APPLICABLE LAWS AND STANDARDS FOR INTERIM MEASURES IN INTERNATIONAL ARBITRATION

ABSTRACT

This Note examines the grant of interim measures in international arbitration by focusing on the various processes and ways a party would have to comply with or consider when trying to obtain an interim measure. The current debate on the appropriate forum, the applicable law and standards that the tribunal should apply has made the discussion more interesting and invigorating. This has led to calls by some commentators that the regime should be harmonized and a transnational principle that will guide stakeholders should be evolved. This Note considers the power of the court or the arbitrator to order interim measures. It also looks at the ways the applicable law and standards can be ascertained as well as the sources of the applicable laws and standards, as provided by various arbitral rules (ad hoc and institutional) as well as the evolving transnational principles of law. It concludes by stating that until the harmonization of the various regimes governing the grant of interim or provisional measures is achieved, national laws of the place of arbitration and the place of enforcement cannot be completely excluded from international arbitration and the dreams of a transnational regime will only remain aspirational.

INTRODUCTION

In recent times, the use of international arbitration as a means of resolving international business or commercial disputes has been on the increase. The increase in international business transactions between states, state-owned corporations, private corporations and individuals has triggered the demand for this neutral and private forum for the resolution of disputes that may arise. The reasonable expectation of parties to such international business transactions that employ international arbitration as the means of dispute resolution, is that any dispute which may arise between them will be resolved in a fairly expeditious manner and in private away from the public battlefield of the national court of law of one party or the other.[1]

One vital factor that is crucial to international arbitration as a form of international dispute resolution and even for litigation is the grant of interim measures. This is because in reality, arbitration proceedings are not less adversarial than litigation in public courts. Interim measures which are also called or known as "provisional measures", "conservatory measures", "preliminary injunctions" or "emergency/interim reliefs" are those remedies or reliefs that are aimed at safeguarding the rights of parties to a dispute pending its final resolution.[2] The underlying justifications for the grant of interim measures are that, no party's right or interest should be damaged or affected irreparably due to acts or omissions of the other party before or during the adjudication; and also the need to facilitate the "effectiveness of judicial [or arbitral] protection by providing interim reliefs which complement the final relief."[3]Instances of situations when a party will seek interim measures include inter alia, where there is the need to maintain or restore the status quo pending determination of the dispute; or a need to preserve evidence that may be relevant and material to the resolution of the dispute, or there is danger to the party's property in the custody of the adversary; or danger that the adversary will dispose of its own property, leaving the other party without a meaningful chance of recovery in arbitration; and in a situation where the adversary is persisting in the violation of a copyright or misappropriation of trade secrets.[4]

Despite the importance of interim measures in international arbitration,[5] practitioners are all too aware that the availability of interim measures is not so simple. The conundrums are these: In certain circumstances, an arbitral tribunal's ability to grant interim measures may be limited.[6] In this case, a party to an international arbitration will have to seek interim measures in a national court, most likely the national or state court that it had earlier sought to avoid when it agreed to arbitration. Also, it may happen that the court would decline to grant the measure requested, either because it concludes that granting judicial interim relief is incompatible with the arbitration agreement or that it is undesirable for the court to interfere in the arbitration process.[7] In addition, the tribunal or national court may be willing to grant the interim measure, but the challenge may then be the applicable laws and standards for the interim measure to be used. Further, it may also be that the interim measure is granted, but a national court may refuse to enforce it on the grounds that the measure violates a mandatory provision of its law or public policy.[8] In light of the above considerations, to say that parties are in dire need of a harmonized regime for the grant and enforcement of interim measures is simply stating the obvious.

This paper seeks to address the conundrums listed/identified in the preceding paragraph that affect the ability of a party to obtain interim measures in international arbitration.[9] It also considers the vexed issue of which law and standards should govern the grant of interim measures in international arbitration. Further analysis of the various sources of the applicable law (i.e. arbitral rules, national arbitration law and even transnational principles of law) is carried out with the intention of deciphering whether there are common trends or approaches to the issue of interim measures. The paper concludes with recommendations on how to harmonize the regimes for interim measures in international arbitration.

This paper is divided into six parts. Part I introduces the hypothesis. Part II discusses the available forums a party to an international arbitration can obtain an interim relief or measure. As part of this discussion, Part II also examines the powers of the court or the tribunal to grant interim measures. Part III discusses the applicable law that governs the grant of interim measures. First, this is considered from the perspective of instances where the parties have expressly agreed on the choice of law that will govern the arbitral proceedings. Second, the analysis considers instances where there is no express choice of procedural law by the parties. Part IV summarizes how each of the key arbitral rules addresses the issue of interim measures particularly as they relate to the applicable law and standards. Part V further analyzes the other sources of applicable laws and standards for interim measures. This is done through a consideration of some national legislations and the much-touted transnational principles of law. Part VI concludes and makes recommendation for the harmonization of the legal regime that governs interim measures in international arbitration.

II· FORUM TO OBTAIN INTERIM MEASURES

a. Power of the Arbitrator to Order Interim Measures

It is widely accepted today that an arbitrator is the "natural judge" for interim measures of protection where there is an agreement to arbitrate for a final remedy.[10] Arbitration agreement occurs, however, when parties have chosen arbitration rules that grant the arbitrators such powers. Margaret L. Moses suggests that in such a situation, most interim decisions will be made by the arbitrator.[11] In addition, national laws (lex arbitri) may provide for default/fall back powers to the arbitrator for the purpose of dealing with issues bordering on interim measures. Further, it has been argued that even where there is no explicit power given to the arbitrators for interim measures, such measures may be granted on the basis of inherent or implicit powers of arbitrators or their powers to conduct arbitration proceedings.[12]One would however question the validity of the foregoing assertion on the basis that in arbitration much is anchored on the mandate or consent of the parties to the proceedings.

There are quite a number of policy factors that determine the arbitral tribunal's powers to grant interim measures. These factors are, first, the need to respect sanctity of contract or the agreement to arbitrate, given that when parties agree to arbitrate, they have reached an agreement to resolve whatever dispute they may have before the arbitrators. Second, if the resolution of a final remedy in regards of a dispute is entrusted to the arbitrator, the same trust should logically be shown to arbitral domain in determining a provisional remedy concerning the same dispute.[13] Third, given that the arbitrator has followed the facts of the case from its commencement, the arbitrator may be in a better position than judicial authorities to identify whether a request for a provisional remedy is used as dilatory tactic or as an offensive/abusive weapon or if indeed, there is a genuine need for such provisional remedy. Finally, it is highly likely that, in proceedings for interim measures before arbitrators, parties' arguments, the subject matter of the arbitration (e.g. trade secrets), and, in some cases, the mere existence of arbitration remain confidential.[14]

Despite the overwhelming reasons for arbitrators to grant interim measures, there are practical reasons why the arbitrator or the tribunal might not be in the position or be best suited to grant the interim measures sought. Typically, the absence of a coercive power in the arbitrator first comes to mind.[15] Further, the tribunal might not have been constituted at the time the party needs the interim relief.[16] Some commentators have also argued that, an arbitral tribunal does not have authority to make any orders affecting persons who are not parties to the arbitration (e.g. parent companies, trustees etc.). Accordingly, a tribunal may not grant a request for interim measures when a third party is implicated or involved in the dispute.[17]

b. Power of the Court to Order Interim Measures

It has been argued that a request to a judicial authority for a provisional measure, either before or during the arbitral proceedings, is compatible with the agreement to arbitrate. According to Ali Yesilirmak, this reflects dual principles, which are, in fact a logical conclusion of the acceptance of the concurrent jurisdiction approach: (1) the request is not a waiver of the right to arbitrate and (2) the existence of an arbitration agreement does not prevent a judicial authority from granting an interim measure.[18]

The powers of judicial authorities to grant interim measures in support of arbitration are found in the national arbitration laws of most legal systems around the world. Indeed, state courts have come to recognize the need to take urgent and/or conservatory measures in order to protect the rights of parties in the face of a threat or an emergency.[19] Further, the right of judicial authorities to grant interim measures have also been recognised by many of the arbitration Rules. This is by the explicit permission of application to national courts in aid of arbitration generally or for the purposes of obtaining interim relief in aid of the arbitration specifically.[20] The author would like to point out that the recognition of the power of the court to grant interim measures is now widely considered as one that is supportive or facilitative of the arbitral proceeding.

