This article is based on a review of a selection of twenty-five ICC arbitral awards rendered between 1999 and 2008 in which ICC arbitral tribunals ordered interim or conservatory measures (ten cases) or refused to do so (fifteen cases). It provides an overview of the issues dealt with in these awards and comments on such matters as jurisdiction to order interim relief, the nature of interim and conservatory measures, and the circumstances in which such measures may or may not be granted. The article also identifies the principal categories of interim and conservatory measures ordered by ICC arbitral tribunals-injunctions (including anti-suit injunctions); security for claims, costs and interim measures; and attachments.

Cet article est issu d'un examen d'une sélection de vingt-cinq sentences arbitrales de la CCI rendues entre les années 1999 et 2008, dans lesquelles le tribunal arbitral a soit ordonné une ou plusieurs mesures provisoires ou conservatoires (dix affaires) soit s'en est abstenu (quinze affaires). L'article donne un aperçu des questions traitées dans ces sentences et aborde, entre autres sujets, la compétence pour ordonner des mesures provisoires, la nature des mesures provisoires et conservatoires et les conditions dans lesquelles de telles mesures peuvent ou non être ordonnées. Cet article recense également les principales catégories de mesures provisoires et conservatoires ordonnées par des tribunaux arbitraux de la CCI, dont l'injonction (y compris l'anti-suit injunction interdisant de poursuivre une action en justice) ; les sûretés en garantie de demandes, de frais ou de mesures provisoires ; et la saisie-arrêt.

Este artículo se basa en el análisis de una selección de 25 laudos de la CCI dictados entre 1999 y 2008 en los que los tribunales arbitrales de la CCI ordenaron medidas provisionales o cautelares (10 casos) o se abstuvieron a hacerlo (15 casos). El artículo ofrece una visión general de los asuntos tratados en estos laudos y aborda cuestiones como, por ejemplo, la competencia para dictar medidas provisionales, la naturaleza de las medidas provisionales y cautelares y las circunstancias en las pueden concederse o no dichas medidas. Finalmente, el artículo también menciona las principales categorías de medidas provisionales y cautelares ordenadas por los tribunales arbitrales de la CCI: los requerimientos, incluyendo los anti-suit injunctions (mandamientos de no entablar acciones o actuaciones judiciales); las garantías para demandas, costas o medidas provisionales y, por último, los embargos.

Introduction

Interim and conservatory measures1 are generally designed to protect the status quo, evidence and the rights and interests of the parties involved in a case.2 They are considered temporary in nature and are granted without prejudice to the decision on the substance of the dispute.3

Today, interim measures of protection are considered an important tool or strategic weapon in international arbitration practice.4 Indeed, the fact5 that nearly all versions of the ICC Rules of Arbitration ('ICC Rules') since their creation in 1922 have dealt with the issue of conservatory and interim measures is in itself a demonstration of their importance. The 2012 ICC Rules deal with conservatory and interim measures in Article 28,6 which reads as follows: [Page6:]

Conservatory and Interim Measures

1. 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.

2. 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.

The above provision is almost identical to its predecessor, Article 23 of the 1998 ICC Rules. However, Article 23 differed substantially from its predecessor, Article 8(5) of the 1988 ICC Rules, which read:

Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures, and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator.

Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat of the International Court of Arbitration. The Secretariat shall inform the arbitrator thereof.

The Bulletin has in the past published three articles7 on interim measures of protection in ICC arbitral practice. In 2000 it published, alongside two of these articles, a collection of extracts from ICC awards referring to interim and conservatory measures.8 Since then, further awards have been rendered on the subject. The present contribution is based on a study of twenty-five9 of these awards, considered to be amongst the most pertinent. Extracts from sixteen of those awards are published in the present Supplement.

