PRECAUTIONARY MEASURES IN HONDURAN ARBITRATION

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PRECAUTIONARY MEASURES IN HONDURAN ARBITRATION

Arbitration is an alternative dispute resolution method that is increasingly being used in Honduras. Unlike ordinary courts, arbitration offers the parties greater control over the process and the ability to choose one or more arbitrators specialized in the subject matter of the dispute. However, as in any legal process, situations may arise in which interim measures are necessary to protect the interests of the parties during the arbitration. Interim measures are temporary measures taken during a legal process to prevent irreparable harm to the rights of the parties or to secure the results of the arbitration judgment. In the context of arbitration, interim measures may be used to protect property or rights that are being disputed in the process. For example, interim measures may be requested to prevent one of the parties from selling or transferring the subject matter of the dispute during the arbitration. As for the precautionary measures themselves, it may be understood that they proceed in a "extra arbitral”Since arbitration tribunals cannot carry out such measures, and according to the Conciliation and Arbitration Law, it is prohibitive for other courts or bodies to intervene, unless expressly authorized by the aforementioned law, and that only case is in the execution or practice of evidence when deemed necessary. As we have said, the jurisdictional courts are those who exclusively hear precautionary measures, and the involvement of the arbitration tribunal in the adoption of such measures is practically null. Incidentally, it is a power exclusive to the Judiciary to dictate coercive measures, such as precautionary measures, which is why I mention that such measures can only be carried out by the courts of the Republic, as established in Article 381.2 of the Civil Procedure Code:"If the interim measure is requested in connection with an arbitration proceeding, jurisdiction shall lie with the court of the place where the arbitral award is to be enforced or where the measures are to take effect. The same shall apply to interim measures requested for foreign judicial or arbitral proceedings, unless otherwise provided by the applicable Treaties or Conventions."Regarding the process for adopting precautionary measures in arbitration proceedings, they differ from the adoption of these with respect to precautionary measures in jurisdictional proceedings, since in arbitration proceedings they will be adopted once the aforementioned trial has begun, when these have begun in Honduran territory. This also applies to international arbitrations with respect to assets located in Honduran territory for which the adoption of precautionary measures could be requested. Compared to other legislations, in the case of arbitration in Panama, precautionary measures are those that are requested from the arbitral tribunal or from the ordinary courts.(it makes no difference who decrees them)to protect the rights and interests of the disputing parties while the merits of the matter are resolved. These measures may be conservative, preventive, or anticipatory in nature, and may include the suspension of proceedings, the delivery of assets, the deposit of funds, a ban on leaving the country, among others. In other words, in Panamanian arbitration, the arbitral tribunal is permitted to order interim measures. Returning to the case of Honduras, this circumstance poses a practical difficulty in adopting these measures, since certain requirements must be met that conflict with the nature of arbitral and jurisdictional processes. What do I mean? It turns out that the fact of being a party to an arbitration process must be proven, an action that is contradictory as it ignores the secrecy of arbitral proceedings. How could this fact be proven without violating the secrecy of the process? This is a difficult question to answer, and it is addressed to centers that administer arbitrations, ad hoc arbitration tribunals, and the judiciary, since a way must be found to comply with the requirement without violating the regulations. As for the other requirements for requesting interim measures in arbitration proceedings, they are the same as for the judicial process:

1. It must contain a precise definition of the measure and its scope, fully justifying the existence of the legally required conditions for its adoption.
2. The supporting documents will be attached, and other means of evidence will be proposed to support the assumptions that authorize the adoption of precautionary measures.
3. The provision of security will be offered, specifying the type of security and the amount proposed, or the exemption corresponding to the applicant will be justified.

To comply with the third requirement, we return to the same point of maintaining the confidentiality of the arbitration process. Since there is no regulation or rule on surety bonds in force in the country, we are limited or left to the discretion of the courts or the acting parties regarding the amounts of surety bonds. They may not be sufficient, or in other cases, may be excessive depending on the nature of the arbitration. Another important point that can be taken into account when adopting precautionary measures is that they can be carried outunheard part,That is, without prior notification of the defendant, thereby preventing the possible concealment, transfer, damage, etc., of the object on which the measure is to be imposed. In the case of precautionary measures in arbitration, not all the circumstances exempting the defendant from providing security can be adopted, or it would be very difficult to do so:

1. "Anyone who has been granted free legal aid will not be required to provide security for the adoption of precautionary measures."In arbitration proceedings, free legal assistance is not available, so this exemption cannot be applied.
2. “When your financial capacity is significantly lower than that of the other party.”This is an element that presents a certain subjectivity, since how is the financial capacity of the parties assessed if they are not a party to a trial or do not have access to their finances?
3. "A litigant who has obtained a favorable judgment will be exempt from providing security to obtain a precautionary measure."It would practically be the only reason for exemption from bail for the requesting party involved in an arbitration process, as established in article 77 of the Conciliation and Arbitration Law:“PRECAUTIONARY INSTRUCTION IN THE EVENT OF AN APPEAL FOR NULLITY. Once an appeal for nullity has been filed, the interested party may request precautionary measures to ensure its full effectiveness.”
4. “In other cases provided for by law.”Ultimately, and more as a general form of expression, exceptional cases contemplated in other laws of the Republic or, where appropriate, those circumstances contemplated in treaties would be appreciated.

In conclusion, precautionary measures in Honduran "intra-court" arbitrations are not considered inadmissible under our legislation, since they are carried out by the jurisdictional body, with virtually no participation by the arbitral tribunal. There are special circumstances that can change the meaning or adoption of precautionary measures, or when it is appropriate and when not to request them in the jurisdictional courts. Thank you for reading my article on this.“Precautionary measures in Honduran arbitration proceedings”I hope this has been helpful in resolving some of your questions and concerns regarding this topic. As professionals in arbitration and jurisdiction, we want to offer our services to assist you with any needs you may have in these areas. If you need advice or would like to learn more about our skills and experience, please do not hesitate to contact us. You can find me on our website.www.lexincorp.comor send us an email tojcbenitez@lexincorp.comandinfohn@lexincorp.com. It will be a pleasure to work with you and help you achieve your goals. See you soon! [/vc_column_text][us_separator][vc_column_text] Written by: Lic. Juan Carlos Benitez Contreras [/vc_column_text][/vc_column][/vc_row]