Despite the foregoing, most commentators still maintain that certain interim measures are best obtained from the court due to the inability of the tribunal to grant them or given the potential problems associated with seeking such interim measures through arbitration.[21] For instance, Alan D. Redfern, points out that certain types of interim measures such as mareva injunction (freezing orders) or Anton Piller (Searching) orders that have been developed by the courts play a vital role in arbitration proceedings.[22] However, he points out that it is difficult to envisage any national system of law agreeing to invest private arbitral tribunals with any such powers to grant these types of interim measures.[23] Further, there is the issue of granting interim measure in an arbitration that takes place in a country other than where the measure is sought. This arises where vital evidence or a party's assets from which an award would be satisfied might be in a country foreign to the place of arbitration. In such a scenario, convenience and efficiency dictates that interim measures should be available in aid of such arbitration.

In addition to the foregoing, there is a debate, particularly in the US, between federal and state courts as to whether Article II of the New York Convention serves as a bar to court assistance to arbitration proceedings.[24] In McCreary Tire and Rubber Co v. CEAT, SPA[25]one of the issues before the Third Circuit was whether or not an interim measure (pre-judgment attachment) should be removed. In dealing with the issue, the Court referred the parties to arbitration in accordance with Article II of the New York Convention and further held that the request for a pre-award attachment "seeks to bypass the agreed upon [sic] method of dispute resolution."[26] A divergent decision interpreting Article II, which appears to have gained support in the international arena, was reached in Carolina Power and Light Co. v. Uranex [27] where Carolina Power attached a debt owed to Uranex for satisfaction of a future arbitral award in its favour. Uranex moved to lift the attachment. The Carolina Power Court refrained from following the reasoning and outcome of the McCreary case by stating that, "the availability of provisional remedies encourages rather than obstructs the use of agreement to arbitrate."

III· ASCERTAINING THE APPLICABLE LAW

a.  Express Choice of Applicable Law

Rarely do parties to an international arbitration agreement consider the issue of choosing the applicable law to govern the issue of interim measures or the arbitral proceedings in general. Often times what parties do is to choose a national substantive law to govern their contract and then the place of arbitration. Where a place of arbitration is chosen, its laws usually serve as the lex arbitri or the procedural law.[28] The process whereby the choice of arbitration venue determines the law applicable to interim measures has been described as an "indirect choice of law."[29] However, if the parties expressly choose a law to govern the arbitration procedure or the grant of interim measures, that law is the primary source of procedural law and the arbitrator or tribunal is obligated to apply it accordingly.

Margaret L. Moses has pointed out that a good example of a lex arbitri is the UNCITRAL Model Law on International Commercial Arbitration, which has been adopted in at least seventy countries, regions and states.[30] She noted that the Model Law inter alia deals with the issue of court interference in arbitral matters and permits parties to seek interim relief from a court without losing the right to arbitrate. One cannot help but agree with her assertion, given the fact that the UNCITRAL Model law is presently the embodiment of what is known as the most widely accepted transnational principles of law capable of governing arbitration.

It is submitted that in cases where the parties have expressly chosen the applicable procedural law directly or indirectly, the latitude given to the arbitrator to apply a different law is greatly limited. Acting contrary to the parties' choice, may be a ground for challenging the arbitrator or even the interim measures that were granted. However, Linda Silberman and Franco Ferrari, while dealing with the issue of applicable law (substantive) have suggested that, in some situations, national courts or even the tribunal may find national policies of the place of arbitration on the particular matters sufficiently important to override the law chosen by the parties.[31] I am of the view that the above expressed concerns of the learned authors in respect to substantive law can be applied when ascertaining the law governing the proceeding (interim measures). A decision to grant interim measure that conflict with the applicable mandatory provision or law may be set aside in a country where it is rendered or the eventual enforcement of such decision may be resisted at the time/place of enforcement.[32]

b.  Absence of Express Choice of Applicable Law

If the parties have not chosen the applicable law for interim measures or the law governing the arbitral proceedings, it becomes necessary to determine the applicable law and in some instances, this is a complicated process. The determination of the applicable law is a task that must then be carried out by either the tribunal or a national court; such determination mostly depends on the forum where the party sought the interim measures.

It is pertinent to point out that some legal systems, namely the US and England, pre-determine that the arbitrators have to apply the procedural law of the place of arbitration in the absence of parties' agreement.[33] The question that then follows is what procedural law and standards the arbitrator should apply, whether it will be the rules of civil procedure and standards as used by the state court or those contained in the national arbitration law. For instance, if parties with an arbitration seat in New York fail to expressly provide for the procedural law, the tribunal may be required to apply the New York Civil Practice Law and Rules in determining the law applicable for granting an interim measure. Other legal systems, for example in Switzerland, France and Germany, are more liberal and these systems leave it to the tribunal to freely decide the applicable procedural law.[34]

Where the parties have not chosen a seat in an institutional arbitration, the arbitral institution will generally make the choice.[35] In an ad hoc arbitration, the court will make the decision if it is able to find that a valid agreement to arbitrate exists. Once the seat of arbitration is determined, the tribunal can proceed to apply its laws as the lex arbitri. In cases, where the rules of arbitration has conferred the tribunal with the powers of determining the applicable procedural law, the tribunal may do this by applying the conflict of law rules of the jurisdiction which it considers applicable.[36] This approach of determining the applicable law has been described by scholars as the "indirect approach" (voie indirecte). Conversely, under what is called the direct approach, the tribunal directly applies the procedural or substantive law it considers applicable, apparently without considering the necessity of using a conflict of law analysis to reach its conclusion.[37] Lately, there have been suggestions that in determining the applicable law to the arbitral proceedings (by extension the interim measures), the arbitrator should be allowed to make recourse to transnational principle of law.[38]

IV· SOURCES OF APPLICABLE LAWS AND STANDARDS: Arbitral Rules

a.  UNCITRAL Arbitration Rules

Article 26 of the 2010 UNCITRAL Arbitration Rules addresses the subject of interim measures. The provision confers the tribunal with the power to grant interim measures, if requested by the parties. This it can do prior to the issuance of a final award by which the dispute is resolved, if it is required to, inter alia maintain or restore the status quo pending determination of the dispute; take action that could prevent, or refrain from taking action that is likely to cause imminent harm; avoid prejudicing the arbitral process itself; provide a means of preserving assets out of which a subsequent award may be satisfied or preserve evidence that may be relevant and material to the resolution of the dispute.[39]

Article 26 (3) of the Rules provides the conditions or standards to be established before an interim measure is ordered. These conditions or standards have been described as substantive and cumulative conditions that must be satisfied for the issuance of interim measures.[40] These standards or conditions are (i) a likely harm not adequately reparable by an award of damages (ii) an appropriate balance of likely harm, and (iii) a reasonable possibility of success on the merits.[41] It has however been queried whether the parties, in fixing the powers of the tribunal, can impose further conditions or restriction through their mutual agreement on the tribunal's powers to award interim measures.[42] In response, it has been held within the context of a bilateral investment treaty (Canada-Ecuador) that a tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach of the BIT.

