Introduction

ICSID-the International Centre for Settlement of Investment Disputes-is a public international organization established by a multilateral treaty, the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, commonly called the ICSID Convention .1 As of October 20, 1992, 106 countries had signed and ratified the ICSID Convention to become Contracting States.2, Pursuant to the provisions of the ICSID Convention, die Centre provides facilities for the conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States which the parties to the dispute consent in writing to submit to ICSID. 3 In 1978, the Administrative Council of the Centre, which is ICSID's governing body and comprises one representative of each Contracting State, approved a set of so-called Additional Facility Rules under which the ICSID Secretariat is authorized to administer certain types of proceedings between States and nationals of other States which fall outside the scope of the Convention.4 These include among others conciliation and arbitration proceedings for the resolution of investment disputes where either the State party or the home State of the foreign national is not an ICSID Contracting State.

The experience of ICSID with respect to conservatory and provisional measures has centered upon ICSID Convention arbitration and in particular on the application of two provisions of die Convention. The first provision is contained in Article 26 of the ICSID Convention. It has been related to the role of national courts in this area. According to Article 26, "[c]onsent of the parties to arbitration under this Convention shah, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy." The second pertinent provision is that of Article 47 of the Convention. It principally concerns the powers of the arbitral tribunal with respect to conservatory and provisional measures. Article 47 of the Convention states that "[e]xcept as die parties otherwise agree, the tribunal may, if it considers that die circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party."

I. The role of national courts

The exclusion of other remedies in Article 26 of de Convention clearly precludes parties from bringing to national courts disputes covered by unqualified submissions to arbitration under the Convention. There has however been debate over the question whether die exclusion equally prevents parties from seeking provisional measures from such courts.

One writer has argued that as Article 47 of the ICSID Convention only gives an arbitral tribunal the power to "recommend" provisional measures, Article 26 should not be understood as precluding the ordering of such measures by national courts.5 Cited in support of this view is a passage in the drafting history of the Convention indicating that the drafters, who had considered providing in Article 47 for die ordering or prescribing of provisional measures by [Page38:] arbitrators, may have been influenced in their decision ultimately to reject the possibility by an objection that it would "encroach on the jurisdiction of local courts.6 In this view, the power of national courts to order conservatory measures in particular to assure the execution of an eventual Convention award would follow naturally from the responsibility that they have under Article 54 of the Convention ultimately to enforce such awards.7 A second writer has observed that a presumption against the availability of court-ordered provisional measures under the ICSID Convention would be "at variance with the almost universal recognition in the area of commercial arbitration that to seek measures from a court and for a court to grant them is not inconsistent with an arbitration agreement."8

Other writers have insisted that when parties have consented to arbitration under the ICSID Convention, Article 26 deprives them of any kind of other remedy, whether provisional or otherwise.9 For such writers, Article 26 embodies a "rule of judicial abstention"10 requiring national courts to decline to entertain requests for provisional measures from parties that have agreed to submit their dispute to arbitration under the Convention. As a supporter of this view has indicated, Article 47's authorization of mere recommendations, as opposed to prescriptions or orders, does not in itself disclose an intent to leave open the possibility of provisional measures being granted by courts.11 Moreover, while the Convention specifically envisages a role for national courts with respect to enforcement of die ultimate award, it does not do so with respect to interim relief, referring instead in its sole provision on provisional measures, Article 47, only to the arbitral tribunal. 12This argument finds support in the fact that the ICSID system of arbitration is a largely self-contained one, governed by the international law provisions of the Convention and of the Rules adopted pursuant to it.13 Article 44 of the Convention makes it clear that the conduct of Convention proceedings is exempt from die application of arbitration laws of Contracting States.14 According to Article 53 of the Convention, awards rendered thereunder are not subject to any appeal or to any other remedy except those provided for in the Convention itself (such as the Convention's remedy of annulment).15 Under Article 54 of the Convention, each Contracting State, whether or not it is a party to the dispute, must recognize a Convention award as binding and enforce the pecuniary obligations that the award imposes as if it were a final judgment of the State's courts.16 The role given to national courts by Article 54 of the Convention is one restricted to automatic award enforcement upon simple presentation of a certified copy of the award.17 Excluding the involvement of courts at the provisional stage would from this perspective be consistent with the autonomy and self-contained nature of the ICSID system under these and other provisions of the Convention.18[Page39:]

