| Abstrakt: |
This note addresses principles, practices and pitfalls in respect to preliminary interim measures, that is, temporary decisions in the nature of ex parte preliminary orders taken before hearing the affected party (and sometimes without notice). Overall, the popular phrase 'pushing the envelope' provides a metaphorical template for considering whether ex parte preliminary orders 'attempt to extend the current limits of performance' or simply 'go beyond commonly accepted boundaries'. Although rarely encountered, ex parte preliminary orders do exist and lessons from three recent examples are considered. The defining characteristic of an ex parte decision is the temporary postponement of an opportunity to be heard; no notice proceedings constitute an exceptional subset. When presented with a request for an ex parte decision, the fundamentals for arbitrators to bear reflexively in mind involve the verification of a jurisdictional basis, a gut check as to whether the applicant appears to make full and frank disclosure, specification of the ephemeral effect of the preliminary decision, prompt provision of an opportunity to be heard, and prompt review and reconsideration during a regular inter partes process. [ABSTRACT FROM AUTHOR] |
