Judicial intervention in granting interim measures in international arbitration

• Published date: 01 June 2021
• Author: Aditya Gandotra
• Date: 01 June 2021
• DOI: http://doi.org/10.1002/crq.21301

RESEARCH ARTICLE

Judicial intervention in granting interim

measures in international arbitration

Aditya Gandotra

Jindal Global Law School, O.P. Jindal

Global University, Sonipat, India

Correspondence

Aditya Gandotra, 220, Adarsh Enclave-II,

Sector 1 Extension, Trikuta Nagar,

Jammu, J&K, India 180020.

Email: aadi.gandotra@gmail.com

Abstract

Arbitration as a dispute settlement mechanism is

gaining popularity due to various factors such as its

consensual nature and flexibility as compared to court

proceedings. Independency of arbitration as an adjudi-

cation mechanism has enhanced and distanced it from

the involvement of national courts. However, there

may be times when parties may seek intervention of

courts to secure interim or conservatory measures till

final award in rendered. This article discusses whether

an emergency arbitrator is a proper arbitrator who ren-

ders enforceable decisions and whether the provisional

measures so granted should be construed as final

award or not.

1|INTRODUCTION

In the last few decades, in international commercial arbitration, there has been a gradual shift

towards establishing pro-arbitration legal regimes. To achieve such an objective, it is imperative

that principles of party-autonomy and independency of arbitration from judicial intervention

be supported. One essential aspect of this objective is the issue of interim measures which

requires limiting the procedural intervention by national courts (Al Mekhlafi, 2007, p. 101).

Despite the principle of autonomy of arbitral proceedings, it is sometimes essential for the

court to intervene, not just to constitute the arbitral tribunal but also to grant provisional and

conservatory measures during the course of proceedings. Until recently, in international arbitra-

tion, interim measures were considered to be within the exclusive jurisdiction of national courts

under many national laws (Al Mekhlafi, 2007, p. 99). But now, the principle which is being

increasingly recognized in modern arbitration law is that courts and arbitrators have concurrent

jurisdiction to order provisional or protective measures (Savage & Gaillard, 1999, p. 708).

This principle has three consequences. The first consequence of the principle of concurrent

jurisdiction is that parties have the freedom to apply to the courts for obtaining provisional or

Received: 16 June 2020 Revised: 21 January 2021 Accepted: 22 March 2021

DOI: 10.1002/crq.21301

Conflict Resolution Quarterly. 2021;38:349–369. wileyonlinelibrary.com/journal/crq © 2021 Wiley Periodicals LLC. 349

protective measures, despite the existence of an agree ment to arbitrate. The second consequence

is that if a party applies to courts for such measures, the party does not waive the application of

arbitration agreement to the merits of the dispute. The third consequence is that the arbitrators

themselves have jurisdiction to order suchmeasures (Savage & Gaillard, 1999, p. 710).

Interim or conservatory measures are an essential tool in international arbitration. In the

principal action, the relief sought may not be sufficient to effectively protect the rights or inter-

ests of the alleged innocent party. There may also be a considerable time gap between the

commencement of the proceedings and substantive hearing as a result of which the subject

matter or necessary evidence may disappear or that irreparable and non-compensatory harm

may occur by the time final relief is to be granted (Lew, Mistelis, & Kroll, 2003, p. 586).

Therefore, a party that needs immediate relief and does not wish to wait for that protection

until the merits of the case are decided often seeks interim measures or conservatory measures

as a remedy. This remedy may frequently be used many months or even years after the arbitral

proceedings have commenced. The aim of such measures is to preserve the subject matter of

dispute, to ensure that no prejudice is caused to the rights of the parties during the pendency of

the proceedings, or to enjoin certain conduct pending the outcome of proceedings (Rubino-

Sammartano, 1990, p. 931).

Interim measures of protection take various forms and are known by different names. In

the Model Law and the UNCITRAL Rules, they are known as “interim measures”. In the

English version of ICC Arbitration Rules, they are known as “interim or conservatory mea-

sures”, and in the French version, as “mesures conservatoires ou provisoires”. In the Swiss law

regulating international arbitration, they are known as “provisional or conservatory measures”.

Whatever terms may be used, their only purpose is to operate as holding orders and apply only

pending the issue of final arbitral award (Blackaby et al., 2009, p. 421).

The issue of interim measures is not novel as the growth of provisional measures in interna-

tional commercial arbitration has been traced by several academic articles and other literature.

A passing reference will be useful to summarize the existing literature on interim measures.

Scholars such as A. Yesilirmak, W. Wang, S.M. Ferguson, N. Allahi, N.E. McDonell, M. Savola,

J. Hill, E. Collins, C. Brown, D. Horodyski & M. Kierska, G. Born, A. Ghaffari & E. Walters,

and others have written extensively on practical and theoretical aspects of interim measures

including their nature, types, requirements, and forum to obtain them. Many contributions

have discussed the need for interim measures and difficulties faced in obtaining such measures

and their subsequent enforcement despite recent legislative activity (led in part by UNCITRAL).

Furthermore, many scholars have analyzed various institutional rules, conventions, and

national laws on tribunal-ordered interim measures and emergency arbitrator to look into

how such provisions have been received so far and why the enforcement of such measures has

proved difficult.

Despite volume of research, there is still a great deal of uncertainty and confusion as to

issues underlying interim measures ordered by arbitral tribunal and emergency arbitrator in

international arbitration. In an attempt to fill the gap in the academic literature, this article

highlights the inter-related nature of two problems with interim measures, that is, whether the

categorization of interim measures as arbitral awards is a question of definition or policy and

whether emergency arbitrator who also issues provisional measures needs to be properly wel-

comed into a legal framework to ensure the effectiveness of his decisions. Through research

and analysis, this piece contributes that an additional protocol to the New York Convention,

the law governing the enforcement of foreign arbitral awards would harmonize the regime for

enforcement of interim measures, thereby benefiting the international arbitration system.

350 GANDOTRA