NEW SOLUTIONS FOR INTERIM MEASURES OF PROTECTION IN INTERNATIONAL COMMERCIAL ARBITRATION: ENGLISH, GERMAN AND HONG KONG LAW COMPARED

Jan K. Schaefer (National University of Singapore)


The new English, German and Hong Kong arbitration legislation has prepared the ground for shifting interim relief to the realm of arbitration. All legal frameworks now address the three main issues that call for solutions in the lex arbitri: the relationship between the courts and arbitration, the arbitrator's competence to grant interim relief and the enforcement of arbitrator-granted interim relief. Two different concepts can be identified underlying the new laws: on the one hand, there is the court-subsidiarity model of England and, on the other hand, the free-choice model of the Model Law, which was adopted and refined by Germany and Hong Kong. England was the first country to adopt an elaborate court-subsidiarity model; Germany the first country to provide for the enforcement of arbitrator-granted interim relief, even if the seat of arbitration is outside Germany. German law gives a unilateral answer to the question of cross-border enforcement of arbitrator-granted relief - a problem that has not yet received a solution in any international enforcement instrument. The New York Convention does not apply to interim relief. This article introduces the three main issues in a general manner, describes the new solutions of English, German and Hong Kong law in country reports and discusses the different solutions provided against this background on a comparative basis. The court-subsidiarity model will be criticized and the free-choice model recommended.

Keywords: Arbitration Act 1996; Hong Kong Arbitration Ordinance; German Code of Civil Procedure; UNCITRAL Model Law; lex arbitri; interim measures of protection; interim relief; provisional remedies; access to court; arbitrator's competence to grant interim relief; enforcement of arbitrator-granted interim relief; cross-border enforcement; party autonomy; court-subsidiarity model; free-choice model; mandatory provisions; arbitration rules.

Cite as: J. Schaefer, New Solutions for Interim Measures of Protection in International Commercial Arbitration: English, German and Hong Kong Law Compared, vol 2.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (August 1998), <http://www.ejcl.org/22/art22-2.html>


Contents

1. Introduction
2. On the need for interim measures of protection in international commercial arbitration
3. The three main issues
3.1 The relationship between court-ordered interim relief and arbitration
3.1.1 Underlying concepts
3.1.2 Access to the courts
3.2 The arbitrator's competence to order interim measures of protection
3.3 The enforcement of arbitrator-granted remedies
4. Country reports
4.1 England
4.1.1 Background
4.1.2 Survey of the solutions for the issues
4.1.2.1 The relationship between court-ordered interim relief and arbitration
4.1.2.2 The arbitrator's competence to order interim measures of protection
4.1.2.3 The enforcement of arbitrator-granted remedies
4.1.3 On the restrictions of party's choice as prescribed in the mandatory provisions of the lex arbitri
4.1.4 Summary
4.2 Germany
4.2.1 Background
4.2.2 Survey of the solutions for the issues
4.2.2.1 The relationship between court-ordered interim relief and arbitration
4.2.2.2 The arbitrator's competence to order interim measures of protection
4.2.2.3 The enforcement of arbitrator-granted remedies
4.2.3 On the restrictions of party's choice as prescribed in the mandatory provisions of the lex arbitri
4.2.4 Summary
4.3 Hong Kong
4.3.1 Background
4.3.2 Survey of the solutions for the issues
4.3.2.1 The relationship between court-ordered interim relief and arbitration
4.3.2.2 The arbitrator's competence to order interim measures of protection
4.3.2.3 The enforcement of arbitrator-granted remedies
4.3.3 On the restrictions of party's choice as prescribed in the mandatory provisions of the lex arbitri
4.3.4 Summary
5. Comparative aspects
5.1 The relationship between court-ordered interim relief and arbitration
5.1.1 Underlying concepts compared
5.1.2 Access to the court
5.2 The arbitrator's competence to order interim measures of protection
5.3 The enforcement of arbitrator-granted interim relief
5.4 On the restrictions of party's choice as prescribed in the mandatory provisions of the lex arbitri
6. Conclusion
Bibliography
Note

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