Introduction

Pre-arbitral referee procedures have gained some popularity in international dispute resolution practice in recent years. 1 The common goal of these procedures is to obtain speedy provisional relief from a neutral third person-the pre-arbitral referee-in situations where relief from a competent state court or arbitral tribunal is unavailable. A pre-arbitral procedure can be based on rules issued by an arbitral institution such as ICC, whose Rules for a Pre-Arbitral Referee Procedure were issued in 1990.2 Article 1.1 of these Rules provides that the referee 'has the power to make certain Orders prior to the arbitral tribunal or national court competent to deal with the case . . . being seized of it'. The ICC Rules for a Pre-Arbitral Referee Procedure have been applied in five cases, one of which ended in setting aside proceedings before the Paris Court of Appeal.3 A pre-arbitral referee procedure may also be based on ad hoc rules specifically tailored to a particular case in which time is of the essence. An example is Germany's first online gas auction programme, where the dispute resolution provisions stated that the 'Pre-Arbitral Referee is empowered to provide for a rapid and temporary resolution of . . . disputes . . . His powers end upon closing of the Auction.' [Page74:]

This paper aims to shed some light on the legal nature of pre-arbitral referee procedures and, in particular, the question of whether pre-arbitral referees act as arbitrators and thus come within the scope of the applicable arbitration law.

1. Similarities between pre-arbitral referee procedures and arbitration

There are various reasons why the exact nature of the pre-arbitral referee procedure and its relationship to arbitration is unclear. In addition to the uncertainty caused by the fact that the French procedure of the juge des référés, which inspired the ICC pre-arbitral referee procedure, 4 is unknown in most jurisdictions, 5 confusion arises from the similarities between pre-arbitral referee procedures and arbitration.

a) Common source: the parties' agreement

The first and most obvious similarity is that both pre-arbitral referee and arbitration procedures are based on an agreement of the parties which confers decision-making power upon a neutral third person.6 Typically this agreement is found in the dispute resolution clause contained in the parties' contract. Thus, the typical pre-arbitral referee clause resembles a classical arbitration clause. ICC recommends that those parties wishing to have recourse to both the ICC prearbitral referee procedure and ICC arbitration include in their contract the following combined clause:

Any party to this contract shall have the right to have recourse to and shall be bound by the Pre-Arbitral Referee Procedure of the International Chamber of Commerce in accordance with its Rules for a Pre-Arbitral Referee Procedure.

All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. [Page75:]

The main purpose of this combined model pre-arbitral referee and arbitration clause is to make each set of rules part of the contract. Article 3.1 of the ICC Rules for a Pre-Arbitral Referee Procedure requires the parties' agreement to use that procedure to be in writing, thereby making its validity dependent on the same formal condition as an arbitration agreement. Does this mean that the process which follows from such an agreement is of the same nature as an arbitration?

b) Pre-arbitral referee procedures as part of a contractual ADR system

Although the standard pre-arbitral referee/arbitration clause recommended by ICC makes a clear distinction between the two procedures insofar as it merely combines the respective model clauses for each procedure and refers to two distinct set of rules, there may be times when the pre-arbitral referee procedure and arbitration are regulated in a single set of dispute settlement rules. This would be quite a natural approach, given that, as its name implies, the prearbitral referee procedure is by its very nature and purpose closely linked to the subsequent arbitration procedure provided for in the same contract. Such an approach, however, makes the pre-arbitral referee procedure appear as an integral part of the ADR process as such. If the clause provides solely for a prearbitral referee procedure and arbitration, two questions arise. First, when does the power of the pre-arbitral referee cease or is the referee's competence concurrent with that of the arbitral tribunal once the latter has been constituted? The answer may be found in Articles 2.4 and 6.2 of the ICC Rules for a Pre-Arbitral Referee Procedure, which provide that the pre-arbitral referee retains the power to make a decision for thirty days from receipt of the file. However, the arbitral tribunal has the power to decide otherwise. Hence, once the arbitral tribunal has been constituted, the pre-arbitral referee's decision-making poweris only of a subsidiary nature.

