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ADR. Arbitraż i Mediacja

nr 4/2016

Interim measures in commercial arbitration – general overview in the context of Polish regulations

Piotr Gałązka
a barrister in Warsaw Bar Association, graduate of the Faculty of Law and Administration at the University of Warsaw; Director of Representation Office in Brussels of Polish Bank Association; from 2010 until 2015 he was the Secretary of the Court of Conciliation (Arbitration) at the Polish Bank Association in Warsaw
Damian Wyrzykowski
a graduate of the Faculty of Law and Administration at the University of Warsaw; since 2012 he works at the Court of Conciliation (Arbitration) at the Polish Bank Association in Warsaw; currently performing his doctoral studies at the Faculty of Law and Administration at the University of Warsaw
Abstrakt

I. Introduction Arbitration has become an equal and important alternative for resolution of disputes, especially those where parties conduct cross-border commercial activity. In many cases national courts are less suitable for settlement of international transactions, while arbitration is structured specifically to facilitate resolution of disputes arising from such transactions between parties from different countries2. However, the issue of interim measures granted by the arbitral tribunals remains open for discussion regarding their effectiveness in granting temporary relief for claimant.  Although parties to arbitration focus their litigation strategy most of all on actions leading directly to obtaining a specific (that is: satisfying) arbitral award, one must not forget about the use and the importance of interim measures as it is recognized that they “play a significant role in international arbitration”3. During arbitration it may often turn out that that there is a need for either the arbitral tribunal or a state court to issue such measures. The abovementioned necessity may for example derive from the need to protect assets, to preserve evidence or – more generally speaking – to introduce other 37forms of maintaining “the status quo pending the outcome of the arbitration proceedings themselves”4. As it then might be noticed, the purpose of interim measures is in general to protect a party to the dispute from damage which it may suffer during the arbitral process5.  Therefore, in order to effectively safeguard its position during arbitration, party to the dispute must actively evaluate whether the use of an interim measure is required and if so, which type of it – and when – should be used. The right use of an interim measure in a proper phase of arbitration can in fact eventually constitute the sine qua non condition of the effectiveness of an arbitral award as such a measure ensures “that once the award is rendered, relief would still be possible”6.  However, the effectiveness of interim measures issued by the arbitral tribunal is tempered by the fact that they can be granted only once the tribunal is constituted. In order to provide an efficient procedure of the issuance of interim measures, a number of permanent courts of arbitration decided to include an emergency arbitrator institution into their rules of procedure.  The aim of this article is to analyse interim measures in arbitration – with special attention being paid to Polish legal regulations – as well as to present the institution of the emergency arbitrator in Polish arbitration practice basing on the example of “arbitrator for urgent matters” provided for in the Rules of Procedure of the Court of Conciliation (Arbitration) at the Polish Bank Association. II. Definition of interim measures There is no universal, precise definition of interim...