1997, p. 1). The regime applies equally for domestic and international arbitrations (see Collins, 1997, pp 96-97) 4.1.2 Survey of the solutions for the issues 4. 2. 1 The relationship between court-ordered interim relief and arbitration Underlying concept The underlying concept will be referred to as a policy of subsid iary court jurisdiction The task to grant interim relief is in the first place allocated to the arbitral tribunal The court can only step in if the arbitrator has no power or is unable for the time being to act effectively. A court-subsid arity approach requires a conflict rule. It is for the conflict rule to determine the precond itions for court jurisdiction. It is in place to set the limits of court jurisdiction and can therefore also be referred to as limitation rule In English law it is the >effectiveness test= of section 44 (5) Arbitration Act 1996 Hereafter all provisions without further reference are those of the Arbitration Act 1996) Access to the court The central provision in the Arbitration Act 1996 is section 44. It is about >court powers exercisable port of arbitral proceed ings= Further relevant provisions are section 105 in connection with >The High Court and County Courts(Allocation of Arbitration Proceedings)Order 1996=, which determines that the High Court has general jurisdiction to grant interim measures of protection under section 44, although the Central london County Court may have limited jurisdiction in small cases under certain circumstances. Section 2 subsection 3(b) extends the courts jurisdiction. If the seat of the arbitration is overseas or has not been designated or determined, the court has discretion to grant interim relief under section 44. The court=s decision will be guided by whether or not it would be appropriate to do so. Therefore the provision restates the principle as developed in the Channel Tunnel case. The Arbitration Act 1996 further provides for legal definitions of terms used in section 44.A comprehensive list of minor definitions is set out in section 82. Section 83 indexes all defined expressions in a user-friendly manner. Order 73 of the Rules of the Supreme Court(rsC) has been newly drafted and renamed >Applications Relating to Arbitration= by the >Rules of the Supreme Court(Amendment)1996=(see Practice Note by Colman J., 1997, pp 379-380). RSC Ord. 73, rule 18(1) has special relevance for the interpretation of section 44 (3). RSC Ord. 73, rule 15(2)states that generally all arbitration applications shall be heard in chambers Section 44 has seven subsections. They lay out a sophisticated mechanism for the relationship between the court and the arbitral tribunal with regard to inte measures of protection. The large number of subsections is due to the detailed elaboration of the subsid arity approach. Section 44 does not specifically include a provision stating that seeking recourse to the court for interim relief does not constitute a waiver of the arbitration agreement but the very existence of the section can be regarded as such an intention
1997, p. 1). The regime applies equally for domestic and international arbitrations (see Collins, 1997, pp. 96-97). 4.1.2 Survey of the solutions for the issues 4.1.2.1 The relationship between court-ordered interim relief and arbitration Underlying concept The underlying concept will be referred to as a policy of subsidiary court jurisdiction. The task to grant interim relief is in the first place allocated to the arbitral tribunal. The court can only step in if the arbitrator has no power or is unable for the time being to act effectively. A court-subsidiarity approach requires a conflict rule. It is for the conflict rule to determine the preconditions for court jurisdiction. It is in place to set the limits of court jurisdiction and can therefore also be referred to as limitation rule. In English law it is the >effectiveness test= of section 44 (5) Arbitration Act 1996 (hereafter all provisions without further reference are those of the Arbitration Act 1996). Access to the court The central provision in the Arbitration Act 1996 is section 44. It is about >court powers exercisable in support of arbitral proceedings=. Further relevant provisions are section 105 in connection with >The High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996=, which determines that the High Court has general jurisdiction to grant interim measures of protection under section 44, although the Central London County Court may have limited jurisdiction in small cases under certain circumstances. Section 2 subsection 3 (b) extends the courts jurisdiction. If the seat of the arbitration is overseas or has not been designated or determined, the court has discretion to grant interim relief under section 44. The court=s decision will be guided by whether or not it would be appropriate to do so. Therefore the provision restates the principle as developed in the Channel Tunnel case. The Arbitration Act 1996 further provides for legal definitions of terms used in section 44. A comprehensive list of minor definitions is set out in section 82. Section 83 indexes all defined expressions in a user-friendly manner. Order 73 of the Rules of the Supreme Court (RSC) has been newly drafted and renamed >Applications Relating to Arbitration= by the >Rules of the Supreme Court (Amendment) 1996= (see Practice Note by Colman J., 1997, pp. 379-380). RSC Ord. 73, rule 18 (1) has special relevance for the interpretation of section 44 (3). RSC Ord. 73, rule 15 (2) states that generally all arbitration applications shall be heard in chambers. Section 44 has seven subsections. They lay out a sophisticated mechanism for the relationship between the court and the arbitral tribunal with regard to interim measures of protection. The large number of subsections is due to the detailed elaboration of the subsidiarity approach. Section 44 does not specifically include a provision stating that seeking recourse to the court for interim relief does not constitute a waiver of the arbitration agreement. But the very existence of the section can be regarded as such an intention
In the following lines, each subsection of section 44 will be briefly analysed Subsection 1 grants the court the same power of making orders about matters pecified in subsection 2 as it has for the purpose and in relation to legal proceedings It also provides for the parties= choice to opt out of court support. The possibility to opt out of court-sponsored interim relief is to be welcomed especially since the parties can rule out court support in certain matters and retain it in others This right te choose reflects party autonomy. But it should be noted that opting-out of court protection under section 44 will strip the parties of access to ex parte Mareva injunctions and Anton Piller orders(after Anton Piller KG v Manufacturing Processes Ltd )as these are remedies an arbitrator cannot grant even if the parties conferred power to him under section 39(infra). If they further omit to opt in section 39, the scope of interim measures of protection will be reduced to the remedies available under section 38. Among them are security for costs(section 38(3) Section 44 (2) lists matters in respect of which jurisdiction has been conferred upon the sale of any goods that are the subject of the proceedings or the granting of an interim injunction. The issues are addressed in a concrete manner but some of them overlap, which makes it B at first glance B confusing to decide on which matter to base jurisdiction for an interim measure of protection known from litigation By way of an example, a look at the commentaries on the new Act shows an astonishing diversity of answers to the question of where to ground the court=s urisdiction for an Anton Piller order. Rutherford and Sims(1996, p. 152)regard section 44(2)(c)as the basis, whereas Harris, Planterose and Tecks (1996, p. 179) prefer section 44(2)(b). Merkin(1996, p. 72)seems to locate the jurisdiction to grant Anton Piller orders even in section 44(3). This is, however, wrong as the court only has power with respect to the matters listed in subsection 2. Thus any relief must have a jurisdictional basis in a matter listed in that subsection. But also the localization the other authors is only sensible at first glance. In each case, the word ing of the two matters chosen matches the aim of an Anton Piller order. Lord Denning mr described it as follows in Yousif v. Salama: >[An Anton Piller order] would be preserving the evidence in the case. But a systematic look taken at the three norms dealing with jurisdiction for interim measures of protection(sections 38, 39 and 44)reveals that neither of their choices is correct It becomes clear from section 44 (5)that sections 38, 39 and 44 form a systematic union. Section 44 (5)incorporates the conflict or limitation rule central to the subsid iarity approach Only if an arbitrator has no power to grant the respective remedy, the court has jurisdiction without passing the >effectiveness= test For any matter listed in section 38, the >effectiveness=test of section 44 (5)must be passed because the arbitrator possesses the powers described in section 38 ex lege, i.e., they are conferred to him by statute. An exception would be that the parties ruled out a certain power listed in section 38. The consequence is that, if a matter listed in section 44 (2)forms the jurisdictional basis of a specific interim measure of protection granted by the court, the complementary power in section 38 will provide for the arbitrator=s jurisdiction with respect to this remedy This is the case as otherwise the conflict or limitation rule of section 44(5)could not fulfill its function. It depends on a system of complementary powers to transparently determine the cases(other than the obvious ones affecting third parties) in which an arbitrator has no power
