ICC Articles

Introduction

It was necessary to wait more than ten years before the ICC Rules for a Pre-Arbitral Referee Procedure, which have been in force since 1990¹ (the 'Rules') were put into practice, despite the fact that these innovative Rules attracted a great deal of comment when they were originally published. ² Now, after lying dormant for ten years, they have been brought into the limelight by the success of their initial applications³ and the issues they raise. ⁴ The pre-arbitral referee procedure⁵ allows parties to ask a third person (the referee) to order provisional and/or conservatory measures. ⁶ This procedure, which is the result of lengthy academic discussions, ⁷ seeks to meet the needs of those involved in international trade by offering an alternative to the intervention of national courts in respect of provisional measures.[Page34:]

1. Increasing importance of provisional measures

The increase in the number of requests for provisional measures⁸ is due, inter alia, to a growing risk of arbitration proceedings becoming more drawn out. Sometimes, the parties try to outdo each other's ingenuity in order to delay the constitution of the arbitral tribunal and slow down the performance of its task. This has led in some instances to the arbitral process becoming more formalized and judicialized. ⁹ The parties' behaviour, which used to be more amicable and trusting, now seems to have become more confrontational. In this respect, provisional measures have become an important aspect of an all too frequent procedural battle. Although the decisions relating to such measures do not prejudge the merits of the case, they are a prime strategic element. ¹⁰ In addition, such decisions provide an indication of the way in which the dispute is perceived by an outsider. Accordingly, it is not uncommon for the decision relating to the provisional measures to virtually put an end to the dispute or to serve as a basis for negotiation. Moreover, recent transformations in international trade¹¹ have changed the needs of those involved¹² and placed increasing importance on such measures. ¹³

2. Inadequacy of the current means of obtaining provisional measures

In relation to provisional measures, the principle of concurrent jurisdiction¹⁴ appears to be widely accepted in international arbitration. Where the parties have agreed on an arbitration clause, the two avenues for obtaining provisional measures are recourse to [Page35:] the arbitral tribunal¹⁵ empowered to rule on the merits of the case and recourse to the national courts¹⁶ having jurisdiction to order provisional measures.

These methods of obtaining provisional measures are not wholly satisfactory. First, there is a danger that they will result in the parties appearing before a national judge whereas they had made provision to resolve their dispute by arbitration. Accordingly, the neutrality sought by the parties, especially when one of them is a State or a body under State-control, is thwarted. Similarly, confidentiality is no longer preserved. The parties will not enjoy the benefits of the flexibility of arbitration until later when the case is being examined on the merits. In addition, the range of provisional measures that are likely to be obtained from national courts is often less varied and subject to stricter conditions such as urgency. Moreover, national courts can only adopt such measures within the limits of their territorial jurisdiction. Accordingly, since the parties must refer the matter to the court whose seat has a real connection with the practical implementation of the measure requested, there is an increased risk of scattering the dispute regarding provisional measures and of conflicting decisions. These proceedings do not always offer the necessary guarantees and national courts, whose judges are not specialists in the field in question, often do not have sufficient time. Furthermore, not all countries have effective procedures for ordering provisional measures rapidly. Besides, there is still a significant risk that a party seeking such measures from a national judge will be deemed to have waived the arbitration clause. ¹⁷ Finally, the enforcement of national provisional measures depends solely on the domestic law of the court that adopted them, and enforcement orders for provisional measures are still subject to uncertainty, despite the progress made by the Brussels and Lugano Conventions. ¹⁸

In addition, the power of the arbitrators to order provisional measures does not appear to be adequate to meet the needs of the parties. Firstly, it might take quite a long time to constitute the arbitral tribunal. During this period, however, the need for provisional measures is often very pressing. Moreover, practitioners have already noted that arbitrators shy from quickly ordering provisional measures with possible serious consequences, for fear that the rest of the proceedings will prove them wrong. ¹⁹ Finally, not all national arbitration laws or rules of arbitration necessarily [Page36:] recognize the power of arbitrators to order such measures. ²⁰ And on top of that, the questions arising in connection with the enforcement of provisional measures ordered by arbitrators are not without problems. ²¹

In order to overcome these difficulties, practitioners sought a new way of effectively obtaining provisional measures while preserving the benefits of arbitration, guaranteeing the necessary rapidity and establishing a flexible, agreed procedure that prevents the risks of deadlock.

3. Sources of inspiration for the Rules

The Rules were the outcome of lengthy academic discussions. ²² Under the aegis of ICC and on the initiative of Yves Derains, ²³ two working groups were formed to simultaneously examine complementary topics. The first was to analyse the specific problems of arbitration in the construction field, while the second was to devise an ancillary procedure that would enable provisional measures to be adopted rapidly, including for the purpose of managing the relationship between the parties during the arbitral proceedings.

The first source of inspiration derives from standard construction contracts such as those drawn up by FIDIC, which contain specific dispute resolution clauses that provide, inter alia, for the prior involvement of consultant engineers who are responsible for checking that the work has been properly performed on behalf of the project owner. Those engineers give a binding decision with which the parties must comply before being able to refer the dispute to an arbitral tribunal for final settlement. Criticism has been expressed, however, over the engineer's allegiance, which casts doubt on the impartiality required of him when acting as 'quasi-arbitrator'. ²⁴ The provisions recommended by FIDIC have since been amended²⁵ to take account of this problem in particular.

The second source of inspiration²⁶ can be seen especially in the Foreword to ICC Publication No. 482, ²⁷ the introduction to the Rules, the definitions (Art. 1.1), the powers of the referee (Art. 2.1), and the characteristics of the decision that he makes: this is the French urgent applications judge (juge des référés).[Page37:]

4. Similar mechanisms established by other arbitration institutions

Although most arbitration rules empower arbitrators to order certain provisional measures, ²⁸ some of them go so far as to integrate within the body of the text special mechanisms allowing them to be obtained more rapidly. One author has used the expression 'référé arbitral' to describe these procedures. ²⁹ Thus, when parties refer to these arbitration rules, they implicitly adopt the special mechanism relating to provisional measures. Such so-called 'integrated' mechanisms are generally brief and largely refer to the provisions relating to the proceedings in respect of the merits of the case. In the latest version of its arbitration rules, the Netherlands Arbitration Institute (NAI) has introduced a section entitled 'Summary Arbitral Proceedings' establishing a specific procedure for adopting provisional measures as quickly as possible. The rules of the French Arbitration Association (AFA) contain a similar procedure (Art. 13), as do the rules of the Arbitration Chamber of Paris (Art. 39) and those of the Maritime Arbitration Chamber of Paris (Art. V).

Other institutions, taking their lead from the ICC Rules, have adopted 'autonomous' rules, ³⁰ that is to say, separate from the rules governing arbitration. In this case, adoption of the institution's arbitration rules alone does not entail adoption of the pre-arbitral referee rules, to which the parties must have expressly made reference. The American Arbitration Association (AAA) spent a long time considering the matter before amending its various arbitration rules in 2000. In the end, it did not add any such procedure to its International Arbitration Rules but in its Commercial Dispute Resolution Procedures it introduced an optional mechanism of the same type as ICC's entitled Optional Rules for Emergency Measures of Protection. The World Intellectual Property Organization (WIPO) plans to adopt a similar procedure entitled Emergency Relief Rules for arbitrations relating to intellectual property. The European Court of Arbitration, for its part, has adopted pre-arbitral referee rules modelled on those of ICC.

5. Initial applications of the Rules

The first request for a pre-arbitral referee procedure was filed with ICC in 1993. However, the Chairman of the International Court of Arbitration (the 'Chairman') decided that, prima facie, there was no written agreement to use the ICC pre-arbitral referee procedure. It was only eight years later that five ICC pre-arbitral referee procedures were initiated.

The first case³¹ to be brought, which was particularly complex, related to a long-term contract involving very many contracts in different countries. The request for a pre-arbitral referee procedure was filed on 8 October 2001 and, in the absence of any agreement between the parties, the Chairman appointed a renowned Belgian professor as referee. Subsequently, the claimant filed an additional request on 31 October 2001 and on 29 November the respondent filed a request for a provisional measure. In accordance with the provisions of the Rules, the parties submitted their answers within eight days. On 25 October 2001, the referee gave his initial decision in respect of the first request. The decision on the second request was given on 20 November 2001 and that on the third on 17 January 2002. Thus, the referee gave three orders setting out copious reasons (84 pages in total) in 101 days.[Page38:]

The second procedure, ³² brought on 26 December 2001, involved Total E & P Congo, as claimant, and the Republic of Congo, as respondent. It involved a contract whereby the oil company paid 198 million dollars on behalf of the Republic of Congo and, in return, the Republic of Congo undertook to repay the money by regular deliveries of oil. On 8 January 2002 the respondents submitted their answer and on 10 January a renowned Swiss professor was appointed as referee. After the parties had filed additional submissions, the proceedings were closed on 23 January and the referee gave his decision (19 pages) on 26 February.

A third case was brought on 8 April 2002 and gave rise to a decision by the referee on 21 June. This dispute involved a Portuguese company, as claimant, and a Dutch company, as respondent, and arose out of agency and distribution agreements relating to the pharmaceutical sector.

In the fourth case³³ to be brought, the request was filed on 3 December 2002 and the respondent replied on 16 December. The parties agreed to choose as referee the same Belgian professor as in the first procedure. The Chairman appointed the referee on 13 December 2002 and the respondent submitted its answer on 16 December. The hearings took place on 7 January 2003 and the 46-page decision was delivered on 10 January.

A fifth case was registered on 24 April 2003 and gave rise to a decision made on 1 July of that year. This case was between two American parties and concerned the leisure sector.

An analysis of ICC's pre-arbitral referee procedure in the light of these various requests shows that it is a good compromise between flexibility and protecting the rights of the defence, and that it is an effective means of obtaining provisional measures in international commercial arbitration. The numerous attractions of the pre-arbitral referee procedure can be seen at each stage of its implementation: the request and answer (I), the selection of the referee (II), the conduct of the procedure (III), the order made by the referee (IV) and the overall effectiveness of the procedure (V).

I. The request and answer

1. Need for a special agreement between the parties for application of the Rules

The Rules will only be applicable if the parties have expressly made provision therefor in a written agreement (Rules, Art. 3.1). Accordingly, as matters stand, when the parties decide to refer a dispute to the ICC Rules of Arbitration, that does not mean that they adopt the Rules for a Pre-Arbitral Referee Procedure, which is a pity. An opt-out mechanism would have been preferable in view of the fact that the pre-arbitral referee procedure is little known. On the other hand, the fact that this mechanism is independent allows the parties to refer their disputes relating to provisional measures to the pre-arbitral referee procedure without having to refer the merits of the dispute to [Page39:] arbitration. Finally, when the parties decide to use the Rules, they are nevertheless free to adapt them to their requirements and to make certain modifications but without distorting or altering their basic features.

2. Authorities with competence to adopt provisional measures where there is an agreement to use the pre-arbitral referee procedure

First and foremost, it is the responsibility of the referee to make any decision as to his own jurisdiction (Rules, Art. 5.2).

(i) Relationship between the powers of the referee and those of the authority competent to rule on the merits

The Rules order powers between the referee and the authority competent to rule on the merits of the case (Rules, Art. 2.4 and Art. 2.4.1). The parties are free to change this ordering. With regard to provisional measures, the claimant in practice has the option of either referring the matter directly to the authority competent to rule on the merits of the case or filing a pre-arbitral referee request, or of doing both. In practice, therefore, when the parties have combined an arbitration clause with a clause providing for a pre-arbitral referee procedure, the claimant has the following options:

The claimant may decide not to initiate the pre-arbitral referee procedure and start arbitration proceedings directly. In this case, it is necessary to wait until the arbitral tribunal has been constituted before a ruling can be made on the question of provisional measures. Once the case has been referred to the arbitral tribunal, the pre-arbitral referee procedure is inoperative. If the matter has not already been referred to the referee prior to referral to the arbitral tribunal or the authority competent to rule on the merits, then it is no longer possible to initiate a pre-arbitral referee procedure (Rules, Art. 1.1 and Art. 2.4.1). The claimant can of course simultaneously initiate arbitration and pre-arbitral referee proceedings. One author has expressed the view that referral to the referee should remain possible until such time as the Terms of Reference drawn up by the arbitral tribunal have been signed. ³⁴ However, Article 23(1) of the ICC Rules of Arbitration empowers the arbitral tribunal to order provisional measures as soon as it receives the file. We are therefore of the opinion that the pre-arbitral referee procedure may be initiated only until such time as the arbitrator accepts his assignment³⁵ and the file is transferred to the arbitral tribunal. One could imagine a party in an unfavourable position initiating arbitration proceedings so as to try and render any pre-arbitral referee procedure inoperative and gain time. However, this strategy would be futile in the face of a vigilant opposing party that retains the right to initiate a pre-arbitral referee procedure until such time as the arbitral tribunal is seized of the matter.

