International Dispute Resolution
The demand for interim relief in arbitral proceedings has increased along with the popularity of international arbitration. Interim relief protects a party's rights pending the resolution of a dispute. Common forms of interim relief include orders or awards for the production of evidence, the preservation of the status quo, and injunctions.
Traditionally, instead of seeking interim relief through an arbitral process, parties have applied to their national courts for such relief. Generally, local rules of arbitration preserve a court's authority to order or award interim relief while at the same time allowing the arbitral tribunal to retain jurisdiction to determine the substantive dispute. National courts are often in a superior position to provide interim relief due to the issues of enforceability surrounding arbitration awards. Indeed, there are certain situations where a national court is the only viable option for a party seeking interim relief, particularly in cases where the interim relief affects the rights of third parties.
When a party seeks relief through a court system, the party may sacrifice many of the advantages of international arbitration. In recent years, nearly all international arbitration institutions have sought to make express allowance in their rules to better accommodate the ability of arbitral tribunals to award interim relief.
The International Chamber of Commerce (the ICC) is one of the oldest and most well-known arbitral institutions and its rules are widely used in international arbitration. The ICC has taken steps toward ensuring a party would be able to seek emergency measures of protection. According to the rules of the ICC, an emergency arbitrator may be appointed in order to deal with matters of interim relief. A party is able to seek relief before an arbitral tribunal is in session if the party is able to demonstrate the urgency of a matter. The party is thus provided with a relatively quick alternative to state courts for seeking interim measures, without the delay that sometimes accompanies the appointment process of the arbitral tribunal.
Securing interim relief through the ICC can be fast, unbiased and may cover multiple jurisdictions, which means many parties may actually prefer to seek relief through the ICC rather than a local court. According to the language of Article 29(2) of the ICC Rules of Arbitration, parties are obligated to comply with any orders made by an emergency arbitrator. An emergency order granted by an arbitrator may be enforced by a local court where a party refuses to comply, and where the local arbitration laws allow for enforcement of interim arbitral awards. In addition, the arbitration tribunal is given express authority under Article 29(4) of the ICC Rules to decide any claims arising out of the breach of any interim order.
The International Centre for Dispute Resolution (ICDR) is another well-known arbitral institution. The ICDR international rules have had similar emergency measures available since 2006 and, in that time, the ICDR reports that they have had 28 rulings under its emergency arbitrator provisions, with an average decision time of 21 days from filing.
A recent example of an arbitration institution trying to make it easier for parties to obtain interim relief from an arbitral tribunal arises out of the July 2013 Hong Kong Arbitration (Amendment) Ordinance (HKAAO). Through the HKAAO, Hong Kong's Administered Arbitration Rules changed such that there are now clearer procedures for emergency applications for interim relief and more well-defined powers of emergency arbitrators.
If a matter is deemed to be urgent, the rules specify that an emergency arbitrator will be appointed within two days after receipt of an application. The emergency arbitrator will then make an order or award within 15 days, a period which may be extended by agreement of the parties.
With the HKAAO, emergency relief granted inside Hong Kong is enforceable in the same manner as an order or direction of the court. However, relief granted outside Hong Kong will only be approved if the party seeking to enforce the relief can demonstrate that it is temporary and designed to serve one of six delineated purposes. The ability of a party to enforce emergency relief therefore varies greatly if it was not granted inside Hong Kong. These types of enforcement issues need to be considered when making the decision to apply for interim relief from an arbitral tribunal or from a local court.
The potential scope of interim relief is highlighted in a recent interim award granted by a tribunal formed under the rules of the ICC. In the arbitration, American Energy Group, Ltd. (AEG) filed a claim seeking an order which would void a 2003 stock purchase agreement pursuant to which the parent of Hycarbex-American Energy, Inc. (Hycarbex) acquired the stock of Hycarbex from AEG. While the original claim was filed in 2012, the arbitration hearing is not scheduled to take place until 2014. The September 2013 order requires Hycarbex, Hycarbex Asia Pte. Ltd. and Hydro Tur, Ltd., within 14 days of the order, to produce to AEG the records of production and sales from the Yasin petroleum concession in Pakistan from any time after August 2011. Significantly, the interim award also requires the companies to pay AEG 18% of all sale proceeds beginning August 2011. In addition, the order also requires, if the mentioned companies fail to produce to AEG the required records, that they pay or potentially pay to AEG certain specified amounts pending the determination of actual sale proceeds from the actual records. The order is not appealable to a court or other tribunal under the terms of the parties' arbitration agreement and the ICC arbitration rules.
The use of interim measures of protection has proliferated in recent times. It is necessary to continue to refine the system for the provision of such measures in order to make arbitrations more effective. The efforts of arbitration institutions to increase the availability and enforceability of interim relief granted outside of the state-court setting are helping to achieve this goal.