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transnational law transnational law (lex mercatoria or international business law) and "Arbitration agreement and interim measures by court" 2020-05-25 13:38:56

No. XIII.1.4 - Arbitration agreement and interim measures by court

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.

1 The Principle does not answer the questions which measures may be requested from the domestic court. This issue must be decided pursuant to the procedural law of the courts which may contain an exhaustive list of possible interim measures that can be obtained from the courts in that jurisdiction.

2 The Principle is mandatory which means that the parties may not agree to exclude resort to courts for all or certain interim measures.

Please cite as: "Commentary to Trans-Lex Principle , "
Arbitration Rules
International Legislation
Model Laws
National Legislation
Contract Clauses
1. Contractual Clause Recognizing Judicial Interim Measures
Sales & Purchase Contract

(...) The provisions of this section shall not be deemed to preclude any Party hereto from seeking preliminary injunctive or other equitable relief to protect or enforce its rights hereunder pending arbitration, or to prohibit any court from making preliminary findings of fact in connection with granting or denying such preliminary injunctive relief pending arbitration, or to preclude any Party hereto from seeking permanent injunctive or other equitable relief after and in accordance with the decision of the arbitrators (...)


Nothing contained herein will be construed to exclude a party to an arbitration, prior to the appointment of the Tribunal, from seeking provisional or emergency remedies from any court of competent jurisdiction or pursuant to the Emergency Arbitration Provisions of the ICC, and such application shall not be deemed inconsistent with, or a waiver of, this agreement to arbitrate (...)

Services Contract
Preliminary and Ancillary Relief

(...) In an emergency, however, when irreparable injury may occur before an arbitrator can be appointed and/or hear the matter, the aggrieved party may apply to a court for preliminary or ancillary relief. Any such application (...) shall be made in any state or federal court sitting in King County, Washington, having jurisdiction (...). Institution and prosecution of proceedings for preliminary or ancillary relief under this paragraph shall not be deemed to be a waiver of the parties' agreement to arbitrate any claim not specifically addressed by this paragraph. Any court asked to consider preliminary and ancillary relief by either party shall enter such orders as it deems appropriate, but such orders shall be effective only until the matter can be decided by an arbitrator (...)

Loan Contract
Choice of Law, Venue and Jury Trial Waiver

(...) If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the Santa Clara County, California Superior Court for such relief (...)

Arbitration Agreement
Availability of Injunctive Relief

In addition to the right under the Rules to petition to the court for provisional relief, Employee agrees that any party may also petition the court for preliminary injunctive relief where either party alleges or claims a violation of this Agreement or any other agreement regarding trade secrets, confidential information, nonsolicitation or Labor Code §2870, upon the same basis and showing as would other litigants, together with a showing that any potential arbitration award would be rendered ineffectual without such preliminary injunctive relief. Employee understands that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance of an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorney fees.

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