INTERIM MEASURES IN INTERNATIONAL ARBITRATION - THE RELATIONSHIP BETWEEN POWER OF COMPETENT COURT AN ARBITRAL TRIBUNAL TO ORDER INTERIM MEASURES

Abstract

          In arbitration proceedings, as in court proceedings, interim measures are an important instrument to protect the rights of the parties to arbitration from the time the dispute has arisen until the issuance of final award.

          In recent years, many jurisdictions have been expressly recognized the arbitral tribunal’s power to grant interim measures. However, under the Thai Arbitration Act B.E.2545, there is no provision regarding this matter. Consequently, the issue concerning the arbitral tribunal’s power to grant interim measures, including the relationship between the competent courts’ and arbitral tribunals’ authority to order interim measures, under Thai law is yet controversial.

          Also, it is necessary to clarify a relationship of the power to grant interim measures between competent court and arbitral tribunal to avoid potential inconsistence or contradiction of interim measures regarding the same matter.

          The author is of opinion that the amendment of Thai Arbitration Act by providing a provision granting the arbitral tribunal power to issue interim measures will make Thai law be corresponded with the international standard and can resolve this problem.

          This article will introduce and analyze the UNCITRAL Model Law of International Commercial Arbitration, Japanese law, and German law as examples of explicit recognition of the arbitral tribunal’s power to grant interim measures and then, propose an appropriate resolution regarding the relationship between competent court and arbitral tribunal ordered interim measures.