Beruflich Dokumente
Kultur Dokumente
Project submitted by
Sarthak Mishra
(Economics, Major)
Semester VI
Section B
Roll no. 131
TABLE OF CONTENTS
CERTIFICATE OF DECLARATION.........................................................................................2
ACKNOWLEDGEMENT............................................................................................................3
INTRODUCTION.........................................................................................................................4
RESEARCH METHODOLOGY.................................................................................................6
OBJECTIVES................................................................................................................................7
CHAPTERISATION.....................................................................................................................8
CHAPTER 1....................................................................................................................................8
TO DISCUSS THE CONDITIONS PRECEDENT, FORMS AND THE VARIED PURPOSE OF THE INTERIM
RELIEF.........................................................................................................................................8
CHAPTER 2..................................................................................................................................12
TO DISCUSS THE POWER OF THE COURT TO GRANT INTERIM MEASURES..................................12
CHAPTER 3..................................................................................................................................14
TO DISCUSS ABOUT THE RECOGNITION AND ENFORCEMENT OF INTERIM RELIEF.....................14
CONCLUSION............................................................................................................................16
BIBLIOGRAPHY........................................................................................................................17
BOOKS......................................................................................................................................17
JOURNALS...............................................................................................................................17
CERTIFICATE OF DECLARATION
I hereby declare that the project work entitled INTERIM RELIEF IN ALTERNATE DISPUTE
RESOULTION SYSTEM submitted to HNLU, Raipur, is record of an original work done by
me under the guidance of Mr. Manoj Kumar., Faculty Member, HNLU, Raipur.
Sarthak Mishra
Roll. No. 131
Semester 6th
ACKNOWLEDGEMENT
I am highly elated to carry out my research on the topic, INTERIM RELIEF IN ALTERNATE
DISPUTE RESOULTION SYSTEM. I would like to give my deepest regard to my course
teacher Mr. Manoj Kumar, who held me with his immense advice, direction and valuable
assistance, which enabled me to march ahead with this topic. I would like to thank my friends,
who gave me their precious time for guidance and helped me a lot in completing my project by
giving their helpful suggestion and assistance. I would like to thank my seniors for their valuable
support. I would also like to thank the library staff and computer lab staff of my university for
their valuable support and kind cooperation
INTRODUCTION
A final award may be of little value to the successful party if, in the meantime, the behavior of
the other party renders the outcome of the proceedings largely ineffectualsuch as when the
recalcitrant party dissipates its assets or places them in a jurisdiction where enforcement is
cumbersome or otherwise impossible. To avoid this type of harm, the precautionary claimant
may request interim relief. This relief might take the form of an order restricting a party from
transferring money to a less favorable enforcement regime or an order appointing an
administrator of assets. Interim measures being employed in arbitral proceedingssuch as
orders, attachments, and/or injunctions vary widely, with international trade practice continuing
to generate new kinds of remedies according to the needs of the parties and the increasing
complexity of cases.
Requests for interim relief typically seek some kind of protection of assets or property during the
time when the ultimate determination of the facts and law of the case is still being made. 1 The
rationale for interim relief is to preserve both assets and property throughout the entirety of the
arbitration process, thus preventing an arbitrators final ruling from being meaningless due to the
actions of the parties involved.2 Thus, such measures are having huge practical importance and
are often an indispensable part of the arbitral process.
Traditionally, requests for interim relief have been a construct of courts. 3 However, arbitrators are
increasingly being asked to make such rulings themselves.4 Requesting interim relief from an
arbitrator, as opposed to the court, is particularly appealing in international arbitration, where
parties often engage in arbitration as a way of avoiding local courts and any home court
1STEVEN P. FINIZIO & DUNCAN SPELLER, A PRACTICAL GUIDE TO INTERNATIONAL COMMERCIAL
ARBITRATION : ASSESSMENT PLANNING AND STRATEGY, p. 220 (2010).