The claimant may decide to initiate the pre-arbitral referee procedure. In this case, unless the parties have agreed otherwise, even if the matter is referred to the arbitral tribunal at a later date, the referee retains the power to order the required provisional measures (Rules, Art. 2.4). If, however, a party wishes to [Page40:] seek other provisional measures after the matter has been referred to the tribunal having substantive jurisdiction, it must apply to that tribunal, unless the parties have agreed otherwise or if the tribunal decides otherwise.

(ii) Ordering of powers between the referee and State courts competent in respect of provisional measures

Much more difficult and controversial is the question of whether the parties' agreement to apply the Rules precludes any recourse to State courts competent to order provisional measures-in particular, the juge des référés or urgent applications judge. The issue does not appear to be settled by the Rules themselves.

Firstly, we should ask ourselves whether the parties may exclude the jurisdiction of the urgent applications judge. ³⁶ Some authors stress that the jurisdiction of the urgent applications judge forms part of public policy³⁷ and regard that judge as a protector of the parties in emergencies. Accordingly, an agreement to use the pre-arbitral referee procedure would not allow recourse to the urgent applications judge to be waived. However, in a judgment dated 18 November 1986 the French Court of Cassation held that 'the power of the State judge to order such measures could only be excluded by the parties' express agreement or by an implicit agreement arising from the adoption of arbitration rules that contain such a waiver'. ³⁸ Although the protective role of the urgent applications judge might be part of public policy, it is merely a protective public policy, which can be waived in full knowledge of the facts. Moreover, in international matters, 'the pre-eminence of party autonomy overrides the public policy character of French internal procedural law'. ³⁹ According to this principle, the parties are free to determine the scope of the arbitration agreement, free to apply it selectively, and thus free to exclude the jurisdiction of State courts in respect of provisional measures.

Secondly, it is therefore necessary to examine whether adoption of the Rules satisfies the requirements for a waiver, which can be implicit or explicit but must not be ambiguous. Opinions appear to be divided on the matter. Some authors⁴⁰ assign both a positive and negative effect to the pre-arbitral referee clause-positive, in that it empowers the referee to rule on disputes concerning provisional measures, and negative, in that it excludes the jurisdiction of the State court-which thereby guarantees the full effectiveness of the procedure. The Rules furthermore provide that the referee shall take any decision as to his own jurisdiction (Rules, Art. 5.2). Such an analysis of the Rules as a clear waiver of concurrent jurisdiction would seem to be excessive. ⁴¹

In the case between Total E & P Congo and the Republic of Congo, the contract adopting the pre-arbitral referee procedure expressly precluded any recourse to State courts for provisional measures. However, the effectiveness of such an exclusion, whether it be explicit or implied by the use of the pre-arbitral referee procedure, would appear to be doubtful in French law in view of the fact that the referee's task is regarded as being of a non-jurisdictional nature. ⁴² Thus, just as [Page41:] the concurrent jurisdiction of State courts and arbitral tribunals has been affirmed despite the power afforded to the arbitrators to order provisional measures, we are of the opinion that the principle of concurrent jurisdiction also applies to the ordering of powers between the referee and the urgent applications judge. Assuming it to be possible to waive the jurisdiction of State courts, we believe this should be allowed only in the event of the possible inadequacy of the pre-arbitral referee procedure. ⁴³ On the one hand, the extent of the waiver depends on the intention of the parties. The stipulation of a pre-arbitral referee clause can imply waiving recourse to State courts only in respect of measures that the referee has the power to order. Thus, the urgent applications judge would be entitled to order measures that the referee is not authorized to pronounce or in the unlikely event that the pre-arbitral referee procedure fails. ⁴⁴ Moreover, it would not appear that such a waiver can be absolute. As State courts traditionally have a supporting role in relation to arbitration, they must retain the right to order provisional measures in a subsidiary capacity and under special circumstances, even when there is a reference to the Rules-for example, in certain cases of extreme urgency or where the arbitrators' or referees' lack of imperium⁴⁵ prevents them from effectively ordering appropriate provisional measures.

3. Request

When a party requires the appointment of a referee, it must send two copies of its request and annexes thereto to the Secretariat of the International Court of Arbitration. The claimant must at the same time notify the respondent of the request 'by the quickest method of delivery available' (Rules, Art. 3.2).

It is important to point out that the applicant chooses the means of notification on the understanding that he must be in a position to 'establish when a copy of the Request was received by each party to whom it was sent or when it should be treated as having been received by said party' (Rules, Art. 3.3). If the claimant is not able to establish this and if the respondent does not submit its answer within the time limits, the referee must inform the respondent of its right to answer and set a time limit within which to exercise it (Rules, Art. 5.1). It is therefore essential for the claimant to provide proof that the defendant has received the request.

The requirements of the Rules would appear to be couched in sufficiently broad terms to include new means of communication, so long as they provide a means of establishing that the request has been received by the addressee or may be deemed to have been received. The Rules make explicit reference to the telefax (Rules, Art. 3.2 and 3.4). We take the view that whenever parties possess advanced computer equipment, electronic communications can establish with sufficient reliability that the document was received by the addressee, in order for this means of notification to be authorized. ⁴⁶

The practice employed in the initial cases shows that electronic means of communication are very widely used, although parties often prefer to take the precaution of sending a paper version in addition to the electronic version. Although such precautions are not absolutely essential, they ensure that correspondence is both rapid and secure. [Page42:]

Finally, it may be added that the parties are free to provide for such matters in their pre-arbitral referee agreement and to depart from certain provisions in the Rules. The referee, for his part, may lay down rules for communications during the procedure in a procedural order. Should conflicts arise in relation to matters of communication, the referee would settle them in accordance with the parties' stipulations, the Rules and any procedural orders.

The request for a pre-arbitral referee procedure must satisfy requirements similar to those applicable in ICC arbitration. In particular, it must be in writing and contain certain information and statements as listed in Article 3.2.2 of the Rules.

The applicant must send with its request the amount required to open the file (Rules, Art. 3.2.1), that is to say, US$ 5,000.

A particular point arises from the fact that the request must be drawn up in 'the same language as the agreement to use the Pre-Arbitral Referee Procedure'. If this language is not English, French or German, the request must be accompanied by a translation, although the annexes may be submitted in their original language (Rules, Art. 3.2.2). Insofar as members of the Secretariat of the Court have a perfect command of several other languages (in particular, Spanish), a slight amendment of the text on this point would make it even easier to initiate the procedure.

4. Answer

The respondent has eight days from the moment it receives a copy of the request in which to provide its written answer to the Secretariat and notify the claimant thereof. The answer must contain any counter-request from the respondent (Rules, Art. 3.4).

As there is no explicit cross-reference, the answer would not appear to have to comply with all the rules pertaining to the request. This is borne out by the short time limit in which the respondent must prepare its answer. In practice, however, the respondent will follow the rules applicable to the request, especially if in turn it requests provisional measures. In this case, it will be obliged to do so (Rules, Art. 2.2). However, the same rules for communication must be applied to the answer as were applied to the request (Rules, Art. 3.4).

The first two applications of the Rules show that the parties complied with the eight-day time limit. However, that time limit might prove to be too short when it is difficult to contact the respondent⁴⁷ or where the respondent is overwhelmed by huge volumes of documents relating to a particularly complex case or significant issues. Moreover, the party that brought the proceedings has a considerable advantage in that it has the necessary time to prepare a well-reasoned case whereas the respondent might not have sufficient time to organize its defence. This problem could easily be overcome, as referees could use their power to conduct the procedure as they think fit by granting the respondent extra time, where necessary, to ensure that justice is properly administered and that the parties have full opportunity to present their cases.[Page43:]

II. Selection of the referee

1. The selection procedure

The request must contain 'any information concerning the choice of the Referee required to be appointed'(Rules, Art. 3.2.2 (e)). The answer must set forth the respondent's observations on the choice of referee and on the information provided by the claimant.

The parties may have specified in the clause criteria for choosing the referee or even the referee's name, in which case their wishes must be respected. ⁴⁸ Agreement on the referee to be appointed may be reached before or after the request is submitted (Rules, Art. 4.1). As far as we know, the pre-arbitral referee clauses that have been used in practice did not specify the name of the referee. Besides, once the procedure has been initiated, it would seem difficult for the parties to reach agreement on the choice of referee. As far as we are aware, such an agreement was only reached in the fourth case, where the parties jointly appointed a well-known professor of law as referee.

If, as is most often likely to happen, the parties do not reach agreement, the Chairman will appoint the referee, once the answer has been received or the eight days allowed for the respondent to answer have elapsed (Rules, Art. 4.1). The Chairman must choose the referee in accordance with his technical or professional qualifications, nationality, residence, and any relationships he may have with the countries with which the parties are connected. The Chairman must also take into account any suggestions and observations made by the parties concerning the choice of referee (Rules, Art. 4.2). In the initial cases, the Chairman took particular care over the choice of the referees, choosing professors of law with great authority in the field of arbitration.

Although the Rules do not expressly require the referee's nationality to be neutral in relation to the parties and the dispute, the Chairman followed this principle, which has already been applied in arbitration. ⁴⁹ More generally, the principle of the referee's independence is not clearly stated in the Rules. ⁵⁰ However, in practice, the Secretariat ensures that it provides the parties with a declaration of independence signed by the referee. ⁵¹ Also, even in contractual dispute resolution mechanisms, case law and practice tend to infer a principle of minimal independence in respect of the referee. ⁵² However, the scope of this requirement will depend on whether the pre-arbitral referee procedure is characterized as contractual or jurisdictional. For the sake of clarification, it would perhaps be a good idea for the Rules to mention this. Be that as it may, the referee must perform his duties with impartiality even though, in our view, the requirements he should meet in this respect are not as strict as in arbitration. The fact that the Rules in their present form are silent on this point allows the Chairman to appoint a referee that he might consider to be particularly well-placed and competent to take on such a role with complete impartiality despite there being some connection between the referee and the parties due to nationality or other factors. Besides, that will prevent fraudulent challenges. [Page44:]

In practice, the Chairman or the Secretariat contact the referee and ensure that he is fully available so as to guarantee the parties that the procedure will be quick. The practice of the ICC Court requires the referee to inform the Chairman of any connections with the parties or the dispute and to assure him of his independence in order to avoid as far as possible any risk of being challenged. Moreover, the referee remains free to refuse the assignment offered to him. Once the Chairman and the referee are in agreement, the Chairman appoints the referee by a decision in which the reasons are not disclosed (Rules, Art. 4.6). The Secretariat notifies the parties of the appointment of the referee, then forwards the entire file to him. Henceforth, all the documents must be sent directly to him with a copy to the Secretariat (Rules, Art. 4.3).

2. Replacement of the referee

The referee may be replaced in the special cases listed in the Rules (Rules, Art. 4.5). Firstly, any party may challenge the referee, in which case the Chairman must hear any submissions from the parties and the referee and then decide as quickly as possible if the challenge is justified. His decision, which does not divulge the reasons on which it is based, is not subject to challenge or appeal (Rules, Art. 4.4). Secondly, the referee may also be replaced in the event that he dies, is prevented from carrying out his functions or is unable to carry them out (Rules, Art. 4.5). Finally, the Rules provide for replacement of the referee when 'he is not fulfilling his functions in accordance with the Rules or within any applicable time limit' (Rules, Art. 4.5). In all cases of replacement, the Chairman does not have to disclose the reasons for his decision (Rules, Art. 4.6). He then appoints a new referee as quickly as possible; the new referee will take up the procedure from the beginning (Rules, Art. 4.5).

