LIECHTENSTEIN Law and Practice Contributed by: Moritz Blasy, Nicolai Binkert, Simon Ott and Kathrin Binder, Schurti Partners Attorneys at Law Ltd
7. Procedure 7.1 Governing Rules
ing interim relief from the ordinary court, a contractual penalty may be ordered by the arbitral tribunal. 6.2 Role of Courts While arbitration proceedings are pending, the par - ties can either apply to the ordinary courts (ie, the Liechtenstein District Court) or to the arbitral tribu - nal for preliminary or interim relief. The competence of the arbitral tribunal to grant preliminary or interim relief can be excluded by the parties. The competence of the ordinary courts to grant preliminary or interim relief cannot be excluded. However, if the parties have agreed that the Liechtenstein Rules apply, once arbitral proceedings have commenced, the prior con - sent of the arbitral tribunal has to be obtained before applying for interim relief with the Liechtenstein Dis - trict Court. In any case, under Liechtenstein law, ex parte injunc - tive relief can only be granted by the ordinary courts. Under the Liechtenstein Arbitration Law, interim relief can also be granted in relation to foreign-seated arbi - trations. The Liechtenstein Arbitration Law is not familiar with the concept of emergency arbitrators. Rather, under the Liechtenstein Arbitration Law, the competence to grant interim relief prior to the constitution of the arbi - tral tribunal lies with the ordinary courts. 6.3 Security for Costs The Liechtenstein Arbitration Law does not contain a provision explicitly allowing the arbitral tribunal to order a party to provide security for costs. However, there are views that it is within the discretion of the arbitral tribunal to order security for costs unless the parties agree otherwise. Under the Liechtenstein Rules, the arbitral tribunal may order, and is expected to order, the provision of sufficient security for costs.
The Liechtenstein Arbitration Law is intended to give the parties the greatest possible autonomy. Therefore, only a few procedural rules are mandatory, while the majority of the provisions are to be seen as default rules which apply only if the parties have failed to agree on specific procedural rules. Under the Liechtenstein Rules, subject to (i) the provi - sions of the Rules themselves, and (ii) the provisions in the arbitration agreement or the arbitration clause, if any, the procedure is determined by the arbitral tribu - nal. Thereby, the arbitrators must observe the rules of fairness and efficiency. Like the Liechtenstein Arbitra - tion Law, the Liechtenstein Rules also provide default rules which apply if the parties have failed to agree on procedural rules. The most important mandatory procedural principles under the Liechtenstein Arbitration Law are the right to be heard and the right to be treated fairly. If these procedural principles are violated, this may constitute grounds for setting aside the arbitral award. 7.2 Procedural Steps Under the Liechtenstein Arbitration Law, no particular procedural steps are to be observed. Rather, it is up to the parties to agree on how the arbitral proceedings shall be conducted. In the absence of such agree - ment, the non-mandatory provisions of the Liechten - stein Arbitration Law apply as default rules. Within the very wide frame of the default rules set forth in the Liechtenstein Arbitration Law, it is at the discretion of the arbitrators to decide how to conduct the proceedings. The discretion of the arbitrators is limited by the few mandatory provisions, such as the requirement of the arbitrators to observe the parties’ right to fair treatment and to be heard. Also, under the Liechtenstein Rules, the arbitral tribu - nal has the discretion to determine how the arbitration shall be conducted, unless the parties have agreed otherwise.
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