An arbitral tribunal is charged to render an award that will resolve the parties' dispute on the basis of, first, the facts established by the evidence and, second, the law or other standard by which the consequences of those facts are to be determined. It is essential to the effective discharge of the arbitrators' obligation that the tribunal have the authority to issue two categories of orders: first, orders necessary to enable the tribunal to conduct the proceedings in a manner that will allow the parties fairly to present their case and the tribunal adequately to inform itself of the facts and law that should determine the resolution of the dispute; and second, orders necessary to preserve the subject matter of the dispute so that the tribunal may retain the capacity to enter the relief sought. Out of the twin objectives of fairness and effectiveness arise the powers of an arbitral tribunal to issue procedural orders, including orders of interim measures, and the obligation of the parties to abide by them.

This paper will proceed in four parts, considering, first, the sources of arbitrators' authority to issue procedural orders; second, the scope of arbitrators' authority to issue procedural orders; third, arbitrators' authority to order interim measures of protection; and finally, the corresponding obligation of parties to abide by arbitrators' procedural orders and orders of interim protection.

I. The sources of arbitrators' authority to issue procedural orders

A. The parties' agreement

The primary source of arbitrators' authority to issue procedural orders is the parties' agreement to arbitrate. Whether the agreement is between states, between states and private parties, or between private parties, it is fundamental that arbitration is a matter of consent. 1 That principle applies even when the consent is given by a state on behalf of a party for which the state is empowered to act. 2[Page58:]

It follows from the consensual character of arbitration that arbitrators' powers must be determined, in the first instance, by the terms on which the parties gave their consent - that is, the specific terms of the arbitration agreement. In major international transactions, the parties will generally agree to either institutional or ad hoc arbitration pursuant to an established set of rules, which they might then adapt to the specific circumstances by either derogating from or adding to the chosen rules. To state the obvious, the more detailed the provisions of the arbitration agreement, the less scope there will be for discretion in the arbitral tribunal on how to conduct the proceeding. 3

In many cases, therefore, the arbitrators' powers will be determined in the first instance by an established set of rules, such as those promulgated by each of the institutions sponsoring this Colloquium. The rules may have been drafted to apply to any international commercial dispute, such as the Rules of the International Chamber of Commerce (ICC), 4 the International Rules of the American Arbitration Association (AAA), 5 the Rules of the London Court of International Arbitration (LCIA), 6 and the UNCITRAL Rules, 7 or they may have been tailored to a specific subject matter, such as the Rules of the World Intellectual Property Organization (WIPO), 8 or party alignment, such as the Rules of Procedure for Arbitration Proceedings under the Convention for the Settlement of Investment Disputes Between States and Nationals of Other States. 9

Each of the principal sets of arbitration rules sets forth the tandem objectives of fairness and effectiveness and then lays down particular rules applicable in the event that the parties do not specify otherwise. For example, Article 16(1) of the recently revised AAA International Rules provides:

Subject to these rules, the tribunal may conduct the arbitration in whatever manner it considers appropriate, provided that the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case.

In the same vein, Article 15 of the recently revised ICC Rules provides:

1. The proceedings before the Arbitral Tribunal shall be governed by these Rules, and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration.

2. In all cases, the Arbitral Tribunal shall act fairly and impartially and ensure that each party has a reasonable opportunity to present its case.

Article 14.1 of the recently revised LCIA Rules provides:

The parties may agree on the conduct of their arbitral proceedings and they are encouraged to do so, consistent with the Arbitral Tribunal's general duties at all times:

(i) to act fairly and impartially as between all parties, giving each a reasonable opportunity of putting its case and dealing with that of its opponent; and

(ii) to adopt procedures suitable to the circumstances of the arbitration, [Page59:] avoiding unnecessary delay or expense, so as to provide a fair and efficient means for the final resolution of the parties' dispute.

To like effect, Article 15(1) of the UNCITRAL Rules provides:

Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.10

Finally, the ICSID Rules provide that "the Tribunal shall make the orders required for the conduct of the proceeding," at the same time making clear that in doing so, "the Tribunal shall apply any agreement between the parties on procedural matters." 11

B. The law governing the proceedings

In many cases, the law the parties have made for themselves in the form of their agreement to arbitrate suffices to govern all aspects of the proceedings. It is also possible, however, that the law of the place of arbitration will act either to override some aspect of the parties' agreement12 or to supplement that agreement. 13 The new English arbitration statute apparently does both, in one sweep, by imposing a nonderogable duty on the arbitrators to "adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined." 14

The right to designate the place of arbitration - and hence the law governing the proceeding, or the curial law - is a fundamental component of party autonomy. 15[Page60:] Typically the place of the arbitration for purposes of determining the law governing the proceeding will be the place the parties choose physically to hold the hearing, though it need not be. 16 Of course, the law governing the arbitral proceeding need not be, and often will not be, the same as the law governing the contract or even the law governing the arbitration clause itself. 17

Thus, setting aside for the purposes of this discussion the prospect of delocalized, or anational, arbitration proceedings, 18 it follows that the parties must subject themselves to some municipal regime of arbitration law that will overlay their own arbitration agreement. But it also follows that the right to choose the place of arbitration, and hence the curial law, allows the parties to minimize the restraints placed upon their procedural choices and upon the arbitrators' procedural authority by choosing the arbitral seat so as to subject the proceeding to a municipal arbitration law that recognizes broad party autonomy.

C. Inherent authority

Finally, it is necessary to consider the inherent, or implied, authority of an arbitral tribunal. Even in the face of a detailed agreement to arbitrate, there will always remain the possibility that an issue will arise whose resolution is not dictated by any express or incorporated provision of the agreement. The general statements of the arbitrators' authority included in many sets of rules will provide guidance, but as we have seen, such statements generally do no more than reiterate the arbitrators' charge to decide cases fairly and effectively.

Thus, even where a detailed clause or chosen set of rules governs, it may be necessary to resort to authority that is not expressly granted by either the agreement to arbitrate or the law governing the proceeding. In the rarer case of a sparer clause - "arbitration in New York," for example, which should be enforceable under the Federal Arbitration Act if the clause is subject to United States law, or an ad hoc clause specifying no set of rules and setting forth no procedural details - the question assumes greater importance. In any event, considering the question of inherent or implied authority on the hypothesis of the sparest possible clause that is susceptible of enforcement, by forcing us to consider on an empty slate what inherent or implied authority an arbitrator may wield, provides guidance as to the scope of any such authority even in the case of a more detailed clause. [Page61:]

The issue may be considered from the perspective either of the tribunal or of the parties - that is, either as a matter of the authority that inheres in the arbitral function assigned the tribunal by the parties, or of the authority that may be implied from the parties' consent to submit their dispute for impartial resolution by independent decisionmakers. 19 Surely, certain attributes of authority inhere in an arbitral tribunal's status as an organ charged to impartially resolve a dispute in accordance with law. For example, the International Court of Justice has held that it

possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute... 20

The Court explained that

[s]uch inherent jurisdiction...derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded. 21

So too with respect to an arbitral tribunal: Once constituted, the tribunal must be presumed to carry the authority necessary to fulfill its duty to render a fair and effective award. 22 This presumption comports with, or is simply an application of, a more general principle of institutional effectiveness. 23