The second question that arises from making the pre-arbitral referee procedure an integral part of the ADR process is whether the pre-arbitral referee procedure is of the same procedural nature as the arbitration provided for in the same set of rules. This impression is reinforced if the arbitral tribunal, once it has been constituted, is given the power to overrule the pre-arbitral referee's decision and if the parties in the pre-arbitral referee procedure waive their right of recourse to the ordinary courts, as is commonly found in arbitration rules.7[Page76:]

c) Powers of the pre-arbitral referee and the arbitrator

A third reason for the difficulty in determining the true legal nature of prearbitral referee procedures is the similarity between the decision-making powers of pre-arbitral referees and arbitrators, as illustrated by the fact that pre-arbitral referees are empowered to grant relief that most modern arbitration laws allow arbitrators to order: interim measures of protection.

i) Interim arbitral relief and pre-arbitral decision-making

Article 17 of the UNCITRAL Model Law on International Commercial Arbitration reflects a general understanding that the power to grant interim relief is an integral part of the decision-making power of an arbitral tribunal.8 However, there is an inherent weakness here, as the tribunal needs to have been constituted in order to grant such relief. This means that there is a gap as far as arbitral interim relief is concerned between the moment the dispute arises and the moment the tribunal is constituted. Given that time is frequently of the essence in interim relief scenarios, Article 9 of the UNCITRAL Model Law and most domestic arbitration laws allow the parties to apply to a court for provisional measures. However, they may be loath to pursue such a path. Private parties pitted against State entities will be especially reluctant to seek interim relief from the courts of the opposing State, and, although conceivable in theory, recourse to foreign courts is likely to produce little effect if directed against the State party.9 In such circumstances, a viable alternative for closing the gap is to give the power to order provisional measures to a neutral private third party. Thus, from a functional perspective, relief obtained from a pre-arbitral referee is but a substitute for arbitral interim relief, which would be the appropriate remedy but cannot (yet) be obtained in a situation where time is pressing.

The similarity between interim relief from a pre-arbitral referee and from an arbitral tribunal becomes even more obvious when one looks at the list of powers of a pre-arbitral referee as set out in Article 2.1 of the ICC Rules for a Pre-Arbitral Referee Procedure: [Page77:]

The powers of the Referee are:

(a) to order any conservatory measures or any measures of restoration that are urgently necessary to prevent either immediate damage or irreparable loss and so to safeguard any of the rights or property of one of the parties;

(b) to order a party to make to any other party or to another person any payment which ought to be made;

(c) to order a party to take any step which ought to be taken according to the contract between the parties, including the signing or delivery of any document or the procuring by a party of the signature or delivery of a document;

(d) to order any measures necessary to preserve or establish evidence.

The list of possible issues to be determined by an arbitral tribunal granting

arbitral interim relief includes likewise:

a.measures that serve to protect the status quo until the final decision on the merits is rendered (preservation order),

b.measures which serve to establish an interim regulatory scheme in order to enable the continuing performance of the contract (regulation order) or

c.other orders requiring the other party to cease and desist or to perform according to the order of the tribunal (performance order). 10

The parallel between the scope of pre-arbitral and arbitral interim relief is reinforced by Article 2.4.1 of the ICC Rules for a Pre-Arbitral Referee Procedure, which provides that once the arbitral tribunal becomes seized of the case, it alone retains the power to order any further provisional measures. In such circumstances and assuming the applicable rules so permit, the arbitral tribunal 'shall be deemed to have been authorized by the parties to exercise the powers conferred on the Referee by Article 2.1'. Thus, by agreeing to the ICC Rules for a Pre-Arbitral Referee Procedure, the parties at the same time shape the scope and content of the arbitrator's power to order interim relief under the applicable arbitration rules or arbitration law. Could it not be argued that if, by agreement of the parties, the scope and content of the interim relief obtainable from the pre-arbitral referee is aligned with that obtainable from the arbitrator, then both are of the same legal nature? [Page78:]

ii) Special arbitration rules for urgent measures

A comparison of the powers of pre-arbitral referees and arbitrators to grant interim relief necessarily leads to the question of whether the similarity observed above extends to the legal nature of the decision-making power. This question is particularly relevant given that certain arbitration laws and arbitration rules contain special provisions on urgent measures in situations where the arbitral tribunal has not yet been constituted. For instance, the AAA Optional Rules for Emergency Measures of Protection allow a party 'in need of emergency relief prior to the constitution of the panel' to apply for interim relief to an 'emergency arbitrator' appointed by the AAA 'from a special AAA panel of emergency arbitrators designated to rule on emergency applications'.11 Article 13 of the Arbitration Rules of the French Arbitration Association allows the arbitral

tribunal to be constituted at the request of one of the parties or, if the requested relief does not seem to prejudice the main claim, for a special sole arbitrator to be appointed for the purpose of urgent measures. And Article 42a and following of the Arbitration Rules of the Netherlands Arbitration Institute (NAI) provide for immediate provisional measures in summary arbitral proceedings if such measures are urgently required. Again, the measures are to be obtained from a sole arbitrator appointed by the NAI Administrator at the request of one of the parties.12 This system is based on Article 1051 of the Dutch Code of Civil Procedure which provides for summary arbitral proceedings (kort geding, référé).13 Article 1051(3) expressly provides that a decision rendered in summary arbitral proceedings 'shall be regarded as an arbitral award'. It seems that the only difference between these procedures and interim relief granted by a prearbitral referee lies in the term used to designate the neutral third party. Does this mean that functional similarity prevails over terminological differences and that therefore pre-arbitral referees are in fact arbitrators in disguise?

