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Redfern and Hunter on International Arbitration, 6th Edition by Blackaby, Nigel; Partasides, Constantine; Redfern, Alan; Hunter, Martin (1st September 2015)

7 Role of National Courts during the Proceedings

Nigel Blackaby, Constantine Partasides QC, Alan Redfern, Martin Hunter

From: Redfern and Hunter on International Arbitration (6th Edition)

Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter

Subject(s):
Specific courts and tribunals — Host state law — Relationship of international law & host state law — Enforcement in domestic courts — Parallel proceedings — Place of arbitration — Specific Courts and Tribunals

(p. 415) Role of National Courts during the Proceedings

A.  Introduction

7.01  The relationship between national courts and arbitral tribunals swings between forced cohabitation and true partnership. Arbitration is dependent on the underlying support of the courts, which alone have the power to rescue the system when one party seeks to sabotage it. As a former senior English judge has stated:

[T]‌here is plainly a tension here. On the one hand the concept of arbitration as a consensual process reinforced by the ideas of transnationalism leans against the involvement of the mechanisms of state through the medium of a municipal court. On the other side there is the plain fact, palatable or not, that it is only a Court possessing coercive powers which could rescue the arbitration if it is in danger of foundering.1

7.02  A party who agrees to refer disputes to arbitration chooses a private system of justice and this in itself raises issues of public policy. There are limits upon this freedom of choice. Most states restrict the possibility of arbitration to disputes that the state itself regards as being legally capable of being settled by arbitration—that is, to disputes that are, because of their subject matter, ‘arbitrable’ in the sense discussed elsewhere in this volume.2 However, as has been seen, the concept of what is and what is not ‘arbitrable’ differs from one country to another, and even across time.3 The state prescribes the boundaries of arbitration and enforces these (p. 416) boundaries through its courts. The state also determines other limitations upon the arbitral process: whether, for instance, arbitrators have the power to compel the attendance of witnesses or the disclosure of documents, and, more importantly, whether or not any appeal to the national court is possible, and if so, how, when, and upon what terms.4

7.03  To the extent that the relationship between national courts and arbitral tribunals is said to be one of ‘partnership’,5 it is not a partnership of equals. Arbitration may depend upon the agreement of the parties, but it is also a system built on law, which relies upon that law to make it effective both nationally and internationally. National courts could exist without arbitration, but arbitration could not exist without the courts. The real issue is to define the point at which this reliance of arbitration on the national courts begins and that at which it ends.

(a)  Increasing independence of arbitration

7.04  As noted in Chapter 1, arbitration is now the principal method of resolving international disputes involving states, individuals, and corporations. This reality has led the arbitral process to distance itself, where possible, from the risk of domestic judicial parochialism. Modern international arbitration has consequently achieved a considerable degree of independence from national courts. For example, the arbitration clause in an international contract is generally recognised as being an independent agreement, which survives any termination of the contract in which it is contained.6 The parties themselves are generally free to determine how their disputes are to be resolved, subject only to such safeguards as may be considered necessary as a matter of public policy; arbitrators are free to decide on their own jurisdiction, subject only to differing degrees of review by the national court of the seat of the arbitration, or place of recognition or enforcement. The parties are free to choose which system of law will govern the dispute between them—and, indeed, may even elect general principles, such as the UNIDROIT Principles of International Commercial Contracts.7 Finally, judicial control of errors of law in international arbitration has been virtually abandoned, leaving courts the limited role of policing procedural due process, such as the obligation of the tribunal to give each party a fair hearing.

(p. 417) 7.05  Nonetheless, the arbitral process remains subject to the arbitration law of the country in which it has its juridical seat and that of the country, or countries, in which a winning party may seek to recognise or enforce the eventual award. In other words, the involvement of national courts in the international arbitration process remains essential to its effectiveness. Indeed, experiments that some countries have made in unbounded ‘party autonomy’ ultimately resulted in a backlash in favour of a controlling role for the courts. For example, Belgium set out to attract international arbitrations by denying any right of review for the local courts only to discover that such ‘anational’ arbitration dissuaded potential users and reintroduced supervisory control unless both parties agreed expressly to exclude it.8 Equally, the ever-increasing trend to seek interim measures has placed a renewed focus on the respective roles of the arbitral tribunal and the courts.

(b)  Limitations on independence

7.06  UNCITRAL Model Law seeks to exclude the involvement of the courts as far as possible. Article 5 states: ‘In matters governed by this Law, no court shall intervene except where so provided in this Law.’ At first sight, this is a striking declaration of independence. Yet the Model Law does not seek to exclude the participation of what it calls the ‘competent court’9 in carrying out ‘certain functions of arbitration assistance and supervision’. On closer examination of the Model Law itself, it becomes apparent that, of its thirty-six Articles, no fewer than ten recognise a possible role for the ‘competent court’. For example, Article 11 acknowledges that the help of the competent court may be necessary to constitute the arbitral tribunal;10 Article 13 acknowledges that the competent court may have to decide upon a challenge to an arbitrator if there are justifiable doubts as to that arbitrator’s impartiality or independence;11 Article 16 acknowledges that a party to an international arbitration may apply to the competent court to review the decision of the arbitral tribunal on jurisdiction—in which case, it is the decision of that court (and not the decision of the arbitral tribunal) that is (p. 418) final and binding.12 The Model Law also acknowledges that the assistance of the competent court may be necessary in the taking of evidence,13 and that, in any challenge to the arbitral award, or to its recognition and enforcement, the judgment of the competent court will be decisive.14

(c)  ‘A relay race’

7.07  If there is a partnership between arbitrators and the national courts, it is one in which each has a different role to play at different times. The relationship between courts and arbitrators has been compared by a former senior English judge, Lord Mustill, to a relay race:

Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organisation which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfil, the arbitrators hand back the baton so that the court can in case of need lend its coercive powers to the enforcement of the award.15

In principle, there should be no disputes as to where the frontier between the public world of the courts and the private world of arbitration lies. At the beginning of an arbitration, national courts (not the arbitrators) have the task of enforcing the agreement to arbitrate if one of the parties should seek to avoid it. At the end of the arbitral process, national courts (not the arbitrators) must also enforce the arbitral award if the losing party is not prepared to comply with it voluntarily. During the arbitral process, the arbitrators (not the courts) must take charge of (p. 419) the proceedings, set time limits, organise meetings and hearings, issue procedural directions, consider the arguments of fact and law put forward by, or on behalf of, the parties, and make their award.

7.08  Unfortunately, the respective domains of arbitral tribunals and national courts may not be so clearly distinguished. As Lord Mustill went on to observe:

In real life the position is not so clear-cut. Very few commentators would now assert that the legitimate functions of the Court entirely cease when the arbitrators receive the file, and conversely very few would doubt that there is a point at which the Court takes on a purely subordinate role. But when does this happen? And what is the position at the further end of the process? Does the Court retake the baton only if and when invited to enforce the award, or does it have functions to be exercised at an earlier stage, if something has gone wrong with the arbitration, by setting aside the award or intervening in some other way?16

B.  At the Beginning of the Arbitration

7.09  It is possible to identify at least three situations in which the intervention of the court may be necessary at the beginning of the arbitral process:

  • •  the enforcement of the arbitration agreement;

  • •  the establishment of the tribunal; and

  • •  challenges to jurisdiction.