Considering the question from the standpoint of the parties' expectations rather than the tribunal's needs should yield the same result. If inherent powers may be "characterized as powers necessary to fulfill the objective intentions of the parties," 24 then the parties must be taken to have consented to the exercise of the authority necessary to fairly and effectively resolve the dispute they have submitted. 25 By recognizing the tribunal's inherent authority to make procedural decisions necessary to the conduct of the proceedings, the parties simply perform in good faith their agreement to arbitrate. [Page62:]

II. Arbitrators' authority to issue procedural orders

Much attention has been paid recently to the degree of harmonization and divergence in international arbitral procedure, on the hypothesis that the interplay of arbitrators, advocates, and parties from different legal backgrounds that international arbitration requires is leading to a shared set of assumptions about fair and effective procedure. 26 Whatever the content of the rules of international arbitral procedure - be they rules chosen expressly by the parties, imposed by mandatory law of the place of arbitration, or found inherent in the arbitral function or implied in the parties' agreement to arbitrate - we here consider the scope of such rules, and hence the scope of arbitrators' procedural authority. 27

A good place to begin is the sets of rules that, after long experience and with the input of arbitration users, have been promulgated by the principal arbitration institutions, such as the ICC, AAA, and LCIA, or by international organizations or treaties, such as UNCITRAL and the ICSID Convention. By surveying a representative group of rules and identifying their common features, we might suggest a "customary procedural law" of international arbitration at least as to the scope of the procedural authority of arbitrators, if not as to the terms of the procedural rules themselves. 28 These items should be considered the procedural minima - the elements of procedural authority minimally required by an arbitral tribunal to carry out its function of resolving the parties' dispute in a fair and effective manner.

Authority to order the submission of pleadings.

To control a proceeding, the arbitrators must have the authority to determine the scope, number, and character of submissions. Hence, each of the representative sets of rules provides a basic structure of submissions. The LCIA Rules contain a relatively detailed set of rules concerning the submission of written statements and documents, subject to contrary agreement by the parties or order by the arbitrators. 29

Authority to determine time periods.

To control a proceeding, the arbitrators must also have the authority to determine the sequence of proceedings and their timing. Hence, while the rules generally set out time periods for written submissions aimed at achieving a speedy and effective resolution of the parties' dispute, they also generally permit the arbitrators to extend those periods. 30[Page63:]

Authority to order production of documents.

For the tribunal to ensure that it is adequately informed of the facts relevant to the dispute, or that each party has had access to the information necessary to ensure a fair opportunity to present its case, the tribunal must have the authority to define the universe of relevant and available information and provide for equal access to that information. The AAA International Rules authorize arbitrators to order the production of documents when "necessary or appropriate" and the LCIA Rules when "relevant." 31 The ICC Rules provide that "[a]t any time during the proceedings," the tribunal "may summon any party to provide ... evidence" additional to that provided in its written submissions, and the UNCITRAL and ICSID Rules contain similar provisions. 32

Authority to conduct hearings.

If the right to be heard is fundamental to the arbitral process, 33 the arbitral tribunal must have authority to order that hearings take place, set times and venues for hearings, set time limits for hearings, determine what evidence or argument should be heard at the hearing, and make any other orders necessary to conduct the hearing. The representative rules reflect that authority. 34

Authority to conduct hearings other than at the seat.

The seat of the arbitration will generally determine the curial law. In some circumstances, however, it will be more convenient to hold some or all of the proceedings in a different location. The representative rules recognize that the hearing may be held in any location for reasons of convenience without altering the juridical seat of the arbitration. 35

Authority to determine the language.

The language of the proceeding is fundamental to the conduct of the proceeding, as the need to proceed in a disfavored language can pose a great barrier to full participation. The representative rules recognize the tribunal's authority to determine the language or languages in which the arbitration will proceed and, as a corollary, the terms of translation or interpretation. 36

Authority to determine evidentiary matters.

If the tribunal is to act as decision-maker, it must have the authority to determine the admissibility and weight of the evidence presented in support of each party's case - an authority intrinsic to the adjudicative or decision-making function. 37 It will be rare when the rules of evidence that might apply to judicial proceedings in a particular municipal system will be appropriate to an arbitral proceeding, but even in that rare case the tribunal would exercise the discretion necessary to apply any such evidentiary code.

Authority to hear witnesses.

Again, the fact-finding function of an arbitral tribunal must encompass the terms on which the tribunal will hear witnesses and the treatment to be given their testimony. The representative rules all make provision for hearing witnesses and making related orders. 38 The LCIA Rules make explicit not only that the tribunal may order a witness to attend, but that it may draw adverse inferences from a witness's failure to do so. [Page64:]

Authority to appoint independent experts.

A tribunal may conclude that it requires independent expert advice on particular issues, usually technical or other specialized issues. Each of the representative rules except the ICSID Rules grant the arbitrators' authority to appoint an expert if the tribunal so decides. 39 The authority to appoint an expert should not be construed as license to delegate the arbitrators' decision-making authority to the expert.

Authority to proceed in a party's absence.

A party may fail to answer the request to arbitrate or statement of claim, refuse to proceed after losing a jurisdictional challenge, refuse to attend a hearing scheduled over its objection, or at any other point cease its participation. If an agreement to arbitrate is to have any meaning, a party's unilateral refusal to participate cannot disable the tribunal. Hence, each of the representative rules expressly authorizes the arbitrators to proceed with the arbitration notwithstanding that party's absence and to render an award. 40

Each of these items is an element of procedure in the pure sense. 41 The survey suggests that to fulfill its assigned function of rendering a fair and effective resolution of the submitted dispute, the arbitral tribunal must have complete authority over (1) the course and scope of the pleadings and other written submissions; (2) the provision to the tribunal and the adverse party of relevant information in the hands of the parties or otherwise available to the tribunal; and (3) the conduct of the hearing, in the form of both argument and evidence. Hence, regardless of the other terms of the agreement to arbitrate, an arbitral tribunal should have such authority unless expressly denied the arbitrators by that agreement or by the law governing the proceeding.

III. Arbitrators' authority to order interim measures of protection

The final and binding character of arbitration is as fundamental to the process as consent: If the determination reached by those to whom the parties submit their dispute is not to be final and binding, the process is one of mediation or conciliation, not arbitration. 42 It follows from arbitrators' authority to issue a final and binding award on the subject matter submitted to them that, from the inception of the proceeding, they must have the authority to enter such orders-conservatory measures, provisional measures, interim measures of protection, or however else characterized [Page65:]-as are necessary to preserve their capacity to render a fair and effective award. 43 By definition, interim measures are provisional, but they partake of the merits in that they necessarily represent a provisional view of, or at least definition of, the claims at issue. If such orders of interim protection are procedural, they are procedural in a different sense than an order, say, directing the production of documents or submission of prehearing briefs.

