Lloyd's Maritime and Commercial Law Quarterly
THE JURISDICTION OF THE COURTS TO GRANT INTERIM MEASURES IN SUPPORT OF ARBITRATION PROCEEDINGS
Channel Tunnel Group v. Balfour Beatty
1. Introduction
Notwithstanding its wide and seemingly ever-increasing popularity as a mechanism for resolving commercial disputes, arbitration has a number of potential weaknesses when compared with litigation. Perhaps one of the most serious is the arbitral tribunal’s lack of coercive powers. For this reason, it is recognized that, in order for the arbitral process to be effective, the support of the courts is necessary.1 Although by choosing arbitration the parties have indicated their intention to refer their disputes to a private tribunal rather than the courts, there are various situations in which the intervention of the courts is most valuable. In many cases, the availability of interim or provisional measures from the courts is essential if arbitration proceedings are to be conducted effectively.
The fact that the courts have the power to order interim measures does not limit the powers of the arbitral tribunal. In relation to certain matters the courts and the arbitral tribunal have concurrent powers (e.g., the power to order the inspection of property which is the subject-matter of the dispute). Where the parties have adopted institutional arbitration rules, those rules will normally confer on the arbitral tribunal the necessary power to order interim measures. For example, Art. 26(1) of the UNCITRAL Arbitration Rules provides:
310