(a)  Enforcing the arbitration agreement

7.10  A party to an arbitration agreement might decide to issue proceedings in a court of law, rather than to take the dispute to arbitration. In the unlikely situation of the respondent’s acquiescence without reservation, the arbitration agreement will have been deemed waived and the court action will proceed. However, having entered into an arbitration agreement, the respondent usually wishes to insist on its right to have the dispute decided by arbitrators rather than by a national court. For their part, most courts are obliged to enforce the agreement to arbitrate pursuant to Article II of the New York Convention,17 by refusing to accept such proceedings in court and by referring the parties instead to arbitration. This is also reflected in the Model Law, Article 8 of which provides:

(1)  A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when (p. 420) submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2)  Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

(b)  Establishing the arbitral tribunal

7.11  If the parties have failed to make adequate provision for the constitution of an arbitral tribunal and if there are no applicable institutional or other rules (such as the UNCITRAL Rules), the intervention of a national court may be required to appoint the chairperson or the respondent’s arbitrator.18 In the absence of any such rules, the national court must also intervene to decide any challenge to the independence or impartiality of an arbitrator.19

(c)  Challenges to jurisdiction

7.12  If any issue is raised as to the jurisdiction of the arbitral tribunal, it will generally (although not always) be made at the beginning of the arbitration. If the objection is successful, the arbitration will be terminated. The issue of challenge to jurisdiction is one of growing importance and is dealt with in Chapter 5. The only point that should be made here, in the context of the relationship between national courts and arbitral tribunals, is that it is recognised in the Model Law (and in many national systems of law) that whilst any challenge to the jurisdiction of an arbitral tribunal may be dealt with initially by the tribunal itself, the final decision on jurisdiction rests with the relevant national court.20 This is either the court at the seat of the arbitration, or the court of the state(s) in which recognition and enforcement of the arbitral award is sought.

C.  During the Arbitral Proceedings

7.13  What happens in the most important phase of an arbitration, when the arbitrators begin their task? The baton has been passed to them. Is there any need for national courts to be involved in the arbitral process? The answer in almost every case is ‘no’. Once an arbitral tribunal has been constituted, most arbitrations are conducted without any need to refer to a national court, even if one of the parties fails or refuses to take part in the proceedings. There may be times, however, at which the involvement of a national court is necessary in order to ensure the proper conduct of the arbitration. It may become necessary, for instance, to ask the competent (p. 421) court to assist in taking evidence, or to make an order for the preservation of property that is the subject of the dispute, or to take some other interim measure of protection. The question that then arises is whether a national court may (or indeed should) become involved in a dispute that is subject to arbitration, and if so, how far this involvement should extend.

(a)  Interim measures—powers of the arbitral tribunal

7.14  During the course of an arbitration, it may be necessary for the arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration. Such orders take different forms and go under different names. In the Model Law21 and in the UNCITRAL Rules,22 they are known as ‘interim measures’. In the English version of the Arbitration Rules of the International Chamber of Commerce (ICC), they are known as ‘interim or conservatory measures’, and in the French version, as ‘mesures conservatoires ou provisoires’.23 In the Swiss law governing international arbitration, they are referred to as ‘provisional or conservatory measures’.24 Whatever their designation, however, they are intended in principle to operate as holding orders and apply only pending the issue of a final arbitral award.

7.15  In many cases in which interim measures of protection are required, the arbitral tribunal itself has the power to issue them, as considered in Chapter 5. In these circumstances, it may be asked why, if the arbitral tribunal itself has the power to issue interim measures, the help or intervention of a national court might be necessary? There are, however, five situations in which the tribunal’s powers may be insufficient and which thus lead a party favouring recourse to a national court.

(i)  No powers

7.16  First, the arbitral tribunal may not have the necessary powers. This is usually a result of antique domestic legislation harking back to a time when the power to grant such measures was considered to be a prerogative of the national courts for public policy reasons. Article 753 of the Argentine Code of Civil Procedure, for example, states: ‘Arbitrators shall not issue compulsory or enforcement measures, these shall be requested to the judge who shall give the aid of his jurisdiction for the faster and more effective operation of the arbitral process.’ Such limitations are nevertheless very rare in practice.

(p. 422) (ii)  Inability to act prior to the formation of the tribunal

7.17  Secondly, the arbitral tribunal cannot issue interim measures until the tribunal itself has been established.25 The point may seem obvious, yet it is frequently overlooked until a crisis arises. It takes time to establish an arbitral tribunal and, during that time, vital evidence or assets may disappear. National courts may be expected to deal with such urgent matters. Most international institutional rules have sought to address this lacuna in their most recent revisions through the appointment of so-called emergency arbitrators. For example, the Rules of the Netherlands Arbitration Institute (NAI) provide for the NAI’s prompt appointment of a single arbitrator to resolve interim measure issues prior to the constitution of the formal tribunal (summary arbitral proceedings).26 Once the measures have been issued, that arbitrator may take no further role in the proceedings. Other arbitration institutions such as the ICC, Stockholm Chamber of Commerce (SCC), Singapore International Arbitration Centre (SIAC), International Centre for Dispute Resolution (ICDR), and London Court of International Arbitration (LCIA) have adopted similar provisions in their most recent arbitration rules making it possible for parties to obtain interim relief before the tribunal has been constituted, by allowing the appointment of ‘emergency arbitrators’.27 Following these developments in arbitration rules, legislation has also been implemented in certain jurisdictions to facilitate the enforcement of emergency relief orders. Notably, the Hong Kong Arbitration Ordinance of 2013 allows Hong Kong courts to enforce relief granted by emergency arbitrators whether the order is issued in Hong Kong or abroad.28 However, where there is no specific provision for the enforcement of the orders of an emergency arbitrator, a party may still prefer to rely on the competent national court to ensure state-backed enforcement of an interim order.

(iii)  An order can affect only the parties to the arbitration

7.18  The third factor in understanding why the assistance of a national court may be necessary is that the powers of an arbitral tribunal are generally limited to the parties to the arbitration. The Model Law makes it plain that an arbitral tribunal may order interim measures only against ‘a party’.29 A third-party order, for example, addressed to a bank holding deposits of a party would not be enforceable against the bank, and multiparty or multi-contract disputes may also pose similar problems, requiring national court assistance.

(p. 423) (iv)  Enforcement difficulties

7.19  Fourthly, interim measures ordered by an arbitral tribunal do not, by definition, finally resolve any point in dispute. An order or award of interim measures is therefore unlikely to satisfy the requirement of finality under the New York Convention, which may render it unenforceable internationally.30 As a consequence, where there may be a need for international enforcement of the interim measure, parties should consider applying for such measures before the courts of the place of execution.

7.20  Notwithstanding this limitation, some states have sought to label certain interim measures ordered by tribunals as ‘awards’, at least as far as their own legislation is concerned. This is the case in Israel and Malaysia, which define ‘award’ to include an interim award,31 or New Zealand,32 which makes the provisions on enforcement of awards applicable to an interim measures order (unless the tribunal provides otherwise). Arbitral practice varies on this question, although the recent tendency appears to be in favour of tribunals making orders, rather than awards. In the context of an ICC arbitration, that may add considerably to the speed of the process, because an order, unlike an award, will not need to be scrutinised by the ICC Court before issue.33

(v)  No ex parte‎ application

7.21  Fifthly, a party may need to make an application ex parte (that is, without notice to the party against whom the measure is directed), for example to freeze a bank account of the other party to prevent the transfer of funds abroad. As discussed in Chapter 5, the revised UNCITRAL Model Law offers the possibility of limited ex parte applications to the arbitral tribunal.34 However, it will take a considerable time before those changes are made to the actual arbitration laws in force in the most popular arbitration seats, and the rules of the leading institutions do not currently expressly envisage such a power for arbitrators.35 As a consequence, in most cases in which ex parte relief is important, such as where there is a risk of dissipation of assets or of important evidence being destroyed, the courts are the only option.

(p. 424) (b)  Interim measures—powers of the competent court

7.22  For all of these reasons, it is important that the competent court should have the power to issue interim measures in support of the arbitral process. In situations of extreme urgency, in which third parties need to be involved or in which there is a strong possibility that a party will not voluntarily execute the tribunal’s order, there may be little option but to identify the appropriate state court and make the application there. The measures requested may include the granting of injunctions to preserve the status quo or to prevent the disappearance of assets, the taking of evidence from witnesses, or the preservation of property or evidence.

7.23  Applying for interim measures before a court may give rise to at least two issues. First, if a party to an arbitration agreement makes an application for interim measures to the court rather than to the arbitral tribunal, will this be regarded as a breach of the agreement to arbitrate? Secondly, if the choice between seeking interim measures from the courts or from the arbitral tribunal is truly an open choice, should the application be made to the courts or to the arbitral tribunal?

