Judicial intervention in granting interim measures in international arbitration

2021 ◽  
Author(s):  
Aditya Gandotra
Keyword(s):  
International Arbitration ◽  
Judicial Intervention ◽  
Interim Measures

Evolution of Arbitration System under the China FTZ Template

2018 ◽  
Vol 01 (03) ◽  
pp. 1850018
Author(s):  
Liu Huichun
Keyword(s):  
Free Trade ◽  
Ad Hoc ◽  
Third Parties ◽  
International Arbitration ◽  
Republic Of China ◽  
Free Trade Zones ◽  
Judicial Practice ◽  
New Concepts ◽  
Interim Measures ◽  
Made In

The construction of China’s free trade zones (FTZs) has levered the evolution of the arbitration regime in the People’s Republic of China (PRC). Under the FTZ template, breakthroughs in arbitration have been made in regulations, FTZ arbitration rules, arbitral proceedings and judicial practice. The development of FTZ arbitration mechanism is highlighted with the introduction of new concepts, such as ad hoc arbitration consolidation of arbitration joinder of third parties and model cases, and with the updated or expanded interpretation of the existing concepts, such as permission for the offshore arbitration for WFOEs and FIEs interim measures arbitration in combination with mediation, and the open panel of arbitrators. Regardless of the progress, many issues related to the FTZ arbitration need to be clarified, among which is the amendment of the PRC Arbitration Law and keeping it in line with the mainstream international arbitration, constitute probably the most effective way to promote and guarantee the arbitration evolution.

Part I Overview of Emergency Arbitration, 2 The Foundations of Emergency Arbitration

2021 ◽  
Author(s):  
Sim Cameron
Keyword(s):  
Dispute Resolution ◽  
Rapid Rise ◽  
International Division ◽  
International Arbitration ◽  
Interim Measures

This chapter traces the foundations of emergency arbitration, from the historic opposition to, and subsequent rapid rise of, interim measures in international arbitration, of which emergency arbitration represents the pinnacle. The concept of emergency arbitration first appeared in the rules of the American Arbitration Association (AAA), and then the International Centre for Dispute Resolution (ICDR), which is the international division of the AAA. The ICDR set ambitious standards, providing for the appointment of an emergency arbitrator within one business day of receipt of the application, and for the establishment of a procedural timetable within two business days of that appointment, but otherwise not prescribing any timeframe within which the emergency arbitrator's decision must be issued. As it transpired, the ICDR Rules (2006) not only set the emergency arbitration scene, but they also clearly defined the landscape. Statistics illustrate that emergency arbitration has filled a void in international arbitration, and that it is becoming increasingly popular.

Jurisdiction and admissibility: a case study

2020 ◽  
Vol 36 (3) ◽  
pp. 373-413
Author(s):  
Tolu O Obamuroh
Keyword(s):  
New York ◽  
International Arbitration ◽  
National Courts ◽  
Judicial Intervention ◽  
Model Law ◽  
New York Convention

Abstract Arbitrators cannot decide cases if they do not have jurisdiction. For this reason, a challenge to jurisdiction may prompt judicial intervention. Most national courts, however, limit their intervention to question of jurisdiction and do not interfere in the arbitral process if the objection is merely one of admissibility. The distinction between jurisdiction and admissibility is a valuable tool for differentiating when judicial intervention is appropriate and when it is not. The problem is that some national courts generally conflate the concept of jurisdiction, which may properly be the basis for such intervention, with admissibility issues, which should be referred to the tribunal to decide. As a case study, this article focuses on the conflation by Nigerian courts leading to an overly expansive allocation of authority to courts to make initial rulings, which in turn is abused by parties and undermines the efficiency of arbitration in Nigeria. To address the problem, this article proposes that Nigerian courts adopt the distinction between jurisdictional and admissibility objections in international arbitration. This distinction, while not perfect, can promote efficacy in arbitration seated in Nigeria. Adopting the distinction between admissibility and jurisdiction will enable Nigerian courts to exercise greater restraint in cases that do not go to the root of courts’ authority and promote outcomes that are more coherent and more consistent with their obligations under the New York Convention and Model Law.