2ALAN REDFERN, LAWRENCE W. NEWMAN & RICHARD D. WILL EDS., INTERIM MEASURES, IN THE LEADING
ARBITRATORS GUIDE TO INTERNATIONAL ARBITRATION 203, 209 (2008); RICHARD W. NAIMARK & STEPHANIE E.
KEER, ANALYSIS OF UNCITRAL QUESTIONNAIRES ON INTERIM RELIEF, 16 MEALEYS INTL ARB. REP. p. 1 (2001).
5 NAIMARK & KEER, supra note 2, at 3; RAYMOND J. WERBICKI, THOMAS CARBON-NEAU & JEANETTE A. JAEGGI
eds., ARBITRAL INTERIM MEASURES: FACT OR FICTION?, Handbook on International Arbitration and ADR, p. 89, 90
(2010).
RESEARCH METHODOLOGY
The method of research adopted for the project is the analytical and descriptive method. The
texts that were used for the project include articles, research papers and news given in various
websites as well as online journals.
OBJECTIVES
To discuss the conditions precedent, forms and the varied purpose of the Interim Relief .
To discuss the power of the Court to grant Interim Measures.
To discuss about the Recognition and Enforcement of Interim Relief.
CHAPTERISATION
CHAPTER 1
TO DISCUSS THE CONDITIONS PRECEDENT, FORMS AND THE VARIED PURPOSE OF THE
INTERIM RELIEF
Interim measures provide a party to arbitration with immediate and temporary protection of
rights or property during the period of time when a decision on the merits by the arbitral tribunal
remains pending.6 These measures vary widely according to the needs of the parties and the
complexity of the cases in international trade practice.7
Article 17(2) of the UNCITRAL Model Law on International Commercial Arbitration
(hereinafter MAL) lists four functions of interim measures: maintenance of the status quo;
protection of the arbitral process itself; preservation of assets; and preservation of evidence. 8 This
list is not exhaustive and an interim measure may, of course, serve more purposes at the same
time.9
1. Conditions Precedent for granting Interim Relief
Most sets of arbitral rules are silent on the precise conditions under which interim measures may
be ordered.10 In practice, however, arbitral tribunals have developed standards for granting
6 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION, p. 942 (2009).
7 GRGOIRE MARCHAC, INTERIM MEASURES IN INTERNATIONAL COMMERCIAL ARBITRATION UNDER THE ICC, AAA,
LCIA AND UNCITRAL RULES , 10 AM . REV . INTL ARB., p. 123 (1999).
8 UNCITRAL Model Law on International Commercial Arbitration, UNCITRAL, 18th Sess., Annex 1, U.N. Doc.
A/40/17 (June 21, 1985), revised by Revised Articles of the UNCITRAL Model Law on International Commercial
Arbitration, UNCITRAL, 39th Sess., Annex, U.N. Doc. A/61/17 (July 7, 2006).
10 NIGEL BLACKABY et al., REDFERN AND HUNTER, INTERNATIONAL ARBITRATION 5.28 (5th ed. 2009).
8
17 REDFERN, supra note 2, at 236; HANESSIAN & MARK, supra note 20, at 61.
18 GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION, p. 942 (2009).
19ANDREAS REINER, LES MESURES PROVISOIRES ET CONSERVATO IRES ET LARBITRAGE INTERNATIONAL,
NOTAMMENT LARBITRAGE CCI, 4 Journal de Droit INTL 854 (1998).
26 LOUIS FLANNERY, ANTI-SUIT INJUNCTIONS IN SUPPORT OF ARBITRATION, 12 EUR. BUS. L. REV. 143 (2003).
27 Supra Note 13.
28 U.N. Secretary-General, Possible Uniform Rules on Certain Issues Concerning Settlement of Commercial
Disputes, 63, U.N. DOC. A/CN.9/WG.II/WP.108 (Jan. 14, 2000).
11
32 International Chamber of Commerce (ICC) Rules of Arbitration, Art. 28, effective January 1, 2012, 2011,
[hereinafter ICC Rules]; International Centre for Dispute Resolution (ICDR) International Arbitration Rules, Art.
