국제투자중재에서 임시적 처분과 국내절차와의 관계

Interim measures are any temporary measures ordered by the arbitral tribunal to preserve the rights of the parties and maintain the status quo pending the issuance of the award by which the dispute is finally decided. The authority of arbitral tribunals to order interim measures comes from the agreement of the parties as provided in the applicable investment treaty, or the relevant arbitration rules including ICSID arbitration rules and UNCITRAL arbitration rules. These rules generally set out conditions for the granting of interim measures. Under the jurisprudence of the investment arbitration cases, two general requirements are often invoked for rendering of interim measures; urgency and a threat of substantial or irreparable harm. In the meantime, in recent years, a number of investment arbitral tribunals have issued interim measures to suspend or dismiss pending litigation proceedings or criminal proceedings in order to protect the tribunals’ jurisdiction to decide the parties’ dispute or the parties’ procedural right to access to witness. Although international law generally recognizes the binding nature of interim measures, arbitral tribunals lack the coercive power of state courts. Therefore, in order to achieve the efficiency of interim measures, it needs to be considered that investment arbitration treaty incorporate relevant provisions on the recognition and enforcement of interim measures as provided in UNCITRAL model law on international commercial arbitration.