It is important to point out that, unlike the 1976 version of the Rules, Article 26 of the 2010 Rules does not provide for the form in which the interim measures is to be granted. One would say that this omission has the potential effect of leading to the rejection of the enforcement of the interim measures under the New York Convention largely on the ground that the New York Convention refers only to "awards." Despite this challenge, interim measures issued under the 2010 Rules continue to be generally accepted when made in the form of an award. Further, Article 26 (5) of the 2010 Rules confers the tribunal with the power to modify, suspend or terminate the interim measures. Also, the Rules provide that the tribunal may require that a party disclose material change in the circumstance on which the interim measure was predicated.[43] The tribunal is also authorized to require the requesting party to provide security for potential costs associated with the requested interim measure.[44]

Another notable provision in the 2010 Rules is the provision dealing with the relationship of the arbitral tribunal and the national courts on the issuance of interim measures.[45] This provision effectively allows a party to apply to a judicial authority for interim measures and such an application will not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement. According to David D. Caron and Lee M. Caplan, where mandatory norms of the applicable national law preclude the arbitral tribunal from ordering interim measures, Article 26 (9) guarantees that a party requesting a court to issue such measures does not by so doing violate the arbitration agreement.[46] One would say that, one major significant effect or importance of Article 26(9) is that it makes clear that by resorting to the national court for interim measures, a party does not lose the right to demand arbitration and does not become subject to suit for breach of its agreement to arbitrate.[47]

b.  International Chambers of Commerce Arbitration (ICC) Rules

In its dealing with the issue of interim measures, Article 28 of the 2012 ICC Rules provides that unless the parties otherwise decide, as soon as the file has been transmitted to the ICC, the arbitral tribunal may at the request of a party, order any interim or conservatory measure the tribunal deems appropriate. Furthermore, the arbitral tribunal is conferred with the power to make the grant of any such measure subject to appropriate security to be furnished by the requesting party.[48]

In recognizing the complimentary relationship between the arbitral tribunal and the court on the grant of interim measures, the 2012 ICC Arbitration Rules provide that before the file is transmitted to the arbitral tribunal and even in appropriate circumstances thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures.[49] The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an arbitral tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitral tribunal. Any such application and measure taken by the judicial authority must be notified without delay to the Secretariat.[50]

Though the ICC Rules do not define "interim measure" or "conservatory measure", in practice, arbitral tribunals may grant a wide range of measures. Unlike the UNCITRAL Rules which provide an exhaustive list of measures that can be granted, the ICC Rules grants the tribunal the discretion to make the interim award based on the most appropriate consideration. It has been suggested that common interim measures that a tribunal can grant pursuant to Article 28 of the Rules are (i) measures to protect the status quo pending the resolution of the dispute, (ii) measures to preserve evidence, (iii) security for costs, (iv) measures to secure enforcement of the award by preserving assets likely to be required to satisfy a subsequent award, and (iv) orders for interim payment. [51]

The ICC Rules do not provide for any standards or criteria according to which an ICC tribunal is to grant an interim measure. The reason for this is that the ICC considers the granting of interim or conservatory measures to be a matter of procedure, which should fall under the law governing the arbitration.[52] According to Jason Fry et al, in practice, arbitral tribunals will often refer to one or both of the following basic requirements - a prima facie arguable case on the merits and a threat of irreparable harm.[53]

Article 28(2) of the ICC Rules authorizes parties to seek interim measures from any competent judicial authority in appropriate circumstances. This the parties can do prior to or after the tribunal has been constituted. The provision clearly states that applying to the court for such measures will not in any way constitute a breach of the parties' arbitration agreement. Though it recognizes the right of a party to approach the court, this provision does not by itself confer jurisdiction on the judicial authority. The judicial authority will naturally determine its own jurisdiction not by this provision, but by the law to which it is subject.

One unique innovation of the 2012 ICC Rules is the provision for emergency arbitrator proceedings. Article 29 provides parties with an alternative to state courts for seeking interim measures prior to the constitution of the tribunal even before a request for arbitration is filed or when it has been constituted but prior to the transmission of the case file to the tribunal. Essentially, it allows a party to obtain interim measures before the tribunal becomes effective. However, parties who choose the ICC arbitral rules are allowed to opt out of the Emergency Arbitrator Provision. If there is no opt-out, the provisions automatically apply where the parties have agreed to ICC arbitration after the date on which the Rules came into force.[54]

c.  London Court of International Arbitration (LCIA) Arbitration Rules

In the LCIA Arbitration Rules (2014), the issue of interim and conservatory measures are dealt with under Article 25. The tribunal is conferred with the power to grant interim measures upon the application of any party, after giving all other parties a reasonable opportunity to respond to such application and upon such terms as the tribunal consider appropriate in the circumstances.[55] Under the LCIA regime, the Rules provide that interim measures can be granted for the following purposes of (i) obtaining security for a claim or counterclaim, (ii) preservation, storage, sale or other disposal of any property or thing related to the arbitration that is under the control of any party, and (iii) on a provisional basis, any relief which the tribunal would have the power to grant in an award including a provisional order for the payment of money or the disposition of property as between any parties.[56]

Just like the 1998 LCIA Rules, it is important to point out that the 2014 LCIA Rules do not provide any standards or criteria for the grant of interim and conservatory measures. It has been suggested that the Rules left it to the discretion of the tribunal.[57] Further, some guidelines can be inferred from various other sources, the most useful of which is said to be the 2006 amendments to the UNCITRAL Model Law.[58] The justification for this approach by most LCIA tribunals is that although the Model Law does not represent a consensus among international arbitration commentators and practitioners, it does represent a view that commands wide support.[59]

Article 25.2 of the LCIA Rules empowers the tribunal to stay or dismiss the claim or counterclaim as the case may be, for failure to comply with an order to provide security for costs. Peter Turner and Reza Mohtashami point out that while the above provision conform to the English court practice, it is not a power that the LCIA Rules confer on the tribunal in relation to breaches of any order for interim and conservatory measures.[60] The learned authors express reservations about the disposition of non-English supervisory courts to the provisions, where they are seized with a complaint by a respondent, that it had been deprived of the right to put his case by his inability to put up security for the party's costs. It was suggested and advised that a tribunal should think twice before using this power in an arbitration proceeding with its seat outside England and Wales.[61]

The LCIA Rules however does not preclude a party from applying to any state court or other judicial authority for interim or conservatory measures before the formation of the tribunal, after the formation of the Arbitral Tribunal and in exceptional cases and with the Arbitral Tribunal's authorization, until the final award.[62] Any application to the court post constitution of the tribunal is to be made only upon a prompt communication by the applicant to the tribunal and the other party.[63] By agreeing to arbitrate under the LCIA rules, an application for security for costs can only be made to the tribunal, thus clearly making Article 25.2 an exclusive arbitral remedy.[64]

Unlike the 1998 LCIA Rules, the 2014 LCIA Rules now provide for expedited formation of arbitral tribunal and emergency arbitrator proceedings.[65] Article 9A empowers any party to apply to the LCIA Court for expedited formation of the arbitral tribunal under Article 5. It further provides that the LCIA Court shall determine the application as expeditiously as possible in the circumstance and may abridge any period of time under the arbitration agreement or other agreement of the parties.[66] On the issue of emergence arbitrator, the Article 9.14 of the new 2014 Rules provides that it will not apply if either (i) the parties have concluded their arbitration agreement before 1 October 2014 and the parties have not agreed in writing to 'opt in' or (ii) the parties have agreed in writing at any time to 'opt out' of Article 9B.

