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"The need for cross-border injunctions in international commercial arbitration within the European Union", Thesis defended by M Aref New Rosy, Under the supervision of Ms Sylvaine Peruzzetto, IRDEIC
on the September 27, 2019
14h  Thesis room

"The need for cross-border injunctions in international commercial arbitration within the European Union" Thesis defended by M Aref New Rosy

Summary

Traditionally the primary focus of the international commercial arbitral system was the effective protection of parties’ rights through final and binding arbitral awards on the merits; because in good old days arbitration was faster than what it is nowadays. Consequently, there was no (or little) need to the interim measures.
But nowadays in international commercial arbitration the relief sought in the main proceeding may frequently be insufficient to protect effectively the rights or interest of the alleged innocent party. That is why, we need interim measures. These measures are temporary remedies aiming to prevent unjust results before the final substantive reliefs are rendered.
Taking into account, on one hand, the territoriality of traditional provisional measures and on the other hand, the need for provisional measures capable of crossing the borders of the seat of arbitration, which is a direct consequence of the seat of arbitration being in neutral country, we come to the conclusion that in contemporary international commercial arbitration, most of the times the traditional provisional measures are insufficient or unable to guarantee the smooth and efficient continuation of arbitral process and/or the effectiveness of a future final relief.
That is why, we turn toward especial kind of injunctions used in some jurisdictions with common law system which are interim measures capable of crossing the national borders. For convenience, we call them Mareva-type injunctions. As the law stands now, a Mareva- type injunction can be defined as a special type of interlocutory injunction which restrains defendants from dealing with or disposing of the whole or part of their assets, pending the outcome of existing or future dispute settlement proceedings. Since, the injunctions are
directed against individuals, not against the property; there is no reason to be concerned about their territorial reach.
Injunctions may be cross border either because of the significant effects they have on persons, property, or conduct located abroad; or on account of the fact that local courts lend their support to injunctions that a foreign court or a foreign arbitral tribunal has ordered in an action pending before it, either at the request of the foreign forum or at the request of a party to the foreign court or arbitration proceedings.
In view of the above, the scientific hypothesis of the thesis may be formulated as follow:
In the borderless European Union of the 21st century, the adoption of Mareva-type in personam cross-border injunctions, as it exists under the English legal system, is one of the best and most efficient ways in protecting the plaintiffs in international commercial arbitrations within the European Union.
The analysis conducted within the thesis leads us to the conclusion that in order to enhance the effectiveness of international commercial arbitration to meet the expectations of the parties in today’s borderless European Union, we need to provide effective provisional measures consistent with needs of the era.
Relying on traditional territorial provisional measures will let mala fide defendants to escape the justice and make themselves judgment-proof against a potential final and enforceable arbitration award on the merits. While under the European Union framework, the defendants and their property can pass the national borders freely, limiting the scope of provisional measures is not logical. In passing the national borders within the European Union, provisional measures must be as free as the defendants and their property. Mareva-type cross- border European injunctions are good legal tools in this respect. They can cross borders without violating international law.
In this regard, some countries refraining from granting cross-border injunctions may recognize and enforce cross-border injunctions; this is another sign showing the gradual acceptance of the necessity of Mareva-type cross-border injunctions. So, in view of the above, the scientific hypothesis of the thesis is approved.
 

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GAELLE LE MERER

Additional information

Jury :



Ms Sylvaine PERUZZETTO Toulouse 1 Capitole University  PHD Supervisor
Ms Catherine GRYNFOGELToulouse 1 Capitole University Examiner
M. Arnaud RAYNOUARD Paris-Dauphine University Reporter
M. Carles GORRIZ LOPEZ Universitat Autònoma de Barcelona (UAB) Reporter



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