仲裁検討会参考資料８

ＵＮＣＩＴＲＡＬ仲裁調停作業部会における
モデル法（模範法）改正草案（抄）
＝仲裁廷による暫定的保全措置関係＝

　第３６回作業部会（２００２年（平成１４年）３月開催）において検討される仲裁廷の暫定的保全措置についてのモデル法（模範法）の改正草案は，次のとおりである。
　なお，「（注）」は，事務局において付したものである。

Draft article 17

(1) 　Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary [in respect of the subject-matter of the dispute].
(2) 　The party requesting the interim measure should furnish proof that:

(a)　 there is an urgent need for the measure applied for;
(b)　 a significant degree of harm will result if the interim measure is not ordered; and
(c) 　there is a likelihood of the applicant for the measure succeeding on the merits of the underlying case.

(3)　 The arbitral tribunal may require any party to provide appropriate security in connection with such measure.
(4) 　An interim measure or（注） protection is any temporary measure [, whether it is established in the form of an arbitral award or in another form,] ordered by the arbitral tribunal pending the issuance of the award by which the dispute is finally decided. For the purposes of this article reference to an interim measure includes:

Variant 1

(a) 　a measure to maintain the status quo pending determination of the questions at issue;
(b) 　a measure providing a preliminary means of securing assets out of which an award may be satisfied; or
(c) 　a measure to restrain conduct by a defendant to prevent current or imminent future harm.

Variant 2

(a) 　a measure to avoid or minimize prejudice, loss or damage; or
(b)　 a measure to facilitate later enforcement of an award.

（注）　orは，ofの誤記ではないかと思われる。

(5)　 The arbitral tribunal may, where it is necessary to ensure that an interim measure is effective, grant a measure [for a period not exceeding […] days] [without notice to the party against whom the measure is directed] [before the party against whom the measure is directed has had an opportunity to respond] only where:

(a) 　it is necessary to ensure that the measure is effective;
(b) 　the applicant for the measure provides appropriate security in connection with the measure;
(c)　 the applicant for the measure can demonstrate the urgent necessity of the measure; and
(d)　 [the measure would be supported by a preponderance of considerations of fairness ].

[(6)　 The party to whom the measure under paragraph (5) is directed shall be given notice of the measure and an opportunity to be heard at the earliest practicable time.]
(7) 　A measure granted under paragraph (5) may be extended or modified after the party to whom it is directed has been given notice and an opportunity to respond.
[(8)　 An interim measure of protection may be modified or terminated [on the request of a party] if the circumstances referred to in paragraph (2) have changed after the issuance of the measure.]
[(9)　 The party who requested the issuance of an interim measure of protection shall, from the time of the request onwards, inform the court（注） promptly of any substantial change of circumstances referred to in paragraph (2).]

（注）the courtは，the arbitral tribunalの誤記ではないかと思われる。

Enforcement of interim measures of protection　（注）

(1)　 Upon an application by an interested party, made with the approval of the arbitral tribunal, the competent court shall refuse to recognize and enforce an interim measure of protection referred to in article 17, irrespective of the country in which it was ordered, if: *

(a) The party against whom the measure is invoked furnishes proof that:

(i) 　[Variant 1] The arbitration agreement referred to in article 7 is not valid
[Variant 2] The arbitration agreement referred to in article 7 appears to not be valid, in which case the court may refer the issue of the [jurisdiction of the arbitral tribunal] [validity of the arbitration agreement] to be decided by the arbitral tribunal in accordance with article 16 of this Law];
(ii) 　The party against whom the interim measure is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings [in which case the court may suspend the enforcement proceedings until the parties have been heard by the arbitral tribunal]; or
(iii)　 The party against whom the interim measure is invoked was unable to present its case with respect to the interim measure [in which case the court may suspend the enforcement proceedings until the parties have been heard by the arbitral tribunal]; or
(iv) The interim measure has been terminated, suspended or amended by the arbitral tribunal.

(b) The court finds that:

(i) 　The measure requested is incompatible with the powers conferred upon the court by its procedural laws, unless the court decides to reformulate the measure to the extent necessary to adapt it to its own powers and procedures for the purpose of enforcing the measure; or
(ii) 　The recognition or enforcement of the interim measure would be contrary to the public policy of this State.

(2) Upon application by an interested party, made with the approval of the arbitral tribunal, the competent court may, in its discretion, refuse to recognize and enforce an interim measure of protection referred to in article 17, irrespective of the country in which it was ordered, if the party against whom the measure is invoked furnishes proof that application for the same or similar interim measure has been made to a court in this State, regardless of whether the court has taken a decision on the application.
(3) The party who is seeking enforcement of an interim measure shall promptly inform the court of any termination, suspension or amendment of that measure.
(4) In reformulating the measure under paragraph (1)(b)(i), the court shall not modify the substance of the interim measure.
(5) Paragraph (1)(a)(iii) does not apply
[Variant 1] to an interim measure of protection that was ordered without notice to the party against whom the measure is invoked provided that the measure was ordered to be effective for a period not exceeding [30] days and the enforcement of the measure is requested before the expiry of that period.
[Variant 2] to an interim measure of protection that was ordered without notice to the party against whom the measure is invoked provided that such interim measure is confirmed by the arbitral tribunal after the other party has been able to present its case with respect to the interim measure.
[Variant 3] if the arbitral tribunal, in its discretion, determines that, in light of the circumstances referred to in article 17(2), the interim measure of protection can be effective only if the enforcement order is issued by the court without notice to the party against whom the measure is invoked.

---

* The conditions set forth in this article are intended to limit the number of circumstances in which the court must refuse to enforce interim measures. It would not be contrary to the level of harmonization sought to be achieved by these model provisions if a State were to adopt fewer circumstances in which enforcement must be refused.