Though not expressly stated, Article 25.3 seems to suggest that, despite the provision of Articles 9A and 9B, a party who seeks an emergency interim measures would have to go to a state court or any other legal authority. In addition to this, it will not be out of place for one to conclude that an application for a freezing order or Anton Piller order would come within the exceptional cases, which will necessitate a party to approach a state court or other legal authority that has the ability to order and enforce the order. Article 25.3 prohibits the parties from applying to any state court or other legal authority for any order for security for legal costs or arbitration costs after agreeing to arbitration under the arbitration agreement.

d.  AAA/ICDR Arbitration Rules

Articles 21 and 37 of the American Arbitration Association/International Centre for Dispute Resolution (ICDR) Arbitration Rules, respectively deal with interim measures of protection and emergency measures of protection. In the case of interim measures of protection, the tribunal enjoys a very broad discretion to grant whatever interim measure it deems necessary and this includes injunctive relief and measures for the protection or conservation of property.[67] Like most of the other Rules, save for the UNCITRAL Rules, the ICDR Rules make no provision for the criteria or standards upon which an interim measure is to be granted. This lacuna seems to suggest that the arbitrator is given wide discretion in deciding what basis upon which the interim measures is to be granted.

The ICDR Rules,[68] just like the UNCITRAL Model law and the arbitration laws of most jurisdictions, confer parties with the right to request interim measures from competent courts without waiving their rights to arbitrate. This provision of the ICDR Rules can also be contrasted with that of the ICC and LCIA Rules, which refer to the parties' power to apply to the court before the tribunal is constituted, but limited application to the courts thereafter to 'appropriate' or 'exceptional' circumstances, respectively.[69] In addition, the ICDR Rules confers the tribunal with the power to award cost associated with application for interim measures. Another unique characteristic of the ICDR is that unlike most of the other arbitration rules, it expressly provided that an order for interim measures of protection should be made as an award.[70]

The concept of emergency measures of protection, which is closely related to the interim measures, is provided for in Article 37. Through the Article 37 procedure, a party may apply to secure expedited emergency relief even before the arbitrator(s) is appointed or the tribunal is constituted. This provision is not provided for under the LCIA or the UNCITRAL Rules, but is provided for by the ICC Rules.[71] For the procedure under Article 37 of the ICDR Rules to be effectively triggered, the application for emergency relief to the administrator must be brought after the demand for arbitration has been filed, and most importantly, before the tribunal is constituted.[72]

It should be pointed out that, under Article 37 (5) the emergency arbitrator possesses the power to order or award any interim or conservatory measure that he or she deems necessary. However, the emergency arbitrator is obligated to give reasons for his decision. Unsurprisingly, the emergency arbitrator procedure under the ICDR does not also provide for any criteria or standards upon which the arbitrator can base the decision to grant or not grant the emergency relief. It will not be out of place to conclude that, just like interim measures of protection, the arbitrator in this instance is allowed to exercise wide discretion when deciding whether to grant an application for interim measures under the emergency procedure.

e.  ICSID Arbitration Rules

Under the International Centre for Settlement of Investment Disputes (ICSID) Convention and Rules, provision is made for provisional measures under Articles 47 and 39 respectively. A party in an ICSID arbitration may request that provisional measures for the preservation of its rights be recommended by the tribunal. The request shall specify the rights to be preserved, the measures, the recommendation of which is requested, and the circumstances that require such measures.[73]

It is interesting to note, that unlike the international commercial arbitral rules regime, which provides that the tribunal should have power to order a provisional or interim measure, the ICSID Rules provide that the tribunal may "recommend" such measure.[74] However, recent ICSID tribunals, such as the Tokois Tekeles case, have recognized that tribunals in fact have the authority to "order" legally binding provisional measures.[75]

Article 39(3) allows the tribunal to recommend provisional measures sua sponte, though the request is usually initiated by one of the parties. The Rules explicitly prohibit tribunals from granting ex parte requests for interim measures by permitting tribunals to recommend provisional measures only "after giving each party an opportunity of presenting its observations.[76]

In similarity with other arbitral rules, Article 39 (6) of the ICSID Rules permits parties to approach a judicial or other authority either prior to or during the proceedings, but only provided that they have so stipulated in the agreement recording their consent to arbitration. Though the ICSID Arbitration Rules does not provide for the criteria or standards for the grant of a provisional measure, the preponderance of ICSID jurisprudence and scholars suggest that "imminent and irreparable harm" and "plausibility or likelihood of success of the claims" serves as a valid basis or reason to approach an ICSID tribunal for provisional measures.[77]

According to Christopher F. Dugan et.al, the most common situation that the drafters of the ICSID Arbitration Rules envisioned where interim reliefs or measures would be appropriate include: to compel parties to corporate in the proceedings and to furnish all relevant evidence; to secure compliance with an eventual award; to stop the parties from resorting to self-help or seeking relief through remedies other than the arbitration process; and to prevent a general aggravation of the situation through unilateral action.[78] The authors further opined that as at 2008, the request for provisional measures made thus far in ICSID proceedings fall into four general categories, and they are: obtaining evidence, securing financial guarantees, preventing excessive disclosure of information and enjoining parallel domestic proceedings.[79]

V. SOURCES OF APPLICABLE LAWS & STANDARDS: National Legislations or Transnational Principles of Law.

a.  National Legislations as Lex Arbitri

  i.    English Arbitration Act of 1996

The 1996 Act deals with the issue of interim measures or provisional awards relatively briefly in the following sections, namely Section 38, which is titled or referred to as "General powers of the tribunal"; Section 39, which is characterized as "Power to make provisional awards"; Section 44 which is entitled "Court powers exercisable in support of arbitral proceedings"; and Section 48, entitled simply "Remedies".[80]

Section 38 which deals with the general powers exercisable by the tribunal allows the parties to freely agree on the powers exercisable by the arbitral tribunal for the purposes of and in relation to the arbitral proceedings. The import of Section 38 (1) and (2) is that unless the parties expressly agree otherwise, the tribunal can exercise any of the powers referred to under the section. Under subsection (3) of the section the arbitrator has the power to order security for the cost of the arbitration.[81] In addition to its provision on costs, Section 38 (4) provides that the tribunal shall have the power to order directions in relation to any property for a number of stipulated purposes.[82] Also notable is that Section 39, which generally provides for the power of the tribunal to make provisional awards, stipulates that the tribunal can make a provisional order for the payment of money or disposition of property as between the parties.

It is important to point out that apart from Sections 38 and 39[83] which provides for the grant interim measures or provisional awards, Section 48 deals with remedies, in fact Section 48(5)(a) specifically provides that "the tribunal shall have the power to order a party to do or to refrain from doing anything." Though it has been contended that this provision is limited to a substantive award,[84] the author is of the view that there is nothing explicitly in Section 48 to limit the wide power conferred on a tribunal to a substantive award.

As similarly provided in the UNCITRAL Model Law and Rules, there is the recognition of the national court's support for the arbitral proceedings by the English Act.[85] It is provided that unless the parties agree otherwise the court has for the purpose of and in relation to arbitral proceedings the same power of making orders about the following a) the taking of evidence; b) the preservation of evidence; c) making orders relating to property which is the subject of the proceedings or as to which any question arises in the proceedings; d) the sale of any goods the subject of the proceedings; and e) the granting of an interim injunction or the appointment of a receiver.

In determining issues of provisional relief, arbitrators are in general not bound by the procedural law or precedent governing when a court will grant such relief. This is largely due to the fact that under English law, the arbitrator may only grant provisional or interim relief if the parties have expressly agreed that the power should be available. Such an agreement of the parties may be in the original arbitration agreement, the rules chosen by the parties or subsequent written agreement between the parties.[86] Though not expressly provided for in the Act, in practice, the arbitrator will generally consider the following factors in granting or refusing to grant an interim relief: (i) that harm not adequately reparable by an award of damages is likely to result if the measure is not order, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (ii) that there is a reasonable possibility that the requesting party will succeed on the merit of the claim.[87] The determination on this possibility shall not affect the discretion of the arbitration tribunal in making any subsequent determination.

ii.   French New Code of Civil Procedure

One notable feature of the French New CCP is that the Arbitration Law provision is keen to provide assistance to and establish the authority of the arbitral tribunal which has its seat in France or is subject to French procedural law.[88] On the issue of interim measures as it relates to domestic and international arbitration, the French Court reserves the power to order conservatory attachment and judicial security, such as freezing orders and charging orders over property which falls into the exclusive jurisdiction of the French courts. However for any other conservatory or provisional measures, that the arbitral tribunal deems appropriate, the tribunal may make such an order and set conditions for such measures and if necessary, attach penalties to such order.[89]

With respect to evidence, Article 1469 §1 of the CCP, which is also applicable to international arbitration provides that, "if one of the parties to the arbitral proceedings intend to rely on an artificial (acte authentique) or private (acte sous seing prive) deed to which it was not a party, or on evidence held by a third party, it may, upon leave of the arbitral tribunal, have that third party summoned before the President of the Tribunal de Grande Instance for the purpose of obtaining a copy thereof (expedition) or the production of the deed or item of evidence."

