An appropriate Forum to Seek Interim Measures in International Commercial Arbitration - the problem of overlapping jurisdiction and powers of arbitral tribunals and courts.

author: Tomasz Sowa, LL.M.

Abstract:

When a dispute arises, parties to an arbitration agreement may seek interim measures, i.e., orders intended to preserve evidence, protect assets, respect procedural rights, and otherwise maintain the status quo pending the outcome of the arbitration proceedings. The question is where to seek such protection if deemed necessary since the powers to grant interim measures in most countries are divided between arbitral tribunals and courts. International conventions on arbitration do not contain any provisions regarding the conflict of jurisdiction, so the competent forum to seek interim measures must be established according to national laws where such relief is sought and specific provisions of particular arbitration agreements or institutional rules agreed on by parties to the agreement. The choice of the forum is not always open. In some jurisdictions, a party may choose whichever forum it wants. However, in others, application to courts of law requires specific conditions to be met, such as the urgency of the case or a third party’s involvement. If a party must seek protection in a foreign state to the seat of arbitral proceeding, then it should be aware of such problems as the enforceability of an award in that state or even of broad discretion of the courts to dismiss the application because exercising such power would be “inappropriate”. The purpose of this paper is not to analyse every possible case under every jurisdiction but rather to find patterns between various jurisdictions and indicate possible problems when seeking interim measures in pending arbitral proceedings.

I. Introduction

When parties enter into a contract, they do not presume that any dispute may arise. When it does, and big money is at a stake, one is certain, that it will take a long time and effort to settle. From the moment the first tensions arise, through attempts to resolve a dispute amicably, then through a decision to start an arbitration, until the point where an award is made, a significant number of the circumstances may change. Not only goodwill that existed at the beginning is about to disappear, but evidence and assets may be gone too. Thus, not only backing the claim may be difficult as the time-lapses, but even the victory may be rather sour than sweet when losing party’s assets have vanished, or the winning party’s reputation is gone.[1]

These kinds of problems constitute the nature of virtually every dispute, irrespective of the method used to resolve it and no matter in which jurisdiction the resolution is sought. Procedural safeguards and opportunities for all parties to be heard inevitably cause delay, which unfortunately may even significantly exacerbate if one party abuses its rights to the disadvantage of the others.[2] As a consequence, legislature and courts developed an institution of “interim measures of protection”,[3] which may be broadly described as “orders intended to preserve evidence, to protect assets, to respect procedural rights, and otherwise to maintain the status quo pending the outcome of the arbitration proceedings”.[4] Arbitration practitioners observe that the effectiveness of protection in international commercial arbitration relies on interim measures.[5]

The question is where to seek such protection if deemed necessary since the powers to grant interim measures in the majority of the countries are divided between arbitral tribunals and courts.[6] In this paper, the “appropriateness” of the forum means the place where a party should go due to the laws governing the jurisdiction and powers of arbitral tribunals and courts rather than appropriateness which may be understood as a forum more desirable for the party for the practical reasons. The author, for example, does not deliberate on such problems as respect to the sanctity of contract, the scope of possible remedies, or who has more expertise to resolve the case,[7] but rather on the laws which provide whether one can go straight to a court of law or has to apply first to an arbitral tribunal since this problem has not been well discovered in literature yet. The purpose of this paper is not to analyse every possible case under every jurisdiction[8] but rather find some patterns between various jurisdictions and indicate possible problems when seeking interim measures in pending arbitral proceedings. In the following analysis, the author will examine whether the choice of the forum is fully open for parties to the agreement, assuming that a party would like to go first to the court, if possible. First, the problem of “overlapping” jurisdiction and powers of courts of law and arbitral tribunals demands a closer look in itself.

II. The Concurrent Jurisdiction of Courts of Law and Arbitral Tribunals.

A. Definition

In the litigation nomenclature, “concurrent jurisdiction” appears when jurisdiction may be exercised by any out of several courts, as opposed to a jurisdiction which it can be exercised only by one court (i.e., in the concurrent jurisdiction, more than one court has the power to hear a case).[9] The above definition may apply accordingly to arbitral tribunals and courts in any case where they can exercise their jurisdiction or powers over the same claim (overlapping of jurisdiction and powers). However, this kind of situation in arbitral proceedings is exceptional.

B. The issue of concurrent jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)

According to the Article II (3) of the New York Convention (NYC)[10], the parties to arbitration agreement basically should be referred to arbitration unless courts find that the agreement is null and void, inoperative or incapable of being performed. This provision sets out the main principle of arbitration, according to which proper arbitration agreement creates exclusive jurisdiction of the arbitral tribunal over the claim falling within the agreement concerned unless the parties agreed otherwise.[11] Given the above, the question is whether an application for an interim measure to the court of law complies with NYC.

A negative approach was presented in McCreary Tire and Rubber Co. v. CEAT, S.p.A. (1974), where court stated that there is nothing discretionary about article II(3) of the Convention. It states that district courts shall at the request of a party to an arbitration agreement refer the parties to arbitration.[12] On this ground, the court reversed (among others) the denial of the application to dismiss the foreign attachment pending arbitration. The court argued that the attachment should have been dismissed because in other case it would circumvent the NYC principle that the arbitration agreement should have been enforced. This line was also applied in Cooper v. Ateliers De La Motobecane (1982),[13] where the court reversing the order of the appellate division concluded that the order of attachment should have never been issued, as the dispute was subject to arbitration.[14] This issue is fundamental for further analysis. If McCreary line had been followed, no parallel proceedings could have happened because any application for an interim measure to the court of law would have been dismissed on the respondent’s objection, and the applicant would have been referred to an arbitral tribunal.[15]

However, in Cooper v. Ateliers De La Motobecane (1982)[16], Judge Meyer dissented and pointed out, inter alia, that nothing in the UN Convention or in the history of its negotiation or its implementation by Congress suggested that article II of the NYC was intended to foreclose the use of attachment where permitted by the law of the jurisdiction in which the attachment was obtained. This approach was presented, i.a., in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd (1993), where it was pointed out, that the purpose of interim measures was to support, not to undermine or even “encroach” the arbitration proceeding, so they should be allowed under NYC, and the line of McCreary could not be followed.[17] This is the dominant, well-accepted line on this problem. In fact, McCreary line has never been followed outside the USA.[18]

Nevertheless, the ratio of McCreary line has some grounds. NYC states that if courts find an action in a matter in respect of which the parties have made an arbitration agreement, shall, at the request of one of the parties, refer the parties to arbitration (…). In addition, not a single word in the whole text of NYC is about any conflict of jurisdiction on interim measures between courts of law and arbitral tribunals. In contrast, article VI (4) of the European Convention on International Commercial Arbitration of 1961 (ECICA), which was signed only three years later, provides that a request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court.[19] Now, one can deliberate whether that omission in the NYC was intentional or was there any discussion on this matter when the NYC had been negotiated, but the fact is that the issue of the concurrent jurisdiction was not addressed there. An argument raised in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd (1993), that the purpose of interim measures is to support and not to encroach the arbitration proceedings,[20] so that matter is out of scope and the article II (3) of the NYC is of great importance. However, doubts may be cast if this is not just an attempt to “rescue” the text of NYC. One may find that the court noticed the imperfections of the arbitral process without the aid of the courts of law under NYC and adopted narrowed interpretation of the term “action” referred to in the Article II (3) of NYC. Meanwhile, an argument may be raised to the contrary, that when parties conclude an arbitration agreement, they agree a dispute to be settled in one specific forum, and any “action” taken in a different forum triggers the “negative effect” of the arbitration agreement.[21] That is, in the author’s view, a possible line of interpretation, which exposes an applicant to a risk that an interim measure would not be granted by the court in the absence of appropriate provisions in a state legislature on conflict of jurisdictions.

