Introduction

Ours is an increasingly litigious society. The demand, therefore, is always more for an efficient administration of justice, which means also timely justice ("justice delayed is justice denied", as it is correctly stated). The success of arbitration, particularly in the field of transnational transactions, is due to a large extent to the fact that it constitutes - or is believed to constitute - an efficient method of resolution of commercial disputes.

However, arbitration may also result in various respects to be inadequate to meet the requirements of a society which is more and more complex, technologically advanced, and demanding in terms of practical solutions to its problems.1

An area which is susceptible to constitute a benchmark for international arbitration as an efficient method of settlement of commercial disputes is that of the conservatory and provisional measures. As a matter of fact, the increasing acceleration of economic life demands the protection of legal and economic interests on such a short-term basis, even if only provisionally, that arbitral justice may be seen as ideal to cope with this kind of problem. However, when such protection requires the exercise of coercive powers, as in the case of conservatory and provisional measures, the coming again into play of the national judge as the only authority enjoying such powers is seen as unavoidable.

This explains a certain contradiction which is experienced by the international operator when, having chosen arbitration, he is in need of one of said measures. On the one hand, in fact, the choice so made clearly manifests the intent to oust the jurisdiction of the national judge both in view of the adoption of what the party believes to be a better method of dispute resolution and in order to avoid litigating before the other party's courts. On the other hand, arbitration's inherent limitations compel that same operator to resort to the state courts (whose competence it intended to remove) if he wants to obtain an interim measure of protection of its interest.

A first limitation of arbitration originates from the fact that when a dispute arises there is not yet an arbitral tribunal to which one can apply in order to obtain a conservatory and provisional measure which is often required precisely at the Lime the decision to start litigation is taken. Resort to the state court is in this case unavoidable.2

A second limitation is due to the fact that a measure of this kind, to be effective, is quite often ordered by the state court inaudita altera parte, a procedure which appears to be in contrast with the principle of due process which the arbitrator has to respect.

A further limitation, most frequently referred to by legal commentators, relates to the absence of coercive powers, the arbitrator being notoriously incapable of obtaining from a recalcitrant party the enforcement of a provisional and conservatory measure.

Finally, the arbitrator's powers are limited by the arbitration agreement and cannot be exercised against persons who are not parties to such agreement. Accordingly, an arbitrator could never order conservatory and provisional measures which would require that a third party [Page22:] be involved in their enforcement. The arbitral justice, which was thought by the parties as a complete alternative to the state court's justice, is thus later on discovered to be in need of the latter's help.

As a matter of fact the contradiction is more apparent than real, the subject of the conservatory and provisional measures being one out of the many as to which international arbitration, if it wants to remain an efficient mechanism of disputes resolution, has to accept a degree of intervention from the national judge in complementing the arbitrator's functions.

Another contradiction characterizes international arbitration today. Created and developed as a mechanism destined to avoid the intricacies of national rules of procedure in favor of a more flexible and fair conduct of the proceedings, it is increasingly becoming subject to the same procedural constraints of a proceeding before a state court. This explains why even the party to an arbitration tends to make use of all available delay and obstructive tactics in order to avoid a result which it perceives will be contrary to its interest. This, in turn, increases the need also for the claimant in arbitration to look for conservatory and provisional measures which will ensure that the pecuniary obligations eventually imposed upon the other party by the award will find at such time sufficient assets out of which to be satisfied.

For all the above reasons the subject of the conservatory and provisional measures is acquiring increasing importance for the development of international arbitration.

There are sectors of activity where this method of dispute settlement has not developed to the level which would be justified by its recognized advantages over the national justice precisely because the lack of powers for the arbitrator to grant such measures is felt to constitute a serious limitation. One such sector of activity is the banking sector. In case of failure by the borrower to repay its indebtedness on the due date, it is normal for the bank to secure the prompt seizure of the borrower's assets in order to ensure that its claim, if judicially challenged, will be satisfied at the time of the final judgment. Since to that effect resort is to be made to the state courts, there is no incentive this is the banker's view- to resort to arbitration, the latter representing at this point a factor of complication rather than a means for the expedient solution of its problems.