The question immediately arises as to what influence such awards have on other ICC arbitral tribunals. Although there is no such thing as precedent in international arbitration, previous awards are generally considered persuasive10 or at least a source of guidance for arbitral tribunals in subsequent cases. The extracts from awards on interim measures reproduced as part of the present survey will therefore serve as useful material for arbitral tribunals to consult. In case 12361, the tribunal noted that 'the standards elaborated by other ICC arbitral tribunals are in no way binding upon it', yet it had regard to such standards when ruling on the request for interim measures of protection filed in the case.11 Studies and awards on interim measures are also extremely useful for academic purposes given that it is generally difficult to access such primary material.

Six important issues concerning interim measures are raised in the awards: (i) arbitral jurisdiction to grant interim measures, (ii) types of measures, (iii) requirements for granting such measures, (iv) compliance with interim measures ordered by arbitral tribunals, (v) costs of proceedings relating to interim measures, and (vi) the relationship between arbitral tribunals and courts with respect to the granting of interim measures. [Page7:]

I. Jurisdiction of arbitrators to grant interim measures

Arbitrators first look to the agreements of the parties as the source of their powers to grant interim measures.12 However, it is rare for party agreements to contain express provisions on powers to order interim measures.13 If the agreements of the parties are silent on this matter, arbitrators will look to the ICC Rules of Arbitration.14 Lastly, they will check the law at the place of the arbitration.15 Since the ICC Rules of Arbitration (both the 1998 and the 2012 Rules) expressly give the arbitral tribunal such powers, it is particularly important to ascertain whether the law at the place of arbitration contains any provisions prohibiting or limiting the exercise of those powers.16

The power to grant interim measures of protection naturally includes also the power to amend any measure granted.17 An interim measure may be amended when the circumstances that caused the interim measure to be granted have changed. This is explained by the fact that an interim measure of protection is of a temporary nature and is always subject to a subsequent or final decision on the rights and interests of the parties involved in arbitration.

Arbitral powers to order interim measures do not, on the other hand, extend to issues that fall outside the scope of the arbitration agreement or to third parties not bound by that agreement. 18

Another important issue in respect of arbitrators' powers to grant interim measures is whether or not an interim measure of protection already granted by a court would have res judicata effect with respect to an interim measure requested from an arbitral tribunal. In response to this question, the arbitral tribunal in case 10021 rightly indicated in its 1999 interim award:

The main characteristics of provisional measures is that they 'are temporary in nature, their effects being limited by the purpose of assuring a specified protection until the time of the award (hence, their being "provisional")', thus conservatory measures, granted in either arbitral or court proceedings, can be changed throughout the proceedings due to the change of determining facts.19

II. Types of measures

The ICC Rules empower the arbitral tribunal to grant any interim and conservatory measure it 'deems appropriate'.20 The Rules do not specify what kinds of measures may be granted, leaving the arbitral tribunal with wide discretion. In the partial award (2001) in case 10681, the sole arbitrator listed as possible interim and conservatory measures orders intended to:

• preserve the status quo of the subject matter of the arbitration;

• preserve evidence;

• provide security for costs;

• instruct a party to refrain from a given activity or conduct.21

Without going as far as issuing a formal order, an arbitral tribunal may send a warning to similar effect, as in the partial award (2002) in case 12122:

The arbitral tribunal wishes to call the parties' attention to the fact that they should refrain from any action likely to widen or aggravate their dispute, or to complicate the task of the tribunal or even to make more difficult, one way or another, the observance of the final award . . .22

To avoid the future aggravation of the dispute, the arbitral tribunal warned the parties that it would take into consideration 'the consequences of the parties' respective conduct'.23

Types of interim and conservatory measures typically requested are injunctions, anti-suit injunctions, security, and attachments.