d) Power of the pre-arbitral referee to issue an 'order'

The final reason for the strong similarities between pre-arbitral referee and arbitral decision-making lies in the nature of the decision. Article 6.1 of the ICC Rules for a Pre-Arbitral Referee Procedure provides that '[t]he decisions taken by the Referee shall be sent by him to the [ICC] Secretariat in the form of an Order giving reasons'. Similarly, the pre-arbitral referee rules that were [Page79:] applied in the German gas auction programme called the preliminary decision to be rendered by the pre-arbitral referee 'the Order' and a party's request for a decision by the pre-arbitral referee a 'Request for Order'. It was also stated that the parties to these rules 'agree to carry out the Order without delay and waive their right to all means of appeal or recourse to the ordinary courts'. Decisions by arbitral tribunals on a party's request for interim relief are frequently rendered in the form of an order.14 Does this mean that the legal nature of the 'Orders'

rendered by pre-arbitral referees and arbitral tribunals is the same?

2. Is there a need to distinguish between pre-arbitral referee and arbitral decision-making?

Based on what has been said so far, one could argue that there is no real need to explore the legal distinction between pre-arbitral referee and arbitral decisionmaking any further.15 The common denominator of pre-arbitral referee and arbitral interim relief is its intrinsically provisional nature. Both lead to 'temporary',16 i.e. non-final decisions. This means that neither orders by prearbitral referees nor those rendered by arbitral tribunals in the context of applications for arbitral interim relief constitute arbitral awards because they both lack the requirement of finality. The Paris Court of Appeal has made it clear that a decision by an arbitral tribunal can only be characterized as an arbitral award if the arbitrators have dealt with the merits of the parties' submissions and have put an end to the disputed issue by ruling definitively on that part of the dispute in their reasoned decision. In that case, they have rendered an award irrespective of the name given to it.17 Accordingly, the Paris Court of Appeal has held that the decision of a pre-arbitral referee under the ICC Rules for a Pre-Arbitral Referee Procedure does not constitute an arbitral award [Page80:] because it 'does not prejudge the merits, nor change the position of the parties or the arbitral tribunal . . . nor pronounce on the merits [of the dispute]'.18 The Court further held that, due to its lack of finality, such a decision is not subject to the rules for the setting aside of arbitral awards contained in domestic arbitration laws.

If we were to end our legal analysis here, we would be failing to give a complete picture of the problem. By acknowledging the 'jurisdictional' nature of prearbitral referee decisions 19 we would be limiting our perspective to the nonbinding nature of the decision-making of pre-arbitral referees and arbitrators in respect of interim relief. In so doing, we would leave many questions unanswered. If pre-arbitral referees, like arbitrators, render jurisdictional decisions, does this mean that they have to be independent like arbitrators, that they have to observe the parties' right to be heard and to be treated equally in their decision-making? 20 If a domestic arbitration law 21 contains special provisions on the enforcement of non-final arbitral decisions on interim relief, can non-final orders rendered by a pre-arbitral referee be enforced under these provisions? And finally, if one subscribes to the view that the New York Convention allows for the enforcement of arbitral interim relief orders,22 does this also apply to orders rendered by a pre-arbitral referee? [Page81:]

3. Pre-arbitral referee decision-making as a contractual device sui generis

a) Non-jurisdictional nature of pre-arbitral referee decisions

The mere fact that the decision of a pre-arbitral referee has a contractual basis in the sense that it derives its authority from the agreement of the parties does not in itself determine whether the decision-making of a pre-arbitral referee is of the same nature as that of an arbitrator. Leaving aside special cases of 'arbitration without privity' in BIT arbitrations 23 and similar scenarios, arbitration has a contractual character because the arbitrators derive their authority from an agreement of the parties.

This does not mean, however, that whenever the parties agree to give decision-making powers to a third party one is dealing with arbitration. The Italian procedure of arbitrato irrituale ,24 the provisions contained in some civil codes such as § 317 of the German Bürgerliches Gesetzbuch allowing contracting parties to empower a third party to decide on the content of a performance to be rendered under the contract,25 or the Ombudsman systems 26 that have been set up in many European jurisdictions to deal with disputes between banks and customers all resemble arbitral decision making. However, they are not or cannot be qualified as such. Basically, these devices derive their justification from the 'magna charta' of contract law-the principle of party autonomy. The parties may agree to give decision-making power to a third party to act as arbitrator, or to act as a contractual decision-maker sui generis whose competence, although based on the agreement of the parties, is not of a jurisdictional nature.