The debate over the place of court-ordered provisional measures in the system of the Convention referred in part to several court decisions rendered during the 1980s in Europe. The decisions concerned two separate ICSID arbitration cases involving Guinea, Atlantic Triton Co. v. Guinea19 and Maritime International Nominees Establishment (MINE) v. Guinea. 20

The Atlantic Triton case concerned a dispute arising out of an agreement for the equipping and operation of fishing vessels owned by a Guinean State enterprise. In 1983, prior to instituting the arbitration proceeding, the claimant obtained from the Commercial Court of Quimper an order attaching the vessels, which were then at a nearby facility undergoing repairs. The attachment order was however vacated by the Court of Appeal of Rennes in October 1984, following the commencement of the arbitration and the constitution of the arbitral tribunal. The Court of Appeal of Rennes held that since consent to arbitration is under Article 26 of the Convention exclusive of any other remedy, "the parties cannot apply to local administrative or judicial authorities to obtain provisional measures, but must have recourse only to the arbitration tribunal."21 The arbitral tribunal having "the general and exclusive power to rule not only on die merits of the dispute but also on all provisional measures,"22 the lower court had lacked jurisdiction to make the attachment order concerned. In November 1986, however, the decision of the Court of Appeal of Rennes was quashed by the French Court of Cassation. The Court of Cassation stated in brief terms that Article 26 of the ICSID Convention should not be construed as excluding recourse to national courts for provisional measures such as the one granted in Atlantic Triton "to assure execution of the eventual award." 23 Such an exclusion, the Court of Cassation added, could only result from consent of the parties, either express or implicit in their adoption of arbitration rules incorporating the exclusion 24

The dispute in the MINE v. Guinea case arose out of an agreement for the transportation of bauxite from Guinea. Despite the inclusion in the agreement of a clause providing for arbitration under the ICSID Convention, MINE succeeded in instituting an arbitration proceeding against Guinea under the auspices of the American Arbitration Association (AAA). This resulted in 1980 in an AAA award in favor of the claimant. Enforcement of the AAA award was however denied in the U.S.25 and in 1984 MINE commenced an ICSID arbitration proceeding. The claimant subsequently instituted court proceedings in Belgium and Switzerland to enforce the AAA award and on the strength of that award obtained attachments of Guinean assets in Belgium and Switzerland. These actions were challenged by Guinea in the two countries' courts. The ensuing court decisions have been widely discussed in the context of provisional measures. However, while it is not entirely clear, the situation that the decisions addressed seems to have raised the different question of whether a party may, consistently with Article 26 of the Convention, pursue the enforcement of a non-ICSID award rendered in respect of a dispute that has been submitted to arbitration under the ICSID Convention.26The decision in Belgium, rendered in September 1985 by the Court of First Instance of Antwerp, was in any event made in broad terms that explicitly drew support from the decision of the Court of Appeal of Rennes in the Atlantic Triton case. "According to Article 26 of the [ICSID] Convention," the Antwerp Court declared, "any possibility to introduce an action before the national courts of one of the Contracting States, in this case Belgium, is excluded for the parties including the possibility to institute proceedings to obtain an attachment."27 The Antwerp Court proceeded to grant a request of Guinea for a lifting of the attachments in Belgium. In [Page40:] Switzerland, the Court of First Instance of Geneva had been presented with a request by MINE for an enforcement order in respect of the AAA award. Citing the Antwerp Court decision, the Geneva Court in March 1986 rejected MINE'S request on the grounds that it was "contrary to the exclusive nature of ICSID arbitration as provided in Article 26" of the ICSID Convention .28 The attachment issued in Switzerland was subsequently lifted.29

It will be recalled that in its 1986 decision in the Atlantic Triton case the Court of Cassation of France stated that parties might exclude recourse to national courts for provisional measures by adopting arbitration rules incorporating such an exclusion. Two years earlier, in 1984, the Administrative Council of ICSID had adopted a revised set of Arbitration Rules that do in effect incorporate, in a new Rule 39(5), a specific exclusion comparable to the one envisaged by the Court of Cassation.30 According to new Rule 39(5), parties may "request any judicial or other authority to order provisional measures, prior to the institution of the [arbitration] proceeding, or during the proceeding, for the preservation of their respective rights and interests" but only if the parties "have so stipulated in the agreement recording their consent" to arbitration under the Convention. In the absence of such a stipulation, recourse to judicial or other authorities for the ordering of provisional measures is excluded.