A. Injunctions

Injunctions, ordering parties to do or refrain from doing something, are the most common form of interim measures of protection.24 An example of a restraining injunction is found in the interim award (2003) in case 12361, where the tribunal stated:

The tribunal therefore accepts, by this interim award, to order and direct the Respondent not to dispose of, sell or create encumbrances over the equipment supplied to it by the Claimant . . .25[Page8:]

The partial award (2002) in case 11866 provides an example of a compelling injunction, requiring the respondent to deposit with the ICC its unpaid share of the advance on costs, for which the claimant had provided a bank guarantee in substitution:

The tribunal considers that it has authority under Article 23 of the Rules [of Arbitration of 1998] to order Respondent to remedy its breach of the arbitration clause during the pendency of these proceedings. Consequently, using its discretion, and without prejudice to its ultimate decision as to the costs of arbitration, the tribunal hereby orders Respondent to transfer to the Secretariat of the ICC, within 15 calendar days from the notification of this Award, the sum of . . . as its share of the advance on costs, and to do whatever is necessary to obtain the release by the ICC of the bank guarantee issued at the Claimant's request. It goes without saying that this order does not in any way affect the power of the Court or of the Secretariat to administer the financial aspects of this arbitration.26

Broadly speaking, the ordering of an interim payment is also considered to be a type of injunction. In the interim award (2003) in case 12196, the tribunal granted the request for an interim payment,27 whereas in the partial award (2004) in case 12553 the arbitrator rejected the application for an interim payment on the ground that the applicant would not suffer irreparable damage if the measure were not granted and there was no urgency for such relief.28 In contrast, in the partial award (2002) in case 11857, the tribunal ordered payment not as an interim measure, as requested, but as a partial substantial remedy after recharacterizing the request:29

The arbitral tribunal refers to the explanations and additional information provided by [Respondents] at the hearing on . . . 2002 in respect of the purpose and scope of [their] request. On this basis, it considers that the request initially characterized by [Respondents] as a 'request for interim measures' is . . . a counterclaim for a final ruling ordering [Claimants] to pay provisional sums calculated in accordance with the provisions of Article 10.6 (i) of the Agreement . . .

B. Anti-suit injunctions

Controversy reigns over whether arbitrators can order anti-suit injunctions, requiring a party to refrain from pursuing a remedy in a state court. A tribunal affirmed that this was possible, and even necessary, in a case where an action brought before a state court was patently beyond the court's jurisdiction and 'therefore abusive'.30 Similarly, another tribunal ordered an anti-suit injunction on the basis that the court action could result in damage to a party and 'materially affect the practical effectiveness of the ongoing arbitration proceedings and compromise the subject matter of the arbitration'.31

C. Security for claims/costs/interim measures

There are three types of security that can be granted as interim measures of protection in arbitration: security for claims, security for the costs of the arbitration, and security for interim measures to ensure funds are available to pay possible future damages.

In case 8307, after assessing the circumstances of the case, the tribunal ordered security as follows:

[Respondent 1] shall within thirty days from the date of this Interim Award put up a security in favour of [Respondent 2] in the amount of . . . in the form of a guarantee issued by a first class bank having offices in Geneva (the place of arbitration). The guarantee shall upon presentation to the issuing bank of a copy of the Final Award certified by the ICC Court of Arbitration under Art. 23(2) of the Rules be payable in such of the amount of [Respondent 2]'s . . . claim against [Respondent 1] as the Final Award shall have granted.32

The amount granted as security corresponded to the amount of the debt that had been acknowledged by Respondent 1 towards Respondent 2.33

In case 9950, the tribunal rejected a request by the Respondent for an interim measure to facilitate the enforcement of a final award in its favour:

we consider that the Respondent has failed to establish, at this stage of the procedure, a sufficient degree of risk that the Claimant will not have sufficient assets to meet an award against it to justify the measures sought.34[Page9:]

In case 11399, the tribunal likewise refused to grant a request for security for costs based on the argument that the other party was established in a foreign country. The arbitral tribunal held that the distinction between a foreign and a non-foreign party was inappropriate in international arbitration:

If such a distinction can be made under the municipal procedural law of each single state, it is far more difficult, if not impossible, to maintain the same distinction in international arbitration proceedings. Such proceedings are to a large extent disconnected from any national jurisdiction.35

In another case, the tribunal rejected the request for security for costs on the ground that the applicant could not prove the existence of an exceptional situation necessitating a cautio judicatum solvi.36