(i)  Incompatibility with the arbitration agreement?

7.24  The risk that resort to interim measures before a court might operate as a waiver of the arbitration agreement, or that any order so obtained might be dissolved in the face of a valid arbitration clause, appears to be consigned to history. Most arbitration rules are explicit in confirming that an application for interim relief from a court is not incompatible with an arbitration agreement. For example, Article 28(2) of the ICC Rules states clearly that:

The application of a party to a judicial authority for such [interim or conservatory] 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 …

A similar provision is to be found in the UNCITRAL Rules, Article 26(9) of which provides that ‘[a]‌ request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement’.36 Article 9 of the Model Law also states categorically 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 a court to grant such measure.’

7.25  Nevertheless, where an application is made to a national court for interim measures, a judge may be reluctant to make a decision that risks prejudicing the outcome of the arbitration. As was stated in the English (then) House of Lords:

There is always a tension when the court is asked to order, by way of interim relief in support of an arbitration, a remedy of the same kind as will ultimately be sought (p. 425) from the arbitrators: between, on the one hand, the need for the court to make a tentative assessment of the merits in order to decide whether the plaintiff’s claim is strong enough to merit protection, and on the other the duty of the court to respect the choice of tribunal which both parties have made, and not to take out of the hands of the arbitrators (or other decision makers) a power of decision which the parties have entrusted to them alone. In the present instance I consider that the latter consideration must prevail … If the court now itself orders an interlocutory mandatory injunction, there will be very little left for the arbitrators to decide.37

(ii)  Should application be made to a national court or to the arbitrators?

7.26  As to the question of whether to seek interim relief from the relevant court or the arbitral tribunal, much depends on the relevant law and the nature of the relief sought. The relevant law may make it clear, for instance, that any application should be made first to the arbitral tribunal, and only then to the court of the seat of arbitration. This is the position taken by Swiss law, which empowers the arbitral tribunal to take ‘provisional’, or conservatory, measures (unless the parties otherwise agree), then states that if the party against whom the order is made fails to comply, the arbitral tribunal may request assistance from the competent court.38

7.27  English law is equally careful to spell out the position. It does so in three provisos to the court’s ‘powers exercisable in support of arbitral proceedings’, including the preservation of evidence, the inspection of property, the granting of an interim injunction, and the appointment of a receiver. These three provisos are set out at section 44(3)–(5) of the Arbitration Act 1996:

  1. (3)  If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitral proceedings, make such order as it thinks necessary for the purpose of preserving evidence or assets.

  2. (4)  If the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings … made with the permission of the tribunal or with the agreement in writing of the other parties.

  3. (5)  In any case the court shall act only if or to the extent that the arbitral tribunal … has no power or is unable for the time being to act effectively.

7.28  Where the position is not spelled out as clearly as this, the answer to the question of whether to seek interim relief from the court or from the arbitral tribunal is likely to depend upon the particular circumstances of each case. If, for example, a tribunal has not been constituted, the matter is one of urgency, and there is a concern (p. 426) that an emergency arbitrator order may not be voluntarily executed,39 the only possibility is to apply to the relevant national court for interim measures. At the same time, the party seeking such an order should take steps to advance the arbitration, so as to show that there is every intention of respecting the agreement to arbitrate. Where the arbitral tribunal is in existence, or appointing an emergency arbitrator is possible and likely to be effective, it is appropriate to apply first to that tribunal or emergency arbitrator for interim measures, unless international enforcement may be required.40

7.29  This is not simply a question of division of labour. Although an arbitral tribunal or an emergency arbitrator lacks the coercive powers of a court of law, and in spite of questions concerning the international enforceability of an order for interim measures, parties should not forget that any order is binding as between them. Furthermore, it is a brave (or foolish) party who deliberately chooses to ignore interim measures ordered by the tribunal charged with deciding the merits of its dispute. As one experienced commentator has asserted:

Ultimately, of course, the arbitrators’ greatest source of coercive power lies in their position as arbiters of the merits of the dispute between the parties. Parties seeking to appear before arbitrators as good citizens who have been wronged by their adversary would generally not wish to defy instructions given to them by those whom they wished to convince of the justice of their claims.41

7.30  There are other logistical problems inherent in applying to a court for interim measures. Often, the merits of the dispute will be under a foreign law, which the local court will be ill-prepared to consider at an interim stage; likewise, the language of the dispute and the contract may be different. Finally, the chosen court is likely to be at the place of execution of the order to avoid concerns as to enforceability. This may give rise to problems of bias if the measures sought are against a state entity or a local entity in favour of a foreign corporation.42

7.31  The nature of the relief sought is also likely to have an important bearing on the question of whether to go to a national court or to the arbitral tribunal. Interim measures of relief take many forms and differ from state to state. Moreover, new (p. 427) and important forms of relief may be crafted by the courts or set out in legislation, so that it would be unwise to regard the categories of interim measures as being in any sense closed. The following classification may, however, be helpful.

  • •  measures relating to the attendance of witnesses;

  • •  measures related to preservation of evidence;

  • •  measures related to documentary disclosure;

  • •  measures aimed at preserving the status quo; and

  • •  measures aimed at relief in respect of parallel proceedings.

(c)  Measures relating to the attendance of witnesses

7.32  The first category of interim measures, directed towards the taking and preservation of evidence, is one of obvious concern. Since an arbitral tribunal does not generally possess the power to compel the attendance of relevant witnesses, it may be necessary to resort to the courts, particularly if the witness whose presence is required is not in any employment or other dependent relationship to the parties to the arbitration and so cannot be persuaded to attend voluntarily. This need for the assistance of the court is recognised by Article 27 of the Model Law:

The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.

7.33  Some national arbitration laws, including those of countries such as Switzerland, which have not adopted the Model Law per se, follow this form of wording very closely.43 In other arbitration laws, the position may be set out more fully. For example, section 43 of the English Arbitration Act 1996 provides that:

  1. (1)  A party to arbitral proceedings may use the same court procedures as are available in relation to legal proceedings to secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence.

  2. (2)  This may only be done with the permission of the tribunal or the agreement of the other parties.

  3. (3)  The court procedures may only be used if—

    1. (a)  the witness is in the United Kingdom, and

    2. (b)  the arbitral proceedings are being conducted in England and Wales or, as the case may be, Northern Ireland.

  4. (4)  A person shall not be compelled by virtue of this section to produce any document or other material evidence which he could not be compelled to produce in legal proceedings.44

(p. 428) In addition, English courts have the same power in relation to arbitration proceedings as they have for their own purposes in relation, inter alia, to the taking of the evidence of witnesses and the preservation of evidence.45

7.34  In an arbitration with a seat in the United States, section 7 of the Federal Arbitration Act of 1925 (FAA) grants arbitrators the power to subpoena witnesses within the jurisdiction either to appear to give oral evidence or to disclose relevant documentary evidence in their possession.46

7.35  Practically, a subpoena can be issued by tribunals only in respect of witnesses present in the jurisdiction, and there appear to be few instances of the power having been exercised in the context of international arbitrations.47 In one unreported ICC case, a tribunal refused to exercise its power to issue a subpoena to produce documents against a foreign national present in New York only for the arbitration hearing. The tribunal considered that the parties would not have contemplated the exercise of such power when selecting New York as a seat for a dispute that otherwise had no connection with the United States.

