Young ICCA Skills Training Workshop: Interim & Provisional Measures in International Arbitration

Post Event Report

by Alejandro E. Chevalier (Akerman LLP, Miami) & Ivan Bracho Gonzalez (University of Miami School of Law)

On the occasion of the global rounds of the 2019 Foreign Direct Investment (FDI) International Arbitration Moot, Young ICCA organized a skills-training workshop in Miami on November 7, 2019.  The event was hosted by the University of Miami’s School of Law, and featured introductory remarks by Sandra Friedrich (Lecturer in Law & Director of the Law School’s International Arbitration Institute and its White & Case LL.M. Program).

The workshop involved a roundtable discussion among three Miami-based practitioners – Cristina Cárdenas (Partner, Reed Smith), Juan C. Garcia (Counsel, Hogan Lovells), and Silvia Marchili (Partner, White & Case) – aimed at building skills relating to the various legal, practical and strategic aspects of interim measures applications.

Mr. Garcia spoke first, providing an overview of the procedural and substantive issues to be considered prior to seeking interim measures.  He noted that there were three possible fora that parties could look towards for short-term relief: national courts, emergency arbitrators, or arbitral tribunals.  Mr. Garcia explained that national courts could, in some situations, provide a more appealing choice when immediate action is required and/or if a tribunal has not been constituted.  He noted that, depending on the circumstances of the case, court-ordered provisional measures could be more effective due to the broader enforcement powers of national courts.  In particular, he noted that judges may have less so-called “due process paranoia” than arbitrators – meaning that they may be inclined to order such measures more frequently.  Finally, Mr. Garcia discussed some of the requirements that courts typically look towards for granting provisional relief.  In this regard, he pointed out the avenues available for parties to enforce provisional measures granted by national courts, as well as the power of the arbitral tribunal to uphold or modify the relief granted by a national court.

Ms. Cárdenas noted the general standards related to the granting of interim & provisional measures, noting that most arbitral rules do not specify these requirements: prima facie jurisdiction, prima facie claim on merits (i.e. a claim needing protection), a likelihood of harm, proportionality of the measure requested, and the measure's urgency.  She indicated that urgency was, in some cases, the most difficult standard to establish.  Ms. Cárdenas then provided examples of the types of measures that could be requested from arbitral tribunals – listing cooperation in proceedings, evidence preservation, confidentiality issues (she referred to examples such as Abaclat and others v. Argentina and Tallinn v. Estonia), harassment in criminal proceedings, status quo preservation, antisuit injunctions (including measures attempting to stop criminal proceedings or other types of parallel proceedings that may be related to an arbitration), and security for costs.

Ms. Marchili focused on clients' expectations and the strategic aspects surrounding interim & provisional measures. She highlighted that mere frustrations presented by clients must not necessarily lead counsel to request provisional measures. Ms. Marchili added that factors to take into account while deciding if such measures should be requested include an analysis on the impact that the provisional measure could have on the totality of the case and the possible influence such a request may have on the parties' narratives, advocacy, and/or credibility. Additionally, she noted that the pleading requesting provisional measures may be one of the first pieces of written advocacy reviewed by an arbitral tribunal – making its importance evident.

Mr. Garcia illustrated these practical considerations and gave an example, from his own practice, of a particular commercial dispute where a request for provisional measures proved to be a necessary and outcome-determinative tool (despite the associated expense). 

Ms. Marchili told attendees about an investment arbitration in which she acted and was able to persuade the tribunal to issue preliminary measures ordering the respondent state to refrain from instituting or prosecuting judicial proceedings against or involving the claimant and its personnel.

The workshop proceeded to a lively Q & A session, after which Ms. Cárdenas shared her thoughts and experiences regarding the enforcement of interim orders by courts.  She expressed that although the party against whom the order was entered is most likely to comply with it in order to not upset the decision-maker, counsel still has to consider the best alternative, e.g., either to ask an emergency arbitrator for relief, or to go to a national court.

Participants were invited to a cocktail following the event, generously hosted by the University of Miami School of Law.

The event was organized by a steering committee composed of Rebeca E. Mosquera (Associate with Akerman LLP in Miami), Theominique Nottage(Associate with Higgs & Johnson in the Bahamas & Young ICCA Co-Chair), and Matthew Morantz (Associate with Curtis, Mallet-Prevost, Colt & Mosle in New York; Young ICCA Events Coordinator).  The event was supported by the Miami International Arbitration Society; KCAB INTERNATIONAL (hosts of the upcoming 2020 FDI moot global rounds); the University of Miami’s International Arbitration LL.M. Program and International Moot Court Program; and the Argentina Young Arbitration Practitioners.