A CRITICAL ANALYSIS OF ARBITRAL PROVISIONAL MEASURES IN ENGLAND AND WALES A Thesis Submitted for the Degree of Doctor of Philosophy in Law by ShadatMohmeded School of Law Brunel University 17th Jan 2014 ABSTRACT Arbitral provisional measures are of great importance in protecting the rights of the parties to an arbitration agreement. Arbitration as a dispute mechanism is becoming increasingly powerful due to the ability of tribunals and courts to grant and enforce provisional measures which make the final award meaningful. The importance of provisional measures has increased in recent years as more parties are seeking them,1 and is likely to grow still more in the coming years.2 This project examines the problems surrounding arbitral provisional measures in England and Wales; as such problems constitute a threat to current and future arbitration. The thesis aims to identify, analyse and offer solutions to those problems that impede arbitral proceedings. This thesis initially examines the roots and the legislative development of the powers of arbitral tribunals to grant provisional measures and the role of the courts in arbitral proceedings in England. The examination highlights the roots of the problems and demonstrates how the approach towards provisional measures in England has shifted in due course from judicial dominance to arbitral competence, and how the role of the courts has become subsidiary. Further, the analysis highlights the problem of arbitrators in the granting and enforcement of provisional measures across borders, due to the inadequacy of the current Arbitration Act 1996, which provides very limited power to tribunals under its S.38,39 and 48. Additionally, the research aims to demonstrate that arbitral tribunals should be given effective and actual authority to grant arbitral provisional measures in order to comply with the arbitration agreement (party autonomy). Since no dispute mechanism can stand alone as an island, the courts should only become involved in support of the process – subject to the arbitral Acts that provide them with exclusive jurisdiction –where this is necessary in order to avoid conflicting decisions. However, the power of the courts to aid arbitration in granting such measures is limited by Council Regulation (EC) 44/2001 of the European Union, of which England is a member. 1See Werbick RJ, 'Arbitral Measures: fact or fiction?' (2002-2003) Dispute Resolution Journal at 57-64. 2 See Ferguson SM, 'Interim Measures of protection in international commercial arbitration: problems, proposed solutions and anticipated results', (2003) Current International Trade Law Journal 12:15. ii In international arbitration, timely application and enforcement of interim measures have a substantial effect on the possibility of the enforcement of a final arbitration award, especially when issues relating to the protection of assets or evidence arise before or during the course of proceedings. Hence the purpose of this project is to provide a brief analysis of the international practice regarding the enforcement of provisional measures in international arbitration. iii ACKNOWLEDGEMENTS All praise and thanks be to Allah, the Almighty, who has enabled me to accomplish this academic milestone. First and foremost, the author is grateful to the Vice president of Uganda RT Hon Edward SSekandi, Rector of Islamic University in Uganda Dr.Ahmed Kawesa Ssengendo, Dr. Lukwago Nassali (Permanent secretary ministry of Education in Uganda)Hajji Lubega Swaibu Wagwa (Chairman Education Service Commission) Ambassador Isaac SSebulime for their support during the research period. Special thanks are due to Professor Chigara Ben (Assistant Head of Brunel Law School), Professor Abimbola Olowofoyeku (Head of Brunel Law School), professor Mansour Ssenyonjo, Dr. Tony Cole, Dr. OlufemiAmao, Dr. Koratana Muhammad (Director of PhD research),Professor Mathews J Humphreys ( Dean Faculty of Law & Business Kingston University), Professor Robert Merkin, Professor Peter Jaffey, Dr. Akalemwa Ngenda, Professor Christine Piper, Professor Javaid Rehman,Professor Gwyneth Pitt(Kingston University London) Dr.Trauxal Steve ( Head of LLM City University), Professor Micheal Wyn ( Kingston University), Barrister Associate Professor Pamela Selman (Kingston University London) Dr Alexandra Xanthaki, Dr. Rebecca Bates, Dr. Ayesha Shahid, Professor Ilias Bantekas, Dr. Ibrahim Matovu, Mr.Bbale, Hajji Gaynamungu Abubaker Kasekende,Dr.Kasato Rashid, Mr Adam Mugga,Ms Faridah Namata Gaynamungu, Yusuf, Mr.Kassimu Muguluma,Haji Bisaso Muhamed, Late Hajji Bisegerwa Authman, Hajji Jamiru Nsubuga, Mr.Kanyoro iv Frank,Mr.Lusoke Sam,Mrs Hadjah Nabwami,Mr.Farouk Manawa, Hajji Ayub Kasujja Kasule, Dr. Faridah Ssekalala Mirembe,Mrs Helen Odele ( Rose Samuel and Partner Solicitors), Hajji Muhammad Mubiru and Mr. Bazira Kagimu. The author wishes to express his deepest indebtedness to his supervisor Dr. Mihail Danov for the enthusiasm, patience, guidance and invaluable assistance given throughout the meticulous reading of the