To a certain extent, the pre-arbitral referee resembles the arbitrato irrituale of Italian law and the Schiedsgutachter of German law. The former is considered by Italian courts as purely contractual and not subject to the rules of the Italian arbitration law.27 The Schiedsgutachter is called upon to render a decision on [Page82:] a specific factual issue which, although binding on the court or tribunal and relevant to its finding, does not determine the ultimate decision. Contrary to German legal commentaries, the German courts have always qualified Schiedsgutachten as purely contractual and not of a procedural nature.28 The German Supreme Court argues that 'due to the fact that a Schiedsgutachten is not situated at a procedural level [but remains within the realm of the parties' contractual relationship], the Schiedsgutachter is completely free in the conduct of the procedure [i.e. is not bound to apply procedural due process rules of

German arbitration law]'.29

How the third party's task is characterized depends on what the parties really want.30 When they agree on a pre-arbitral referee procedure they expressly acknowledge that the third party whom they invest with decision-making power shall act at a point in time when arbitral interim relief is not yet available. It would be strange to assume that the parties wanted a 'second arbitral tribunal' to deal with this issue for a limited period of time. Instead, the parties have agreed on a special 'contractual process'.31 The binding nature of the prearbitral referee's decision does not follow from its jurisdictional character but from the fact that the parties have subjected themselves to the referee's decisionmaking power, for instance by agreeing 'to carry out the Referee's Order without delay'.32 Such a commitment creates the binding effect of the referee's decision in a pre-arbitral referee procedure, whereas in arbitration it is merely declaratory since the binding effect of the arbitral tribunal's decision follows from the procedural nature of the arbitral process and the jurisdictional nature of the award. In other words, the binding effect of the pre-arbitral referee's decision does not follow from the res iudicata principle, but from the binding force of a contractual commitment made by the parties.33

This reveals another major difference between the decision-making of arbitrators and pre-arbitral referees. The pre-arbitral referee's task is finished once the decision has been rendered. The order cannot be changed and the parties are contractually bound by it. It is a 'one-off' situation.34 For an arbitrator, on the [Page83:] other hand, rendering an order of interim relief is just a 'prelude' to a subsequent decision on the merits. Once the order has been rendered, the arbitral tribunal may later amend or cancel it, as part of its continuing decision-making power, which is of a jurisdictional nature.35

If the pre-arbitral referee were regarded as a 'second arbitrator', it would be logical, from the perspective of one or both of the parties, that he or she should act as the arbitrator in the dispute on the merits. After all, the power of arbitrators to order interim relief does not disqualify them from deciding subsequently on the merits. However, Article 2.3 of the ICC Rules for a Pre-Arbitral Referee Procedure provides that:

Unless the parties otherwise agree in writing, a Referee appointed in accordance with these Rules shall not act as arbitrator in any subsequent proceedings between those parties or in any other proceedings in which there is any issue or question that is the same as or connected with any raised in the proceedings before the Referee.

Finally, although the wording used by the parties does not in itself determine whether one is dealing with arbitration or any other process of contractual decision-making,36 that wording may support the characterization of the process on other grounds. In this respect it is important to note that while the first draft of the ICC Rules for a Pre-Arbitral Referee Procedure called the neutral third person an 'arbitral referee', this approach was abandoned during the drafting process.37 Thus, nowhere in those rules is the word 'arbitrator' or 'arbitration' used in connection with the pre-arbitral referee's decision-making.38 The official Foreword to the ICC Rules confirms this view by drawing a clear line between the pre-arbitral referee procedure on the one hand and arbitration and other ADR procedures on the other.39 For this reason it is not advisable for institutional [Page84:] arbitration rules to be revised to incorporate pre-arbitral referee rules.40 On the contrary, arbitration rules and pre-arbitral referee rules should be kept strictly separate, not only in institutional 41 but also in ad hoc dispute settlement rules, so as to avoid any attempt to justify the jurisdictional nature of pre-arbitral referee procedures by reference to their proximity to, or even incorporation in, a set of comprehensive dispute resolution rules.

