By Giovanni Profazio – LEGALIA LUMSA, 17 October 2019 Rome, Via Pompeo Magno 22 INTERNATIONAL ARBITRATION INTERIM MEASURES

INTERIM MEASURES The role of the Courts: Arbitration wholly depends on the underlying support of the court. States determine limitation of Clause/Agreement to arbitrate, thus limitation on compelling witness, on disclosure of documents, on (right to) appeal (set aside) Now considerable degree of independence = separability of procedure, competence/competence, law and even more general principle (the largest arbitration decided on Unidroit principle); Court may only police due process. Model Law "No Court shall intervene" (out of Article 36 only = challenge Tribunal, appeal on jurisdiction. Evidence, Challenge Award, Recognition/Enforcement (Belgium = NO Appeal for foreign arbitration = opposite effect) Tribunal vs Court = a relay race = 1. At beginning baton in grasp of Court; 2. Tribunal in charge, baton in grasp of Tribunal. 3. After Award Tribunal hands back baton to Court

General The best way to analyse Interim Measure in dept is by timing of issuance. In terms of timing Interim Measures can be issued at the beginning of the arbitration proceedings, during the arbitration proceedings and even at the end of it.

A) Beginning of Arbitration At beginning Interim Measures regards: Agreement, Tribunal, Jurisdiction (a) Enforcing the arbitration agreement. Many Courts prepared to enforce agreement: NYC Art 3 (Model Art. 8) Unless agreement null - void - inoperable – incapable of being performed. (which may be another law) (b) Establishing the arbitral tribunal. Especially when no institution, no rules, Court required also for Challenge Arbitrators (c) Challenges to jurisdiction. It may be dealt with initially by Tribunal itself: Final decision Court (seat, challenge, enforcement)

B.1) During Arbitration, Issued by Tribunal Tribunal : ICC = Power of issuing interim or concurrent measures. (a) No powers Model Law may not have necessary powers = Greek Court, Italian Court (Argentina debated) (b) Inability to act prior to the formation of the tribunal. Tribunal not yet established. Emergency Arbitrator (but need a separate Agreement?) (c) An order can only affect the parties to the arbitration. Limited to Parties (e.g, no freeze order bank account because bank is a third party) (d) Enforcement difficulties. NYC requires award: Some States, however have sought to label interim order as award (Scotland, New Zealand): Trend is to issue order instead of award: ICC no scrutiny (e) No ex parte application. Notice to counterparty: discussed, even if not enforceable

B.2) During Arbitration, Issued by Court GENERAL Preserve status quo, prevent disappearance assets, evidence, preservation of property, security for costs: 1. Not incompetent Arbitration (ICC - Rules – Model Law), but still reluctance because Parties' choice to Arbitrate excludes recourse to Court. 2. Court or Tribunal = Depends on relief sought. Model law = Tribunal unless prejudice Parties' right. ICC = before Tribunal established to Court, after to established Tribunal; Arbitration Act 1996 Court Act = Urgent; Not urgent = Order with permission of Tribunal.

During Arbitration, Issued by Court KINDS 1. Measures relating to the attendance of witnesses and preservation of evidence. Attendance of witness: Tribunal problem to compel witness, so AA96 Court with permission of T., only England.; USA - Arb. power to subpoena witness and [order production] of docs. Rules = seeks to suggest mainly to preserve goods; Model = Status Quo and refrain from taking action (injunction). Preserving assets (Italy “sequestro conservativo”); preserve evidence; (Italy “sequestro guidiziario”) 2. Maintain Status Quo. Tribunal must first look if it is "subject“ to Arbitration; ICC = avoid aggravation of dispute . Law of seat. Trend is to apply criteria: 1. Arguable case; 2. No Prejudice to merit of case; 3. Risk harm 3. Injunction to abandon case: Parties declare when Party is a State (see Ethiopian case, but did not comply with because of Rule 28 = Not sufficient cause of his default 4. Security for costs: Sometimes Agreement itself provide for. Award may uphold this, but in practice not usual (Tribunal may lack power or may be reluctant because of risk of non-payment)

Anti-Arbitration Injunction «turf-war» between Court and Tribunal still ongoing worldwide. Remedy especially used when a party is a State (ore State Entity) Arbitration Act 1996 in Section 44 (2(e)) provides that the granting of an interim injunction even when the arbitration is (seat) outside England However the trend is now moving from a pro Court stance to a pro Tribunal stance. Case SGS v. Pakistan and Hobco v. WAPDA local Court upheld claims restraining arbitration proceedings. Now Tribunals tent to purse its own jurisdiction without interference from domestic Courts, especially within UE. Anti-suit injunctions, irrespective of whether they are issued by a State court or by an arbitral tribunal, are incompatible with EU law, because they deprive Member State courts of Tribunal power to assess their own jurisdiction under the Regulation, and thus violate the principle of mutual trust. The way for the Tribunal to legitimately disregard Court anti-suit injunction is by relying on the possibility to move Hearings “disregarding” the Seat

Anti-Arbitration Injunction Case Himpurna v. PNL. Arbitration under UNCITRAL Rules in Indonesia (seat) against PNL (Indonesian State Electricity Corporation) on the pledge to secure PNL’s performance. Indonesian Court released an interim injunction ordering the suspension of the arbitral proceedings (pending Court decision on the merit). The Tribunal however considered that the injunction was an «attempt to avoid a freely signed arbitration agreement» and accordingly refused to abandon the arbitration; however, to avoid the risk of breaching the Indonesian Court order, the Tribunal moved the place of Hearing to The Hague (allowed under Article 28 of Rules). Indonesia tried to seek an anti arbitration injunction from the Dutch Court but the application was refused.

Anti-Arbitration Injunction Case Bentler v. Belgium EU Case. European Commercial case 104. The Court held that a State which has signed an arbitration clause or an agreement would be acting contrary to international public policy if it subsequently relied on the incompatibility of such an obligation with its internal legal system. The Arbitral Tribunal held that no distinction should be drawn between a legislative enactment and a Court injunction, and thus it would constitute «a denial of justice for the Courts of a State to prevent a foreign party from pursuing its remedies before a forum to the authority of which the State consented». Moreover it held that an international arbitral tribunal is not «unconditionally subject» to the jurisdiction of the court at the seat of the arbitration, and that the «adjudicatory authority» of the international tribunal «does not emanate from a discrete but rather from an international order»

C) End of Arbitration Juridical Control. Theories: 1. no to interfere with private parties; 2. to interfere because Court is in over hail of justice. However court intervention not necessarily disruptive, may well be supportive.