Hence, the opportunity to reappraise the theoretical premises and the practical solutions of the issue of the arbitrator's powers to order conservatory and provisional measures, and this in the light of the increasing favour, both by the national and the international legislator, of arbitration as a factor for the peaceful development of international trade relations.3

I. Arbitration and conservatory and provisional measures

As already mentioned, the need to resort to conservatory and provisional measures may arise also in the context of an arbitral proceeding, considering the parties' litigious attitude and the fact that, also for this reason, the duration of such proceedings is not always as short as is commonly believed. When requested by a party to order any such measures, the international arbitrator has to examine whether it has powers to intervene to that effect. One may question whether such powers are inherent to the arbitrator's functions and authority, considering that the object and scope of the measures in question are different from the examination of the merits of the dispute with a view to its resolution through a "judgment", which is the authority conferred by the parties with their arbitration agreement.4

Accordingly, the arbitrator will first have to determine whether the applicable rules of procedure, be they the rules of a national system or those of an arbitral institution or those specifically made by the parties, contemplate such powers. Then, assuming a positive answer, it will have to verify that the powers so conferred do not conflict with the [Page23:] mandatory rules of the place where the requested measure is to be enforced.

In order to analyze this kind of problem, this report will deal first with a review of the principles prevailing in the most significant legal systems (in section A below), and then with the rules of the most important arbitral institutions (in section B below).

Traditionally, conservatory and provisional measures are grouped under three different categories, namely:

a) measures relating to the administration or conservation of the evidence;

b) measures aimed at stabilizing the parties' relations during the proceedings;

c) measures aimed at preserving a given factual or legal situation (the "conservatory measures" stricto sensu).5

This kind of classification may be utilized for practical purposes, although the study of national systems reveals an absence of unity in this field.6

The present analysis will assume the procedural nature of the conservatory and provisional measures which, at least in the most typical cases, are aimed at preserving a legal or factual situation with a view to ensuring an effective enforcement of the award. The law of procedure will accordingly determine the admissibility of any such measures and the conditions to which the issuance of the relevant order is made subject. Whatever their nature, it is important to consider that the conservatory and provisional measures:

a) 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");

b) enjoy a limited authority, considering that they are granted on the basis of a summary proceedings;

c) are limited by the object of the dispute since their scope cannot exceed that of the legal protection asked for by the parties with their claims on the merits.7

It is obvious that a report of this nature can only cover a brief review of the situation prevailing under some national legal systems and institutional rules of arbitration. It is certainly not the purpose of this report to describe individual measures available to an arbitrator under a given legal system8.

A. The arbitrator's powers under national legal systems

The attitude of national systems concerning the relation between conservatory and provisional measures and the arbitrator's powers may be divided into three broad categories.

1) There are national systems which exclude the arbitrator's powers to order such measures reserving the same exclusively to the state court. Examples of this approach may be found under Italian law9, Austrian law10, German law11 the Swiss Intercantonal Arbitration Convention12, Libyan law13 and under French law with regard to conservatory measures stricto sensu14

[Page24:]

2) Other national systems confer the powers in question to the arbitrator or accept that they may be exercised by the arbitrator. This is the case under the French legal system (except for conservatory measures stricto sensu)15 This is also the case under the recent Swiss law16 Belgian law17 and English law.18

More frequently, the arbitrator is recognized the power to order measures relating to the administration of the evidence.19

Most of the time, as in the case of French, English and Swiss law, the powers recognized to the arbitrator are not exclusive but concur with those of the state court.20 This situation, which may give rise to a problem of coordination, is in part explained by the fact that the arbitration agreement excludes the state court's jurisdiction as to the merits of the case (the "negative effect") but not that regarding the granting of conservatory and provisional measures.

