Provisional Relief - Chapter 6 - International Arbitration Checklists - 3rd Edition
Originally from International Arbitration Checklists - 3rd Edition
The Need for Provisional Relief
Often in commercial disputes it is critical that one party obtains relief at the very outset of the dispute. Such relief – variously, termed provisional, preliminary or temporary relief, interim measures of protection or conservatory measures – might be necessary to preserve assets or evidence or to continue contractual performance essential to the business of one of the parties. Requests for provisional relief in arbitration may be categorized as follows:
(i) Measures aimed at facilitating the conduct of arbitral proceedings, such as orders to preserve evidence or to permit inspection of particular goods, property or documents.
(ii) Measures aimed at preserving the status quo, such as orders to continue performance of a contract during the arbitral proceedings or to continue payments so as to avoid the loss of a right.
(iii) Measures to facilitate the enforcement of a future award, such as the attachment of assets.
In civil litigation in national courts, such requests are common, of course, and there are well-developed procedures for adjudicating requests for immediate relief. In international arbitration, however, the matter is complicated for several reasons. First, there is usually no arbitration tribunal in place at the commencement of the dispute from which to request provisional relief. At the very outset of a dispute the parties may not be able to agree on anything of substance, including an immediate need to appoint arbitrators. In such cases, particularly if the proceedings on the merits may be rendered meaningless if provisional relief is not obtained, a party may have little recourse other than to seek interim measures of protection from a court.
However, there may be a question as to whether courts have jurisdiction to provide such relief in light of the parties’ agreement to resolve their dispute in arbitration, not in court. In countries which have not adopted the UNCITRAL Model Law on International Commercial Arbitration – which provides that parties to an arbitration may ask a state court for interim measures of protection – one of the many reasons to refer in an arbitration agreement to the rules of principal arbitration institutions or the UNCITRAL Rules is that such rules expressly permit recourse to courts for interim relief.