No replacements were made in the initial applications of the procedure. By choosing the referee with care, the Chairman reduced the potential risks of his being replaced. Indeed, in the first case, the parties' satisfaction with the work of the referee and their wish for cooperation led them to agree upon an extension of his assignment in order to allow them to refer back to him in the event of a further problem. These considerations highlight the quality of the chosen referees and the effectiveness of the selection procedure.

III. Conduct of the procedure

1. Seat

There is no provision in the Rules devoted to the seat of the pre-arbitral referee procedure. However, the parties may agree on the seat before or after the procedure has commenced. It will sometimes be possible to infer the parties' intention in this regard from other provisions in the dispute resolution clause, such as a jurisdiction clause. If the parties cannot agree, the Court will in practice fix the seat of the pre-arbitral referee procedure as it does in arbitration. However, one might question the [Page45:] need to do so in the case of the pre-arbitral referee procedure, especially as it is characterized as contractual in French case law. In the absence of any specific provision in the Rules, would the wide powers vested in the referee not entitle him to decide the matter?

2. Language

The Rules do not contain any general provision on the language of the procedure. However, they provide that the request must be drawn up in the language agreed by the parties or, failing that, in the language of the agreement providing for use of the pre-arbitral referee procedure (Rules, Art. 3.2.2). It would therefore seem possible to apply this rule generally to the entire procedure. However, there is reason to think that, in view of the wide procedural powers conferred upon the referee by the Rules, he has the necessary power to decide this matter.

3. Flexible procedure

The Rules do not go into great detail on the actual procedure, which leaves much scope for party autonomy and allows the referee to conduct the procedure freely. Accordingly, within the limits of the powers granted to him and subject to any agreement of the parties to the contrary, 'the Referee shall conduct the proceedings in the manner which he considers appropriate for the purpose for which he was appointed' (Rules, Art. 5.3).

The referee may take into consideration the documents provided by the parties. He therefore has discretion to assess whether they are admissible, their relevance and their evidential value. In addition, he may ask the parties to provide certain documents or information and they are under a contractual obligation to make them available to him and to facilitate his task (Rules, Art. 5.3 and Art. 5.4). The referee also has the power to order investigations and inquiries, including visits to sites, examinations by experts and the hearing of persons of his choosing. Investigations may be conducted with or without the parties being present, as the referee thinks fit. However, he must forward the results to them so that they may comment on them (Rules, Art. 5.3 and Art. 5.4). The referee can also convene the parties to appear before him (Rules, Art. 5.5).

The effectiveness of the procedure is aided, amongst other things, by the fact that the referee may continue with the procedure and deliver his order even if a party fails to participate (Rules, Art. 5.6). Such a provision deters the parties from adopting extreme positions that lead to deadlock or from refusing to participate.

The guiding principles of legal proceedings, such as the opportunity to present one's case, are not reiterated in the Rules, but referees can use their procedural powers to ensure that they are complied with. The cases that have so far been brought show that the referees did not hesitate to rely on these principles to decide difficult procedural issues. Thus, notwithstanding the silence of the Rules, minimal compliance with the general principles of legal proceedings would seem to be required. ⁵³ The non-jurisdictional nature of the pre-arbitral referee procedure does not preclude this since [Page46:] some of these principles are gradually creeping into alternative methods of dispute resolution. ⁵⁴

4. Rapid procedure

Practice has shown the extent to which the flexibility of the Rules, their brevity, their minimal formalism, the short time limits they set and the vast experience of the institution that drafted them and oversees their implementation have made it possible for the procedure to be conducted rapidly.

The initial cases show that discussions took the form of successive exchanges of statements and documents, written and oral submissions and observations and pleadings. The means of communication used were varied and helped the proceedings to progress quickly. Great use was made of faxes and e-mails, as well as telephone conference calls and videoconferences. At the various stages of the procedure, the Rules set short time limits and at the same time allow for the possibility of extending them in order to deal with any special circumstances. In principle, the respondent has eight days in which to reply. As soon as the answer is received or when the eight-day period expires, the referee is appointed and he has thirty days in which to make his order. Thus, the parties have a decision from the referee within forty days of the request being filed. The referee was able to comply with this time scale for the first two decisions given in the first case, notwithstanding additional requests and the complexity of the dispute, and also in the second and fourth cases.

As a guide, the chronology for the first decision made by the referee in the first pre-arbitral referee case was as follows:

Day 1 Request for pre-arbitral referee procedure filed

Day 9 Answer to the request

Day 10 Lack of agreement between the parties on the choice of referee

Referee appointed by ICC

Transmission of file to referee

Day 11 First hearing resulting in the establishment of a procedural timetable

Day 12 Advance on costs fixed by ICC

Exchange of statements and documents between the parties

Days 13 to17 Exchanges of statements and documents between the parties

Day 17 Hearing

Day 18 First order rendered by the referee (39 pages)

For the last decision in the first case brought, and in the second and fourth cases, less than two months elapsed between the request for provisional measures and the referee's decision. In the third and fifth cases, on the other hand, the entire procedure lasted slightly more than two months. This may be explained by the need to conduct investigations, communication problems and the special complexity of the case. However, it was very likely due to the parties' wishes⁵⁵ and/or a succession of requests for measures giving rise to a string of decisions by the referee. [Page47:]

5. Procedural flexibility allowing the referee to manage problems effectively

In recent applications of the Rules, the referees had to settle various practical procedural issues. They managed to do so without hindering the progress of the procedure.

In the second case, the claimant had modified the terms of its request the day before the hearing, in particular to adapt it to new factual developments. The respondent asked for the modifications to be rejected on the basis of Article 2.2 and Article 3 of the Rules. It considered the claimant to be bound by the terms of its request and the powers of the referee to be similarly limited, otherwise the decision would be ultra petita. Such an interpretation would have obliged the applicant to bring new proceedings to take the new facts into account. The referee took into account the modifications made by the claimant, holding that it would be contrary to the spirit of such a procedure to prevent the parties from modifying the terms of their request in accordance with changes in the circumstances of the case, provided the modifications were intended to be a continuation and reformulation of what had gone before. This solution saves having to initiate a new procedure and maintains the rapidity with which the dispute is handled. However, as the referee himself observed, the new requests must not completely exceed the scope of the initial request. In addition, the referee must ensure that the rights of the defence are respected. It is therefore necessary to ensure that the opposing party is able to put forward its arguments and that its observations on the new requests are heard. The parties' rights of defence and due process must not be sacrificed to a blind quest for efficiency.

The issues of due process and equality of arms⁵⁶ are amongst the chief concerns of the referee, who must reconcile them with the requirements of efficiency and rapidity. He must prevent delaying tactics whilst allowing the various parties an equal hearing. For example, in the second case brought, the respondent considered that the exhibits produced the day before the hearing should be left out of the discussions because such production was unauthorized as Article 3.2 of the Rules requires that exhibits should be attached to the request. However, the referee considered that he was entitled to allow the documents in question to be produced as the Rules did not forbid this and due process had been respected.

6. Confidentiality

The Rules explicitly state that referees and parties shall be bound by an obligation of confidentiality protecting the 'information given' (Rules, Art. 5.4). It is further provided that '[u]nless otherwise agreed between the parties and subject to any mandatory order, any submissions, communications or documents (other than the order) established or made solely for the purposes of the Pre-Arbitral Referee Procedure shall be confidential and shall not be given to the Competent Authority' (Rules, Art. 6.7). ⁵⁷ Accordingly, the order made by the referee does not appear to be covered by the rule of confidentiality, ⁵⁸ which may be useful, particularly in relations with those who are not a party to the contract.[Page48:]

The confidentiality of the procedure is a feature that is very much sought after by those involved in international trade who wish to preserve interests as varied as image, client base, plans, technology, know-how or, more generally, business secrets. However, the decisions made by the referee are not subject to confidentiality, which allows the parties to produce them in court or arbitral proceedings. Hence, a party can produce the referee's decision in legal proceedings, for instance when seeking an order against an opposing party that has breached it. Also, the decision may be provided to other partners or competitors in order to dissuade them from behaving in a certain way or to encourage them to adopt other kinds of behaviour.

IV. Referee's order

1. Scope of the referee's powers

At all stages of the procedure the powers conferred on the referee are very extensive. Firstly, he has very wide power in respect of the provisional measures he may order, which allows him to adapt his decision to the specific features of each dispute. The Rules do not allow him, however, to order ex parte provisional measures. He also takes any decision regarding his jurisdiction, directs the procedure as he sees fit and has investigative powers. There may be no appeal against his decision and he can only be held liable in the event of 'conscious and deliberate wrongdoing'. He makes his decision on his own, which avoids the long discussions that are needed when decisions are made by a panel. However, some professors who have acted as referees have found it difficult to make such an important decision in such a short time and in solitude as sole judge. As the first cases showed, the wide powers given to the referee are a special feature of this procedure which ensures that it is effective and rapid.

(i) Limits to the referee's powers laid down by the Rules

Firstly, the referee's powers are limited by the request, the counter-request and any modifications adapting them to developments in the dispute, which can be considered as a continuation of the initial request. The referee may not order any measure 'other than that requested by any party in accordance with Article 3' (Rules, Art. 2.2). As already mentioned, in the second of the cases brought so far, the referee allowed the claimant to reformulate its request and adapt it to changes in the circumstances of the case. It would therefore appear that although the Rules limit the referee's powers to the parties' requests, they are not to be restricted to the precise terms of the request but should allow new requests to be taken into account, provided these can be regarded as a continuation of the initial requests.

The referee can only order measures that the Rules empower him to order. These are very varied: according to the list set forth in Article 2.1 of the Rules, ⁵⁹ the referee has the power:

- '(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'.

[Page49:] The aim here is to allow any measure to be adopted that will help to ensure that any decision on the merits that finally settles the dispute will be effective and useful. The general nature of the words used gives the parties the freedom to request a wide variety of measures provided they comply with the conditions mentioned. For this group of measures, urgency is required for the request to be admissible and must therefore be established by the claimant.

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

This is a measure that is comparable to the référé provision of Article 809 of the French New Code of Civil Procedure, although it is not necessary to prove that the obligation cannot reasonably be contested.

- '(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'.

This subsection is also comparable to Article 809 of the French New Code of Civil Procedure giving the court the power to order performance of an obligation that cannot reasonably be contested, even if it is an obligation to do something. The example relating to the power to order the delivery of documents makes reference to some problems encountered especially in the construction field.

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

This subsection is quite similar to Article 145 of the French New Code of Civil Procedure, which allows the court to order investigations in futurum.

It is possible for the referee to make the carrying out of his order subject to such conditions as he thinks fit (Rules, Art. 6.4). For example, he may make it subject to commencement of proceedings before the Competent Authority within a given time limit. This will ensure that the provisional measure the referee has just ordered will not in practice be the final solution to the dispute. By this means, the referee protects parties wishing to obtain a final decision on the merits of the dispute. The provisional measure is therefore only intended to preserve the matters at issue during the procedure, but not to resolve them. The referee can also make the carrying out of his order subject to the party for whose benefit it was made providing adequate security. Various forms of security may be provided, including escrows, bank guarantees and pledges. This precaution is very useful because it prevents the party for whose benefit an order is made from taking advantage of its enforcement to make any subsequent decision on the merits pointless.

It is also conceivable that the referee would provide for penalties designed to prevent any failure to carry out the order. ⁶⁰ He might also order alternative measures or measures that may develop according to predetermined criteria.

The parties are free to extend or reduce the referee's powers in the pre-arbitral referee agreement (Rules, Art. 2.1.1). They may, for instance, indicate that the list in Article 2.1 is not exhaustive and that the referee has the power to order any provisional measure that he deems to be necessary.[Page50:]

Finally, the costs of the procedure are determined at the sole discretion of the Secretary General of the Court (Rules, Appendix, A). For example, in the second of the cases brought so far, where a contract was challenged leading to a dispute amounting to almost 198 million dollars, the costs were set at 30,000 dollars. ⁶¹ The referee has powers as wide as an arbitrator when it comes to distributing the costs between the parties in his decision. Moreover, nothing would appear to prevent the referee from granting compensation to cover procedural costs under the same conditions as apply to the provisional measures.

