Article by Coleen C. Higgins
Arbitration is achieving widespread recognition as a private mechanism for adjudicating transnational maritime disputes. Increasingly frequent resort to arbitration in an era of expanding global endorsement of the arbitral process has been accompanied by an increasing need for urgent measures during the proceedings. Traditionally, interim or provisional measures are recognized as procedural mechanisms for addressing urgent matters at a stage of the proceedings when time is of the essence. The practical realities of interim relief introduce interactions between the arbitral tribunal and the national courts. Court assistance is critical in as much as courts have at their disposal the coercive enforcement powers of the sovereign state. Lacking the sovereign powers of the state, an arbitral tribunal has limited sanction power to enforce an interim ruling. Thus, the availability of court enforcement can be essential to the effectiveness of the arbitrator's rulings.
A threshold question emerges as to whether court involvement threatens arbitral autonomy. A well recognized advantage of arbitrating disputes involving parties of diverse nationalities is the removal of the dispute from the domestic judicial tribunals. This provides a neutral, de-politicized forum that does not harbor potential biases toward nationals of the domestic courts' jurisdiction.
The focus of this Article is whether involving national courts in interim measures of protection undermines or enhances the effectiveness of arbitration. At issue is whether the neutrality and autonomy of arbitration are affected by interaction with the national public courts. This is a particularly compelling concern since a hallmark of arbitration is providing a private method of resolving commercial disputes outside the constraints of the judicial infrastructure of the national courts.
The topic of interim measures has been the subject of extensive inquiry in the field of international law, yet is relatively little explored in writings concerning maritime arbitrations. The topic is of critical relevance in both practical and theoretical terms. Interim measures protect parties' rights and avoid later losses by preserving the status quo ante. In admiralty practice, vessel arrest or attachment necessitates court action. Moreover, the arrest or attachment proceeding may be instituted prior to the constitution of the arbitral panel. Court intervention at this, or at any, stage of the arbitral proceeding can have a profound effect on the length and cost of arbitration. Ultimately, the court proceedings may impact on the arbitral award by, for example, having an improper vessel arrest taken into account in the damages award.
The arbitral tribunal may likewise receive interim requests during the course of proceedings. Challenges to the arbitrators' authority to rule on interim measures are not uncommon and raise issues concerning the source and scope of arbitral power. This ill-defined area of the law is currently evolving, and the experience in maritime arbitrations significantly contributes to the emergence of a transnational legal regime for arbitration.
The approaches adopted toward interim relief in civil- and common-law jurisdictions are instructive in developing a comparative analytic framework for issues pertaining to an emerging a-national arbitration regime. Primary focus will be on United States arbitral practice, with discussion of French arbitration law for purposes of comparison. In the United States, maritime arbitrations conducted by the Society of Maritime Arbitrators (S.M.A.) are available publicly through its published award service. By contrast, in France, no regular publication of arbitral awards is available, though ad hoc reporting of awards occurs. Typically, the parties remain unidentified, thus protecting the confidentiality of the proceeding. In this Article, specific attention is directed to determining differences in the civil- and common-law practice and procedure, together with the impact these legal traditions may have on: (1) the autonomy; and (2) the effectiveness of arbitral proceedings.
Having due regard for the autonomous nature of arbitration, the question arises as to whether the parties can privately contract out of the national courts' jurisdiction over interim relief. Whether the parties can so oust the jurisdiction of the court in their agreement to arbitrate privately remains unanswered. One hypothesis of this Article is to contend that autonomy in arbitration is not synonymous with arbitral exclusivity over interim measures. A complementary and supportive relationship exists between the court and arbitral forums that enhances the validity of arbitration. A second hypothesis is that the experience of maritime arbitration in regard to interim measures demonstrates the emergence of a separate legal regime applicable to transnational arbitrations. The major contribution of maritime arbitration is the identification of an inherent power of arbitrators to order equitable injunctive relief. Further, developments to be observed in maritime arbitration transcend the maritime boundaries and have significance in the development and evolution of a transnational arbitration regime in the broader arena of commercial arbitration.
About the Author
Coleen C. Higgins. Admiralty Consultant, Tulane University Maritime Law Center, New Orleans, LA; Member of the Wisconsin Bar; B.A. Oberlin College, 1976; J.D. Univ. Of Wisconsin, 1980; Hague Academy of International Law, Netherlands, 1986; Diplome - Graduate Institute of International Studies, Geneva, Switzerland, 1987; LL.M. Admiralty-Tulane Univ., 1990.
Citation
65 Tul. L. Rev. 1519 (1991)