CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ 60 YEARS OF THE NEW YORK CONVENTION ON THE RECOGNITION… Furthermore, there is no guidance on the enforceability of interimmeasures. For example, the New York Convention does not require that an award must be a final determination of a particular issue in order to constitute an award but in some cases the lack of finality has been used as a reason not to enforce awards or orders on interim measures. 33 Others, on the other hand, have considered that decisions on interim measures are final until the tribunal decides otherwise and that this final is enough to be considered an award and enforced. 34 Clarification of what types of decisions are to be covered by the New York Convention would contribute to certainty and harmonized interpretation across multiple jurisdictions. An award can take the form of a final award, partial award, preliminary award, award on costs and consent award. As regards interim measures, the arbitration practice has moved a long way in recent years and it is now beyond question that arbitrators have the power to grant preliminary and conservatory measures under many modern arbitration laws. 35 Specific mechanisms of emergency measures to be granted by an emergency arbitrator before the full arbitral tribunal is constituted have been adopted by all leading arbitration institutions in recent years. 36 The form of the relief granted by the emergency arbitrator varies. The SCC Rules and the SIAC Rules permit interim “awards”, 37 the ICC Rules impose “orders” 38 (which will not be subject to the ICC Court’s scrutiny). Under the Swiss Arbitration Rules the decision may take the form of an award or may initially be granted by way of a preliminary order. 39 The designation of the emergency arbitrator’s decision as an award or an order does not have any impact on whether orders issued by emergency arbitrators can be recognized and enforced in any jurisdiction. Just like interim reliefs granted after the appointment of the regular tribunals, the question of recognition and enforcement of emergency measures will depend on relevant national arbitration laws and international conventions. By its very nature, an order for interim measure or emergency measure is temporary, but it can be at least as, or even more important than, an award. However, the power of 33 See Decision of the Australian Court in Resort Condominiums International Inc v Bolwell (1993), 118, ALR 655. 34 See KIRBY, Jennifer. Finality and Arbitral Rules: Saying an Award is Final Does Not Necessarily Make It So. Journal of International Arbitration , 2012, Vol. 29, Issue 119, p. 122. 35 For example, Article 26 of UNCITRAL Arbitration Rules (2010), Article 28 of ICC Arbitration Rules (2012), Article 25 of LCIA Rules, Article 26 of Swiss Rules of International Arbitration, R-34 of the AAA Arbitration Rules, and Article 26 of SIAC Arbitration Rules. The Czech Republic is, unfortunately, one of the countries that limit the power to grant interim measures to ordinary courts, in respect of both the domestic and international arbitration proceedings. See provision 22 of Act no. 216/1994 Sb., Act on Arbitration proceedings and Enforcement of Arbitral Awards, as amended. 36 E.g. Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Emergency arbitrator was introduced in the rules valid as of 1 January 2010 and the mechanism is again available in the revised rules valid as of 1 January 2017. Arbitration Rules of the Singapore International Arbitration Centre. Emergency arbitrator was introduced in the 4th Edition of the rules valid as of 1 July 2010 and the mechanism has been also made available in the later revised versions of the rules with the most recent one being the 6th Edition effective as of 1 August 2016. Rules of Arbitration of the International Chamber of Commerce. Emergency arbitrator was introduced in the rules valid as of 1 January 2012 and the mechanism is again available in the amended rules valid as of 1 March 2017. Swiss Rules of International Arbitration. Emergency arbitrator was introduced in the rules valid as of J June 2012. The London Court of International Arbitration Rules (2014).

Emergency arbitrator was introduced in the rules valid as of 1 October 2014. 37 Schedule 1(6) of the SIAC Rules, Article 32(3) of the SCC Arbitration Rules. 38 Article 29(6) of the ICC Arbitration Rules. 39 Articles 43 (8) and 26 (2,3) of the Swiss Rules of International Arbitration.

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