b) Consequences

Although they may appear to resemble each other in certain respects, pre-arbitral procedures are not arbitrations. The arbitration law in force in the country where the pre-arbitral referee's decision is rendered does not apply to prearbitral referee procedures. They should be considered as instruments of a truly contractual, not a procedural nature.42 To do so has important consequences for the conduct of pre-arbitral referee procedures and the treatment of decisions rendered by pre-arbitral referees:

- the appointment of pre-arbitral referees need not follow the same rules as the appointment of arbitrators;

- pre-arbitral referees need not have the same degree of impartiality or independence as arbitrators and they do not come within the ambit of the IBA Guidelines on Conflicts of Interest,43

- pre-arbitral referees do not have to follow the procedural due process principles of fair dealing and equal treatment;

- pre-arbitral referees are not required to conduct oral hearings in order to comply with due process;

- the decisions on interim relief rendered by pre-arbitral referees do not qualify as arbitral awards or orders rendered by arbitral tribunals;

- the decisions rendered by pre-arbitral referees are not subject to the formal requirements of domestic arbitration laws;

- the decisions rendered by pre-arbitral referees are not subject to setting aside by domestic courts on the basis of setting aside provisions applicable to arbitral awards; [Page85:]

- the decisions rendered by pre-arbitral referees may not be enforced on the basis of domestic rules for the enforcement of arbitral awards or arbitral orders for interim relief, or on the basis of the 1958 New York Convention;44

- the confidentiality principles that apply to arbitrators and the limitations on arbitrators' duties to appear as witnesses before a court or arbitral tribunal are not applicable per se 45 to pre-arbitral referee proceedings;

- the legal consequences (e.g. liability for damages) of a party's noncompliance with the order rendered by a pre-arbitral referee must be determined by the competent arbitral tribunal 46 under the law applicable to the pre-arbitral referee clause, i.e. the law applicable to the contract of which the clause forms an integral part.

4. Relationship between courts and pre-arbitral referees

Due to the broad scope of their decision-making power, pre-arbitral referees are rightly considered as 'alternatives to a court in fashioning injunctive or conservatory relief'.47 This begs the question of whether the competence of domestic courts to order interim relief, which is contained in Article 9 of the UNCITRAL Model Law and most domestic arbitration laws, is excluded if the parties have agreed on a pre-arbitral referee procedure. It is indeed argued that by agreeing to the application of the ICC Rules for a Pre-Arbitral Referee Procedure, the parties waive their right to apply to a domestic court for all measures of interim relief lying within the scope of the pre-arbitral referee's competence.48 This view is problematic for two reasons.

a) Mandatory nature of the court's competence

First, it is highly disputed in many jurisdictions whether and to what extent the parties can agree to oust the competence of the domestic courts to issue interim measures of protection.49 Under German law, the parties' right to apply to the competent German court for interim relief under § 1041 of the German Code [Page86:] of Civil Procedure must, like all other provisions of the German Arbitration Act relating to competence, be regarded as mandatory and not open to express or implied exclusion by agreement of the parties.50 This view is grounded in he constitutional right of access to justice, which must be protected in all circumstances and which the parties cannot waive in advance, especially in situations where the arbitral tribunal is not yet available to rule on interim relief. Even when arbitral relief is available, the competence of the courts to order provisional measures continues, albeit in a subsidiary manner, alongside that of the arbitral tribunal.51

Against this background, it seems not only unconstitutional but also paradoxical to accept that courts and arbitral tribunals are concurrently competent with respect to interim relief once the tribunal has been constituted, but that in the period preceding the constitution of the arbitral tribunal the parties are allowed to exclude the competence of the courts leaving them with no other recourse than the pre-arbitral referee.52 This view would also run counter to the true intention of the parties. By agreeing to a pre-arbitral referee procedure, they have expressed their strong interest in achieving maximum efficiency for interim relief. Depriving them of their right to apply to the courts and leaving them with the sole option of applying to a pre-arbitral referee would be inconsistent with their desire for maximum efficiency with respect to interim relief in the period prior to the constitution of the arbitral tribunal.53 During that period they consider the pre-arbitral referee as an additional and not as the exclusive option for interim relief. It would be strange to assume that that the parties' agreement to a pre-arbitral referee procedure excludes the competence of the courts to order interim relief, while it is generally acknowledged today 54 that the arbitration agreement does not. [Page87:]

b) Pre-arbitral referee not an alternative to the courts

Secondly, the fact that the pre-arbitral referee's decision-making is not in the nature of a procedural act argues against excluding the courts' competence with respect to preliminary relief on account of the parties' agreement on a pre-arbitral referee procedure. It has been suggested that the parties might be allowed to opt out of the courts' competence with respect to interim relief if there is a 'substitute of equal value' that safeguards the parties' constitutional right of access to justice.55 Interim relief by arbitrators is considered to be such a substitute,56 reflecting the view that arbitration is a procedural equivalent to legal protection by State courts. Decision-making by pre-arbitral referees, on the other hand, cannot be regarded as a 'substitute of equal value'. As a contractual mechanism, it is quite different from a procedure protected by the mandatory due process rules enshrined in a code of civil procedure.

