Interim Measures in UNICTRAL Model Law on International Commercial Arbitration - Problems, Challenges and Perspectives

Abstract

Objectives: Before or during arbitration, there may be a need to preserve evidence or assets in the dispute or obtain payment in advance, and wait-ing for the final award is impossible. A provisional decision can satisfy this need. Even though the trend is to voluntarily comply with arbitral orders, there are many cases in which it is necessary to enforce the inter-im measure granted by the arbitral tribunal, domestically or abroad. This paper examines how some countries have dealt with the recognition and/or enforcement of interim measures in international arbitration regarding the applicability (or not) of the New York Convention in some selected jurisdictions. Methodology: This study uses Descriptive and Analytical methodologies. Results: The arbitral decision could not be enforced abroad under the New York Convention, because the general opinion is that such a Convention applies only to final awards. The New York Convention says nothing ex-plicitly about interim measures; for this reason, it is up to national laws and practitioners' application of the Convention to carve out the more effective tools to enforce interim measures. Originality: This paper covers three aspects that are not explicitly present in the current version of the Model Law: The power of the arbitral tribunal to grant interim measures against third parties. The interim measures issued by an emergency arbitrator and wheth-er or not articles 17-17J can be applied (directly or by analogy). The impact of Third-Party Funding on interim measures. In the conclusive remarks, the author sums up the "state-of-the-art" in the above-mentioned issues and gives some possible suggestions for the future to smooth the enforcement abroad of an interim measure.