Introduction

Interim and conservatory measures1 are designed to 'prevent or minimize any disadvantage which may be due to the duration of the arbitral proceedings until the final settlement of the dispute and the implementation of its result'. 2 Their purpose is therefore to uphold justice by protecting parties' interests until the award is recognized or enforced.

The importance of interim and conservatory measures in arbitration has been steadily growing, particularly over the last two decades. This is doubtless because arbitration is increasingly recognized as the main dispute resolution mechanism for controversies arising in connection with international commerce.

The successive versions of the International Chamber of Commerce Rules of Arbitration (hereinafter the 'Rules'), which date originally from 1922, have all, with one exception, 3 dealt with interim or conservatory measures. The current Rules, which came into force in 1998, 4 overhaul provisions on interim measures so as to fill gaps in the previous Rules in the light of recent trends in arbitration. Perhaps the most significant aspect of the new Rules in this respect is that they expressly empower arbitral tribunals to grant interim measures, unless the parties agree to the contrary. 5 The exercise of such power is subject to mandatory principles of the applicable law. Under Article 23, an arbitral tribunal is authorized to grant any measure it deems appropriate, and, in so doing, it may require the requesting party to provide security; it may grant the interim measure in the form of either an award or an order. 6[Page32:] Whichever of these two forms the interim measure takes, the reasons upon which it is based should be stated. 7

Article 23(2) of the 1998 Rules provides that parties shall be at liberty to apply to a judicial authority before the file is transmitted to an arbitral tribunal and, in appropriate circumstances, even thereafter. It thereby amends Article 8(5) of the 1988 Rules by replacing the expression 'in exceptional circumstances' in the latter with the phrase 'in appropriate circumstances'.

An early survey8 of practices relating to interim and conservatory measures in International Chamber of Commerce ('ICC') arbitration has proved to be a very useful source of information for many arbitral tribunals. The present survey attempts to follow suit by endeavouring to show the current state of practice concerning interim measures amongst ICC arbitral tribunals. It is based on a study of almost 75 awards dealing with interim or conservatory measures. 9

Four important issues concerning interim measures in ICC arbitral practice will be dealt with: (i) the arbitral tribunal's jurisdiction to grant such measures, (ii) types of measures, (iii) requirements for granting such measures, and (iv) the interplay between the jurisdiction of a judicial authority and that of an arbitral tribunal to grant such measures.

I. Jurisdiction of an arbitral tribunal to grant interim measures

ICC arbitral tribunals usually examine the parties' agreement, the ICC Rules of Arbitration and the laws of the place of arbitration, in order to determine whether or not they have jurisdiction to grant interim or conservatory measures. 10

Under the 1998 Rules, as indicated above, an arbitral tribunal is expressly empowered to grant interim measures, unless the parties have agreed otherwise. The tribunal's power is subject to mandatory rules of the applicable law. 11

The 1988 Rules did not expressly confer power on an arbitral tribunal to grant interim measures. However, the parties to an arbitration agreement were at liberty to so empower the tribunal expressly in their agreement12 or in the terms of reference. Where they did not do this, certain ICC arbitral tribunals took the view that their jurisdiction was based on an implied power deriving from Article 8(5) of the 1988 Rules, 13 sometimes in conjunction with Article 11 or 24 of such Rules. 14

In one case, where there was no provision in either the parties' agreement or the terms of reference for power to grant interim or conservatory measures, a request to an arbitral tribunal for such measures was construed as a new claim and denied. 15 In another case, however, the following view was taken: 16

It follows from the purpose of interim measures that the factual grounds for granting them often develop only in the course of the arbitration, i.e. after the Terms of Reference [Page33:] have been signed. `Making the arbitrators' authority dependent on whether a rider to the Terms of Reference is signed where the application for the interim measure is included, would not be consistent with the need for an expeditious decision as is often necessary in the field of interim measures. Art. 16 of the [1988] ICC Rules has to be interpreted in the sense that riders to the Terms of Reference are only requested with respect to new claims on the merits, not to (new) applications for interim measures. [Emphasis added.]

