Wisconsin - Chapter 22 - Interim Measures in the United States in Aid of Arbitration

William H. Levit, Jr. conducts a wide-ranging arbitration and mediation practice through Levit ADR LLC based in Milwaukee. He is a Phi Beta Kappa, Magna Cum Laude graduate of Yale, has an MA in International Relations from Berkeley and an LL.B from Harvard. He is a former Foreign Service Officer, Wall Street law firm partner, General Counsel of Fortune 250 multinational, and partner in a mid-size regional law firm. Mr. Levit is an active member of the Bars of California, New York and Wisconsin. He has over 40 years’ experience as a neutral, and is a Fellow of the College of Commercial Arbitrators, a Fellow (FCIArb) and Chartered Arbitrator of the Chartered Institute (London), and an elected member of the American Law Institute.

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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. Courts in Wisconsin do not have a special body of law related to provisional orders with respect to arbitration proceedings but instead issue provisional orders as they would in any other case. This means that, for instance, Wisconsin courts will grant preliminary injunctions with respect to arbitration proceedings pursuant to Wis. Stat. § 813.02, which does not specifically mention arbitration. Edward D. Jones & Co., L.P. v. Kadletz, 2012 Wis. Cir. LEXIS 28 *1 (Wis. Cir. Ct. Brown Cty., Sept. 21, 2012). The authority of courts to do this has been challenged on appeal at least twice, but both times Wisconsin’s appellate courts declined to decide the issue because, with the arbitration having already occurred, it was moot. Milwaukee Professional Firefighters v. Milwaukee, 78 Wis. 2d 1, 15 (1977); Power Bldg. & Design v. Jack Walters & Sons Corp., 1996 Wis. App. LEXIS 1379 *4 (Ct. App. Oct. 29, 1996).

Federal courts in Wisconsin have reached the same result more directly. In Merrill Lynch, Pierce, Fenner & Smith v. Salvano, 999 F.2d 211 (7th Cir. 1993), the Seventh Circuit held that preliminary injunctions may be awarded in arbitration cases based on the “four usual factors” needed for this type of relief. Id. at 214. This holding has been cited in federal courts applying Wisconsin law. E.g. Ferguson-Kubly Indus. Servs. v. Circle Envtl., Inc., 409 F. Supp. 2d 1072, 1074 (E.D. Wis. 2006).

(a) If so, please describe the nature of any such provisional relief that is available.

Wisconsin courts may grant temporary restraining orders and injunctions (Wis. Stat. §§ 813.01–813.40). In Wisconsin, temporary restraining orders are provisional measures that are granted only until a preliminary injunction can be heard. Orders of attachment are also available in certain circumstances (Wis. Stat. §§ 811.006–811.26), though these do not seem to have been requested in cases subject to arbitration. Similarly, the commencement of garnishment (Wis. Stat. §§ 812.01–812.44) can occur prior to judgment, though only in a contract or tort action, and there is no indication garnishment has been sought in an arbitration case. Wisconsin courts also grant provisional orders for three different kinds of receiverships (General Receivership (Wis. Stat. §§ 813.01–813.40), Supplementary Receivership (Wis. Stat. §§ 816.03–816.11), Chapter 128 Receivership (a kind of state-law bankruptcy) (Wis. Stat. §§ 128.001–128.25)), but provisional receivership orders also seem not to have been requested in cases subject to arbitration. Due to the lack of precedents applying the other types of provisional relief to arbitration cases, cases involving injunctions are the most illuminating.