Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Once an arbitration proceeding is imminent or underway, there are a number of reasons an arbitrating party may want to seek judicial intervention before a final arbitration award is made, including the need for preliminary injunctive relief or pre-award attachment, a need to compel or preserve evidence for discovery or for a hearing, a need to confirm or enforce an interim award by the arbitral panel, or a dispute over the appointment of arbitrators. Such pre-award judicial relief is discussed in the following sections.
  2. The majority of the arbitral rules promulgated by international arbitral bodies provide for the arbitration panel, at the behest of the parties or in some instances at its own discretion, to order interim relief, including injunctive relief to preserve assets or for the conservation of goods. See, e.g., International Chamber of Commerce (“ICC”) Rules of Arbitration, art. 23(1); American Arbitration Association (“AAA”) International Dispute Resolution Procedures, art. 21(1); United Nations Commission on International Trade Law (“UNCITRAL”) Arbitration Rules, art. 26(1); London Court of International Arbitration (“LCIA”) Arbitration Rules art. 25.
  3. Most arbitral bodies also provide some mechanism for the arbitrators to order limited discovery. See, e.g., UNCITRAL Arbitration Rules, art. 24, sec. 2, 3; AAA International Dispute Resolution Procedures, art. 19; ICC Rules of Arbitration, art. 20; LCIA Arbitration Rules art. 20, 22.
  4. Given arbitrators’ general authority to decide issues regarding discovery or other pre-award relief, courts will often be reluctant to interfere when the arbitration is imminent or pending. See, e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (refusing to grant preliminary injunctive relief where panel in a pending arbitration had authority to do so).
  5. Nevertheless, the rules of many arbitral bodies expressly state that seeking interim relief from judicial authorities shall not be deemed a waiver of the agreement to arbitrate. ICC Rules of Arbitration, 23(2); International Dispute Resolution Procedures, 21(3); UNCITRAL Arbitration Rules, 26(3); LCIA Arbitration Rules art. 25.3 (providing that the LCIA rules “shall not prejudice howsoever any party's right to apply to any state court or other judicial authority for interim or conservatory measures before the formation of the Arbitral Tribunal and, in exceptional cases, thereafter.”). The circumstances in which courts will grant interim relief are briefly explored in the following sections.
  6. Practice Tip: Consider an arbitral body's discovery rules - are they expansive or limiting - when negotiating the appropriate arbitral body for an arbitration clause.

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