It is further provided that in so far as the arbitral tribunal has not yet been constituted; the existence of an arbitration agreement shall not preclude a party from applying to the court for provisional measures.[90] The application for the provisional measure is to be made to the President of the Tribunal de Grande Instance or of the Tribunal de Commerce who shall rule on the measure relating to the taking of the evidence in accordance with Article 1452. The application to the court is however subject to the provisions governing conservatory attachment and judicial security.

On the basis of the provision of Article 1449, it will be safe to conclude that provisional or conservatory measures may not be sought in the national court after the constitution of the arbitral tribunal save for cases where the party is seeking conservatory attachment and judicial security. On the issue of standards for interim measures, the CCP is silent. It however provides in its Article 1460 "that the arbitrators shall determine the arbitration procedure; they shall also not be bound by any rules applicable in court proceedings unless the parties have provided otherwise in the arbitration agreement."[91] It can be argued that given the fact that interim measures is a procedural issue, the clear import of this provision is that when not provided for the parties, the arbitrator is free to determine the applicable standards based on standards that are acceptable to it without deference to the court or the court's standards.

iii.  Federal Arbitration Act

In the United States, the national law applicable to an international arbitration is composed of domestic law and international agreements to which the US is a party. Specifically, the US Federal Arbitration Act basically provides for the implementation of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Award. Also all fifty states, as well as the District of Columbia and Puerto Rico have enacted their own arbitration statutes and these statutes govern all intrastate arbitrations to the exclusion of the Arbitration Act.[92] Further several states have enacted laws governing international arbitration[93] and these laws either supplements or override the state's intrastate statute in an arbitration that involve foreign commerce.

On the issue of the availability of interim relief, there appears to exist a conflict over whether such relief exist in the United States; however this conflict seems to have been laid to rest at the Federal level following the decision in Carolina Power and Light Co. v. Uranex, which is to the effect thatthe availability of provisional remedies encourages rather than obstruct the use of agreement to arbitrate. This view is now widely subscribed to by most national courts.[94] At the state level, the new state laws governing international arbitrations do address the issue of interim relief. For instance, under the Florida International Arbitration Law (FIAL) parties may seek interim relief from the arbitral tribunal or from any court within or outside the state.[95] Also, the FIAL provides that the parties may however agree that they cannot seek interim relief from a court; the law further provides that an award of interim relief by the tribunal is enforceable by any court.[96] Further, in the case of California and Texas, parties may seek interim relief, including attachment and preliminary injunction from the tribunal or from the appropriate state court.[97] California and Texas also similarly set out the procedure for enforcing the measures ordered by the arbitral tribunal.[98]

In relation to standards applied by US courts or tribunals, it is important to point out that they vary widely from court to court and tribunal to tribunal given that these courts would normally apply the standards provided in their respective civil procedure laws. Nevertheless in the United States, courts typically require a showing of "likelihood of success on the merit" and "irreparable harm", others may require that the applicant further show "probable cause" or "exigent circumstances".[99]

b.  Transnational Principles of Law

The idea of the application of transnational principles of law as the applicable law for an arbitration proceeding and also as the basis of the standards for the grant of interim measures in international arbitration appears to be gaining grounds lately. Some justifications for this approach are (i) that international arbitration should not be fettered by the local law of the place where the arbitration occurs; (ii) that parties often times choose the seat of arbitration in a country where neither party's business interests are located and (iii) the parties may have chosen the seat simply because it is convenient and this has nothing to do with the parties' preference for the local rules of arbitration of that particular place.[100]

If pursued to its logical conclusion, this approach will require tribunals when deciding on whether to grant interim measures, not to be strictly bound by the procedural law or lex arbitri of the seat or any state, but to rely on principle of law which are considered transnational, a-national, floating or even Stateless.[101] In this context, it seems that the transnational principles of law or the delocalization theory as it is sometimes called, as far as the arbitration process is concerned, would harmonize the legal framework of international arbitration.[102] It is argued by proponents that, if we anchor the arbitral process, particularly, the grant of interim measures on transnational principles of law, the mandatory laws of the place of arbitration would no longer be an issue and national courts at the place of arbitration could no longer disrupt the arbitration process or refuse to enforce an interim award.[103] This process would be attractive from the perspective of the parties to the arbitration, since they would remain unaffected by unforeseen and undesired local procedural law and therefore would not face the risk of having an unenforceable interim award due to non-compliance with the local procedural law.

Aside scholars and practitioners[104] who have strongly advocated for an arbitration proceeding anchored on transnational general principles of law, French Courts have in their laissez faire approach supported an arbitration proceeding detached from national law. In National Maritime Transport Co. v. Societe Gotaverken Arendal A.B[105], the Paris Court of Appeal held that although the seat of arbitration was Paris, the arbitral proceedings were not subject to French law. In this case, the contract between the parties contained an arbitration clause providing for arbitration in Paris under the ICC Rules. However the Paris Court of Appeal held that the proceedings were delocalized because of Article 11 of the 1975 ICC rules.[106]

Presently, it will not be out of place if one holds the view that the UNCITRAL Model law (as amended in 2006) is the most widely accepted embodiment of transnational principles of law, which serves as lex arbitri for arbitral proceedings.[107] Aside its wide acceptability, it has very comprehensive procedural provisions, also it is said to represent a worldwide consensus on key aspects of international arbitration practice and it holds the promise of greater convergence, if not uniformity.[108]

In relation to interim measures and preliminary orders, Article 17 of the Model law provides elaborately for them, ranging from the recognition of the forum to approach for such measures and orders, the instances or circumstances for the grant, the standards for granting them, modification, suspension and termination, provision of security, disclosure, recognition and enforcement, etc. On the issue of forum, the UNCITRAL Model law recognises the power of the tribunal to grant interim measures and preliminary orders without notice to any other party[109]and also the power of the court to order interim measures in accordance with its own procedures in consideration of the specific features of international arbitration, irrespective of whether their place is in the territory of the State.[110] In relation to the circumstances or the situations where a tribunal can order an interim measures, the Model Law provides for circumstance that the tribunal should consider.[111]

On the standards for granting interim measures, the Model law requires that the party satisfy the tribunal that (a) harm not adequately reparable by an award of damages is likely to result, if measure is not ordered and such substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and (b) there is a reasonable possibility that the requesting party will succeed on the merit of the claim.[112] It however, limits the application of these standards to the extent the arbitral tribunal deems convenient when the request for interim measure relates to the preserving evidence that may be relevant and material to the resolution of the dispute.

