Interim Measures Ordering Performance: Procedural Implementation - Chapter 19 - Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30
Charles Kaplan is a Partner and Joint Head of the arbitration practice at Herbert Smith LLP. He specialises in international arbitration and has extensive experience of arbitration under ICC, AAA, ICSID, UNCITRAL, AFA (French Arbitration Association) and other rules. He has conducted arbitrations concerning long term supply agreements, corporate disputes, investment disputes, oil production sharing agreements, construction and engineering projects, among others. He has sat as arbitrator under ICC, AFA, LCIA and Milan Chamber of Commerce Rules. Mr. Kaplan also appears in commercial proceedings before the French Courts, including enforcement and challenge of arbitration awards, as well as insurance and reinsurance disputes. Mr. Kaplan is a Board member and member of the Arbitration Committee of the Association Française d’Arbitrage (French Arbitration Association) and an associate member of the ICC Institute of World Business Law. He is General Editor (with Alexis Mourre) of the Paris Journal of International Arbitration. He frequently speaks at international conferences and publishes on topics related to arbitration. A law graduate of Cambridge University (1979), and a US citizen, Mr. Kaplan is bilingual in French and English, and also speaks Italian.
1. THE POWER TO ISSUE INTERIM MEASURES ORDERING PERFORMANCE
It is generally recognized in modern law and practice that arbitrators have concurrent jurisdiction, with State courts, to order protective or conservatory measures, on an interim or provisional basis. This power either arises under national laws which make express provision for such power1 or which, although silent, are considered to allow arbitrators in international cases the power to order necessary conservatory measures.2 Some expressly forbid it.3 The power is also expressly provided under a number of arbitration rules.4
Provisional or conservatory measures can, for the purposes of this discussion, be divided into the following three broad categories:
• measures aimed at preserving the status quo or preventing irreparable harm;
• measures to secure enforcement of the award; and
• procedural measures, including measures to secure the preservation of evidence.
I would add to those broad categories, measures concerning security for costs and measures ordering interim payment, which do not easily fit into any of them. In any case, security for costs is not part of the subject of this chapter. Orders for interim payment are discussed below.