Interim Measures in International Commercial Arbitration

Name: Interim Measures in International Commercial Arbitration | A Comparative Review of the Indian Experience
Brand: Wolters Kluwer
Price: 166.99 EUR
Availability: OnlineOnly

A Comparative Review of the Indian Experience

Ajar Rab(Autor*in)

Wolters Kluwer (Verlag)

Erschienen am 9. August 2022

736 Seiten

E-Book

ePUB mit Adobe-DRM

Systemvoraussetzungen

978-94-035-3755-9 (ISBN)

166,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für ePUB mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Interim measures by courts as well as tribunals are often critical to succeed in arbitration proceedings and to effectively safeguard the rights of parties pending the final adjudication of their dispute. This important book comprises a comprehensive review of interim measures in international commercial arbitration granted by courts and tribunals across jurisdictions that have adopted the UNCITRAL Model Law to critically assess the practical fault lines in the Indian arbitration regime.The book provides an in-depth analysis of the following:all reported judgments of the Indian Supreme Court and the High Courts from 1993 to 2022 on issues concerning interim measures;practical application of the UNCITRAL Model Law (and the revisions in 2006) by national arbitration statutes of over 80 jurisdictions with respect to interim measures;comparative practice and jurisprudence on interim measures in international commercial arbitration;rules of major arbitral institutions on the power and scope of interim measures granted by tribunals;detailed analysis of different types of interim measures, including anti-suit, anti-arbitration injunctions, security for costs, and interim measures in aid of foreign-seated arbitrations, the standards to be applied, and the burden of proof to be demonstrated for each type of measure; andissues of enforcement of interim measures in domestic, international, and foreign seated arbitrations. The current position of law in India and the problems plaguing the country's Arbitration and Conciliation Act 1996 (IAA), as amended in 2015 with respect to interim measures, are brought into direct comparison with other Model Law jurisdictions, offering an analysis of case laws, practical insights and cogent suggestions based on best practices that can be adopted by parties and tribunals. The Appendices provide a detailed list of statutory provisions of countries that have adopted the Model Law along with rules of major arbitral institutions on interim measures. The author not only describes the current position of law in India and other Model Law jurisdictions on interim measures but also reveals a comprehensive understanding of the requests for interim measures, and their enforcement in domestic, international, and foreign seated arbitrations. This book engages in a comprehensive and clear discussion on the fine line between court assistance and court intervention, especially in the case of interim measures and suggests draft provisions that India and other jurisdictions can adopt in order to align with the 2006 revisions to the Model Law to foster certainty, predictability, and efficiency in case of interim measures in international commercial arbitration.