Empirical Findings on International Arbitration

2020 ◽  
pp. 642-678
Author(s):  
Christopher R. Drahozal
Keyword(s):  
Empirical Studies ◽  
International Investment ◽  
Empirical Literature ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Applicable Law ◽  
Investment Arbitration ◽  
Interim Measures ◽  
The Cost

This chapter surveys the existing empirical literature on international arbitration. It focuses on quantitative rather than qualitative empirical studies, and covers studies both of international commercial arbitration and international investment arbitration. The chapter first describes empirical research on the use of arbitration to resolve transnational disputes—in particular, the extent to which parties use arbitration clauses in international contracts, why they do so, and the frequency of international commercial and investment arbitration proceedings. Empirical studies have also examined an array of topics about the procedures in international arbitration. The empirical evidence typically comes from surveys or observational studies of commercial and investment arbitration proceedings. The chapter then considers empirical insights on selected topics such as the cost and length of arbitration proceedings, the size of arbitral tribunals, interim measures, multi-party disputes, challenges to arbitrators, the role of tribunal secretaries, and the use of mediation. It also looks at empirical studies on the applicable law in international commercial arbitration; the demographics of international arbitrators; and compliance with and enforcement of international arbitration awards.

Part V Emergency Arbitrators and Interim Relief, 15 Legal Standards Applicable to Deciding Applications for Interim Relief

2016 ◽  
Author(s):  
Hanessian Grant
Keyword(s):  
Status Quo ◽  
International Standards ◽  
International Arbitration ◽  
Legal Standards ◽  
Temporary Relief ◽  
The Status ◽  
Arbitral Proceedings ◽  
Interim Measures ◽  
Final Disposition

Parties in a dispute sometimes need to obtain relief prior to the final disposition of the case. Such relief-in international arbitration variously termed ‘interim measures of protection’, ‘conservatory measures’, or ‘provisional’, ‘preliminary’, or ‘temporary’ relief-may be necessary to preserve the status quo, to facilitate conduct of arbitral proceedings, or to ensure enforcement of a future award. In recent years, interim relief has received more attention and it has become increasingly possible to identify international standards relevant to applications for interim relief. This chapter considers these emerging standards, with particular emphasis on contributions made by the decisions of investor-state tribunals and emergency arbitrators.

scholarly journals Interim Measures in International Commercial Arbitration: A Discourse in Continued Uncertainty

2017 ◽  
Vol 1 (1) ◽  
pp. 97-119
Author(s):  
Noran Mohammed Al Mekhlafi
Keyword(s):  
Best Practices ◽  
Detailed Analysis ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Institutional Rules ◽  
Interim Measures ◽  
National Systems

The paper investigates the problem associated with the issue of interim measures in international arbitration, particularly, the power of arbitral tribunals to grant such measures and to enforce them. After an extensive and detailed analysis of various international arbitration rules, conventions and national systems the research finds that there is a great deal of uncertainty and confusion as to the issues underlying interim measures in international arbitration. In addition, national legislations on arbitration need to be clarified and adjusted to international best practices.   One of the main issues which the paper highlights is the limitation on national court’s power to order interim measures. In several cases, it has been recorded that the availability of emergency arbitrator’s provisions under institutional rules may significantly jeopardize the parties’ existing right to seek court-ordered interim measures, which is not in line with what the arbitral institutions had intended upon providing these expediting provisions. Thus, the paper provides suggestions and recommendations towards more certainty in the treatment of interim measures in international arbitration. Keywords : Arbitration, Interim Measures, Uncertainty

Part IV Applicable Standards and Forms of Emergency Measures, 8 The Form of Relief in Emergency Arbitration

2021 ◽  
Author(s):  
Sim Cameron
Keyword(s):  
Central Issue ◽  
Arbitral Tribunal ◽  
International Arbitration ◽  
Interim Measures ◽  
Emergency Measures ◽  
Clear Majority

This chapter studies the form of relief in emergency arbitration. In any event, a prospective applicant to an emergency arbitration will almost certainly already have in mind the form of relief they require to preserve their rights pending constitution of the arbitral tribunal. Both for the applicant, and for the respondent, the central issue when considering the form of relief in emergency arbitration will be whether the emergency arbitrator has the power to impose the requested relief. Evidently, the form of relief the emergency arbitrator is empowered to impose is classified differently across the Emergency Arbitration Rules, with no clear majority approach. The forms of relief range from "interim measures" and "interim and conservatory measures"; to "urgent measures", "urgent provisional measures", and "urgent interim and conservatory measures"; and even to "emergency measures". The different terms used to describe the types of relief available under Emergency Arbitration Rules reflects the general approach taken to urgent relief in international arbitration.

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