Provisional Measures in Aid of Arbitration

Abstract

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may, in advance, ensure that assets or evidence is secured in advance, or that the other party is required to take steps to secure the status quo. This makes the availability of provisional measures granted by either arbitral tribunals or by courts important to the arbitration process. In this chapter I consider the existing legal framework for such provisional measures in aid of arbitration. I give particular attention to the source of the rules that might govern such relief related to international commercial transactions and the arbitration of disputes they may generate. These include the New York Convention, the applicable lex arbitri, institutional arbitration rules, and the arbitration contract. I consider how these sources do or do not provide a comprehensive and coherent framework for effective dispute resolution – including especially the effective satisfaction of any resulting arbitral award. I then consider some of the ways in which the arbitration clause may be drafted to specifically take into account the often unanticipated, but always possible, need for provisional measures, providing ten rules for consideration of provisional measures when drafting an arbitration agreement.

Keywords: Arbitration, contracts, New York Convention, UNCITRAL, provisional measures, injunctions, attachments, discovery, taking of evidence, comparative law, international law, private international law, international economic law, conflict of laws

JEL Classification: K19, K33