As far as security for interim measures is concerned, Article 23(1) of the 1998 ICC Rules (now Article 28(1) of the 2012 Rules) clearly allowed arbitrators to order such security if the circumstances were appropriate. In the interim award (2003) in case 12196, the tribunal rejected the request for security by the party in whose favour an interim payment was ordered as an interim measure of protection. In so doing, the sole arbitrator evaluated the circumstances and ruled as follows:

without expressing any definitive view on the outcome of the arbitration, the Respondent has not established on this application a sufficient evidential basis for its allegations to enable me to conclude that its defences or counterclaim 'will in every likelihood succeed'. The Claimant is accepted to be a substantial company and there is no reason to doubt that, if it fails by the final award to recover the sum of [the deposited amount] it will return the same to the Respondent.37

D. Attachments

Arbitrators generally lack the power to order attachments, as confirmed in the 1999 interim award in case 10021:

In the present case Claimant has specifically requested the arbitral tribunal to issue an interim conservatory award ordering Respondents to refrain from the further transferring their assets. The arbitral tribunal has decided to issue an award on conservatory measures . . . but has found it inappropriate to grant requests of attachment where the power of national courts would be a prerequisite . . . This is particularly the case when security is sought by immobilizing real estate and other in rem measures requiring cooperation of official national bodies such as land or company registries.38

III. Requirements for ordering interim measures

Like many arbitration laws and rules, the ICC Rules do not specify under what conditions arbitral tribunals may order interim measures. To determine these conditions, arbitrators generally look to trends in arbitration, the law at the place of the arbitration and scholarly writings.39

It is generally accepted that the granting of an interim measure generally presupposes an urgent need for interim protection.40 As for other requirements, it is useful to consider the approaches of various arbitral tribunals. In its partial award of 2001 in case 10681, the arbitral tribunal set out the following list of requirements for granting interim measures:

a) threat of grave or irreparable damage to the counterparty in the arbitration proceedings;

b) threat of grave or irreparable damage to the tribunal's jurisdiction; and/or

c) the preservation of the status quo of the arbitration so as to protect the subject matter from conduct which might render the outcome of the arbitration proceedings useless.41

Similarly, in the interim award of 2001 in case 11225, the sole arbitrator ruled that in order to grant interim measures:

the arbitrator must satisfy himself that irreparable harm would be caused to Claimant and that the measures are urgent; the arbitrator also has to be convinced of the likelihood of success of Claimant's position on the merits.42

Ruling on a request to prohibit payment of an on-demand guarantee, the arbitral tribunal in case 12122 stated as follows in its partial award of 2002:

An on-demand guarantee may be called pending the final outcome of the dispute. French law, as the governing law, contractual and arbitral, allows arbitral tribunals to issue interim or protective measures in order to forbid payment of a guarantee, especially in case of urgency or risk of imminent damage.43[Page10:]

The arbitral tribunal in case 13194 gave the following list of conditions for granting interim measures:

a party seeking interim relief must demonstrate urgency and irreparable harm and that no pre-judgment of the merits of the dispute is involved in order to warrant relief before a final award is granted.44

In case 12040, the arbitral tribunal noted that a trend had emerged in ICC arbitral practice according to which the following three main requirements had to be met for the granting of interim measures of protection: no pre-judgment of a case, urgency and irreparable or substantial harm.45

In case 12361, after considering ICC arbitral practice and scholarly opinion, the arbitral tribunal concluded that

in considering whether to order such measures, ICC arbitrators have most frequently required a showing of the need for such measures as a matter of 'urgency' or in order to prevent 'irreparable' or otherwise substantial harm to the applying party.46

This last approach seems to sum up the current trend in ICC arbitration. However, it should be noted that 'substantial harm' is to be understood as meaning a sufficient degree of harm for it to be categorized as 'irreparable'. Otherwise, the standard for granting interim protection in ICC arbitration would be too high, meaning that interim measures could be granted only in 'exceptional circumstances'.47 The standard of 'appropriate circumstances' would seem to be better suited to the language and spirit of the ICC Rules as well as the needs of international commerce. The arbitral tribunal in case 12361 elaborated on this condition, stating that 'arbitrators must endeavour to balance the relative harm to each party that may or may not flow from the granting or denial of the measures requested'.48