II. Types of measures

The new ICC Rules empower the arbitral tribunal to grant any interim or conservatory measure it 'deems appropriate'. 17 It is clear from this expression that arbitral tribunals have very wide discretion in determining the appropriate measure. 18 Some examples of the kinds of measures that have been granted to date are injunction, 19 injunction coupled with a fine, provisional payment, security for costs, security for payment, and appointment of an expert. Requests for a Mareva injunction20 or a post-award attachment, 21 on the other hand, have been denied because of the contractual nature of arbitration.

One arbitral tribunal ruled that an injunction coupled with a fine was consistent with the Rules. 22

In two cases, provisional payments were granted by taking into consideration the principles laid down by French law. 23 In one of the cases, 24 the award required security to be provided by the party in whose favour the payment was to be made. However, in a further case, an arbitral tribunal refused to admit provisional payment, taking the view that it would be 'premature' in the circumstances to do so. 25

As far as granting security for costs is concerned, it was held in one case that under the 1988 Rules26 there was no restriction upon doing so, although in the case in question the application was rejected for lack of grounds. 27 In another case, involving a dispute between a corporation based in Panama and two Yugoslavian state enterprises, the respondents asked for security for costs, arguing mainly that they might not be able to enforce a possible award in their favour against the Panamanian corporation. The arbitral tribunal dismissed the request, taking the view that, as the respondents knew the identity of their contractual partner, they were aware or should have been aware of possible difficulties they might encounter if they were to enforce any award against it. According to the tribunal, a respondent's failure to take the identity of its contractual partner into consideration when making the contract is, in general, justification for dismissing such a request. 28

As for security for payment, this was usually held as being unregulated under the previous versions of the Rules. However, two arbitral tribunals came to the opposite conclusion by applying the principles set forth in the law of the place of arbitration. 29[Page34:]

III. Requirements for the granting of interim measures by arbitral tribunals

When granting interim measures, ICC arbitrators usually consider whether the following three requirements are fulfilled, in full or in part: 30

· prima-facie establishment of a case, 31

· urgency, 32 and

· irreparable harm, or serious or actual damage, if the measure requested is not granted. 33

Arbitral tribunals may make the grant of an interim measure subject to the deposit of security for damages. 34 However, if a tribunal cannot grant an interim or conservatory measure without examining the merits of the case, it may refrain from doing so, in order not to pre-judge on the merits. 35 Other instances in which ICC arbitral tribunals have not granted interim measures are where the applicant did not have 'clean hands', 36 or where the tribunal could not 'monitor any order made'. 37 The tribunal may also dismiss the application if the measure requested is not capable of preventing the alleged harm. 38

Apart from the above, an opposite party's 'undertaking' or 'declaration' not to infringe the right being defended may suffice to deny a request for a measure. 39

IV. The relationship between judicial authorities and arbitral tribunals in the granting of interim measures

Pursuant to Article 23(2) of the 1998 Rules, parties to ICC arbitration may apply to a judicial authority for interim or conservatory measures. 40 The Secretariat of the ICC International Court of Arbitration must be notified of any such application. As regards the interplay between the jurisdiction of the arbitral tribunal and that of any judicial authority to which such an application might be made, a distinction should be made between two different stages of the arbitral process.

A. Prior to transmission of the file to the arbitral tribunal

At this stage, pursuant to Article 23(2), parties are at liberty to apply to a court for interim or conservatory measures. Thus, any application to a judicial authority for such a measure may not be deemed to be an infringement or waiver of the parties' agreement to arbitrate. In case 6023, 41 in answer to the respondent's argument that [Page35:] the claimant had implicitly waived the arbitration clause by bringing an action in a state court which allegedly required the claimant 'to commence proceedings on the substance of the case before that court', the tribunal held that: 'in submitting an application for a garnishee order to the Courts of . . . the Claimants have not renounced their right to rely on the Arbitration Clause but wished to obtain a conservatory measure authorised by Article 8 of the Rules of Arbitration'. A similar stance was taken in case 656642 with regard to the interrelationship between the arbitration agreement and an action in French state courts for the prevention of payment of a guarantee.