Conclusion

The need for speed that globalization has brought to international dispute resolution has led many practitioners and parties to the view that arbitration can no longer sell itself on the rapidity of the process. Pre-arbitral referee procedures can help to regain the users' confidence by providing a fast-track process for obtaining interim relief in situations where the arbitral tribunal agreed upon by the parties is not yet available. However, this advantage may be lost if the relationship of pre-arbitral referee processes with arbitration and other ADR processes is unclear. Pre-arbitral processes are not of a jurisdictional nature. Even though the decision-making power of a pre-arbitral referee resembles that of an arbitral tribunal in the context of arbitral interim relief, the pre-arbitral referee process is a contractual dispute resolution scheme sui generis that should not be confused with arbitration. For the sake of legal certainty, pre-arbitral referee rules should not be integrated into, but should be kept strictly separate from, any arbitration rules.

1
See B. Hanotiau, 'The ICC Rules for a Pre-Arbitral Referee Procedure' [2003] Int. A.L.R. 75 at 75ff., who reports that five cases have been decided under these rules.

2
ICC Publication No. 482, also available at <www.iccarbitration.org>; see J.-J. Arnaldez & E. Schäfer, 'Le règlement de référé pré-arbitral de la Chambre de commerce internationale' Rev. arb. 1990.835 at 835ff.; C. Hausmaninger, 'The ICC Rules for a Pre-Arbitral Referee Procedure: A Step Towards Solving the Problem of Provisional Relief in International Commercial Arbitration?' (1992) 7 ICSID Rev. 82 at 82ff.; B. Hanotiau, supra note 1 at 75; E. Gaillard & P. Pinsolle, 'The ICC Pre-Arbitral Referee: First Practical Experiences' (2004) 20 Arbitration International 13 at 13ff. J.-Y. Garaud & C-H. de Taffin, 'The ICC Rules for a Pre-Arbitral Referee Procedure' (2005) 16:1 ICC ICArb. Bull. 33.

3
See E. Gaillard & P. Pinsolle, supra note 2 at 20ff.; E. Gaillard, 'First Court Decision on Pre-Arbitral Referee' New York Law Journal (5 June 2003) 3 at 3.

4
See W.L. Craig, W.W. Park & J. Paulsson, ICC Arbitration, 3d ed. (Oceana, 2000) at 707, § 38.03.

5
See C. Hausmaninger, supra note 2 at 103: 'because the institution of "arbitral Referee" is widely unfamiliar to most domestic legal orders, it s quite uncertain whether a court will qualify a Referee as arbitrator . . .'.

6
See Paris Court of Appeal, 29 April 2003, Société Nationale des Pétroles du Congo and Republic of Congo v. Société Total Fina Elf E&P Congo, (2004) 20 Arbitration International 33 at 37 (English translation).

7
e.g. Article 28(6) of the ICC Rules of Arbitration.

8
See H.M. Holtzmann & J.E. Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: A Legislative History And Commentary (Deventer: Kluwer Law and Taxation, 1994) at 530; K.P. Berger, International Economic Arbitration (Deventer: Kluwer Law and Taxation, 1993) at 331ff.

9
E. Gaillard & P. Pinsolle, supra note 2 at 24.

10
K.P. Berger, supra note 8 at 339; S.A. Baker & M.D. Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (Deventer: Kluwer Law and Taxation, 1992) at 134ff.

11
Sections O-1 and O-2, Commercial Arbitration Rules and Mediation Procedures, <www.adr.org>.

12
Article 42f, NAI Arbitration Rules, available at <www.nai-nl.org>.

13
See P. Sanders & A.J. van de Berg, The Netherlands Arbitration Act 1986 (Deventer: Kluwer Law and Taxation, 1987) at 29.

14
K.P. Berger, supra note 8 at 343.

15
See E. Gaillard & P. Pinsolle, supra note 2 at 22.

16
See the wording of the dispute resolution provisions of the German gas auction programme cited in the Introduction, above.

