Chapter 5 focuses on judicial assistance for arbitration and the importance of a court’ oversight role. Courts have resources, such as coercive powers, that tribunals lack. These powers enable courts to enter orders and impose penalties on parties who fail to comply. Additionally, courts play an important oversight role to ensure that arbitration adheres to minimum standards of fairness and due process. The chapter discusses the various ways that parties may seek court assistance, including asking the court to enforce an agreement to arbitrate, compel arbitration or rule on jurisdictional issues. Courts can also provide emergency relief such as orders to maintain the status quo, attach assets, or secure costs to preserve the effectiveness of the arbitration process. Although the extent of judicial review varies among jurisdictions, in most jurisdictions, courts and tribunals have concurrent jurisdiction to grant interim measures. in general, parties may seek provisional measures from a court before the tribunal is constituted, but once the tribunal is in place, they may need the tribunal’s authorization to seek court relief, or may only seek court relief in exceptional cases.

This chapter will address the topical issue of provisional measures in international arbitration as well as its recent offspring, namely emergency arbitration procedures. The aim of this chapter is to understand the historical background of such measures and procedures, their impact on the evolution of domestic legislations with respect to international arbitration, their integration and evolution in arbitration rules as well as their nature. The chapter will thus also address the power of the arbitrator to grant such measures, the type of measures that can be granted, as provisional measures or by an emergency arbitrator, as well as the procedural requirements and substantial conditions necessary to obtain such interim measures. Finally, the issue of enforcement of such measure will also be addressed.

Nowithstanding the powers of arbitral tribunals and emergency arbitrators to grant interim measures, it is generally recognized that there are compelling reasons to give parties access to national courts to grant interim relief even where the parties have subjected their disputes to arbitration. This Chapter analyses interim relief by state courts, including their powers, limitations, and types measures state courts will grant.

This chapter recognises the practical reality that in high-value, cross-border commercial litigation it is frequent to see claimants making applications for more than one type of interim relief. In addition to a freezing injunction and an ancillary disclosure order, the complexity of the facts and the defendant’s conduct may lead the claimant to apply for an anti-suit injunction, an anti-enforcement injunction, a Norwich Pharmacal order and/or a receivership order. It is suggested that this potential for a ‘kitchen sink’ approach to interim relief raises concerns about the financial pressure on defendants, the pressure on the English courts, and the consistency of the courts’ reasoning relating to the extraterritorial scope of interim relief. The significance of taking into account the pressure on the courts cannot be underestimated as the potential for delays resulting from interim relief may undermine access to justice. The chapter examines the relationship between freezing injunctions and other types of interim relief.

This chapter discusses the purpose of freezing injunctions and their potential for exploitation by unscrupulous claimants for tactical and strategtic aims. Emphasis is placed on the use of freezing injunction for unmeritorious purposes due to the potential of the injunction to ruin a thriving business. An overview of the key requirements for obtaining freezing injunctions is provided with a view to identifying potential problems with each requirement in domestic and international cases. A number of hypothetical scenarios is used to illustrate concerns about the current scope of freezing injunctions. It is demonstrated that these concerns are not limited to the protection of defendants but also the interests of foreign states.