In the author’s view, the absence of specific provision on parallel jurisdiction in NYC[22] gives the contracting states’ discretion to apply their own domestic law in that matter. The contracting states may decide whether to give powers to courts of law to support arbitration or not, but NYC itself does not confer any power on interim measures to the courts of law nor to arbitral tribunals. In fact, if there were not any discretion there any statutes to the contrary in contracting states would have to be deemed incompatible with NYC.[23] It should also be mentioned that if parties agreed on the possibility to seek interim measures in courts of law explicitly, there is very little room for doubts on the effectiveness of such an agreement. The contracting states to the NYC shall give effects to all material terms of international arbitration agreements due to rules set out in Article II.[24] Thus, regardless of whether parties to an arbitration agreement have allowed courts to grant interim measures or excluded that possibility, such agreement should be deemed valid and enforceable.

C. The concurrent jurisdiction under national laws

If none of the international arbitration conventions, which address the problem of overlapping jurisdiction, applies in the case, the relation between the jurisdiction of courts and powers of arbitral tribunals to grant interim measures must be assessed according to national laws of the seat of arbitration.[25] For the purpose of this paper, further analysis will focus on provisions of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), which has been adopted so far by 85 states in a total of 118 jurisdictions[26], but the general postulate remains the same for all jurisdictions – a party has to look directly at the provisions of law which determine the issue of concurrent jurisdiction on interim measures where such relief is sought. In the absence of such provisions, one may try to challenge the court’s jurisdiction.[27]

Article 9 of the Model Law[28] provides that it is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for court to grant such measure. This provision clarifies that application for an interim measure to a court of law despite an arbitration agreement should not be deemed a waiver of the right to arbitrate and that a court should not hesitate if it considers it appropriate. As pointed out in Swift-Fortune Ltd v Magnifica Marine SA [2006], the reasoning of which was adopted in Ku-Ring-Gai Council v Ichor Construction PTY Ltd (2019),[29] the purpose of Article 9 is to declare the compatibility between arbitrating the substantive dispute and seeking assistance from the courts for interim measures. However, it does not cover the issue of whether courts of law have any powers to grant interim measures, which must be assessed in accordance with the national law[30]. It is the legislative embodiment of the “doctrine of compatibility”, which removes, at the national level, uncertainty in this matter under NYC.[31] Having said that, the concurrent jurisdiction in the international commercial arbitration is accepted in any state which adopted Article 9 of the Model Law or has any provision of law similar to the article concerned.

D. The source of powers of arbitral tribunals and courts to grant interim measures

The concurrent jurisdiction problem cannot occur as long as arbitral tribunals and courts do not have the power to grant interim measures in the same case. Therefore, it is crucial to assess whether an arbitral tribunal can award such a protection because it determines the appropriate forum to seek interim measures at the very outset.

To start with, the power to grant interim measures may be derived from three sources: any applicable international convention, any applicable national laws or parties’ agreement, including rules which are to be chosen by the parties.[32]

As outlined in detail above, the international conventions basically do not cover the area of interim measures. The provisions dealing with such a relief, like the article VI (4) of the ECICA, constitute only a principle that applications for interim measures do not lead to the waiver of one’s right to arbitrate and that granting such measures by courts of law should be deemed as “acceptable interference” into an arbitral proceeding. They do not provide any resolution on where such power may come from and to what extent it can be exercised by arbitrators. However, it has been pointed out that if parties agree explicitly to equip an arbitral tribunal with powers to grant interim measures, such provision should be recognised under Article II of NYC.. If national law rules had denied recognition of agreements to apply for interim measures directly to an arbitration tribunal, that would violate the obligation of contracting states under Article II (1) of the NYC to recognise all material terms of international arbitration agreements.[33] This conclusion is backed by the same reasons as in the possibility to seek such protection directly from courts of law.[34]

If parties to an arbitration agreement had not expressly equipped an arbitral tribunal with powers to grant interim measures[35] (or expressly had not excluded such power), the arbitral tribunal might derive its power from applicable national laws. For this paper, the author will focus only on the Model Law approach to depict “global standard” in this matter, but for practical reasons, a party seeking such protection has to look carefully into details of applicable law[36]. Article 17 of the Model Law in its pre-revised form clearly provides that: unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. With some doubts about its scope,[37] which have been eliminated by revision of 2006, this provision stipulates explicit confirmation of arbitral tribunal’s power to grant interim measures unless parties agreed otherwise. This approach removes any speculation in the Model Law countries which adopted Article 17 on whether arbitral tribunals possess such powers.

Finally, rules of specific arbitral institutions may contain provisions on arbitral tribunals powers to grant interim measures. Nowadays, such provisions constitute a standard, but some rules go even further and establish an “emergency arbitrator” institution, i.e., an arbitrator who may act in matters of provisional reliefs when not any tribunal has been appointed to solve the case yet. Having said that, for example, article 28 of ICC Rules of 2021[38] gives power to arbitral tribunals to grant interim measures, confirming principles established in Article 17 of the Model Law. Moreover, in separate article 29 (1), it provides A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal (“Emergency Measures”) may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. Willing to remove all doubts in this matter, Article 29 (7) clarifies that this institution is not intended to prevent any party from seeking urgent interim or conservatory measures from a court at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the Rules. Similar procedures may be observed, for instance, in the SIAC Rules,[39] LCIA Rules,[40] or ACICA.[41]

Acclaiming that the primary source of national court’s jurisdiction to order interim measures is its own lex fori[42] (as it does not raise any controversies) and having said that virtually all modern jurisdictions in the world allow the courts to do so, the question is where to seek powers of arbitral tribunals in the same field.

III. Limitations of Party’s Free Choice

A. Introduction

On one hand, there is sheer power to grant protection, but there are limitations or conditions under which such protection may be granted, on the other. In the following chapter, the author tries to assess which forum is appropriate to seek interim measures where the dispute is to be settled in arbitration. The author puts particular focus on the right of the party to have a recourse to the courts of law, assuming this forum is much more desirable to an applicant for the practical reasons,[43] being aware of significant arguments in favour of arbitral tribunals in this regard.[44]

B. General observations

As described in the previous section, none of the international conventions, except for ICSID,[45] stipulates which forum is appropriate to grant interim measures. Therefore, the answer to the problem must be sought in national laws, arbitration agreements or institutional rules, and as can be imagined in such a case, appropriate solutions may vary from state to state. Basically, we can observe three different models of endowing courts of law and arbitral tribunals with powers to grant interim measures.^[46] The first model, presented for example, in Hong Kong, Singapore, Australia, New Zealand or England, is characterised by the subsidiary role of courts to arbitral tribunals, which in general may act only to support arbitral tribunals, in limited circumstances. The second model, observed in the civil law countries such as Poland, Austria, or Germany, is defined by free choice of the forum to seek interim measures, without any initial conditions under which a party may apply to the courts. The third model, which is the least popular, reserves the power to grant interim measures exclusively for the courts of law.^[47] Each model will be examined separately.

