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 secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources include the New York Convention, the applicable lex arbitri, the institutional arbitration rules, and the arbitration agreement. I consider whether these sources provide a comprehensive and coherent framework for the availability of provisional measures. 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