Gary Born, a leading authority in the field of arbitration, had while commenting on Article 17A suggested that, "if Article 17A is adopted, it should be interpreted in light of international authority from other national courts and arbitral tribunals seated elsewhere, in order to avoid the cost of a purely national approach to this issue and to encourage formation of international principle in this field."[113] One is however taken aback by the fact that earlier in his work, the learned author had criticized the very idea of adopting the standards in Article 17A as the benchmark standards for the grant of interim measures in international arbitration. In his words, "the basic concept of prescribing substantive standard for interim relief binding on arbitral tribunals seated on local territory is unnecessary and unwise. It is unnecessary because of the on-going development of better-formulated, more nuanced international standards by arbitral tribunals, which are tailored to the circumstances of particular categories. Indeed, the approach in Article 17A is also affirmatively damaging because it threatens this on-going formation of international standards, tailored to the need of particular cases, with the imposition of national standards that ignore the specifics of particular types of cases.[114]

It is my submission that the learned author's view approving the adoption of Article 17A is the preferred and more appropriate approach. This is due to the fact that adopting the approach of allowing tribunals alone to evolve the applicable standards would be a great disservice and further produce inconsistencies in the system. Also, in a system where there are no hierarchical structuring of tribunals and where arbitral decisions have no precedential value or effect, tribunals would not by the mere consideration of wanting to evolve transnational or international standards be bound to follow a particular pattern. Indeed, it is an acknowledged fact that arbitrators while attempting to discharge their obligations to the parties are influenced by their legal background and training. It would be interesting to see how arbitrators that do not believe in the application of transnational principles would be won over, when there are no express rules or even agreement of the parties binding on them. It is my view that in keeping faith with the time-tested, proven and pragmatic approach of drafting and adopting international principles[115] to govern international arbitration proceedings, adopting Article 17A as the benchmark standard could facilitate a quick and easy resolution of the dilemma of applicable standards.

VI. CONCLUSION AND RECOMMENDATION

A careful reading of the above regimes (arbitral rules or national law) governing the grant of interim measures shows that there are some convergences. For instance, the arbitral rules and national laws (save for the FAA) regimes considered above, recognize that both the tribunal and the courts have the inherent power to grant interim measures, also they also recognize that there are circumstances or situations which makes the grant of interim measures imperative, this is despite the fact that some rules or law do not enumerate these circumstances or situations.

Despite the convergence of national law and the arbitral rules regimes on some vital issues, there still exist large disparities or disharmonies in these regimes. For instance, there seem to be no consensus under national laws and arbitral rules, on what the standard for the grant of interim measures should be; also there seem to be no consensus on the availability of ex parte application for interim measures or even the emergency arbitral procedure. But nothing has created greater concerns for the grant of interim measures than the standards which a party needs to satisfy before the tribunal or court can grant its application for interim measure. To make arbitration effective, it is necessary to implement some mechanism that can ensure that interim measures can be appropriately granted and enforced. Also, it has been suggested that given the importance of interim or provisional measures, there should be a continuous examination of the standards and attempts should be made to enhance further development.[116]

It is recommended that while the various arbitral rules and national laws with the exception of the United States FAA[117] could retain their unique features on the issue of interim measures (e.g. emergency arbitral procedure or institutional review of award); there should be concerted effort towards harmonization; and this effort would be centred or built on a Applicable Standards Rules for Interim Measures to be formulated by let say the International Bar Association or better still the use of UNCITRAL Model law, which presently stands as the most successful project on the harmonization of the principles of law that should govern international arbitration. In fact, the UNCITRAL Working Group has noted that the preparation of the revised articles of the Model law on the form of the arbitration agreement and interim measures was the subject of due deliberation and extensive consultation with Governments and interest circles and would contribute significantly to the establishment of a harmonized legal framework for the fair and efficient settlement of international commercial disputes.

However, the author is not unmindful of the intrigues associated with and the long period that the amendment of an institutional arbitral rules or national arbitration law would take. It is therefore suggested, that while the effort to achieve this is set in motion, the tribunals must as a matter of necessity, when deciding on an application for interim measures have the harmonization philosophy which the Model law promotes. This is largely due to the fact that the Model law is one lex arbitri which a vast majority of countries irrespective of their legal system have ascribed to by enacting their arbitration law on the basis of its provisions. This approach will without doubts solve the intricacies or challenges that arise not just from dealing with interim measures, but with the arbitral proceeding in general.

Until the harmonization of the various regimes governing the grant of interim or provisional measures is achieved, national laws of the place of arbitration and the place of enforcement cannot be completely excluded from international arbitration; put in another way the idea of arbitral proceeding and particularly interim measures being governed by transnational principles of law will only remain aspirational, if not an unattainable feat.

*Author - Mr. Ikemefuna Stephen Nwoye

                   Principal Chief Counsel - NWOYE (Barrister and Solicitor)

*The earlier versions of this paper were presented in the International Business Transaction Seminar and in the NYU Law Journal of Law and Business (JLB) Symposium at NYU Law in 2014. The paper was also selected for the NYU Journal of Law and Business - Flora and Jacob Newman Prize for Best Student Note.

[1] Alan D. Redfern, Arbitration and the Courts: Interim Measures of Protection- Is the Tide About To Turn? 30 .TEX Int'l L.J.71, 72 (1995).

[2]See Ali Yesilirmak, Provisional Measures in International Commercial Arbitration 5 (2005); See also Ozen Athhan, The Main Principles Governing Interim Measures In the Pre-Arbitral Proceedings - Specifically, The ICC Emergency Arbitrator Rules (2012) https://www.journals.istanbul.edu.tr/tr/index.php/hukuk/article/.../1608 (Jan.19, 2014, 12:30pm) where Interim measures were described as temporary remedies aiming to avoid unjust results before the final awards are rendered.

[3]Yesilirmak, supra note 2, at 5.

[4]Margaret L. Moses, The Principles and Practice of International Commercial Arbitration 109 (2012); see also Ira M. Schwartz, Interim & Emergency Relief in Arbitration Proceedings, 63 J.DISP.RESOL. 56, 57-58 (2008).

[5] In a 2002 survey of international arbitrators by the Global Centre for Dispute Resolution Research, 64 respondents identified 50 separate arbitration cases in which interim relief was sought to restrain or stay an activity, order specific performance or provide security for costs. These figures are consistent with earlier reports UN Secretary-General, Settlement of Commercial Disputes A/CN.9/WG.II/WP.108 (Jan. 2000)] to the United Nations Commission on International Trade Law (UNCITRAL), which indicated that parties are seeking interim measures in an increasing number of cases. These facts clearly establish that the availability of interim measures in international arbitration is not a subject that can be ignored. See Raymond J. Werbicki, Arbitral Interim Measures: Fact or Fiction? in AAAHandbook on international arbitration & adr 89,90 (2010) also available at https://www.steptoe.com/assets/htmldocuments/11-ch8-Werbicki.pdf.

[6] Werbicki, id. at 90. For example it is a notorious fact that an arbitral tribunal lacks the power to order a mareva injunction or Anton Piller order.

[7]Id.;see also McCreary Tire & Rubber Co. v. Seat SpA, 501 F.2d 1032(3d Cir.1974) and Channel Tunnel Group v. Balfour Beatty [1993] A.C. 334 (H.L.).

[8] The law applicable to the arbitration procedure and by extension the grant of interim measures is different from the law which the parties may have chosen to govern the substantive matters. In the absence of the express choice by the parties, it is the arbitration law at seat of the arbitration that usually applies in default. In addition to these two laws other laws may come into play. Recently, the debate is focused on whether an international arbitration and even its procedure law (rules) can detach itself from national law and be governed by transnational principles of law (lex mercatoria). See Moses, supra note 4, at 59.

[9] It should be noted that the focus or scope of this paper does not cover the enforcement of interim measures and any issues that may arise therein.

[10] Yesilirmak, supra note 2, at 49; see Redfern, supra note 1, at 79, where it was stated that an arbitral tribunal will have such powers (if any) to grant interim measures of relief as may have been conferred upon it by the agreement of the parties together with such powers (if any) as are granted by operation of law. Also, it should be noted that under the ICSID Convention and Rules (ICSID Convention art. 26 and 47; and ICSID Arbitration Rules rule 39, para.5.), the arbitrator(s) has the exclusive power to grant provisional or interim measures.

