CYIL vol. 9 (2018)

MONIKA FEIGERLOVÁ CYIL 9 ȍ2018Ȏ arbitrators to grant interim measures is not reflected in the enforcement phase and difficulties for enforcing an order for interim measures abroad, outside the seat of the arbitration, make the current position for a transnational business community unsatisfactory. Under some arbitration rules, the tribunal has discretion to issue its decision either in the form of an order or an interim/partial award (arguably enforceable under the New York Convention). 40 In most jurisdictions the answer will mostly be negative and such awards are, according to prevailing opinions, not enforceable under the New York Convention. 41 Nonetheless, jurisdictions which have adopted or will adopt the revised UNCITRAL Model Law 2006, including Articles 17H 42 and 17I, 43 are likely to recognize and enforce orders on interim measures. Nevertheless, it is for the reviewing court to decide for itself whether the decision before it is or is not an award despite being labelled as an award. In addition, in a number of countries, there is no possibility of applying to a court for enforcing arbitral decisions granting interim measures. Furthermore, the functions of arbitrators do not cover third parties, such as banks, where the assets of one of the parties may be held. A question is sometimes posed in a rather simplified way: if an award can be enforced under the New York Convention, why then not an interim order made by the same arbitral tribunal for the sole purpose of ensuring that its award is not ultimately rendered nugatory by the other party. 44 It is of course not possible to copy-paste provisions dealing with enforcement of awards to the decisions on interim measures. The court’s discretion in this respect must be different; much broader then when deciding on enforcement of an award. Some measures (e.g. an interim order for payment to the creditor which may be subsequently revised in a final decision) will need to be excluded from the Convention’s scope of application. An inspiration can be found in the Principles on Provisional and Protective Measures in International Litigation prepared by International Law Association in 1996 and the revised UNCITRAL Model Arbitration Law. Another issue which could also be further considered in parallel is the enforcement of court-ordered interim measures in support of arbitration which are even more important in situations before establishing an arbitral tribunal and where emergency arbitrator procedures are not available. Interim measures issued ex parte could be carved out as their issuance is still controversial under a number of arbitration rules and laws. If the New York Convention is to be updated or a new convention built on the New York Convention prepared, it is the relevant instrument for addressing the enforcement of 40 For example, Article 28(1) of the ICC Arbitration Rules. 41 Contrary, e.g. Decision of the Specialized Higher Court of Ukraine no. 6-30579ck15 dated 24 February 2016 in case JKX Oil & Gas plc, Poltava Gas B.V . and Poltava Petroleum Company JV v Ukraine (SCC, EA/2015/002), in which the court, without detailed reasoning, concluded that the enforcement of an emergency arbitrator decision is governed by the New York Convention. 42 Article 17 H (1) of the Model Law 2006 stipulates as follows: “An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of article 17 I.” 43 Article 17 I (1) of the Model Law 2006 stipulates grounds for refusing recognition or enforcement. Further, it is explicitly stated that the court where recognition or enforcement is sought shall not review the substance of the interim measure. 44 See VEEDER, Johnny. Provisional and Conservatory Measures. In UNITED NATIONS. Enforcing Arbitration Awards under the New York Convention. Experience and Prospects. 1999, p. 21.

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