The Atlantic Triton case was governed by the Arbitration Rules of the Centre in force prior to their revision in 1984. New Rule 39(5) was however proposed to the Administrative Council in 1984 as an elaboration upon Article 26 of the Convention;31 and it might be inferred from this that the Council's approval of new Rule 39(5) was as significant for cases subject to the pre-1984 Rules as for cases brought under the revised Rules.32 Be that as it may, for cases governed by the revised Arbitration Rules, that is for cases where the underlying consent to arbitration was given following the adoption of these Rules in 1984,33the controversy seems to have been laid to rest.

As indicated earlier, the position that at any rate obtains for cases brought under the revised Arbitration Rules, that parties may not seek such measures unless they have stipulated otherwise, differs from the position under most other arbitration systems according to which requests addressed to judicial authorities for provisional relief are not deemed to be incompatible with an arbitration agreement.34 Interestingly, the institutional arbitration rules that embody this more common position include ICSID's own Additional Facility Rules.35 In complete contrast to Rule 39(5) of the Arbitration Rules adopted under the ICSID Convention, Article 47(4) of the Additional Facility Arbitration Rules provides that "[t]he parties may apply to any competent judicial authority for interim or conservatory measures. By doing so, they shall not be held to infringe the agreement to arbitrate or to affect the powers of the [arbitral] Tribunal.36

It will be recalled that the Additional Facility Rules are issued outside the context of the ICSID Convention and in fact do not derive from any treaty. This they have in common with most other arbitration rules, institutional and ad hoc. As in the case of arbitration under such other rules, Additional Facility arbitration is therefore generally subject to national legal orders and, in the area of award enforcement, can take advantage not of the provisions of the ICSID Convention but only of such general instruments as the 1958 U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards.37 This character of the [Page41:] Additional Facility Rules may help to explain why they share with such other rules a presumption in favor of the availability of court-ordered provisional measures.

On the other hand, the system of arbitration under the ICSID Convention is, as indicated previously, one that insulates proceedings from national legal systems. It may be, and as also seen earlier has been, maintained that the approach embodied in new Rule 39(5) of the Centre's Arbitration Rules conforms with this basic feature of the system of the Convention. Other arguments favoring this approach include one according to which the approach helps to avoid abusive recourse to judicial provisional measures. For example, if the State party is the claimant, it may as one writer has pointed out be well placed to seize assets of the foreign national in that State; and if, as the same author suggests, the State seeks such a seizure its courts may lack sufficient independence to deny the request.,38 In practice, the State party has in all but one case been the respondent in ICSID Convention arbitration proceedings; and the potential for abuse may also be said to exist in respect of provisional measures sought against the State 39 As a practical matter, moreover, the State's permanence, its normal ability to pay any eventual award rendered against it and the award enforcement provisions of the Convention would generally obviate the need for court-ordered conservatory relief in particular. This point is attested to by the fact that the Atlantic Triton case appears to be the only case in ICSID's history where conservatory attachments were sought from a court to secure an eventual ICSID award.40 In cases where the parties to an agreement providing for arbitration under the Convention nevertheless wish also to provide for the possibility of resorting to judicial provisional measures they may, as envisaged by ICSID Arbitration Rule 39(5) and further emphasized later in this paper, do so by an appropriate stipulation in the arbitration agreement.

II. The powers of the arbitral tribunal

Reference has already been made several times to the provision of Article 47 of the ICSID Convention, empowering an arbitral tribunal to recommend, if it considers the circumstances so require, any provisional measures which should be taken to preserve the respective rights of either party. The notes included in the first edition of the ICSID Arbitration Rules explain that Article 47 of the Convention "is based on the principle that once a dispute is submitted to arbitration the parties should not take steps that might aggravate or extend their dispute or prejudice the execution of the award."41 One writer has remarked that provisional measures adopted by a tribunal under Article 47, being mere recommendations, are only morally binding.42 However, parties would be ill-advised to disregard provisional measures issued as recommendations under Article 47 of the Convention. This is so because the tribunal will normally be able to take into account in its final award the effects of any non-compliance with its recommendations 43