3) There are national systems which permit the parties to confer the relevant powers on the arbitrator, either in their arbitration agreement or at the time of the dispute). This is the situation under some common-law countries. In this context reference may be made also to the Uncitral Model Law on International Commercial Arbitration of 1985, which provides (article 17) that

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.22

Whenever the parties have agreed to confer on the arbitrator the powers to order any such measures, as permitted by the applicable rules of procedure, it remains to be seen whether, absent a clear expression of intent, such powers are meant to be exclusive so that the state court should refrain from exercising any concurring jurisdiction.23

B. The arbitrator's powers under rules of institutional arbitration

1) We have seen (point 7 above) that there are legal systems which permit the parties to confer on the arbitrator the powers to order conservatory and provisional measures. One of the ways by which the parties' agreement to that effect is expressed is the reference, normally made by the arbitration clause, to the rules of arbitration of an arbitral institution which contemplate such powers for the arbitrator. A review of the most important of such rules reveals that the great majority of them opt for the widening of the arbitrator's powers in this field.

a) The UNCITRAL Arbitration Rules (adopted by the U.N. General Assembly on 15.12.1976) provide in article 24(3) that:

At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such period of time as the arbitral tribunal shall determine.

The same Rules provide (article 26) that:

1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the [Page25:] dispute, including measures for the conservation of the goods forming the subject matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.

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

3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

b) The Rules of the London Court of International Arbitration (1.1.1985 ed.) provide (article 13.1) that:

Unless the parties at any time agree otherwise, and subject to any mandatory limitations of any applicable law, the tribunal shall have the power, on application of any party or of its own motion, but in either case after giving the parties a proper opportunity to state their views, to:

g) order the parties to make any property or thing available for inspection, in their presence, by the tribunal or any expert;

h) order the preservation, storage, sale or other disposal of any property or thing under the control of any party;

i) order any party to produce to the tribunal, and to the other parties for inspection, and to supply copies of, any documents or classes of documents in their possession or power which the tribunal determines to be relevant.

The same rules further provide that the tribunal may direct the parties to make payments on account of the costs of the arbitration (article 15.1), that it shall have the power to order any party to provide security for the legal and other costs of any other party (article 15.2) and that:

Without prejudice to the right of any party to apply to a competent court for pre-award conservatory measures (except those referred to in Articles 15.1 and 15.2), the tribunal shall also have the power to order any party to provide security for all or part of any amount in dispute in the arbitration. (article 15.4)

c) The International Arbitration Rules of the American Arbitration Association (effective as of 1.3.1991) provide (article 22) that:

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

The same Rules further provide for the possibility that interim measures be taken in the form of an interim award (article 22.2).

d) The Rules of Procedure of the InterAmerican Commercial Arbitration Commission (1.4.1982 ed.) provide (article 26) that:

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

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

3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate or as a waiver to that agreement.

e) The Netherlands Arbitration Institute Arbitration Rules (1.12.1986 ed.) provide (article 37) that:

1. At any stage of the arbitral procedure, the arbitral tribunal may, at the request of a party, take provisional decisions or interim measures that it considers necessary or desirable to the matters in dispute.

2. Such decisions or measures may be laid down in the form of an interim arbitral award or an order of the arbitral tribunal.

3. Such decisions or measures shall in no way prejudice the final judgement of the arbitral tribunal on the merits of the case.

4. By a request for a provisional decision or interim measure, a party does not forfeit the right to request a court to grant interim measures of protection or to apply to the president of the district court for a decision in summary proceedings. [Page26:]

The Rules further provide (article 38) that:

1. The arbitral tribunal may, at the request of a party , order the other party to provide security or to have security provided in favour of the requesting party . . . for costs related to the arbitration which are deemed to be required by the arbitral tribunal.

2. The provisions of article 37(2)((4) inclusive shall apply accordingly.

f) The Rules of Arbitration of the Zurich Chamber of Commerce (1989 ed.) provide (article 28) for the arbitrator's power to order interim measures of protection.

2) The Rules of Arbitration of the International Chamber of Commerce (in force as from 1.1.1988) are not equally clear with respect to the powers of the arbitrator in the field of conservatory and provisional measures.

As a matter of fact, the Rules provide (article 8.5) that

Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shah 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.

