• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.131-149
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• 2000

In connection with international commercial arbitration the need to seek interim relief is generally recognized. Interim reliefs address the requirements of a party for immediate and temporary protection of rights or property pending a decision on the merits by the arbitral tribunal. The most common forms of interim relief are attachments and injunctions. If the arbitral tribunal has not yet been appointed, an application for interim relief must usually be addressed to the local courts at the place of commercial arbitration. If the arbitral tribunal has been appointed, the application for interim relief is first made to the arbitral tribunal. Interim relief by the arbitral tribunal is in the form of a direction to the parties. Since the arbitral tribunal has no enforcement power, it may be necessary to have a arbitral tribunal's direction confirmed by a local court which can enforce its order. The New York Convention does not provide for interim reliefs. The question is whether Article II(3) of the New York Convention that the court "shall, at the request of one of the parties, refer the parties to arbitration" denies jurisdiction to courts to grant interim reliefs in international commercial arbitration. Some cases have indicated that the U. S. court have no power to grant interim relief. Other cases have indicated that the U. S. courts do have the power to grant interim relief. It is unlikely that a U. S. court will order interim relief in relation to an commercial arbitration in a foreign country. Article 26 of the UNCITRAL Arbitration Rules provides with respect to interim measures of protection. Section 1 of Article 26 of UNCITRAL Arbitration Rules provides that the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject matter in dispute. This article gives the arbitral tribunal the broadest authority, not limited to safeguarding property. Article 17 of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. It may be noted that the article does not deal with enforcement of such measures. The International Chamber of Commerce Rules of Conciliation and Arbitration do not expressly empower the arbitral tribunal to grant interim reliefs. However, Article 8.5 of the ICC Rules of Conciliation and Arbitration provides that the parties shall be at liberty to apply to any competent judicial authority for interim measures. In conclusion, the power of the arbitral tribunal to provide interim reliefs is generally recognized in the arbitration rules of arbitral institutions. However, the arbitral tribunal's authority is limited by its lack of enforcement mechanisms. It is generally recognized that the local courts have power to grant interim reliefs in aid of an commercial arbitration. However, local courts are reluctant to grant interim reliefs if that decision requires an adjudication of issues within the special competence of the arbitral tribunal.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.239-257
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• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.21-47
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• 2017

Interim measures by an arbitral tribunal aim to protect the parties' rights before or during arbitral proceedings for avoiding frustration of the final award in international commercial disputes. Even though decisions of the interim measure are expected to be performed by parties directly during the arbitral processing, it is not easy to be provided by the arbitral tribunals cause of lack the power to enforce their decisions directly against the parties. Particular court supports mechanism for enforcement directly to assistance to arbitral tribunal's decisions. Decisions on interim measures are provisional. Even though the arbitration is ongoing to request interim measure directly to the arbitral tribunal, relevant courts are able to ensure effective relief cause by the difficulty of limited rights of the arbitral tribunal. In this time both revised Korean Arbitration Act in 2016 and UNCITRAL 2006 revised Model Law are complemented to attach articles for recognition and enforcement of interim measures by arbitral tribunal during the arbitration processing. It could be possible to enforcement of decisions of interim measures by arbitral tribunal on the revised arbitration law. In this paper it is considered the problems and alternatives on related applicable articles and articles of recognition and enforcement for the interim measures by arbitral tribunal under the revised UNCITRAL Model law and Korean Arbitration Act.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.45-66
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• 2018

Two years ago, an emergency arbitrator procedure in accordance with the international arbitration rule has been finally adopted in Korea?a decade after its introduction. Arbitral institutions provide interim measures in the course of tribunal proceedings to avoid litigation in open court that is often expensive and time-consuming. An emergency arbitrator procedure offers an urgent relief prior to the constitution of an arbitral tribunal, thus enhancing the speed and effectiveness of the arbitration procedure even further. Although most of the arbitral institutions interpret that the emergency arbitration rulings are binding on the parties, enforcing the emergency arbitration provisions have some difficulties in practice, and it is not clear whether or not arbitral interim measures will be enforceable under the newly adopted provisions in Korea. In this study, experiences in other countries are explored in seeking for the possible problems and solutions of enforcing the emergency arbitration rulings. For example, Singapore and Hong Kong insert terms such as "finality," "enforceable in the same manner as an order or direction of the Court," "same effect as an arbitral tribunal or interim measures" in their emergency arbitrator legislation to enhance enforcement. Moreover, "urgency inherent" are considered.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.107-129
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• 2017

