Provisional Measures in International Commercial Arbitration

Name: Provisional Measures in International Commercial Arbitration
Brand: Kluwer Law International
Price: 230.99 EUR
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Ali Yesilirmak(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 15. September 2005

374 Seiten

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Beschreibung

Due to the nature of the arbitration process, provisional measures - especially interim protection of rights - tend to play a disproportionate role in international commercial arbitrations. Indeed, the need to clearly define such measures often constitutes the major stumbling block on the path to an effective resolution of a commercial dispute.
This concise but enormously useful volume offers practitioners the information and advice they need to overcome this obstacle in the best possible way every time. The author covers all the relevant avenues of research and practice, from an overview of the concept of provisional measures to an in-depth analysis of the weight and enforceability of such measures. Along the way the treatment covers such crucial topics and issues as the following:

- - scholarly analysis of the problems and uncertainties surrounding provisional measures, and their solutions in light of arbitral and judicial practice;

- - the complex interaction of historical prejudices, political will, and business needs that impact the usefulness of provisionai measures;

- - choice of forum to seek provisional measures and the problems associated with such choice;

- - complementary mechanisms to arbitration for interim protection of rights;

- - standards on principles and procedures for the grant of provisional measures; and

- - a comprehensive review of the arbitrators' power to grant provisional measures and court assistance to arbitration.

The presentation examines, compares, and analyses seventy sets of arbitration rules on provisional measures (including the arbitration rules of the ICC, AAA, and LCIA), all of the major state laws on commercial arbitration, and detailed analyses of numerous ICC and AAA awards, most of which have not been published before.
This new and fully researched book fulfils an important need for user-friendly and complete practical coverage of provisional measures in international commercial arbitration. It will be of great value to corporate counsel, international lawyers, and business people, as well as to students of dispute resolution.

