CHAPTER 41 - United States - Interim Measures in International Arbitration
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Originally from: Interim Measures in International Arbitration
The United States has a federalist system of government in which
the fifty states and the federal government operate as (roughly speaking)
parallel sovereigns, each with its own set of laws. Under the U.S.
Constitution, however, state laws that conflict with or otherwise
undermine the purposes and objectives of federal law are invalid. The
United States also has a common-law legal system in which courts play a
significant role in making and interpreting laws. Courts often take great
liberties when interpreting legislation, adding glosses to the text and filling
gaps where the text is otherwise silent—this is usually done to help
effectuate the statute’s purpose. These two features (federalism and a
common-law legal system) contribute to the complexity of American law,
oftentimes resulting in multiple answers to a single legal question. This
is true for the law of interim measures in aid of international arbitration.
The main federal law that governs arbitration is the Federal
Arbitration Act, 9 U.S.C. §§ 1-307. Chapter 1 (9 U.S.C. §§ 1-16) governs
arbitrations involving interstate commerce and maritime disputes.
Chapter 2 (9 U.S.C. §§ 201-208) implements the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (“New York
Convention” or “Convention” hereinafter) and is thus the key federal
legislation on international arbitration. The provisions of Chapter 1 apply
to international arbitration to the extent they do not conflict with either
Chapter 2 or the New York Convention. Both federal courts and state
courts are responsible for enforcing the Federal Arbitration Act.1
State statutes provide another important source of law. Since the
mid-1980s, a number of states have enacted laws to facilitate
international arbitration by authorizing court-ordered interim relief.2
These laws are discussed below.