A. Arbitrators' authority to order interim measures as a general principle

As the Permanent Court of International Justice explained, the authority to indicate provisional measures conferred by its own statute simply reflected

the principle universally accepted by international tribunals...to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute. 44

The authority to order interim measures of protection so as to preserve the subject matter of the dispute, and hence the tribunal's capacity to resolve the dispute, is but a necessary component of the tribunal's authority to resolve the dispute in the first place:

The function of a judicial tribunal, once an issue has been brought to it, is to take the necessary steps according to law towards reaching a decision in accordance with the principle of the equality of parties. This presupposes that the issue brought to it, once committed to the court, must as far as possible be preserved in that form, free from interference by unilateral action of a party, until the determination made by the court. It means also that the principle of equality cannot be disturbed by the superior force available to one party, wherewith to impair or interfere with the subject matter until determination. It is thus inherent in the authority of a tribunal that, ancillary to the power of judgement, it must have the power to issue incidental orders to ensure that the subject-matter of the suit is preserved intact until judgement. 45

The general principle underlying the authority of international tribunals to order interim measures of protection applies with equal force to international arbitral tribunals. A party's agreement to arbitrate represents a commitment to seek a final and binding resolution of disputes by an impartial third party in an orderly manner. That commitment cannot be squared with the right, at the same time, to alter the subject matter of the dispute in a manner that would eliminate or interfere with the capacity of the tribunal to render a fair and effective award. [Page66:]

As a result, international arbitral tribunals have repeatedly held that they have authority to order interim measures of protection. For example, in E-Systems, Inc. v. Islamic Republic of Iran, the Iran-United States Claims Tribunal, sitting in Full Tribunal, held that it had "an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective." 46 Viewed from the perspective of either the task entrusted to the tribunal or the commitment made by the parties, an agreement to submit a dispute to an arbitral tribunal should be read to confer the requisite authority on the tribunal to preserve the dispute for its resolution.

B. Arbitrators' authority to order interim measures as conferred by rule, statute, or convention

The representative rules under consideration here generally reflect arbitrators' authority to order interim measures of protection. 47 For example, Article 23(1) of the new ICC Rules provides:

Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate. 48

Article 21 of the new AAA Rules similarly provides:

1. At the request of any party, the tribunal may take whatever interim measures it deems necessary, including injunctive relief and measures for the protection or conservation of property.

2. Such interim measures may take the form of an interim award, and the tribunal may require security for the costs of such measures.

Article 26 of the UNCITRAL Rules is in accord:

1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.

2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.

And Article 25 of the new LCIA Rules contains an especially detailed statement of the arbitrators' authority to grant interim measures of protection. That provision specifies that, unless otherwise agreed in writing, the arbitrators may [Page67:]

order any respondent party to a claim or counterclaim to provide security for all or part of the amount in dispute...[or]

order the preservation, storage, sale or other disposal of any property or thing under the control of any party and relating to the subject matter of the arbitration; [or]

order on a provisional basis...any relief which the [tribunal] would have power to grant in an award; [or]

order any claiming or counterclaiming party to provide security for the legal or other costs of any other party by way of deposit or bank guarantee or in any other manner and upon such terms as the [tribunal] considers appropriate. 49

The municipal law governing the proceedings may also expressly confer the authority to order interim measures. Article 17 of the UNCITRAL Model Law provides:

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.

The English 1996 Act is more detailed, expressly authorizing arbitrators to make orders to provide security for costs, orders relating to the property that is the subject matter of the dispute and that is owned by or in the possession of a party to the proceedings, and, if so authorized by the agreement, orders awarding on a provisional basis any relief that it could grant in a final award. 50

Finally, arbitrators' authority to order interim measures may be conferred by an express provision of an international convention. 51

C. Derogation from the general principle by express agreement

While the authority to indicate provisional measures plainly qualifies as a general principle, the prevailing view is that parties may derogate from the principle. 52 For example, the provision in the ICSID Convention that "the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures that should be taken to preserve the respective rights of either party" has been viewed by some, by virtue of the use of the term "recommend," as a determination not to endow an ICSID tribunal with the authority to issue binding orders. 53 Arbitral conventions, statutes, and rules provide evidence, as well, that the parties retain the discretion to override the [Page68:] authority that would otherwise be granted an arbitral tribunal to order interim measures of protection. 54

A derogation from the general principle that an international judicial or arbitral tribunal has the authority to order measures designed to preserve its capacity to render an effective judgement or award, or a suggestion that such measures might be not binding but merely precatory, is fundamentally incompatible with the judicial or arbitral function. 55 Hence, if permissible, such a derogation should be inferred only on the clearest evidence of the parties' intent as expressed in the governing instrument. Similarly, in the face of an argument that a treaty or agreement derogates from the general principle, a tribunal should read the text, if possible, in a manner that conforms with the tribunal's authority to the general principle. 56

D. Judicial interim measures in an arbitrable dispute

Arbitral tribunals are rarely standing bodies, and they take time to constitute. They also have no enforcement power of their own. Hence, if the arbitral dispute resolution mechanism crafted by the parties is to be fully effective, a right of recourse to the courts prior to the constitution of the tribunal must be preserved. A contrary rule would preserve the integrity of arbitration at the price of its effectiveness.

Each of the representative rules so recognizes. The ICC Rules provide that:

The application of a party to a judicial authority for such measures or for the implementation of any such measure ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. 57

The AAA, LCIA, UNCITRAL, and ICSID Rules have similar provisions, though the ICSID Rules require that the parties have stipulated a right of judicial recourse in their agreement to arbitrate. 58[Page69:]

To similar effect, Article 9 of the UNCITRAL Model Law provides: "It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure." According to the leading commentators on the Model Law,

Article 9 codifies the dual principles that, first, a party does not waive its right to go to arbitration by requesting (or obtaining) interim measures of protection from a national court, and, second, that a national court is not prevented from granting such measures by the existence of an arbitration agreement. 59

The extent of court intervention in the form of interim measures of protection should run only so far as the rationale for such intervention. Like interim measures generally, judicially rendered interim measures should be issued when necessary to preserve the capacity of the arbitral tribunal to render an effective award; courts should support, not substitute for, the arbitrators' authority. 60 Hence, as the ICC and LCIA Rules expressly recognize, a greater justification will be required for an application to the courts after constitution of the tribunal. 61

Section 44 of the English 1996 Act both confirms the authority of a court to order provisional measures in aid of arbitration and sets forth the limits to that authority. The section provides that the court's power should be exercised only in cases of urgency or, if the case is not one of urgency, with the permission of the tribunal or the agreement in writing of the parties. The section also provides that the court shall act only if or to the extent that the tribunal has no power or is unable to act effectively. The section thereby sets forth a rule of restraint that well balances the authority of an arbitral tribunal with its intrinsic limitations.

E. Orders of interim measures of protection by institutionappointed emergency arbitrators

Each of the ICC, AAA, LCIA, and WIPO recently generated proposals to revise their rules to provide for emergency arbitrators who could act urgently on requests for interim measures. 62 Though details differed, each institution considered providing for an institution-appointed "delegate" or "emergency arbitrator" to be available on short notice prior to the constitution of the tribunal to hear and, where appropriate, make orders in respect of a party's urgent application for interim relief. Access to an emergency arbitrator would ensure that the full authority of the arbitral tribunal was available at all stages of the dispute. For a variety of reasons, however, including concerns about enforceability, the ICC, the LCIA, and the AAA for purposes of its International Rules each determined not to include such a provision in its most recent revised rules. The WIPO proposal is still under consideration. 63 Hence, no such proposal has yet been included in a set of international rules.