It must further be noted that ICC arbitral tribunals have generally refrained from ordering interim relief when doing so 'would be equivalent to pre-judging the merits of the case'.49 To avoid this risk, any review of the merits undertaken when granting or refusing an interim measure should undoubtedly be done on a prima facie basis.50 It may be noted that whenever a substantial remedy is sought that alters the agreement of parties or their contractual obligations, the request is refused.51

When it comes to granting security for claims or for costs, a number of other special requirements must be met, as pointed out in case 8307:

In the particular case of an order to provide security for compliance and for costs, such relief is justified if based on special circumstances. Firstly, the financial standing of the party from whom security is requested must be so precarious as to warrant fear that the party will not be able to fulfil its obligations resulting from the arbitral tribunal and to reimburse the costs incurred by the other party in the course of the arbitration should the arbitral tribunal order reimbursement. Secondly, the merits of the claim in respect of which security is requested must have been sufficiently established . . .52

IV. Compliance with interim measures ordered by arbitral tribunals

Arbitrators are not generally given coercive powers to enforce their decisions on interim measures. As noted by one arbitral tribunal, 'the arbitral tribunal lacks imperium to ensure compliance of a party with an interim or conservatory measure'.53 However, arbitrators have at their disposal other means of forcing a party to comply with their decisions on interim measures.54 For instance, although not expressly requested, the arbitrator in case 8307 noted that if the anti-suit injunction directed at one of the respondents were not complied with, 'relief for damages resulting from such breach of the agreement to arbitrate might possibly be sought in this arbitration'.55[Page11:]

V. Costs of interim measure proceedings

In most of the awards studied, the issue of costs for handling interim measure requests was expressly reserved for the final award. Some of the decisions were silent on the issue. Even in such cases, there is no doubt that an arbitral tribunal's power to decide on the costs of the arbitration56 in the final award should extend to the costs of any proceedings for interim measures.

VI. Relationship between arbitrators and courts

The ICC Rules allow interim measures to be sought from the arbitral tribunal or from a court (referred to more broadly as 'judicial authority').57 Parties are free to go to the courts before the case file is transmitted to the arbitrators,58 but may do so thereafter only in 'appropriate circumstances'.59

Arbitrators are generally reluctant to interfere with the jurisdiction of the courts in respect of interim measures. For instance, in case 13194 the tribunal refrained from interfering with a court order preventing the expert appointed by the ICC International Centre for Expertise from publishing his report.60 However, in cases where parallel proceedings for interim relief are pending in the courts, such proceedings should not restrict the power of arbitrators to grant interim measures of protection.61

Conclusion

Interim measures of protection are no less important than the final protection of a party's rights. They play a crucial role in preventing or minimizing any disadvantage that might be caused by the sometimes lengthy period before a dispute is finally settled and the result implemented. The awards reviewed clearly show that arbitrators have no difficulty exercising the power the ICC Rules give them to order interim measures. To enhance the quality of the service provided to parties, it is imperative that this power be used effectively. To that end, as demonstrated in the awards reviewed, valuable guidance can be found in the growing body of case law and scholarly writings on the subject.

1
Commonly referred to as interim measures of protection, interim or provisional relief/remedies, or provisional and/or protective measures. See A. Yesilirmak, 'Interim and Conservatory Measures in ICC Arbitral Practice' (2000) 11:1 ICC ICArb. Bull. 31, note 1.

2
See J.D.M. Lew, 'Commentary on Interim and Conservatory Measures in ICC Arbitral Practice' (2000) 11:1 ICC ICArb. Bull. 23.

3
E.g. final award (2003) in ICC case 11905 [unpublished], which refers to the agreement of parties on interim measures as an agreement entered into only for interim purposes 'which shall not prejudice, in any way, the position the parties have taken in this arbitration and any possible claims for damages'.