C. Subsidiary role of courts of law for arbitral tribunals.

The subsidiary role of the courts in respect of arbitral proceedings has been observed in Singapore. The Court of Appeal of Singapore in the case NCC International AB v Alliance Concrete Singapore Pte Ltd [2008],[48] which was heard before adding section 12A to the International Arbitration Act of 1994, assessed in detail the conditions under which a party to an arbitration agreement may have a recourse to a court in Singapore for interim measures of protection. In this case, NCC International AB applied for a mandatory injunction pending arbitration that would compel the Alliance Concrete Singapore Pte Ltd to deliver ready-mixed concrete which the former had ordered, as well as perform the contract, i.e., to perform its duties as provided in the contract. However, NCC International AB neither initiated the arbitration during the first instance nor the second one, when the judgment was held. The question was whether the court had been entitled to grant such protection, given that this could be a matter of international or domestic arbitration in this case. The answer was generally speaking “Yes”, but under some conditions which were not met in this case. At the time the case was heard, Singapore was the Model Law country. Thus, the court’s analysis encompassed the relation of Article 5 of the Model Law and s. 12 (7) and 12 (1) of the International Arbitration Act 1994, which implemented the appropriate provisions of the Model Law,[49] and provided basically that the courts had the same powers as arbitral tribunals in terms of granting interim measures of protection. Even though the law of Singapore endowed the courts explicitly with such powers, the court dismissed the application on the grounds that precedence is given to the arbitral tribunal to provide interim measures, with the court’s power being incidental to that of the tribunal, i.e., the applicant should seek protection first from the arbitral tribunal, not from the court. Without going to much detail at this point, the Court of Appeal, after contextual interpretation of relevant provisions, its history background and purpose interpreted mainly from Article 9 of the Model Law, concluded that: although the court has concurrent jurisdiction with the arbitral tribunal to order interim measures, the court will nevertheless scrupulously avoid usurping the functions of the arbitral tribunal in exercising such jurisdiction and will only order interim relief where this will aid, promote and support arbitration proceedings[50] Preceding, according to the Court of Appeal, could take place where third parties were involved, where matters were very urgent or where the court’s coercive powers of enforcement were required[51]. It is worth noting that this approach goes beyond “traditional” division where an arbitral tribunal is convened and afterwards,^[52] because, at the time when the case was heard, not any arbitral tribunal was constituted.^[53] That means that if a party in such a model wants to seek interim measures of protection, it should consider not only that arbitral tribunal has not been appointed at the time of application, but also that it could have been appointed to assess objectively in a particular case. Currently International Arbitration Act of 1994 (version as at 09 Oct 2021) contains the whole section 12A regarding court-ordered interim measures, which generally adopts former principles outlined in NCC International AB v Alliance Concrete Singapore Pte Ltd [2008], but i.a., introduce explicitly that a party may apply to the court if permitted by the arbitral tribunal when the case is not urgent.

Another important case is Channel Tunnel Group Ltd v Balfour Betty Construction Ltd [1993], where the plaintiffs sought an injunction from the court to compel the defendants to continue the work of building a tunnel under the English Channel after a dispute arose between them, so it was similar to the one that NCC International AB sought in Singapore. The House of Lords dismissed the appeal, holding a stay of the proceeding, i.a., because (according to the court) the ruling in favour of the plaintiffs would encroach on the procedural powers of the arbitrators instead of reinforcing them. Lord Mustill observed that granting an injunction would largely pre-empt the decision of the panel and arbitrators whose support forms the raison d’etre of the injunction.[54] He pointed out, that mandatory interlocutory relief may be granted even where it substantially overlaps the final relief claimed in the action, but the court should approach the making of such an order with the utmost caution, and should be prepared to act only when the balance of advantage plainly favours the grant of relief. He continued, if the court would have ordered a mandatory interlocutory injunction, there would be very little left for the arbitrators to decide. This line of argumentation was followed in Cetelem SA v Roust Holdings Limited [2005], where the court stated that powers to grant interim measures should be exercised very sparingly.[55] It comes clearly from this rationale that the English courts’ discretion to grant interim measures is circumscribed by the purpose of an arbitration agreement and their role as only supportive authorities to arbitral tribunals, which are the main forum to resolve disputes between parties to that agreement. It does not mean that they do not have jurisdiction over such application, but their approach is that courts should rather refuse to exercise their jurisdiction where an arbitral tribunal has concurrent jurisdiction to grant interim measures and there are not any special circumstances to justify the application being made to the court instead of to the tribunal.[56]

In the cases in New Zealand, particularly Pathak v Tourism Transport Ltd [2002], a similar approach has been taken. This judgment was based on the Arbitration Act 1996, which adopted the Model Law into New Zealand’s order. Despite the fact that the main issue of the case was whether or not the plaintiff was entitled to seek a stay of court proceedings based on the arbitration agreement, the court made some deliberations on the matter of concurrent jurisdiction in regard to interim measures of protection.[57] The High Court in Auckland concluded, adopting the view presented in Marnell Corraro Associates Incorporated v Sensation Yachts Ltd [2000]^[58], that the court’s jurisdiction under Article 9 was limited to ‘interim measures of protection’ which the arbitral tribunal could not take soon enough, i.e., could not order in time to give necessary protection.[59] This argument was upheld in a more recent case: Smith Elements & Controls Ltd v EPI Group Ltd [2018], where the High Court of New Zealand provided few examples of where the courts may grant interim measures of protection. The court stated that this could be when the tribunal had not been formed, where such protection was sought against third party, where the place of enforcement was outside the jurisdiction, or where the place of arbitration was in a foreign jurisdiction.[60] Similar approach was presented in two subsequent cases.[61]

The other relevant case to support the argumentation of the Court of Appeal of Singapore in NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] comes from Hong Kong. The case the court referred to was Leviathan Shipping Co LTD v SKY Sailing Overseas Co Ltd [1998], where the plaintiff in the first instance was granted, ex parte orders requiring the defendant to provide security for the release of the vessel, together with a Mareva injunction. The defendant applied to set aside these orders on the grounds that, i.a., the dispute should be referred to arbitration in accordance with the arbitration agreement. Finally, the orders were discharged because the court did not see any reason of court intervention while such protection could be granted by the arbitral tribunal. In words of J Findlay, the jurisdiction to grant interim measures should be exercised very sparingly and only where there are special reasons to utilise it. In that case, according to J Findlay, there was not any valid reason why the main dispute should be referred to arbitration, but the dispute regarding interim relief should be decided by the courts.[62] This approach was followed in Top Gains Minerals Macao Commercial Offshore Ltd v TL Resources PTD LTD, where the court stated that: “so long as the Court recognises that its powers to grant relief and measures under s 45 are merely ancillary to the arbitral proceedings, and for facilitating the process of the tribunal that has primary jurisdiction over the arbitral proceedings, the application to the Court and the grant of interim measures by the Court should not be seen as an encroachment on the powers of the tribunal to which the parties have agreed to submit the dispute, nor as breach of the arbitration agreement made between the parties.”[63] It should be noted that this case involved support to foreign arbitration under new legislation on court-ordered interim measures, i.e. s 45 (4) of the Arbitration Ordinance [2011].[64] Nevertheless, the former approach has not been changed.

