Authors: Peter J. W. Sherwin and Douglas C. Rennie*
Published: October 2010
Judicial Granting of Interim Relief
Description: Interim relief is critical in any form of dispute resolution. Parties must have the option to seek interim measures, such as preliminary injunctions and attachments, where their adversaries threaten to take action that cannot be undone by after the fact damages. Parties in international arbitrations are no exception. For those parties, the institutional arbitration rules that they choose will have a determinative impact on whether they will be able to obtain meaningful interim relief. The international business community has long considered international arbitration preferable to litigation in national courts for a variety of reasons, including neutrality of forum, privacy, speed, lower costs, and enforcement. There are a number of factors, however, that complicate a party’s ability to obtain meaningful interim relief in international arbitration proceedings. Among these are the time needed to get a decision maker in place to hear the application, the powers of that decision maker to award interim relief, and the likelihood that an adverse party will comply with such an award. For these reasons, the lack of meaningful interim relief has been justifiably called the “Achilles’ heel” of international arbitration. Although parties could instead resolve their disputes in national courts, where interim relief is generally available, in doing so, they would sacrifice the advantages of international arbitration.
In recent years, international arbitration institutions have sought to respond to this problem by enacting rules, procedures, and other textual guidelines to provide parties with various means of obtaining interim or other emergent relief within the arbitral process. In this article, we analyze how several different sets of international arbitration rules address the issues associated with interim relief and how a tribunal would treat several common scenarios involving an application for interim relief under those rules.
*Peter J.W. Sherwin is a partner at Proskauer Rose LLP, where he is the head of the International Arbitration Group. Douglas C. Rennie is the Visiting Legal Skills Fellow at New York Law School. We thank Anne Goldstein, Michael Botein, Amy Newcombe, Amanda Foster, Noah Gitterman, Anthony Wladyka, and Kevin Maillard for their helpful comments and suggestions. We are also indebted to M. Todd Mobley, J.D. candidate 2010, University of California, Berkeley Boalt Hall School of Law, for his invaluable assistance.