The Working Group II (Arbitration) has been reviewing the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International Commercial Arbitration for some time. The issue of ex parte interim measures is a key point of importance and controversy.
The present rules regarding ex parte interim measures are under review after observations that several Member States do not have any provision for dealing with the power of courts to issue interim protective measures in favour of parties to arbitration agreements. Consequently, some courts are unwilling to issue interim measures, while others are uncertain about the circumstances in which such court assistance should be available. The courts in some Member States have tried to define the situations in which the court may issue interim measures. However, findings vary about the extent to which courts may legitimately intervene to support the work of the arbitration tribunals without usurping their authority.
Redrafting the UNCITRAL Model Law
To prompt further discussions, the UNCITRAL Secretariat drafted a revised version of paragraph 7 of article 17 of the Model Law taking into account discussions and decisions at the 41st session of the Working Group.
The Working Group has not decided about whether the interim provisions should be formulated as opt-in or opt-out provisions for the parties so, the Secretariat drafted the following text containing two alternatives:
“[Unless otherwise agreed by the parties,][If expressly agreed by the parties] a party may file, without notice to the other party, a request for an interim measure of protection together with an application for a preliminary order directing the other party to take no action to frustrate the purpose of the interim measure requested.”
Despite wide divergence of views at its 42nd session on 10-14 January 2005, the Working Group agreed to retain the words “unless otherwise agreed by the parties” and to delete the words “if expressly agreed by the parties”.
At its 42nd session, the Working Group also accepted the Secretariat’s revision of the draft providing that:
a preliminary order is limited to a period of 20 days
a tribunal has more flexibility regarding the requesting party’s obligation to provide security. In particular, security does not have to be provided if the tribunal considers it inappropriate or unnecessary.
The Working Group also agreed to ask the Commission for time to be allocated for two additional sessions before the 39th session of the Commission in 2006, at which the Commission would be expected to review and adopt the draft provision.