The provisions of Rule 39(1)-(4) of the Arbitration Rules of the Centre set forth a procedural framework for the implementation of Article 47 of the Convention. According to these provisions a party may at any time during a proceeding request the tribunal to recommend provisional measures to preserve the party's rights.44 The tribunal must give priority to the consideration of such requests; 45 it may also recommend provisional measures on its own initiative or recommend measures that differ from those requested by a party.46 The tribunal may at any Lime modify or revoke its recommendations.47 Each party must be given an opportunity of presenting its observations before the tribunal recommends provisional measures or modifies or revokes its recommendations 48[Page42:]

In cases where speedy action is required, however, the parties' observations, and the tribunal's decision, may be made by correspondence.49

Requests for the recommendation by tribunals of provisional measures have been made in about one third of the cases brought under the Convention to date. Though not uncommonly requested, provisional measures have less frequently been granted by the tribunals, perhaps reflecting in some cases the cautious approach to provisional relief that has been said to characterize arbitrators generally.50

Among the cases are several in which ICSID tribunals have been asked to recommend mea-sures enjoining the parties from pursuing provisional relief and other actions in national courts. These cases include the first arbitration brought under the ICSID Convention, Holiday Inns v. Morocco51 In that case, which concerned a project for the construction of hotels in Morocco, the respondent government, following the institution of the arbitration proceeding, obtained from Moroccan courts orders for the continuation of works on, and for the appointment of a judicial administrator for, the project. The claimant turned to the arbitral tribunal for provisional measures that would among other things counter Chose court orders. The respondent questioned the jurisdiction of the tribunal to recommend provisional measures and argued that the measures taken by the Moroccan courts already "assured the protection of the interests of both parties in a satisfactory manner pendente lite." In its decision, issued in July 1972, the tribunal affirmed its jurisdiction to recommend provisional measures under Article 47 of the Convention, the parties "still having the right to express, in the rest of the procedure, any exception to the jurisdiction of the Tribunal on any other aspect of the dispute." However, rather than grant the measures requested of it, the tribunal, exercising its authority under the Arbitration Rules to adopt different measures,52 proceeded to recommend that both parties should "abstain from any measure incompatible with the upholding of the[ir] contract and to make sure that the action already taken should not result in any consequences in the future which would go against such upholding."

In its affirmation of the tribunal's power to recommend provisional measures before it had definitively ruled on its jurisdiction over the dispute, 53 the decision of the Holiday Inns tribunal conforms with what seems to be the well-settled position in international law, that an international tribunal may decide on provisional measures prior to establishing its jurisdiction over the dispute if it appears that there is, prima facie, a basis for asserting such jurisdiction?54 Under Article 36 of the ICSID Convention, the Secretary-General of the Centre will refuse to register a request for arbitration, with the consequence that it will not reach an arbitral tribunal, if he finds, "on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre." Several writers have suggested that the determination implicit in the Secretary General's decision to register a request, that it does not show a manifest lack of jurisdiction, may provide to the arbitral tribunal a good starting point or even an assurance for the conclusion that there is sufficient jurisdiction for a decision on provisional measures.55 It would however appear that the determination by the Secretary-General, based only on "the information contained in the request," should not exempt the tribunal from independently satisfying itself as to its authority to issue provisional measures. This may be inferred from the Arbitration Rules of the Centre which, as indicated earlier56 provide an opportunity for the matter to be ventilated before the [Page43:] tribunal-as it was in the Holiday Inns case-by requiring a tribunal, before it decides upon provisional measures, to give both parties the opportunity to present their observations.