7.36  Another emerging limitation arising out of the consensual nature of arbitration is that section 7 subpoenas can be issued only against entities who are parties to (p. 429) the arbitration agreement.48 Once a witness is called to testify before the tribunal, section 7 allows the tribunal to subpoena documents in the witness’s possession.49 However, this limitation varies among US courts, and several courts have held that section 7 applies to pre-hearing discovery of documents in the possession of third parties,50 or to pre-hearing discovery of non-parties where a party demonstrates a special need or unusual circumstances.51

(d)  Measures related to the preservation of evidence

7.37  As far as the preservation of evidence is concerned, it is obviously important that evidence should not be destroyed before a proper record can be made of it. If, for example, the dispute is over the quality of a consignment of coffee or cocoa beans, then some measurement of that quality must be made before the consignment is either sold or perishes. If, for example, the dispute is over the number or quality of reinforcing bars used in the concrete foundations of a road, bridge, or a dam, some record must be preserved, preferably by independent experts, before those foundations are covered over. Given that the preservation of evidence is a matter of particular concern right at the beginning of the case, before the formation of the arbitral tribunal, this is an area in which parties are likely to rely heavily on the emergency arbitrator procedure.

7.38  Arbitration laws may grant specific powers to national courts to support arbitration by means of the granting of interim injunctions to preserve evidence. For example, section 44 of the English Arbitration Act 1996 grants to the courts in cases of urgency the same powers in arbitration to order the preservation of evidence, or the inspection, photographing, or preservation of property, as in court proceedings.52 In one case, pending initiation of an arbitration, the Court of Appeal granted a freezing order preventing a respondent from disposing or otherwise dealing with shares in order to protect a disputed right to purchase under a share purchase agreement.53 The Court considered that property could include contractual rights and that there was no bar to the issuing of a mandatory injunction. The key question was the need to protect the rights that would be the subject of the arbitration.

(p. 430) (e)  Measures related to documentary disclosure

7.39  As observed in Chapter 6, the arbitral tribunal’s power to order disclosure of documents is generally limited to the parties to the arbitration. Yet, in certain circumstances, relevant documents may be in the hands of a third party. Whilst the courts of the seat of the arbitration may offer some assistance, it has usually been chosen for its neutrality, and so the relevant third party is unlikely to be within its jurisdiction. The usual result is that third-party documents remain outside the scope of the arbitral process. However, this limitation does not apply in all jurisdictions in the United States, where an application to obtain disclosure of documents in support of a foreign arbitration is possible.

7.40  This power arises from section 1782 of Title 28 of the US Code, which permits a district court to order a person who ‘resides or is found’ in the district to give testimony or produce documents ‘for use in a foreign or international tribunal … upon the application of any interested person’. Until 2006, case law had limited the meaning of the word ‘tribunal’ to a judicial court, with the result that this power did not extend to arbitration proceedings.54 The US Supreme Court rejected this position in Intel Corporation v Advanced Micro Devices, Inc.,55 which extended the narrow interpretation of ‘tribunal’ to encompass requests made by the Directorate-General of Competition for the Commission of the European Union. Notably, the Supreme Court concluded that Congress’s deletion of the words ‘in any judicial proceeding pending in any court in a foreign country’ and replacement of them with the words ‘in a proceeding in a foreign or international tribunal’ was intended to provide the possibility of US judicial assistance to administrative bodies with adjudicative powers such as the Commission.56 It was only a matter of time before this reasoning was applied to the case of a private arbitral tribunal. This happened in In re Roz Trading Ltd,57 a case from the Northern District of Georgia.

7.41  Roz Trading had entered into a joint venture with a subsidiary of Coca-Cola and the Government of Uzbekistan. Roz alleged that Uzbekistan violently seized its interests in the joint venture and that Coca-Cola had assisted Uzbekistan in eliminating Roz from the joint venture. It initiated arbitral proceedings against Coca-Cola, Uzbekistan, and others before the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna under the joint venture agreement. Roz then applied to the district court in Georgia for an order, pursuant to section 1782, to compel Coca-Cola to produce documents for use before the arbitral tribunal in Austria. Coca-Cola argued that an arbitral panel convened before the Vienna Centre was not a ‘tribunal’ within the meaning of section 1782.

(p. 431) 7.42  Applying the Supreme Court’s reasoning from Intel, the district court ruled that an arbitral panel of the Centre is a ‘tribunal’ within the meaning of section 1782, such that the court’s assistance was available. The court then proceeded to exercise its discretion to grant discovery on the basis that ‘[d]‌iscovery is particularly appropriate where, as here, the practical availability of documents requested through other means of discovery is uncertain’.58

7.43  This decision has been followed by the Eleventh Circuit and a slim majority of district courts,59 and in respect of arbitrations conducted pursuant to the dispute resolution provisions in investment treaties in the case of Oxus Gold.60 However, other circuits (including the Fifth and the Second) have adopted a contrary view.61

7.44  The possibility of seeking such evidence has also been the subject of academic criticism. One author has argued that it runs contrary to the consensual nature of arbitration.62 Another commentator has noted the disparity of access to evidence that could result from use of this section, because the foreign interested party would have access to section 1782 to obtain disclosure from the US entity, whereas the US entity would probably have no such access to obtain disclosure from the foreign entity.63 Other commentators argue that the discretionary nature of the grant of the section 1782 order permits the court to ‘weed out’ abusive applications from those that are genuinely needed in order to have a fair arbitration.64 It has been argued that courts will generally not grant an order where the target of the order is a party, where there is evidence to suggest that the foreign tribunal will not be receptive to the evidence, where it appears that the application is being made in an attempt to circumvent restrictions placed by the foreign tribunal, and where (p. 432) the scope of disclosure is intrusive or burdensome.65 It seems therefore that the use of section 1782 will ultimately be restricted only to those cases in which there is no other true avenue available to obtain necessary documents and evidence, rather than as a ‘back door’ to US-style discovery in the arbitral process.66

(f)  Measures aimed at preserving the status quo

7.45  There are many cases in which an award of damages, however substantial, does not fully compensate the injured party for the loss that it has suffered. This may include damage to reputation, loss of business opportunities, and similar heads of claim, which are real enough, but difficult to prove and to quantify, even if they are considered to be legally admissible. For example, a manufacturer may refuse to continue supplies under a distribution agreement, alleging breach of contract. If the distributor does not receive the supplies for which it has contracted, it may not be able to fulfil the contracts that it, in turn, has made. This may damage the distributor’s reputation. In such a case, the distributor would no doubt wish to argue that the status quo should be maintained and that the manufacturer should continue to supply, pending resolution of the dispute by arbitration. Similarly, a pharmaceutical company may produce a particular drug under licence, then decide to manufacture and market a competing product under its own name, claiming that there is nothing in the licence agreement to prevent it doing so. In such a case, the licensor probably wishes to argue that, until the dispute is resolved by arbitration, the licensee should be restrained from manufacturing and marketing the competing product.

7.46  Such protection could be granted by the tribunal once constituted under the relevant rules permitting interim measures.67 However, if the application for interim measures is made to a national court, rather than to the arbitral tribunal itself, the court will have to consider whether it has the power to act, and if so, whether, in the particular circumstances, it should act. This problem confronted the English courts in the Channel Tunnel case. This was a case that went on appeal from the court of (p. 433) first instance to the Court of Appeal and then to the (then) highest English court, the House of Lords. Each court gave a different answer to the two questions posed.

7.47  The contract for the construction of the Channel Tunnel was an international contract that contained a ‘two-stage’ provision for the resolution of any disputes that might arise between Eurotunnel (the owner and intended operator of the tunnel) and Trans-Manche Link (TML), a consortium of five French and five British construction companies that had agreed to construct the land terminals, bore and equip the tunnels,68 and provide the necessary rolling stock. At the first stage, any dispute between Eurotunnel and TML was to go to a panel of experts, who had to give a decision within ninety days. If either party disagreed with the panel’s decision, the dispute was to be referred to arbitration in Brussels under the ICC Rules.

