Originally from The American Review of International Arbitration (ARIA)

ABSTRACT

Interim relief has always been a challenge in international arbitration. Despite some legislative steps to incorporate enforcement of interim measures issued by arbitrators, a question remains: do the rules on recognition and enforcement of tribunal-ordered interim measures guarantee the principle of effective judicial protection? To answer this question, this article dives into the constitutional dimension of interim relief in arbitration, considering both international and national sources, as well as its legal dimension. Although the Portuguese Arbitration Law enshrines the principle of recognition and enforcement of tribunal-ordered interim measures, an adequate procedure to ensure enforcement is still missing.

PREVIEW

I.   INTRODUCTION

A.  Interim Measures in International Arbitration

Interim measures are broadly characterized as a form of temporary and urgent relief, with the aim of protecting the rights of parties to a dispute pending its final resolution.  In other words, these measures “are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the [tribunal] having jurisdiction as to the substance of the case.”  These summary and provisional mechanisms are considered a tool to facilitate and even guarantee the effectiveness of judicial protection, and are ancillary and complementary to the final relief granted on the merits. 

The reason for this is that justice takes time. As has been stated, “a fair trial is one that is prompt but not hasty,” which is to say that courts require (reasonable, that is, adequate) time to make a reasoned, and thus a fair, decision. However, the other side of the coin is that the aggrieved parties, making use of their right of action, might be in a position of disadvantage from the moment their right was violated, and until they obtain this decision. This is so considering the delays in the main proceedings, adjacent bureaucracies, and fraudulent dissipation of assets by certain parties.  Interim measures are therefore seen as a neutralizing antidote against the harm inflicted by delayed court decisions, which will necessarily require some amount of time to issue a fair decision, to avoid rendering the latter platonic.

Based on the above, interim measures are instrumental and dependent on the main actions initiated by the respective rights holders. These will not autonomously and definitively solve conflicts of interest, but rather effectively prevent serious breaches of irreparable rights, and anticipate certain effects of final court decisions (in the case of anticipatory interim measures) to prevent harm arising from the mentioned delay. 

This applies also to international commercial arbitration. Parties to international arbitration may also resort to courts or to arbitrators, depending on the relevant lex arbitri, to request interim measures. Interim measures issued by arbitral tribunals will be mandatory for the parties.

Interim measures granted by arbitrators may be aimed at (i) facilitating the conduct of the arbitral proceedings; (ii) avoiding loss or damage and preserving a certain state of affairs until the dispute is resolved (e.g., orders to continue performing a contract during the arbitral proceedings, to refrain from taking an action until the award is made); and (iii) facilitating the later enforcement of the award (e.g. seizure of assets, orders not to remove the subject matter of the dispute out of the jurisdiction, orders to provide security).

Having said this, it is essential, precisely to prevent injustice through delay, to study how interim measures issued by arbitral tribunals are enforced, if so required.