Another arbitration in which provisional measures directed at national court proceedings were requested is the Atlantic Triton Co. v. Guinea case mentioned earlier. This aspect of the arbitration further illustrates the uncertainty, prevailing in cases which as this one were brought under the pre-1984 ICSID Arbitration Rules, with respect to the role of court-ordered provisional measures in the system of the ICSID Convention. In the Atlantic Triton case, Guinea applied to the arbitral tribunal, shortly after its constitution in August 1984, for provisional measures. On the basic of the exclusivity principle of Article 26 of the Convention, the request aimed, inter alia, at a recommendation that Atlantic Triton consent to the lifting of the attachments that had earlier been ordered by the Quimper Commercial Court. In a decision issued in December 1984, the tribunal rejected that request as having been rendered without object by the September 1984 decision of the Court of Appeal of Rennes vacating the attachment order concerned57 Guinea however sought from the arbitral tribunal damages in respect of the alleged violation of Article 26 represented by the claimant's recourse to judicial provisional measures. In its final award, signed in April 1986, the tribunal declined to find fault with the claimant for pursuing such measures. For the tribunal, it was not clear that Article 26 of the Convention precluded recourse to national courts for provisional measures as could be done under other arbitration systems. The complexity of the question, the tribunal said, would rule out reproaching Atlantic Triton for having chosen "an interpretation in conformity with a solution which is very generally applied and recognized for its efficacy in international arbitration and in national legal systems themselves.58

The most recent reported decision of an ICSID tribunal on a request for interim relief in respect of national court proceedings was taken by the tribunal in the other case mentioned above that involved Guinea, MINE v. Guinea. As indicated earlier, the claimant in the MINE case had, alter commencing the ICSID proceeding, instituted proceedings in Belgium and Switzerland to enforce an AAA award and in that connection obtained court-ordered attachments of Guinean assets in the two countries. In addition to contesting those actions in Belgium and Switzerland, Guinea, invoking Article 26 of the Convention, applied to the ICSID tribunal for a recommendation that the claimant cease its activities in national courts. In its decision, the tribunal held that the litigation in Belgium and Switzerland constituted an "other remedy" under Article 26, and issued the following "Provisional Measure":

1) The Tribunal recommends that M.I.N.E. immediately withdraw and permanently discontinue all pending litigation in national courts, and commence no new action, arising out of the Dispute. Litigation based upon the award of the American Arbitration Association is considered to arise out of this Dispute for purposes of this Provisional Measure.

2) The Tribunal further recommends that M.I.N.E. dissolve every existing provisional measure in litigation in national courts (including attachment, garnishment, sequestration, or seizure of the property of Guinea, by whatever term designated and by whatever means performed) and seek no new provisional remedy in a national court.

3) Pursuant to Article 47 and the applicable ICSID Regulations and Rules, the Tribunal will take into account in its award the effects of any non-compliance by M.I.N.E. with its recommendations.59

The claimant ultimately complied with these recommendations of the tribunal. 60

* * *

There are in the system of the ICSID Convention the same potential limitations of arbitral provisional relief as exist in other arbitration systems, such as its unavailability prior to the constitution of the tribunal and its inability to affect third parties. 61Though parties seldom do so in practice, to the extent that they judge it necessary they may compensate for such [Page44:] limitations through appropriate arrangements for recourse to court-ordered provisional measures. If parties thus wish to retain the option of seeking provisional measures from courts or other authorities they may do so by including an appropriate clause to that effect in the agreement recording their consent to arbitration. The upcoming new edition of the Model Clauses of the Centre includes a suggested text for such a

clause which reads as follows:

Without prejudice to the power of the Arbitral Tribunal to recommend provisional measures, either party hereto may request any judicial or other authority to order any provisional or conservatory measure, including attachment, prior to the institution of the arbitration proceeding, or during the proceeding, for the preservation of its rights and interests.62

1
The ICSID Convention is reprinted in Doc. ICSID/15, ICSID Basic Documents (Jan. 1985). The Regulations and Rules of the Centre as in force from September 26, 1984 are also reprinted in that volume. For a general description of ICSID, see, e.g., Shihata, "Towards a Greater Depoliticization of Investment Disputes: the Roles of ICSID and MIGA" 5(16 (ICSID publication, 1992).

2
A further 15 countries had signed but not yet ratified the ICSID Convention. For a complete list of signatures and ratifications of the Convention, see Doc. ICSID/3, List of Contracting States and Other Signatories of the Convention.

