17 September 2019
YSIAC-KCAB Next Seoul Workshop 2019
Interim Relief in International Arbitration: Techniques, Tips and Strategies

By Dipl.-Jur. Paolina P. Ilieva, Trainee Lawyer, Lee & Ko

This year’s YSIAC-KCAB Next Seoul Workshop 2019 tackled the topic of interim relief in international arbitration. The Workshop – titled Interim Relief in International Arbitration: Techniques, Tips and Strategies – attracted over 50 practitioners from the arbitration community in Korea and throughout Asia.

The evening commenced with a Welcome Address by Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang) that centered around a story from Greek mythology: the Judgment of Paris. According to the myth, an argument among three goddesses – Hera, Aphrodite and Athena – over which of them possessed unmatched beauty ultimately led to the Trojan War. The takeaway that Dr Park impressed upon the audience from this myth was that strong advocacy skills are key in the world of international arbitration, in the same way that they were essential to preventing a war in ancient times.

Dr Park’s Welcome Address was followed by a brief Opening Address by Ms Michele Sonen (Head (North East Asia), SIAC). Ms Sonen introduced YSIAC and explained that the purpose of YSIAC is to provide young practitioners with a platform to learn, develop and enhance their skills as counsel and arbitrators.

Ms Wendy Lin (Co-Chair, YSIAC Committee; Partner, WongPartnership LLP) followed Ms Sonen with an Introduction to the Panel Session. She noted that practitioners have strong feelings about interim relief; it can trigger both positive and negative emotions when practitioners are in the midst of seeking interim relief or defending their clients against an application lodged against them.

Panel Session: Interim Relief: Techniques, Tips and Strategies.

The panel session was moderated by Ms Wonyoung Karyn Yoo (Member, YSIAC Committee; Senior Associate, Kim & Chang). Ms Yoo first invited Ms Dana Kim (Steering Committee Member, KCAB Next; Of Counsel, Herbert Smith Freehills) to open the session with a discussion of the different types of interim relief available in international arbitration. Ms Kim addressed issues such as which forums can grant interim relief; when is the appropriate time to seek interim relief; and what rules empower the Arbitral Tribunal to grant interim measures. Ms Kim also provided a checklist of practical considerations that an arbitration lawyer should bear in mind before turning to the Tribunal with a request for interim relief.

Ms Kate Apostolova (Member, YSIAC Committee; Senior Associate, Freshfields Bruckhaus Deringer) also delivered valuable practical input from her experience as an arbitration practitioner. She outlined several factors that influence whether to seek interim measures from the domestic courts, an Arbitral Tribunal, or an Emergency Arbitrator. For instance, Ms Apostolova pointed out that when a party requires document production in order to support its application for interim relief, it may be more strategic to seek interim relief from national courts rather than an Emergency Arbitrator because the latter would most likely exclude the possibility of document production.

Mr Steven Y. H. Lim (Arbitrator and Barrister, 39 Essex Chambers) continued the panel session by discussing the applicable legal standards for granting interim relief in an arbitration proceeding. He identified three legal standards that have been developed by international arbitration practice, and the similarities and differences between these tests.

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Left to Right: Wendy Lin, Wonyoung Karyn Yoo, Kate Apostolova, Michele Park Sonen, Mino Han, Dana Kim, Steven Y. H. Lim and Julia Jiyeon Yu

Members of the audience

On the question of why a party may need an interim measure from a domestic court, Mr Mino Han (Senior Associate, Bae, Kim & Lee) enumerated five important considerations:

1. Enforceability
2. Ex parte applications
3. Prejudice
4. Time
5. Risk of amendments of the interim measure

Mr Han further explained that certain common types of interim measures are not allowed in Korea, such as anti-arbitration injunctions or anti-suit injunctions.

The topic of Emergency Arbitration was presented by Ms Kate Apostolova. She first revealed that the purpose of Emergency Arbitration is to provide urgent relief in the time between filing a Request for Arbitration and the constitution of an Arbitral Tribunal, which in many cases could take months. Ms. Apostolova highlighted that SIAC was the first arbitral institution based in Asia to introduce the Emergency Arbitration procedure in 2010. Since then, nearly 100 applications have been filed with SIAC.

The SIAC Rules require appointment of an Emergency Arbitrator (EA) within one calendar day and an award must be rendered by the EA within 14 days from his or her appointment. Mr Steven Lim shared his experience that the appointment of an EA can happen at any time, regardless of whether it is a weekend.

On the topic of applicable standards before an EA, Ms Apostolova explained that all of the legal standards mentioned earlier by Mr Lim may also apply during an Emergency Arbitration, supplemented by one additional requirement: a party seeking emergency interim relief must demonstrate such urgency that the requested relief cannot await constitution of the Arbitral Tribunal.

Finally, Ms Julia Jiyeon Yu (Partner, Oon & Bazul LLP) addressed the topic of non-compliance and enforceability of interim measures. Ms Yu drew the audience’s attention to the important question of whether to apply for interim relief from an Arbitral Tribunal or an EA even though that measure may lack enforceability in some national courts. In response, Ms Yu highlighted the extremely high rate of voluntary compliance with arbitral awards granting interim measures, as parties generally seek to avoid casting a dark shadow on their case that may negatively affect the later stages of the arbitration.

After the panel session, Ms Sonen concluded the event with brief closing remarks thanking the panelists for the lively discussion and for sharing their experiences. The YSIAC-KCAB Next Workshop 2019 left the attendees with a better understanding of interim measures in international arbitration.
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