
Contents
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A. Overview A. Overview
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B. Interim Relief Before the State Courts B. Interim Relief Before the State Courts
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I. Access to State Courts Despite an Arbitration Agreement (s 1033 ZPO) I. Access to State Courts Despite an Arbitration Agreement (s 1033 ZPO)
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1. Rationale 1. Rationale
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2. Scope of Application 2. Scope of Application
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a) Temporal Scope of s 1033 ZPO a) Temporal Scope of s 1033 ZPO
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b) Irrelevance of the Seat of Arbitration b) Irrelevance of the Seat of Arbitration
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3. Applicability of General Rules on Interim Measures and Their Modification 3. Applicability of General Rules on Interim Measures and Their Modification
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4. Mandatory Nature of s 1033 ZPO? 4. Mandatory Nature of s 1033 ZPO?
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II. Seizure II. Seizure
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1. Request for Writ of Seizure 1. Request for Writ of Seizure
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a) Admissibility a) Admissibility
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b) Merits b) Merits
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2. Procedure, Decisions, and Remedies 2. Procedure, Decisions, and Remedies
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a) Dismissal Without Oral Hearing a) Dismissal Without Oral Hearing
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b) Order of Seizure Without Oral Hearing b) Order of Seizure Without Oral Hearing
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c) Dismissal Following an Oral Hearing c) Dismissal Following an Oral Hearing
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d) Judgment Ordering Seizure Following an Oral Hearing d) Judgment Ordering Seizure Following an Oral Hearing
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3. Enforcement of a Writ of Seizure 3. Enforcement of a Writ of Seizure
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a) Prerequisites a) Prerequisites
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b) Means of Enforcement and Claim for Damages b) Means of Enforcement and Claim for Damages
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III. Injunctions III. Injunctions
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1. Procedure 1. Procedure
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2. Types of Injunctions 2. Types of Injunctions
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a) Security Order (Sicherungsverfügung), s 935 ZPO a) Security Order (Sicherungsverfügung), s 935 ZPO
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b) Regulatory Order (Regelungsverfügung), s 940 ZPO b) Regulatory Order (Regelungsverfügung), s 940 ZPO
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c) Order for Performance of a Claim (Leistungsverfügung) c) Order for Performance of a Claim (Leistungsverfügung)
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IV. Independent Evidence Proceedings (selbständiges Beweisverfahren) IV. Independent Evidence Proceedings (selbständiges Beweisverfahren)
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1. Admissibility 1. Admissibility
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a) Consensual or Preservative Independent Evidence Proceedings a) Consensual or Preservative Independent Evidence Proceedings
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b) Independent Evidence Proceedings for the Avoidance of Legal Proceedings or Other Legitimate Interests b) Independent Evidence Proceedings for the Avoidance of Legal Proceedings or Other Legitimate Interests
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2. Competent Court 2. Competent Court
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3. Representation Before Court 3. Representation Before Court
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4. Application 4. Application
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5. Procedure 5. Procedure
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6. Effects 6. Effects
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C. Interim Relief Before the Arbitral Tribunal (s 1041 ZPO) C. Interim Relief Before the Arbitral Tribunal (s 1041 ZPO)
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I. Preliminary Remarks I. Preliminary Remarks
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1. Legislative History 1. Legislative History
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2. Non-mandatory Nature 2. Non-mandatory Nature
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3. Applicability to Foreign Proceedings 3. Applicability to Foreign Proceedings
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4. Emergency Arbitrators 4. Emergency Arbitrators
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II. The Arbitral Tribunal’s Order of Interim Relief (s 1041 para 1 ZPO) II. The Arbitral Tribunal’s Order of Interim Relief (s 1041 para 1 ZPO)
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1. Request by a Party 1. Request by a Party
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2. Procedure 2. Procedure
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3. Interim Measures of Protection 3. Interim Measures of Protection
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a) Prerequisites for Issuing Interim Measures a) Prerequisites for Issuing Interim Measures
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b) Types of Interim Measures b) Types of Interim Measures
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c) Security (s 1041 para 1 cl 2 ZPO) c) Security (s 1041 para 1 cl 2 ZPO)
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4. Form of Interim Measures 4. Form of Interim Measures
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a) Form of Decision a) Form of Decision
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b) Formal Requirements for Orders of Interim Measures b) Formal Requirements for Orders of Interim Measures
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5. Effects 5. Effects
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a) Binding but not Compelling Effect for the Parties a) Binding but not Compelling Effect for the Parties
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b) No Binding Effect for the Tribunal b) No Binding Effect for the Tribunal
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III. The Enforcement by the State Courts III. The Enforcement by the State Courts
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1. Leave of Enforcement (s 1041 para 2 ZPO) 1. Leave of Enforcement (s 1041 para 2 ZPO)
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a) Admissibility a) Admissibility
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b) Merits b) Merits
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c) Procedure c) Procedure
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d) Effect d) Effect
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2. Repeal and Amendment (s 1041 para 3 ZPO) 2. Repeal and Amendment (s 1041 para 3 ZPO)
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3. Claim for Damages (s 1041 para 4 ZPO) 3. Claim for Damages (s 1041 para 4 ZPO)
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a) Claim a) Claim
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b) Enforcement b) Enforcement
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D. Relation Between Interim Relief Before the State Court and the Arbitral Tribunal D. Relation Between Interim Relief Before the State Court and the Arbitral Tribunal
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I. Freedom of Choice for Interim Relief I. Freedom of Choice for Interim Relief
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1. Forum Selection by Party Agreement 1. Forum Selection by Party Agreement
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2. Forum Selection by the Applicant 2. Forum Selection by the Applicant
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II. Parallel Requests for Interim Relief II. Parallel Requests for Interim Relief
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Cite
Abstract
This chapter discusses the interim relief measures issued during arbitration proceedings. Interim measures represent one of the most difficult areas in arbitration as it is characterized by the tribunal’s broad discretion and the need for a grant of enforcement by the state court. In a dispute, whether a party finally achieves its requested legal protection will depend on interim measures of protection: the disclosure of a trade secret, for example, cannot be undone even if an award or judgment later finds that the trade secret was illegal. While state court interim measures per se follow the general rules of civil procedural law at the place of their issuance, they pose a number of challenges at the interface between these general local civil procedure rules and the particularities of arbitration, particularly in cross-border disputes.
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