This language may be interpreted as implying that the arbitrator, once appointed, has the powers to order conservatory and provisional measures although the last part of the provision appears to be motivated by the desire to leave unprejudiced such powers in case they are conferred by the applicable procedural law or by the parties' agreement rather than by the intent to provide directly for the arbitrator's authority to that effect. This being said, the arbitrator will in any case address interlocutory orders to the parties whenever this will serve the purpose of preserving the status quo pending the resolution of the dispute. In practice, the voluntary compliance with such orders, will be prompted by the parties' desire not to antagonize the arbitrator.24

As to the reference made by article 14(1) of the same Rules to the arbitrator's duty (and therefore authority) to "establish the facts of the case by all appropriate means", the same has been interpreted as implying the power to order such measures as the production of documents.25

II. Salient features of the arbitrator's powers in the field of conservatory and provisional measures

The review conducted in sections (A) and (B) above permits to single out a number of salient features regarding the arbitrator's powers in the field of conservatory and provisional measures.

A. If the law of the place of arbitration provides that such powers are only vested in the national judge, any contrary agreement made by the parties, either directly or by reference to institutional rules of arbitration, would be ineffective as to those measures which, if not voluntarily complied with, are to be enforced with the assistance of the local courts.26 The position which would be taken by a foreign court requested to provide assistance in a similar situation will depend upon the lex fori (including any rules of international conventions in the field to which the forum state is a party).27 The foreign court may give relevance to the parties' agreement and grant the requested assistance or may, on the contrary, hold that the exercise by the arbitrator of the powers in question infringes upon its public policy and deny its assistance. More simply, the foreign court may hold that it is not bound to lend its assistance, in which case the arbitrator's order will result to be ineffective. We have seen, however, although within the limits of the broad review which has been conducted above, that the legal systems which expressly exclude the arbitrator's powers to order conservatory and provisional measures are by far fewer in number than those which either contemplate such powers or permit the parties to confer them on the arbitrator. [Page27:]

B. In the presence of the arbitrator's powers to order conservatory and provisional measures, whatever the source of such powers (whether the applicable procedural law or the parties' agreement), the parties are in principle at liberty:

i) to define the scope of such measures in their contract by mentioning the type of measures28 or by excluding some of them;

ii) to exclude the arbitrator's powers when they are provided by the applicable procedural law (as in the case of art. 183 of the LIPL);

iii) to provide for the exclusion of the otherwise concurrent jurisdiction of the national judge, (which seems possible in the French and Swiss legal systems but not under the English 1950 Arbitration Act);29

iv) to provide that the arbitrator may utilize his/her powers only in response to an application made by a party or that he/she may do so also on his/her own motion;

v) to provide that the ordering of any such measures be made subject by the arbitrator to the provision by the requesting party of an appropriate security or to exclude this requirement.

C. With the exception of the controversy still open in the United States,30 there seems to be consensus on the fact that an application to a national court for conservatory and provisional measures does not as such violate an agreement to arbitrate31 nor infringe upon the arbitrator's concurring powers to that effect, unless in the latter case such powers were intended by the parties to be exclusive and the conferment of such exclusive authority is valid under the applicable procedural law.

D. The arbitrator's decision concerning conservatory and provisional measures takes normally the form of an order which is immediately binding upon the concerned party. It is not merely a recommendation, which would not be binding per se.32

In the absence of a procedure agreed upon by the parties regarding the decision on conservatory and provisional measures, the same shall be determined by the arbitrator. Whether agreed by the parties or decided by the arbitrator, such procedure will have to respect the principle of due process. It remains to be seen whether urgency, which normally characterizes the request for such measures, may allow for an order inaudita altera parte, subject to the right of such other party to state thereafter its case and to request a reversal of the order.33 The legal validity of this solution is doubtful considering that, contrary to state court's proceedings, there is no recourse available against an arbitrator's order. Furthermore, in the absence of a voluntary compliance with the arbitrator's ex parte order, the state court to which resort is made for the necessary assistance may consider such an order as ineffective for violation of the principle of due process.