However, the new AAA Commercial Rules that went into effect on 1 January 1999 for use in United States domestic arbitration include a set of "Optional Rules for Emergency Measures of Protection." These Optional Rules call for the appointment of an emergency arbitrator within one day of receipt of the notice and the scheduling of emergency proceedings within two days of the appointment. They provide further: [Page70:]

If after consideration the emergency arbitrator is satisfied that the party seeking the emergency relief has shown that immediate and irreparable loss or damage will result in the absence of emergency relief, and that such party is entitled to such relief, the emergency arbitrator may enter an interim award granting the relief and stating the reasons the emergency arbitrator believes the emergency relief to be appropriate.

Finally, "the emergency arbitrator shall have no further power to act after the tribunal is constituted."

The use of these emergency procedures in the domestic context may provide a useful test of their potential in the international sphere, where issues of enforcement, in particular, complicate the picture. For present purposes, they represent a considered attempt to reconcile the possible need for urgent relief prior to the constitution of the tribunal with the principle of arbitral autonomy.

IV. The obligation of the parties to abide by arbitrators' orders

Simply put, if the arbitrators have authority to issue a given procedural order, the parties have a corresponding obligation to abide by it. The parties' obligation arises from the same source as the arbitrators' authority: the parties' agreement to arbitrate and the needs of the tribunal to which they have entrusted resolution of the dispute.

A party may have a binding legal obligation even if there exists no mechanism by which the obligation might be enforced. 64 In the context of international commercial arbitration, however, a party considering its obligation to comply with a procedural order will likely consider, as a practical matter, the means available to the tribunal to enforce the order.

Certain provisions of the representative rules expressly contemplate the failure of a party to abide by the arbitrators' orders and specify the remedial steps the arbitrators may take. For example, the AAA International Rules provide that, in the case of a party who is duly invited to produce evidence or to take any other steps in the proceedings, but who fails to do so within the time limits required by the tribunal without showing just cause, the tribunal may make the award on the evidence then before it. 65 Similarly, the LCIA Rules provide that if a party fails to avail itself of the opportunity to present its case in the manner determined by the Rules, or determined by the tribunal, the tribunal may proceed with the arbitration and make an award. 66

Some arbitration statutes also expressly impose an obligation on the parties to comply with the tribunal's procedural orders. Article 25 of the UNCITRAL Model Law provides that if a party fails to submit a statement of defence, or appear at a hearing, or produce documents, the tribunal may continue with the proceedings and make a final award on the basis of the evidence before it. Article 40 of the new English Act requires the parties to comply without delay with any determination of the tribunal on procedural or evidentiary matters, or with any other directions of the tribunal, and Article 41 specifies steps the tribunal may take to remedy a failure to comply. [Page71:]

As a general matter, though, a party that contends that arbitrators have exceeded their procedural authority will not have the opportunity to test that contention in the course of the arbitration proceeding. Courts in jurisdictions with modern arbitration statutes will not interfere with ongoing arbitration proceedings; instead, a party must await the outcome of the proceeding and seek vacatur on a ground established under the law governing the proceeding or, if enforcement is sought elsewhere, the New York Convention, Panama Convention, or other applicable convention or statute governing enforcement. 67 Hence, as a practical matter, an arbitral tribunal has the capacity to enforce its own procedural orders to the extent that the measures it adopts to remedy non-compliance will not undermine the enforceability of its award.

The point is illustrated by the decision of the United States Court of Appeals for the Second Circuit in Iran Aircraft Industries v. Avco Corporation. 68 There, an Iranian party sought to enforce an award rendered by the Iran-United States Claims Tribunal. Respondent Avco resisted enforcement of the award on the ground of Article V(1)(b) of the New York Convention, contending that it had been "unable to present [its] case." Specifically, Avco contended that the Tribunal had denied Avco's claims on the ground that an audit of certain invoices was an inadequate substitute for the invoices themselves, even though the arbitrator who had chaired the prehearing conference, and then retired prior to the hearing on the merits, had approved the procedure.

The Avco Court refused to enforce the award, holding that the tribunal had "denied Avco the opportunity to present its claim in a meaningful manner." 69 The dissenting judge read the record to reflect a strategic decision by Avco in the face of fair notice that it might have a problem of proof, and he therefore would have held that the arbitrators' procedural discretion encompassed the consequences they drew from the failure to produce the original documents. 70

The Avco decision demonstrates the practical limits of arbitrators' authority to issue procedural orders and parties' obligations to abide by them. As the decision demonstrates, the ultimate control over arbitrators' procedural discretion is the regime governing enforcement of arbitral awards.

Similarly, an order of interim measures will ultimately depend upon a court for enforcement. Just as the courts' authority to order interim measures on their own assessment in the absence of a functioning tribunal may preserve the effectiveness of the arbitral process, 71 the courts' authority to enforce interim measures ordered by international arbitrators on the terms set by the arbitrators, 72 under the New York Convention or otherwise, 73 will determine the arbitrators' capacity to preserve the subject matter of the dispute.

Justice Robert H. Jackson of the Supreme Court of the United States once observed of that Court that "[w]e are not final because we are infallible, but we are infallible only because we are final." 74 The sequel to the Avco decision reinforces that caution. Earlier this year, relying on the principle that the judiciary may engage a state's international responsibility, the Iran-United States Claims Tribunal, sitting in Full Tribunal, held that the United States had violated the international agreements establishing the Tribunal by refusing to enforce the Tribunal's earlier award. 75 Even if an arbitral tribunal will rarely have the last word, the Avco sequence should remind us that, in procedural matters as in any other, it is the quality of the justice arbitrators render that should count in the end.

1
See, e.g., Restatement of the Law (Third) of the Foreign Relations of the United States §904, cmt. b (1987) (interstate arbitration); Peter Malanczuk, Akehurst's Modern Introduction to International Law pp. 293-95 (7th rev. ed. 1997) (interstate arbitration); Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, entered into force 14 October 1966, 17 U.S.T. 1270, 575 UNTS 159 (mixed arbitration); Texas Overseas Petroleum Company/California Asiatic Oil Company v. Libyan Arab Republic (Dupuy, arb.) (Award on Jurisdiction), reprinted in 17 I.L.M. 3 (1978) (mixed arbitration); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636 (1985) (private commercial arbitration) ("the international arbitral tribunal owes no prior allegiance to the legal norms of particular states," but it is "bound to effectuate the intentions of the parties").

2
See Dames & Moore v. Regan, 453 U.S. 654, pp. 663-65 (1981); see also Declaration of the Government of the Democratic and Popular Government of Algeria, 19 January 1981, reprinted in 20 I.L.M. 224 (1981), and 1 Iran-U.S. Cl. Trib. Rep. 3 (1981-82) (General Declaration); Declaration of the Government of the Democratic and Popular Government of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, reprinted in 20 I.L.M. 230 (1981), and 1 Iran-U.S. Cl. Trib. Rep. 9 (1981-82) (Claims Settlement Declaration).

3
See Marriott, "Pros and Cons of More Detailed Arbitration Laws and Rules," in van den Berg, ed., Planning Efficient Arbitration Proceedings/The Law Applicable in International Arbitration 65 (ICCA Congress Series No 7) (1996).