Weitere Details

Weitere Ausgaben

Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Dedication&
About the Author
Table of Contents
List of Abbreviations
Foreword
Note
Acknowledgements
Introduction
Part I Court-Ordered Interim Measures
Chapter 1 The Contours of 'Interim Measures'
1. Definition of 'Interim Measures' in Arbitration
2. Nature of 'Interim Measures'
3. Classification of 'Interim Measures'
3.1. Reference to an Intervening Period
3.2. Reference to a Measure of Protection
Chapter 2 A Brief History of Interim Measures and Arbitration in India
1. Arbitration in India
1.1. The Arbitration Act of 1940
1.2. The Arbitration and Conciliation Act of 1996
1.3. The Arbitration and Conciliation Amendment Bill 2003
1.4. The Saraf Committee
1.5. The Arbitration and Conciliation (Amendment) Act 2015
1.6. The Arbitration and Conciliation (Amendment) Act 2019
1.7. The Arbitration and Conciliation (Amendment) Act 2021
2. The Specific Relief Act 1963
2.1. The 2018 Amendment to Relief Act
2.2. Removal of the 'Adequacy Test'
Chapter 3 Court-Ordered Interim Measures Before Arbitration Proceedings
1. Court Assistance and Intervention
1.1. Minimal Court Intervention
1.2. The Lack of Uniformity in Arbitration Statutes
2. The Need for Court-Ordered Interim Measures
3. The Power to Grant Interim Measures
3.1. Principle of 'Compatibility' and 'Priority'
3.2. Article 9 of the Model Law
3.2.1. Silence of the Model Law on the Court's Power
3.3. Article 17J of the Model Law
3.3.1. 'Specific Features of International Arbitration'
3.3.2. Equal Powers of the Court and Arbitral Tribunal
3.3.3. Superiority of Courts
3.3.4. Hybrid Approach
3.4. Power of Courts in India
3.4.1. Divergence from the Model Law
3.4.2. Different Approaches by Courts
3.4.3. Application of The CPC and Specific Relief Act
3.4.4. Application of Section 94 of the CPC
3.4.5. Types of Interim Measures under the CPC
3.4.6. Inherent Power of the Court
3.4.7. Applicability of the CPC and Relief Act to Section 9 of the IAA
3.4.8. The Problems with the CPC and Relief Act
3.4.9. Independent Provision
3.4.10. Hybrid Approach
3.5. Adopting Article 17J of the Model Law in India
4. Scope of the Court's Power
4.1. The Need for a Guiding Provision
4.2. Before the Commencement of Arbitration Proceedings
4.3. Prerequisites for Approaching the Court
4.3.1. Prima Facie Valid Arbitration Agreement
4.3.2. Arbitrability
4.3.3. Signatories to the Arbitration Agreement
4.3.4. 'Proposed Party'
4.3.5. Existence of a Dispute
4.3.6. Intention to Arbitrate
4.3.7. No Requirement to Serve a Notice of Arbitration
4.3.8. Registration and Stamp Duty
4.4. Jurisdiction of Courts
4.4.1. 'Seat' in Domestic Arbitration
4.4.2. Neutral Seat in Domestic Arbitration
4.4.3. Choosing a Seat in Domestic Arbitration
4.4.4. Statutorily Fixing the Seat
4.4.5. Jurisdiction at the Seat
4.4.6. Jurisdiction Other Than at the Seat
4.4.7. Jurisdiction When the Seat Is 'Indeterminate'
4.4.8. Resolving the Question of Jurisdiction
4.4.9. Test for Exercising Jurisdiction
4.4.10. 'Seat' in International Arbitration
4.4.11. Principal Civil Court
5. Standards for Grant of Interim Measures Before Arbitration Proceedings
5.1. Prima Facie Case
5.1.1. Meaning of Prima Facie
5.1.2. Prejudging the Merits
5.1.3. The Blurred Lines of Prima Facie Case in India
5.1.4. Mandatory Injunction
5.1.5. 'Prima Facie Case' for Grant of Interim Measures in Arbitration
5.2. Balance of Convenience
5.3. Irreparable Harm
5.4. Other Considerations
5.5. Articles 17A and 17J of the Model Law: A Guide Towards the Right Standard
6. Types of Measures
6.1. Comparing the Model Law with Section 9 of the IAA
6.2. Maintain or Restore Status Quo
6.2.1. Difference Between Maintaining and Restoring Status Quo
6.2.2. Appointment of Receiver
6.2.3. Restoration of Contracts
6.3. Harm to the Arbitral Process
6.4. Preservation of Assets
6.4.1. Attachment Orders
6.4.2. Interim Payment
6.4.3. Garnishee Orders
