India and Interim Measures in International Commercial Arbitration: Impressions from Bitter Experience

2021 ◽  
Author(s):  
Gracious Timothy Dunna
Keyword(s):  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Interim Measures

Emergency Arbitrator: Indian Prospects

LAW REVIEW ◽  
2018 ◽  
Vol 38 (1) ◽  
Author(s):  
Dr. Ashish Kumar Srivastava
Keyword(s):  
Dispute Resolution ◽  
Third Parties ◽  
Real Problem ◽  
Anglo Saxon ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
National Courts ◽  
High Courts ◽  
Interim Measures ◽  
Indian Perspective

International commercial arbitration is one of the most favourite mode of dispute resolution in world for resolving commercial disputes. Speed and cost are two important features what makes arbitrationa sought-after mode for dispute resolution because in conventional dispute resolution by courts ‘Remedy becomes worse than malady’ due to delay and cost. Legalism and authoritative courts in Anglo Saxon societies make the justice dilatory and expensive which is termed analogically as a disease of ‘Adversariasis’. Judicial minimalism is encouraged by entrepreneurs and business class of world which results in enhanced thrust on international commercial arbitration. In any arbitration interim measures are sine quo non. The irreparable loss and balance of convenience demands intervention by authoritative body to order and issue processes which can binds parties and third parties. In such cases unless interim measures are sought by municipal national courts no effective and binding interim remedies can be granted to the parties and third parties. The arbitrator once appointed is competent enough to grant interim measures and it can also decide about its jurisdiction based on doctrine of Kompetenz-Kompetenz. However, if before the appointment of arbitrator, the need of urgent interim measures arises then obviously parties have to go to the municipal national courts but this judicial intervention is not the intent of parties as they are seeking judicial minimalism. In such situations the urgent interim measures can be granted by emergency arbitrator. The Arbitration and Conciliation Act, 1996 is silent about emergency arbitrator but Delhi and Bombay High Courts have given some pragmatic judgments, making the provision of emergency arbitrator, a reality. The real problem in emergency arbitrator is how one can grant interim relief even without being in existence i.e. when arbitrator itself is non est. ICC, SIAC and LCIA provide for emergency arbitrator. In this paper the author has tried to make an analytical and comparative overview of emergency arbitrator in Indian Perspective.

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.

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

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