4
International Chamber of Commerce Rules of Arbitration (effective 1 January 1998); see generally Derains and Schwartz, A Guide to the New ICC Rules of Arbitration (1998).

5
American Arbitration Association, International Arbitration Rules (effective 1 April 1997), reprinted in XXII Yearbook Commercial Arbitration 303 (1997).

6
London Court of International Arbitration Rules (effective 1 January 1998).

7
UNCITRAL Arbitration Rules (adopted by the U.N. General Assembly on 15 December 1976), reprinted in 15 I.L.M. 701 (1976). See van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991).

8
World Intellectual Property Organization, Arbitration Rules (effective 1 October 1994).

9
International Centre for Settlement of Investment Disputes, Rules of Procedure for Arbitration Proceedings, reprinted in ICSID Basic Documents (1985).

10
See also UNCITRAL Model Law on Int'l Commercial Arb., adopted by United Nations Comm'n on Int'l Trade Law on 21 June 1985, Art. 18 ("The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case."), Art. 19(1) ("Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.").

11
ICSID Rules, rules 19, 20(2); see also WIPO Rules, Art. 38(a).

12
For example, in the United States, prior to Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985), each of the federal courts of appeals that had considered the issue had held that an agreement to arbitrate claims arising under the United States antitrust laws was unenforceable. See id. at pp. 620-21; id. at 655-56 (Stevens, J., dissenting). See also Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done on 10 June 1958, Art. V(2)(a), 21 U.S.T. 2517 (court of Contracting State may refuse to enforce award if "subject matter of the difference is not capable of settlement by arbitration under the law of that country"). For another example, also from the United States, there is currently a split among the federal courts of appeals on the question whether, under United States arbitration law, the parties may agree that an award may be subject to vacatur under grounds different than those set forth in the Federal Arbitration Act. Compare Lapine Technology Corp. v. Kyocera Corp., 130 F.3d 884, 889 (9th Cir. 1997), and Gateway Technologies, Inc. v. MCI Telecommunications Corp., 64 F.3d 993, 996-97 (5th Cir. 1995) (parties may contract for higher standard of judicial review), with Lapine Technology, 130 F.3d at p. 891 (Mayer, J., dissenting), and Chicago Typographical Union v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1505 (7th Cir. 1991) (dicta) (parties cannot so contract). See also UHC Management Co. v. Computer Sciences Corp., 148 F.3d 992 (8th Cir. 1998) (reserving question).

13
For example, under the Federal Arbitration Act, arbitrators in the United States may "summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case." 9 U.S.C. § 7. The summons is enforceable as a subpoena; the arbitrators' authority to summon witnesses is therefore limited by the reach of the subpoena power of the federal court in the district in which the arbitrators are sitting. See id.

14
English Arbitration Act 1996 § 33(1)(b); see id. § 1(a) ("the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense"). See generally Hunter, "The Procedural Powers of the Arbitrators Under the English 1996 Act," 13 Arb. Int'l 345 (1997). Professor Hunter describes Article 33(1) as "a radical shift of emphasis" in procedural matters. Id. at p. 346.

15
See, e.g., English Arbitration Act, 1996, § 3; ICC Arb. Rules Art. 14(1) ("The place of the arbitration shall be fixed by the Court unless agreed upon by the parties."); AAA Int'l Rules, Art. 13(1) ("If the parties disagree as to the place of arbitration, the administrator may initially determine the place of arbitration, subject to the power of the tribunal to determine finally the place of arbitration within 60 days after its constitution. All such determinations shall be made having regard for the contentions of the parties and the circumstances of the arbitration."); LCIA Rules, Art. 16.1 ("The parties may agree in writing the seat (or legal place) of their arbitration."). Under Articles 62 and 63 of the ICSID Convention, the proceedings are held either at the place of the Centre - that is, in Washington, D.C. - or, with the approval of the Tribunal upon consultation with the Secretary General, at a site chosen by the parties.

16
See, e.g., Mustill & Boyd, Commercial Arbitration 64 (2d ed. 1989) ("In the absence of express agreement, there is a strong prima facie presumption that the parties intend the curial law to be the law of the 'seat' of the arbitration, i.e., the place at which the arbitration is to be conducted, on the ground that that is the country most closely connected with the proceedings."). See also New York Convention, Art. V(1)(e) (permitting court of Contracting State to refuse enforcement to award that "has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made."); International Standard Electric Corp. v. Bridas Sociedad Anonima Petrolera, Industrial y Comercial, 745 F. Supp. 172, 177 (S.D.N.Y. 1990).

17
See, e.g., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58-64 (1995) (though contract "governed by the laws of the State of New York," Federal Arbitration Act, not New York law, governs question of arbitrators' authority to award punitive damages); see also Sumitomo Heavy Industries Ltd. v. Oil and Natural Gas Comm'n [1994] 1 Lloyd's Law Rep. 45 (English law); Sumitomo Heavy Industries Ltd. v. Oil and Natural Gas Comm'n, 1988 (1) SCC 305 (companion case) (Indian law); Redfern & Hunter, Law and Practice of International Commercial Arbitration 77 (2d ed. 1991) ("the law which governs the arbitration is likely to be different from the law which governs the substantive matters in dispute or the 'proper law' in Dicey's celebrated phrase"). For United States law on the relationship between federal and state law with respect to the interpretation of arbitration agreements and the governance of arbitral proceedings, see Holtzmann & Donovan, United States Report, ch. I.1 in International Handbook on Commercial Arbitration (Supp. 28, January 1999); Donovan, Enforcement of Arbitration and Forum Selection Clauses, in Commercial Litigation in New York State Courts § 10.2 (1995 & Supp. 1999).

18
See, e.g., Caron, The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution, 84 Am. J. Int'l L. 104, 116-20 (1990).

19
Professor Caron suggests that the term "inherent" powers should apply only to such powers as the parties would have no authority to override; at least with respect to states, he holds that there are no applicable jus cogens limitations and therefore finds "implicit" powers a more suitable term. Caron, Interim Measures of Protection: Theory and Practice in Light of the Iran-United States Claims Tribunal, 46 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 466, pp. 47577 & n.32 (1986). Regardless whether there are any inherent or implied powers that the parties, whether state, private, or mixed, cannot deny an arbitral tribunal, the term "inherent" remains useful because analysis is equally well served by considering what authority inheres in the function assigned the tribunal by the parties as that which may be implied from their agreement to arbitrate.

20
Nuclear Tests (Austrl. v. Fra.) (Judgment), 1974 I.C.J. 253, 259-60 (Dec. 20); see also Case Concerning the Northern Cameroons (Cameroon v. U.K.) (Prelim. Obj.), 1963 I.C.J. 97, 103 (Dec. 2) (separate opinion of Judge Fitzmaurice) ("[a]lthough much (though not all) of this incidental jurisdiction is specifically provided for in the Court's Statute, or in Rules of Court which the Statute empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court - or of any court of law - being able to function at all"); E. Lauterpacht, "'Partial' Judgements and the Inherent Jurisdiction of the International Court of Justice," in Lowe and M. Fitzmaurice, eds., Fifty Years of the International Court Justice: Essays in Honor Sir Robert Jennings 465, 477 (1996) ("it would no doubt be the case that, even in the absence of statutory provision, the Court would be entitled to deal with these [procedural] matters [including provisional measures] in the exercise of its 'inherent' jurisdiction..."); id. at 475 ("the Court is the master of its own procedure - in the sense that it is for the Court to decide, within the constraints set by its Statute and subject to its Rules..., in what manner a case should be dealt with"); cf. Shabtai Rosenne, II The Law and Practice of the International Court of Justice, 1920-1996, 600 (1997) ("[w]here the inherent jurisdiction relates to matters not specifically regulated in the Statute or in the Rules of the Court, it may be inferred to have been assumed by the Court, in its designated capacity of judicial organ, applying to a concrete problem general principles of international procedural law not specifically mentioned in the Statute or the Rules") (footnote omitted).