The Federal Court of Australia took a similar view in Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2015]. In that case, Sino Dragon Trading Ltd was, i.a., seeking orders from the court for a production of documents, and thus revisiting the former decision of the arbitral tribunal, which dismissed its application. According to Sino Dragon, despite s. 23(2) and s. 23A of International Arbitration Act 1974, the court could require documents to be produced under the Art. 17J of the Model Law. In the end, both grounds have been rejected, but for this paper, only the second reason is relevant, in particular in the context of the cases from Singapore, Hong Kong, and English jurisdiction referred to above. The text of Article 17J of the Model Law (Schedule 2 to International Arbitration Act 1974) is similar to the previous s. 12 (7) of the International Arbitration Act 1994 of Singapore, and other legislation mentioned above, which stipulates that the courts of law have to same powers as arbitral tribunals in terms of interim measures of protection. Having said that the court explained that this provision had a narrow purpose, which was to clarify that courts of law had the power to issue interim measures in the course of arbitral proceeding. It does not, however, expand its powers, particularly to interfere with the arbitral process. The court quoted the report of the United Nations Commission on International Trade Law on its 39th session to support this position.[65] Furthermore, the court explained that the power of courts to grant interim measures should be exercised very sparingly and only in the limited number of the circumstances.[66] This approach was consistent with the view of the Supreme Court of Western Australia in Cape Lambert Resources LTD and Another v MCC Australia Sanjin Mining PTY LTD and Others [2013], where the Cape Lambert Resources Ltd was seeking an order compelling the MCC Australia Sanjin Mining Pty Ltd to pay AUD 80 million to the escrow account, i.a., as an interim order. The court considered the grounds for such an order under s 7(3) of the International Arbitration Act 1974, which only applied when courts granted a stay of proceeding. The ratio, however, fits also to interim measures granted under Article 17 of the Model Law, as it explains the general role of the courts in relation to arbitral proceedings. The court, referring to the case of Cetelem SA v Roust Holdings [2005] 4 All ER 52, stated that the power to make interim orders for the purposes of arbitral proceedings should be exercised very sparingly and in the circumstances in which such orders were effectively the only means by which the position of a party could be protected until an arbitral tribunal was convened. The court adopted the view presented in Leviathan Shipping Co Ltd v Sky Sailing Overseas Co Ltd [1998], which was discussed earlier, and also in another Hong Kong case: Owners of the Ship or Vessel, “The Lady Muriel” v Transorient Shipping [1995], that such power should not be exercised unless there was an urgent or other special need for protection of a party to an arbitration.[67] For these reasons, and also because it was unquestionable that arbitral tribunal could issue the same order in the course of arbitral proceeding, the application for such an order was refused, which was upheld by the Supreme Court. A similar position was taken by the Supreme Court of Victoria in Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd [2000].[68]

The preceding judgements illustrate one justifiable approach of courts of law regarding interim measures in relation to arbitral proceedings. Despite being quite far from each other on the timeline, the cases from England, Singapore, Hong Kong, Australia, and New Zealand do have a common ground in the form of provisions, which stipulate basically that courts of law have the same powers as arbitral tribunals in issuing interim measures in relation to arbitration proceedings. In all these cases, courts have taken the position that such a provision cannot be interpreted in the way, which would lead to expanding powers of courts to intervene in arbitration. According to the line presented by courts, such a provision aimed to clarify that courts possessed powers to grant interim measures pending arbitration, but there were certain conditions under which the courts would exercise such power. The general principle of the Model Law is the limited court interference into an arbitral process (Article 5 of the Model Law), and even if it is not incompatible with an arbitration agreement for a party to request from a court an interim measure of protection, and for a court to grant such measure (Article 9 of the Model Law), courts are generally reluctant to intervene giving priority to arbitral tribunals. Interestingly, not any provision of law in force when the cases were heard, forbade the courts explicitly to grant interim measures of protection pending arbitration proceedings.[69] Nevertheless, they were refusing to grant it, invoking conditions such as “urgency”, “third party involvement” or “requirement for coercive powers of enforcement” vested in courts of law,[70] which could not be found in legislation. Such conditions limit the powers of courts and leave parties uncertain as there is a substantial discretion of the court regarding the problem of strictly procedural nature. This problem seemed to be perceived during works on revision of the Model Law. The Working Group Report, dated 12 October 2005, contains an observation that:

“Article 17 bis [Arts. 17 H-17 I in the final text] might not fully address the potential problems which might arise with respect to the relationship between the power of State courts to issue interim measures and the power of arbitral tribunals to issue interim orders. (…) It was suggested that to better delineate the interaction of these powers, article 17 ter [Art. 17 J in the final text – author’s note] could provide that a State court could only act in circumstances where, and to the extent that, the arbitral tribunal did not have the power to so act or was unable to act effectively, for example, if an interim measure was needed to bind a third party or the arbitral tribunal was not yet constituted or the arbitral tribunal had only made a preliminary order. The principle upon which that proposal was based received some support but it was agreed that that proposal had far-reaching legal and practical implications and raised complex issues that the Working Group might wish to consider at a later stage.”[71]

According to the author’s best knowledge, it has never been considered at the later stage. Instead, the Working Group explained that the purpose of Article 17 J was to preserve the power of courts to issue interim measures in support of arbitration but should not be understood as expanding the powers of the court for interfering in the arbitral process. The Commission agreed that that matter should be clarified in any explanatory material to that provision.[72] The Explanatory Note provides that the purpose of Article 17 J was to put beyond any doubt that the existence of an arbitration agreement did not infringe the powers of the competent court to issue interim measures and that the party to such an arbitration agreement was free to approach the court with a request to order interim measures.[73] It is hard to find that clarification satisfactory. In the author’s respectful opinion, that was addressed actually in the Article 9 of the Model Law. The purpose of Article 17 J was rather to endow courts of law with powers to grant interim measures in the states which had adopted the Model Law in its primary version of 1985 but had not enacted additional provisions, akin to s. 12(7) of the International Arbitration Act 1994 of Singapore, which would confer such powers to courts of law.[74] Thus, the real problem laying in the foundation of Article 17 J was possible inconsistency with Article 5 of the Model Law and absence of the provisions governing the scope of courts’ powers in relation to arbitral proceedings. However, this problem was not addressed properly because it is still uncertain whether and to what extent a court should intervene by granting interim measures pending arbitration.

D. Free choice of the forum

Contrary to the common law judgements referred to above, which introduce conditions under which courts may exercise powers in this field, the civil law jurisdictions’ courts (where states based their provisions on arbitration on the Model Law) seem to present exactly the opposite approach. However, it is equally justifiable, considering that courts of law do not possess as much discretion in civil law tradition as in the common law systems, and they in general exercise their powers to the extent provided in the letter of the law. Having said that, the provisions based on Article 9 of the Model Law stating that is not incompatible with an arbitration agreement for a party to request from a court an interim measure of protection and for a court to grant such measure are interpreted in the way that both forums are equally appropriate, and it is up to the party which authority to choose.[75] For example, according to the article 1166 of the Polish Code of Civil Procedure (which is based on the Article 9 of the Model Law) the fact that a dispute has been brought before an arbitration court shall be notwithstanding the possibility to have the claims sought before the arbitration court secured by a court. Such “security” may be given according to general rules provided in the article 730 et seq of the Code of Civil Procedure, which stipulates that security may be requested in each civil case heard by the court or arbitration court. In such a legal context, none of the Polish courts in any case regarding interim measures of protection (security) even considered the problem, that a party should first seek protection from arbitral tribunal before applying to the court. The Circuit Court in Szczecin in its order dated 24^th July 2019[76] analysed just whether the arbitration should have been initiated before an application to the court for interim measure, but for different reasons, which were refused[77]. Rejecting the application for interim measures on such grounds would be questionable and may lead to discrepancy with the article mentioned above (730).[78] At least few other civil law jurisdictions based on the model law are of a similar approach. In Austria, a party to an arbitration agreement may seek interim measures from court independently of the right to seek interim measures from an arbitrator. The same line is presented in Germany.[79]

E. The exclusive power of courts to grant interim measures of protection

In some jurisdictions, such as Italy,[80] or China,[81] the courts of law have still the exclusive power to grant interim measures. Such an approach has been presented more widely in the past,[82] but the current, global tendency in legislation goes towards endowing arbitral tribunals with powers to grant interim measures.[83] In such a situation, there is not any problem with overlapping powers of the courts and arbitral tribunals. A party may have a recourse only to the courts of law for such protection.