17
Paris Court of Appeal, Société Braspetro Oil Services (Brasoil) v. GMRA, Rev. arb. 1999.834 at 834, 836: 'the characterization of an arbitral award [by the court] does not depend on the terminology used by the arbitrators or the parties' (Annot. C. Jarrosson at 841, 842ff.). See also Paris Court of Appeal Société Sardisud v. Société Technip, Rev. arb. 1994.391 at 391; Swiss Federal Tribunal, Westland Helicopter, BGE 111 Ia 255ff. (excerpts in (1987) XII Y.B. Comm. Arb. 186 at 186ff.); S. Jarvin, 'Les décisions de procédure des arbitres peuvent-elles faire l'objet d'un recours juridictionnel ?' Rev. arb. 1998.611 at 611ff.; K.P. Berger, supra note 8 at 593ff.; E. Gaillard & J. Savage, eds., Fouchard, Gaillard, Goldman On International Commercial Arbitration (The Hague: Kluwer LawInternational, 1999) [hereafter Fouchard Gaillard Goldman] at 741.

18
Paris Court of Appeal, 29 April 2003, Société Nationale des Pétroles du Congo and Republic of Congo v. Société Total Fina Elf E&P Congo, supra note 6 at 36.

19
See E. Gaillard & P. Pinsolle, supra note 2 at 22: 'In our view, the referee does render a jurisdictional decision unlike, for example, an expert.'; S. Besson, Arbitrage international et mesures provisoires (Zurich: Schulthess Polygraphischer Verlag, 1998) at 75, § 91: 'There is no single reason other than a terminological one, not to recognize the capacity of the third party as "arbitrator of provisional measures"'. See also A. Giardina, 'La nature juridique et l'efficacité pratique des decisions prises' in Les premières applications du Règlement de référe pré-arbitral de la CCI, IAI Seminar, 31 May 2002, <www.iaiparis.com/pdf/actes_colloque.pdf>, 17 at 21: 'decisions of neutrals ordering provisional or conservatory measures in application of the ICC Rules for a Pre-Arbitral Referee Procedure can in principle be considered as arbitral decisions having a compulsory effect. This means that the measures adopted by the neutral are able to be recognized and enforced internationally.'

20
A violation of the right to be heard was claimed by a party in one of the five cases referred to by B. Hanotiau, supra note 1; see P. Tercier, in Les premières applications du Règlement de référe préarbitral de la CCI, IAI Seminar, supra note 19, 11 at 12.

21
e.g. § 1041(2) of the German Code of Civil Procedure provides: 'The court may, at the request of a party, permit enforcement of a measure referred to in subsection 1 [arbitral interim relief], unless application for a corresponding interim measure has already been made to a court. It may recast such an order if necessary for the purpose of enforcing the measure.'

22
See P. Sanders, 'Arbitration' in International Encyclopedia of Comparative Law (Tübingen: J.C.B. Mohr, 1996) vol. XVI: Civil Procedure, c. 12, § 174; P. Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice, A Comparative Study (Deventer: Kluwer Law International, 1999) at 275ff.

23
See J. Paulsson, 'Arbitration Without Privity' (1995) 10 ICSID Rev. 232 at 232ff.

24
See P. Schlosser, Das Recht der internationalen privaten Schiedsgerichtsbarkeit, 2d ed. (Tübingen: J.C.B. Mohr, 1989) § 27.

25
See P. Gottwald in Münchner Kommentar zum BGB, 4th ed. (Munich: Beck, 2003) § 315, para. 12ff.

26
For German, British and Swiss law see H.H.O. Gude, Der Ombudsmann der privaten Banken in Deutschland, Großbritannien und der Schweiz (Bonn: 1998) at 242ff.; for German law S. Steuer in H. Schimansky, H.-J. Bunte & H.-J. Lwowski, eds., Bankrechts-Handbuch, vol. 1, 2d ed. (Munich: Beck, 2001) 32 at 53ff., no. 54ff.; for Swiss law O. Schoch in G. Kaufmann-Kohler & V. Frossard, eds., Arbitration in Banking and Financial Matters (Basel, 2003) at 77.

27
P. Schlosser, supra note 24, § 27.

28
BGHZ 6, 335, 339ff.; BGHZ 9, 138, 145; BGHZ 17, 366, 368; BGH, NJW 1991, 2761; G. Wagner, Prozessverträge (Tübingen: Mohr Siebeck, 1998) at 663.

29
BGHZ 6, 335, 340ff. [translation by the author]. See A. Sessler & C. Leimert, 'The Role of Expert Determination in Mergers and Acquisitions under German Law' (2004) 20 Arbitration International 151 at 154.