21
Nuclear Tests, 1974 I.C.J. at pp. 25960.

22
See Restatement (Third) of Foreign Relations Law of the United States § 904, cmt. d (1987) (addressing "Interstate Arbitration") ("[o]nce a case has been submitted to arbitration, the parties generally are obligated to abstain from any action that may aggravate or extend the dispute, or prejudice the execution of the arbitral decision;" arbitral tribunals "ordinarily [are] granted or [are] deemed to have authority to prescribe provisional measures to preserve the rights of the parties or to protect the integrity and effectiveness of the arbitration").

23
Cf. Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion), 1949 I.C.J. 174, 182 (Apr. 11) ("[u]nder international law, the [United Nations] must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties").

24
Caron, "Interim Measures of Protection: Theory and Practice," at p. 477.

25
Cf. Vienna Convention on the Law of Treaties, done on 23 May 1969, Art. 31(1) (treaty to be interpreted "in light of its object and purpose"); Hudson, The Permanent Court of International Justice, 1920-1942, 426 (1943) ("If a State has accepted the general office of the [International Court of Justice]. . . it has admitted the powers which are included in the judicial process entrusted to the Court").

26
See, e.g., Institute for Transnational Arbitration, Ninth Annual Workshop, Part II: Coalescence and Divergence in Procedure (18 June 1998 Dallas); see also Paulsson, Overview of Methods of Presenting Evidence in Different Legal Systems, in van den Berg, ed., Planning Efficient Arbitration Proceedings/The Law Applicable in International Arbitration 112 (ICCA Congress Series No. 7) (1996); Smit, Roles of the Arbitral Tribunal in Civil Law and Common Law Systems with Respect to Presentation of Evidence, in van den Berg, ed., Planning Efficient Arbitration Proceedings/The Law Applicable in International Arbitration 161, 165 (ICCA Congress Series No. 7) (1996) (referring to "marriage of civil law and common law systems in contemporary international arbitration" and noting "novel international arbitration procedure . . . being developed").

27
At the risk of oversimplification, arbitral determinations may be divided into three categories: merits, jurisdictional, and procedural decisions. The first category, merits decisions, includes, of course, the final award, as well as preliminary decisions on questions such as threshold merits issues or liability. It might also include orders of provisional measures, because in order to make a determination of the measures necessary to preserve the parties' rights for eventual final determination, a tribunal would have to make some determination on the merits, even if partial or provisional. The second category, jurisdictional decisions, includes not only determinations of subject matter jurisdiction (that is, the existence or validity of an agreement to arbitrate or the scope of any such agreement), but also determinations of the tribunal's authority to act under certain circumstances (for example, in the absence of one of its members, either by unavoidable inability to act or deliberate refusal to participate, or in the face of a challenge to a member). The third category, purely procedural decisions, includes orders concerning written submissions, discovery, receipt of evidence, and overall conduct of the hearing. In accord with the title, this paper addresses the third category of orders, as well as interim measures of protection whether or not they are regarded as preliminary merits determinations or solely procedural.

28
This paper does not consider the issue suggested by section 33(1) of the English Arbitration Act, 1996, or Article 14.1 of the LCIA Rules of the arbitrators' authority to override a procedural agreement of the parties. See Hunter, The Procedural Powers of Arbitrators Under the English 1996 Act, at pp. 346-47 (1997).

29
LCIA Rules, Art. 15. See also AAA Int'l Rules, Art. 17 (tribunal to determine whether any additional written pleadings should be submitted); UNCITRAL Rules, Art. 22 (same); ICSID Rules, rule 31 ("written procedure"), rule 32 ("oral procedure").

30
AAA Int'l Rules, Art. 3(4); LCIA Rules, Art. 4.7; UNCITRAL Rules, Art. 23; ICSID Rules, rule 26(2). See also ICC Arb. Rules, Art. 5(2), (6) (ICC Secretariat can extend time limits for Answer and Reply, respectively), Art. 18(2) (ICC Court may extend time for drawing up Terms of Reference), Art. 18(4) (tribunal shall establish provisional procedural timetable and notify ICC Court of any subsequent modifications); Art. 24(2) (ICC Court may extend time for submitting award), Art. 32(2) (ICC Court may extend time shortened by parties under Art. 32(1)).

31
AAA Int'l Rules, Art. 19(3); LCIA Rules, Art. 22.1(e).

32
ICC Arb. Rules, Art. 20(5); UNCITRAL Rules, Art. 24(3); ICSID Rules, rule 34(2).

33
See, e.g., New York Convention, Art. V(1)(b) (enforcement may be refused where party against whom award is invoked was "unable to present his case").

34
ICC Arb. Rules, Arts. 20(2), 20(3) & 21; AAA Int'l Rules, Arts. 16 & 20; LCIA Rules, Art. 19; UNCITRAL Rules, Arts. 15(2), 24(4) & 25(6); ICSID Rules, rules 31, 32.

35
ICC Arb. Rules, Art. 14(2); AAA Int'l Rules, Art. 13(2); LCIA Rules, Art. 16.2; UNCITRAL Rules, Art. 16(2).

36
ICC Arb. Rules, Art. 16; AAA Int'l Rules, Art. 14; LCIA Rules, Art. 17.3; UNCITRAL Rules, Art. 17; ICSID Rules, rule 22.

37
ICC Arb. Rules, Art. 20(1) (tribunal shall establish the facts "by all appropriate means"); AAA Int'l Rules, Arts. 16(3) & 20(6); LCIA Rules, Art. 22.1(f); UNCITRAL Rules, Art. 25(6); ICSID Rules, rule 34(1).

38
ICC Arb. Rules, Arts. 20(3) & 21(3); AAA Int'l Rules, Art. 20; LCIA Rules, Art. 20; UNCITRAL Rules, Arts. 15(2) & 25; ICSID Rules, rules 35 & 36.

39
ICC Arb. Rules, Art. 20(4); AAA Int'l Rules, Art. 22; LCIA Rules, Art. 21; UNCITRAL Rules, Art. 27.

40
ICC Arb. Rules, Art. 6(2), (3); AAA Int'l Rules, Art. 23; LCIA Rules, Art. 15.8; UNCITRAL Rules, Art. 28; ICSID Rules, rule 42.

