In a not infrequent scenario in international commercial arbitration, the Claimant seeks to be paid for services rendered or goods delivered or intellectual property licensed to the Respondent, and the Respondent offers a series of defenses and counterclaims that, according to Claimant, are merely contrivances designed to obscure the fact that Respondent is in financial distress and so it cannot or rather would prefer not to pay the obligation. If the Claimant then asks the Tribunal to grant an interim measure in the form of security to satisfy an eventual award of money damages, the first line of opposition will often be that the neither the applicable rules of arbitration nor the applicable arbitration law in the jurisdiction provide in terms for the granting of such relief by the arbitral tribunal.
The absence of specific provision for security in some institutional rules governing international arbitration (e.g. the AAA International Arbitration Rules, in contrast to, e.g. the 2010 UNCITRAL Arbitration Rules and 2006 amendments of the UNCITRAL Model Law) is rarely the only reason for the frequent denial of such relief. But arbitrators may justifiably consider that the absence of specific mention of security for the amount in dispute as a species of provisional measure, in some arbitration rules, and only fairly recent addition of such specific mention in the UNCITRAL Rules and in the Model Law, is reflective of the reasons often mentioned in arbitral awards and in commentaries why such relief should often be denied – e.g., that the relief may impose undue hardship, that granting the relief may imply a pre-judgment of the merits, and that financial distress of a commercial counterparty (unless the product of misconduct to conceal or dissipate assets) is a business risk that parties either do or do not address by specific provisions in their contracts.
And yet arbitral attitudes toward pre-award security in a particular case cannot help but be influenced by judicial attitudes toward such arbitral relief in the courts at the seat of the arbitration. And in that regard, attention should be given to the decision last week by a well-respected US district judge in New York, one of that court’s most frequent authors of decisions about arbitration, in On Time Staffing, LLC v. National Union Fire Ins. Co., 2011 U.S. Dist. LEXIS 50689 (S.D.N.Y. May 12, 2011). In On Time Staffing, the Court refused to vacate an arbitration panel’s interim award ordering security for a portion of the amount in dispute. The outcome, the rationale stated in the decision, and the Court’s reminder that a similar decision was made by the US Second Circuit Court of Appeals eight years ago, may well encourage parties arbitrating in New York to seek such relief more often, and may well lead to such requests more frequently being granted.
In On Time Staffing, Claimant was the provider of workers compensation insurance to Respondent. When Respondent allegedly was in default in payment of premiums, Claimant commenced arbitration and made its request for pre-hearing security in the demand for arbitration. The Court’s decision reports that Respondent cited a provision of the insurance agreement that entitled the insurer to “additional collateral” if the insured disputed payment obligations without providing written particulars. But the Court, refusing to vacate the panel’s order for security as exceeding the powers of the arbitrators (Federal Arbitration Act Section 10(a)(4)), cited only the broad powers the contract’s arbitration clause conferred. The Court did not rest its decision on the insurer’s right to enforce a specific contract right to security.
A broad arbitration clause, the court stated, confers on arbitrator “the discretion to order remedies they determine appropriate.” (Quoting from the US Second Circuit Court of Appeals decision in Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255, 262 (2d Cir. 2003), in which the Court upheld an arbitration panel’s award of pre-hearing security even though the arbitration agreement did not expressly authorize the panel to issue such an award).
While the reluctance of arbitrators to grant pre-award security for the amount in dispute does not arise mainly from a concern that they lack sufficient power, and so the Court’s holding that the arbitrators did not exceed their powers is not itself a particularly significant development, the Court’s attitude clearly was in favor of the view that security for the award is in proper circumstances appropriate to ensure that the arbitration will not be a meaningless exercise. Said the Court: “The Panel, in the absence of language in the arbitration agreement expressly to the contrary, possesses the inherent authority to preserve the integrity of the arbitration process to which the parties have agreed by, if warranted, requiring the posting of pre-hearing security. . . . Otherwise, an arbitration panel with a well-founded concern that a party was financially unable to satisfy an eventual award would have no recourse to protect itself against the risk that its significant expenditures of time and effort would be for naught.”
It is notable that the Court’s rationale focuses on protection not of the Claimant’s economic interest in realizing proceeds of an eventual award of money damages, but rather on the arbitration process agreed upon by the parties. The Court refers to the right of the arbitral tribunal to “protect itself.” This approach reflects a view an agreement of the parties to arbitrate, perhaps especially when the clause states that the decision of the arbitral panel will be “final and binding,” commits the parties to a dispute resolution process that includes eventual compliance with the arbitral tribunal’s decision. This is not to say that the agreement implies a waiver of the rights of limited judicial review provided by the Federal Arbitration Act and the New York Convention. But it does imply that non-compliance with an award, without moving to vacate the award or opposing its enforcement on grounds permitted by the Convention, is a breach of the agreement to arbitrate. And it would follow from that premise that the costs incurred by an award winner to obtain enforcement by reducing the award to judgment and having execution on the judgment, should be recoverable as money damages for breach of the arbitration agreement.
The view that compliance with the award by the loser is a part of the contractually agreed process is considerably different than what may be said to be the prevailing view: that the arbitral process agreed upon culminates in an award that constitutes an entitlement to use the judicial process to obtain a judgment according to the terms of the award and to have execution on the judgment using the laws and means the state provides for this purpose. If arbitrators agree with this emergent view that the agreement to arbitrate generally includes an agreement to implement the results of the arbitration in a voluntary or at least self-executing way, they may, other things being equal, be more favorably inclined toward requests for pre-award security.