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Concerns a party may have when an interim measure is sought from the court.

There are certain concerns that a party will have when considering whether to apply to the court for interim measures.

There might be a fear that making an application before a court would be taken as a waiver of the decision to refer the dispute to arbitration. This should not, in fact, be an issue.

Institutional rules generally make clear that an application for an interim measure is not at odds with a valid arbitration agreement. As an example, art 26(9) of the UNCITRAL Rules provides that any “requests for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement”. This reflects the position set out in art 9 of the Model Law that “it is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such a measure”.

The other question that a party or its lawyers will often ask themselves is whether an interim measure should be sought from the arbitral tribunal or the national court in the first instance? In these circumstances, it is important to look at the applicable national law. For instance, the English and Welsh High Court will be limited in its ability to intervene because of certain provisions in the Arbitration Act 1996, which provide that the court may only act where the tribunal cannot. Thus, an English and Welsh court will accept jurisdiction over an application for an interim measure where the arbitral tribunal is not able to grant the same relief or that relief would not be as effective in an emergency or urgent situation. Therefore, examples would include where a tribunal has not been established, where even the appointment of an emergency arbitrator would be too late or where the relief sought is against a third party that would not be bound by an order of the tribunal. The English and Welsh court would also be in a position to act where a tribunal has been established, but is unable to hear an act on the application with sufficient expedition or where there are enforceability issues.

Generally, where the court is able to provide relief in a way that the tribunal cannot or is able to ensure compliance, then an application to the court would, subject to the applicable national law, be more appropriate. At the same time, there may be practical issues that mean applying to the national court at the seat of the arbitration presents its own problems. Such issues might be the fact that the substantive dispute is to be decided upon a law other than that of the seat and that the national court may, therefore, not be in a position to consider matters as fully as needed at the interim stage or it might be that there are language and translation issues.

Finally, although addressed elsewhere on the course, it should be noted that national courts perform key roles after an award has been issued:

  1. After the issuing of an award, the national court at the seat of the arbitration is the only court able to consider an application to set aside the award.
  2. A party seeking to mount a challenge in order to prevent recognition and enforcement of an award must have recourse to the national court of the place where recognition and enforcement is sought.
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International Arbitration: Process and Procedure

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