International commercial arbitration: procedure.

(1) Existing law provides a framework for the arbitration and conciliation of international commercial disputes. Existing law requires an arbitration agreement subject to this framework to be in writing, specifying that an agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams, or other means of telecommunication that provide a record of the agreement, or in an exchange of statements of claim and defense in which the existence of an agreement is alleged by one party and not denied by another. This bill would further specify that an agreement is in writing if it is contained in an exchange of electronic mail or in an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference. (2) Existing law provides that an arbitral tribunal may, at the request of a party, order a party to take an interim measure of protection with respect to the subject matter of the dispute, but does not explicitly define "interim measure of protection." Existing law allows any party to an arbitration to request that the superior court enforce an award of an arbitral tribunal to take any interim measure of protection. This bill would define "interim measure of protection" to mean any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, an arbitral tribunal orders a party to: (1) maintain or restore the status quo pending determination of the dispute; (2) take action that would prevent, or refrain from taking action that is likely to cause, harm or prejudice to the arbitral process; (3) provide a means of preserving assets out of which a subsequent award may be satisifed; or (4) preserve evidence that may be relevant and material to the resolution of the dispute. The bill would require that in most instances, a party requesting an interim measure of protection must satisfy to the arbitral tribunal that it would be irreparably harmed if the measure is not granted, that the harm substantially outweighs the harm likely to result to the party against whom the measure is directed if the measure is granted, and that there is a reasonable possibility that the requesting party will succeed on the merits. The bill would allow a party to, without notice, request an interim measure of protection along with a preliminary order directing a party not to frustrate the purpose of the interim measure requested. The bill would also allow a party against whom a preliminary order is directed to object to the preliminary order before the arbitral tribunal. The bill would provide that a party requesting an interim measure or preliminary order is liable for any costs and damages caused by the measure or order to any party if the arbitral tribunal later determines that the measure or order should not have been granted. This bill would provide that an interim measure issued by an arbitral tribunal must be recognized as final and binding, and may be enforced upon application to the superior court. The bill would provide that a superior court may refuse to recognize or enforce an interim measure only under specified circumstances.