7.48  One serious dispute that arose between the parties was about payment for the Tunnel’s cooling system. This was not part of the original specification, but was added by a variation order. TML claimed that the monthly payments it received for the cooling system were insufficient. By the end of September 1991, the gap between what Eurotunnel had paid and what TML claimed had grown to approximately £17 million. In October 1991, TML wrote to Eurotunnel, threatening to suspend work on the cooling system unless its claim was met in full and pointing out the ‘very serious’ consequences that this would have for completion of the project, with subcontractors and other workers having to be laid off, equipment orders being delayed or cancelled, and so forth. In reply, Eurotunnel applied to the English court for an interim injunction to restrain TML from carrying out its threat. TML argued that the English courts had no power to intervene by granting the injunction that was sought; instead, it said, the court should stay the litigation and refer the parties to arbitration, in accordance with the then governing statute.69

7.49  The judge who heard the case at first instance decided that he did have the power to grant an injunction and would have done so, but for an undertaking by TML to continue working pending further court proceedings.70 The Court of Appeal considered that it was an appropriate case for an injunction, but that it had no power to grant one, because of the arbitration agreement.71 The House of Lords considered that it did have power to grant an injunction, but thought it inappropriate to do so.72 In giving the House of Lords’ judgment, Lord Mustill highlighted the problem to which this kind of application for interim relief may give rise:

It is true that mandatory interlocutory relief may be granted even where it substantially overlaps the final relief claimed in the action; and I also accept that it is possible for the court at the pre-trial stage of the dispute arising under a construction (p. 434) contract to order the defendant to continue with a performance of the works. 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. In the combination of circumstances which we find in the present case, I would have hesitated long before proposing that such an order should be made, even if the action had been destined to remain in the High Court.73

7.50  The fact that, in the Channel Tunnel case, three different courts gave different answers to the questions of whether or not there was power to issue an injunction, and if so, whether it would be appropriate to do so, underlines the difficulties posed by such questions.74 It is no comfort to the practitioner to say so, but there is no clear rule as to whether or not an injunction will be issued in particular circumstances.75 Each case has to be assessed individually.

(g)  Interim relief in respect of parallel proceedings

7.51  Whilst an uneasy truce may have been signed between the courts and arbitral tribunals in the developed arbitral jurisdictions,76 a ‘turf war’ continues to rage in other parts of the world, where there is an uncomfortable trend towards the issue of ‘anti-arbitration’ injunctions, either by the courts of the seat or by the courts of the place of eventual enforcement. The fact pattern is often similar: a dispute arises between a foreign party and a state, or state-owned entity, which has signed an arbitration agreement. The state entity wishes to sabotage the arbitral proceedings (p. 435) and have the case remitted for judicial determination in its own courts. It therefore seeks an injunction before those courts, seeking to challenge the jurisdiction of the tribunal, and an order requiring the arbitrators and adverse party to suspend or abandon the arbitral proceedings on pain of daily fines (or worse). This problem has raised serious challenges to the modern arbitrator: should such orders be obeyed, even where patently the product of improper government intervention, or should the arbitrator seek to ensure justice in the individual case, often at risk of monetary penalties (or worse)?

7.52  In one such case, a subsidiary of a US corporation, Himpurna, had entered into a contract with the Indonesian state electricity corporation, PLN, to explore and develop geothermal resources in Indonesia and subsequently to sell the power to PLN. In the wake of the Asian economic crisis, PLN failed to purchase the electricity supplied. Himpurna relied on the arbitration clause in the contract to commence an arbitration under the UNCITRAL Rules against PLN. A final award was made in favour of Himpurna, which PLN refused to pay. Himpurna subsequently commenced a second arbitration proceeding against Indonesia, based on Indonesia’s pledge to secure PLN’s performance. Shortly after serving the statement of claim, proceedings were commenced by both PLN and Indonesia in the Indonesian courts, which resulted in interim injunctions ordering the suspension of the arbitral proceedings pending a court decision on the merits, with an attached fine of US$1 million per day for breach of the order.

7.53  The tribunal considered that the injunction was a transparent attempt to avoid the consequences of a freely signed arbitration agreement and refused to abandon the arbitration. To avoid the risk of breaching the Indonesian court order, the tribunal moved the place of the hearing to The Hague and convened witnesses. Indonesia tried to stop such hearings from proceeding by seeking an injunction from the Dutch courts. This attempt failed, and the hearings were held (albeit in truncated form without the presence of the Indonesian arbitrator) and a final award issued.

7.54  The colourful facts of this case raise important questions as to how an arbitral tribunal can seek to avoid injunctions of national courts in extreme circumstances. First, the place of hearings in an UNCITRAL case can be held ‘at any place [the tribunal] deems appropriate’, and so the physical transfer of the hearings to The Hague was permitted by the Rules. In connection with the injunction itself, Article 28 of the UNCITRAL Rules allows a tribunal to proceed with the arbitration notwithstanding one party’s default whenever the defaulting party has failed to show ‘sufficient cause’ for its default. In this regard, the arbitral tribunal found that the Indonesian injunction did not constitute ‘sufficient cause’, because (a) it was sought and obtained by a state agency that was under the de jure control of the Government of Indonesia, and (b) the Government of Indonesia had de facto made no attempt to rein in those actions that were inconsistent with its obligations under the parties’ arbitration agreement.

(p. 436) 7.55  As a second ground, the arbitral tribunal held that the very existence of an arbitration agreement, and the involvement of a state party, entitled the tribunal to apply international law. As a matter of international law, the actions of the Indonesian courts were attributable to the Republic of Indonesia. In Benteler v Belgium,77 an international tribunal had held that ‘a state which has signed an arbitration clause or agreement would be acting contrary to international public policy if it subsequently relied on the incompatibility of such an obligation with its internal legal system’.78 The arbitral tribunal held that it would constitute ‘a denial of justice for the courts of a State to prevent a foreign party from pursuing its remedies before a forum to the authority of which the State consented’.79 Thirdly, the tribunal held that an international arbitral tribunal is not ‘unconditionally subject’ to the jurisdiction of the courts at the seat of the arbitration. Specifically, the ‘adjudicatory authority’ of an international tribunal ‘does not emanate from a discrete sovereign but rather from an international order’.80

7.56  Similar issues were addressed in another matter concerning an arbitration between a European construction company and an Ethiopian municipal authority. It related to an infrastructure project to be undertaken in Addis Ababa under an International Federation of Consulting Engineers (FIDIC) standard form contract comprising a number of the FIDIC ‘general conditions’, which were supplemented by ‘special conditions’ specifically negotiated by the parties. Confusingly, one of the FIDIC general conditions that was adopted was a standard ICC arbitration clause providing for ICC arbitration in Addis Ababa, while one of the parties’ special conditions was a separate arbitration clause that provided for arbitration in Addis Ababa pursuant to the Civil Code of Ethiopia. When a dispute arose between the parties and the European contractor commenced ICC proceedings, the Ethiopian municipal authority raised jurisdictional objections. It argued that, in specifically negotiating an arbitration agreement that did not make reference to the ICC in the ‘special conditions’, the parties had evinced a clear intention not to refer disputes to ICC arbitration. A hearing on the merits was scheduled in Paris to include the appearance of a number of witnesses resident in Ethiopia, even though the seat of the arbitration was Addis Ababa. In holding the hearing on the merits in a place other than the seat of the arbitration, the tribunal relied on Article 14(2) of the ICC Rules, which allowed it to conduct hearings at any location it considered ‘appropriate’ (a provision that had been restated in the parties’ terms of reference).

7.57  The Ethiopian party was outraged and applied to the ICC’s Court to remove the arbitrators, claiming that, in having regard to its own convenience and that of the claimant alone, the tribunal’s decision to hold hearings outside of Ethiopia gave (p. 437) the respondent reason to doubt the tribunal’s impartiality. This application was rejected by the ICC’s Court. Following this, and pursuant to the Ethiopian Civil Code, the Ethiopian party applied to the Ethiopian courts to remove the arbitrators. Pending its decision on the challenge, the Ethiopian Supreme Court issued an injunction enjoining the proceedings.

7.58  In an interim award in which it found that it did have jurisdiction over the parties’ dispute, the ICC tribunal also held that it had the discretion—indeed the duty—not to comply with the Ethiopian Supreme Court’s injunction. How was the tribunal able to reach this decision? As a practical matter, the arbitrators were personally insulated from the effects of the injunction. As a result of the tribunal’s procedural ruling, the hearing took place outside Ethiopia and none of the three arbitrators were Ethiopian nationals. How did the tribunal justify ignoring the orders of the courts that had supervisory jurisdiction over the arbitration? At least four grounds were given. First, the tribunal noted that, as a tribunal, it was not an organ of state, but a creature of contract. As a result, it held that its primary duty was to the parties to ensure that their agreement to arbitrate was not frustrated.81 Secondly, the tribunal found that an agreement to submit disputes to international arbitration ‘is not anchored exclusively in the legal order of the seat … [but is] validated by a range of international sources and norms extending beyond the domestic seat’.82 As to what these international sources were, the tribunal referred in particular to the New York Convention, which it suggested ‘embodied principles of general [recognition]’.83 Thirdly, the tribunal held that although Article 35 of the ICC Rules imposes a duty on tribunals to ‘ensure’ that their awards are ‘enforceable at law’ and, in this case, the likely place of enforcement was Ethiopia, this did not mean that an arbitral tribunal:

… should simply abdicate to the courts of the seat the tribunal’s own judgment about what is fair and right … In the event that the arbitral tribunal considers that to follow a decision of a court would conflict fundamentally with the tribunal’s understanding of its duty to the parties, derived from the parties’ arbitration agreement, the tribunal must follow its own judgment, even if that requires non-compliance with a court order.84

7.59  Finally, the tribunal concluded that to comply with the injunction would lead to a denial of justice.85 Specifically, it held that in the same way as a state cannot rely on changes in its own laws to justify breach of contract, so a state entity cannot resort to the state’s courts to frustrate an arbitration agreement.86

(p. 438) 7.60  There are also examples of national courts with no supervisory jurisdiction that have sought to stay foreign arbitral proceedings. In National Grid v Argentina,87 the claimant had instituted proceedings under the UNCITRAL Arbitration Rules against Argentina, pursuant to the United Kingdom–Argentina bilateral investment treaty (BIT). The parties agreed to a juridical seat of Washington, DC, and the ICC was designated as appointing authority. In the course of proceedings, Argentina unsuccessfully challenged the president of the tribunal before the ICC and then brought a claim against the ICC before its own courts in Buenos Aires. Less than a week before the final hearing, Argentina obtained an interim injunction in its domestic proceedings against the ICC to stay the arbitration in Washington, DC. The tribunal refused to suspend the proceedings, noting that the procedure for the challenge of arbitrators was a self-contained procedure under the UNCITRAL Rules, agreed by the parties, and further that the supervisory courts were those of the agreed seat, being Washington, DC, and not Argentina. Similarly, in SGS v Pakistan,88 the Pakistan Supreme Court issued an order against SGS restraining it from taking any action to pursue arbitration proceedings that it had commenced under the Arbitration Rules of the International Centre for the Settlement of Investment Disputes (ICSID) on the basis of a BIT. SGS nevertheless pursued its case, considering that the Pakistani courts had no supervisory jurisdiction over an ICSID claim.

7.61  Such cases nevertheless remain rare. The vast majority of arbitrations are pursued without interference from domestic courts. Nevertheless, the evolution of an international law to which tribunals must respond, even if in conflict with the dictates of the courts of the seat, may cause such courts to curtail their partisan zeal and conform to accepted international norms.

D.  At the End of the Arbitration

(a)  Judicial control of the proceedings and the award

7.62  One final aspect of the relationship between national courts and arbitral tribunals remains to be considered: the extent to which, if at all, national courts should exercise judicial control over the conduct of international arbitrations and the resulting award. There are two extreme positions. As one English judge recognised:

It can be said on the one side that if parties agree to resolve their disputes through the use of a private rather than a public tribunal, then the court system should play (p. 439) no part at all, save perhaps to enforce awards in the same way as they enforce any other rights and obligations to which the parties have agreed. To do otherwise is unwarrantably to interfere with the parties’ right to conduct their affairs as they choose.

The other extreme position reaches a very different conclusion. Arbitration has this in common with the court system; both are a form of dispute resolution which depends on the decision of a third party. Justice dictates that certain rules should apply to dispute resolution of this kind. Since the state is in overall charge of justice, and since justice is an integral part of any civilised democratic society, the courts should not hesitate to intervene as and when necessary, so as to ensure that justice is done in private as well as public tribunals.89

The extent to which there should be judicial control at the seat of the arbitration over both the conduct of the arbitration and the resulting award is a matter on which different commentators and, more importantly, different states have taken different views. It is an important matter, and is considered in more detail in Chapters 9 and 10.

E.  Conclusion

7.63  Powers that have been conferred on national courts by legislation, or which have been developed by the courts themselves, such as the powers to attach bank accounts, to appoint liquidators, or to issue injunctions, are there to serve the interests of justice. They are there to ensure that the ultimate purpose of legal proceedings is not frustrated by evidence or assets disappearing, or by parties taking the law into their own hands. As international commercial transactions and foreign direct investment increase, recourse to the courts, even where there is an arbitration agreement, may be essential if the aims of justice are to be properly served. As one experienced Swiss arbitrator expressed it:

[T]‌he development of law and international arbitration has been marked by an obvious tendency to limit the possibilities of court intervention in the course of an arbitration.

… It may be that the tide is now turning: it is increasingly realised in international arbitration circles that the intervention of the courts is not necessarily disruptive of the arbitration. It may equally be definitely supportive90

7.64  As in all relationships, the appropriate balance must be found between the rights of the courts to supervise arbitrations and the rights of parties to solicit the courts’ assistance in times of need.(p. 440)

Footnotes:

1  Coppée Levalin NV v Ken-Ren Fertilisers and Chemicals [1994] 2 Lloyd’s Rep 109 (HL), at 116 per Lord Mustill.

2  See Chapter 2, paragraphs 2.29ff.

3  See, e.g., the changed attitude of the US courts towards the arbitration of antitrust, securities, or patent issues.

4  See Chapter 10.

5  See, e.g., Goldman, The Complementary Role of Judges and Arbitrators, ICC Publication No. 412 (ICC, 1984), p. 259.

6  See the discussion of separability in Chapter 2, paragraphs 2.101ff.

7  One of the largest arbitrated disputes in history was decided under the UNIDROIT Principles of International Commercial Contracts: see Bonell, ‘A “global” arbitration decided on the basis of the UNIDROIT Principles’ (2001) 17 Arb Intl 249. See also Bonell, An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts (Brill, 2005), pp. 273–274. For a detailed analysis, see Vogenauer and Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (Oxford University Press, 2009).

8  See Chapter 10, paragraph 10.69.

9  The competent court is defined in Model Law, Art. 6, as the court or other authority specified by each state as being competent to perform the functions entrusted to it by the Model Law.

10  See Montpelier Reinsurance Ltd v Manufacturers Property & Casualty Ltd [2008] SC (Bda) 27 Com (24 April 2008), at [7]‌:

… Article 11(4) of the Model Law requires the Court to help constitute an arbitration panel wherever it is clear that the agreed appointment procedures have broken down. The Court’s primary statutory duty is to ensure that the parties can resolve their dispute before an independent and impartial arbitral tribunal without delay. This overriding policy consideration trumps deference to the particular contractual procedure which appears to have broken down. …

11  See Progressive Career Academy Pvt. Ltd v FIIT JEE Ltd (2011) 5 RAJ 7 Delhi, at [20]: ‘The UNCITRAL Model Law, in Article 13(3), explicitly enables the party challenging the decision of the Arbitral Tribunal to approach the Court on the subject of bias or impartiality of the Arbitral Tribunal.’

12  PT Tugu Pratama Indonesia v Magma Nusantara Ltd [2003] SGHC 204, at [12]:

The Model Law, when it comes to questions relating to the jurisdiction of the arbitral tribunal, gives a party who is questioning such jurisdiction two opportunities to challenge the jurisdiction. The first is before the appointed arbitral tribunal itself. The second opportunity, which can only be taken after the first challenge before the tribunal has failed in that the tribunal has given a ruling that it has jurisdiction, is an application to the High Court to decide on the matter. This is the right given to parties to an arbitration by Art 16(3) of the Model Law and this is the right that PT Tugu invoked by filing this application.

