Enforcement of interim arbitral orders and awards is an issue of considerable practical importance in international arbitration. Interim arbitral rulings may encompass a wide range of substantive and procedural issues in the arbitration; they may, for example, resolve discrete claims or issues in the arbitration, provide for provisional or conservatory measures pending the final award, or order the production of evidence or discovery for use in the arbitration.

 

Because arbitrators lack the enforcement power themselves to compel compliance with their interim orders and awards, resort to the courts may be necessary for enforcement. Yet neither the U.S. Federal Arbitration Act (“FAA”) nor the New York Convention of 1958 that the FAA implements in its second chapter addresses judicial enforcement of interim arbitral orders and awards.

 

As a result, the regime for judicial enforcement of those arbitral rulings in the United States has been determined through the developing case law in U.S. courts. While U.S. courts have struggled with the issue, often reaching inconsistent (and sometimes irrational) results, they increasingly appear willing to enforce interim arbitral rulings, provided those rulings finally and definitively resolve self-contained issues in the case and regardless of whether the interim rulings take the form of an “order” or “award.”

 

A recent decision of the U.S. Court of Appeals for the Seventh Circuit reflects that trend. In an opinion that is as entertaining as it is interesting, the Seventh Circuit held in Publicis Communication v. True North Communications Inc., 206 F.3d 725 (7th Cir. 2000), that an arbitral decision taking the form of an “order” was final and therefore amenable to judicial

confirmation and enforcement under the New York Convention.