The Guiding Fundamental Principles Of Commercial Arbitral Proceedings

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Shadat M.Mohmed Ssemakula, PhD & Associate Professor

Gulu University- Uganda East Africa

Field of Expertise: Law

 

Abstract

Arbitral Interim (provisional) measures are of great importance in protecting the rights of the parties to an arbitration agreement. Arbitration as a dispute mechanism is becoming increasingly powerful due to the ability of tribunals and courts to grant and enforce Interim (provisional) measures which make the final award meaningful. The importance of Interim (provisional) measures has increased in recent years as more parties are seeking them, and is likely to grow still more in the coming years. This project examines the problems surrounding arbitral Interim (provisional) measures in England and Wales; as such problems constitute a threat to current and future arbitration. The project aims to identify, analyse and offer solutions to those problems that impede arbitral proceedings.

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This project initially examines the roots and the legislative development of the powers of arbitral tribunals to grant Interim (provisional) measures and the role of the courts in arbitral proceedings in England. The examination highlights the roots of the problems and demonstrates how the approach towards Interim (provisional) measures in England and Wales has shifted in due course from judicial dominance to arbitral competence, and how the role of the courts has become subsidiary.

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Further, the analysis highlights the problem of arbitrators in the granting and enforcement of Interim (provisional) measures across borders, due to the inadequacy of the current Arbitration Act 1996, which provides very limited power to tribunals under its S.38, 39 and 48. Additionally, the research aims to demonstrate that arbitral tribunals should be given effective and actual authority to grant arbitral Interim (provisional) measures in order to comply with the arbitration agreement (party autonomy).

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Since no dispute mechanism can stand alone as an island, the courts should only become involved in support of the process - subject to the arbitral Acts that provide them with exclusive jurisdiction - where this is necessary in order to avoid conflicting decisions. However, the power of the courts to aid arbitration in granting such measures is limited by Council Regulation (EC) 44/2001 of the European Union, of which England is a member.,

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In international arbitration, timely application and enforcement of interim (provisional) measures have a substantial effect on the possibility of the enforcement of a final arbitration award, especially when issues relating to the protection of assets or evidence arise before or during the course of proceedings. Hence the purpose of this project is to provide a brief analysis of the international practice regarding the enforcement of Interim (provisional) measures in international arbitration.