The Role of Courts in the Arbitrator Selection Process – Part 2

, , , and | May 16, 2018 | International Commercial and Investor-State Arbitration

This is the second post presenting Sections from the 2018 International Commercial and Investment Arbitration Annual Meeting draft that deals with the roles that courts might play during the pendency of international arbitral proceedings. The previous post presented the Black Letter and Comments from § 3-2, Court Appointment and Removal of Arbitrators.

Black Letter and Comments from Tentative Draft No.6:

§ 3-3. Court-Ordered Provisional Relief in Aid of Arbitration

Unless agreed otherwise, courts may, upon request and in an appropriate case, order provisional relief in support of an international arbitral proceeding.

Comment:

a. Generally. This Section addresses the award of various types of provisional remedies, such as attachments, preliminary injunctions, and orders preserving evidence, by courts seeking to aid or support an international arbitral proceeding. The Restatement generally uses the phrase “provisional relief” to refer to such remedies when ordered by a court and “interim measures” when ordered by an arbitrator. See § 1-1, Reporters’ Note to Comment q, supra. At a minimum, of course, for a court to order provisional relief the court must be competent to do so—i.e., it must have subject matter and personal jurisdiction. Authority of courts to order provisional relief in aid of arbitration. Neither the New York Convention nor the Panama Convention expressly addresses the authority of courts to order interim relief in support of an international arbitral proceeding. With the exception of FAA § 8 (dealing with admiralty cases), the FAA likewise does not address the issue. A few U.S. courts have construed this silence as implicitly denying courts the authority to order provisional relief in aid of arbitration. The Restatement rejects that position, concluding that neither the New York or Panama Convention, nor the FAA, precludes courts from ordering provisional relief in support of an international arbitral proceeding. Permitting courts to order provisional relief, in appropriate circumstances and when otherwise authorized by law, promotes rather than interferes with the arbitration process.

The authority to order provisional relief in support of an international arbitral proceeding is not limited to courts in the arbitral seat. Certainly in some circumstances, such as when assets to be attached are located outside the arbitral seat, courts where the assets are located are in the best position to grant provisional relief. But in exercising their discretion to award provisional relief, those courts should respect the authority of courts in the seat and be cautious so as not to interfere with actions of those courts.

b. Authority of courts to order provisional relief in aid of arbitration. Neither the New York Convention nor the Panama Convention expressly addresses the authority of courts to order interim relief in support of an international arbitral proceeding. With the exception of FAA § 8 (dealing with admiralty cases), the FAA likewise does not address the issue. A few U.S. courts have construed this silence as implicitly denying courts the authority to order provisional relief in aid of arbitration. The Restatement rejects that position, concluding that neither the New York or Panama Convention, nor the FAA, precludes courts from ordering provisional relief in support of an international arbitral proceeding. Permitting courts to order provisional relief, in appropriate circumstances and when otherwise authorized by law, promotes rather than interferes with the arbitration process.

The authority to order provisional relief in support of an international arbitral proceeding is not limited to courts in the arbitral seat. Certainly in some circumstances, such as when assets to be attached are located outside the arbitral seat, courts where the assets are located are in the best position to grant provisional relief. But in exercising their discretion to award provisional relief, those courts should respect the authority of courts in the seat and be cautious so as not to interfere with actions of those courts.

c. Standards for court-ordered provisional relief. A court applies the same standards to requests for provisional relief in support of an international arbitral proceeding as it does to other requests for provisional relief. An important consideration, however, is whether the arbitral tribunal can grant the requested relief. If the arbitral tribunal has been constituted (or emergency arbitrator appointed) and is able to grant the relief sought, a court generally should leave the matter for the tribunal to resolve. Conversely, a court is the proper body, in appropriate cases, to issue provisional relief directed at persons not party to the arbitration or in other circumstances in which the arbitral tribunal is unable to act.

d. Court enforcement of arbitrator-ordered interim measures. Whether an arbitrator has authority to award interim measures is not within the scope of the Restatement, although institutional arbitration rules commonly provide such authority. An arbitral award of interim measures is presumptively an “award” within the meaning of § 1‑1(a), supra. See Comment q to § 1-1, supra. As long as the presumption is not rebutted, court enforcement of arbitrator-ordered interim measures is governed by Chapter 4 of the Restatement.

 

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George A. Bermann

Reporter, Restatement of the Law, The U.S. Law of International Commercial Arbitration

George A. Bermann is an active international arbitrator in commercial and investment disputes; co-author of the UNCITRAL Guide to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; chair of the Global Advisory Board of the New York International Arbitration Center (NYIAC); co-editor-in-chief of the American Review of International Arbitration; and founding member of the governing body of the ICC Court of Arbitration and a member of its standing committee.

Jack J. Coe, Jr.

Associate Reporter, Restatement of the Law, The U.S. Law of International Commercial Arbitration

Jack J. Coe, Jr. is the Faculty Director of the LLM Concentration in International Commercial Arbitration at the Pepperdine School of Law. Professor Coe has chaired the Disputes Division of the ABA International Law Section, and the Academic Council of the Institute for Transnational Arbitration. Professor Coe consults with governments and multinational corporations in relation to commercial and direct investment disputes under the treaties and has both argued international arbitral claims and acted as arbitrator in ad hoc and institutional arbitrations. He is on the arbitrator panel of the International Centre for Dispute Resolution (ICDR) of the American Arbitation Association. His consultancies and arbitral appointments have involved him in a wide variety of commercial topics including production sharing agreements, mining joint-ventures, patent cross-licensings and domain name management. He has authored numerous books and articles on arbitration, private international law, and related topics.

Christopher R. Drahozal

Associate Reporter, Restatement of the Law, The U.S. Law of International Commercial Arbitration

Chris Drahozal is an internationally known scholar whose writing focuses on the law and economics of dispute resolution, particularly arbitration. Drahozal is the author of multiple books and numerous articles on commercial arbitration. He has given presentations on the subject in Europe, Asia, Canada, and the United States, and has testified before Congress and state legislatures on arbitration matters as well. He has previously served as a Special Advisor to the Consumer Financial Protection Bureau, assisting with its study of arbitration clauses in consumer financial services contracts

Catherine A. Rogers

Associate Reporter, Restatement of the Law, The U.S. Law of International Commercial Arbitration

Catherine A. Rogers is a scholar of international arbitration and professional ethics at Bocconi University, with an appointment as a Research Proessor at University of California Law, San Francisco. Her scholarship focuses on the convergence of the public and private in international adjudication, the intersection of markets and regulation in guiding professional conduct, and on the reconceptualization of the attorney as a global actor. Among other appointments, she sits on the International Advisory Board of the Vienna International Arbitration Centre and the Oxford University Press Investment Claims Advisory Board. She co-chaired the ICCA-Queen Mary Task Force on Third-Party Funding in International Arbitration, and regularly engages in capacity-building activities to promote international dispute resolution and the rule of law in developing and emerging economies.

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