CHAPTER ONE
1.5 The contribution of this study
The research provides a general understanding of how provisional measures are perceived in England, as well as to investigate the inadequacy of the current trends of the provisional measures ‘framework. The study is the first to critically address the role of courts and arbitral tribunals(subsidiary model) in granting provisional measures in England and Wales. The thesis, through examination of legislative developments, tries to remedy the legislative short-comings and mistakes and fills in the legal gaps.
34 This will be discussed in the chapter on the judicial involvement in arbitral proceedings.
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The study tries to provide a clear position of provisional measures between courts and arbitrators, from both a legal and practical perspective, in order to open door for researchers and commentators of laws to contemplate and devise the nature of provisional measures. They can then identify the effects on the final awards before enforcement. By identifying the problems and offering solutions, the people who chose arbitration will be liberated from the uncertainties and problems they face when one seeks provisional measures from the two jurisdictions, since the tension that may arise is already provided by solutions in the thesis.
The research shows that according to party autonomy doctrine as the main source of arbitral tribunals, all provisional measures should be exclusively under the jurisdiction of the tribunal, with limited intervention of the courts for enforcement. This theory adduces that any recourse to courts breaches the main objective of parties to submit to arbitration. Indeed, this provides advice for the development of legislation consistent with party autonomy, which in turn leads to confidence in the parties and harmonizing the process. The willingness to interfere in the arbitral process by the courts as evidenced by s.9 and 30, public policy limitations and Brussels convention, sections 67 and 68 are still problematic. If the courts are going to achieve the stated principles of DAC and to continue to make London a leading arbitral centre, then courts will need to think through their approach on these matters, to avoid taking arbitration back to an earlier era of judicial intervention. The thesis demonstrated that arbitration is the vehicle to do away with a dispute between the parties as comprehensively and as quickly as possible.
Therefore, once a dispute on the fulfilment of an agreement has led to the initiation of arbitral proceedings, the arbitrators should undertake their best effort to consider all disputes arising from that agreement in order to bring a solution enabling the parties to resume a normal relationship as their business requires.
1.6 Methodology
In order to deal with the questions of research,35 a doctrinal methodology36 will be used.37The word “doctrinal” is derived from the Latin noun “doctrina” which means instructions,
35Doctrinal methodology is specifically directed towards solving legal problems and normally includes: assembling relevant facts; identifying the legal issues; analysing those issues with a view to searching the law; reading background materials (for example: legal encyclopaedias’, text books, law reform documents, policy papers, loose
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knowledge or learning. Doctrinal research methodology is the systematic and ordered exposition of legal science.38 Legal science is the exposition of legal doctrine in the works of juristic commentators,39or the allocation and analysis of primary documents(arbitral awards, cases, legislation) and secondly ones (text books, international conventions, arbitral rules, journals, government reports, seminars, law reform documents, policy documents and media reports) in order to establish the nature and parameters of the law.40 Doctrinal research includes the intricate step of reading,41 analysing and linking the new information to the known body of law;42 in other words, it is centred on reading and analysing the primary sources of legal doctrine and secondly sources.43
leaf services, and journal articles; and allocating primary sources, mainly legislation or delegated legislation and case law, which have all to be synthesised in context, before coming to a tentative conclusion.
36 It should be noted that England is a Commonwealth country which established the doctrinal methodology, developed from the doctrine of precedent in the 19th and 20th century. It lies at the basis of common law and is the core legal research method. See declaratory Theory, Law as science; formalism, strict legalism, legal realism and ant formalism. See Richard Posner, 'In Memoriam: Bernard D. Meltzer (1914-2007)',(2007) 74 (2) University of Chicago Law Review, 435,437.
37 See Frederick Schauer cited in Baghoomians(2009) 31 (3) Sydney Law Review 499,499.
38 Doctrinal research provides the exposition of rules governing a particular legal category, analyses the relationship between rules, explains areas of difficulty and perhaps, predicts future developments or recommends changes to any law rules found wanting.
39 See Nigel Simmonds, 'The Decline of Judicial Reason: Doctrine and Theory in the Legal Order' (Manchester University Press, 1984) at 30.
40 See Maggie Walter, Social Research Methods (2ndedn,Oxford University Press 2010) at 485. See Diana Hacker and Barbara Fister, Research and Documentation Online, <http://www.dianhacker.comresdoc/history.html>
accessed 17 March 2012.
41See Council of Australia Law Deans, CALD Statement on the Nature of Research (May and October 2005),
<http://cald.anu.edu.au/docs/cald%20statements.pdf> accessed 17 March 2012.
42 In other words, doctrinal research is two-part process of allocating the law or doctrine and then analysing the text.
It has both qualitative and quantitative elements within it, where by it allocates the sources and synthesises the law and applies the law to the facts in a context that is subjective. It requires extensive knowledge, precise judgement, detailed description and the ability to achieve a high degree of analysis and critique. See Richard Posner, 'Conventionalism: The Key to Law and Autonomous Discipline' (1988) 38 University of Toronto Law Journal 333,345, quoted in Richard Schwartz, 'Internal and External Method in The Study of Law'( 1992) 11 (3) Law and Philosophy 178, 185.
43 See Christopher McCruden, Legal Research and Social Sciences (2006 October) Law Quarterly Review 632,633,where he defines doctrine as a study of law using reason and logic and argument and the primacy of critical reasoning based around authoritative texts. See Oliver Wendell HolmesJr, The Common Law, (Project Gutenberg 2000), at 210 <http://www.gutenberg,org/dirs/etex00/cmnlw10.txt>, accessed on 10 October 2013.
12 1.7 Previous studies
In addition, the thesis examines the views of commentators and the books of prominent writers:
for example, Gary Born, who has addressed the issue of provisional measures partially.
AliYasilirmak, a prominent scholar on provisional measures,44Redfern and Hunter,45 who have addressed the topic of provisional measures in an international dimension, without focusing on England as central, Merkin on arbitration,46 Eva Lein,47 and Adrian Briggs48 The present study is two-pronged, as every problem confronted is considered both from a theoretical point of view and a practical one. Within the theoretical point of view, there will be a trace of the various solutions proposed by writers.