earlier drafts of this thesis. The author also wishes to thank the management of the Law School for the their support ,especially Amanda, Rahena, Tracey Alexis and Vanessa. v DEDICATIONS To the source of pride who has illuminated my academic milestone, and who has influenced me to become who I am today; to the pure spirit of my beloved father, Al Hajji Mostapher Muhammed Ssemakula, May Allah the King of Majesty and the king of the day of reckoning bless him and may he rest in eternal peace. To the light of my eyes, who endured the pain of parting and waited patiently and who supported me with love and patience along each step of my academic milestone, my beloved mother, Hajat Faridah Bukenya Nyanzi, sisters and brothers. To my life companion and partner, Sheeb Nansukusa, the mother of my son Rian Ssemakula Mohmed, both of whom have suffered, missed me and waited; I ask God to guide me so that I may fulfil my obligation towards them, all my life. To those true friends who supported me emotionally, financially, spiritually and physically. To the Pearl of Africa and its suffering people. vi TABLE OF ABBREVIATIONS AAA American Arbitration Association AC Appeal Court (Law Reports, House of Lords Appeal Cases) AJC American Journal of Comparative Law AL ER All England Law Reports CA Court of Appeal of England and Wales CAS Court of Arbitration for Sports CCIG (Swiss Rules) CCP Code of Civil Procedure CIA Chartered Institute of Arbitrators CIArb Chartered Institute of Arbitrators in England Compromissoire An arbitration Clause CLJ Cambridge Law Journal CPR Civil Procedure Rules DAC Departmental Advisory Committee on Arbitration Bill February 1996 EAA English Arbitration Act 1996 ECHR European Convention on Human Rights ECJ European Court of Justice EU European Union vii EWCA England and Wales Court of Appeal Ex parte one side or part only F.2d The Federal Reporter Second Series F.3d The Federal Reporter Third Series FAA French Arbitration Association HKIAC Hong Kong International Arbitration Centre ICC International Chamber of Commerce ICCA International Council for Commercial Arbitration ICDR International Centre for Dispute Resolution ICSID International Centre for the Settlement of Investment Disputes Int’l.Ct.Arb.Bull. International Court of Arbitration Bulletin J.Int’l.Arb Journal of International Arbitration JBL Journal of Business Law KB King’s Bench Division LCIA London Court of International Arbitration Lex arbitri The Law governing arbitration Lex contractus law governing the contract Lex pendens A dispute or matter which is the subject of ongoing or pending litigation LMAA London Maritime Arbitrators Association LQR Law Quarterly Review MR Master of the Rolls viii QB Queen's Bench Division UKHL United Kingdom House of Lords UNCITRAL United Nations Commission on International Trade Law WIPO World Intellectual Property Organization WLR Weekly Law Report YCA Yearbook of Commercial Arbitration ZCC Zurich Chamber of Commerce ix National Legislation( Statutes) American Arbitration Act (AAA),at 53,62, 64,66, 68,146 Arbitration Act 1889 at 25. Arbitration Act 1934 at 26. Arbitration Act 1950 at 30, 31, 34 Arbitration Act 1979 at 33,34,36,37. Arbitration Act of Scotland 1996 at 224. Australian Arbitration Act 2005 at 135, 132. Belgian Code Civil 1999 at 217. Belgian Code Civil 1999 at 217. Civil Jurisdiction & Judgement Act 1982 (Interim Relief Order 1977) at 232, 111. Civil Jurisdiction Act and Judgement Act 1980 at 192. Civil Procedure Act 1833 at 22. Common Law procedure Act 1854 at 22,25, 27, 26 Companies Act 1985 at 173. English Arbitration Act 1996 at 47,220-225,127,135,125,55,94,74-78,92,126,162-165. English Supreme Court Act 1981 at 153. European Communities Act 1978 at 188. French Civil Code, at 64. German Arbitration Act 1998 at 76, 78,97, 155, 158. Hong Kong Arbitration ( Amendment Ordinance 1997) at 158. x Human Rights Act 1988 at 129-130. Ireland Arbitration Act 1998 at 127. Italian Arbitration Act 1994 at 208, 155. Japan Arbitration Act 1998 at 149. Kenya Arbitration Act 1995 at 220, 223. Lithuania Arbitration Act 1996 at 61, 180,161. New Zealand Arbitration Act at 223. Polish Arbitration Act 2005 at 77,135, 265,134. Polish CPP 1996 at 177 Spanish Ley de Arbitrage 2003 at 223. Supreme Court Act 1981 at 21,22, 121,113. The Netherlands Arbitration Act 1986 at 218. The Swiss Private International Law (PIL) Statute of 1987 at 64,66.149. Arbitral Rules and Conventions: Brussels Regulation 2012/2015 at 236,232. Brussels Regulation 42/2002 at 232. Brussels Regulation 44/2001 at 98,189. CAS Rules at 32, 132- 135. Civil Procedure Rules 1998 at 156, 158. Geneva Protocol & Geneva Convention 1927 at 6,22,24,80, 90. ICC Rules at 64,54,59,67,137,122, 116, 105,150. xi ICSID Rules at 4,5,53, 90, 165, 170,220. LCIA Rules at 55, 53, 62, 66,68,90,61,170. LMAA Rules of Gafta Arbitration at 129 New York Convention 1958 at 33,54,59,74, 57,71, 62,223, 225,228,34,94, 166,250,277. UNICTRAL Model Law at 17, 41,49,56,62,74,78,92,90,95, 123,137,154.133,130,129,123,120,109,225.257, 258,259,260.