ABSTRACT: The paper discusses the change of view in what concerns the jurisdiction of national courts to entertain requests of interim reliefs in aid of foreign arbitral proceedings. In the past, national courts would assert jurisdiction only after the relevant cause of action had been established to fall strictly within its jurisdictional scope. The simple fact that a case would relate, prima facie, to assets or evidence located, territorially, within the jurisdictional reach of a given court would not suffice to establish said court's jurisdiction over the request. In current practice, the seat of arbitration proceedings is often established in view of the perceived neutrality of the lieu. However, more often than not, the relevant parties, assets and evidence are located elsewhere. Against this background, national courts (following the lead of a 1979 precedent of the House of Lords, United Kingdom), have sought to avail themselves of a more lenient jurisdictional standard, to assert jurisdiction in exceptional circumstances. In several jurisdictions, new legislation has even been adopted in order to meet the current adjudicative needs of disputes relating to international commerce and trade, a change of approach that will be discussed by this paper. Moreover, this paper seeks to determine how desirable the developing paradigm actually is, so as to ultimately propose how its implementation could be carried out in different jurisdictions within the framework of the New York Convention, and without the need of necessarily amending legislation.
Revista Brasileira de Arbitragem