6.5. Preservation of Evidence
6.6. Reconciling the List under Section 9 of the IAA with the Model Law
7. Limitations
7.1. Specific Performance
7.2. Contract Is Determinable
7.3. Damages Are Adequate Relief
7.4. No Stay of Arbitration Proceedings
7.5. Third Parties
7.5.1. Measures Having an Effect on Third Parties
7.5.2. Application for Interim Measures by a Third Party
8. Ex parte Orders
8.1. Standard for Grant of Ex Parte Orders
9. Obligation to Form a Tribunal in Ninety Days
9.1. Section 9(2) of the IAA
9.2. Commencement of Ninety days
9.3. Expiry of Ninety Days
9.3.1. Automatic Expiry of Interim Measure
9.3.2. Accountability of the Party Requesting the Interim Measure
10. The Validity of Interim Measures Granted by the Court after Formation of the Tribunal
11. Safeguards
11.1. Suspension, Modification, or Termination
11.2. Security for Interim Measures
11.3. Disclosure
11.3.1. Failure to Disclose
11.3.2. The Need for Full Disclosure
11.4. Costs and Damages
12. Appeal
12.1. Standard of Review
12.2. Appeal after Formation of the Arbitral Tribunal
12.3. Furnishing Security at the Time of Filing an Appeal
12.4. Appeal Against an Ad Interim Order
Chapter 4 Court-Ordered Interim Measures During and after Arbitration Proceedings
1. Need for Interim Measures During Arbitration Proceedings
2. Power to Grant Interim Measures During Arbitration Proceedings
2.1. Section 9(3) of the IAA
2.2. Aligning with the Model Law
2.3. International Practice
2.4. Emergency Arbitration and Jurisdiction of Courts
3. Scope of the Power During Arbitral Proceedings
3.1. 'Once the Arbitral Tribunal Has Been Constituted'
3.1.1. Statutory Arbitrations
3.1.2. Acceptance of Appointment
3.2. The Ouster of Jurisdiction of the Court
3.2.1. Meaning of 'Shall Not Entertain'
3.2.2. Lack of a Provision for Transfer of Pending Applications
3.3. Deemed to Be an Application Before the Arbitral Tribunal
3.4. Demarcating the Line for Court Intervention
3.5. Meaning of 'Efficacious'
3.5.1. Narrow Scope of Power
4. Standards for Grant of Interim Measures During Arbitration Proceedings
5. Safeguards
6. Interim Measures after Passing of the Award but Before Enforcement
6.1. Need for Interim Measures after Passing of the Award
6.2. Power of the Court after Passing of the Award
6.3. Practical Considerations after the 2015 Amendment
6.4. Removal of the Waiting Period
Chapter 5 Interim Measures in Aid of Foreign Seated Arbitrations
1. The Need to Support Foreign Seated Arbitrations
2. The Power to Grant Interim Measures in Aid of Foreign Seated Arbitrations
2.1. Article 17J of the Model Law
2.2. The Law Before the 2015 Amendment
2.2.1. The First Steps in Marriot International
2.2.2. The Landmark Decision in Bhatia
2.2.3. The Aftermath of Bhatia
2.2.4. Legislative Reforms Post Bhatia
2.2.5. Undoing Bhatia: The Landmark Decision in BALCO
2.3. The 2015 Amendment
2.3.1. Issues after the 2015 Amendment
2.3.2. Interim Measures During Foreign Seated Arbitration Proceedings
3. Scope of Interim Measures In Aid of Foreign Seated Arbitrations
3.1. 'Inappropriate to do so'
4. Standards for Grant of Interim Measures in Aid of Foreign Seated Arbitrations
4.1. Consideration of Jurisdiction
5. Types of Measures
5.1. Mareva Injunctions
5.2. Worldwide Freezing Orders
6. Appropriate Court
7. Safeguards
Chapter 6 Anti-Suit and Anti-Arbitration Injunctions
1. Anti-Suit Injunctions
1.1. Power to Grant Anti-Suit Injunctions
1.2. Anti-Suit Injunctions under the Model Law
1.3. Jurisdiction to Grant Anti-Suit Injunctions
1.3.1. 'Natural Forum'
1.3.2. Habitual Residence
1.3.3. Actual and Voluntary Residence
1.4. Scope of Anti-Suit Injunctions
1.5. Standards for Grant of Anti-Suit Injunctions
1.5.1. Burden of Proof
2. Anti-Arbitration Injunctions
2.1. Power to Grant Anti-Arbitration Agreements
2.2. International Practice
2.3. Conflict Within the New York Convention
2.4. The Conflict Between the New York Convention and the Model Law