In the following lines, each subsection of section 44 will be briefly analysed. Subsection 1 grants the court the same power of making orders about matters specified in subsection 2 as it has for the purpose and in relation to legal proceedings. It also provides for the parties= choice to opt out of court support. The possibility to opt out of court-sponsored interim relief is to be welcomed especially since the parties can rule out court support in certain matters and retain it in others. This right to choose reflects party autonomy. But it should be noted that opting-out of court protection under section 44 will strip the parties of access to ex parte Mareva injunctions and Anton Piller orders (after Anton Piller KG v. Manufacturing Processes Ltd.) as these are remedies an arbitrator cannot grant even if the parties conferred power to him under section 39 (infra). If they further omit to opt in section 39, the scope of interim measures of protection will be reduced to the remedies available under section 38. Among them are security for costs (section 38 (3)). Section 44 (2) lists matters in respect of which jurisdiction has been conferred upon the courts, such as the taking of evidence of witnesses, the preservation of evidence, the sale of any goods that are the subject of the proceedings or the granting of an interim injunction. The issues are addressed in a concrete manner but some of them overlap, which makes it B at first glance B confusing to decide on which matter to base jurisdiction for an interim measure of protection known from litigation. By way of an example, a look at the commentaries on the new Act shows an astonishing diversity of answers to the question of where to ground the court=s jurisdiction for an Anton Piller order. Rutherford and Sims (1996, p. 152) regard section 44 (2) (c) as the basis, whereas Harris, Planterose and Tecks (1996, p. 179) prefer section 44 (2) (b). Merkin (1996, p. 72) seems to locate the jurisdiction to grant Anton Piller orders even in section 44 (3). This is, however, wrong as the court only has power with respect to the matters listed in subsection 2. Thus any relief must have a jurisdictional basis in a matter listed in that subsection. But also the localization by the other authors is only sensible at first glance. In each case, the wording of the two matters chosen matches the aim of an Anton Piller order. Lord Denning MR described it as follows in Yousif v. Salama: >[An Anton Piller order] would be preserving the evidence in the case.= But a systematic look taken at the three norms dealing with jurisdiction for interim measures of protection (sections 38, 39 and 44) reveals that neither of their choices is correct. It becomes clear from section 44 (5) that sections 38, 39 and 44 form a systematic union. Section 44 (5) incorporates the conflict or limitation rule central to the subsidiarity approach. Only if an arbitrator has no power to grant the respective remedy, the court has jurisdiction without passing the >effectiveness= test. For any matter listed in section 38, the >effectiveness= test of section 44 (5) must be passed because the arbitrator possesses the powers described in section 38 ex lege, i.e., they are conferred to him by statute. An exception would be that the parties ruled out a certain power listed in section 38. The consequence is that, if a matter listed in section 44 (2) forms the jurisdictional basis of a specific interim measure of protection granted by the court, the complementary power in section 38 will provide for the arbitrator=s jurisdiction with respect to this remedy. This is the case as otherwise the conflict or limitation rule of section 44 (5) could not fulfill its function. It depends on a system of complementary powers to transparently determine the cases (other than the obvious ones affecting third parties) in which an arbitrator has no power
The authors mentioned above base the court=s jurisdiction for an anton Piller Order on paragraphs 44()(c )and(b)respectively, which complement subsections 38(4) and(6)respectively. This choice implies, as contrasted to the above, that an arbitrator has the power to order an Anton Piller order -not affecting third parties-under section 38 subsection 4 or subsection 6. This, however, contradicts the DAC Report on section 39. The commentary on that section rules out an arbitrator=s power to grant an Anton Piller order(1996, No. 201). But if the parties cannot confer such a power to the arbitrator, how can it have been conferred ex lege in the first place? Therefore it is not enough to look at the wording of the matters mentioned in section 44(2 )alone to decide which matter forms the basis of the court=s jurisd iction for a certain measure of interim protection. It is also necessary to pay attention to the systematic consequences that flow from such an allocation for an arbitrator=s power under section 38. Thus it seems only convincing to regard section 44 (2)(e)as the jurisdictional basis for an Anton Piller order granted by the court This analysis has shown that the provisions on interim relief have a systematically interlinked structure. The overlap of matters in section 44(2 ), especially paragraphs (b),(c)and(e) with respect to an Anton Piller order, does not cloud the clarity of the section as long as a systematic allocation having regard to sections 38 and 39 take place. This is not only an academic observation, but also has practical implications RSC Ord. 73, rule 4(d)requires(where appropriate)the specification of the section under which the application is brought. It may be sufficient to quote section 44 to satisfy this rule, but RSC Ord. 73, rule 18(1) requires for applications under section 44 that the application states the reasons: >Why the deponent believes that the cond itions in section 44 (5)is satisfied. The most uncontroversial way to do so is by relying on the ground that the arbitrator has no power. This is the case for the Anton Piller order Only if, according to subsections I and 2, the jurisdiction of the court for a certain measure of protection is established, the next subsections become relevant Subsections 3. 