Abstract

http://ssrn.com/abstract=1905699
 


 



Party Autonomy and Interim Measures in International Commercial Arbitration


Christopher R. Drahozal


University of Kansas School of Law

August 5, 2011

Albert Jan van den Berg, INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION: IMPORTANT CONTEMPORARY QUESTIONS, pp. 179-189, Kluwer Law International, 2003

Abstract:     
Legal regimes differ on the authority of courts and arbitrators to grant interim measures in support of arbitration proceedings. Some arbitration laws authorize both courts and arbitrators to award interim relief (based on the parties’ agreement or otherwise); some laws deny arbitrators such authority, limiting it to the courts; some laws deny the courts such authority once the arbitrators have been selected; while others are unclear whether and under what circumstances courts may make such orders. The fundamental question is an institutional one: Which is the appropriate party to grant interim measures—the court, the arbitration panel, or both?

This paper argues that the principle of party autonomy should determine who has the authority to award interim relief. The argument is twofold. First, empirical examination of contracting practices—what parties actually agree to in their arbitration agreements concerning interim measures—may provide important insights into how authority over interim measures should be allocated. Second, in translating those insights into statutory provisions, drafters and legislators should preserve party autonomy by permitting parties to contract around the statutory provisions, in other words, by making those provisions default rules rather than mandatory rules.

Number of Pages in PDF File: 11

Keywords: Arbitration, Dispute Resolution, Contracts

JEL Classification: K12, K41

Accepted Paper Series


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Date posted: August 5, 2011  

Suggested Citation

Drahozal, Christopher R., Party Autonomy and Interim Measures in International Commercial Arbitration (August 5, 2011). Albert Jan van den Berg, INTERNATIONAL COUNCIL FOR COMMERCIAL ARBITRATION: IMPORTANT CONTEMPORARY QUESTIONS, pp. 179-189, Kluwer Law International, 2003. Available at SSRN: http://ssrn.com/abstract=1905699

Contact Information

Christopher R. Drahozal (Contact Author)
University of Kansas School of Law ( email )
Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9239 (Phone)
785-864-5054 (Fax)
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