41
The representative rules contain other common delegations of authority that cannot be regarded as strictly procedural. Each set except the ICSID Rules permits the parties to authorize the tribunal to rule ex aequo bono or as amiable compositeur if the parties consent. See ICC Arb. Rules, Art. 17(3); AAA Int'l Rules, Art. 28(3); LCIA Rules, Art. 22.4; UNCITRAL Rules, Art. 33(2). Each set also addresses the award of arbitration costs, including attorneys' fees. See ICC Arb. Rules, Art. 31(3); AAA Int'l Rules, Art. 31; LCIA Rules, Art. 28; UNCITRAL Rules, Art. 40; ICSID Rules, rules 28, 47(1)(j). The determination of the applicable law or standard and the authority to shift costs are components of the merits. Each set of rules also authorizes the tribunal to determine its own jurisdiction, see ICC Arb. Rules, Art. 6(2); AAA Int'l Rules, Art. 15(1); LCIA Rules, Art. 23; UNCITRAL Rules, Art. 21; ICSID Rules, rule 41, and each set except the ICSID Rules expressly provides that if a jurisdictional objection is not raised at a specified, early stage, it is waived. See ICC Arb. Rules, Art. 33; AAA Int'l Rules, Art. 15(3); LCIA Rules, Art. 23.2; UNCITRAL Rules, Art. 21(3). Most importantly, each set of rules makes the award final and binding on the parties - the fundamental delegation of authority to decide the merits of the parties' dispute on which the arbitral process depends. ICC Arb. Rules, Art. 28(6); AAA Int'l Rules, Art. 27.1; LCIA Rules, Art. 26.9; UNCITRAL Rules, Art. 32(2); ICSID Convention, Art. 53(1). Each set of rules also addresses interim measures of protection, which are discussed in Section III below.

42
See, e.g., Holtzmann & Donovan, United States Report, ch. VIII, in International Handbook on Commercial Arbitration (Supp. 28, January 1999); Bernstein, et al., Handbook of Arbitration Practice 13 (3d ed. 1998); Brown & Marriott, ADR Principles and Practice 56 (1993).

43
See ICC Arb. Rules, Art. 23(1); AAA Int'l Rules, Art. 21; LCIA Rules, Art. 25; UNCITRAL Rules, Art. 26; ICSID Rules, rule 39; WIPO Rules, Art. 46. This paper does not address the relationship between the tribunal's initial determination of jurisdiction and its authority to order interim measures of protection. See, e.g., Caron, Interim Measures of Protection: Theory and Practice, at pp. 488-90.

44
Electric Co. of Sofia and Bulgaria (Belg. v. Bulg.) (Interim Measures of Protection), 1939 P.C.I.J. (ser. A/B) No. 79, 194, 199 (Dec. 5). See, e.g., Collins, "Provisional and Protective Measures in International Litigation," in Essays in International Litigation and the Conflict of Laws 169 (1994) ("[I]t should not be in doubt that the principle underlying interim protection is a general principle of law within the meaning of Article 38(1)(c) of the Statute of the International Court [of Justice]."), reprinted from 234 Recueil des Cours (1992-III) (1993), p. 9; Goldsworthy, "Interim Measures of Protection in the International Court of Justice," 68 Am. J. Int'l L. 258, 260 (1974); Hambro, "The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice," in Schätzel & Schlochauer, eds., Rechtsfragen der Internationalen Organisation 152, pp. 165-6 (1956).

45
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)) (Further Req. for Prov. Meas.), 1993 I.C.J. 375, 376 (Sept. 13) (Separate Opinion of Judge Weeramantry).

46
2 Iran-U.S. Cl. Trib. Rep. 51, 57 (1983); see id. at 58 (Concurring Opinion of Howard M. Holtzmann and Richard M. Mosk). To the extent the Tribunal's reliance on inherent authority was unnecessary because of the express authority granted by Article 26 of the UNCITRAL Rules that the Tribunal had adopted unmodified, see id. at pp. 60-61 (Holtzmann and Mosk); Collins, "Provisional and Protective Measures in International Litigation," at pp. 170-71; Caron, Interim Measures of Protection: Theory and Practice, at p. 475, the Tribunal's readiness to rely on its inherent authority reinforces the strength of the general principle. See also, e.g., Veerman v. Federal Republic of German, 1(1) Decisions of the Arbitral Comm'n on Property, Rights and Interests in Germany 119, 120 (1957) (Lagergren, Arndt, Edelman, arbs.) (tribunal established under Bonn Convention of 1955, rejecting Germany's claim that tribunal was "powerless to act" on an application of provisional measures, had "no doubt of [its] inherent power to issue such orders as may be necessary to conserve the respective rights of the parties, including their freedom from interference in the prosecution of their claims before [the tribunal], and thereby to assure that this tribunal's jurisdiction and authority are made fully effective"); The Gramophone Co., Ltd, v. The Deutsche Grammophon Aktiengessllschaft and The Polyphonwerke Aktiengessllschaft, 1 Trib. Arb. Mixte 357-60 (U.K.-Germany 1922) (tribunal had jurisdiction to order interim measures notwithstanding silence of rules on issue); Edward Dumbaud, Interim Measures in International Controversies 130 (1932) ("Anglo-German rules were silent on the subject [of provisional measures]," but "tribunal in practice decided that it had power to award an interim injunction, and exercised that power") (internal footnote omitted).

47
ICC Arb. Rules, Art. 23; AAA Int'l Rules, Art. 21; LCIA Rules, Art. 25; UNCITRAL Rules, Art. 26; ICSID Rules, rule 39.

48
"Article 23 cures an important ambiguity in the former Rules by explicitly authorizing the Arbitral Tribunal to order interim or conservatory relief." Derains & Schwartz, A Guide to the New ICC Rules of Arbitration 272 (1998).

49
See also WIPO Rules, Art. 46.

50
See English Arbitration Act, 1996, §§ 38, 39. The adoption of, for example, the ICC or LCIA Rules, which confer similar powers on an arbitrator, should qualify as the requisite agreement by the parties.

51
See, e.g., United Nations Convention on the Law of the Sea, done on 10 December 1982, Art. 290, 21 I.L.M. 1261 (1982) (vesting International Tribunal on the Law of the Sea with authority to "prescribe any provisional measures which it considers appropriate under the circumstances"); The M/V "Saiga" (No. 2) (Saint Vincent and the Grenadines v. Guinea), International Tribunal for the Law of the Sea, Order of Provisional Measures (11 March 1998); ICSID Convention, Art. 47 (authorizing ICSID tribunal to "recommend any provisional measures which should be taken to preserve the respective rights of either party"); Statute of the International Court of Justice, Art. 41 (authorizing ICJ to "indicate" provisional measures). For further discussion of the ICSID Convention, see section III.C, below, and of the authority of the ICJ, see note 56, below.

52
See, e.g., Caron, Interim Measures of Protection: Theory and Practice, at pp. 476-77.

53
ICSID Convention, Art. 47; see also ICSID Rules, rule 39(1) ("At any time during the proceeding a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal."). Compare Brower & Goodman, "Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings," 6 Foreign Inv. L. J. 431, 440-43 (1991) ("A neutral observer attending the preparatory sessions to the drafting of the ICSID Convention might have been excused for concluding that an ICSID tribunal's power with respect to provisional measures would be weak at best."), and Caron, Interim Measures of Protection: Theory and Practice, at p. 478 ("quite clear from the drafting history...that the interim measures 'recommended' are only morally binding"), with Francisco Orrego Vicuña, The Binding Nature of Procedural Orders in International Arbitration, delivered at 15th Joint Colloquium on International Arbitration (AAA/ICC/ICSID) (Paris 30 October 1998) (tracing developing recognition that ICSID provisional measures are binding).