III. The enforcement of the measures ordered by the arbitrator

The conservatory and provisional measures ordered by the arbitrator do not always require enforcement. This is the case, for example, of an order authorizing a party to perform a certain action. However, most of the measures which may be ordered by the arbitrator require, if not voluntarily complied with, the assistance of the state court to be enforced.34 This requirement [Page28:] raises a number of problems which may be only briefly mentioned.

May a state court refuse to provide such assistance?35

- What are the limits of the state court's intervention? Will it control only the compliance of the arbitrator's order with format requirements or will it open a new summary proceeding?

- Will a state court recognize the arbitrator's order revoking a state court's prior order of conservatory and provisional measures?

- May a state court provide assistance in respect of measures ordered by the arbitrator which are not contemplated by its own law of procedure?

- Will the state court issue its own order or will it issue an order of enforcement of the arbitrator's order?

- Can means of recourse be opened against the state court's order?

Obviously, most of these questions will be answered by the state court's own lex fori. Such answers are decisive for the efficiency of the cooperation between arbitrator and state court in this field and therefore for ensuring that international commercial arbitration is effective.

Most importantly, the state court's order, taken on the basis of the arbitrator's order, is susceptible of obtaining recognition and enforcement in all states which are parties to the Brussels Convention of 1968, as amended, and the Lugano Convention of 1988, which means in all EC and EFTA member states.36

The alternative to the state court's intervention in the enforcement of the arbitrator's order of conservatory and provisional measures is the issuance by the arbitrator of an interim award covering such measures.

This alternative raises different problems.

The authority to issue an award covering any such measures may depend upon the parties' agreement. This may be also embodied in rules of arbitration to which the parties have made reference and which contemplate such an authority, as is the case of the Uncitral Arbitration Rules (art.26.2) or the new International Arbitration Rules of the AAA (art.22) or the Interamerican Commercial Arbitration Commission's Rules of Procedure (art.26.2).37

It is also to be verified whether under the procedural rules of the place of arbitration an order concerning conservatory and provisional measures may take the form of an award.38

As a matter of fact, the urgency requirement, which is often at the basis of the request for interim measures of protection, may not be satisfied by a partial award each time such award is made subject to scrutiny and approval by the institution administering the relevant arbitral proceeding (as is the case of an ICC proceedings, by virtue of article 21 of the relevant Rules of Arbitration).

In all cases in which an order for conservatory and provisional measures may be issued by the arbitrator in the form of a partial award there would be no longer a problem of resorting to the state court's assistance for the enforcement of such an order. The partial award would, in fact, qualify per se for recognition and enforcement under the articles IV and V of the New York Convention of 1958 and be accordingly enforceable in the more than 85 states which are presently parties to such a Convention. [Page29:]

IV. Concluding remarks

Nothing seems to prevent the arbitrator from being recognized as having the powers to order conservatory and provisional measures. Those legal systems which still provide that such powers are exclusively vested in state courts either reflect the old climate of mistrust for arbitration or hold an incorrect view of state courts' jurisdictional prerogatives. In the great majority of states this kind of position has given way to a widespread acceptance of arbitration as an efficient method of dispute settlement together with the recognition that, even if the source of the arbitrator's powers is contractual, the latter's function is jurisdictional similarly to that of the state court.

Clearly, in the exercise of such powers the arbitrator suffers all limits which are inherent in the consensual nature of its authority, in particular the impossibility of issuing orders directed to third parties and the absence of the power to enforce its order in case of a lack of voluntary compliance. The latter problem, often referred to as the crucial one in this field, may be overcome either by issuing a partial award, whenever permitted, or by the party addressing itself to the state court for assistance. To draw from the absence of enforcement powers the conclusion that the arbitrator may not issue conservatory and provisional measures would be paradoxically tantamount to denying its power to issue an award since an award also needs the state court's intervention for its enforcement.39

Considering the differences among national legal systems as to the arbitrator's powers in this field, it would be advisable for the parties to enrich the arbitrator's authority by providing in their arbitration agreement for the latter's powers to order conservatory and provisional measures (a result which may be accomplished with a reference to rules of arbitration contemplating such powers). The powers so conferred would greatly assist in overcoming the arbitrator's understandable resistance to issue orders which may later prove to exceed its authority and therefore become ineffective.40

It may prove that, in certain situations, it would be more convenient for a party to resort directly to the state court rather than first to the arbitrator and then to the court in order to obtain the enforcement of the arbitrator's order. This may be the case, in particular, whenever the order in question is to be enforced abroad or when urgency suggests avoiding a double-stage procedure.

