Interim Measures in International Commercial Arbitration under the ICC, AAA, LCIA And UNCITRAL Rules - Vol. 10 No. 1 ARIA 1999
Originally from American Review of International Arbitration - ARIA
In practice, the parties to a dispute often feel the need for interim measures in connection with an international commercial arbitration.1 Interim measures of relief, also called conservatory and provisional remedies,2 provide a party to the arbitration with an immediate and temporary protection of rights or property pending a decision on the merits by the arbitral tribunal. Such measures, having a huge practical importance, are often indispensable if an award subsequently rendered is to be effective. Several kinds of interim measures, such as attachment, injunctions or orders safeguarding and preserving perishable property, requesting payment of part of a claim, or imposing the posting of security for costs, may be granted by arbitrators or by local courts. Such measures are particularly varied and innovative, as international trade practice continues to generate new kinds of remedies according to the needs of the parties to the dispute and to the increasing complexity of cases.
As arbitration is based by nature on a contractual agreement between parties, there is no single or even central international arbitration forum. Therefore, the rules governing the powers of arbitrators to order interim measures must be analyzed by reference to the various systems of international arbitration. Under the principle of freedom of contract, the parties may theoretically draft every contractual provision according to the specific needs of the dispute. Traditionally, administered international arbitration is overseen by a continuously functioning institution. By contrast, ad hoc international arbitration is organized by the parties themselves for the purpose of a single dispute. Among the major institutions3 that supervise the largest number of disputes, and which have developed their own sets of rules, are the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), the LCIA Arbitration International (LCIA),4 the Stockholm Chamber of Commerce (SCC) and the China International Economic and Trade Arbitration Commission (CIETAC).5 The International Center for the Settlement of Investment Disputes,6 deals with disputes involving governmental entities and foreign investors. Ad hoc arbitration disputes are governed by a set of rules, sometimes created specifically for a particular case,7 but more often chosen from the Arbitration Rules of the United Nations Conference on International Trade Law (UNCITRAL).8 This note will focus on the ICC Rules of Arbitration (the ICC Rules), the most widely used,9 the AAA International Arbitration Rules (the AAA Rules) the LCIA Arbitration Rules (the LCIA Rules), and the UNCITRAL Arbitration Rules (the UNCITRAL Rules).10 In addition, the ICC, AAA, and LCIA Rules have been recently amended.11