B. After transmission of the file to the arbitral tribunal

At this stage, the parties may apply to a court only 'in appropriate circumstances'. In other words, 'once the arbitrators have been seized of the file, application for interim or conservatory measures should normally be addressed to them'. 43 This principle is a contractual arrangement subject to mandatory principles of the applicable law. The expression 'appropriate circumstances' is used in the 1998 Rules in preference to that of 'exceptional circumstances' used in the former version. Although the Rules themselves do not elaborate, it would be appropriate to argue that what is exceptional is also appropriate.

It is the judicial authority to which the application is made that usually interprets the meaning of the expression 'appropriate circumstances'. In other words, the determination of 'exceptional [appropriate] circumstances' will be made 'by the competent authorities in accordance with their local law'. 44 Where the circumstances are not appropriate, any application to a judicial authority for a measure may be deemed to be an infringement or even a waiver of the right to arbitrate. As such infringement or waiver may give rise to damages, the interpretation of the term 'appropriate' is important.

The circumstances are appropriate45 where (i) the request is for an interim measure, 46 (ii) there is urgency, (iii) an arbitral tribunal does not have power to grant the measure requested, 47 or is paralyzed or unable to operate. 48

The circumstances will not be appropriate where the application to a court for interim measures may cause harm to the opposite party. The arbitral tribunal may be asked to grant compensation for such harm. In case 5650, 49 the tribunal held as follows:

[T]he Respondent violated clearly Article 8, par. 5 of the [1988] ICC Rules for arbitration and [the agreement to arbitrate]. Consequently, the costs of the arbitration fixed by the Court . . . have to be borne entirely by the Respondent.

In case 8887, 50 the arbitral tribunal found that the respondent did not abide by its agreement not to take any further action in the local courts. Rightly considering such conduct to be in breach of the agreement to arbitrate, the tribunal awarded the claimant proven costs in connection with the local court action.

Case 8445 offers a contrasting example. Here, the respondent asked for damages in connection with local court proceedings after winning an appeal from an injunction [Page36:] made against it at the request of the claimant. The tribunal, in its final award, ruled as follows:

With respect to the lawsuit commenced by the Claimant before the local court . . ., such lawsuit was ostensibly for conservatory relief only . . . Such application for conservatory relief is specifically authorized under the ICC Rules (see ICC Rules, Art. 8.5), and cannot be considered, in and of itself, a breach of the Agreement [to arbitrate]. The local court . . . initially granted the injunction requested . . . Upon appeal, the Appellate Court vacated such decision, and dismissed the application. The Appellate Court, presumably in accordance with that court's discretion and local rules of procedure, determined that no costs be assessed . . . It is not within the purview of this Arbitral Tribunal's authority to reconsider, or take other decisions with respect to, such court-related costs. [Emphasis added.]

Another aspect of the interplay between the jurisdiction of judicial authorities and that of arbitral tribunals51 is the reconsideration of the local court's decision on interim measures. In case 7589, the respondent requested compensation in connection with attachments obtained against it in Germany (before a request for arbitration had been filed) and in Italy (during the arbitration proceedings). In its final award, the arbitral tribunal dismissed 'the counterclaim on the merits, finding that it would not normally be a breach of contract for a party to request, in good faith, a state court having jurisdiction over the matter to grant interlocutory measures, and that the grant of such a decree in due form by competent state tribunal would prima facie be a defense to a claim of breach'. 52 (Emphasis added.)

In case 7536, the arbitral tribunal was asked to determine if the attachment obtained from the local court had 'raison d'etre' in light of evidence that arose in the hearings suggesting that the invoices upon which the attachment was based had been paid. It held as follows: 53

It is a fact the Arbitral Tribunal has decided that out of the total of these invoices, only an amount of . . . was due by [respondent] to [claimant]. However, the Arbitral Tribunal has no jurisdiction to draw the consequences of that situation on the maintenance of the Attachment, a power which lies within the jurisdiction of the Italian courts. [Emphasis added.]