It would therefore be prudent for the parties, when making provisions in their arbitration agreement for the arbitrator's powers to order conservatory and provisional measures, not to exclude the concurrent state court's jurisdiction as to the same measures. As a matter of fact, the network of bilateral and multilateral international conventions providing for member states courts' obligation to lend each other assistance in enforcing their judgments, including those ordering conservatory and provisional measures, seems to offer to state court's proceedings a well identified advantage over the proceedings before an arbitrator.

The subject of conservatory and provisional measures represents therefore an issue to which greater attention should be devoted by arbitral institutions such as the ones present at this Colloquium, in order to promote a wider recognition, by the national and the international legislator, of the arbitrator's role and powers in this field.

One aspect of this enhanced role of the arbitrator would be the definition by the national legislator of the state court's intervention in terms of assistance in the enforcement of the arbitrator's order, with very limited powers of control. This would mean that it will be for the arbitrator to verify that the requested order is necessary and that the legal conditions for its issuance are satisfied.

Another aspect would be for the international legislator to give also to arbitration access to [Page30:] the judicial assistance organized by the international conventions in this field.

Whatever the prospects concerning the arbitrator's powers, conservatory and provisional measures will continue to represent a subject on which arbitration and state court's jurisdiction are destined to a fruitful cooperation in complementing their roles so as to ensure that international arbitration is truly effective.41

1
This explains the success in the U.S.A. and the gaining favour in other countries of other methods of dispute resolution, so-called ADRM.

2
The opportunity to deal with this specific situation has led the ICC to provide the business world with "Rules for a Prearbitral Referee Procedure", in force as of January 1, 1990, designed to meet the need of having recourse at very short notice to a third person (the "Referee"), empowered to order provisional measures needed as a matter of urgency.

3
See, in this respect, the Final Act of the Helsinki Conference of 1975, according to which "the prompt and equitable settlement of disputes which may arise from commercial transactions .... would contribute to expanding and facilitating trade and cooperation" and "arbitration is an appropriate means of settling such disputes".

4
An authoritative commentator has expressed the opinion that "The authority of arbitrators to grant interim relief comes from their inherent powers to conduct the arbitral proceedings": Hoellering, "Interim measures and arbitration: the situation in the U.S.", paper delivered at the joint A.I.S.A. - I.C.C.A. meeting in Bologna, 19th April 1991, p.3. The same view seems to be shared by Raines Mendez, "Arbitrage international et mesures conservatoires", Rev. Arb. 1985, p.56.

5
See for this kind of classification: Knoepfler-Schweizer, "Les mesures provisoires et l'arbitrage", Recueil de travaux suisses sur l'arbitrage international, Zurich 1984, pp. 223224; Ouakrat, "L'arbitrage commercial international et les mesures provisoires: étude générale", Droit et pratique du commerce international, 1988, pp. 241(242. A similar classification is proposed with regard to the United Kingdom by Shenton, "Attachments and other interim court remedies in support of arbitration", Int. Bus. Law, 1984, p.101.

6
Thus, under Italian law measures relating to the administration or conservation of the evidence ("provvedimenti di istruzione preventiva") are excluded from the application of the rules governing the other measures ("provvedimenti cautelari"): code of civil procedure, art.669 - quaterdecies - A similar distinction is made in France: De Boisséson, Le droit français de l'arbitrage interne et international 1990, p.255.

7
Ramos Mendez, op. cit., p. 53 ss.; Knoepfler-Schweizer, op. cit., p. 224 et seq.; Ouakrat, op, cit., p. 242 et seq.

8
Such as the "Mareva injunction" or the "Anton Piller order" under the English system or the "référé provision" under the French system (which is not considered a provisional or conservatory measure stricto sensu) or the power to impose a penalty under the French and the Dutch systems.