(ii) Interpretation of the referee's powers

During the initial procedures, the question of the extent of the referee's powers was discussed and it was decided in practice that a wide interpretation should be adopted.

Some of the measures ordered by the referees in the initial cases show the variety of measures they are empowered to order. By interpreting their powers widely and taking advantage of the flexibility of the procedure, the referees are able to meet the needs of the parties. By way of illustration: ⁶²

- In the second of the cases brought so far, the referee had ordered the respondent to continue to perform its contractual obligations pending a final decision on the merits. The case involved a contract under which a company paid almost 198 million dollars on behalf of a State and the State, in return, undertook to repay the sum by regularly delivering oil to the company over a period of several years. After the sum was paid, the State sought to have the contract declared null and void before delivering any petrol. Pending a decision on the merits of the case, the referee provisionally ordered the State to deliver the oil in accordance with its contractual obligations. The referee based his decisions on subsections (a) and (c) of Article 2.1 of the Rules. This measure is of a special nature, as it temporarily settles the merits of the case.

- In the first case brought, one of the measures ordered was to prohibit the claimant from changing a number of contracts implementing the main contract giving rise to the dispute. Those changes would have placed the claimant before a fait accompli that would be impossible to alter later, even if the claimant were to win the case. This original measure was ordered on the basis of subsection (a) of Article 2.1. It should be noted that this measure relates to contracts other than the main contract, which shows the referee's powers to be extensive and not strictly limited to the main contract.

Within the limits of his powers, the referee has discretion to assess the appropriateness of the measure requested. In practice, he will base his decision on traditional concepts relating to provisional measures as highlighted by comparative law, such as imminent loss, irreparable loss, urgency, preservation of the status quo ante, the obligation not to aggravate the consequences of the dispute and, in particular, the obligation to minimize loss.

In the initial cases, the parties' counsel argued that the referee lacked the power to order the required measures. Once again, the referees adopted a wide interpretation of their powers. For example:

- In the first procedure to be initiated, the respondent had tried to rely on the rather restrictive terms of the clause referring to the Rules to demonstrate the [Page51:] parties' intent to limit the powers of the referee, which they are entitled to do by written agreement. However, the referee held that, although the terms of the clause were somewhat vague, the intention to refer to the Rules was clear and reflected the parties' wish to include them in full. Here, the referee did not stick to too literal an interpretation of the clause but analysed it as a whole as he was concerned to preserve the spirit thereof.

- In the first two procedures to be initiated, counsel for the parties argued that urgency was a necessary condition for a referee to be able to order any measure whatsoever. The difficulty was that only subsection (a) of Article 2.1 raised urgency as a necessary condition. The referees adopted a literal interpretation of the text, which we consider to be in keeping with its spirit, and held that urgency had to be established only when the measure requested fell solely within the scope of subsection (a). We are of the opinion that it should be possible for the referee to order a measure based both on subsection (a) and on at least one other subsection of the Rules without requiring proof of urgency.

- In the first case brought, the respondent's lawyers argued that the loss that could result from ceasing to perform the contractual obligations did not constitute an irreparable loss as required by subsection (a) of Article 2.1, in that a failure to deliver oil can be subsequently compensated by damages. The referee rejected this argument, considering that international trade contracts are entered into to be performed and that the main method of performance is in kind and not in equivalent.

- In the same case, the referee had to rule on a request for provisional enforcement of the contractual obligations on the basis of their prima facie existence. In order to contest the powers of the referee, the respondent argued that such a measure did not feature in the list in Article 2.1 and that, moreover, the issue of the existence of the contractual obligations was the subject of a pending arbitration. The referee held that although Article 2.1 did not allow him to declare that a party had contractual rights prima facie, he could nevertheless check the prima facie existence of the rights alleged to be a necessary pre-condition before ordering the measure requested.

Practice thus shows that the articles of the Rules relating to the powers of the referee should not be interpreted restrictively or too literally, but in the light of the procedure as a whole and in keeping with its spirit. Moreover, it is probably not the intention of parties that refer to the Rules to restrict the powers of the referee they wish to commission. However, it is important not to go beyond the will of the parties as this remains the basis of the pre-arbitral referee procedure.

It would in our view be desirable to specify in the Rules that the list of measures described in Article 2.1 is not exhaustive. That would be in keeping with the spirit of the Rules, which grant extensive powers to the referee and would save him from having to systematically and somewhat artificially relate to the measures specified in the various subsections of Article 2.1. This would also do away with any discussion on the need to establish urgency, ⁶³ the imminence of the loss or the irreparable nature of the loss, as the referees would be free to take them into account in their decision-making process.[Page52:]

2. Procedure for making the order

The referee has thirty days from the moment the file is transmitted to him in which to provide the Secretariat with his decision (Rules, Art. 6.1). As in the ICC Rules of Arbitration, upon a reasoned request from the referee, or on his own initiative, the Chairman may extend the deadline if he considers it necessary (Rules, Art. 6.2). This possibility avoids the risk of the procedure and the referee's decision being rendered null and void for lack of authority in the unlikely event that the deadline is overrun. It was made use of in the initial cases. In the second case, for example, the referee rendered his order forty-six days after receiving the file. In none of these cases, however, was the thirty-day time limit extended twice in the same procedure, which shows that in practice referees have been able to make their orders within two months of being appointed.

The decision is sent to the Secretariat, which will notify it to the parties after receiving the full amount of the advance on costs previously set (Rules, Art. 6.1 and 6.5). In practice, the Secretariat checks the decision as to its form and may suggest corrections or additions to the referee. In the initial cases, the Secretariat made sure that the decision was notified to the parties less than twenty-four hours after receiving it.

The referee's order must contain reasons (Rules, Art. 6.1). It may be noted that the orders rendered in the initial applications of the Rules were quite long, detailed and gave copious reasons. Despite the shortness of the time limits, the referees took care over the drafting of their orders in order to give them greater authority. As an illustration, in the first procedure, which proved to be particularly complex, four orders were rendered at one-month intervals. The first order made on 25 October 2001 consisted of 39 pages. In the second case brought, the referee rendered a 20page order and in the fifth case the decision ran to no less than 46 pages. ⁶⁴

3. Characteristics of the order

There can be no appeal against the referee's decision. Article 6.6 of the Rules states that the parties expressly waive any means of recourse insofar as such waiver can validly be made. By this provision, the parties therefore validly waive any appeal or objection. It is conceivable that the parties might stipulate otherwise but this could well be thought contrary to the spirit of the Rules. Assuming that an appeal to declare the referee's orders null and void were admissible, it would not appear possible for the parties to validly waive this means of legal redress as the public policy nature of such redress is not limited merely to protecting the parties to the case.

The referee's decision 'does not pre-judge the substance of the case, nor shall it bind any Competent Authority' (Rules, Art. 6.3), for the referee has the power to order provisional or precautionary measures but not to finally rule on the merits of the dispute. Hence, the order does not share the res judicata authority of the principal decision.

Any issue on which the referee has directly or indirectly given a ruling in his order may be referred to the Competent Authority. The provisional decision that he has made changes nothing as regards the powers of the Competent Authority, which, once the matter has been referred to it, may adopt other provisional measures, [Page53:] amend, extend or put a stop to the measures ordered by the referee, and issue a ruling finally settling the substance of the dispute. The order thus remains in force until such time as the Competent Authority or the referee decides otherwise.

Subsequently, the parties may start a new procedure for the purpose of amending the order, particularly if the circumstances have changed or if new facts have come to light. In such a situation, it is likely that the parties will agree to choose the referee who decided their case previously, if they cannot reach agreement, that the Chairman will appoint that referee. As happened in one of the initial cases to be brought, the parties may extend the referee's assignment in order to reserve the right to refer back to him in the event that they wish to adapt the measures ordered, correct them, terminate them or add to them.

The referee may have specified time limits or conditions that would cause the measure to cease or trigger an alternative measure. In this case, it is a matter of implementing the actual terms of the order.

The effectiveness of the referee's decision is based on Article 6.6 of the Rules, which states the parties' undertaking to carry it out without delay. A party that does not comply with the referee's order is in breach of its contractual obligation and runs the risk of being ordered to compensate the harm caused by this breach.

V. Effectiveness of the procedure, despite being non-jurisdictional

1. The Paris Court of Appeal has held that the ICC pre-arbitral referee procedure is of a contractual nature

To date, there has only been an appeal against the order made by the referee in connection with the second case brought. It was lodged with the Paris Court of Appeal, which had to decide whether the referee's decision was an arbitral award and, as such, a decision against which an appeal to set it aside might be brought on the basis of Article 1504 of the French New Code of Civil Procedure.

In a judgment rendered on 29 April 2003, the Paris Court of Appeal held that before considering whether the decision could be characterized as an arbitral award capable of being appealed, it was necessary to examine the nature of the referee's task. The Court of Appeal went on to rule that the pre-arbitral referee procedure is a contractual device, that the referee's task is to make a decision that the parties have already made binding, and that this decision merely has the authority of something that has been agreed. The grounds of the judgment were brief and focused on three considerations, which do not appear to be equally convincing.

The Court of Appeal began by analysing the Rules and, quoting the Foreword to ICC Publication No. 482, in which the Rules were originally published, observed that the drafters had carefully avoided characterizing the pre-arbitral referee procedure as arbitration by not referring to expressions that would qualify it as such. Without [Page54:] stating so explicitly, the Court of Appeal would appear to have considered that, by adopting Rules that were manifestly separate from arbitration, the parties had expressed their intent to exclude such characterization.

Next, the Court of Appeal assessed the decision made by the referee in this particular case. It pointed out that the measure ordered consisted of prohibiting the respondent from preventing the contract of sale from being performed pending a decision on the merits by the competent arbitral tribunal. According to the Court, this measure did not prejudge the merits of the case and did not change the position of the parties prior to a decision by the arbitrators pursuant to the arbitration clause.

Thirdly, the Court of Appeal held that the pre-arbitral referee procedure is a contractual device based on cooperation between the parties and that the referee's decision only has the authority of an agreement. Finally, the Court inferred from this latter factor that an action to set aside, which is available against awards, is not admissible against measures ordered by the referee.

The abundant commentaries to which this judgment has given rise reveal the widely diverse positions taken by writers. Whilst some authors welcomed the Court of Appeal's decision,⁶⁵ the majority appear to criticize it. ⁶⁶

In any event, by characterizing the pre-arbitral referee procedure as contractual, the Court of Appeal made actions to set aside orders by referees inadmissible. This solution is not necessarily unwise. Firstly, it would not appear to be sufficient to shield the orders form any means of recourse. In analogy with the rules applying to joint agents pursuant to Article 1592 of the French Civil Code, an appeal would seem to be possible in the event of a glaring error. Moreover, the gradual inclusion of guarantees in contractual devices suggests that some appeals would still be possible in the event of a breach of the principle of independence of the referee or the right to be heard. Secondly, the Court of Appeal's solution is consistent with the spirit of the Rules, Article 6.6 of which provides that the parties waive any means of appeal insofar as such waiver can validly be made. Since the Rules contain sufficient guarantees for the parties, it would seem appropriate to limit the available means of recourse, which parties use with increasing frequency and sometimes purely as a delaying tactic. Since an action to set aside has a suspensory effect, if it were allowed, it would be particularly detrimental to the effectiveness of the pre-arbitral referee procedure. Moreover, the fact that it is suspensory greatly complicates the task of the arbitrators when they wish to order provisional measures.

