Provisional and Emergency Measures in International Arbitration: (Elgar Arbitration Law and Practice series)

The increase in the complexity and length of international arbitration procedures has resulted in a growing demand for both provisional and emergency measures to facilitate the preservation of the parties’ rights until a final award is rendered. In Provisional and Emergency Measures in International Arbitration, Julien Fouret has brought together many of the leading international arbitration practitioners to examine this highly topical subject. It considers complex issues surrounding the powers of arbitrators to grant provisional relief, categories and examples of such measures, procedural and substantive requirements for ordering an interim measure, the burden and standard of proof as well as issues of enforceability. Each chapter offers a thorough analysis both in commercial and investment arbitration. This important new publication will be beneficial to legal practitioners, academics a as well as arbitrators who want to gain a deeper understanding of both the principles and specific rules on provisional and emergency remedies established under the major arbitral rules and tribunals.

Table of Contents:
Contents: 1. Introduction 1 Julien Fouret PART I THE POWERS OF ARBITRATORS TO GRANT PROVISIONAL RELIEF 2 Sources of arbitrators’ powers 19 José R. Feris and Akash S. Karmarkar 3 Scope and jurisdiction in institutional arbitration rules 40 José Ricardo Feris and Akash S. Karmarkar 4 Of the exclusive and/or concurrent jurisdiction with domestic courts – effect of national laws on the arbitrator’s powers 63 Michele Sabatini PART II CATEGORIES AND EXAMPLES OF PROVISIONAL MEASURES 5 Anti-suit injunctions and parallel proceedings 93 Affef Ben Mansour 6 Preservation of evidence 107 Swee Yen Koh and Tiong Teck Wee 7 Interim of provisional measures aimed at maintaining the status quo or not aggravating the dispute 136 Christian Albanesi and Mateo Noseda 8 Specific performance of contractual or other pre-existing obligations 168 Matthew Secomb and Clemency Wang 9 Security for costs and claims in international arbitration 193 Samaa A. Haridi 10 Ex parte measures 207 Shaparak Saleh and Etienne Vimal du Monteil 11 Guarantees against the stay of enforcement 228 Patrick W. Pearsall and Craig D. Gaver 12 The arbitral tribunal’s power to amend provisional or emergency measures 252 Yasmine Lahlou PART III PROCEDURAL REQUIREMENTS FOR ORDERING AN INTERIM MEASURE 13 Procedural requirements for emergency relief ordered by an emergency arbitrator 270 Anna-Maria Tamminen and Ella Hiltunen 14 Procedural requirements for provisional reliefs ordered by an arbitral tribunal 298 Anna-Maria Tamminen, Isabelle Sundström Stridh and Marcus Nyberg PART IV SUBSTANTIVE REQUIREMENTS FOR ORDERING AN INTERIM MEASURE 15 Prima facie jurisdiction 308 Reza Mohtashami KC, Clara Florin and Samhith Malladi 16 Prima facie establishment of a case 331 Olena Perepelynska 17 Urgency 342 Christian Leathley Risk of irreparable harm (necessity or imminent danger of serious prejudice) 363 Noradèle Radjai and Anna Korshunova 19 The proportionality requirement in provisional measures 401 Patrick Taylor and Romain Zamour PART V BURDEN AND STANDARD OF PROOF 20 The burden and standard of proof 428 William T. O’Brien and Levon Golendukhin PART VI ENFORCEABILITY AND ENFORCEMENT OF PROVISIONAL MEASURES 21 Enforceability and enforcement of provisional measures 449 Philippe Pinsolle and Thomas Voisin Index

About the Author :
Edited by Julien Fouret, Holman Fenwick Willan (HFW), France

Review :
‘This book brilliantly contributes to the academic and practical efforts to clarify the many controversial points raised by emergency and provisional measures. It also serves as a comprehensive practical guide for arbitration practitioners on how to best deal with situations that need swift interim solutions. All contributions include in-depth comparative analyses and a wealth of case-law which help the readers to navigate through the complexities of provisional and emergency measures in commercial and investor-State arbitration.’ ‘The book features contributions by the most experiences practitioners in the field, covering issues ranging from the source of the arbitrators’ powers to issue interim measures (in the silence of the lex arbitri or the arbitration agreement, do arbitrators have implied or inherent powers to make these decisions?) to the interplay between the arbitrators and the judge’s powers (does an arbitration agreement prevent the parties from seeking judicial remedies? Is the situation different before or after the arbitration?) and the nature of the relief sought (Substantive? Obligation not to do? Injunction to perform? Preserving evidence? Are there limits to the Eagle’s flight of interim measures? What about anti-suit-injunctions? Security for costs?). It analytically deals with the applicable standard for the granting of interim measures under different laws and arbitration rules (prima facie case, risk of irreparable harm, preserving status quo, proportionality, etc…), as well as many complex procedural issues, some of which are still hotly debated, such as whether arbitrators should entertain ex parte applications) to conclude with an in-depth analysis of their enforcement as well as their specific aspects in the realm of investment arbitration. The book, because of its quality, its international breadth and the range of questions it covers, is an invaluable contribution to our practice and it will soon become an indispensable tool for any arbitrator, counsel or student of academic dealing with matters which importance for international arbitration cannot be overstated.’ ‘The first of its kind on the subject, this comprehensive and detailed treatise will ensure that practitioners and arbitrators alike are equipped with the most effective tools on how and when to employ and enforce interim measures in international arbitration.’