IV. Support to foreign arbitrations by domestic courts.

A. Introduction

Typically, the parties seek protection in the courts of the country where arbitration is conducted, but sometimes relevant assets or evidence are present in other jurisdictions. Thus, the supervisory court may not always be in the best position to deal with interim measures[84]. Efficiency requires the availability of interim measures in aid of arbitration whose venue is or is deemed to have been in a foreign country[85], but the question is whether and under what conditions the parties may have a recourse to the court of another state.

International conventions are mute on this matter. Consequently, the answer must be sought in national laws, which vary from state to state, but in general two approaches may be observed. First, the courts have jurisdiction to grant an interim measure to aid foreign arbitration proceeding. Second, their powers in this regard depend on the parties’ agreement or prior approval of the arbitral tribunal.[86] Third, where the courts’ jurisdiction is limited to arbitration proceedings conducted within their territory it is, according to the author’s best knowledge, almost extinct.[87]

B. The possibility to act in aid of foreign arbitrations

To start with, the revised version of the Model Law (art. 17J 1^st sentence) provides, that a court shall have the same power of issuing an interim measure in relation to arbitration proceedings, irrespective of whether their place is in the territory of this State, as it has in relation to proceedings in courts. This amendment is significant, since prior to the revision of 2006, it was arguable in some Model Law countries (if there was no other provisions of law) whether the courts had a power to grant interim measures in aid of foreign arbitrations.[88] The problem was properly noticed in the course of works over the revision of 2006 and therefore the commission took action to uniform legislation in this matter.[89] The states which adopted Article 17J clearly confirmed that parties might seek interim measures despite its arbitration proceeding is being conducted in another state. However, it is not that clear what conditions have to be met for the jurisdiction to be established. In the course of works over the revision of 2006, it was observed that countries that had legislation on interim measures in aid of foreign arbitrations adopted various conditions under which the foreign court could act, such as enforceability of the foreign arbitral award in the country concerned, prior application for relief to an arbitral tribunal, full disclosure of the existence of the arbitration agreement or, more generally, compliance with the conditions of the legislation of the country in which the measure is sought.[90] ILA in its Principles on Provisional and Protective Measures (prepared, however, for international litigation), which were noticed during works over the revision of the Model Law,[91] proposed the jurisdiction to be established by the mere presence of assets within a country in respect of those assets.[92] However, it has not addressed the problem of other measures of protection not related to assets themselves, such as those related to the preservation of evidence. In the end, this issue remains open due to the general clause of the revised version of the Model Law, which states that the court shall exercise power to grant interim measures in aid of foreign arbitration in accordance with its own procedures in consideration of the specific features of international arbitration (Article 17 J, 2^nd sentence). If this provision was to be adopted explicitly,[93] a decision to which court to go for protection demands further analysis of national laws, particularly regarding conditions on which the jurisdiction may be established. For example, the Federal Court of Australia in ENRC Marketing AG v OJSC “Magnitogorsk Metallurgical Kombinat” [2011] shortly stated that based on Article 17 J of the Model Law, it had the power to make orders to prevent parties from putting assets beyond the reach of any enforcement mechanism if awards are made against them, in the same way as they would be able to be enjoined in the domestic proceedings for a freezing order.[94] The court did not mention it, but it is well established in Australia that the relevant courts possess the power to make such orders as they may determine to be appropriate “to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction”, and that a freezing order is “the paradigm example of an order to prevent the frustration of a court’s process”.[95] Thus, the court considered it had jurisdiction over the application to grant a freezing order in aid of arbitration conducted in the International Court of Arbitration of the International Chamber of Commerce in Zurich. On the side, it was difficult to deny the jurisdiction since the significant assets were present within the Australian territory. The court could also expect to be asked to enforce the award against the respondent once it was made. This issue was observed in Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In Liq) [2018], where the court stated that its jurisdiction might be deprived not only from Article 17J but also from its inherent or implied power to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction (enforcement of the award).[96] Consequently, one can make an additional argument that if assets of OJSC “Magnitogorsk Metallurgical Kombinat” were moved outside the jurisdiction of Australia, that would also lead to frustration of the enforcement process. It seems that Australian courts would act whenever there is a need to protect the integrity of the arbitral proceedings, or the enforcement of the award is expected within their jurisdiction.

As it was mentioned on the side earlier, Singapore has taken a different legislative approach to this matter. Having regard to its former, varied jurisprudence regarding interim measures in aid of foreign arbitration proceedings,[97] it adopted the law that explicitly provided that courts were empowered to grant such measures in aid of foreign arbitrations, but it left discretion to refuse to exercise such power whenever it would be “inappropriate” to act.[98] The term “inappropriate” is vague and leaves an applicant with a great amount of uncertainty as to the conditions under which this forum may be established. Hong Kong, despite its courts had allowed in limited circumstances for interim measures to be granted in aid of foreign arbitrations,[99] went much further. Section 45(5) of the Arbitration Ordinance provides that the court may grant interim measures in aid of foreign arbitrations only (a) if the arbitral proceedings are capable of giving rise to an arbitral award (whether interim or final) that may be enforced in Hong Kong under this Ordinance or any other Ordinance, and (b) the interim measure sought belongs to a type or description of interim measure that may be granted in Hong Kong in relation to arbitral proceedings by the Court.[100] This provision gives much more certainty than approach taken in Singapore. In Poland, the issue of jurisdiction is not addressed properly in legislation. Article 1166 par. 1 of the Code of Civil Procedure states that the fact that a dispute has been brought before an arbitration court shall be notwithstanding the possibility to have the claims sought before the arbitration court secured by a court. According to article 1166 par. 2, this provision also applies if the venue of proceedings before an arbitration court is located outside the borders of the Republic of Poland or is not defined. Some experts argue that sole Article 1166 par. 2 presents the only ground for establishing the jurisdiction,[101] but others, \ point out that the jurisdiction as to interim measures in aid of foreign arbitration proceedings may only be established when the prerequisites of the Article 1103 of the Code have been met, i.e., when the respondent has his place of residence or habitual stay, or a registered office in the Republic of Poland. These are very limited circumstances, but in other case, Polish courts could have granted interim measures in relation to arbitration proceedings without any connection to the Polish legal system.[102] This could lead to unjustified interference in the foreign arbitral proceedings.

The second approach, that is where a party may seek interim measures of protection when so provided by the parties to the arbitration agreement, is present in Egypt. Article 1 of the Law No. 27/1994 Promulgating the Law Concerning Arbitration in Civil and Commercial limits its application to domestic arbitration, subject to the parties’ agreement. Thus, the power of courts to grant interim measures in relation to foreign arbitration exists only if agreed by the parties. Otherwise, such power is only in respect of arbitrations taking place in Egypt[103].