13  Model Law, Art. 27. For an application of this rule, see, e.g., Jardine Lloyd Thompson Canada Inc. v SJO Catlin [2006] ABCA 18, at [25]:

The parties to the arbitration can craft an arbitration agreement to suit their own purposes but they cannot, without more, exercise powers over third persons. The Legislature has seen fit, however, to empower tribunals to request the court’s assistance in taking evidence. It is common ground, and properly so, that Article 27 can be used to obtain the evidence of third persons at the arbitration hearing. …

14  See Model Law, Arts 34–36.

15  Mustill, ‘Comments and conclusions’, in International Chamber of Commerce (ICC) (ed.) Conservatory Provisional Measures in International Arbitration: 9th Joint Colloquium (ICC, 1993), p. 118.

16  Ibid.

17  New York Convention, Art. II(3), states:

The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

18  Model Law, Art. 11.

19  Ibid., Art. 13(3).

20  Ibid., Art. 16(3).

21  Ibid., Art. 17.

22  UNCITRAL Rules, Art. 26.

23  ICC Arbitration Rules, Art. 28. Similarly, London Court of International Arbitration (LCIA) Rules, Art. 25, refers to ‘interim and conservatory measures’.

24  Swiss Private International Law Act 1987 (Swiss PIL), Ch. 12, s. 183.

25  Indeed, in the case of ICC arbitrations, interim measures cannot be issued by the tribunal until the file has been transmitted to it: see ICC Rules, Art. 28.

26  NAI Rules, Art. 42(f).

27  SCC Rules, Art. 32(4) and Appendix II, Art. 3; ICC Rules, Art. 29(1) and Appendix V, Art. 1(2); SIAC Rules, Art. 26.2, with proceedings governed by Sch. 1; HKIAC Rules, Art. 23(1) and Sch. 4, Art. 1; ICDR Rules, Art. 6; LCIA Rules, Art. 9B.

28  Hong Kong Arbitration Ordinance of 2013, ss 22A and 22B.

29  Model Law, Art. 17(2).

30  See, e.g., Société Sardisud v Société Technip, Paris Cour d’Appel, 1ere Ch. Civ., 25 March 1994, [1994] Rev Arb 391. The Supreme Court of Queensland refused to enforce an interlocutory injunction issued by an Indiana state court on the basis that it was not an ‘arbitral award’ within the meaning of the New York Convention: Resort Condominiums Inc. v Bolwell (1995) XX YBCA 628. See also Hall Steel Co. v Metalloyd Ltd. 492 F.Supp.2d 215, 217 (ED Mich. 2007): ‘Whether enforcement of an arbitration award is sought under the FAA or the New York Convention, the courts are agreed that the award in question must be “final” in order to be eligible for judicial confirmation.’

31  Israel Arbitration Law of 1968, s. 1; Malaysia Arbitration Act 2005, s. 2.

32  New Zealand Arbitration Act 1996, Sch. 1, art. 17L.

33  ICC Rules, Art. 33.

34  Model Law, Art. 17B(1): ‘Unless otherwise agreed by the parties, a party may, without notice to any other party, make a request for an interim measure together with an application for a preliminary order directing a party not to frustrate the purpose of the interim measure requested.’

35  Jurisdictions that have adopted legislation based on the revised UNCITRAL Model Law allowing for ex parte preliminary orders include Australia, Colombia, Costa Rica, Hong Kong, Ireland, Lithuania, Panama, Peru, and Rwanda.

36  See also ICDR Rules, Art. 24(3); SCC Rules, Art. 32(5); ICC Rules, Art. 29(7); SIAC Rules, Art. 26(3); HKIAC Rules, Art. 23(9); LCIA Rules, Art. 9B, para. 9.12.

37  Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, at 367–368. See also Patel v Patel [1999] All ER (D) 327 (CA).

38  Swiss PIL, Ch. 12, s. 183(1) and (2). In France, in a 2012 decision, the Reims Cour d’Appel held that, after the tribunal has been constituted, applications for provisional or conservatory measures or measures relating to the taking of evidence can no longer be made to domestic courts: see SA Clinique de Champagne v Enrico Ambrosini, Reims Cour d’Appel, 1ere Ch. Civ., 3 July 2012, [2012] Rev Arb 681.

39  See paragraph 7.17.

40  This appears to be the thinking behind the ICC Arbitration Rules, Art. 28(2) of which provides that the parties may apply to any competent judicial authority either ‘[b]‌efore the file is transmitted to the arbitral tribunal’ (that is, before the arbitral tribunal is in a position to make an order), or ‘in appropriate circumstances even thereafter’.

41  Schwartz, ‘The practices and experience of the ICC Court’, in ICC (ed.) Conservatory and Provisional Measures in International Arbitration, ICC Publication No. 519 (ICC, 1993), p. 59.

42  In an ICC arbitration in which one of the authors was involved (ICC Case No. 11681), the parties had to consider whether to apply to the tribunal or to the local courts of the respondent for an interim measure. Given that the applicable law and language were foreign to the local court, and that the measure sought to stop an important commercial transaction of an entity local to the court, a decision was taken to apply to the arbitral tribunal. The measure was awarded and the respondent complied voluntarily.

43  Swiss PIL, s. 184(2).

44  Under Arbitration Act 1996, s. 2(3), this section of the Act (and that concerning court powers exercisable in support of arbitral proceedings) applies even if (a) the seat of the arbitration is outside England, Wales, or Northern Ireland, or (b) no seat has been designated or determined.

45  Arbitration Act 1996, s. 44(1).

46  The section reads:

The arbitrators selected either as prescribed in this title or otherwise, or a majority of them, may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. … Said summons shall issue in the name of the arbitrator or arbitrators, or a majority of them, and shall be signed by the arbitrators, or a majority of them, and shall be directed to the said person and shall be served in the same manner as subpoenas to appear and testify before the court; if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.

47  In the United States, it is not entirely clear whether the Federal Rules of Civil Procedure (FRCP), applicable to US courts, impose a territorial limit on an arbitral tribunal’s power to subpoena witnesses. The relevant provision is r. 45(b)(2), under which a subpoena ‘may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena’. The view taken by the Eighth Circuit is that such territorial limit is not applicable to arbitral tribunals: In re Security Life Insurance Co. of America 228 F.3d 865, 872 (8th Cir. 2000). However, the Second Circuit and a district court in Illinois have concluded that r. 45(b)(2) does impose such a limit, because a US court cannot enforce a subpoena served outside its jurisdiction: Dynegy Midstream Services v Trammochem 451 F.3d 89, 96 (2nd Cir. 2006); Alliance Healthcare Services, Inc. v Argonaut Private Equity, LLC 804 F.Supp.2d 808, 811 (ND Ill. 2011).

48  See Life Receivables Trust v Syndicate 102 at Lloyd’s of London 549 F.3d 210, 216–217 (2nd Cir. 2008); Hay Group, Inc. v EBS Acquisition Corporation, 360 F.3d 404, 410 (3rd Cir. 2004). In both, it was held that FAA, § 7, does not authorise arbitrators to compel pre-hearing document discovery from entities not party to the arbitration proceedings.

49  See Life Receivables Trust, at 218.

50  See Stanton v Paine Webber Jackson Curtis Inc. 685 F.Supp. 1241 (SD Fla. 1988); Meadows Indemnity Co. Ltd v Nutmeg Insurance Co. 157 FRD 42 (MD Tenn. 1994). In both, it was held in favour of the arbitrators’ power to order subpoenas of third-party documents.

51  See COMSAT Corporation v NSF 190 F.3d 269, 276 (4th Cir. 1999), holding that, at a minimum, a party must demonstrate that the information it seeks is otherwise unavailable.

52  English Arbitration Act 1996, s. 44(3).

53  Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618.

54  National Broadcasting Co., Inc. v Bear Stearns & Co., Inc. 165 F.3d 184 (2nd Cir. 1999); Republic of Kazakhstan v Biedermann International 168 F.3d 880 (5th Cir. 1999).

