Originally from World Arbitration and Mediation Review

I.  INTRODUCTION

This article stands for the proposition that there is a right to effective arbitral protection.  Unless otherwise provided in the arbitration agreement, the parties have a right to effective arbitration adjudication.  Such principle or right to arbitral effectiveness could have important repercussions in many topics of international arbitration.  Among other implications, the right to effective arbitral protection comprises an additional specific right to effective interim relief.

 Regarding interim relief in international arbitration, indeed, and despite promising advances, one could argue that winter is here, and in fact winter has been here for quite a long time.   There is a lack of uniformity in the criteria for granting interim relief, and a sort of general hypnosis can be observed with regard to some traditional misconceptions, such as the mythical principle of no prejudgment of the merits, and the allegedly discretionary nature of interim relief. [...]

 International arbitration can be pushed to new frontiers of truly effective and self-standing dispute resolution, and in order to reach that goal the existing system of interim relief must be improved.  Under most international rules, arbitral tribunals can offer adequate interim relief even before the tribunal is constituted. One such possibility is the appointment of emergency arbitrators.  One widespread tendency with regard to interim relief is to accept the view that national courts and arbitral tribunals should have concurrent jurisdiction.  Contrary to some opinions,  this article suggests that national courts should exercise their authority to issue interim relief in aid of arbitration only when the arbitral tribunal is absolutely incapable of issuing or granting such relief in an effective manner.  The fact that an arbitral tribunal is not constituted yet; or that after being constituted, that tribunal does not have direct power or jurisdiction to enforce the interim measure is not per se a sufficient justification to allow the unrestrained intervention of the local courts.  Although there are exceptional situations where a national court could be permitted to directly grant interim relief, an argument can be made for a more restrictive view in this respect.  The power of the national courts to participate or intervene in the granting of interim relief when the parties have an arbitral agreement should be restricted. 

This article argues for improving the system of interim relief at the level of international arbitration tribunals themselves in order to promote a more definitive shift from the involvement of national courts toward international arbitral tribunals.