California - Chapter 2 - Interim Measures in the United States in Aid of Arbitration
Maria Chedid is global co-chair of the International Arbitration group at Arnold & Porter. She regularly serves as lead counsel in commercial and investment arbitrations, and frequently is called upon to serve as an arbitrator. Over the last three decades, she has handled arbitrations administered by all major arbitral institutions including the ICC, ICDR, SIAC, LCIA, ICSID, DIAC, CPR, JAMS, PCA, and the AAA, as well as arbitrations conducted under the UNCITRAL Rules, by the Iran-United States Claims Tribunal, and by the United Nations Compensation Commission. Maria Chedid brings a wealth of arbitration experience involving diverse subject matter and expansive geographic reach, and is particularly known for her expertise in technology, IP, and life sciences disputes. She is currently serving her second term as one of two members on the ICC Court of Arbitration representing the United States. Clients “commend her handling of complex disputes,” “praise her ‘highly effective advocacy,’” and describe her as “incisive, a superb strategist and […] unrelenting in achieving the targeted objectives,” while peers note that she is “superbly prepared,” “exceptionally talented,” “relentless,” “very thorough,” “expert in damages issues,” and “largely unflappable.” Ms. Chedid has presented on international dispute resolution and advocacy at conferences worldwide and at numerous law schools, including UC Berkeley, Harvard, Stanford, Columbia, USC, and at the Straus Institute for Dispute Resolution at Pepperdine Law School, where she has taught as an adjunct professor. She is admitted to practice in both New York and California, is multilingual, and is a dual citizen of the United States and Lebanon.
John Muse-Fisher is a Senior Associate at Arnold & Porter and focuses his practice on international arbitration, including commercial and investor-state disputes. Mr. Muse-Fisher also practices in business litigation, including derivative, legal malpractice, breach of contract, class action, and intellectual property matters, as well as issues relating to international service of process under the Hague Service Convention. He also devotes pro bono time to international issues, including those relating to climate change, criminal justice, and immigration, as well as voting rights issues.
Isaac Ramsey is an Associate at Arnold & Porter. His practice encompasses a range of civil litigation matters, including intellectual property and commercial litigation. Mr. Ramsey received his JD and International Law Certificate from the University of California, Berkeley School of Law, where he became a publishing member of the California Law Review and served as an Articles Editor for the Berkeley Journal of International Law. During law school, Mr. Ramsey externed with the Honorable Leondra R. Kruger of the Supreme Court of California and earned distinction for his commitment to pro bono work.
Originally from Interim Measures in the United States in Aid of Arbitration
RELIEF PROVIDED BY COURTS
1. Are courts in your state authorized to issue orders of attachment, injunctions or other provisional orders with respect to arbitration proceedings?
Yes. California courts may issue orders of attachment, injunctions, and other provisional orders under the Federal Arbitration Act (“FAA”), the California Arbitration Act (“CAA”), and the California International Arbitration and Conciliation Act (“CIACA”). In general terms, the authority of the California courts to “‘issue equitable relief in aid of arbitration’ is well-established.”
(a) If so, please describe the nature of any such provisional relief that is available.
The CAA. The CAA enumerates several provisional remedies that are expressly available to applicants:
(2) temporary protective orders,
(3) writs of possession,
(4) preliminary injunctions,
(5) temporary restraining orders (“TROs”), and
California courts have held that a provisional remedy is not available if it is not of the kind listed in the statute. As California courts have explained, “[t]he provisional remedies envisioned by [the CAA] are of the kind ‘designed to enable the plaintiff in a civil action to protect against dissipation of property by the defendant during the pendency of the action, with consequent loss of the benefits of a judgment.’”
The FAA. The Ninth Circuit and California state courts have held that provisional relief is also available under the FAA. In so holding, the courts rejected the Eighth Circuit’s approach, which contends that injunctive relief in an arbitration is incompatible with the intent of the FAA.
The standard for injunctive relief under the FAA is similar to the one under the CAA. Under both California law and the FAA, the injunction is only available if it is necessary to preserve the effectiveness of arbitration. Thus, the requesting party must show that it “will be irreparably harmed without the injunction, that the injunction is necessary to preserve the status quo and render arbitration meaningful.” The purpose of these requirements is to “protect the integrity of the applicable dispute resolution process.”
Injunctive relief sought under the FAA and the CAA may be private or public. That is, a party to an arbitration may seek (a) injunctive relief aimed at resolving a private dispute between the parties (“private injunctive relief”), or (b) injunctive relief that would benefit the general public, and which would only incidentally benefit the requesting party as a member of the general public (“public injunctive relief”).
The CIACA. The scope of provisional relief available under the CIACA is discussed in Question 1(b) below.