9
Code of Civil Procedure, article 669 - quinquies and article 818.

10
Code of Civil Procedure, article 589.

11
Z.P.O., article 1036.

12
Intercantonal Arbitration Convention of 1969, article 26; see, however, the Federal Law on Private International Law of I8th December 1987, in force as of 1st January 1989 (hereinafter, in the text, referred to as "LPIL"), in particular articles 183 and 184.

13
Law on Civil and Commercial Procedure 1954, articles 757(759.

14
De Boisséson, op.cit., p.255 ss.; Fouchard, note under Cass. Civ. I, 28.6.1989, Rev. Arb. 1989, p.653. These authors base the exclusive jurisdiction of the state court as to such measures not on a specified rule of law but mainly on their effect, which is to deprive the owner of a property of the right to dispose of the same with effects also vis-à-vis third parties.

15
De Boisséson, op.cit., p.256 et seq.; Fouchard, see supra.

16
LPIL, articles 183(1) and 184(1).

17
Matray, ICCA - Commercial Arbitration, vol. V - 1980, pp.13(14; L'arbitrage volontaire en droit privé belge, Répertoire pratique du Droit belge, Complément VII, p.28 et seq.

18
Arbitration Act 1950, sub-sections 12 (1) to (3).

19
Saudi Arabia, Council of Ministers' Decree of May 27, 1985, articles 28 and 29 (Rev. Arb., 1986, p.642 et seq.); Belgium, Code of Civil Procedure, article 1696(1); The Netherlands, Arbitration Act 1986, article 1039(4); Sweden, Arbitration Act 1929, article 15.

20
The majority of Swiss commentators is of the view that the arbitrator's authority is not exclusive but concurs with that of the state court. Contra, Broggini, "I provvedimenti cautelari nell'arbitrato internazionale: analogie e differenze delle soluzioni italiana e svizzera", Rivista dell' arbitratrato 1991, p.502.

21
By referring in their agreement to rules of arbitration which provide for such powers (see infra in the text, under section B) or by making appropriate provisions later on, for example under the "terms of reference" contemplated by article 13 of ICC Rules of Arbitration.

22
The Model Law has been adopted as national law by the following states: Australia, Canada (by the Federal Government and by the Legislature of all Provinces and Territories), Cyprus, Hong Kong, Nigeria, Scotland and, within the United States of America, California, Connecticut, Oregon and Texas.

23
Provided such jurisdiction may be ousted according to the applicable procedural law. Thus, for example, English courts "cannot be deprived of their powers to make the interim protection orders available under section 12(6) of the 1950 Act" (Pointon, U.K. National Report on Interim Measures and Arbitration, paper delivered at the joint A.I.S.A.-I.C.C.A. meeting in Bologna, 19th April 1991, p.30).

24
Craig-Park-Paulsson, International Chamber of Commerce Arbitration, 1990, p.416 et seq.

25
Craig-Park-Paulsson, op.cit., p.409 et seq.

26
This is the case of article 32 of the Rules for international arbitration of the Milan Chamber of Arbitration, which provides for the arbitrator's powers to order measures of immediate application to prevent events which otherwise could not be avoided".Similar provisions have been referred to as "paper tigers", considering the impossibility of their enforcement (Broggini, op.cit., p.496). They still have a bearing in the context of a procedure which is strongly influenced by the consensual source of the arbitrator's authority.

27
Broggini, op.cit., p.501.

28
An example is offered by the FIDIC Rules regarding the continuation of works on the construction site.

29
See supra, note 23.

30
Where the courts appear to have been concerned with the possibility that a party could frustrate the arbitral process by repeated resort to the courts. See Becker, "Attachments in Aid of International Arbitration - the American position", 1 Arb. Int. 1985; Pew-Jarvis, "Pre-award Attachment in International Arbitration: The Law in New York", Journ. Intern. Arb., Sept. 1990, p. 31 ss.; Bernardini-Pillitteri, "L'arbitrato commerciale intemazionale negli Stati Uniti: recenti sviluppi giurisprudenziali", Diritto del commercio internazionale, 1991, p.23 et seq.