A further and final aspect of the interplay between judicial authority/arbitral tribunal jurisdiction is whether or not parties may exclude the jurisdiction of judicial authorities to grant interim measures. In case 7589, 54 the tribunal held that 'parties may, subject to requirements of ordre public, by contract agree not to present requests for provisional measures to a court of competent jurisdiction . . .'

Conclusion

From this survey it may be seen that (i) arbitral tribunals are empowered to grant interim and conservatory measures; (ii) ICC arbitral tribunals may grant any appropriate interim measure; (iii) ICC arbitral practice may offer useful guidance in determining the requirements for the granting of interim and conservatory measures by arbitral tribunals; and (iv) such practice throws light on the jurisdictional relationship between judicial authorities and arbitral tribunals.

ICC arbitral practice in relation to interim measures will undoubtedly continue to offer guidance to other international tribunals in handling requests for such measures.

1
Interim and conservatory measures are commonly referred to as interim measures of protection, interim or provisional relief/remedies, or provisional and/or protective measures. For the purpose of this survey, the expressions 'interim measures' and 'conservatory measures' will be used interchangeably.

2
UNCITRAL Secretariat report 'Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration', UN Doc. A/CN.9/264 (25 March 1985), see H. M. Holtzman & J. E. Neuhaus, A Guide To The UNCITRAL Model Law On International Commercial Arbitration: Legislative History and Commentary (1989) at 542.

3
The 1927 version of the Rules of Arbitration was silent on interim measures.

4
These Rules replaced those of 1988. For more information on interim measures under the new Rules see, e.g., W. L. Craig, W. W. Park & J. Paulsson, Craig, Park & Paulsson's Annotated Guide to the 1998 ICC Arbitration Rules with Commentary (1998); and Y. Derains & E. A. Schwartz, A Guide to the New ICC Rules of Arbitration (1998).

5
Article 23(1) of the 1998 Rules reads:'Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate.'

6
Unless otherwise provided by the parties, whether the decision should be rendered as an order or an award is at the discretion of the arbitral tribunal. See final award (1989) in case 5804, extracts from which were published in 4:2 ICC ICArb. Bull. (1993) 76 (the interim measure requested was sought in the form of an award, but the tribunal granted an order). In two other cases, although the measures requested to maintain the status quo were originally sought in the form of awards or orders, the tribunal in one case 'recommended' and in the other 'proposed' the requested injunction in their awards (Recommendation: final award (1991) in case 5887, which reports that the arbitral tribunal 'recommended the defendants to formally renounce from calling the bank guarantee pending the arbitration proceedings'. Proposal: see preliminary award (1982) in case 3896 (published extracts: 110 J.D.I. (1981) 914, 10 Y.B. Comm. Arb. (1985) 47, S. Jarvin & Y. Derains, Collection of Arbitral Awards 1974-1985 (1990) 161). For orders incorporated into awards, see final award (1989) in case 5804 (published extracts: 4:2 ICC ICArb. Bull. (1993) 76), and final award (1993) in case 7489 (published extracts: 120 J.D.I. (1993) 1078; 8:2 ICC ICArb. Bull. (1997) 68). On the form of an interim measure, see also 'Final Report on Interim and Partial Awards' of a Working Party of the ICC Commission on International Arbitration (1990) 1:2 ICC ICArb. Bull. 26.

7
Article 23(1) of the 1998 Rules.

8
E. A. Schwartz, 'The Practices and Experience of the ICC Court', in Conservatory and Provisional Measures in International Arbitration, (ICC, 1993 (ICC Publication No. 519)) 45.

9
This represents a marked increase on the number of awards on interim measures in the earlier survey, which dealt with around 25 awards (ibid., at 47). The increase in the number of awards on interim measures testifies to their extensive usage and the importance of this subject.

10
See, e.g., first interim award (1988) in case 5835 (published extracts: 8:1 ICC ICArb. Bull. (1997) 67), and award (1980) in case 3540 (published extracts: 108 J.D.I. (1981) 914; 7 Y.B. Comm. Arb. (1982) 124, at 129130; S. Jarvin & Y. Derains, Collection of Arbitral Awards 19741985 (1990) 105 and 399).