4
J.D.M. Lew, supra note 2 at 23.

5
The exception was the 1927 version of the ICC Rules, which were silent on the issue of interim measures of protection. On the evolution of the concept of interim measures in various versions of the ICC Rules, see, e.g., A. Yesilirmak, Provisional Measures in International Commercial Arbitration (2005) 26-29.

6
Article 29 has introduced into the ICC Rules the concept of an emergency arbitrator, empowered to order urgent interim and conservatory measures prior to the transmission of the case file to arbitral tribunal.

7
Namely, the articles by A. Yesilirmak and J.D.M. Lew, cited supra in notes 1 and 2, and E.A. Schwartz, 'The Practices and Experience of the ICC Court' in Conservatory and Provisional Measures in International Arbitration, ICC Publication No. 519 (1993) 45.

8
(2000) 11:1 ICC ICArb. Bull. 37-116.

9
The awards were rendered between 1999 and 2008. In ten of these awards one or more of the requests for interim measures were granted, whereas in the other fifteen cases the requests for interim measure were denied. The actual number of decisions on interim and conservatory measures made during the period was of course higher, not only because only the most pertinent awards have been selected for this study, but also because decisions on interim and conservatory measures are sometimes made in a form other than an award (e.g. order, recommendation).

10
J.D.M. Lew, supra note 2 at 23. See also, e.g., J.D.M. Lew, 'The Case for the Publication of Arbitration Awards' in J.C. Schultz & A.J. van den Berg, eds., The Art of Arbitration (1982) 223; H.A. Grigera Naón, Editorial (1988) 5:2 International Arbitration 5; K.P. Berger, International Economic Arbitration (1993) at 509-525; and R.A. Schutze, 'The Precendential Effect of Arbitration Decisions' (1994) 11:3 Journal of International Arbitration 69.

11
Interim award (2003) in ICC case 12361, § 46.

12
E.g. final award (1999) in ICC case 10062, § 13.1; interim award (2003) in ICC case 12361, § 37.

13
One exception is case 11905 [unpublished], in which the parties concluded an 'Interim Measures Agreement'.

14
E.g. interim award (2000) in ICC case 10648; partial award (2001) in case 10681, § 6; interim award (2001) in ICC case 11399, §§ 6.2-6.3.

15
E.g. partial award (2001) in ICC case 10681, § 6; interim award (2003) in ICC case 12361, § 38.

16
In case 10021, the respondent unsuccessfully argued that the law at the place of the arbitration did not permit interim relief to be granted by the arbitral tribunal (interim award (1999), §§ 24(26).

17
E.g. interim award (1999) in ICC case 10021, § 36.

18
See final award (2000) in ICC case 10062, §§. 13.2-13.3. See also final award (2008) in ICC case 14287, IV.11, § 3, indicating that an interim measure may be binding only upon the parties to the dispute, not third parties.

19
Interim award (1999) in case 10021, § 29, citing P. Bernardini, 'The Powers of the Arbitrator' in Conservatory and Provisional Measures in International Arbitration, ICC Publication no. 519 (1993) 23.

20
Article 23(1) of the 1998 Rules and Article 28(1) of the 2012 Rules.

21
Partial award (2001) in ICC case 10681, § 10, citing G.H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) 144.

22
Partial award (2002) in case 12122 [unpublished].

23
ibid. See also interim award (2003) in ICC case 12361, § 81.

24
In ICC case 12122 [unpublished], a request to prohibit the calling of an on-demand guarantees was rejected.

25
Interim award (2003) in ICC case 12361, § 85.

26
Partial award (2002) in ICC case 11866 [unpublished].

27
Interim award (2003) in ICC case 12196, § 30.

28
Partial award (2004) in ICC case 12553 [unpublished]. The arbitrator also mentioned that urgency is another criterion for determining whether to grant interim and conservatory measures.

29
Partial award (2002) in ICC case 11857 [unpublished], translated from the original French. In the partial award (2004) in ICC case 11813, on the other hand, the arbitral tribunal appears to have used its power to render an award on interim measures to order payment of part of the amount claimed by the requesting party as the other party had accepted liability for that part of the amount.

