Interim Measures In International Commercial Arbitration: A Critical Analysis Of The Sri Lankan Law

Abstract

Interim measures are important in cross-border commercial arbitration to preserve assets, evidence, and security for costs, etc. Predominantly, interim measure protection creates a platform for the national courts to play an important role in the arbitration process. The existing statutory provisions provided in the Sri Lankan Arbitration Act No. 11 of 1995 lay the foundation for the parties to refer the matter to the courts in seeking interim measure protection wherever necessary. However, the case law and the experience so far replicate that the issues arise in terms of the standards applied, enforcement, and the interplay of the role of the court in interim measures and the reaction of the arbitration institution towards it. Therefore, this paper critically evaluates whether the existing legal framework for interim measures serves the purpose. The paper critically examines to what extent the Sri Lankan statutory framework has adopted the New York Convention, UNCITRAL Model Law, and UNCITRAL Arbitration Rules in terms of interim measures and how it has been practically utilised. This paper adopts a qualitative methodology with a black-letter approach. In revisiting the existing provisions relating to interim measures in Sri Lanka, the best practices of the comparative jurisdictions of the UK and Singapore are critically examined. This paper suggests possible reforms in terms of statutory arrangements, institutional functioning, and stakeholder engagement for the effective utilisation of interim measures. In doing so, the paper discusses the applicability of the emergency arbitrator regime, ex-parte interim measures, and effective enforcement mechanisms to get the optimal use of this mechanism within the evolving practicalities and challenges in international commercial arbitration.