31
Geneva Convention on International Commercial Arbitration 1961, art. VI(4); Uncitral Model Law, art.9; ICC Rules of arbitration, article 8.5.

32
As is known, an arbitral tribunal acting under the Washington Convention on the Settlement of Investment Disputes of 1965 has only the power to "recommend" interim measures of protection (art.47). See, on the subject, Marchais "Mesures provisoires et autonomie du système d'arbitrage C.I.R.D.I.", Droit et pratique du comm. int., 1988, p.275 et seq.

33
Lalive, Poudret, Reymond, Le droit de l'arbitrage interne et international en Suisse, 1989, p.362.

34
It has been correctly remarked that the arbitrator's lack of coercive powers does not tender its order void of practical significance since, among other considerations, it will in any case take into account, at the time of the award, the behaviour of the recalcitrant party. See, in this respect, Craig-Park-Paulsson, op.cit., p.416; Lalive-Poudret-Reymond, op.cit., p.365.

35
The state court's assistance in the field is specifically contemplated by article 183(2) and 184(2) of the Swiss LPIL. I owe to the courtesy of Prof. C. Reymond practical examples of state court's assistance, pursuant to article 184(2) of the LPIL, in the summoning of witnesses unwilling to appear before an arbitral tribunal sitting in Geneva and in requesting the execution of rogatory commissions to hear witnesses residing abroad.

36
Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27th September 1968 ("the Brussels Convention"), article 26 in relation to article 25; Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed in Lugano on 16th September 1988 ("the Lugano Convention"), article 26 in relation to article 25. As to the applicability of the Brussels Convention on conservatory and provisional measures see the judgment of the European Court of Justice of May 21, 1980 (n.125/79), in re: Bernard Denilauler c. S.n.c. Couchet Frères.

37
See supra in the text, paragraph 8.

38
This possibility seems to be excluded in Switzerland: Broggini, op.cit., p.503 and commentators cited therein in note 43. The case of Sperry International Trade, Inc.v. Government of Israel (532 F. Supp. 901 (S.D.N.Y.), affd, 689F. 2d 301(2d Cir. 1982) illustrates the position of the courts in New York: an award may be confirmed if it is "final" for purposes of the Federal Arbitration Act and an award is considered final if it disposes of an issue that is severable from other issues that are pending before the arbitrators (in the Sperry case the Court found that the award was final on the issue of whether a letter of credit should be paid and it thus confirmed the award).

39
I owe this remark to Knoepfler-Schweizer, op. cit., p.230. There are, however, measures - such as the attachment or the creation of a mortgage - as to which the element of coercion is so inherent as to make the arbitrator's powers ineffective in that respect (see New York Arbitration Law: Civil Practice Law and Rides, art.62: only a court can issue an attachment order where attachment of property is requested).

40
A review of published arbitral awards (in the Journal de droit international and in the ICCA Yearbook-Commercial Arbitration) reveals that in very few cases arbitral tribunals sitting in Europe have issued orders covering conservatory and provisional measures (the words of the arbitrators in the Messianaki Floga case are illustrative in this respect: "This panel has anguished over the wisdom of granting interim relief." - Interim Award of 24.8.1984, ICCA Yearbook Commercial Arbitration, Vol.XI-1986, p.209). Under the influence also of the applicable rules of procedure arbitrators have rather preferred to formulate "proposals" or "recommendations" inspired by the principle that the parties should refrain during the arbitral proceedings from performing any action which would aggravate or widen the dispute (see award in the ICC case n°3896 of December 23, 1982, Journ. dr. int. 1983, pp.914(918).

41
Goldman, "The Complementary Roles of Judges and Arbitrators in Ensuring that International Commercial Arbitration is Effective, 60 Years of ICC Arbitration. A Look at the Future", ICC Publication n°412, 1984, p.276 et seq.