V. Summary

The problem of overlapping jurisdiction and powers of arbitral tribunals and courts regarding interim measures of protection is very complex. International conventions on arbitration do not contain any provisions regarding the conflict of jurisdiction, so the competent forum to seek interim measures must be established according to national laws where such relief is sought, and specific provisions of particular arbitration agreements or institutional rules agreed on by parties to the agreement. Even though various states adopted similar laws in respect to an application for court-ordered interim measures (similar to Article 17 J of the Model Law), the approach to such application differs significantly. In consequence, a party to an arbitration agreement should consider very carefully that even the legislation may look the same, the outcome can be totally opposite due to the jurisprudence of a particular state. This is of great importance, especially in the countries that take the position that courts of law only support arbitration and may act only when it is more “appropriate” than referring the parties to arbitral tribunals.

The purpose of this paper was not to analyse every possible case under every jurisdiction but rather indicate and sensitise possible problems one may encounter when seeking interim measures of protection. The question of “where to go” due to the laws governing the jurisdiction is much more problematic than it may appear at first glance and always must be assessed with a comprehensive analysis of the laws in a particular case. The choice of the forum is not always open. In some jurisdictions, a party may choose whichever forum it wants, but in others, application to courts of laws requires specific conditions to be met, such as the urgency of the case or a third party’s involvement. If a party must seek protection in a foreign state to the seat of arbitral proceeding, then it should be aware of such possible premises like enforceability of an award in that state or even of broad discretion of the courts to dismiss the application on the grounds that exercising such power would be “inappropriate”. There is no global standard in this matter, and there would not be one soon, despite some works towards a standardisation that have been commenced by UNCITRAL.

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[1] For example, due to a break of the supply chain because of non-performance of the other contracting party.

[2] Gary B. Born, International Commercial Arbitration (Third Edition) (Kluwer Law International, 2021) 2604.;

[3] These kinds of measures come by different names such as “interim measures of protection” in the UNCITRAL Model Law, “conservatory and interim measures” in ICC Rules, “provisional reliefs”, “provisional measures”, etc., but for clarity of this paper only the “interim measure” term is used for all kinds of pre-award reliefs.

[4] Alan Redfern et al, Redfern and Hunter on International Arbitration (Sixth Edition) (Oxford University Press, 6^th ed, 2015) 313 <https://www-kluwerarbitration-com.eu1.proxy.openathens.net/book-toc?title=Redfern%20and%20Hunter%20on%20International%20Arbitration%20(Sixth%20Edition)>.

[5] United Nations Commission and on International Trade Law, ‘Report of the Working Group on Arbitration on the Work of Its Thirty-Second Session’ (20 March 2000) [60] <https://undocs.org/en/A/CN.9/468> (‘A/CN.9/468’).[60]; Gary B. Born, International Commercial Arbitration (Third Edition) (Kluwer Law International, 2021), 2604

[6] Virtually in all countries, except Italy, China, and Thailand, where arbitral tribunals do not have powers to grant any interim measures and parties must file a recourse to courts of law.

[7] Those issues are described very well, i.a., in: Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International, 2005) 49.

[8] That would significantly exceed the scope of this paper.

[9] Peter Nygh and Peter Butt, Encyclopaedic Australian Legal Dictionary (LexisNexis Australia); ‘LII / Legal Information Institute’, Concurrent Jurisdiction <https://www.law.cornell.edu/wex/concurrent_jurisdiction>.

[10] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)

[11] As Gary B. Born observes the matter of exclusivity of arbitration agreements is so well established that is virtually never litigated: Gary B. Born, International Commercial Arbitration (Third Edition) (Kluwer Law International, 2021), 1503-1504. ‘COMANDATE MARINE CORP v PAN AUSTRALIA SHIPPING PTY LTD 238 ALR 457’ (2006).

[12] ‘McCreary Tire & Rubber Co v CEAT SpA (1974) 501 F 2d 1032’.

[13] ‘Cooper v. Ateliers De La Motobecane, 57 N.Y.2d 408 (1982)’.

[14] See also other cases, not involving a maritime contract, where McCreary line was applied: M I.T.A.D. Associates, Inc. v. Podar Bros., 636 F.2d 75; Metropolitan World Tanker, Corp. v. P. N. Pertambangan Minjakdangas Bumi Nasional (P. M. Pertamina), 427 F. Supp. 2; Siderius, Inc. v. Compania de Acero Del Pacifico, S. A., 453 F. Supp. 22; but see Carolina Power & Light Co. v. Uranex, 451 F. Supp. 1044 where court allowed attachment in such a case.

[15] See more on this topic: Mitchell L. Lathrop, ‘Court-Ordered Interim Measures in Aid of Enforceability of Pending Foreign Arbitration’ (2007) 73(4) Arbitration: The International Journal of Arbitration, Mediation and Dispute Management. Chartered Institute of Arbitrators (CIArb) 373.

[16] ‘Cooper v. Ateliers De La Motobecane, 57 N.Y.2d 408 (1982)’ (n 14).

[17] ‘Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd 21 Jan 1993 [1993] AC 334 , HL(E)’. [365]

[18] Ali Yesilirmak (n 8) 77–88; Gary B. Born (n 2) 2722.

[19] ‘European Convention on International Commercial Arbitration’ (21 April 1961) <https://treaties.un.org/stronas/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-2&chapter=22&clang=_en>.

[20] ‘Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd 21 Jan 1993 [1993] AC 334 , HL(E)’ (n 18).

[21] It is worth noting, that art. 26 of ICSID has been interpreted in a manner that excludes any supportive role of courts of law to arbitration – Christopher Boog, „The laws governing interim measures in international arbitration”, w Conflict of laws in international arbitration / edited by Franco Ferrari, Stefan Kröll (Sellier – de Gruyter, 2011), 446, https://ebookcentral.proquest.com/lib/unimelb/detail.action?docID=689691. In fact, Article 26 of ICSID provides more clarity on this issue.

[22] And any other conventions on international commercial arbitration like the Inter-American Convention on International Commercial Arbitration (1975), which may apply in the case.

[23] This is still the case in Italy, China, and Thailand – Gary B. Born (n 2) 2619.

[24] Ibid 892.

[25] Provided the parties have not agreed expressly on that matter in the agreement to arbitrate, by, for example, excluding the jurisdiction of the courts.

[26] ‘Https://Uncitral.Un.Org/En/Texts/Arbitration/Modellaw/Commercial_arbitration/Status’.

[27] Please refer to section II.B.

[28] It an exclusion within the meaning of Art 5 of the Model Law, which stipulates the general non-interference principle.

[29] Ku-Ring-Gai Council v Ichor Constructions Pty Ltd (2019) 99 NSWLR 260 (Court of Appeal of New South Wales, 2019) 51.

[30] Report of the United Nations Commision on International Trade Law on the Work of Its Eighteenth Session (No UN Doc A/40/17, 3 June 1985) <https://undocs.org/en/A/40/17(SUPP)>.

[31] Ali Yesilirmak (n 8) 75–76.

[32] Gary B. Born (n 2) 2607.

[33] Ibid 2609–2610.

[34] See section: II.B.