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Inhalt

Cover
Half Title Page
Editorial Board
Title Page
Copyright Page
FOREWORD
PREFACE
Table of Contents
TABLE OF ABBREVIATIONS
TABLE OF CASES
Chapter 1 INTRODUCTION
1. DEFINITION
2. CHARACTERISTICS
3. TERMINOLOGY
4. TYPES OF PROVISIONAL MEASURES
4.1 Measures Related to Preservation of Evidence
4.2 Measures Related to Conduct of Arbitration and Relations between the Parties during Arbitral Proceedings
4.3 Measures Aimed to Facilitate Later Enforcement of Award
4.4 Interim Payment
5. IMPORTANCE OF INTERIM PROTECTION OF RIGHTS
6. AIMS OF THE BOOK
7. METHODOLOGY
Chapter 2 EVOLUTION OF PROVISIONAL MEASURES IN INTERNATIONAL COMMERCIAL ARBITRATION
1. ARBITRATION RULES
1.1 Power of Organ or Head of a Trade Institution
1.1.1 1915 Plan
1.1.2 1922 Plan
1.2 Recognition of Arbitrators' Power and of Concurrent Jurisdiction
1.2.1 ICC Arbitration Rules 1923, 1927, 1931, and 1939
1.2.2 Further Developments in the 1940s and Onwards
1.2.2.1 AAA Commercial Arbitration Rules (1944 to 1997)
1.2.2.2 Copenhagen Rules
1.2.2.3 ICC Arbitration Rules (1955 to 1988)
1.2.2.4 UNECE Arbitration Rules 1966
1.2.2.5 UNECAFE Arbitration Rules 1966
2. INTERNATIONAL AND NATIONAL LEGISLATIONS AND COURT DECISIONS
2.1. 1920-1930s: Breaking of Judicial Mistrust towards Arbitration - Emergence of the Concepts of Court Assistance (Decrease in Rivalry towards Arbitration) and of Arbitral Power to Grant Provisional Measures
2.2 1950-1960s: Even Less Rivalry but Residue of Mistrust
2.3 1980s: The Tide Began to Turn - Trust to Integrity of Arbitrators and Arbitration
3. CONCLUSION
Chapter 3 FORUM TO SEEK PROVISIONAL MEASURES
1. GENERAL JURISDICTION OF ARBITRATORS TO GRANT PROVISIONAL MEASURES
1.1 Reasons in Support of Arbitral Jurisdiction
1.2 Sources of Arbitral Power
1.2.1 Parties' Agreement and Lex Arbitri
1.2.2 Inherent, Implied or Other Powers
1.3 Amendment and Exclusion of the Power
1.4 Mandatory Rules of Applicable Law
2. EXCLUSIVE ARBITRAL POWERS TO GRANT PROVISIONAL MEASURES
3. EXCLUSIVE JUDICIAL POWERS TO GRANT PROVISIONAL MEASURES
4. CONCURRENT POWERS OF JUDICIAL AUTHORITIES AND OF ARBITRATORS
4.1 Reasons in Support of Concurrent Jurisdiction
4.2 Jurisdiction on the Merits and Compatibility of Request for Judicial Provisional Measure with Agreement to Arbitrate
4.3 Court Assistance to Foreign Arbitration
4.4 Relationship between Arbitral Jurisdiction and Courts' Jurisdiction
4.4.1 Freedom of Choice Approach
4.4.2 Restricted-Access Approach: Complementary and Subsidiary Principles of Jurisdiction
4.4.2.1 Approach of National Laws
4.4.2.2 Approach of Arbitration Rules
4.4.2.2.1 Principle of Priority
4.4.2.2.2 Appropriate Circumstances
4.4.2.2.2.1 Urgency
4.4.2.2.2.2 Limits of the Tribunals' Power
4.4.2.2.2.3 Paralysed Tribunal
4.4.3 Damages as Compensation for Judicial Provisional Measures Incompatible with Arbitration Agreement or Found to be Unjustified
4.4.3.1 Damages Arising from Judicial Provisional Measures Incompatible with Arbitration Agreement
4.4.3.2 Damages Arising from Judicial Provisional Measures Compatible with Arbitration Agreement
4.4.4 Exclusion Agreements
4.5 Conflict of Jurisdictions
5. CONCLUSION
Chapter 4 EMERGENCY ARBITRAL PROVISIONAL MEASURES: COMPLEMENTARY MECHANISMS
1. EMERGENCY PROVISIONAL MEASURES AVAILABLE FROM HEAD OR ORGAN OF INSTITUTION
2. EMERGENCY ARBITRAL PROVISIONAL MEASURE PROCEDURES
2.1 Terminology
2.2 Integration with Arbitration Rules
2.3 Jurisdictional Relationship with Arbitral and Judicial Proceedings
2.3.1 Relationship to Judicial or Other Arbitral Proceedings
2.3.1.1 Relationship to Judicial Proceedings
2.3.1.2 Relationship with Other Arbitral Proceedings
2.3.2 Relationship with Arbitral Proceedings Initiated under Arbitration Rules of the same Arbitration Institution
2.4 Request for Measure and Answer
2.4.1 Request
2.4.2 Answer
2.5 Appointment and Challenge of the Emergency Arbitrator
2.6 Proceedings
2.7 Requirements to Grant Emergency Measures
2.8 Form of Emergency Arbitrator's Decision
2.9 Modification or Revocation of the Decision
2.10 Types of Emergency Measures
2.11 Effect of the Decision
2.12 Recourse to the Decision
2.13 Compliance with Decision and Consequences of Non-compliance
2.14 Confidentiality
2.15 Liability of Emergency Arbitrator
2.16 Costs of Emergency Measure Proceedings
2.17 Ex Parte Requests for Emergency Measures
3. COMPLEMENTARY MECHANISMS: CAN THEY BE USEFUL/EFFECTIVE ANYWAY?
4. ALTERNATIVE SOLUTIONS TO COMPLEMENTARY MECHANISMS
5. CONCLUSION
Chapter 5 ARBITRAL PROVISIONAL MEASURES
1. INITIATION OF THE PROCEEDINGS FOR ARBITRAL PROVISIONAL MEASURES
1.1 Who Initiates the Proceedings: A Party or the Tribunal?
1.2 What Should a Request Contain?
2. PRIORITY OF PROCEEDINGS ON REQUEST FOR PROVISIONAL MEASURES
3. REQUIREMENTS TO GRANT A MEASURE
3.1 Positive Requirements
3.1.1 Prima Facie Establishment of Jurisdiction
3.1.2 Prima Facie Establishment of Case
3.1.3 Urgency
3.1.4 Imminent Danger, Serious or Substantial Prejudice
3.1.5 Proportionality
3.2 Negative Requirements
3.2.1 If an Examination of the Merits of the Case is Required, the Tribunal may Refrain from Granting the Measure Requested
3.2.2 No Grant of Final Relief
3.2.3 The Tribunal may not Grant a Provisional Measure if the Applicant does not Have "Clean Hands
3.2.4 The Tribunal may not Grant a Measure where Such Measure is not capable of being Carried Out
3.2.5 When the Measure Requested is not capable of Preventing the Alleged Harm
3.2.6 Request must not be Moot
3.3 Security for Damages
3.4 An Undertaking
4. FORM OF A MEASURE
4.1 Award or Order?
4.2 Decision on the Form
4.3 Provisional Measures in Cases of Extreme Urgency after the Appointment of Arbitrators
5. DURATION OF PROVISIONAL MEASURE
6. REVISION RECONSIDERATION MODIFICATION OR REVOCATION
7. TYPES OF MEASURES
7.1 Measures Concerning Preservation of Evidence
7.2 Injunctions
7.3 Security for Payment
7.4 Security for Costs
7.5 Provisional Payment
8. Ex PARTE MEASURES
8.1 Right to be Heard as an Objection to Arbitral Power to Grant Ex Parte Provisional Measures
8.2 Observance of the Principle of Impartiality as an Objection to Arbitral Power to Grant Ex Parte Provisional Measures
8.3 Certain Other Considerations on Ex Parte Arbitral Measures
9. COSTS REGARDING PROVISIONAL MEASURE PROCEEDINGS
10. DAMAGES AS COMPENSATION FOR ARBITRAL PROVISIONAL MEASURES FOUND TO BE UNJUSTIFIED OR DISOBEYED
11. CONCLUSION
Chapter 6 WEIGHT AND ENFORCEABILITY OF ARBITRAL PROVISIONAL MEASURES
1. SANCTIONS FOR NON-COMPLIANCE
1.1. Adverse Inference
1.2 Damages and Costs
2. VARYING NEED FOR ENFORCEABILITY
3. ENFORCEMENT OF ARBITRAL PROVISIONAL MEASURES
3.1 Enforcement at the Seat of Arbitration
3.1.1 Direct Enforcement of Arbitral Provisional Measures as if it were a Decision of a Court (First Approach)
3.1.2 Executory Assistance from National Judicial Authorities (Second Approach)
3.1.3 Transposition of Arbitral Order into Court Order (Third Approach)
3.1.4 Enforcing Separate Court Order Based on Arbitral Provisional Measures (Fourth Approach)
3.2 Enforcement Abroad
3.2.1 Enforcement through National Laws
3.2.2 Enforcement through Treaties
3.3 UNCITRAL's Endeavours
4. CONCLUSION
CONCLUSION
ANNEX
BIBLIOGRAPHY
SUBJECT INDEX
Back Cover

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