By classifying the pre-arbitral referee procedure as contractual, case law rules out the possibility of issuing an exequatur in respect of the order. Yet even if the Court of Appeal had considered the referee's task to be of a jurisdictional nature, there would have been no guarantee that exequatur proceedings could be brought in respect of an order, for it would have been unlikely that the decision could be classified as an award under traditional French case law, ⁶⁷ which defines an award as 'a decision by arbitrators which, in full or in part, finally settles the dispute referred to them, be it in respect of the merits, jurisdiction or a procedural point that results in their putting an end to the proceedings'. ⁶⁸ However, this case law would appear to have been called into question by a judgment of the Paris Court of Appeal on 7 October 2004⁶⁹ extending the definition of an award to include provisional measures ordered by arbitrators in this form. However, if this position were to be confirmed by the Court of Cassation, it would seem doubtful that orders made by referees could be classified [Page55:] as awards and benefit from the rules applicable to the latter. This because the Court of Appeal characterized as awards provisional measures ordered in that form. A referee's decision, however, is made in the form of an order. ⁷⁰ Besides, it seems even more unlikely that the order made by the referee would comply with the requirements laid down by the New York Convention. ⁷¹ However, the referee's decision could be enforced in a State that has adopted a more flexible definition of an award or has brought provisional measures within the scope of the rules applying to awards. ⁷² Despite this, the effectiveness of the pre-arbitral referee procedure remains fully intact.

Since no appeal has been brought against the Court of Appeal's ruling, it represents the current position of French law on the matter. However, the significance of the decision must be put into perspective. Firstly, it is limited to French international arbitration law. Accordingly, it is possible that courts in other countries adopt a different position on the basis of another law. Secondly, the brief grounds given for the Court of Appeal's decision would not appear to rule out the possibility that it might adopt another position if the measure ordered by the referee is different or the parties have expressed their intent to characterize the pre-arbitral referee procedure differently by assigning a jurisdictional task to the referee. Moreover, in view of the grounds stated by the Court of Appeal, ⁷³ it is not unthinkable that superficial changes might be sufficient to give the Rules a jurisdictional character.

2. Freedom of the parties to determine the jurisdictional or contractual nature of the referee's mission

According to the Paris Court of Appeal, mere reference to the Rules gives the referee's mission a contractual nature. The Rules, however, do not seem to take a clear position on whether the procedure is contractual or jurisdictional, although it cannot be denied that the drafters took especial care not to use the terminology of arbitration. ⁷⁴ This fact is not necessarily sufficient to infer that they intended to rule out such a characterization for good. It may rather be due to a wish not to prejudge alternative characterizations, which may vary from one country to another and depending on the situations and the measures ordered. Or perhaps they wished to leave the choice to the parties. ⁷⁵

If the intention of the parties is to be sufficient to give the pre-arbitral referee procedure the characteristics of arbitration, the Rules must not conflict with the basic criteria for arbitration. ⁷⁶

Firstly, an agreement between the parties must underlie the mission assigned to the referee. The contractual basis of the task entrusted to the referee is obvious and clearly expressed in the Rules. ⁷⁷[Page56:]

- Secondly, the referee must be independent. ⁷⁸ It may be noted that there is no explicit reference to the referee's independence in the Rules. However, this observation needs to be qualified, insofar as the referee's independence, whilst not being affirmed as a principle, can nevertheless be detected by reading between the lines. ⁷⁹ And in practice, care has so far always been taken to ensure that referee appointed is independent.

- Finally, the referee must decide a dispute, that is to say, opposing interests based on legal claims. ⁸⁰ In the context of the pre-arbitral referee procedure, even if the dispute referred to the referee relates to provisional or conservatory measures, the parties' claims are necessarily legal in nature.

- The referee's decision must be binding, which is indeed the case in the context of the pre-arbitral referee procedure. However, the fact that it is binding is not sufficient in itself, because it may be contractual or jurisdictional. If the referee's mission is to be comparable to that of an arbitrator, the binding force of his decision must be of a jurisdictional nature, as must his mission. It is a reflection of the dual nature of arbitration that the arbitrator's jurisdictional power derives from the will of the parties.

The Rules would therefore seem to comply with the criteria for arbitration, provided that the parties clearly express their intent to entrust the referee with a jurisdictional mission. Failing this, the Paris Court of Appeal considers that the parties have intended to entrust him with a contractual mission. In our opinion, the flexibility of the Rules, the similarity of the pre-arbitral referee procedure to arbitration, the emphasis that the Rules wish to place on flexibility and the will of the parties, and the neutrality of the terminology used should allow the parties to clarify their intention as to whether the mission with which they intend to entrust the referee will be of a jurisdictional or contractual nature. And the reasons underlying the decision of the Paris Court of Appeal, which sought to determine the intention of the parties by examining the Rules that they had adopted, does not appear to rule out such a proposition.

However, insofar as the Court of Appeal's reasons also relate to the pre-arbitral referee system as a whole, it cannot be ruled out that French case law would refuse to allow parties to decide upon the nature of the Rules which, in its view, can only be contractual. It is therefore wise to remain cautious about the effectiveness of such a stipulation because the courts may consider it to be an attempt to distort the Rules and use their power to characterize them differently. Indeed, the Rules seek to distance themselves from arbitration not only by their terminology⁸¹ but also in their spirit and their nature. ⁸² For instance, the fourth paragraph of the Foreword to ICC Publication No. 482⁸³ lists as one of the main features of the ICC pre-arbitral referee procedure the fact that it is 'a contractual process'. Moreover, the Rules may be used without the parties having stipulated an ICC arbitration clause. These corroborating indications can be interpreted as reflecting the drafters' intention to confer upon the referee contractual power to order the necessary provisional measures when difficulties arise. However, the referee must follow a procedure that provides the parties with guarantees and at the same time is very rapid and flexible. The referee would seem to play the role of a mutual agent responsible for protecting the contractual position. He must make a temporary decision that protects what is at stake in the dispute and lays the foundations for its final settlement by agreement or otherwise.[Page57:]

3. Effectiveness of the pre-arbitral referee procedure

The rapidity and flexibility of the procedure, the extensive powers conferred on the referee, and the limited means of legal redress contribute to ensuring that the parties obtain a decision before it is too late.

French case law refuses to characterize the referee's order as a jurisdictional decision. ⁸⁴ However, this might not be so if the parties have expressed their intent to entrust the referee with a mission of a jurisdictional nature. The order could furthermore be recognized as jurisdictional and be the subject of enforcement proceedings in another State. In this case, the rules governing the referee's order would be the same as those that govern provisional measures ordered by arbitrators. ⁸⁵

Be that as it may, the referee's decision is regarded as having contractual authority. Article 6.6 of the Rules states that '[t]he parties agree to carry out the referee's order without delay'. ⁸⁶ It was on this basis that the Paris Court of Appeal ascribed to the referee's decision the authority of an agreement. Contract effectiveness and party autonomy are principles recognised by virtually all national laws and they are the pillars of international trade. Moreover, le principle of the binding force of agreements is readily presented as a general principle of international trade law. ⁸⁷ The contractual authority of the referee's decision thus makes it effective internationally. Admittedly, under French law, such a decision cannot be compulsorily enforced, yet it can be a quick matter to have the competent court rule that the referee's decision is binding on the parties and request it to order compliance through an enforceable decision.

The pre-arbitral referee procedure avoids the need to split up proceedings according to the countries in which the measures sought are likely to be effective. By encouraging a global resolution of the dispute regarding provisional measures, the pre-arbitral referee procedure avoids conflicting decisions and thus makes it easier to implement the referee's decision.

Moreover, the neutrality of the procedure is a guarantee of effectiveness, particularly for parties that have contracted with States or government bodies.

In the event that the measures ordered by the referee are not implemented, the court that has jurisdiction to rule on the merits of the case will rule on any liability and assess the harm resulting therefrom (Rules, Art. 6.8.1). The same court will also decide whether a party that has caused harm to the opposing party by requesting and carrying out a provisional measure owes compensation. This encourages the parties to carry out the provisional measures in good faith and not to seek enforcement unfairly. Parties will tend to comply with the measures ordered by the referee because they know that the court that has jurisdiction on the merits of the case will have the power to rule on the parties' liability if harm is caused by carrying out or not carrying out the measures ordered. ⁸⁸ Moreover, by indicating the authority that has jurisdiction to decide on the parties' behaviour at the stage of carrying out the order, the Rules avoid conflicts of jurisdiction and make it easier to ensure redress for the harm suffered by the victim. ⁸⁹

In addition, the referee's decision carries moral authority, which it is difficult for the parties to overlook. Provided that no decision has been made on the merits of the case, it is in the parties' interest to carry out the provisional measures so as to appear in the best possible light before the competent judges or arbitrators. A party that [Page58:] complies with the referee's decision shows its good faith and cooperation. By contrast, a party's reticence can only undermine its position vis-à-vis the judge on the merits.

By giving the parties an idea of how the referee perceives the dispute, his decision will encourage the parties to use it as a starting point for a compromise settlement. In this case, the referee's decision will have proved to be fully effective. This is a point made in the Introduction to the Rules.

In theory, the pre-arbitral referee procedure is less confrontational than court proceedings in that the referee endeavours to restore a dialogue between the parties, particularly at hearings attended by counsel and also, usually, the parties. The procedure takes place in an informal setting with flexible rules that allow the parties to express themselves more freely. In order to settle disputes relating to provisional measures, the referee must try to identify the legitimate interests of each party and weigh them up. The referee must be very mindful of the practical issues raised by the dispute. The moral authority embodied in the referee, especially when he is a well-known person, may help to defuse confrontational situations and encourage the parties to adopt more constructive strategies. The referee must also be something of a teacher, allow the parties to communicate clearly with each other, and reformulate their respective positions. He must give reasons for his decision in fact and in law. The prospect of a future judgment on the merits of the dispute will also encourage the parties to behave fairly and to comply with the referee's decisions. All these factors create synergy that leads to a constructive resolution of the dispute and encourages the parties to spontaneously carry out the decisions made by the referee and/or reach an agreement.

In the first applications of the Rules, the parties were careful to spontaneously carry out the referee's orders, which is undoubtedly the best proof of the effectiveness of the procedure and of the high quality of the work of the referees under the control of an institution as experienced as the ICC.

Conclusion

1. Benefits of the Rules

The referee is given the task of resolving the dispute relating to provisional measures in an 'alternative' way, ⁹⁰ using a wide range of means that allow him to adopt the most appropriate measures for the situation. When the parties have provided for arbitration, they seek to benefit from a number of advantages. The Rules offer a means of extending these advantages to disputes relating to provisional measures. There are many advantages offered by the Rules:

The procedure is neutral. In particular, it allows the parties not to leave disputes relating to provisional measures to the sole jurisdiction of national courts. We have already described the reasons why this solution is unsatisfactory, particularly when the dispute involves a State or government bodies.[Page59:]

- The pre-arbitral referee procedure avoids splitting up litigation over provisional measures.

- The provisional measures are decided by referees, whose skill, independence and availability are guaranteed.

- The powers granted to the referee are very extensive and allow him to order the most suitable measures in the shortest time.

- The brevity and simplicity of the Rules ensures flexibility and rapidity. The procedure sets short time limits and enables delaying tactics and deadlocks to be avoided.

- The procedure is confidential.

- The pre-arbitral referee procedure is designed to be less confrontational than court proceedings or even arbitration.

- The effectiveness of the pre-arbitral referee procedure was demonstrated by its initial applications, in which the referees' decisions were always carried out spontaneously. Moreover, the contractual and moral authority of the referee's decision guarantees that it is effective internationally.

- In practice, the pre-arbitral referee procedure can lead to a final settlement of the dispute by, for instance, serving as the starting point for an agreement or placing the parties in a position that they do not contest.

2. Contracts for which the pre-arbitral referee procedure is particularly suited

The pre-arbitral referee procedure seems to be particularly useful in contracts involving States and government bodies, for it allows disputes relating to provisional measures to be removed from the influence of the national courts of the State in question. In investment contracts, for example, the pre-arbitral referee procedure may provide additional protection for the investor.

This original procedure may also prove to be very effective in connection with contracts where one party immediately performs all its obligations whereas the other only performs its own later over a longer time. In such a case, the party that has already performed the contract is at the mercy of the other. It no longer has the formidable practical weapon of exceptio non adimpleti contractus. Its only protection is therefore the contract. Hence, the means of guaranteeing the performance of the contract must be as secure as possible. Clearly, the pre-arbitral referee procedure can effectively help to protect the party at risk alongside other dispute resolution clauses.

