Texas - Chapter 19 - Interim Measures in the United States in Aid of Arbitration

R. Doak Bishop specializes in international arbitration, with a focus on Latin America. A partner in King & Spalding’s International Arbitration practice, Mr. Bishop represents companies in arbitration and litigation of disputes in the oil and gas, energy, construction, environmental and foreign investment sectors. He has served both as an arbitrator and counsel, and represents clients in disputes concerning oil and gas and energy, foreign investment, construction and environmental matters. Mr. Bishop has served as Chairman of the Institute of Transnational Arbitration and as a Director of the American Arbitration Association (AAA). He is also a member of the U.S. delegation to the North American Free Trade Act (NAFTA) Advisory Committee on Private Commercial Disputes. He has participated in arbitrations under the auspices of the International Centre for Settlement of Investment Disputes (ICSID), International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), UN Commission on International Trade Law (UNCITRAL), International Centre for Dispute Resolution (ICDR), AAA, the Inter-American Commercial Arbitration Commission (IACAC) and the Center for Public Resources (CPR), as well as in ad hoc arbitrations.

Sara K. McBrearty is a senior associate in King & Spalding’s International Arbitration practice. She focuses on complex, international commercial and investment disputes arising from long-term and multinational projects. With particular experience in the energy sector, she has acted as counsel in international and domestic arbitration proceedings held under the auspices of most of the major arbitral institutions and rules, including the International Centre for Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC), the American Arbitration Association/International Centre for Dispute Resolution (AAA/ICDR), the Singapore International Arbitration Center (SIAC), the Hong Kong International Arbitration Centre (HKIAC), the Energy Charter Treaty (ECT), the Cairo Regional Center for International Commercial Arbitration (CRCICA), JAMS and ad hoc cases under the Permanent Court of Arbitration and UNCITRAL Rules. She has also represented clients in arbitration-related proceedings in U.S. federal courts and Texas state courts.

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Originally from Interim Measures in the United States in Aid of Arbitration

PREVIEW

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. Texas courts have the power to issue orders of attachment, injunctions, and provisional orders under the Federal Arbitration Act (“FAA”), the Texas General Arbitration Act (“TAA”), and the Texas Civil Practices & Remedies Code.

In Texas, most arbitrations are governed by U.S. federal arbitration law, the FAA, and the Texas arbitration law, the TAA. The Texas Civil Practices & Remedies Code § 172 also applies to many international commercial arbitrations.

The FAA is the default arbitration law applicable to arbitration agreements absent express language specifying that either the FAA does not apply or that non-FAA rules control the dispute. Merely including a choice-of-law provision in a contract does not exclude the FAA.

If parties wish to invoke the TAA, they must state in the arbitration contract the TAA (or Texas state arbitration law generally) will apply to any disputes. The FAA, however, preempts conflicting state law —and therefore the TAA—if the agreement (1) is in writing; (2) involves interstate commerce; (3) can withstand scrutiny under traditional contract defenses; and (4) state law affects the enforceability of the agreement. While the FAA applies to disputes involving interstate or foreign commerce, it does not cover “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

In addition, the FAA does not grant subject matter jurisdiction. Parties must invoke diversity or federal question jurisdiction to be heard in a federal forum. Therefore, many disputes governed by the FAA are heard in Texas state courts. In these cases, Texas applies federal law to the substantive aspects of the dispute and applies state law for procedural issues.