Interim Award Legal Definition

Two developments in the 15 years since the enactment of the Model Law (1985) have made the question of how interim arbitration measures of protection enforceable have become more important, rather than less. First, requests for interim arbitration by the parties appeared to be steadily increasing, as UNCITRAL itself had acknowledged. [11] Second, a number of national courts have continued to hold that court-ordered interim measures (even if they were called « interim arbitral awards ») were not enforceable under the New York Convention. [12] A landmark decision in this regard was rendered in 1993 by the Supreme Court of Queensland, Australia, in Resort Condominiums International. [13] A U.S. plaintiff had filed U.S. arbitration proceedings against an Australian defendant in the state of Indiana; The dispute arose under an agreement on reciprocal rights to use timeshare real estate, which are controlled by each party. The arbitrator issued an injunction and award directing the defendant during the arbitration to continue to enforce the parties` agreement and not to enter into a similar agreement with another company. The plaintiff requested that this interim award be enforced against the defendant in his country of origin; the Queensland court refused. On the one hand, the Court rejected the view that there could be only one final arbitral award » enforceable under the New York Convention (as the respondent had argued), as the ramifications of proceedings leading to partial final arbitral awards were becoming increasingly common. [14] However, the Tribunal stated that under the New York Convention, an arbitral award must be « binding » on the parties[15] in the sense that it « settles at least some or all of the issues referred to the arbitrator for judgment », which it contrasts with an interim measure which, by its very nature, was « decided by the court that issued it may be repealed, suspended, modified or reopened ».

[16] [2] Gary B Born, International Commercial Arbitration, pp. 1949, 1950, footnote. 37 (2009) (it should also be noted that major European courts such as Switzerland, Italy, Spain, Germany, Austria and Greece used to prohibit arbitrators from issuing interim measures, which were therefore only available to national courts). Article 16 (3) of the 1985 UNCITRAL Model Law on International Commercial Arbitration (« Model Law ») provides for an immediate remedy if the tribunal decides on a preliminary basis that it has jurisdiction. On the other hand, Article 16(5) of the Law on arbitration provides that, if a court refuses to contest its jurisdiction, it shall continue the arbitral proceedings and make an award, and Article 16(6) provides that a party aggrieved by such an award may apply for the setting aside of such an award. In other words, under the Arbitration Act, if the court makes a preliminary determination of jurisdiction, the aggrieved party has no direct remedy and must await the final award on the merits. Indian arbitration law allows the arbitral tribunal to make a preliminary award in accordance with section 31 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) in any case in respect of which it may make a final award. At the United Nations celebration of the 40th anniversary of the New York Convention in 1998, several speakers stressed the need to strengthen interim measures as a crucial next step in strengthening the Convention`s support for international arbitration. V.

V. In particular, Veeder warned that « for too long it has been difficult to enforce an arbitrator for interim measures » because « the best view of the application [of the New York Convention] excludes any injunction of enforcement abroad as an arbitral award. » [20] The revised Model Law, finally promulgated by UNCITRAL in 2006, contains a major new article 17 on interim measures, subsections 17H and 17I of which establish an explicit right and mechanism for the enforcement of interim arbitration measures before the national courts of each relevant jurisdiction. Article 17H requires that an interim arbitral measure, regardless of its structure (as an award, order or award), « be accepted as binding, and. be enforced on application to the competent court, irrespective of the country in which it was issued`, subject to certain limited grounds for non-execution in accordance with Article 17i. These include the grounds already established in article 36 of the Model Law (which in turn derives from article V of the New York Convention) for non-enforcement of arbitral awards on the merits, as well as certain grounds relating only to interim measures, such as a party`s failure to comply with a judicial obligation to provide security for the interim measure. [39] In one case, the release of funds to a Party in Pakistan against a bank exchange was made pending the conclusion of the award, after the project dispute resolution had been established. Is that not more appropriate? [17] See, for example, Y Lahlou, A Poplinger and G Walters, « Other Issues in Enforcement Proceedings », in Frischknecht et al. (ed.), Enforcement of Foreign Arbitral Awards and Judgements in New York, 235, 245-249 (Kluwer, 2018); ID., p. 247 (« Interim arbitral awards requiring parties to take certain interim measures of protection while the arbitral proceedings are pending, such as providing security prior to the hearing of the potential award, payment of the advance on costs, or payment of an interim payment, have been classified as a requirement of a `specific act` and « finally executed » in New York (footnotes omitted)). To date, the interim measures adopted by the General Court have not been treated in the same way as those adopted by the Court of Justice. However, as a result of the amendment of the law pursuant to the Arbitration and Conciliation (Amendment) Act 2015, interim awards made by the arbitral tribunal are equivalent to interim measures granted by the courts.

The legislator has included all these provisions empowering arbitral tribunals to make binding arbitral awards. By adopting a narrow definition of « jurisdiction, » the Supreme Court mitigated the potentially prejudicial consequences of section 16(6) of the Arbitration Act, as only a limited class of decisions would constitute a court`s decision on its jurisdiction. Even if a competent court is willing to enforce an interim measure issued by an arbitral tribunal, the party requesting such a measure may still need to consider the form of the remedy sought in order to maximize the chances of effective enforcement. While interim measures can take many forms, they often consist of non-monetary relief, usually a request to a party to do (or refrain from doing something). However, the effectiveness of an injunction depends mainly on the tools available in each jurisdiction to enforce the court order or sanction a party`s non-compliance. [11] See report of the Secretary-General, « Possible uniform rules on certain matters relating to the settlement of commercial disputes: conciliation, interim measures of protection, written form for arbitration agreement » [`Possible uniform rules`], para. 104, UN document A/CN.9/WG.II/WP.108 (2000) (« Reports from practitioners and arbitral institutions indicate that parties are seeking interim measures of protection in an increasing number of cases. »). Parties seeking interim measures of protection should also consider whether the measure requested by the arbitral tribunal (including a related monetary penalty for non-compliance) constitutes a known form of redress in the potential place or places of performance. As the EC International Resources case showed, the absence of a certain type of remedy at the place of enforcement could raise doubts as to the compatibility of the interim order issued by the arbitral tribunal with the public policy of the place of enforcement, thus creating a risk of non-enforcement.