2.5. Harmonising the Model Law and the New York Convention
2.6. Jurisdiction for Anti-Arbitration Injunctions
2.6.1. Seat Theory
2.6.2. Habitual Residence
2.6.3. Distinguishing Jurisdiction for Anti-Suit and Anti-Arbitration Injunctions
2.7. The Indian Position
2.7.1. Lack of a Clear Source of Power
2.7.2. Mandatory Reference to Arbitration
2.7.3. Prima Facie Valid
2.7.4. Null and Void
2.7.5. Inoperative
2.7.6. Incapable of Being Performed
2.8. The 2019 Amendment
2.9. Scope of Anti-Arbitration Injunctions
2.10. Standards for Grant of Anti-Arbitration Injunctions
2.10.1. Burden of Proof
3. Limitations
3.1. Granted Against Parties
3.2. Duty to the Parties
3.3. Enforcement Concerns
4. Safeguards
Part II Tribunal-Ordered Interim Measures
Chapter 7 Interim Measures by the Arbitral Tribunal
1. The Need for Tribunal-Ordered Interim Measures
2. The Power to Grant Interim Measures
2.1. Sources of the Power to Grant Interim Measures
2.1.1. Article 17 of the Model Law
2.2. Power to Grant Interim Measures in India
3. Scope of the Power
3.1. Article 17(2) of the Model Law
3.1.1. Types of Powers
3.2. Section 17 of the IAA
3.2.1. 'Subject Matter of the Dispute'
3.3. 2015 Amendment
3.3.1. Bar on the Exclusion of the Power
3.3.2. Application to Be Made by a Party
3.4. Scope of the Power of the Tribunal Vis-à-Vis the Court
3.4.1. The Misplaced Superiority of Courts
3.4.2. Recognising Equal Powers of the Tribunal
4. Standards for Grant of Interim Measures
4.1. The Necessity of Express Standards
4.2. Applicable Law
4.2.1. The Law of the Seat
4.2.2. Law Governing the Contract
4.2.3. International Standards
4.3. Article 17A of the Model Law
4.3.1. Limitations of Article 17A of the Model Law
4.4. Reasonable Possibility of Success
4.4.1. Prejudgment of Merits
4.4.2. Material Demonstrating Prima Facie Case
4.5. Urgency
4.6. Balance of Convenience
4.7. Harm Not Adequately Reparable by Damages
4.8. Criteria in India
4.8.1. Harmonising the Powers under Sections 9 and 17 of the IAA
5. Types of Measures
5.1. Applicable Law
5.2. Article 17(2) of the Model Law
5.3. The Indian Position
5.4. Maintain or Restore Status Quo
5.4.1. Meaning of 'Status Quo'
5.4.2. Maintaining Status Quo
5.4.3. Restoring Status Quo
5.5. Preventing Harm to the Arbitral Process
5.6. Preservation of Assets
5.6.1. Attachment Orders
5.6.2. Interim Payments
5.6.3. Security for Payment
5.6.4. Difference Between Security for Payment and Security for Costs
5.7. Preservation of Evidence
5.7.1. Anton Piller Injunctions
6. Limitations on the Scope of Power under Section 17
6.1. Determination of Jurisdiction
6.1.1. Meaning of 'Prima Facie Jurisdiction'
6.2. Passing of Interim Measures Against Third Parties
6.3. Undertakings
6.4. Observations of the Court under Section 9 of the IAA
6.4.1. Modification or Termination Interim Measures Granted by Court
6.5. Interim Specific Performance
6.6. Finding on the Merits
6.7. Considerations of Lack of Enforcement
6.8. No Stay of Arbitration Proceedings
7. Procedure
7.1. Procedure to Be Followed by an Arbitral Tribunal
7.2. Burden of Proof
8. Ex Parte Interim Measures
8.1. The Need for Ex Parte Interim Measures
8.2. Concerns with Ex Parte Interim Measures
8.3. Preliminary Orders under Articles 17B and 17C of the Model Law
8.4. Suitability for India
9. Appeal
9.1. Jurisdiction of High Courts under Article 227 of the Constitution of India
9.2. Limitation Period for Appeal
9.3. Standard for Review
10. Safeguards
10.1. 'Regime for Costs' under Section 31-A of the IAA
10.2. Suspension, Modification and Termination of Measures
10.2.1. Modification of Interim Awards
10.3. Security for Interim Measures
10.4. Disclosure
10.4.1. Disclosure of 'Material Change' or 'All Circumstances Likely to Be Relevant'
10.4.2. Duty of 'Full Disclosure'
10.5. Costs and Damages
10.5.1. Causation for Costs and Damages
10.5.2. Test for Determining Costs and Damages
Chapter 8 Security for Costs
1. Meaning of 'Security for Costs'
