The Laws Governing Interim Measures in International Arbitration - Chapter 11 - Conflict of Laws in International Commercial Arbitration
Originially from Conflict of Laws in International Commercial Arbitration
The issue of interim measures1 is a much debated and discussed topic in international arbitration. Most reports focus on issues such as the arbitral tribunal’s power to order interim relief, the different types and content of interim measures, interim measures ordered by emergency arbitrators, whether or not an arbitral tribunal is entitled to order interim relief ex parte, i.e. without giving prior notice to the party against whom the measure shall be directed, or, more recently, the question of enforcement of interim measures.
Little time, however, is still devoted to examining the laws governing interim measures.2 This chapter lays out some principles and seeks to provide guidance as to which sources of law should be considered in the process of considering requests for interim relief in the context of international arbitration proceedings. At the core of the chapter lies a practical approach intended to give arbitration practitioners useful guidelines, rather than a textbook analysis based on general conflict of laws principles.
The focus is on interim measures ordered by arbitral tribunals. For completeness’ sake, the law governing interim relief ordered by national courts in support of arbitral proceedings shall also be considered.
This analysis starts by distinguishing different aspects of interim relief. It then addresses which laws govern each of these different aspects. This detailed analysis having been undertaken, I consolidate the findings under the various aspects to create a simple checklist that can be applied by arbitrators faced with requests for interim relief.
In the process, the terms “lex arbitri”, “curial law”, and “lex causae” are repeatedly used. These terms, although commonly referred to, are not always used in the same meaning. For the purpose of this chapter, the lex causae refers to the law governing the merits of the dispute or the contract as such. The lex arbitri is understood as the national arbitration law of the seat of the arbitration.3 The curial law, in turn, refers to the provisions governing the arbitration proceedings, such as the relevant procedural provisions of the lex arbitri, the set of arbitration rules chosen by the parties, and the procedural rules set by the arbitral tribunal.