[11]Moses, supra note 4, at 108.

[12]See Yeslirimak, supra note 2, at 56.Where it was further submitted that the source of an inherent power is neither an arbitration agreement nor a statute, but the status of the arbitral tribunal as an organ entrusted with the resolution of a dispute. Contra Michael J. Mustill and Stewart C. Boyd, Commercial Arbitration 11-12 (1989) where it was stated that "the power of the tribunal is a question of 'mandate' and the mandate enables the tribunal to bind the parties to the terms of an award."

[13] Id. at 49

[14] Id. at 52; see also Jan Paulsson and Nigel Rawding, The Trouble with Confidentiality, 5(1) ICC Int'l Bul 48-60 (1994)

[15] For instance, in recognition of the absence of coercive power in the arbitrator, the ICSID Rules (Rule 39) provides that 'parties may apply to the tribunal at any point for a recommendation of interim relief to preserve any right of their rights'. It is submitted that the use of the word 'recommend' clearly shows that a party cannot be compelled to compile with the interim relief. However recent trends and practice of tribunals suggest that they consider the ICSID provisional measures to be binding. See Maffezini v. Spain, ICSID Case No. ARB/97/7, Procedural Order No. 2, para. 9 (Oct 28, 1999).

[16] The concern over the non-constitution of the tribunal has been addressed by the arbitral rules of several arbitration institutions through the provision of an emergency arbitrator or the expedition of the formation of the tribunal. See ICDR Rules art. 37; see also the Pre-arbitral Referee Procedure of the ICC available at https://www.icc.bo.org/uploadFiles/Court/Arbitration/other/rules_pre_arbitral_english.pdf (last visited Jan 20.2014)

[17]See Moses, supra note 4, at 95; see also Bernard Hanotiau, Problems Raised by Complex Arbitration Involving Multiple Contracts-Parties-Issues, 18 J. Int'l Arb., no. 3, 251 (2001)

[18] Yesilirmak, supra note 2, at 76.

[19] Charles Price, Conflict with State Courts in Interim Measures in International Commercial Arbitration 41, 39-56 (Association for International Arbitration ed., 2007).

[20] See LCIA Rules art.25 para. 3; ICC Rules art. 28 para. 2; ICSID Rules art. 39 para. 6; SCC Rules art.32 para. 5 etc; See also Peter J.W. Sherwin and Douglas C. Rennie, Interim Relief under International Arbitration rules and Guidelines: a Comparative Analysis 20 AM. REV.INT'L ARB. no.3 317, 333 (2010)

[21] See Redfern, supra note 1, at 86; see also Sherwin and Rennie, supra note 20, at 331.

[22] Id.; see also Cetelem SA v. Roust Holding Ltd [2005] EWCA Civ. 618.

[23] Id. at 86.

[24] See Yesilirmak, supra note 2, at 77; see also Howard M. Holtzmann and Donald F. Donovan, "United States" in International Handbook on Commercial Arbitration, 37 (Jan Paulsson gen.ed.,1999).It should be note that Article II of the NY Convention basically requires a court when seized with an action involving an agreement with provision to arbitrate, to recognize the arbitration agreement and give effect to it.

[25] 501 F.2d 1032 (3 Cir. 1974).

[26] See also a similar approach in the decision of the court in Cooper v. Ateliers de la Motobecane S.A 442 N.S.2d 1239 (S.D.N.Y 1982).

[27] F. Supp. 1044 (N.D. Cal. 1977); see also the English Case of Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] A.C. 334 (H.L). The British House of Lords per Lord Mustill, held that, " The purpose of interim measures of protection [by courts]...is not to encroach on the procedural powers of the arbitrators but to reinforce them, and to render more effective decision at which the arbitrators will ultimately arrive on the substance of the dispute. Provided that this and no more is what such measures aim to do, there is nothing in them contrary to the spirit of international arbitration".

[28]See Moses, supra note 4, at 68. It was submitted that often times, the line between substance and procedure is not always clear, and is not always viewed the same way in different countries. That what is important to understand is the type of issue that are governed by lex arbitri, and how this law interact with the rules chosen by the parties and with the substantive law governing the main contract.

[29] Provisional Remedies In International Commercial Arbitration A Practitioner Handbook 6 (Axel Bosch and Joanna Farnsworth eds., 1994)

[30] Moses, supra note 4, at 68.

[31] See Linda Silberman and Franco Ferrari, Getting to the Law Applicable to the Merits in International Arbitration and the Consequence of getting it Wrong in CONFLICT OF LAWS IN INTERNATIONAL COMMERCIAL ARBITRATION 263(Franco Ferrari & Stefan Kroll eds.,2011 )

[32] See The New York Convention art. V para.1d; see also Yesilirmak, supra note 2, at 61.

[33]See English Arbitration Act of 1996§ 4(5); see also David St. John Sutton, Judith Gill and Mathew Gearing, Russell on Arbitration 207 (2007).

[34] See Swiss Code on Arbitration [C.CIV.ARB] art. 24; French New Code on Civil Procedure art. 1494 para. 2 and ZPO § 1034 (2).

[35]See LCIA Rules art. 16 para. 1; ICDR Rules art.13 para. 1 and the UNCITRAL Rules art.18 para. 1.

[36] See Moses, supra note 4, at 79.

[37] See Silberman AND FERRARI, supra note 31, at 265. The learned authors however questioned the validity of the direct approach and remained sceptical as to whether conflict of law methodologies can ever be avoided completely.

[38] A detailed discussion of this debate is contained at 22-24 infra.

[39] UNCITRAL Rules art. 26. It should be pointed out that in relation to paragraph 2 (d), paragraph 4 provides that the requirements in paragraphs 3(a) and (b) shall be applied only to the extent the arbitral tribunal considers appropriate.

[40] See David D. Caron and Lee M. Caplan, The UNCITRAL Arbitration Rules: A Commentary 520 (2013). It was pointed out by the learned authors that these conditions were not explicit under the 1976 Rules. However, the standards likely were similar in practice under the 1976 Rules (See the EnCana Corp decision and the Chevron Corp decision both decided under the 1976 Rules) and the articulation of these standards in the 2010 rules was largely influenced by the manner in which tribunals exercised their discretion under the 1976 Rules.

[41]Vertex Data Science Ltd v. Powered Retail (2006) EWHC 1340.

[42] Id.

[43] Art. 26 para.7

[44] Art. 26 para.6

[45] Art. 26 para.9

[46] Caron and Caplan, supra note 40, at 529.

[47] Id.

[48] Art. 28 para.1

[49] Art. 28 para.2

[50] Id.

[51] Jason Fry, Simon Greenberg and Francesca Mazza, The Secretariat's Guide to ICC Arbitration 289 (ICC 2012).

[52] Id. at 290.

[53] Id. at 291.

[54] It should be noted that unlike other provisions of the Rules. The Emergency Arbitrator Provision apply only where the parties entered into the relevant arbitration agreement on the date of entry into force of the 2012 Rules or thereafter. See Article 29(6) (a) of the ICC Rules 2012; contrast with Article 6(1) of the Rules, which deals with other provisions of the Rules.

[55] Art. 25.1

[56] Article 25.1 paras. (i) - (iii).

[57] See Peter Turner and Reza Mohtashami, A Guide to The LCIA Arbitration Rules 165 (2009).

[58] Art. 17.A provides three criteria and these are (i) Irreparable harm (ii) harm to applicant outweighs the harm to the other party (iii) reasonable possibility that the requesting party will succeed on the merit of the claim.

[59] Id.

[60] Turner and Mohtashami, supra note 57, at 177

[61] Id.

[62] Art. 25.3.

[63] Id.

[64] See The English Arbitration Act of 1996 § 38 (4).