Arbitration has grown a unique resolving method for international commercial disputes. However, it has considered a similar court process, such as interim relief, during arbitration proceedings. Further, it would be asked for urgent measures before the arbitrators are constituted in the proceedings. In this case, the disputing party has to apply in the court. This is an unattractive factor in international arbitration; therefore, some institutions are trying to reform such an inconvenient system by adopting the emergency arbitrator. The purpose of this study is to look into ways of utilizing the emergency arbitrator for effective dispute resolution in shipbuilding and shipping industries. The emergency arbitrator needs to solve problems such as making a decision on leaving cargos in the ship, matters involving a ship arrest, or issues regarding vessels under construction. In order to utilize the emergency arbitrator system, it needs to make a close partnership with related institutions, prepare Korean-style standard shipbuilding and shipping contracts, and provide training programs for new emergency arbitrators and staff of institutions. Next, the arbitration institution has to have a great working relationship with a court. Finally, it should try to implement a new system, such as on-line service, for the procedures of the emergency arbitrator.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.123-138
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• 2013

The surge of cross border trade and transactions has seen international arbitration fast emerging as the preferred mode of dispute resolution. This phenomenon is especially remarkable in the Asian region. The Singapore International Arbitration Centre ("SIAC") aspires to contribute to this growth as one of the leading arbitral institutions. The objective of this article is to provide an insight into the key features of SIAC Rules. This article has been divided into two parts; the first part discusses how the SIAC Rules are helpful in building bridges in international arbitration between the common law and civil law systems. We have attempted to throw light on how the SIAC Rules may be tailored by the parties to bring about a harmonization in the common law and civil law practices in the conduct of the arbitration proceedings. In the second part of the article, we discuss the two most popular procedures introduced in the SIAC Rules in 2010 i.e. 'Emergency Arbitration' and 'Expedited procedures'. The emergency arbitration provisions enable a party to obtain order(s)/award for urgent interim relief(s) upon commencement of arbitral proceedings but pending the constitution of the main Tribunal. The expedited Procedure provisions give parties the option of having their disputes determined in six (6) months from the date of the constitution of the tribunal.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.97-122
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• 2013

Vietnam has become an attractive destination for foreign investors, but confidence in the country's legal system to resolve commercial disputes remains low. Reasons include the lack of an independent judiciary, the lack of published court decisions, and a tendency to criminalize civil disputes, among others. As such, arbitration has become a preferred alternative to litigation. On June 17, 2010, the National Assembly of Vietnam passed a new act on commercial arbitration replacing the July 1, 2003 ordinance on commercial arbitration. The new act will take effect on January 1, 2011, and it is widely expected by the Vietnamese legal profession and lawmakers will create a favorable legal framework for the expansion of the arbitration service market in Vietnam. The new act is inspired by the UNCITRAL Model Arbitration Law of 1985 as are most new arbitration laws throughout the world. As opposed to the 2003 ordinance, the 2010 Act allows parties to request interim relief from the arbitrators. Also the new act eliminates the mandate that arbitrators be Vietnamese. The law has addressed the ordinance's shortcomings and reflects international standards. Commercial arbitration law is an important milestone in the improvement process of the laws on commercial arbitration in Vietnam. However, it is still too soon to affirm anything definitely because there remain many obstacles to the activation of arbitration. Rule of law and business cultural factors are important. The leading arbitral institution, VIAC, which is attached to the Vietnam Chamber of Commerce and Industry, is expected to play an important role for boosting the competitiveness of Vietnamese arbitration as an avenue to dispute settlement.

• Korean Journal of Head & Neck Oncology
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• v.17 no.1
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• pp.59-62
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• 2001

Objectives: We report an interim result of conformal radiotherapy in a patient with early stage cancer at the base of the tongue, which developed in a previously irradiated area. Materials and Methods: A 64-year-old male patient was diagnosed with T4N0M0 supraglottic cancer. He received 72Gy of radiation therapy from 21 November 1988 to 24 February 1989. He had local failure and underwent a salvage total laryngectomy on 28 August 1989. Subsequently, he did well. In early 1999, he suffered from throat pain. He had a 2.5cm ulcerative mass at the base of his tongue, in the area that had been irradiated previously. Biopsy showed squamous cell carcinoma. After workup, he was diagnosed with base of tongue cancer with T2N0M0. Surgery was not feasible because the morbidity was not acceptable. Since it was difficult to re-irradiate the area with a curable dose using conventional 2D radiation therapy with an acceptable morbidity, we decided to try conformal radiotherapy. We used 7 static beam ports with field sizes from $7x6.4\;to\;8x8cm^2$, using 6 and 10MV photons. The fractionation regimen was 1.8Gy, 5 times per week. He received 64.8Gy in 36 fractions from 9 April 1999 to 1 June 1999. Results: In the 21 months since radiotherapy, the patient has not experienced any acute or chronic complications, such as xerostomia. He experienced relief of pain shortly after the start of radiotherapy, showed a complete response, and is still doing well. Conclusion: Conformal radiotherapy can be used to treat cancer that develops within a previously irradiated field, with curative intent.