30
See A. Sessler & C. Leimert, ibid.; J.-Y. Garaud & C-H. de Taffin, supra note 2 at 60f.

31
Foreword to ICC Publication No. 482.

32
Article 6.6, ICC Rules for a Pre-Arbitral Referee Procedure.

33
See C. Hausmaninger, supra note 2 at 103.

34
See W.L. Craig, W.W. Park & J. Paulsson, supra note 4 at 708, § 38.03; Y. Derains, 'Expertise technique et référé arbitral' Rev. arb. 1982.239 at 240, 248.

35
See P. Tercier, supra note 20 at 13, who describes the pre-arbitral referee's decision as 'definitivelyprovisional'.

36
See A. Sessler & C. Leimert, supra note 29 at 156.

37
See S. Bond, 'La mise en place du Règlement de référé pré-arbitral de la CCI' in Les premières applications du Règlement de référe pré-arbitral de la CCI, IAI Seminar, supra note 19, 3 at 4ff.

38
Paris Court of Appeal, 29 April 2003, Société Nationale des Pétroles du Congo and Republic of Congo v. Société TOTAL FINA ELF E&P Congo, supra note 6 at 36: 'it is evident that the term arbitration has been carefully avoided by erasing any reference to expressions invoking such a term'.

39
Foreword to ICC Publication No. 482: 'depending on the circumstances, it may be desirable to be able to have recourse to the Pre-arbitral Referee Procedure as well as to one or more of the above procedures [ICC expertise, conciliation and arbitration]' (emphasis added).

40
This suggestion is made by E. Gaillard & P. Pinsolle, supra note 2 at 24.

41
ICC has this year, in 2005, published ICC Publication No. 838, which contains the ICC Rules of Arbitration and the ICC Rules for a Pre-Arbitral Referee Procedure.

42
See J.-J. Arnaldez & E. Schäfer, supra note 2 at 848; J.-Y. Garaud & C-H. de Taffin, supra note 2 at 61.

43
The parties may of course agree on rules for the appointment and challenge of pre-arbitral referees that resemble those for arbitrators, but they will be purely contractual, so the rules of the relevant arbitration law will not apply as a fallback.

44
See J.-J. Arnaldez & E. Schäfer, supra note 2 at 848.

45
The parties my of course agree that the pre-arbitral referee process shall be confidential; see Articles 5.4 and 6.7, ICC Rules for a Pre-Arbitral Referee Procedure.

46
See Article 6.8.1, ICC Rules for a Pre-Arbitral Referee Procedure; C. Hausmaninger, supra note 2 at 103ff.

47
W.L. Craig, W.W. Park & J. Paulsson, supra note 4 at 709.

48
Fouchard Gaillard Goldman, supra note 17 at 719 (§ 1321); see also B. Hanotiau, supra note 1 at 76, who suggests this is a question to consider if and when the rules are revised.

49
See the survey by S. Besson, supra note 9 at 179ff., § 291ff.

50
P. Schlosser in F. Stein & M. Jonas, Kommentar zur Zivilprozessordnung, 22d ed. (Tübingen: Mohr Siebeck, 2002) § 1033, para. 1; J.P. Lachmann, Handbuch für die Schiedsgerichtspraxis, 2d ed. (Cologne: Schmidt, 2002) at 469, § 1402; J. Münch in Münchener Kommentar, ZPO, 2d ed. (Munich: Beck, 2001) § 1033, para. 14; W.J. Habscheid, 'Das neue Recht der Schiedsgerichtsbarkeit' JuristenZeitung 1998, 445 at 447; R. Schütze, 'Einstweiliger Rechtsschutz im Schiedsverfahren' Betriebs-Berater 1998, 1650 at 1650; but see K.H. Schwab & G. Walter, Schiedsgerichtsbarkeit, 6th ed. (Munich: Beck, 2000) at 201, § 24.

51
K.P. Berger, supra note 8 at 348; C. Hausmaninger, supra note 2 at 111ff.

52
See S. Besson, supra note 19 at 75, § 92; J.-F. Poudret & S. Besson, Droit compare de l'arbitrage international (Brussels: Bruylant, 2002) at 560, § 615; compare C. Hausmaninger, supra note 2 at 85ff.; Anaconda v. American Sugar Refining Co., 322 U.S. 42 (1944).

53
A. Reiner, 'La redaction de clauses de référé pré-arbitral' in Les premières applications du Règlement de référe pré-arbitral de la CCI, IAI Seminar, supra note 19, 22.

54
See UN Doc. A/CN.9/264, Article 9, para. 1, in H.M. Holtzmann & J.E. Neuhaus, supra note 8 at 343.

55
C. Calavros, Das UNCITRAL Modellgesetz über die internationale Handelsschiedsgerichtsbarkeit (Bielefeld: Gieseking, 1988) at 58.

56
Ibid.