11
E.g. interim award (1997) in case 9301.

12
See, e.g., interim award (1995) in case 7692 (published extracts: ICC ICArb. Bull., this issue, infra 62).

13
See, e.g., first interim award (1988) in case 5835 (published extracts: 8:1 ICC ICArb. Bull. (1997) 67).

14
See second interim award (1996) in case 7544 (published extracts: ICC ICArb. Bull., this issue, infra 56), referring to Article 8(5) combined with Article 11 giving power to determine the procedural rules governing the arbitration; and interim award (1993) in case 6632, referring to Article 8(5) combined with Article 24 demonstrating that the parties, in referring their case to arbitration, undertook to comply with the arbitral award rendered at the end of the proceedings.

15
Interim award (1991) in case 6553. The arbitration clause in the parties' agreement was very similar to the ICC standard clause.

16
Second interim award (1992) in case 5835.

17
Article 23(1) of the 1998 Rules.

18
Derains & Schwartz, op. cit. supra note 4 at 274.

19
See, e.g., partial award (1999) in case 10040 (published extracts: ICC ICArb. Bull., this issue, infra 115).

20
Interim award (1990) in case 6251 (holding that the tribunal does not have authority to issue a Mareva injunction).

21
Final award (1995) in case 7828: 'It exceeds the arbitrator's competence to subject the Defendant to attachment if he fails to pay the ordered amount within the period of two weeks. This request is therefore rejected.'

22
Final award (1994) in case 7895 (published extracts: ICC ICArb. Bull., this issue, infra 64). A similar approach is taken by the tribunal in interim award (1997) in case 9301.

23
See second interim award (1996) in case 7544 (published extracts: ICC ICArb. Bull., this issue, infra 56) and interim awards (1995, June & December 1996) in case 8670 (published extracts: ICC ICArb. Bull., this issue, infra 77).

24
Case 7544.

25
Second partial award (1994) in case 5808.

26
Under the 1998 Rules, the language of Article 23(1) ('any interim or conservatory measure it deems appropriate') empowers a tribunal to grant security for costs.

27
Final award (1993) in case 7489 (published extracts: 120 J.D.I. (1993) 1078; 8:2 ICC ICArb. Bull. (1997) 68; D. Hascher, Collection of Procedural Decisions in ICC Arbitration 1993-1996 (1997) 48).

28
See final award (1994) in case 7047 (published extracts: 8:1 ICC ICArb. Bull. (1997) 61).

29
In the interim award of 1996 in case 8786 (published extracts: ICC ICArb. Bull., this issue, infra 81), security for payment was granted on the ground that the law of the place of arbitration allowed this; whereas in the final award of 1990 in case 7560, security for payment was refused on the ground that the law of the place of arbitration did not provide for this.

30
Interim award (1997) in case 9301, second partial award (1995) in case 8113 (published extracts: ICC ICArb. Bull., this issue, infra 65), final award (1989) in case 5804 (published extracts: 4:2 ICC ICArb. Bull. (1993) 76), and second interim award (1992) in case 5835. In the interim award of 1996 in case 8786 (published extracts: ICC ICArb. Bull., this issue, infra 81), the tribunal applied local standards, which were very similar to those applied in other awards.

31
Interim award (1997) in case 9301, final award (1989) in case 5804 (published extracts: 4:2 ICC ICArb. Bull. (1993) 76), and first interim award (1997) in case 8894 (published extracts: ICC ICArb. Bull., this issue, infra 94).

32
See, e.g., second partial award (1995) in case 8113 (published extracts: ICC ICArb. Bull., this issue, infra 65).

33
Idem.

34
See first interim award (1988) in case 5835 (published extracts: 8:1 ICC ICArb. Bull. (1997) 67), and second interim award (1996) in case 7544 (published extracts: ICC ICArb. Bull., this issue, infra 56).