54
See ICSID Convention, Art. 47 ("Except as the parties otherwise agree..."); UNCITRAL Model Law, Art. 17 ("Unless otherwise agreed by the parties..."); ICC Arb. Rules, Art. 23(1) ("Unless the parties have otherwise agreed...").

55
See, e.g., Collins, "Provisional and Protective Measures in International Litigation," at p. 169 ("The universality of the remedy and the conditions for the grant of interim protection lead inescapably to [the] conclusion [that the authority of an international tribunal to order interim measures is a general principle of law]."); G. Fitzmaurice, The Law and Procedure of the International Court of Justice 548 (1986) ("The whole logic of the jurisdiction to indicate interim measures entails that, when indicated, they are binding - for this jurisdiction is based on the absolute necessity, when the circumstances call for it, of being able to preserve, and to avoid prejudice to, the rights of the parties, as determined by the final judgement of the Court.") (footnote omitted); cf. id. at 548 n.3 (if provisional measures orders were not binding, they would "in practice, have a lesser status than that of other interlocutory orders of far smaller importance") (emphasis omitted).

56
See Vienna Convention on the Interpretation of Treaties, done on 23 May 1969, Art. 31(1), (3)(c), 1155 U.N.T.S. 331, 8 I.L.M. 679. The International Court of Justice has not stated definitively whether an indication of provisional measures under Article 41 of the Court's Statute is binding. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)) (Further Req. for Prov. Meas.), 1993 I.C.J. 375, 384 (Sept. 13) (Separate Opinion of Judge Weeramantry); Oda, "Provisional Measures: The Practice of the International Court of Justice," in Lowe & M. Fitzmaurice, eds., Fifty Years of the International Court of Justice: Essays in Honor of Sir Robert Jennings 541, 555 (1996). The longstanding scholarly discussion whether the ICJ has, or its predecessor the Permanent Court of International Justice had, the authority to issue binding orders of provisional measures reduces to the question whether the language of Article 41 derogates from the general principle. Compare, e.g., Hambro, "The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice," in Schätzel & Schlochauer, eds., Rechtsfragen der Internationalen Organisation 152 (1956) (arguing that provisional measures are binding), with, e.g., Jerzy Sztucki, Provisional Measures in the Hague Court: an Attempt at Scrutiny 280-94 (1983) (surveying commentary and history and concluding that they are not binding). Particularly given the mandate of Article 31 of the Vienna Convention on the Law of Treaties to read Article 41 of the ICJ Statute in light of its context, its object and purpose, and relevant rules of international law, the better - indeed, the compelling - view is that orders under Article 41 are binding. The issue recently arose in the Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States), in which the ICJ issued an order directing the United States to "take all measures at its disposal" to halt the execution of a Paraguayan national; the United States took the position that the order was not binding; and a federated state of the United States then executed the national. Order of 9 April 1998 (Provisional Measures), para. 41; see Agora: Breard, 92 Am. J. Int'l L. 666 (1998) (contributions from Professors Charney & Reisman, Bradley & Goldsmith, Henkin, Vásquez, Paust, Damrosch, Kirgis, and Slaughter). The author is lead advocate-counselor to the Republic of Paraguay in the proceedings before the ICJ, but here expresses his own views only.

57
ICC Arb. Rules, Art. 23(2).

58
AAA Int'l Rules, Art. 21(3); LCIA Rules, Art. 25.3; UNCITRAL Rules, Art. 26(3); ICSID Rules, rule 39(5).

59
Holtzmann & Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary 332 (1989).

60
See, e.g., Murray Oil Products Inc. v. Mitsui & Co. Ltd., 146 F.2d 381 (2d Cir. 1944) (United States law) (L. Hand, J.) ("The most common reason for arbitration is to substitute the speedy decision of specialists in the field for that of juries and judges; and that is entirely consistent with a desire to make as effective as possible recovery upon awards, after they have been made, which is what provisional remedies do."); Channel Tunnel Group v. Balfour Beatty [1993] 1 All ER 664, 688 (English law) (Mustill, J.) ("I prefer the view that when properly used such measures serve to reinforce the agreed method, not to by-pass it"). For this reason among others, the increasingly isolated, frequently criticized pair of decisions from the United States holding that the New York Convention prohibits an application to a court for provisional measures, see Cooper v. Ateliers de la Motobecane, S.A., 57 N.Y.2d 408 (1982); McCreary, Tire & Rubber Co. v. Cert S.p.A., 501 F.2d 1032 (3d Cir. 1974), deserve all the criticism they have received. See, e.g., Holtzmann & Donovan, United States Report, ch. IV.5 in International Handbook on Commercial Arbitration (Supp. 28, January 1999).

61
ICC Arb. Rules, Art. 23(2) ("Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstance even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures") (emphasis supplied); LCIA Rules, Art. 25.3 ("The power of the Arbitral Tribunal under Article 25.1 shall not prejudice howsoever any party's right to apply to any state court...for interim or conservatory measures before the formation of the Arbitral Tribunal and, in exceptional cases, thereafter.") (emphasis supplied).

62
See, e.g., David W. Rivkin, "1997: A Year of Rules Changes," 1 Int'l Arb. L. Rev. 91, 92-93 (1998); "Emergency Measures by Institution-Appointed Arbitrators: Effectiveness and Enforceability," in Contemporary International Law Issues: New Forms, New Applications (Proceedings of the 1997 Fourth Hague Joint Conference) pp. 201-16 (1998).

63
See World Intellectual Property Organization, Proposed WIPO Supplementary Emergency Interim Relief Rules (19 April 1996). The 1996 draft has since been superseded, but as of this Colloquium the new draft has not yet been publicly distributed.

64
See generally H.L.A. Hart, The Concept of Law, pp. 208-31 (1961).

65
AAA Int'l Rules, Art. 23(3); see also UNCITRAL Rules, Art. 28.

66
LCIA Rules, Art. 15.8.

67
For example, under United States law, courts will not entertain interlocutory challenges to arbitrators on the ground of alleged bias, which is a ground for vacatur under the Federal Arbitration Act. See Holtzmann & Donovan, United States Report, ch. III.2, in International Handbook on Commercial Arbitration (Supp. 28, January 1999).

68
980 F.2d 141, 146 (2d Cir. 1992).

69
Id. at p. 146.

70
Id. at pp. 146-48 (Cardamone, J., dissenting).

71
See Section III.D, above.

72
See, e.g., Sperry Int'l Trade v. Government of Israel, 532 F. Supp. 901, aff'd, 689 F.2d 301 (2d Cir. 1982).

73
Cf. Chromalloy v. Arab Republic of Egypt, 939 F. Supp. 907, 908 (D.D.C. 1996) (enforcing award set aside in Egypt under U.S. Federal Arbitration Act regardless of whether enforceable under New York Convention).

74
Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the result).

75
Islamic Republic of Iran v. United States of America, Award No. 586-A27-FT (5 June 1998), reprinted in 10 World Trade and Arbitration Materials, No. 4 (July 1998), at p. 173.