[35] Including reference to the specific arbitration rules which may provide that arbitral tribunal has such power; See, for example, SIAC Rules 2016 (Rule 30.1)

[36] This idea seems to be appropriate since virtually all modern jurisdictions have accepted interim measures to be granted by arbitral tribunals over the past decades, but they differ in detail, the analysis of which would exceed the scope of this paper

[37] Katran Shipping Co Ltd v Kenven Transportation Ltd – [1992] 1 HKC 538.

[38] ‘2021 Arbitration Rules’, ICC – International Chamber of Commerce <https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/>.

[39] ‘Singapore International Arbitration Centre | SIAC Rules 2016’ <https://www.siac.org.sg/our-rules/rules/siac-rules-2016>.

[40] ‘LCIA Arbitration Rules’ <https://www.lcia.org/Dispute_Resolution_Usługi/lcia-arbitration-rules-2020.aspx#Article%2025>.

[41] ‘ACICA Rules 2021‘ <https://acica.org.au/acica-rules-2021/>

[42] Christopher Boog, ‘The Laws Governing Interim Measures in International Arbitration’ in Conflict of Laws in International Arbitration / Edited by Franco Ferrari, Stefan Kröll (Sellier – de Gruyter, 2011) 445 <https://ebookcentral.proquest.com/lib/unimelb/detail.action?docID=689691>.

[43] for example, urgency, not any coercive powers of arbitral tribunals to enforce their decisions, not any power over third parties to arbitration agreements.

[44] See comprehensive analysis: Ali Yesilirmak (n 8) 49.

[45] Article 26

e See also: Włodzimierz Głodowski, ‘Zabezpieczenie roszczeń dochodzonych przed sądem polubownym [Securing claims brought to an arbitral tribunal]’ [2019] (1(5)2009) Kwartalnik ADR 97, 97.

[47] See also: Peter Binder, International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions (Kluwer Law International, 4th ed, 2019) 326 <https://www-kluwerarbitration-com.eu1.proxy.openathens.net/document/KLI-KA-Holtzmann-2006-Art17>.

[48] NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 5 LRC 187.

[49] It is interesting that even though Singapore has not adopted the revision of 2006, it had at the time when the case was heard, provisions of law granting broad powers to the courts in terms of interim measures, as it was not satisfied with the position arising out of the primary version of the Model Law. It is very significant for further analysis because s. 12 (7) of the International Arbitration Act 1994 was very similar to Article 17 J of the Model Law, which will be analysed later; See: Gary F Bell, ‘Singapore: Singapore’s Implementation of the Model Law: If at First You Don’t Succeed …’ in Gary F Bell (ed), The UNCITRAL Model Law and Asian Arbitration Laws: Implementation and Comparisons (Cambridge University Press, 2018) 238 <https://www.cambridge.org/core/books/uncitral-model-law-and-asian-arbitration-laws/singapore/4D01DFB542814B98D73F1810D5B0907D> (‘Singapore’).

[50] NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 5 LRC 187 (n 49) 41.

[51] Ibid.

[52] Howard M. Holtzmann , Joseph Neuhaus , et al., ‘“UNCITRAL Model Law, Chapter IV.A (Articles 17 – 17J) – as Amended [Interim Measures and Preliminary Orders]”, Pp. 159 – 586’ in A Guide to the 2006 Amendments to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (© Kluwer Law International; Kluwer Law International 2015, 2015) 551.

[53] Which led the Court of Appeal to conclusion that such renunciation was the applicant’s fault, constituted an attempt to omit arbitration proceeding and finally was deemed as abuse of process.

[54] ‘Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd 21 Jan 1993 [1993] AC 334 , HL(E)’ (n 18).

[55] Cetelem SA v Roust Holdings Limited [2005] EWCA Civ 618. The court observed that: [T]he whole purpose of giving the court power to make such orders is to assist the arbitral process in cases of urgency before there is an arbitration on foot. Otherwise, it is all too easy for a party who is bent on a policy of non-cooperation to frustrate the arbitral process. Of course, in any case where the court is called upon to exercise the power, it must take great care not to usurp the arbitral process and to ensure, by exacting appropriate undertakings from the Claimant, that the substantive questions are reserved for the arbitrator or arbitrators

[56] NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 5 LRC 187 (n 49).; See also: Section 44 (4) of Arbitration Act 1996 (1996 c 23) which provides that “in any case the court shall act only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively”.

[57] The Court of Appeal of Singapore in NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] properly observed that Article 9(1) of the First Schedule to the Arbitration Act 1996 (NZ) was identical to Article 9 of the Model Law (before the revision of 2006). Moreover, its Article 9(2) was very similar to s 12 (7) of the International Arbitration Act 1994 (SGP), according to which (simplifying) relevant courts in Singapore shall have, for the purpose of and in relation to arbitration, the same power of making orders in respect of interim measures as it has for the purpose of and in relation to an action or matter in the court.

[58] Marnell Corraro Associates Incorporated v Sensation Yachts Ltd [2000] BCL 828.

[59] Pathak v Tourism Transport Ltd — [2002] 3 NZLR 681.

[60] Smith Elements & Controls Ltd v EPI Group Ltd [2018] NZHC 336.

[61] Prince & Partners Trustee Co Ltd (as trustee of the Samnic Waingaromia Forest Joint Venture) v Samnic Forest Management Ltd [2018] NZHC 2979; Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714.

[62] Leviathan Shipping Co LTD v Sky Sailing Overseas Co Ltd [1998] 4 HKC 347.

[63] Top Gains Minerals Macao Commercial Offshore LTD v TL Recources PTE LTD [2015] HKCU 2793.

[64] Section 45 (4) of the Arbitration Ordinance provides that the court may decline to grant an interim measure under subsection (2) on the ground that (a) the interim measure sought is currently the subject of arbitral proceedings; and (b) the Court considers it more appropriate for the interim measure sought to be dealt with by the arbitral tribunal.

[65] UN Commission on International Trade Law (39th sess : 2006 : New York), ‘Report of the United Nations Commission on International Trade Law on Its 39th Session, 19 June-7 July 2006’ <https://digitallibrary.un.org/record/582733>.

[66] Sino Dragon Trading Ltd v Noble Resources International Pte Ltd [2015] FCA 1028.

[67] Cape Lambert Resources LTD and Another v MCC Australia Sanjin Mining PTY LTD and Others (2013) 298 ALR 666.

[68] Transurban WGT Co Pty Ltd v CPB Contractors Pty Ltd [2020] VSC 476.

[69] However, the legislations have been amended in a manner that reflects former courts’ decisions.

[70] NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 5 LRC 187 (n 49).

[71] Howard M. Holtzmann , Joseph Neuhaus , et al., (n 53) 578.

[72] Ibid 585.

[73] UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW, ‘Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International Commercial Arbitration as Amended in 20061’ (UNITED NATIONS PUBLICATION) 31 <https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf>.

[74] Article 9 does not grant any authority but only states the principle that court-ordered interim measures, if permitted under other law, are not inconsistent with arbitration; See: Howard M. Holtzmann , Joseph Neuhaus , et al., „«UNCITRAL Model Law, Chapter IV.A (Articles 17 – 17J) – as amended [Interim measures and preliminary orders]», pp. 159 – 586”, 165

[75] Provided that there are not any other provisions stipulating condition under which such power may be exercised.

