Concurrent Jurisdiction of Arbitral Tribunals and National Courts to Issue Interim Measures in International Arbitration - Chapter 05 - Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

Author(s):

Rachael D. Kent

Amanda Hollis

Page Count:

22 pages

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Published:

May, 2015

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As international arbitration has increasingly become the standard

method of resolving significant cross-border commercial disputes, parties

increasingly have need for interim measures of protection to safeguard

their rights during the pendency of international arbitration proceedings.

Among other things, parties may seek interim relief to ensure the

preservation of assets, to seek security to cover the costs of the arbitration,

to preserve evidence, to safeguard the confidentiality of the arbitration, or

to ensure the procedural effectiveness of the arbitration and the powers of

the arbitral tribunal.2

Today, most national arbitration laws and published arbitration rules

contemplate some form of concurrent authority of arbitral tribunals and

national courts to order interim relief. 3 This shared power is an exception

to the general rule that where there is a valid arbitration agreement, the

arbitrators have exclusive jurisdiction to hear the parties’ disputes and

award relief. 4 This exception to the exclusive jurisdiction of the arbitrators

is justified by the fact that, as a practical matter, arbitrators in some cases

will not be able to issue effective interim measures of relief, for example,

where the parties require relief before the tribunal is constituted.5

Different jurisdictions take different approaches to allocating
authority between national courts and arbitrators to issue interim