URUGUAY Law and Practice Contributed by: Leonardo Melos, Bergstein Abogados
As per the AICA, a precautionary measure would be a temporary measure granted in the form of an award, whereby – at any time prior to the issuance of the final award – the court orders one of the parties to: • maintain the status quo pending settlement of the dispute; • take steps to prevent any actual or imminent dam - age or impairment of the arbitral proceedings, or refrain from certain acts that are likely to cause such damage or impairment of the arbitral pro - ceedings; • provide some means to preserve assets that will allow the award issued to be enforced; and/or • preserve evidence that could be relevant and perti - nent to the dispute. The precautionary measure will be granted by the arbitral tribunal when necessary for the protection of a right and whenever there is potential irreversible damage in light of the duration of the process. This decision of the arbitral tribunal will not be considered as a prejudgment regarding the main subject of the dispute. 6.2 Role of Courts Local courts play a relevant role in ensuring that the preliminary or interim measure is pursued by one of the parties prior to the initiation of the arbitral pro - ceedings in cases of international arbitration. In this case, the arbitral proceedings should be started within 30 days, counted from the date the measure takes effect. If the interim measure is decided by the arbitral tri - bunal in the course of an arbitration proceeding, the arbitral tribunal may also request the assistance of a local court to enforce the measure against a party in breach. To that end, the local court will have the same jurisdic - tion to issue precautionary measures as the arbitration proceeding, regardless of whether or not the arbitra - tion is seated in Uruguay. For purposes of deciding on the issuance of an interim or precautionary measure, the local court should take into account the principles of international arbitration and the particularities of the
dispute. As regards the types of measures that could be granted by local courts, see 6.1 Types of Relief . Although the role of an emergency arbitrator has not been established by the AICA, local arbitral institu - tions such as the CCA have ruled that an emergency arbitrator may issue interim and precautionary meas - ures. According to the CCA rules, the emergency arbi - trator’s competence would be limited to precautionary measures to secure evidence or anticipated evidence that – owing to its nature or the circumstances – should be received prior to the appointment of the arbitral tribunal. A party that wishes to request the intervention of an emergency arbitrator should file its request with the CCA in writing. The prior appointment of an emer - gency arbitrator does not prevent the local courts from assuming jurisdiction at the request of one of the parties or for the enforcement of the interim or
precautionary measure. 6.3 Security for Costs
Uruguayan law does not allow the local courts or the arbitral tribunal to ask security for costs only from the claimant. Costs for the arbitration are requested in advance from both parties equally.
7. Procedure 7.1 Governing Rules
Parties are free to establish the arbitral procedure in the arbitration agreement or after the dispute started. If the parties fail to establish the arbitral procedure, the arbitral tribunal is entitled to decide the procedure that is most appropriate for the dispute. Such a procedure would also regulate the admissibility and assessment of evidence. 7.2 Procedural Steps There are no particular steps that are required prior to pursuing an international arbitration. However, if one of the parties refuses to enter into the arbitration and consequently to honour the procedure established by the AICA, the other party is entitled to pursue the judi - cial enforcement of the arbitration agreement with the local courts. In this case, the local court would – on
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