[65] Art. 9.

[66] Art. 9.1 and 9.3.

[67] Art. 21 para.1.

[68]Art. 21 para. 3.

[69] See Martin F. Gusy, James M. Hosking and Franz T Schwarz, A Guide to the ICDR International Arbitration Rules 207 (2011)

[70] See The ICDR Arbitration Rules art. 21 para. 2 and art. 27 para.7.

[71] See Gusy et. al, supra note 63, at 301 - 304;

[72] See Art. 37 paras. 2 and 3.

[73] Art. 39 para. 1

[74] See Christopher F. Dugan, Don Wallace, Jr, Noah D Rubins and Borzu Sabahi, Investor- State Arbitration 138 (2008), where it was stated that the language of Article 39 was the result of a compromise during treaty-drafting sessions between those states that wanted to provide for binding measures and the power to impose sanctions for noncompliance and those that sought to exclude provisional measures altogether.

[75] See Carolyn B. Lamm, Hansel T. Pham, and Chiara Giorgetti, Interim Measures and Dismissal under the 2006 ICSID Rules in The Future of Investment Arbitration 92 (Catherine A. Rodgers and Roger P. Alford eds., 2009); see also the Tokios Tokeles v. Ukraine, procedural Order No.1 (July 1, 2003)

[76]ICSID Arbitration Rules art. 39 para. 4.

[77] See Lam et. al supra note 74; see also Donald Francis Donovan, The Allocation of Authority Between the Court and Arbitral Tribunals to Order Interim measures: A survey of Jurisdictions, the Work of UNCITRAL and a Model Proposal, in NEW HORIZONS IN INTERNATIONAL COMMERCIAL ARBITRATION AND BEYOND 2003-4 (2005).

[78] Dugan et.al, supra note 73, at 141.

[79] Id.

[80]See Charles Debattista, Arbitrators' Power to Order Interim Measures (Including Anti-suit Injunctions)The London Maritime Arbitrators Association (Apr. 23, 2014, 5:00PM) https://www.lmaa.org.uk/uploads/documents/C50ArbitratorsPowers.pdf ; see also Craig Tevendale and Hannah Ambrose, Court grants interim injunction under the English arbitration Act 1996 to preserve value of contractual rights The Lexology https://www.lexology.com/library/detail.aspx?g=3a91051c-04ea-4d15-98ca-40ffa6a2c282 (Apr. 19,2014,)

[81] In the case of Wicketts and Sterndale v. Brine Builders[2001] CILL 1805, the Court held that "It is clear that this power ought to be exercised with considerable caution: a) the power is best exercised on an application by the respondent rather than by the tribunal of its own motion; b) the tribunal ought to require and assess whether the claimants assets within accessible jurisdiction are sufficient to cover an eventual costs order; c) the amount required in security ought to be proportionate and d) should not be sought exclusively to guarantee payment of the tribunal's fees and e) above all, an order cannot be based on the ground that the claimant is outside the jurisdiction (Section 38(3)(b))"

[82] §38 (4)

[83] Compare with the LCIA Rules art. 25.1

[84] See Rix LJ decision in Kastner v. Jason [2005] 1 Lloyd's Rep 401.

[85] § 48

[86] See David St. John Sutton et. al, supra note 33 at 682; see also Chartered Institute of Arbitrators Practice Guideline 1: Guidelines for Arbitrators on how to approach an application for Provisional or Interim Relief available at https://www.ciarb.org/information-and-resources/Practice%20Guideline%201%20international.pdf

[87] These are the same factors provided for under UNCITRAL Model law 2006 art. 17A.

[88] See Hong-Lin Yu and Masood Ahmed, The New French Arbitration Law: An Analysis 15 Int'l Arb.L. Rev 22,30

[89] Art 1468; see also Id.

[90] Art. 1449.

[91] See also New CCP Art. 1511 which provides that the arbitrator shall resolve the dispute in accordance with the rules of law chosen by the parties and, in the absence of such a choice, in accordance with the rules of law he or she considers appropriate. In all cases the arbitrator shall take trade usages into account.

[92] See William P. Mills, State International Arbitration Statutes and the US Arbitration Act: Unifying the Availability of Interim Relief Fordham Int'l L.J. 604-648(1989-1990). It should be noted that the FAA prevails, in the event of a substantive conflict between the FAA and an intrastate statute.

[93] See e.g. Cal. Civ. Proc. Code §§ 1280 -1295 (West 1982 & Supp. 1990); FLa. Stat. Ann §§ 682.01-682.20 (West Supp 1990); GA. Code Ann. §§9.9.1-9.9.133 (1982 & Supp.1989)

[94] See pages 6-7.supra for a detailed discussion

[95] Fla. Stat. Ann §684.16(1) (West. Supp.1990).

[96] Id.

[97]See Cal.Civ.Proc.Code § 1297.93 (West Supp.1990); Tex. Rev.Civ. Stat Ann. art. 249-9(3) (Vernon Supp. 1990).

[98] See e.g. Cal.Civ.Proc.Code §1297.171 (West. Supp.1990) and Tex. Rev.Civ. Stat Ann art. 249-9(3).

[99] See Houston Putnam Lowry, Recent Developments in International Commercial Arbitration, 10 ILSA J. Int'l & Comp L 335, 335 (2004); see also N.Y.Civ.Prac.L.R. § 63. (Mckinney 1980 & Supp.1990) that requires a party to show the likelihood of success on the merit, irreparable harm, and a balance of hardship tipping in favour of the applicant.

[100] Moses, supra note 4, pg. 60; see also Gary B Born, infra note 111 at 2465, where it was also noted that adopting transnational or international principles of law reduces the importance of choice-of-law questions and encourages uniform results, both of which are important objectives of the arbitral process.

[101] See e.g. The UNCITRAL Model Law; IBA Rules on Taking of Evidence in International Commercial Arbitration; The IBA Guidelines on Party Representation in International Arbitration; The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals etc

[102] See Renata Brazil-David, Harmonization and Delocalization of International Commercial Arbitration J. Int'l Arb. 445, 459 (2011).

[103] Id.

[104] See e.g. Id.; Moses, supra note 4 and Jan Paulsson, Delocalisation of International Commercial Arbitration: When and Why It Matters, 32 INT'L & COmP.L.Q. 53 (1983).

[105] February 21, 1980, 20 I.L.M.884 (1981)

[106] Societe AKSA S.A v. Societe Norsolor S.A 20 I.L.M. 887 (1981)

[107] Presently, over 70 countries have enacted their arbitration law based on the UNCITRAL Model Law. see UNCITRAL www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html

[108]Id. at 451; see also the Explanatory Note by the UNCITRAL Secretariat on the UNCITRAL Model Law.

[109] Art. 17 and 17B respectively

[110] Art. 17J

[111] See Art. 17 paras.2.

[112] Art. 17A

[113] See Gary B. Born, International Commercial Arbitration 2nd EDITION (2014) pg. 2466.

[114] Id.

[115] See IBA Rules on Taking of Evidence in International Commercial Arbitration; The IBA Guidelines on Party Representation in International Arbitration; The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals etc.

[116] See Donald Francis Donovan, Provisional Measures in the International Court of Justice and Investment Treaty Arbitration: Dialogue and Development in Contemporary Issues in International Arbitration and Meditation: The Fordham Paper 2012 11 (Arthur W. Rovine ed., 2013).

[117] The author is of the opinion that the FAA is outdated and that United States Congress should take steps to amend it and ensure that the Act is at tandem with current realities. This will not only solve the current uncertain on the issue of interim measures, it will go a long way to resolve various procedural challenges, which the present sparse provision of the FAA has created for Federal and States Courts faced with its interpretation. Further, in consonance with the harmonization philosophy, states in the US should take steps to amend their respective (international) arbitration law to bring it in conformity with the UNCITRAL Model law.