United States: Your Arbitration Is Not Yet Filed, But Attachment In Aid Of That Arbitration May Be Available

Last Updated: February 28 2018
Article by David L. Barres

The courts undoubtedly have the power to grant provisional remedies in aid of a pending arbitration – including temporary restraining orders, preliminary injunctions, and attachments. As a recent Fifth Circuit decision reminds us, the courts also can grant such remedies in aid of an arbitration that has yet to be commenced. Indeed, those remedies may be available under state law, even if the future arbitration is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention"), and even if the arbitration will be sited in a state other than the one in which the interim remedy is sought.

In Stemcor USA Inc. v. CIA Siderurgica Do Para Cosipar, 870 F.3d 370, 374-79 (5th Cir. 2017), the court held that a pre-arbitration attachment is available in Louisiana, under Louisiana law, in aid of an arbitration that would be subject to the Convention and was to be filed in New York.

America Metals Trading L.L.P. ("AMT") entered into contracts to sell pig iron to Daewoo International Corp. ("Daewoo") and Thyssenkrupp Mannex GMBH ("TKM"). AMT received payment from both companies and failed to make delivery. Daewoo commenced a federal proceeding in the Eastern District of Louisiana to compel arbitration and to attach AMT's pig iron aboard a cargo ship in Louisiana waters. The district court granted Daewood a non-resident attachment under Louisiana law.

TKM filed suit in Louisiana state court and obtained a writ of attachment of the same pig iron. TKM then intervened in the federal proceeding, obtained a federal writ of attachment over the iron, and successfully moved to vacate Daewoo's attachment. The district court concluded that a non-resident attachment was not available under Louisiana law because an action to compel arbitration was not an action for a money judgment, which was one of the statutory requirements. The district court ordered that the proceeds of the sale of the iron (which the parties had jointly requested) be transferred to the state court.

Daewoo appealed the vacatur of its attachment, and the Fifth Circuit reversed. Stemcor, 870 F.3d at 374-80. The court of appeals analyzed (1) whether the district court had jurisdiction over the proceeding under the Convention; (2) if so, whether the Convention permitted or prohibited the use of state-law interim measures in aid of an arbitration; and (3) whether the requirements of state law were satisfied. It was only with respect to the third issue that the court of appeals disagreed with the district court.

The court's subject-matter jurisdiction seemed clear. Daewoo's written arbitration agreements with AMT, providing for arbitration in New York between two parties that are not U.S. citizens, fell under the Convention, as required by 9 U.S.C. § 202. 870 F.3d at 374-75. But did the proceeding itself fall under the Convention, as required by 9 U.S.C. § 203?

The court held that it did. The court canvased the precedents nationwide, and reported that circuit and district courts in the Second, Third, Fourth, Fifth, and Ninth Circuits have held that there is federal subject-matter jurisdiction over a proceeding seeking injunctive remedies in aid of an arbitration under the Convention. 870 F.3d at 374-76 & nn.2-3. The court also noted that the courts of appeals for the Third, Fourth and Ninth Circuits had older precedents that reflected a contrary view, but that they had retreated from those positions in more recent decisions and came to recognize, in most circumstances, subject-matter jurisdiction to grant provisional remedies in aid of arbitration. Id. at 375 n.2. The court also pointed out that the Convention does not expressly forbid pre-arbitration attachment. Id. at 376.

Finally, the court examined Louisiana law. It agreed with the district court that a proceeding seeking to compel arbitration is not an action for a money judgment, and therefore a writ of attachment under La. Code Civ. P. art. 3542 (which applies to both residents and non-residents) was not available. 870 F.3d at 377. But the court held that a pre-petition writ of attachment may issue under La. Code Civ. P. art. 3502, which would apply to an action to confirm a monetary arbitration award. The court thereupon held that pre-arbitration attachment is available when (a) the future arbitration will seek a monetary award that is likely to result in a confirmation suit, and (b) there is an immediate need for an attachment in aid of an imminent arbitration or confirmation proceeding. The court concluded that Daewoo had proved its need for an attachment so that it later could return to Louisiana to collect on a successful arbitration award. 870 F.3d at 377-79 & n.6.

Stemcor contains valuable lessons for the arbitration practitioner. First, provisional remedies such as attachments and preliminary injunctions may be available in support of an arbitration that has not yet been commenced. The Convention, to which the U.S. is a party, reflects a strong policy in favor the resolution of disputes through arbitration, and that policy is advanced by the availability of provisional remedies that prevent a pending or future arbitration from being rendered ineffectual. Stemcor and the cases cited therein suggest that federal district courts have broad injunctive powers with respect to arbitrations governed by the Convention, as they do regarding arbitrations in general.

Second, as with any form of emergency injunctive relief, the practitioner should be ready to prove immediate and irreparable harm in the absence of the relief, and that the arbitration is imminent, is likely to succeed on the merits, and will be rendered ineffectual without pre-arbitration injunctive relief.

Third, Stemcor teaches that state law may provide a federal or state court with the power to issue a pre-arbitration attachment or other injunctive relief. The arbitration codes in some states, like New York, explicitly allow attachments and preliminary injunctions "in connection with an arbitration that is pending or that is to be commenced inside or outside this state, whether or not it is subject to the United Nations convention." N.Y. CPLR § 7502(c). Practitioners therefore should check the civil procedure and arbitration codes of both the state in which the arbitration is pending and the state in which there is property to be attached. Even if an applicable state statute does not expressly reference arbitrations that are out-of-state or under the Convention, the statute may still apply to such proceedings as long as it does not expressly exclude them. It should also be kept in mind that federal district courts and state courts of general jurisdiction have broad, inherent injunctive powers that may be another basis of an application.

Finally, if the desired provisional remedy is an attachment (a type of in rem proceeding), it must be pursued in the state where the property is located. As Stemcor illustrates, that state can be different from the one in which the arbitration is sited under the parties' agreement. Indeed, the very purpose of the attachment is to allow the claimant to return to the state where the attached property is located in order eventually to collect on an arbitration award.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Moritt, Hock & Hamroff LLP
Hughes Hubbard & Reed LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Moritt, Hock & Hamroff LLP
Hughes Hubbard & Reed LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions