Provisional Remedies in Aid of International Arbitration - Part 2 Chapter 9 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Since arbitration is a creature of contract, existing only because the parties have agreed to have their disputes resolved in this way, difficulties arise when provisional remedies are needed in the form of orders that have an effect on persons not parties to the agreement to arbitrate. Even when interim measures of protection are needed against one of the parties to the arbitration agreement, issues arise as to the availability of such remedies when they are sought at early stages in an arbitral proceeding. This Chapter discusses the availability of provisional remedies in aid of arbitration in the form of pre-award attachments, injunctions and other provisional orders.
The power of arbitrators to grant provisional relief depends on both applicable national procedural law (the lex arbitri or curial law) and on the institutional or other arbitral rules chosen by the parties.
In some countries, arbitrators are not permitted to order interim measures of relief. Germany and Italy, for example, expressly forbid arbitrators to order such relief, reserving such power to the courts. On the other hand, the United Nations Commission for International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration, which has been adopted by more than 10 nations and several U.S. states, expressly permits arbitral tribunals, as well as courts, to order interim measures of protection.
Although the Federal Arbitration Act is silent on arbitrators’ powers to order provisional remedies, most U.S. courts have recognized the authority of arbitrators under the arbitration act to order such measures, consistent with the agreement of the parties. An unusual grant of such powers to arbitrators is contained in the draft Arbitration Bill published by the United Kingdom’s Department of Trade and Industry. The draft bill provides, at Article 14, that an arbitral tribunal may issue an interim award ordering the respondent to pay to the claimant an amount of money if the tribunal is satisfied that the respondent will ultimately be found liable.