{"id":277471,"date":"2023-08-14T14:00:00","date_gmt":"2023-08-14T12:00:00","guid":{"rendered":"https:\/\/daily.jusconnect.com\/?p=277471"},"modified":"2023-09-20T12:22:40","modified_gmt":"2023-09-20T10:22:40","slug":"enforcement-of-interim-reliefs-outside-the-seat-of-the-arbitration","status":"publish","type":"post","link":"https:\/\/dailyjus.com\/index.php\/2023\/08\/14\/enforcement-of-interim-reliefs-outside-the-seat-of-the-arbitration\/","title":{"rendered":"Enforcement of Interim Reliefs Outside the Seat of the Arbitration"},"content":{"rendered":"\n

L’ex\u00e9cution des mesures \u00e0 titre provisoire rendues par un tribunal arbitral situ\u00e9 \u00e0 l’\u00e9tranger<\/h1>\n\n\n\n

Book Launch Event<\/h2>\n\n\n\n
\n\n\n\n

THE AUTHOR:<\/strong>
A\u00e9cio Filipe<\/strong><\/a>, Associate with the Litigation, Arbitration and French Desk group at BMA Advogados<\/a><\/p>\n\n\n\n

\n\n\n\n
<\/div>\n\n\n\n

In recent years, one can observe a progressive evolution of the autonomy of arbitration vis-\u00e0-vis State courts, which reduced the necessity of court intervention to ensure the effectiveness of arbitral proceedings. However, there are still some areas where cooperation between these two jurisdictions is necessary. Particularly, in case of enforcement of interim reliefs outside the seat of arbitration.<\/p>\n\n\n\n

When one considers the fact that the parties have constantly been moving their goods around the globe, one can realize how international arbitration proceedings often take place in countries where the parties have neither assets nor commercial operations. Accordingly, parties may seek to enforce foreign interim reliefs in countries other than the one where lies the seat of the arbitration, facing however different challenges to enforce such a measure.<\/p>\n\n\n\n

\"\"<\/figure>
\n

Considering the practical importance of this subject, \u201c<\/em>L\u2019ex\u00e9cution des mesures \u00e0 titre provisoire rendues par un tribunal arbitral situ\u00e9 \u00e0 l\u2019\u00e9tranger<\/em><\/a>\u201d, written by A\u00e9cio Filipe Coelho Fraga de Oliveira<\/a> (with a preface by Renato Stpehan Grion and Ana Gerdau de Borja Mercereau), published by L\u2019Harmattan, in Paris, presents bold proposals on how to ensure the effectiveness of these measures worldwide, sparking discussions on the applicability of mechanism known as \u201carbitral letters\u201d.<\/p>\n\n\n\n

The launch event, which is supported, among others, by Jus Mundi<\/a>, will be held in S\u00e3o Paulo, Brazil<\/a>, on 16 August, at BMA Advogados<\/a>. Registration can be made through this link<\/a>, and the event will include a roundtable discussion between Professors Selma Lemes<\/a>, Suzana Cremasco, Andr\u00e9 Abbud<\/a>, and Renato Grion<\/a> on the main controversies addressed in the book. In particular, the panelists will address the enforcement in Brazil<\/a> of foreign interim reliefs issued by arbitral tribunals.<\/p>\n<\/div><\/div>\n\n\n\n

Advancing the dialogues that will take place on 16 August, Jus Mundi was pleased to interview Mr. Oliveira to find out more about the issues he analyzes in his book. <\/p>\n\n\n\n

<\/div>\n\n\n\n

Can you explain our readers why the enforcement of \u201cforeign\u201d interim reliefs issued by arbitral tribunals is an important topic?<\/strong>  <\/h2>\n\n\n\n

Thank you very much Jus Mundi<\/a> and Jus Connect<\/a> for this opportunity. It is a great pleasure for me to discuss hot topics related to the enforcement of \u201cforeign\u201d interim reliefs.<\/p>\n\n\n\n

First off, it is important to clarify that I refer to \u201cforeign\u201d interim reliefs as interim reliefs enforced in jurisdiction others than the one where the seat of arbitration is located.<\/p>\n\n\n\n

As to the importance of this subject, in a globalized world where arbitration is the preferred method of dispute resolution, it is essential for the parties to enforce interim reliefs in countries other than the one where the arbitration is seated. While it is true that, in most cases, these measures are voluntarily complied by the parties, there are situations where they need to be enforced.<\/p>\n\n\n\n

My book reveals, however, that there are real barriers to enforcing such a decision. These challenges commonly revolve around three key issues:<\/p>\n\n\n\n

    \n
  1. the absence of standardized mechanisms to guarantee the effective enforcement of \u201cforeign\u201d interim reliefs;<\/li>\n\n\n\n
  2. the lack of legal provisions regulating such enforcement; or<\/li>\n\n\n\n
  3. the restrictions imposed by national law that confine this type of assistance solely to arbitrations conducted within their jurisdiction.<\/li>\n<\/ol>\n\n\n\n

    It became then paramount to bolster research efforts on how to secure the enforcement of such a measure, guaranteeing that arbitration remains the preferred and most reliable avenue for resolving transnational disputes. Indeed, all advantages of arbitration may be called into question if the parties cannot have their rights preserved on a provisional basis or their evidence produced in an urgent situation.<\/p>\n\n\n\n

    <\/div>\n\n\n\n

    You mentioned that there is a lack of legal provisions on the enforcement of \u201cforeign\u201d interim reliefs issued by arbitral tribunals. Could you explain why?<\/strong><\/h2>\n\n\n\n

    The lack of legal provisions on the enforcement of \u201cforeign\u201d interim reliefs seems to result from the fact that this subject has only come to prominence in recent times. Not long ago, we were still discussing whether arbitrators had the power to grant interim reliefs.<\/p>\n\n\n\n

    Although case law and scholars had already recognized such a possibility, in the twentieth century, most national laws and arbitration rules were still silent on this matter. For instance, the Brazilian Arbitration Act (\u201cBAA\u201d – Law No. 9307 of 1996) was modified eight years ago to explicitly address this matter (See<\/em> BAA, article 22-B).<\/p>\n\n\n\n

    In parallel to these changes, delocalized arbitrations have become more and more frequent with globalization, which set the perfect stage for parties to seek enforcement of interim reliefs outside the seat of the arbitration.<\/p>\n\n\n\n

    As this transformative shift has taken place only recently, adequate time has not yet elapsed for the essential adjustments to be made in national laws, arbitration rules, and international conventions.<\/p>\n\n\n\n

    <\/div>\n\n\n\n

    In this context, could you summarize what is the current Brazilian legal landscape on the enforcement of \u201cforeign\u201d interim reliefs?<\/strong><\/h2>\n\n\n\n

    Considering the absence of explicit provisions in the BAA, both recent legal judgments and scholarly works have presented a diverse range of mechanisms that could be implemented in Brazil<\/a> to effectively enforce \u201cforeign\u201d interim reliefs: <\/p>\n\n\n\n

      \n
    1. the use of letters rogatory; <\/li>\n\n\n\n
    2. the enforcement of interim measures through the recognition and enforcement of foreign arbitral awards (\u201cassimilation system\u201d); or<\/li>\n\n\n\n
    3. the application of arbitral letter.<\/li>\n<\/ol>\n\n\n\n
      <\/div>\n\n\n\n

      Could you briefly describe these mechanisms?<\/strong><\/h2>\n\n\n\n