[76] The order of the Circuit Court in Szczecin (Poland) of 24^th July 2019, file reference: VIII GCo 113/19, SIP LEX: 2717023

[77] The linguistic interpretation of Article 1166 of the CCP may lead to the conclusion that application to the court of law for interim measure is excluded until the initiation of arbitration, but from that moment a party is entitled to apply both to an arbitral tribunal or court of law, without any further conditions.

[78] However, this would be an interesting case if a court considered the problem of priority of arbitral tribunals in respect to interim measures under the premise of legal interest in the security for a claim (Article 730¹CCP). One could argue that applicant does not have a legitimate interest if may seek interim measures from arbitral tribunal.

[79] Ilias Bantekas and Ikram Ullah, UNCITRAL Model Law on International Commercial Arbitration. A Commentary (Cambridge University Press, 2020) 500–521 <https://doi.org/10.1017/9781108633376.011>.

[80] ‘The Exceptional Power of Arbitral Tribunals in Corporate Arbitrations to Issue Interim Measures Clashes with the Courts’ Power to Issue Interim Relief. Where Is the Balance? | | Insights | DLA Piper Global Law Firm’, DLA Piper <https://www.dlapiper.com/en/italy/insights/publications/2020/04/italy-newsletter-arbitration-team/article-valerio-condemi/> (‘The Exceptional Power of Arbitral Tribunals in Corporate Arbitrations to Issue Interim Measures Clashes with the Courts’ Power to Issue Interim Relief. Where Is the Balance?’).

[81] Ling Yang, ‘How Far to Reach an International Standard? The Applicable Standards for Granting Interim Relief in Mainland China and Hong Kong’, Kluwer Arbitration Blog (13 July 2021) <http://arbitrationblog.kluwerarbitration.com/2021/07/13/how-far-to-reach-an-international-standard-the-applicable-standards-for-granting-interim-relief-in-mainland-china-and-hong-kong/> (‘How Far to Reach an International Standard?’).

[82] Ali Yesilirmak (n 8) 64.

[83] Applications for Interim Measures. International Arbitration Practice Guideline. (Chartered Institute of Arbitrators) <https://www.ciarb.org/media/4194/guideline-4-applications-for-interim-measures-2015.pdf>.

[84] Lawrence Collin, ‘Provisional and Protective Measures in International Litigation (Volume 234)’ [1992] Collected Courses of the Hague Academy of International Law 72 <http://referenceworks.brillonline.com/entries/the-hague-academy-collected-courses/*A9780792322603_01>.

[85] Ali Yesilirmak (n 8) 80.

[86] Ilias Bantekas and Ikram Ullah (n 80) 513.

[87] It was presented, i.a., in Malaysia, Singapore, or India, but their legislation has been amended to allow for interim measures in aid of foreign arbitration proceedings: See Ilias Bantekas i Ikram Ullah, UNCITRAL Model Law on International Commercial Arbitration. A Commentary, 515-516.

[88] Swift-Fortune Ltd v Magnifica Marine SA [2006] SGCA 42, (Court of Appeal of Singapore, 2006); Front Carriers Ltd v Atlantic & Orient Shipping Corp [2006] SGHC 127.

Working Group II (Arbitration and Conciliation), Settlement of Commercial Disputes. Preparation of Uniform Provisions on Interim Measures of Protection. Note by the Secretariat (No A/CN.9/WG.II/WP.119 (36th session), United Nations Commission on International Trade Law Working Group II (Arbitration and Conciliation), 4 March 2002) 13 <https://undocs.org/pdf?symbol=en/A/CN.9/WG.II/WP.119>; Working Group II (Arbitration and Conciliation), Settlement of Commercial Disputes. Interim Measures of Protection. Note by the Secretariat. (No A/CN.9/WG.II/WP.141 (44th session), United Nations Commission on International Trade Law Working Group II (Arbitration and Conciliation), 23 January 2006) 8 <https://undocs.org/en/A/CN.9/WG.II/WP.141>.[89]

[90] United Nations Commission on International Trade Law Working Group on Arbitration, International Commercial Arbitration. Possible Future Work: Court-Ordered Interim Measures of Protection in Support of Arbitration, Scope of Interim Measures That May Be Issued by Arbitral Tribunals, Validity of the Agreement to Arbitrate. Report of the Secretary-General (No A/CN.9/WG.II/WP.111 (33rd session), 20 December 2000) 5 <https://undocs.org/pdf?symbol=en/A/CN.9/WG.II/WP.111>.

[91] Ibid 7.

[92] FK Juenger, ‘The ILA Principles on Provisional and Protective Measures’ (1997) 45(4) The American Journal of Comparative Law 941, 943.

[93] as it happened for example in Australia.

[94] ENRC Marketing AG v OJSC “Magnitogorsk Metallurgical Kombinat” [2011] FCA 1371.

[95] PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36.[43] quoting Jackson v Sterling Industries Ltd (1987) 162 CLR 612at 623; [1987] HCA 23 and Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1at 32 [35]; [1998] HCA 30, quoted in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380at 400 [41]; [1999] HCA 18.

[96] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (In Liq) [2018] WASCA 174.[18-22]

[97] Swift-Fortune Ltd v Magnifica Marine SA [2006] SGCA 42, (n 89); Front Carriers Ltd v. Atlantic & Orient Shipping Corp [2006] SGHC 127 (n 89).

[98] 12A (1) and (3) of the International Arbitration Act of 1994.

[99] The Lady Muriel – [1995] 2 HKC 320; Leviathan Shipping Co LTD v Sky Sailing Overseas Co Ltd [1998] 4 HKC 347 (n 63).

[100] Section 45(7) of the Arbitration Ordinance; these prerequisites were analysed in detail in Top Gains Minerals Macao Commercial Offshore Ltd v TL Resources PTD LTD [2015]

[101] Karol Weitz, Kodeks postępowania cywilnego. Komentarz. Tom 6. Międzynarodowe postępowanie cywilne. Sąd polubowny (arbitrażowy) (red. Tadeusz Ereciński Jan Ciszewski, Paweł Grzegorczyk, Karol Weitz) [Code of Civil Procedure. Commentary. Volume 6. International civil proceeding. Arbitration court. (edited by Tadeusz Ereciński Jan Ciszewski, Paweł Grzegorczyk, Karol Weitz)], vol 6 (2017) 893.

[102] Andrzej Jakubecki, Article 1166 [w:] Kodeks postępowania cywilnego. Komentarz. Tom V. Art. 1096-1217, red. T. Wiśniewski [Article 1166 in Code of Civil Procedure. Commentary. Volume V. Articiles 1096-1217, edited by T. Wiśniewski], vol 5 (2021) 5.

[103] Ilias Bantekas and Ikram Ullah (n 80) 515.

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An appropriate Forum to Seek Interim Measures in International Commercial Arbitration – the problem of overlapping jurisdiction and powers of arbitral tribunals and courts.

I. Introduction

II. The Concurrent Jurisdiction of Courts of Law and Arbitral Tribunals.

A. Definition

B. The issue of concurrent jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)

C. The concurrent jurisdiction under national laws

D. The source of powers of arbitral tribunals and courts to grant interim measures

III. Limitations of Party’s Free Choice

A. Introduction

B. General observations

C. Subsidiary role of courts of law for arbitral tribunals.

D. Free choice of the forum

E. The exclusive power of courts to grant interim measures of protection

IV. Support to foreign arbitrations by domestic courts.

A. Introduction

B. The possibility to act in aid of foreign arbitrations

V. Summary

Umowy

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