Four years ago, the United Nations Commission on International Trade Law (UNCITRAL) asked its Arbitration Working Group to consider possible legislative solutions to several unresolved issues in the field of international arbitration. The Working Group, which has met semi-annually since early 2000, has in due course considered changes in the Model Law on International Commercial Arbitration that, among other things, would clarify the authority of arbitrators to issue interim measures of relief and the authority of courts to enforce those measures. One such change has attracted attention: A proposed addition to Article 17 of the Model Law that would grant arbitrators authority to order interim measures of relief in certain cases based on the urgent request of one party before notifying or hearing from the opposing party.
The question whether arbitrators should be able to exercise such ex parte authority has obviously become a contentious issue. I hope to persuade skeptics that the criticisms of this proposal are misplaced and that granting such authority to arbitrators in limited circumstances could significantly enhance the international system of commercial arbitration. But first there are two important points that I think most international arbitration practitioners can agree on, which can serve as a useful foundation for a discussion of ex parte authority.