ARBITRAL TRIBUNAL'S AUTHORITY TO ISSUE INTERIM MEASURES: THE PRESENT INTERNATIONAL PRACTICE AND INDIA'S POSITION

Authors

  • Mr. Aswini Patro, Prof. (Dr.) Pradip Kumar Sarkar

Abstract

Courts have developed means for granting interim provisional measures designed to safeguard parties
from serious injury caused by delays in the litigation process. It is essential that an arbitral tribunal possess
broad power to safeguard parties' right and its own remedial authority during the pendency of the dispute
resolution proceedings. Unless the tribunal is able to grant provisional measures, its ability to provide effective,
final relief may be frustrated. Provisional measures have particular importance in international disputes. Cases
involving litigants from different nations poses special risks, including the increased danger that vital evidence
will be taken out of the reach of relevant tribunals or that assets necessary to satisfy a judgment will be removed
to a jurisdiction where enforcement is unlikely. Because arbitration is fundamentally consent based, the parties
could expressly agree to empower a tribunal to entertain applications for interim measures. In so doing they
could establish criteria and the parameters of circumstances where this may apply.
The New York Convention should be interpreted as impliedly precluding Contracting states from adopting
national laws that deny effect to international arbitration agreements granting arbitrators the power to order
provisional measures. Both the UNCITRAL Model law and the UNCITRAL Arbitration Rules expressly allows
for provisional measures by a arbitral tribunal.
National arbitration legislation like Swiss Private International Law, English Arbitration Act and Indian
Arbitration Act after the amendments has empowered arbitral tribunals with availability of provisional relief.
The Indian Supreme Court has recently has opened a new avenue for the enforcement of interim orders. It was
argued in the above case that section 27(5) of the Indian Arbitration Act does not leave any doubt as to the
scope and ambit of Court's power to punish for contempt orders made by Arbitral Tribunal against a party.

Published

2020-10-16

Issue

Section

Articles