30
Interim award (2001) in ICC case 8307, §§ 9-10. The arbitrator referred above all to ICC case 8887 (1997), [2000:1] ASA Bulletin 37.

31
Partial award (2001) in ICC case 10681, §§ 13-14.

32
Interim award (2001) in ICC case 8307, § 19.

33
ibid., § 18.

34
Interim award (2000) in ICC case 9950, § 6.

35
Interim award (2001) in ICC case 11399, § 7.5.

36
Partial award (2002) in ICC case 11798.

37
Interim award (2003) in ICC case 12196, § 34.

38
Interim Award (1999) in ICC case 10021, § 34, citing K.P. Berger, International Economic Arbitration (1993) 341.

39
In its partial award (2002) in ICC case 12040 [unpublished], the arbitral tribunal noted a trend in ICC arbitration practice 'to refer to the requirements either set by the applicable procedural law or deemed appropriate by the tribunal' when determining requirements for granting interim measures of protection.

40
E.g. interim award (2001) in ICC case 8307, § 16; interim award (2000) in ICC case 10648.

41
Partial award (2001) in ICC case 10681, § 11.

42
Interim award (2001) in ICC case 11225 [unpublished], citing M. Blessing, Introduction to Arbitration - Swiss and International Perspective (1999) 857.

43
Partial award (2002) in ICC case 12122 [unpublished].

44
Interim award (2003) in ICC case 12361, § 85, citing E.A. Schwartz, supra note 7.

45
Partial award (2002) in ICC case 12040 [unpublished], citing J.D.M. Lew, supra note 2; see also partial award (2002) in ICC case 11740.

46
Interim award (2003) in ICC case 12361, §§ 41-45.

47
ibid.

48
ibid., § 42.

49
Interim award (2001) in ICC case 8307, § 22. See also interim award (2003) in ICC case 12196, § 31; final award (2008) in ICC case 14287, IV.11, § 3.

50
E.g. interim award (2001) in ICC case 11225 [unpublished] concerning a request for interim measures enjoining a party from using a trademark and manufacturing competing machinery: 'To succeed in its request for interim relief, [Claimant] has to show convincingly that, under a prima facie review of the elements submitted to the Arbitrator, [Respondent] is under an obligation to use the trademark, logo and signs only for the sale of [Claimant]'s products, i.e. the products covered by the Distributorship Agreement.' In another case also concerning use of a trademark, the arbitral tribunal rejected the request for interim relief on the grounds that 'these issues are clearly important fundamental issues which cannot be settled by the arbitration tribunal at this stage of the proceeding' (interim award (2001) in ICC case 11055 [unpublished]).

51
See interim award (2000) in ICC case 10648; partial award (2002) in ICC 11740. The interim award (2003) in ICC case 12361, § 71, offers an interesting example of an arbitral tribunal refusing to reallocate through interim relief a risk accepted by the parties when contacting with each other.

52
Interim award (2001) in ICC case 8307, § 16, referring to Fouchard Gaillard Goldman, International Arbitration (1999) at § 1339.

53
Interim award (1999) in ICC case 10021, § 33.

54
On the force and enforceability of arbitral interim measures, see, e.g., A. Yesilirmak, supra note 5 at 237-272.

55
Interim award (2001) in ICC case 8307, § 12.

56
See Articles 37(4) and 37(5) of the 2012 ICC Rules.

57
See Article 23(2) of the 1998 ICC Rules and Article 28(2) of the 2012 ICC Rules. See also final award (2000) in ICC case 9103 confirming that the appointment of an expert by a court is not incompatible with an arbitration agreement.

58
It should be noted that, for urgent interim and conservatory measures required before the case file is transmitted to the arbitral tribunal, the 2012 ICC Rules offer the possibility of resorting to an emergency arbitrator; see Article 29 and Appendix V of the ICC Rules.

59
On the meaning of such restriction, see, A. Yesilirmak, supra note 5 at 94-97.

60
Interim award (2005) in ICC case 13194.

61
See interim award (2000) in ICC case 10648.