35
See first interim award (1997) in case 8894 (published extracts: ICC ICArb. Bull., this issue, infra 94), second partial award (1995) in case 8113 (published extracts: ICC ICArb. Bull., this issue, infra 65), and partial award (1982) in case 3896 (published extracts: 110 J.D.I. (1983) 914; 10 Y.B. Comm. Arb. (1985) 47; S. Jarvin & Y. Derains, Collection of ICC Awards 1974-1985 (1990) 161 and 480).

36
See interim award (1996) in case 8786 (published extracts: ICC ICArb. Bull., this issue, infra 81).

37
See final award (1994) in case 7210 (published extracts: ICC ICArb. Bull., this issue, infra 49).

38
See final award (1993) in case 7489 (published extracts: 120 J.D.I. (1993) 1078; 8:2 ICC ICArb. Bull. (1997) 68; D. Hascher, Collection of Procedural Decisions in ICC Arbitration 19931996 (1997) 48).

39
See, e.g., interim award (1995) in case 7692 (published extracts: ICC ICArb. Bull., this issue, infra 62).

40
Article 23(2) of the 1998 Rules: 'Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof.'

41
Interim award (1989) in case 6023.

42
Partial award (1993) in case 6566 (published extracts: ICC ICArb. Bull., this issue, infra 48). See also final award (1989) in case 5650 (published extracts: 16 Y.B. Comm. Arb. (1991) 85; J. J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (1997) at 34), and final award (1996) in case 8325 (published extracts: ICC ICArb. Bull., this issue, infra 74).

43
Schwartz, op. cit. supra note 8 at 54-55, quoted by the arbitral tribunal in its second partial award (1995) in case 8113 (published extracts: ICC ICArb. Bull., this issue, infra 65).

44
Interim award (1996) in case 8786 (published extracts: ICC ICArb. Bull., this issue, infra 81).

45
For examples of inappropriate circumstances, see first interim award (1988) in case 5835 (published extracts: 8:1 ICC ICArb. Bull. (1997) 67).

46
See supra Part II. However, an application to a court for a permanent injunction may be held to be a waiver of the right to arbitrate. See interim award (1991) in case 5896 (published extracts: ICC ICArb. Bull., this issue, infra 37).

47
The power of an arbitral tribunal to grant interim measures is not limitless. As a result of the contractual nature of arbitration, a tribunal would not grant an interim measure where the measure is requested against a third party to arbitration. See final award (1998) in case 9324 (published extracts: ICC ICArb. Bull., this issue, infra 103), where it was held that the tribunal did not have jurisdiction over a commercial bank which was not a party to a sale/purchase agreement under which a dispute arose. In addition, as an arbitrator lacks direct coercive power, a tribunal may not grant post-award relief. With respect to the power to grant attachments, see final award (1994) in case 7589 (published extracts: ICC ICArb. Bull., this issue, infra 60) and final award (1995) in case 7828 (see supra note 21).

48
Where, for instance, the tribunal is not yet formed or the sole arbitrator or chairman has died.

49
Final award (1989) in case 5650 (published extracts: 16 Y.B. Comm. Arb. (1991) 85; J. J. Arnaldez, Y. Derains & D. Hascher, Collection of ICC Arbitral Awards 1991-1995 (1997) 34).

50
Final award (1997) in case 8887 (published extracts: ICC ICArb. Bull., this issue, infra 91).

51
See, generally, Schwartz, op. cit. supra note 8 at 57.

52
Final award (1994) in case 7589 (published extracts: ICC ICArb. Bull., this issue, infra 60). The arbitral tribunal further held as follows: 'No evidence has been submitted by [respondent] showing abuse of the judicial process by [claimant], or otherwise rebutting the prima facie validity of [claimant's] action.'

53
Final award (1996) in case 7536 (published extracts: ICC ICArb. Bull., this issue, infra 52). See also, in this connection, first interim award (1988) in case 5835 (published extracts: 8:1 ICC ICArb. Bull. (1997) 67).

54
Final award (1994) in case 7589 (published extracts: ICC ICArb. Bull., this issue, infra 60).