Such a procedure can help to provide an appropriate resolution of disputes relating to long-term contracts with staggered performance or framework agreements with many implementing contracts. A pre-arbitral referee clause is also useful in groups of contracts for carrying out major projects, particularly relating to construction, research and development, and the creation of industrial plants. In these operations where the financial stakes are very high and performance is stretched over time, it is vital to establish mechanisms that prevent any deadlock that could delay them or put them at risk. The pre-arbitral referee procedure can help to resolve disputes particularly in [Page60:] connection with contracts where the realization of the desired economic targets presupposes great cooperation between the parties. Joint-venture contracts are a typical example.

The pre-arbitral referee procedure can also play a key role in preventing disputes from escalating. This is particularly true in fields where it is important to be reactive, such as high technology, information, energy and the environment.

3. Clause for a pre-arbitral referee procedure

Since the Rules stand alone, the mere reference thereto in a contract does not imply that the ICC Rules of Arbitration will be applicable to the merits of the dispute. It is possible for the parties to combine this procedure with arbitration or other methods of dispute resolution according to their needs. In addition, they must not forget to harmonize the dispute resolution clauses that appear in the various contracts between them or with external partners.

The standard clause recommended by ICC⁹¹ can be adapted and expanded by the parties in order to take account of their specific requirements.

Firstly, the parties must choose the referee⁹² or define criteria concerning his qualifications, skills and nationality. Moreover, they have the right to decide that the referee may act as arbitrator in subsequent proceedings between the same parties (Rules, Art. 2.3). The parties can also modify or add details concerning the rules applicable to the procedure or provide details relating thereto (Rules, Art. 5.3). As in arbitration, the parties are free to stipulate a governing law, the seat of the procedure and the language thereof. They may also decide to extend or reduce the confidentiality of the pre-arbitral referee procedure.

In addition, the referee's powers may be freely adapted. For example, the parties may alter the list of measures that he may order (Rules, Art. 2.1.1). The clause may provide for a specific arrangement of powers between the referee and the court or tribunal having jurisdiction to rule on the substance of the dispute (Rules, Art. 2.3 and Art. 2.4). As we have seen, it is not certain that reference to the Rules amounts to a waiver of the concurrent jurisdiction of national courts to adopt provisional and conservatory measures. It is therefore preferable for the parties to clearly express their intention on that point. However, the drafters of clauses should not have a too rosy view of the pre-arbitral referee procedure. In some circumstances, it can prove to be less effective than national courts which, in some countries, can order provisional measures within a few hours by means of an enforceable order. The parties should therefore ensure that they do not hastily waive the jurisdiction of national courts and would do well to combine different methods of dispute resolution in accordance with the objectives sought.

We consider that parties also have the possibility of defining the nature of the task that they intend to entrust to the referee. On the one hand, they may specify that the task assigned is purely contractual and that the decision will only have the authority of an agreement. In view of the judgment of the Paris Court of Appeal, this would appear unnecessary, but the parties may legitimately wish to clarify their intentions. On the other hand, the parties may express their intention to entrust the referee with a task [Page61:] of a jurisdictional nature. In the light of current case law, it is doubtful that, under French law, the referee's decision would be characterized as an award and benefit from the rules thereby applicable. ⁹³ However, arbitration laws elsewhere seem to have adopted a sufficiently flexible definition of an award to accommodate referees' decisions. Moreover, unlike current French case law, some countries have gone as far as to allow an exequatur to be issued in respect of orders for provisional measures. We are of the view, however, that it would seem to be more effective and more in keeping with the current spirit of the Rules to leave the referee's task in contractual territory.

4. Improvements to the Rules

(i) Desirable improvements

The initial applications of the Rules have showed how effective and flexible they are. However, some superficial changes would help to improve them.

The problems encountered by referees during the initial cases show that it would be wise to draft Article 2.1 of the Rules, which lists the measures that the referee can order, in more general terms.

The drafting of Article 2.4 and Article 2.4.1 would benefit from improvement in order to clarify the ordering of powers between the referee and the court or tribunal having substantive jurisdiction.

The procedure could be made more flexible by modifying Article 3.2.2, which requires a translation of the request if it is not drafted in English, French or German. Such a requirement would not seem to be necessary since the request must be drafted in the language agreed by the parties or, failing this, in the language of the contract.

In accordance with practice, it would in our view be wise to add electronic mail to the means of communication that can be used during the proceedings, provided that the sender is able to keep a record of it and provide proof of receipt.

Finally, Article 6.8.1 and Article 6.8.2, stating that the court or tribunal having substantive jurisdiction, will rule on any harm resulting from carrying out or failing to carry out the referee's decision, would seem superfluous.

(ii) Changes of a more debatable kind

The drafters of the Rules might be tempted to add a provision stating that by referring to the Rules the parties clearly waive the concurrent jurisdiction of the national courts with respect to provisional measures. However, we do not consider this to be desirable because, generally speaking, the referee is not intended to replace the national courts in this respect.

The drafters might decide to adopt a position on the nature of the Rules in order to remove any uncertainty. They could affirm the contractual nature of the Rules without [Page62:] making any other changes. To do so would not, in our view, be inconsistent with the spirit of the Rules, but it would prevent the parties from ever entrusting the referee with a mission of a jurisdictional nature.

If, on the other hand, the drafters were to clearly specify the jurisdictional nature of the task assigned to the referee, we believe the Rules would then be openly exposed to a legal risk. Is it really possible to refer only the question of provisional measures to an arbitral procedure? Would it not be contrary to French case law to accept that an arbitrator's power is limited to only ordering provisional measures? Moreover, as the text currently stands, he would only have the power to make orders⁹⁴ and not awards. It is true that his decision would be jurisdictional in nature but would, nevertheless, remain temporary. It would then be possible to argue that the referee finally settles the dispute in respect of provisional measures, ⁹⁵ but is this not an artificial argument? This risk can also be seen in the reasons given for the judgment of 29 April 2003, which refers to the temporary nature of the referee's decision. ⁹⁶

If the drafters were tempted to see the pre-arbitral referee procedure as being of the same nature as arbitration, they would have to make numerous amendments to the Rules and they would have to rewrite the Introduction and Article 1, which defines the pre-arbitral referee procedure, and make fundamental changes to the terminology. In this respect, the Foreword to ICC Publication No. 482 would also need to be changed, despite the fact that it does not form part of the Rules. In addition, it would then be preferable to allow the referee to adopt provisional measures in the form of an award or allow him to choose what form his decision should take. If the drafters were to opt for the jurisdictional nature of the Rules, it would be necessary, and not just simply desirable, to mention due process and the independence and neutrality of the referee.

Yet, by fundamentally altering the physiognomy of the Rules, the drafters might encourage French case law and the case law of other countries to sanction a very rapid arbitration procedure for adopting provisional measures. This path would also perhaps provide the case law of some countries such as France with the opportunity to make their definition of an award⁹⁷ more flexible and, accordingly, facilitate the enforcement of decisions made by arbitrators in respect of provisional measures. Furthermore, such changes would make it easier for national courts to characterize the pre-arbitral referee procedure as arbitration.

5. Greater publicity

Over the last few years, arbitration has tended to become increasingly overburdened with procedures, lengthy and confrontational. This development is no doubt a result of the success of this method of dispute resolution, which has become essential to international trade. The ICC pre-arbitral referee procedure linked to an ICC arbitration clause is no doubt a highly effective combination that will strengthen the traditional advantages of arbitration and encourage a return to its original spirit.

The success of the initial experiences of the ICC pre-arbitral referee procedure should encourage those involved in international trade to include this mechanism more frequently in dispute resolution clauses. It doubtless simply remains to raise awareness of these Rules in order to inform economic players of their existence, [Page63:] explain their benefits to them, and show that the few outstanding uncertainties do not detract at all from their relevance and effectiveness.

In this respect, we consider that it would be wise to include a reference to the Rules in the ICC standard arbitration clause. Moreover, this appears to be the direction ICC has taken, for the October 2004 edition of the booklet containing its Rules of Arbitration contains, after the part relating to the standard ICC arbitration clause, a new section devoted to the combined standard clause providing for the ICC pre-arbitral referee procedure and ICC arbitration. ⁹⁸ Just recently, ICC has gone further by publishing a new booklet containing both the Rules Arbitration and the Rules for a Pre-Arbital Procedure. However, it would be worth going a step further and incorporating the pre-arbitral referee procedure in the ICC Rules of Arbitration, so as to make it automatically applicable unless otherwise agreed by the parties.

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1
'The ICC Pre-Arbitral Referee Procedure: An Innovation in Dispute Resolution' (1990) 1:1 ICC ICArb. Bull. 18.

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2
J.-.J. Arnaldez & E. Schäfer, 'Le règlement de référé pré-arbitral de la CCI' Rev. arb. 1990.83; B. Davis, 'The ICC Pre-Arbitral Referee Procedure in Context with Technical Expertise, Conciliation and Arbitration' [1992] ICLR 218; Y. Derains, 'Expertise technique et référé arbitral' Rev. arb. 1982.239; Ch. 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; J. Paulsson, 'A Better Mousetrap: 1990 ICC Rules for a Pre-arbitral Referee Procedure' International Business Lawyer (May 1990) 214; J. Paulsson, 'An Introduction to the 1990 ICC Rules for a Pre-Arbitral Referee Procedure' (1990) 5:3 International Arbitration Report 18; H. Smit, 'Provisional Relief in International Arbitration: The ICC and Other Proposed Rules' (1990) 1 The American Review of International Arbitration 388; C. Lecuyer-Thieffry, 'Examination of ICC's New Pre-Arbitral Referee Procedure' (1990) 1:1 World Arbitration & Mediation Report 13.

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3
E. Gaillard, 'First Int'l Chamber of Commerce Pre-Arbitral Referee Decision' New York Law Journal, International Arbitration Law (7 February 2002) 3; E. Gaillard, 'Le référé pré-arbitral de la CCI', Décideurs Juridiques et Financiers no. 36 (15 July 2002) 52; E. Gaillard & Ph. Pinsolle, 'The ICC Pre-Arbitral Referee: First Practical Experiences » (2004) 20 Arbitration International 13; B. Hanotiau, 'The ICC Rules for a Pre-Arbitral Referee Procedure' [2003] Int. A.L.R. 75; P. Tercier, 'Le référé pré-arbitral' (2004) 22 ASA Bulletin 464; Seminar of the International Arbitration Institute (IAI), 31 May 2002, <www.iaiparis.com/pdf/actes_colloques.pdf>.

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4
J. Beguin, 'L'arbitrage international : les voies de recours' J.C.P. E, 6 November 2004, no. 45-46, 1816; Th. Clay, 'Chronique de jurisprudence : Référé pré-arbitral » Dalloz 2003, no. 36, 2478; Ch. Jarrosson, Annotation of Paris, 29 April 2003, Rev. arb. 2003.1296; Ch. Kaplan & G. Cuniberti, 'Les ordonnances de référé pré-arbitral de la CCI sont-elles des sentences arbitrales ?' J.C.P. E, 19-26 February 2004, nos. 8-9, 322; Ch. Lecuyer-Thieffry, 'First Ruling on the ICC Pre-Arbitral Referee Procedure' (2003) 20 J. Int. Arb. 599; E. Loquin, 'De la nature juridique du référé pré-arbitral de la CCI' Rev. trim. Droit com. 2003.482; A. Mourre, 'Référé pré-arbitral de la CCI : to be or not to be a judge… » Gaz. Pal., May-June 2003, 1484 ; P. Mayer, Annotation of Paris, 29 April 2003, J.D.I. 2004.511; D. Bensaude, « L'utilité de développer une prodédure arbitrale permettant d'obtenir certaines mesures provisoires ou conservatoires à côté des possibilités offertes par les juridictions ordinaires : l'exemple du Référé Pré-arbitral de la CCI » (2005) 7 International Law FORUM du droit international 33.

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5
Article 1 of the Rules defines the pre-arbitral referee procedure as a procedure 'which provides for the immediate appointment of a person (the "Referee") who has the power to make certain Orders prior to the arbitral tribunal or national court competent to deal with the case (the "Competent Authority") being seized of it'.