2. Need for an Order of Security for Costs
3. Power to Order Security for Costs
3.1. Applicable Law
3.2. 'Means of Preserving Assets' under the Model Law
3.2.1. Distinguishing Article 17(2)(C) and Article 17E of the Model Law
3.3. Source of the Power in India
4. Scope of the Power
5. Standards
5.1. Reasonable Possibility of Success
5.2. A Right Is Threatened to Be Infringed
5.3. Harm
6. Third-Party Funding
6.1. Standards to Apply When There Is Third-Party Funding
6.2. Disclosure of Third-Party Funding Arrangements
6.3. Jurisdiction of the Arbitral Tribunal over the Third-Party Funder
6.4. Third-Party Funding in India
7. Type of Measures
8. Burden of Proof
9. Release of Security
10. Safeguards
Chapter 9 Anti-Suit Injunctions by the Arbitral Tribunal
1. The Need for Anti-Suit Injunctions
1.1. Protection from Contempt of Court
1.2. Protection from Hostile Courts
1.3. Inadequacy of Monetary Compensation for Parallel Proceedings
2. Power to Issue Anti-Suit Injunctions
2.1. Concerns of Comity
2.2. Inherent Power
2.3. Law of the Seat
2.4. Procedural Rules
2.5. Enforcing the Arbitration Agreement
2.6. International Practice
2.7. 'Prejudice to the Arbitral Process': Model Law
2.7.1. Enforcement under Article 17H of the Model Law
2.8. Power in India
3. Scope of Anti-Suit Injunctions Issued by Arbitral Tribunals
4. Standards to Grant an Anti-Suit Injunction by the Arbitral Tribunal
5. Types of Measures
6. Form: Award or Order
7. Safeguards
Part III Enforcement of Interim Measures
Chapter 10 Enforcement of Interim Measures
1. The Need for Enforcement of Interim Measures
1.1. Voluntary Compliance
1.2. Concerns with Adverse Inferences
2. Power of Enforcement of Interim Measures
2.1. Article 17H of the Model Law
2.1.1. 'Unless Otherwise Provided by the Tribunal'
2.1.2. Irrelevance of the Form of the Interim Measure
2.1.3. No Direct Enforcement
2.1.4. Extraterritorial Enforcement
2.1.5. Limited Grounds for Non-recognition of Interim Measure
2.1.6. Duty of Disclosure
2.1.7. Provision of Security
2.2. Article 17I of the Model Law
2.2.1. Refusal at the Request of a Party
2.2.2. Cognisance by the Court of Its Own Accord
2.2.3. No Setting Aside of Interim Measure
2.2.4. Concerns with Article 17I of the Model Law
2.2.5. Burden of Proof
2.2.6. Standard of Proof
2.2.7. Reformulating the Interim Order
2.3. Acceptability of Articles 17H and 17I of the Model Law
2.4. The Indian Position
2.5. 2015 Amendment
2.5.1. Enforcement of Orders Passed by an Emergency Arbitrator
2.5.2. Interim Order or Interim Award
3. Passing the Interim Measure as an Award
3.1. 'Finality' of Issues
3.2. 'Separate and Independent Claim'
3.3. Considerations to Determine the Appropriate Form
3.4. Article 17H of the Model Law: Enforceability Irrespective of Form
3.5. Order or Award: The Indian Position
3.5.1. 'Decree' and 'Order'
4. Court Assistance for Enforcement of Interim Measures
4.1. Section 94 of the CPC
4.1.1. Procedure for Enforcement
4.1.2. Practical Difficulties in Enforcement of Orders
4.2. Contempt Jurisdiction
4.3. Limits of Contempt Jurisdiction
5. Incorporating Articles 17H and 17I in India
6. Enforcement of Interim Measures by the Arbitral Tribunal
6.1. Substituted Performance
6.2. Costs and Damages
6.3. Striking off Pleadings
6.4. Penalties
6.5. Adverse Inferences
6.6. Suspension or Termination of proceedings
7. Enforcement of Interim Measures Passed by Foreign Seated Tribunals
Part IV The Way Forward
Conclusion
Suggested Provisions
Appendices
Appendix A (Article 9)
Appendix B (Article 17)
Appendix C (Article 17A)
Appendix D (Article 17B)
Appendix E (Article 17C)
Appendix F (Article 17D)
Appendix G (Article 17E)
Appendix H (Article 17F)
Appendix I (Article 17G)
Appendix J (Article 17H)
Appendix K (Article 17I)
Appendix L (Article 17J)
Appendix M (Institutional Rules)
Bibliography
Table of Cases
Table of Institutional Rules
Table of Statutes

Systemvoraussetzungen

Als PDF speichern Als Link merken