4 and 5 determine whether the court can exercise the established jurisdiction Subsections 3 and 4 differ between urgent and non-urgent applications. In the case of urgency, a party can apply to the court without permission of the tribunal or without a special, written party agreement. In the case of a non-urgent application, it cannot The concept of urgency is central to determining the correct application procedure. In subsection 3 special reference is made to orders necessary for the purpose of preserving evidence or assets. This refers to Anton Piller orders and Mareva injunctions. These orders are generally granted ex parte. A comparison of subsections 3 and 4 gives rise to the interpretation that ex parte orders can also be granted by court in urgent situations in support of arbitration. It is not only the special -though indirect-reference to Mareva injunctions and Anton Piller orders which support this interpretation, but especially the wording of section 4. A part put in brackets reads: >Upon notice to the other parties and to the tribunal. This has a double effect Firstly, it states that ex parte orders are unavailable in non-urgent cases and, secondly, that they are available in urgent cases(argumentum e contrario ) RSC Ord. 73, rule 18(1)refers to ex parte applications. It thereby supports the above interpretation Rule 18(1)lists the reasons an affidavit for an urgent ex parte application shall
The authors mentioned above base the court=s jurisdiction for an Anton Piller Order on paragraphs 44 (2) (c ) and (b) respectively, which complement subsections 38 (4) and (6) respectively. This choice implies, as contrasted to the above, that an arbitrator has the power to order an Anton Piller order - not affecting third parties - under section 38 subsection 4 or subsection 6. This, however, contradicts the DAC Report on section 39. The commentary on that section rules out an arbitrator=s power to grant an Anton Piller order (1996, No. 201). But if the parties cannot confer such a power to the arbitrator, how can it have been conferred ex lege in the first place? Therefore it is not enough to look at the wording of the matters mentioned in section 44 (2) alone to decide which matter forms the basis of the court=s jurisdiction for a certain measure of interim protection. It is also necessary to pay attention to the systematic consequences that flow from such an allocation for an arbitrator=s power under section 38. Thus it seems only convincing to regard section 44 (2) (e) as the jurisdictional basis for an Anton Piller order granted by the court. This analysis has shown that the provisions on interim relief have a systematically interlinked structure. The overlap of matters in section 44 (2), especially paragraphs (b), (c) and (e) with respect to an Anton Piller order, does not cloud the clarity of the section as long as a systematic allocation having regard to sections 38 and 39 takes place. This is not only an academic observation, but also has practical implications. RSC Ord. 73, rule 4 (d) requires (where appropriate) the specification of the section under which the application is brought. It may be sufficient to quote section 44 to satisfy this rule, but RSC Ord. 73, rule 18 (1) requires for applications under section 44 that the application states the reasons: >Why the deponent believes that the conditions in section 44 (5) is satisfied.= The most uncontroversial way to do so is by relying on the ground that the arbitrator has no power. This is the case for the Anton Piller order. Only if, according to subsections 1 and 2, the jurisdiction of the court for a certain measure of protection is established, the next subsections become relevant. Subsections 3, 4 and 5 determine whether the court can exercise the established jurisdiction. Subsections 3 and 4 differ between urgent and non-urgent applications. In the case of urgency, a party can apply to the court without permission of the tribunal or without a special, written party agreement. In the case of a non-urgent application, it cannot. The concept of urgency is central to determining the correct application procedure. In subsection 3 special reference is made to orders necessary for the purpose of preserving evidence or assets. This refers to Anton Piller orders and Mareva injunctions. These orders are generally granted ex parte. A comparison of subsections 3 and 4 gives rise to the interpretation that ex parte orders can also be granted by court in urgent situations in support of arbitration. It is not only the special - though indirect - reference to Mareva injunctions and Anton Piller orders which support this interpretation, but especially the wording of section 4. A part put in brackets reads: >Upon notice to the other parties and to the tribunal.= This has a double effect. Firstly, it states that ex parte orders are unavailable in non-urgent cases and, secondly, that they are available in urgent cases (argumentum e contrario). RSC Ord. 73, rule 18 (1) refers to ex parte applications. It thereby supports the above interpretation. Rule 18 (1) lists the reasons an affidavit for an urgent ex parte application shall