New Jersey - Chapter 14 - Interim Measures in the United States in Aid of Arbitration
Robert E. Bartkus is of counsel at Anselmi & Carvelli, LLP and has more than 40 years of experience in multiparty business and international arbitration and litigation. In 2020, the Justice Marie L. Garibaldi American Inn of Court for Alternative Dispute Resolution selected
Mr. Bartkus for the Richard K. Jeydel Award, in recognition of his civility, professionalism, ethics, and excellence in and service to ADR.
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, except as indicated below.
Section 8 of the N.J. Revised Uniform Arbitration Act (NJRUAA), N.J.S.A. 2A:23B-8 (Provisional Remedies), authorizes a state court to order “provisional remedies” before or after appointment of an arbitrator (under the terms in the Act, see below). The Federal Arbitration Act does not explicitly authorize such relief, but it is assumed to be appropriate (and is) under the rules governing federal courts generally, except in some instances involving international arbitration (see below).
Issuance of a “temporary restraint or interlocutory injunction” in state court is governed by N.J. Ct. R. 4:52-1, et seq. In federal court in New Jersey the process for a temporary restraining order (TRO) or preliminary injunction is governed by Fed. R. Civ. P. 65 and D.N.J. L. Civ. R. 65.1.
Issuance of a writ of attachment (pre-judgment) in state court is governed by N.J. Ct. R. 60-1, et seq. and applicable statutes, including N.J.S.A. 2A:26-1, et seq.; and N.J.S.A. 2A:15-41 & 42. Appointment of a receiver is governed by N.J. Ct. R. 4:53-1, et seq; replevin is governed by N.J. Ct. R. 4:61-1, et seq. and N.J.S.A. 2B:50-1, et seq.
Pursuant to Fed. R. Civ. P. 64, a motion in federal court for attachment, replevin, and other provisional remedies (other than injunctive relief) may be subject to the applicable state procedure. E.g., Yamaha Motor Fin. Corp., U.S.A. v. ML Country Club LLC, No. 20-4694, 2020 U.S. Dist. LEXIS 234232 (D.N.J. Dec. 14, 2020) (holding Fed. R. Civ. P. 64, N.J. Ct. R. 4:61-1, et seq., and N.J.S.A. 2B:50-1 & -2 govern motion for replevin; irreparable harm not required; only a “probability of final judgment for plaintiff”). Specific federal statutes (e.g., seizure of counterfeit goods) also may provide a remedy allowable in federal court with separate procedural requirements.