Interim measures can be defined as an instrument that is adopted in a process with the purpose of securing a future result that may occur in the same, in different countries the arbitrator has the power to authorize the application of an interim measure within the arbitration proceedings, which means that this burden does not fall solely on the courts.
In Honduras the evolution of arbitration has been slow, despite being the oldest method of conflict resolution, and although it is true that there are currently four Conciliation and Arbitration centers nationwide, two of them located in Tegucigalpa, one in San Pedro Sula and the last one in La Ceiba, we still do not have laws that promote arbitration as the most effective method to resolve conflicts. Article 41 of Decree No. 161-2000, which contains the Law of Conciliation and Arbitration in Honduras, establishes that the judge is the only one who enjoys the power of autoritas, I quote: "The fact thatany of the parties, before or during the arbitration proceedings, requests the adoption of precautionary measures from a competent judicial authority shall not be considered a tacit waiver of arbitration". This in relation to Article 381.2 of the Code of Civil Procedure which refers to the competence of the Court to hear the adoption of a precautionary measure "If the precautionary measure is requested in relation to an arbitration proceeding, the competence shall correspond to the court of the place where the arbitration award is to be executed or where the measures are to take effect. The same shall apply with respect to interim measures requested for foreign judicial or arbitration proceedings, unless otherwise provided by applicable treaties or conventions". Likewise, our Civil Procedural Law provides the option for either the main plaintiff or the counterclaimant to file the request for precautionary measures in arbitration proceedings in Honduras, as established in Article 353.1 of the Code of Civil Procedure of Honduras. However, it has become clear that in Honduras it is the judicial bodies and not the arbitrator who have the exclusive power to grant such protection. The legislator has established two alternative territorial jurisdictions. The court of the place where the arbitration award is to be enforced shall have jurisdiction to hear the interim relief in support of the arbitration. However, as the place where the arbitral award is to be enforced may be difficult to identify in advance or even outside Honduras, another alternative jurisdiction has been provided: the place where the measures are to have effect (art. 381.2 of the Civil Code). It should be noted that it is not possible to request measures prior to the arbitration process, but only contemporaneous or subsequent to its commencement. Article 353.1 clearly authorizes the request for measures in "an arbitration commenced", but not before it begins.
In any case, in the international comparative sphere, there are still countries that do not contemplate in their internal regulations that arbitrators have jurisdiction in interim relief matters, granting exclusive jurisdiction to judges. Examples include Italy, China, Argentina and Brazil.
On the other hand, in Central America there are clear examples of the evolution of arbitration, in which Costa Rica and Panama stand out, referring to the first, this was a country that did not allow arbitrators to know about the adoption of precautionary measures, and it is until 2011 under the law of International Commercial Arbitration that the arbitral jurisdiction on the matter is recognized. When defining arbitration, many consider it as a fast and effective process, without a doubt that the parties in a process need a prompt and fulfilled justice, and an interim measure is essential to not frustrate the purpose of the process. Likewise, in Panama, the precautionary measures are those that are requested to the Arbitral Tribunal or the ordinary courts, so it does not establish a difference between the two, thus granting them this power to implement measures that may be of a conservative, preventive or anticipatory nature, and may include the suspension of acts, the delivery of goods, the deposit of funds, the prohibition to leave the country, among others.
The requirements for interim measures to be adopted in an arbitration proceeding are exactly the same as those for interim measures in a judicial proceeding, i.e., the appearance of good faith or fumus boni iuris, danger in delay or periculum in mora and the provision of a bond or counter-guarantee.
It is important to analyze the advantages brought about by the implementation of precautionary measures, among which we can highlight that the implementation of modern laws reflect the best international practices to ensure potential investments, by providing security, confidence and speed through alternative methods of conflict resolution, it is easier to capture the attention of investors; as a second advantage, we can mention that the arbitrator, being the person in charge of knowing the particular case in depth, finds it much easier to determine the appropriateness of the application of the precautionary measure. The disadvantage is that an interim measure cannot be requested if the Arbitral Tribunal is not duly constituted, which is a serious disadvantage in urgent cases, unlike the jurisdictional bodies that are permanently constituted. A second disadvantage is that in international arbitration proceedings the arbitrators agree on the precautionary measure with a hearing of the opposing party, which suspends the surprise effect that is essential in any precautionary measure.
In conclusion, we can determine that the precautionary measures in arbitration proceedings are effective, as they generate greater investment and security to the parties at the time of establishing the arbitration clause in a contract, which makes more people both natural and legal prefer arbitration as a method of dispute resolution, avoiding that a process stagnates in the delay that prevails in the judicial bodies, This is definitely necessary in Honduras, which is why we recommend a greater dissemination of this knowledge, and the necessary reforms to the Conciliation and Arbitration Law so that the mechanism of precautionary measures can be used by nationals and foreigners, thus forging a path that will lead us to the evolution of arbitration and greater legal security for investors.
Brenda Hernandez