21(1), effective June 1, 1999, [hereinafter ICDR Rules]; UNCITRAL Model Arbitration Law, supra note 8, Art.
26(1), (2); London Court of International Arbitration (LCIA) Arbitration Rules, Art. 25, effective Jan. 1, 1998,
[hereinafter LCIA Rules].
CHAPTER 3
TO DISCUSS ABOUT THE RECOGNITION AND ENFORCEMENT OF INTERIM RELIEF
In terms of the recognition and enforcement of interim measures, court intervention is ultimately
needed since arbitrators lack coercive powers and cannot exercise public authority. It is
controversial whether interim awards qualify for recognition and enforcement under the New
York Convention since such awards are not final, but provisional in nature, and may therefore be
reconsidered during the procedure.43 Additionally, national laws vary widely as to recognition
and enforcement of interim measures.44 Therefore, the MAL provisions, as amended in 2006, aim
at harmonizing the various national laws by providing a common regime for recognition and
enforcement of interim measures.45 The UNCITRAL Secretariat explained the necessity of the
revision explicitly under the fact that the effectiveness of arbitration frequently depends upon the
possibility of enforcing interim measures. Twelve countries have already enacted legislation
based on these MAL provisions, among them are countries such as Australia, China, Hong Kong,
42 UNCITRAL ARBITRATION RULES, Art. 26(8); UNCITRAL MODEL ARBITRATION LAW, Art. 17G.
43 BORN, supra note 6, at 2021.
44 UNCITRAL MODEL ARBITRATION LAW, supra note 8; MARCHAC, supra note 7, at 136.
45 UNCITRAL MODEL ARBITRATION LAW, supra note 8, Explanatory Note A.2; ROTH, supra note 9, 14.19,
14.333.
15
51 UNCITRAL MODEL ARBITRATION LAW, supra note 8, Arts. 17 I(1)(a)(ii), (iii), (b).
16
CONCLUSION
Interim measures provide a party to arbitration with an immediate and temporary protection of
rights or property. Because parties usually agree to arbitration in order to avoid litigating their
dispute before national courts, the possibility to obtain interim relief from the arbitral tribunal is
particularly important. Thus, arbitrators are generally vested with broad powers to order interim
relief. However, in certain circumstances, the arbitral tribunals ability to grant interim measures
may be limited. First, arbitrators may ordinarily issue interim measures only after their
constitution. However, in order to secure the availability of interim relief before the arbitral
tribunal has been properly constituted, some arbitral rules have recently promulgated so called
emergency provisions. Emergency provisions provide for a mechanism under which a party
seeking urgent interim relief before the arbitral tribunal is in place can apply for the appointment
of an emergency arbitrator. Second, arbitrators lack coercive powers. Consequently, the arbitral
tribunal is neither empowered to order interim measures against third parties nor to directly
enforce the interim measures. In such cases, the assistance of local courts is needed to ensure the
effectiveness of an interim measure. Accordingly, national courts play an important
complementary role where they order and enforce interim measures.
All in all, MAL Article 17 et seq. fosters the harmonization of the varying national laws on
interim measures and thereby helps to establish a reliable and efficient system of interim relief in
international commercial arbitration.
18
BIBLIOGRAPHY
BOOKS
ALAN REDFERN, LAWRENCE W. NEWMAN & RICHARD D. WILL EDS., INTERIM MEASURES, IN THE
LEADING ARBITRATORS GUIDE TO INTERNATIONAL
GARY B. BORN, INTERNATIONAL COMMERCIAL ARBITRATION, p. 942 (2009).
MARIANNE ROTH, UNCITRAL MODEL LAW
FRANK-BERND WEIGAND
ED.,
ON
TO INTERNATIONAL
COMMERCIAL
JOURNALS
ANDREAS REINER, LES MESURES PROVISOIRES
ET
CONSERVATO
IRES ET
LARBITRAGE
OF
19
UNCITRAL QUESTIONNAIRES
ON