South Carolina - Chapter 18 - Interim Measures in the United States in Aid of Arbitration

M. Dawes Cooke, Jr. focuses his practice on complex civil litigation, professional liability defense, construction defect litigation, products liability litigation and personal injury litigation. He is also a mediator and arbitrator, and he frequently lectures on the subject of alternative dispute resolution. He is admitted to the South Carolina Bar and the United States Supreme Court Bar. Mr. Cooke is a Fellow in the American College of Trial Lawyers.

John Fletcher first gained a respect for the intricacies of legal research and writing, while serving as a Research Editor on the University of Pittsburgh Law Review during law school. This admiration of the intellectual aspects of the practice of law—and of the law itself—has remained with him throughout his career. Over his nearly twenty years of practice, Mr. Fletcher has been deeply involved with many of Barnwell Whaley’s most complex and challenging cases, in such varied areas of the law as antitrust, intellectual property and professional malpractice.

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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.

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

“‘[A] court can, and should, grant a preliminary injunction in an arbitrable dispute whenever an injunction is necessary to preserve the status quo pending arbitration.’ . . . The fact that a court orders arbitration of a dispute does not ‘absolve [it] of its obligation to consider the merits of a requested preliminary injunction.’” MailSource, LLC v. M.A. Bailey & Assocs., 356 S.C. 363, 368–69, 588 S.E.2d 635, 638 (Ct. App. 2003), holding modified by Poynter Invs., Inc. v. Century Builders of Piedmont, Inc., 387 S.C. 583, 694 S.E.2d 15 (2010); accord Charleston Int’l Ports, LLC v. South Carolina State Ports Auth., 2003 WL 25465913 (S.C. Com. Pl. Oct. 14, 2003) (“[U]nder § 15-48-20 of the South Carolina Arbitration Act, a court has the right to order the parties to proceed with arbitration. I read this section to allow a court to maintain the status quo and prevent one party from attempting to deprive the other of a meaningful arbitration process.”).

There is no specific case law discussing the availability of attachment and garnishment as a provisional remedy in South Carolina courts in cases subject to arbitration. However, it is anticipated that a court would likely entertain such relief (particularly when geared toward preserving the status quo) until the Court compels arbitration and loses jurisdiction over the matter.