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6
In this article, the expressions 'provisional measures' and 'conservatory measures' will be used interchangeably. For more details see E. Gaillard, 'Arbitrage commercial international - Intervention du juge étatique' Juris-classeur, 'Droit international' fasc. 586-8-2, no. 101ff.: although the expressions 'provisional measures' and 'conservatory measures' are frequently used interchangeably, the first refers to the temporary nature of the decision, which does not bind the arbitrator subsequently called upon to rule on the merits, whereas the second concerns the purpose of the decision, which is to preserve a situation, rights or evidence.

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7
J.-J. Arnaldez & E. Schäfer, supra note 1; Y. Derains, supra note 1; IAI Seminar, supra note 3, esp. S. Bond, 'La mise en place du Règlement de référé pré-arbitral de la CCI'.

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8
This growing interest is reflected in the abundant writings and numerous colloquia on provisional and conservatory measures. See e.g. Ch. Jarrosson, 'Neuvième Colloque CCI-CIRDI-AAA : Mesures Conservatoires et Provisoires en Matière d'Arbitrage International (Paris, 6 November 1992)' Rev. arb. 1992.685; Conservatory and Provisional Measures in International Arbitration (ICC Publication No. 519, 1993); C. Goldman, 'Provisional Measures in International Arbitration' IBLJ/RDAI 1993.3; F. Knoepfler, 'Les mesures provisoires et l'arbitrage international' in A. Kellerhals, ed., Schiedsgerichtsbarkeit (Europa Institut, Zurich, 1997) 307 ; S. Besson, Arbitrage international et mesures provisoires - Etude de droit comparé (Schulthess Polygraphischer Verlag Zurich, 1998); A. Reiner, 'Les mesures provisoires et conservatoires et l'arbitrage international, notamment l'arbitrage CCI' J.D.I. 1998.853; J.D.M. Lew, 'Commentary on Interim and Conservatory Measures in ICC Arbitration Cases' (2000) 11:1 ICC ICArb. Bull. 23; A. Yesilirmak, Interim and Conservatory Measures in ICC Arbitral Practice' (2000) 11:1 ICC ICArb. Bull. 32; C. Giovannucci Orlandi, 'Compte rendu du colloque d'arbitres de la Chambre arbitrale de Milan (10 octobre 2002) : Mesures provisoires et conservatoires et arbitrage international' Rev. arb. 2003.585. More recently, see D.F. Donovan, 'The Scope and Enforceability of Provisional Measures in International Commercial Arbitration: A Survey of Jurisdictions, the Work of UNCITRAL and Proposals for Moving Forward' in ICCA Congress Series No. 11, Kluwer Law International, 2003, 82. For a recent analysis of provisional measures in arbitration in the United Stated, see A.S. Rau, 'Provisional Relief in Arbitration: How Things Stand in the United States' (2005) 22 J. Int. Arb. 1.

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9
B. Oppetit, Théorie de l'arbitrage (PUF, 1998) at 117.

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10
G. Pluyette, 'The role of the courts and problems related to the execution of conservatory and provisional measures - The French perspective' in Conservatory and Provisional Measures in International Arbitration (ICC Publication No. 519, 1993) 72.

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11
Globalization, the development of international commerce, the quickening pace of trade, technological changes and price fluctuations all play a part in this phenomenon, as does the increasing complexity of contracts, which involve increasingly large amounts and cover increasingly long periods.

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12
J.-F. Guillemin, 'Les nouvelles attentes des entreprises en matière de règlement des conflits' Rev. arb. 1996.583.

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13
A. Reiner, 'Les mesures provisoires et conservatoires et l'arbitrage international notamment l'arbitrage CCI' J.D.I. 1998.853.

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14
E. Gaillard & J. Savage, eds., Fouchard Gaillard Goldman On International Commercial Arbitration (Kluwer Law International, 1999) at paras. 1302-1324.

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15
It is widely acknowledged that arbitrators have jurisdiction to order such measures. See especially M. Rubino-Sammartano, International Arbitration Law, 2d ed. (Kluwer Law International, 2001) at 617ff.; D.F. Donovan, 'Powers of arbitrators to issue procedural orders, including interim measures of protection, and the obligation of parties to abide by such orders' (1999) 10:1 ICC ICArb. Bull. 57. Some writers even consider it to be a power inherent in the mission of arbitrator; see S. Besson, supra note 8 at 96ff.

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16
Parties can therefore apply to State courts for provisional measures despite the existence of an arbitration agreement. Under French arbitration law, State courts have a complementary role before the matter is referred to an arbitral tribunal and a subsidiary role after the arbitral tribunal has been constituted; see G. Pluyette, supra note 10 at 90. The question seems much less clear in the United States; see R.W. Hulbert, 'The role of the courts and problems related to the execution of conservatory and provisional measures - The American Law perspective' in Conservatory and Provisional Measures in International Arbitration (ICC Publication No. 519, 1993) 92. Given that the question is not dealt with in the New York Convention, each State should freely determine under what conditions its courts may hear applications for provisional measures. The Geneva Convention (Art. 6) and the UNCITRAL Model Law (Art. 9), on the other hand, clearly allow for this possibility.

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17
Admittedly, there is currently little risk of this, because it is generally accepted that the jurisdiction of State courts implies that parties may apply to them for provisional measures without waiving the benefit of the arbitration agreement. See Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1310; J.-F. Poudret & S. Besson, Droit comparé de l'arbitrage international, LGDJ, 2002, at para. 612. However, the risk should not be ignored. See e.g. the French Court of Cassation's ruling of 9 October 1990, in which it upheld a Court of Appeal judgment inferring a waiver of arbitration proceedings from the fact that the urgent applications judge had been requested to appoint an expert. See M.L. Niboyet-Hoegy, Annotation of Cass. civ. 1re, 9 October 1990, Rev. arb. 1995.305.

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18
S. Besson, supra note 8 at para. 625ff. See also H. Gaudemet-Tallon, Les Conventions de Bruxelles et de Lugano, 2d ed. (Paris, 1996).

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19
P. Tercier, supra note 3 at 477. See also J. Paulsson, supra note 2 at 215.

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20
See J.-F. Poudret & S. Besson, supra note 17 at para. 606ff. For instance, the Italian Code of Civil Procedure (Art. 818) continues to forbid arbitrators to order provisional measures. In respect of Italy see A. Carlevaris, 'Les pouvoirs des arbitres en matière de mesures conservatoires et provisoires et l'arbitrage international à la lumière du droit italien' Gaz. Pal. 2001, no. 319, p. 27, at para. 5ff; P. Bernardini, 'Italy' (c. IV, § 5.) in ICCA International Handbook on Commercial Arbitration, vol. II. Nevertheless, there is an increasing trend in national laws, arbitration rules and practice to allow arbitrators to order provisional measures. See Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at paras. 1314ff. This trend is reflected in Article 17 of the UNCITRAL Model Law on International Commercial Arbitration, which allows for such a possibility unless the parties agree otherwise. In 1999, an UNCITRAL Working Group was formed to study matters relating to arbitration, including provisional measures. The Working Group is preparing an improvement to Article 17 of the Model Law; see Note by the UNCITRAL Secretariat, Doc. A/CN.9/&CII/&P 119. The Working Group met in January 2005 and made public the revised draft of paragraph (7) of draft Article 17 of the UNCITRAL Model Law on International Commercial Arbitration regarding the power of an arbitral tribunal to grant interim measures of protection; see <www.uncitral.org>.

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21
See e.g. the remarks of D. Bensaude, Rev. arb. 2003.143 and the references cited; J.F. Poudret & S. Besson, supra note 17 at para. 630ff.

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22
See references supra note 2.

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23
Y. Derains was Secretary General of the ICC International Court of Arbitration at the time.

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24
Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at paras. 22-24; Ch. Jarrosson, La notion d'arbitrage (LGDJ 1987) at paras. 709-712.

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25
As a result of the changes, the procedure more closely resembles arbitration. See especially C.R. Seppala, 'The New FIDIC Provision for a Dispute Adjudication Board' (1997) 8 IBLJ/RDAI 967. For an earlier version see I. Hautot & G. Flécheux, 'La clause de règlement des différends dans les conditions FIDIC génie civil de 1987' Rev. arb. 1989.609.

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26
See references supra note 2.

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27
The Foreword does not form part of the Rules.

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28
See e.g. the following arbitration rules: ICC (Art. 23), AAA (Art. 21), LCIA (Art. 25), CIRDI (Art. 39), CNUDCI (Art. 26).).

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29
J. Pellerin, 'Les droits des parties dans l'instance arbitrale' Rev. arb. 1990.395.

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30
Expression used by P. Tercier, supra note 3 at 466.

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31
E. Gaillard, 'Le référé pré-arbitral de la CCI', supra note 3; E. Gaillard & Ph. Pinsolle, 'The ICC Pre-Arbitral Referee: First Practical Experiences, supra note 3; B. Hanotiau, supra note 3; IAI Seminar, supra note 3.

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32
E. Gaillard, 'Le référé pré-arbitral de la CCI', supra note 3; E. Gaillard & Ph. Pinsolle, 'The ICC Pre-Arbitral Referee: First Practical Experience', supra note 3; IAI Seminar, supra note 3.

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33
B. Hanotiau, supra note 3.

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34
E. Gaillard, 'Le référé pré-arbitral de la CCI', supra note 3.

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35
M. de Boisséson, Le droit français de l'arbitrage interne et international (GLN, 1990) at para. 723.

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36
On this question see especially J. Pellerin, supra note 29; Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1321.See also J.-F. Poudret & S. Besson, supra note 17 at para. 615: 'The answer is positive in English law . . . In other laws, the answer is controversial. Although the majority would seem to accept that such a waiver is valid, some writers make it subject to limitations so as to avoid a denial of justice.'

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37
As affirmed by E. Loquin, Annotation of Paris, 20 January 1988, J.D.I. 1989.1032. See also G. Couchez, Annotation of Cass. civ. 3e, 9 July 1979, J.C.P. 1980.II.19389.

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38
E. Gaillard, Annotation of Cass. civ. 1re, 18 November 1986, J.D.I. 1987.125. On the référé provision see G. Couchez, Annotation of Cass. civ. 2e, 20 March 1989, Rev. arb. 1989.496; B. Oppetit, J.D.I. 1989.1049.

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39
Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1321.

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40
ibid.

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41
See A. Giardina, 'La nature juridique et l'efficacité pratique des décisions prises' in IAI Seminar, supra note 3 ; J.-F. Poudret & S. Besson, supra note 17 at para. 615; D. Bensaude, supra note 4, esp. at 34. Contra: Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1321.

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42
Paris Court of Appeal, 29 April 2003. On this judgment see especially Ch. Jarrosson, Rev. arb. 2003.1296; J. Béguin, J.C.P. G 2003.I.164; P. Mayer, J.D.I. 2004.511; A. Mourre, Gaz. Pal., 28-29 May 2003, Cahiers de l'arbitrage, p. 5; Th. Clay, D.2003.Somm.2478; E. Loquin, Rev. trim. Droit com. 2003.482. For more qualified criticism see E. Gaillard & Ph. Pinsolle, 'The ICC Pre-arbitral Referee: First Practical Experiences', supra note 3; P. Tercier, supra note 3.

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43
A. Hory, 'Mesures d'instruction in futurum et arbitrage' Rev. arb. 1996.191, esp. at para. 12.

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44
In the event, for instance, that a party adopts the strategy of completely cutting relations, either at the outset of the proceedings or at the stage of carrying out the decision rendered by the referee. Although this hypothetical risk cannot be excluded altogether, the Rules help to avoid deadlock as far as possible. No difficulties of this kind arose in any of the initial applications. This can be attributed to the many advantages of the Rules; see especially pp. 58-59, below.

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45
On the question of imperium in relation to arbitrators see Ch. Jarrosson, 'Réflexion sur l'imperium' in Etudes offertes à Pierre Bellet (Litec, 1991) 245; P. Mayer, 'Imperium de l'arbitre et mesures provisoires' in Etudes de procédure et d'arbitrage en l'honneur de Jean-François Poudret (Faculté de droit de Lausanne, 1999) 437; Th. Clay, L'arbitre (Dalloz, 2001) at paras. 108ff.