3
See ICSID Convention, Arts. 1(2) and 25(1).

4
The ICSID Additional Facility Rules are reprinted in Doc. ICSID/11 (June 1979).

5
Gaillard, Note, 114 Journal du Droit International 127, 128 (1987).

6
Id. (citing ICSID, 1 History of the Convention 515 (1968). Compare infra note 11 and accompanying text.

7
Id. See infra notes 16 and 17 and accompanying text.

8
Broches, "Arbitration under the ICSID Convention" 13 (ICSID publication, 1991) (referring in particular to Article 9 of the 1985 UNCITRAL Model Law on International Commercial Arbitration). Mr Broches' views are elaborated upon in his Commentary on the ICSID Convention, forthcoming in 18 Yearbook Commercial Arbitration (1993).

9
Friedland, "ICSID and Court-Ordered Provisional Remedies: An Update", 4 Arb. Int'l 161, 162 (1988). See also Friedland, "Provisional Measures and ICSID Arbitration", 2 Arb. lnt'l 335 (1986); Delaume, "ICSID Arbitration and the Courts", 77 AJIL 784 (1983) and "ICSID Arbitration Proceedings, Practical Aspects", 5 Pace L. Rev. 563, 582(85 (1985).

10
See, e.g., Delaume, 77 AJIL, supra note 9 at 785.

11
Friedland, 4. Arb. Int' l, supra note 9, at 163. Mr Friedland there also calls attention to ICSID, 2 History of the Convention 655 (1968), indicating that the drafters of the Convention chose the word "recommend" in preference to "prescribe" for the final text of Article 47 to avoid making arbitral provisional measures "enforceable on the same basic as final awards". Compare supra note 6 and accompanying text.

12
Friedland, 4 Arb. Int' l, supra note 9 at 163.

13
See also in this regard Marchais, "Mesures provisoires et autonomie du système d'arbitrage C.I.R.D.I.", 14 Droit et Pratique du Commerce International 275, 296 (1988).

14
Article 44 of the Convention provides that such proceedings shall instead "be conducted in accordance with this Section [3 of the Convention] and, except as the parties otherwise agree, in accordance with the [ICSID] Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question."

15
ICSID Convention, Art. 53(1). For recent discussions of the annulment remedy, see Broches, "Observations on the Finality of ICSID Awards", 6 ICSID Rev.-FILJ 321 (1991) and Caron, "Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction Between Annulment and Appeal", 7 ICSID Rev.-FILJ 21 (1992).

16
ICSID Convention, Art. 54(1).

17
Id. at Art. 54(2).

18
A further provision of the Convention that may be cited in this convection is Article 27, according to which each Contracting State must refrain from exercising diplomatic protection or bringing an international claim in respect of a dispute which one of its nationals and another Contracting State have consented to submit or have submitted to arbitration under the Convention. The right to exercise diplomatic protection and bring an international claim however revives if the Contracting State party to the dispute fails to honor an award rendered against it. In such a case, the home State of the foreign national concerned might ultimately bring a claim against the defaulting State in the International Court of Justice under Article 64 of the Convention.

19
ICSID Case No. ARB/84/1.

20
ICSID Case No. ARB/84/4.

21
Court of Appeal of Rennes, decision of Oct. 26, 1984, 24 ILM 341, 343 (1985).

22
Id. at 344.

23
Court of Cassation of France, decision of Nov. 18, 1986, 2 ICSID Rev.-FILJ 182, 183 (1987).

24
Id. at 184.

25
On the litigation in the U.S., see Delaume, 77 MIL, supra note 9, at 786-89.

26
As recorded in the award rendered by the ICSID tribunal in the case, MINE's "European actions sought enforcement of the AAA award, and... they were not prejudgment attachments related to the ICSID arbitration." Award of Jan. 6, 1988, 3 Int'l Arb. Rep., No. 1, at Sec. A, pt. 6 (Jan. 1988). The award was subsequently partially annulled (though not on grounds relevant to the matters discussed in this paper), following which the dispute was amicably settled. See ad hoc Committee decision of Dec. 22, 1989, 5 ICSID Rev.-FILJ 95 (1990) and ICSID Cases, Doc. ICSID/16/Rev. 2 at 17 (Nov. 15, 1991).

27
Court of First Instance of Antwerp, decision of Sept. 27, 1985, 1 ICSID Rev.-FILJ 380, 381 (1986) (citing Court of Appeal of Rennes, decision of Oct. 26, 1984, supra note 21).

