting interim
measures? The answers most frequently given to this question are:
Interim measures may be urgently needed before the tribunal has
been formed.
Although the arbitrators may have the knowledge and expertise
required to decide the substantive issues in dispute, they may not
consider it part of their function or within their area of
competence to issue emergency or provisional orders.
Arbitral orders granting interim measures may be difficult to
enforce.
To be effective, interim measures may require the involvement
of third parties over whom the arbitrators do not have
jurisdiction.
The tribunals jurisdiction to grant interim measures may be
limited by the governing law of the arbitration.
The International Chamber of Commerce (ICC) addresses this need for early relief
in a broadly similar way in its optional Rules for a Pre-arbitral Reference Procedure. The
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V. Enforceability Issues
Whether enforceability is a limitation on the effectiveness of an
interim measure ordered by an arbitral tribunal depends mainly on the
mechanisms for enforcement available (1) in the arbitration process
London Court of International Arbitration addresses this need, although somewhat
differently, allowing a party to apply for an expedited formation of an arbitral tribunal in
a case of exceptional urgency. LCIA Arbitration Rules art. 9.
6
[1981] 1 Lloyds Rep 18.
7
See Departmental Advisory Committee on Arbitration Law, Report on the
Arbitration Bill (DAC Report) 201 (Feb. 1996).
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itself, (2) under the procedural law of the arbitration, and (3) in national
courts having jurisdiction over the party against whom the interim
measure is to be enforced or that partys assets.
The enforceability of arbitral interim measures was considered by
UNCITRAL to be of sufficient importance to justify consideration by a
Working Group on Arbitration composed of all 39 state members.8 The
Working Group initially identified three types of interim measures: (a)
measures aimed at facilitating the conduct of arbitral proceedings, (b)
measures to avoid loss or damage and preserve the status quo until the
dispute is resolved, and (c) measures to facilitate later enforcement of the
award.
The Working Group considered that the need for an enforcement
mechanism is greatest for measures to facilitate later enforcement of the
award, such as orders freezing or attaching assets or orders to provide
security. It considered that a mechanism to enforce interim measures to
preserve the status quo (including orders regulating contractual
performance during the arbitration) was needed to lesser extent. There
was even less of a need for enforcement support for measures aimed at
facilitating the arbitration, since the tribunal normally has the ability to
regulate compliance with such measures by means of its final decision on
arbitration costs.9
The UNCITRAL Working Groups review led to extensive revisions
to Article 17 of the UNCITRAL Model Law on International
Commercial Arbitration which, in its unrevised form, was substantially
similar to Article 21 of the AAA international rules referred to above.
The revisions, which were adopted on 7 July 2006, require courts in
countries that adopt the Model Law to enforce interim measures of
protection ordered by arbitral tribunals, except in specified
circumstances, such as where the arbitration agreement is invalid or the
measure is contrary to public policy.10
The English Arbitration Act 1996 provides mechanisms supporting
enforcement of orders, directions and awards of the arbitral tribunal. For
example, if a party fails to comply with a directive from the tribunal,
where the seat of the arbitration is in England, the Act authorizes the
8
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11
94
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granted only by courts, which are in a position to enforce them, and not
by arbitral tribunals. Article 818 of the Italian Code of Civil Procedure
expressly provides, The arbitrator may not grant attachment or other
interim measures of protection, except if otherwise provided by the
law.16
The Italian approach to interim measures may have the advantage of
clarity. However, the approach is criticized by those who believe that the
parties should be able to choose the rules and procedures under which
their arbitration will be conducted (including rules giving the tribunal full
authority to grant interim measures, as in Article 21 of the AAA
international rules), and that the parties chosen rules and procedures
should be given effect whenever possible.
Switzerland is at the other extreme. Under Swiss law, in the absence
of an agreement to the contrary, the parties are to apply initially to the
arbitral tribunal, rather than to the courts, for provisional or protective
measures. If the tribunal grants an interim measure, and the party
against whom it is directed fails to comply, the tribunal may seek
assistance from a competent court.17
In England and in several other pro-arbitration countries, such as
France, Germany and the United States,18 the power of an arbitral
tribunal to grant interim measures lies between these two extremes.
Under the English Arbitration Act 1996, where England is the seat of
the arbitration:
16
See Jan Paulsson (ed.), International Handbook on Commercial Arbitration
(Kluwer Law Intl 2010) (re: Canada, Italy). The words except if otherwise provided by
the law in Article 818 appear to relate only to the arbitrators power to suspend
enforcement of a shareholders resolution under a specific Italian legislative decree.
17
Swiss Private International Law Act 1987, ch. 12, art. 183.
18
See Paulsson, supra n. 16.
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19
20
Id. at 366-68.
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21
22
IX. Conclusion
The availability of interim measures in international arbitrations is
subject to several varying approaches under different national laws and
arbitration rules and is therefore uncertain. Recognizing this problem and
the need for more uniform solutions, the UNCITRAL Working Group
started from the positionand ultimately concluded - that it is desirable
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for parties to have access to both the arbitral tribunal and to the courts in
order to ensure the effective availability of interim measures. The
Working Groups extensive revisions to Article 17 of the Model Law
provide specific and, for some, controversial directions as to the type of
interim measures a tribunal should order and in what circumstances it
should order them.27 However, as the Channel Tunnel case illustrates, if
the division of powers between tribunal and courts is not clearly defined,
this approach can still lead to its own uncertainties.
In considering this division of powers, there is much to commend the
approach adopted in Section 44(5) of the English Arbitration Act 1996,
without adding the complications of Section 39 described above. Such an
approach would require parties to arbitration agreements to obtain their
interim measures from the arbitral tribunal, unless (1) the tribunal is not
in a position to grant them effectively, or (2) the parties have agreed to
obtain interim measures from the courts rather than from the tribunal.
This approach is consistent with principles of party autonomy and nonintervention by the courts except where necessary. It is also sufficiently
clear to be workable in practice. As far as draconian freezing or search
and seizure orders are concerned, these would in most cases remain the
prerogative of the courts, as it is difficult to see how an arbitral tribunal
would be in a position in such cases to grant these measures effectively.
As regards other types of interim measures, if the arbitral tribunal has the
ultimate responsibility to decide the merits of the dispute, is it not also in
the best position to order interim measures to ensure that its decision is
just and effective, assuming there are no practical impediments to its
doing so?
Currently, arbitral interim measures are part fact and part fiction.
However, if the powers of arbitral tribunals and courts to order interim
measures (including the division of those powers) can be further clarified
and harmonized, the availability of arbitral interim measures will be
substantially improved, to the overall benefit of the international
commercial arbitration process.
A. Arbital Authority to Issue Interim Relief
The tribunals authority to issue interim relief in an international
arbitration conducted under the International Rules of the American
27
The party seeking emergency relief must apply to the AAA and
give notice of the application to all parties.
The AAA will appoint a single emergency arbitrator from a
special panel, and within two business days of appointment, this
arbitrator will establish a schedule to consider the application.
The emergency arbitrator has the power to order or award any
interim or conservancy measure the emergency arbitrator deems
necessary, including injunctive relief and measures for the
protection or conservation of property.
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