Sydney Jacobs, Barrister at 13 Wentworth Chambers and Vikram Misra, Barrister at Clarence Chambers continue their series into arbitration and mediation. In Part 10, Sydney and Vikram discusses interim measures under the uncitral model law-freezing order with Legalwise Insights. Follow their series here.
Under Article 9 of the UNCITRAL Model Law (“the Model Law”) states:
“It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”
One example of such interim measures is an application for freezing orders. Courts have two concurrent powers to order freezing orders in aid of international arbitrations, being express power and inherent power.
Express Power
The first power is expressly conferred in Article 17J of the Model Law, which states that:
A court shall have the same power of issuing an interim measure in relation to arbitration proceedings , as it has in relation to proceedings in court; and that the court shall exercise such power in accordance with its own procedures in consideration of the specific features of international arbitration .
Further, under Article 17H(1):
An interim measure issued by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the competent court, irrespective of the country in which it was issued, subject to the provisions of Article 17I.
Article 17(2)(c) defines an interim measure to be:
“…any temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to:
(c) Provide a means of preserving assets out of which a subsequent award may be satisfied.
In resolving a justiciable controversy as to whether the court ought make an order under Article 17J of the Model Law, the court exercises federal jurisdiction in a matter arising under the Act. Such jurisdiction is conferred by s 39(2) of the Judiciary Act 1903 (Cth), read with s 76(ii) of the Commonwealth Constitution.
Inherent Power
Superior courts in Australia have inherent jurisdiction to make freezing orders to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction. This power is regulated by the various rules of court and detailed practice notes.
In our next article we will discuss the case of Duro Felgura Pty Ltd v Trans Global Projects Pty Ltd (in liq), [2018] WASCA 174, a case example of freezing orders in aid of international arbitration.
Copyright declaration: the text to this article is extracted from the chapter contributed by Sydney Jacobs to Thomson Reuters for the loose-leaf subscription service, Arbitration: Law & Practice, from the volume on International Arbitration. This article is best understood in context of an understanding of the relevant chapter.
With over 20 years’ experience as a barrister, Sydney Jacobs practices in the areas of commercial law and equity, real property and building and construction law. He has acquired experience in the area of easements: he has obtained easements for applicants and otherwise appeared in the cases listed below, has a number of current matters in the NSW Equity Division Real Property List being case -managed to final hearing 2018 and is briefed in certain easement matters being worked up for filing in Court. Prior to being called to the Bar, Sydney was a solicitor in the well -known firms listed below, as a commercial litigator with a construction law focus. Sydney has experience in acting for clients seeking or opposing easements and clients whose rights of way have been impeded by neighbours. You may connect with Sydney via email sjacobs@13wentworth.com.au or LinkedIn
Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to taxation law, property law, construction law and equity. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. You may connect with Vikram via email counsel@vikrammisra.com or LinkedIn
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