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46
For instance, electronic acknowledgements of receipt seem to be sufficiently reliable and secure nowadays to prove that notification has actually been made. However, it should be pointed out that this will only work if both the sender and the addressee of the electronic mail are equipped with adequate IT facilities.

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47
For instance, in the second of the cases so far brought, counsel to the respondent (a State) had great difficulty contacting the latter (a 26 December), and it was difficult to prepare a defence within such a short period. See the remarks of J.-Y. Garaud, IAI Seminar, supra note 3.

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48
Save in cases where circumstances such as death make it impossible to comply with the will of the parties.

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49
Th. Clay, supra note 45. See e.g. Paris, 20 November 1997, Rev. arb. 1999.329.

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50
The principle of the referee's independence is nonetheless implicit in Article 4.2 of the Rules.

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51
See the remarks of D. Bensaude, IAI Seminar, supra note 3.

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52
Ch. Jarrosson, 'Les frontières de l'arbitrage' Rev. arb. 2001.5, esp. at 11-14.

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53
See the remarks of D. Bensaude, IAI Seminar, supra note 3.

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54
Ch. Jarrosson, supra note 52, p. 11-14.

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55
See the remarks of D. Bensaude, IAI Seminar, supra note 3.

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56
The principle of equality of arms is one of the guarantees implicit in the right to a fair trial. It expresses a tribunal's obligation to give each party a reasonable possibility of presenting its case in conditions that do not place it at a significant disadvantage in relation to the other party (see especially Eur. Comm. H.R., decision of 30 June 1959, Szwabowicz v. Sweden, Y.B. Eur. Conv. H.R. II 535; G. Cohen-Jonathan, 'L'égalité des armes selon la Cour européenne des droits de l'homme, Petites Affiches, no. 238, 28 November 2002, 21). This principle is closely linked to that of due process although it does not coincide exactly with the latter. By way of example, in arbitration, the principle of equality of arms comes into play as early as when the arbitrators are being chosen. In multi-party arbitration, two respondents cannot be forced to agree on the choice of an arbitrator, while the claimant is free to choose its arbitrator alone (see especially Cass. civ. 1re, 7 January 1992, Bull. civ. I, no. 2; P. Bellet, Annotation, Rev. arb. 1992.470). This principle could also be applied in the event of an arbitrator ordering an investigative measure to cover a party's deficiency (S. Guinchard, Droit processuel (Dalloz, 2005) at paras. 621ff.).

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57
The parties are free to adjust the scope of the confidentiality of the pre-arbitral referee procedure by mutual agreement.

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58
See the remarks of D. Bensaude, IAI Seminar, supra note 3.

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59
It should be pointed out, however, that the parties may extend or reduce the powers of the referee by written agreement (Rules, Art. 2.1.1).

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60
In France, most commentators approve case law allowing arbitrators to impose periodic penalty payments; see especially Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1274; M. de Boisséson, supra note 35 at 260-61; Ch. Jarrosson, supra note 4; Y. Derains, J.D.I. 1997.1060.

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61
P. Tercier, supra note 3, esp. at 472-73.

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62
E. Gaillard & Ph. Pinsolle, 'The ICC Pre-Arbitral Referee: First Practical Experiences', supra note 3.

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63
This remark applies above all to urgency, on which great emphasis is placed in the Introduction to the Rules.

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64
B. Hanotiau, supra note 3, esp at 75-76.

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65
See especially Ch. Jarrosson, Rev. arb. 2003.1296; J. Béguin, J.C.P. G 2003.I.164.

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66
The criticisms are based on various reasons and sometimes reflect divergent positions; see especially P. Mayer, J.D.I. 2004.511; A. Mourre, Gaz. Pal., 28-29 May 2003, Cahiers de l'arbitrage, 5; Th. Clay, D.2003.Somm.2478; E. Loquin, Rev. trim. Droit com.. 2003.482.For more qualified criticism, see E. Gaillard & Ph. Pinsolle, 'The ICC Pre-arbitral Referee: First Practical Experiences, supra note 3; P. Tercier, supra note 3.

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67
However, French commentators generally seem to accept that an arbitrator may order provisional measures in the form of an award; see G. Pluyette, supra note 10, esp. at 89-90; M. de Boisséson, supra note 35, at para. 305; Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1316; S. Besson, supra note 8 at para. 486ff.

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68
See especially Paris, 25 March 1994, Rev. arb. 1994.391 (Annot. Ch. Jarrosson); Paris, 1 July 1999, Rev. arb. 1999.834 (Annot. Ch. Jarrosson); Paris, 25 May 2000, Rev. arb. 2001.199 (Annot. Ph. Pinsolle), esp. at 208; Cass. civ. 2e, 6 December 2001, Rev. arb. 2001.932; Paris, 4 & 11 April 2002, J.C.P. G 2003.I.105, no. 12. See also S. Besson, supra note 8, no. 485ff.; J.-F. Poudret & S. Besson, supra note 17 at para. 632. For a critical discussion of this case law, see P. Mayer, Annotation of Paris, 29 April 2003, J.D.I. 2004.511.

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69
Paris, 7 October 2004, Juris-Data no. 2004-262342; Rev. arb. 2004.982. See commentary by J. Ortscheidt, J.C.P. 2005.E.676. This decision should be analysed with caution, as it has been appealed to the Court of Cassation (case no. C 04-19292, brought on 4 November 2004).

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70
Generally speaking, orders issued by arbitrators cannot benefit from exequatur proceedings available for awards; see especially J.F. Poudret & S. Besson, supra note 17 at para. 537. French law, for example, does not allow an exequatur to be issued for orders made by arbitrators; see G. Pluyette, supra note 10; J.F. Poudret & S. Besson, supra note 17 at para. 537; D. Hascher, J.D.I. 1993.1078. Regarding the distinction between orders and awards, see Ch. Jarrosson, Annotation of Paris, 25 March 1994, Rev. arb. 1994.391. See also the remarks by D. Bensaude, Rev. arb. 2003.143, esp. at 166ff.

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71
See P. Tercier, supra note 3 at 475. Contra: see D. Bensaude, supra note 4. It is much debated whether orders made by arbitrators relating to provisional measures can be recognized and enforced under the New York Convention. Australian case law is opposed to the application of the New York Convention to orders (see especially M. Pryles, 'Interlocutory Orders and Convention Awards: the Case of Resort Condominiums v. Bolwell' (1994) 10 Arbitration International 385). This position is defended by W.L. Craig, W. W. Park et J. Paulsson, International Chamber of Commerce Arbitration, 3d ed. (Oceana/ICC Publishing, 2000) at 464ff. US case law, on the other hand, seems to have a broader conception of enforceable arbitral award (see especially Court of Appeal, 7th Cir., Publicis Communication et Publicis SA v. True North Communications, 14 March 2000, ASA Bulletin 2000.427; Rev. arb. 2000.655 (Annot. Ph. Pinsolle).

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72
For instance, Dutch arbitration law defines the concept of an arbitral decision relating to provisional measures and applies to such decisions the rules applicable to arbitral awards (Art. 1051(3) of the Dutch Code of Civil Procedure).

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73
Chiefly those numbered three and four.

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74
The Rules refer to a 'Referee' who makes an 'Order' at the end of a 'Pre-Arbitral Referee Procedure'. The terms 'arbitrator', 'arbitration' and 'award' are not used at all in the Rules. Also, see likewise the terminology used in the Foreword to ICC Publication No. 482.

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75
P. Mayer, J.D.I. 2004.511.

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76
Ch. Jarrosson, supra notes 45 and 52.

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77
See especially the second paragraph of the Introduction and Article 3.1 of the Rules. See also the second paragraph of the Foreword to ICC Publication No. 482: 'It should be stressed that these Rules may be resorted to only on the basis of a written agreement between the parties to that effect. Such an agreement may either be part of the relevant contract or may be made thereafter.'

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78
Th. Clay, supra note 45. See e.g. Paris, 20 November 1997, Rev. arb. 1999.329.

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79
Rules, Art. 4.

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80
L. Cadiet & E. Jeuland, Droit judiciaire privé, (Litec, 2004) at paras. 4-5, who define litige as 'un différend présentant un caractère juridique'.

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81
See supra note 74. The terms used by the drafters seem to have been chosen so as to mark a distinction from arbitration and they reveal a wish to entrust the referee with a mission other than jurisdictional. As jurisdictional powers are only exercised by courts and arbitral tribunals, the distinction from arbitration reflects an intention not to confer jurisdictional powers upon the referee. It may be noted that the expressions 'arbitral referee' and 'arbitral referee procedure' were dropped when the Rules were being drafted. The word 'Order' appears to be used with its usual meaning of decision. Unlike similar schemes introduced by other institutions such as NAI, CAP, AFA, AAA and WIPO, no use is made of any terms related semantically to jurisdictional power and arbitration such as 'settle a dispute', 'award', 'tribunal', 'court', 'judge' or 'arbitrator'. This said, it is important not to attach too much importance to the terminology used.

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82
The will to distinguish the Rules from arbitration was also apparent in the preparatory work leading to their drafting; see especially Y. Derains, supra note 2; J.J. Arnaldez & E. Schäfer, supra note 2.

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83
Although not part of the Rules, the Foreword to ICC Publication No. 482 cannot be overlooked as a reflection of the drafters' intentions and the spirit of the Rules.

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84
See pp. 53-55, above.

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85
Unlike referees, arbitrators may choose to adopt provisional measures in the form of awards or orders (Art. 23(1), ICC Rules of Arbitration).

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86
Article 6.6 of the Pre-Arbitral Referee Procedure deserves to be compared with Article 28(6) of the ICC Rules of Arbitration, certain terms of which are identical.

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87
See Fouchard Gaillard Goldman On International Commercial Arbitration, supra note 14 at para. 1460 and the references cited.

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88
Rules, Art. 6.8.1 and Art. 6.8.2.

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89
However, the provisions of Art. 6.8.1 and Art. 6.8.2 would appear to be superfluous. See D. Bensaude, supra note 4.

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90
See especially, in relation to arbitration, M. de Boisséson, supra note 35 at 6: 'Parties may expect from arbitrators, if not an 'alternative justice', at least an alternative manner of rendering justice, often quicker, more flexible and better adapted to the nature of their disputes.'

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91
The standard clause recommended by ICC is as follows: '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 PreArbitral Referee Procedure.'

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92
Rules, Art. 4.1.

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93
See pp. 53-55 above.

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94
Under French law, the same rules do not apply to orders as to awards. However, courts have the power to change the description given to decisions rendered by arbitrators; see especially Ch. Jarrosson, Annotation of Paris, 1 July 1999, Rev. arb. 1999.834.

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95
This argument appears to have influenced the decision of the Paris Court of Appeal of 7 October 2004, which described as an award a decision rendered by an arbitral tribunal in the form of an interlocutory award upon an application for provisional measures. If this judgment is upheld by the Court of Cassation, there will be a far greater temptation for the drafters to affirm the jurisdictional character of the pre-arbitral referee procedure and to give the referee the power to order provisional measures in the form of awards. However, would that prevent courts from characterizing the referees' decisions differently? Is it possible for the arbitrator's mission to be limited to provisional measures? We believe that it would be risky to make such a change, which, besides, would remove some of the advantages of the prearbitral referee procedure, including, in particular, its flexibility.

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96
It is true that the Paris Court of Appel's judgment of 7 October 2004 raises hopes that the concept of award might be broadened to include provisional measures. However, although in this judgment the Court of Appeal accepts that an arbitrator may render a decision relating to provisional measures in the form of an award, the arguments it invokes do not suggest that it would characterize as an award an order made by an arbitrator relating to provisional measures. However, one should remain prudent pending the Court of Cassation's forthcoming ruling. It cannot be assumed that the Court of Cassation will give up its power to recharacterize such decisions.

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97
The seeds of such a change have perhaps already been sown with the Paris Court of Appeal's decision of 7 October 2004. See supra note 96.

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98
It would appear that ICC plans to include the standard clause combining ICC arbitration and the ICC pre-arbitral referee procedure in future editions of the booklet containing the Rules of Arbitration in other languages. So far only the English edition of the booklet contains this combined clause.

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