Determining the proper division of jurisdictional responsibilities between national courts and international arbitral tribunals requires constant calibration by the courts, the tribunals and the parties themselves. National courts play a crucial role in the international arbitral process by, among other things, issuing interim injunctive or provisional relief where necessary to aid the arbitration, particularly before the constitution of the arbitral tribunal.
The majority of US federal circuit courts of appeals hold that there is no threshold jurisdictional bar to a US district courts issuance of injunctive relief in aid of arbitration. However, a minority of US federal circuit courts, including district courts in those circuits, apply a jurisdictional hurdle that could improperly impede parties from an injunction in aid of arbitration, even where the situation warrants that remedy.
This unfortunate jurisdictional divide may negatively impact the ability of a party that may otherwise qualify for injunctive relief under US law to obtain that relief. This reality should inform a partys choice of the US federal court in which it seeks to obtain injunctive relief in aid of arbitration.