28
Court of First Instance of Geneva, decision of Mar. 13, 1986, 1 1CSID Rev.-FILJ 383, 390 (1986).

29
By decision of Oct. 7, 1986 of the Geneva Autorité de surveillance des offices de poursuite pour dettes et de faillite, 2 ICSID Rev.-FILJ 170 (1987).

30
The revised Rules are reprinted in ICSID Basic Documents, supra note 1. Unless otherwise indicated, references in this paper to the Arbitration Rules of the Centre are to those as thus revised in 1984 (and currently in force).

31
ICSID Administrative Council Doc. AC/84/3 at app. II-D.

32
See Marchais, supra note 13, at 293.

33
See ICSID Convention, Art. 44 (supra note 14).

34
See, e.g., AAA International Arbitration Rules, Art. 22(3); ICC Rules of Arbitration, Art. 8(5); UNCITRAL Arbitration Rules, Art. 26(3). See also supra note 8 and accompanying text.

35
See supra note 4.

36
The powers of the arbitral tribunal under Article 47(4) of the Additional Facility Arbitration Rules include the power to order provisional measures at the request of a party and the power to recommend such measures at the tribunal's own initiative.

37
Compare Additional Facility Arbitration Rules, Art. 20 (requiring that Additional Facility arbitration proceedings be held only in States party to the 1958 U.N. Convention).

38
Friedland, 4 Arb. Int'l supra note 9 at 164.

39
The example given by Mr Friedland (id.) is of recourse by the foreign national to his home State's courts for provisional measures directed at the State party to the dispute, whereas a "fundamental protection" afforded States by the ICSID Convention "was that they would be free of just such pressures, as one can judge from Article 27 of the Convention" (supra note 18).

40
Compare supra note 26 and accompanying text.

41
ICSID Regulations and Rules, Doc. ICSID/4/Rev. 1 at 104 (May 1975).

42
Caron, Interim Measures of Protection: Iran-U.S. Claims Tribunal, 46 Zeitschrift für ausländisches öfflentliches Recht und Völkerrecht 466, 478 (1986).

43
ICSID Regulations and Rules, supra note 41, at 105.

44
ICSID Arbitration Rules, Rule 39(1).

45
Id. at Rule 39(2).

46
Id. at Rule 39(3).

47
Id.

48
Id. at Rule 39(4).

49
Compare id. at Rule 16(2).

50
See, e.g., Hausmaninger, "The ICC Rules for a Pre-Arbitral Referee Procedure: A Step Towards Solving the Problem of Provisional Relief in International Commercial Arbitration?", 7 1CSID Rev.-FILJ 82,89 (1992).

51
ICSID Case No. ARB/72/1. Information on the case is published by the claimant's lead counsel, Professor P. Lalive, in The First "World Bank" Arbitration (Holiday Inns v. Morocco)-Some Legal Problems, 51 Brit. Y.B. Int'l L.. 123 (1980).

52
Compare supra note 46 and accompanying text.

53
The tribunal upheld its jurisdiction by a decision of July 1, 1973. The dispute was ultimately amicably settled. See 1978/79 ICSID Ann. Rep. 5.

54
See Brower and Goodman, "Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings", 6 ICSID Rev.-FILJ 431, 457 (1991). That article of Messrs Brower and Goodman contains the most extensive published examination to date of the question of an ICSID tribunal's competence to issue provisional measures.

55
See Masood, "Provisional Measures of Protection in Arbitration under the World Bank Convention", 1 Delhi L. Rev. 138, 145 (1972); Delaume, "ICSID Tribunals and Provisional Measures-A Review of the Cases", 1 ICSID Rev.--FILJ 392, 393 (1986); Friedland, 2 Arb. Int' l, supra note 9, at 341; Brower and Goodman, supra note 54, at 452(56.

56
See supra note 48 and accompanying text.

57
Friedland, 2 Arb. Int' l, supra note 9 at 344.

58
See excerpts from the award in 12 Y.B. Com. Arb. 183 (1987) and 115 Journal du Droit International 181 (1988).

59
The measure is reproduced in the decision of the Court of First Instance of Geneva, supra note 28 at 386-87.

60
See award of Jan. 6, 1988, supra note 26 at pt. 6

61
Compare Hausmaninger, supra note 50 at 87 and 88.

62
ICSID Model Clauses, Doc. ICSID/5/Rev. 2 at cl. 14 (forthcoming).