Interim Relief Under International Arbitration Rules And Guidelines: A Comparative Analysis - ARIA Vol. 20 No. 3 2009
Peter J.W. Sherwin is a partner at Proskauer Rose LLP, where he is the head of the International Arbitration Group.
Douglas C. Rennie is the Visiting Legal Skills Fellow at New York Law School.
Originally from American Review of International Arbitration - ARIA
INTERIM RELIEF UNDER INTERNATIONAL ARBITRATION RULES
AND GUIDELINES: A COMPARATIVE ANALYSIS
Peter J.W. Sherwin and Douglas C. Rennie∗
Interim relief is critical in any form of dispute resolution. Parties must have the
option to seek interim measures, such as preliminary injunctions and attachments,
where their adversaries threaten to take action that cannot be undone by after the fact
damages. Parties in international arbitrations are no exception. For those
parties, the institutional arbitration rules that they choose will have a determinative
impact on whether they will be able to obtain meaningful interim relief.
The international business community has long considered international
arbitration preferable to litigation in national courts for a variety of reasons,
including neutrality of forum, privacy, speed, lower costs, and enforcement.
There are a number of factors, however, that complicate a party’s ability to obtain
meaningful interim relief in international arbitration proceedings. Among these
are the time needed to get a decision maker in place to hear the application, the
powers of that decision maker to award interim relief, and the likelihood that an
adverse party will comply with such an award. For these reasons, the lack of
meaningful interim relief has been justifiably called the “Achilles’ heel” of
international arbitration. Although parties could instead resolve their disputes in
national courts, where interim relief is generally available, in doing so, they would
sacrifice the advantages of international arbitration.
In recent years, international arbitration institutions have sought to respond to
this problem by enacting rules, procedures, and other textual guidelines to provide
parties with various means of obtaining interim or other emergent relief within the
arbitral process. In this article, we analyze how several different sets of
international arbitration rules address the issues associated with interim relief and
how a tribunal would treat several common scenarios involving an application for
interim relief under those rules.