The Implication of the Interim Measures Issued by Arbitrator (A comparative analysis)

Abstract

Article 173 of the Kuwaiti Arbitration Act, as a general principle, preserves the authority to issue interim measure to the court. By the language of Article 173, it can be inferred that the legislator intended to imply a number of legal prohibitions. The language of exception in Arabic legal text reflects the following norms, first: the exceptional law should be narrowly interpreted to avoid any incompatible meaning which conflicts with the general intention of the legislator.  Second, it cannot be relied on in a comparative analysis to examine the legality of similarly situated issue. For instance, if the parties drafted a mediation agreement, they cannot consent to allow the mediators to issue interim relief relying on the permissibility contained in Article 173. Hence, the Arbitration Act adopted the ‘duality principle’ which enables courts to issue any type of preliminary relief notwithstanding parties’ consent to confer this power to the arbitral tribunal. The problem is that the law does not address whether the interim relief issued by arbitral tribunal should be enforced or whether cannot be appealed, therefore the matter cannot be litigated again. This article will trace the arbitration law approach of Kuwait, in a comparative method, in relation to the applicability of the interim measures to the resolution of the final dispute. This study will attempt to answer the question of whether the arbitrators can grant this type of relief and whether this type of orders can be enforceable according to the convention.