55  542 US 241, 124 S.Ct 2466, 159 L.Ed.2d 355 (2004).

56  Ibid., at 248–249.

57  469 F.Supp.2d 1221 (ND Ga. 2006).

58  Ibid., at 1230.

59  See, e.g., In re Consorcio Ecuatoriano de Telecomuniciaciones SA v JAS Forwarding, Inc. 685 F.3d 987 (11th Cir. 2012); OJSC Ukrnafta v Carpatsky Petroleum Corporation, Case No. 3.09 MC 265 (JBA), 2009 WL 2877156 (D. Conn., 27 Aug. 2009); In Re Application of Chevron Corporation 709 F.Supp.2d 283 (SDNY 2010); In re Application of Mesa Power Group LLC, Case No. 2:11-mc-270-ES, 2013 WL 1890222 (DNJ, 19 April 2013); Ecuador, et al. v Stratus Consulting, Inc., Case No. 13-cv-01112-REB-KLM, 2013 WL 2352425 (D. Colo., 29 May 2013); Republic of Ecuador v Bjorkman 801 F.Supp.2d 1121 (D. Col., 2011); In re Application of the Republic of Ecuador 2011 WL 4434816 (ND Cal., 2011).

60  In re Oxus Gold plc, Case No Misc 06-82-GEB, 2007 US Dist. LEXIS 24061 (DNJ, 2 April 2007).

61  El Paso Corporation v La Comision Ejecutiva Hidroelectrica Del Rio Lempa 341 Fed.Appx 31 (5th Cir. 2009); Norfolk Southern Corporation v General Securities Insurance Co. 626 F.Supp.2d 882 (ND Ill. 2009); In re Operadora DB Mex., SA 2009 US Dist. LEXIS 68091, at [18]–[20] (MD Fla., 1 August 2009); In re Application by Rhodianyl SAS 2011 U.S. Dist. LEXIS 72918, at [26], [43] (D. Kan., 25 March 2011); In re Dubey 2013 US Dist. LEXIS 83972, at [7.15] (CD Cal., 7 June 2013).

62  Rutledge, ‘Discovery, judicial assistance and arbitration: A new tool for cases involving US entities?’ (2008) 25 J Intl Arb 171.

63  Fellas, ‘Using US courts in aid of arbitration proceedings in other countries’ (2008) 11 Intl ALR 3.

64  Wessal, ‘A tribunal by any other name: US discovery in aid of non-US arbitration’ (2005) 8 Intl ALR 139.

65  In fact, the court in Roz Trading did restrict the scope of the discovery granted to the applicant: In re Roz Trading Ltd. 469 F.Supp.2d 1221, 1230 (ND Ga. 2006).

66  Recent decisions have sought to impose certain contours on applications under § 1782. See In re Application of Caratube International Oil Co., LLP 730 F.Supp.2d 101 (DDC 2010), holding that discovery should be denied where it appears that the party is attempting to circumvent agreed upon procedures; In re Application of Thai-Lao Lignite (Thailand) Co., Ltd. 821 F.Supp.2d 289 (DDC 2011), holding that, for discovery to be allowed in enforcement proceedings, there must be sufficient contacts in order to establish jurisdiction; Thai-Lao Lignite (Thailand) Co., Ltd., et al. v Laos 2012 WL 966042 (SDNY 2012), holding that foreign governments are not ‘persons’ under § 1782 and therefore cannot be compelled to produce witnesses, documents, or any other discovery materials; In re the Republic of Ecuador 2010 U.S. Dist. LEXIS 132045 (ND Cal., 1 December 2010), holding that foreign governments can invoke § 1782; CE International Residential Holdings, LLC v SA Minerals Ltd. Partnership, et al., Case No. 12-CV-08087 (CM)(SN), 2013 WL 2661037 (SDNY, 12 June 2013), noting that comity concerns can prevent discovery requested in domestic courts.

67  See Chapter 5.

68  In fact, there were three tunnels: two running tunnels (for the trains) and a service tunnel.

69  The English Arbitration Act 1975.

70  Channel Tunnel Group v Balfour Beatty Ltd, Commercial Court, 27 November 1991.

71  Channel Tunnel Group v Balfour Beatty Ltd, Court of Appeal, 22 January 2002.

72  Channel Tunnel Group v Balfour Beatty Ltd [1993] AC 334.

73  Ibid., at 367.

74  The former English arbitration legislation was amended to take account, inter alia, of some of the difficulties that the courts faced in the Channel Tunnel case. The Court of Appeal, which would have been prepared to grant an injunction, considered that it had no power to do so, because the arbitration agreement provided for arbitration in Brussels. The English Arbitration Act 1996, s. 44 (2)(e), provides that the powers of the court that are ‘exercisable in support of arbitral proceedings’ include the granting of an interim injunction, and this section of the Act applies even if the seat of the arbitration is outside England (s. 2(3)). There may be resort to the courts if, or to the extent that, the arbitral tribunal or any other person empowered by the parties to decide the case ‘has no power or is unable for the time being to act effectively’ (s. 44(5)).

75  For different approaches to the granting of court injunctions pending arbitration, see NCC International AB v Alliance Concrete Singapore Pte Ltd, Case No. CA 47/2007, Singapore Court of Appeal, 26 February 2008; Mobil Cerro Negro Ltd v Petroleos De Venezuela SA, High Court of Justice, Queen’s Bench Division (Commercial Court), 18 March 2008, [2008] Folio 61; Fisichella Motor Sport International SpA v Héctor, Audencia Provincial, Barcelona, 4 March 2010; Toyo Tire Holdings of Americas, Inc. v Continental Tire North America, Inc. and ors, Case No. 10-55145, United States Court of Appeals for the Ninth Circuit, 17 June 2010; ENRC Marketing AG and ors v OJSC ‘Magnitogorsk Metallurgical Kombinat’, Case No. NSD 2110 of 2011, Federal Court of Australia, 25 November 2011; Petrobras v Tractebel Energia & MSGAS, Case No. AgRg MC 19.226-MS (2012/0080171-0), Superior Court of Justice of Brazil, 29 June 2012; Discovery Geo Corporation v STP Energy Pte Ltd, High Court of New Zealand, 19 December 2013.

76  For example, in a 2010 decision, a Paris court held that French courts cannot interfere with arbitral proceedings: SA Elf Aquitaine and Total v Mattei, Lai. Kamara and Reiner, Paris Court of First Instance, 6 January 2010. While in less categorical terms, US and English courts have expressed great reluctance to issue anti-arbitration injunctions: see Reisman and Iravani, ‘The changing relation of national courts and international commercial arbitration’ (2010) 21 Am Rev Intl Arb 33.

77  (1985) 8 European Commercial Cases 101.

78  Quoted in Himpurna California Energy Ltd (Bermuda) v Republic of Indonesia (2000) XXV YBCA 11, [169].

79  Ibid., at [184].

80  Ibid., at [181].

81  Salini Construttori Spa v Federal Democratic Republic of Ethiopia, Addis Ababa Water and Sewerage Authority, ICC Case No. 10623, 7 December 2001, available online at http://italaw.com/documents/Salini_v._Ethiopia_Award.pdf, at [128].

82  Ibid., at [129].

83  Ibid., at [130].

84  Ibid., at [142] (emphasis added).

85  Ibid., at [143].

86  Ibid., at [174].

87  Decision of the Fourth Chamber of the Camara Contencioso-Administrativo Federal, 2 July 2007.

88  Société Générate de Surveillance SA (SGS) v Islamic Republic of Pakistan, Pakistan Supreme Court, 3 July 2002. For a detailed analysis of the case, see Lau, ‘Note on Société Générale de Surveillance v Pakistan’ (2003) 19 Arb Intl 179.

89  Saville, ‘The Denning Lecture 1995: Arbitration and the courts’ (1995) 61 Arbitration 157, at 157.

90  Reymond, ‘The Channel Tunnel case and the law of international arbitration’ (1993) 109 LQR 337, at 341 (emphasis added).