ICC Articles

Introduction

Recourse to conservatory and provisional measures is commonplace in, or in connection with, ICC arbitration. From the earliest days of the ICC arbitration system, it was recognized that, no matter how swiftly arbitral justice might be obtained, there might nevertheless be a need for parties in certain circumstances to secure the temporary protection of rights or assets prior to or pending a decision on the merits of a claim.

The very first version of the ICC arbitration rules (the "ICC Rules" or the "Rules") published in 1922 therefore contained a provision (which has since disappeared) expressly authorizing arbitrators to render "a provisional decision, providing for such measures of preservation as may be indispensable" prior to the final resolution of the arbitration proceeding.¹ This provision was principally concerned with measures necessary for the preservation or [Page46:]disposal of the goods that might be the subject of an ICC arbitration.² Today, however, the variety of conservatory and provisional measures encountered in connection with international arbitration proceedings is enormous and extends far beyond the mere conservation or disposal of goods to injunctions of all kinds, orders for provisional payment, the appointment of experts to report upon factual matters, the posting of guarantees and the like.

In this connection, the interplay between courts and arbitral tribunals has taken on tremendous importance. While the drafters of the original ICC Rules expressly authorized arbitrators to issue "provisional decisions", presumably as a natural consequence of their conception of international arbitration as a means of settling disputes "without recourse to formal legal procedure",³ it has always been the case that certain measures could only effectively be obtained from the courts and not arbitral tribunals. Moreover, the need for conservatory or provisional measures will often arise before an arbitral tribunal can be constituted to deal with the situation requiring immediate attention. The laws of some countries also do not necessarily even recognize or admit the power of arbitrators to order certain kinds of provisional or conservatory relief.⁴ Thus, very early on in the history of ICC arbitration, courts were required to become involved.

Today, the possible need for intervention by the courts is expressly recognized in the sole provision of the ICC Rules (Article 8.5) that specifically refers to conservatory and provisional measures. Article 8.5 provides as follows:

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 Court of Arbitration. The Secretariat shall inform the arbitrator thereof.

This provision has two main features. The first is that the right of the parties to apply to the courts for provisional ("interim") or conservatory relief is expressly recognized "before the file is transmitted to the arbitrator" and "in exceptional circumstances" thereafter. Second, the arbitrators themselves are not expressly authorized to issue such measures, as under the 1922 Rules.⁵ However, Article 8.5 acknowledges "the relevant powers reserved to the arbitrator". The obvious intention is neither to mandate nor exclude the taking of such measures by an arbitral tribunal. In so providing, the authors of the Rules chose to defer to the wishes of the parties and/or the arbitrators and possible applicable provisions of national law, which, as stated above (see note 4), do not deal uniformly with the arbitrator's powers in this regard.

This having been said, arbitrators may be reluctant to order provisional or conservatory [Page47:] measures, even when they determine that they have the authority to do so. Numerous issues arise concerning the nature of the relief that arbitrators may be prepared to grant as well as the form and effectiveness of such relief. The extent to which the courts may be prepared to act or recourse thereto may be consistent with the provisions of Article 8.5 are also questions that, notwithstanding the relatively straightforward terms of that provision, may involve complex considerations.

The discussion that follows reviews the ICC's experience in respect of such matters. As Article 8.5 distinguishes between the period "before the file is transmitted to the arbitrator" (when the parties are clearly at liberty to apply to the courts for interim relief) and the period thereafter (when they may do so only "in exceptional circumstances"), the issues arising with respect to each of those two periods will be considered separately below, one after the other, primarily on the basis of the ICC's experience drawn from approximately twenty-five arbitral awards rendered over the last fifteen years.⁶ There is also abundant jurisprudence stemming from the decisions of national courts in relation to ICC arbitration clauses, some of which is referred to below, although not exhaustively.

Finally, the alternative mechanisms offered by the ICC's Pre-Arbitral Referee Procedure and International Centre for Technical Expertise will be considered.

I. Before the transmittal of the file to the arbitrator

The ICC Rules have expressly recognized for over fifty years⁷ that an ICC arbitration clause does not preclude the parties from applying to a court for interim or conservatory relief "before the file is transmitted to the arbitrator" (Article 8.5 of the current version of the Rules). Indeed, prior to such time, interim or conservatory relief would not otherwise be available unless the parties had agreed to an alternative procedure (such as, e.g., the ICC Pre-Arbitral Referee Procedure discussed below). As it may take several months after the submission of a Request for Arbitration for an arbitral tribunal to be constituted and in possession of the file,⁸ access to the courts during the intervening period may be of crucial importance to the parties if the interim relief required is of an urgent nature.

Although Article 8.5 clearly permits the parties to seek interim or conservatory relief from the courts before the submittal of a Request for Arbitration to an ICC arbitral tribunal, several related issues nevertheless arise, about which a few words should be said. Each will be considered in turn.

A. Will the courts give effect to the exception to the arbitral tribunal's jurisdiction carved out by Article 8.5?

As Article 8.5 effectively forms part of the arbitration agreement between the parties, whenever provision is made for ICC arbitration, and expressly exempts interim and conservatory measures, in accordance with the conditions of that Article, from the waiver of judicial jurisdiction implicit in the arbitration agreement, the courts could reasonably be expected to give effect to that agreement and, hence, accept jurisdiction over matters entering within the scope of Article 8.5.

That has, in fact, been the case generally. But, surprisingly, this has not always been so. In a well-known line of cases in the federal and state courts in the United States (see most notably McCreary Tire & Rubber Co. v. CEAT, 501 F. 2d 1032 (3d Circ. 1974) and Cooper v. Ateliers de la Motobecane S.A., 456 N.Y.S. 2d 728 (1982)), it has been held that, under Article II(3) of the 1958 New York Convention, courts are precluded from granting pre-award attachments, the courts' reasoning being that [Page48:] the interest of the New York Convention is that there be no significant judicial intervention until after an arbitration award is made.⁹

The McCreary and Cooper cases and their progeny have been the subject of considerable commentary, much of it critical¹⁰ and it is not intended, in this paper, to examine the courts' reasoning in those cases in detail.¹¹ However, a surprising feature of those cases is that both arose under agreements providing for arbitration in accordance with the ICC Rules,¹² and yet no effect was given to the provisions of Article 8.5, which appear simply to have been disregarded. In fact, no mention was made in either the McCreary or the Cooper decision of that provision. Even the dissenting judge in the Cooper case did not refer to Article 8.5. This raises the question of whether the courts' attention was ever drawn to that provision. If, as it appears, this was not the case, then the two leading US judicial precedents denying judicial interim relief may have been based on a regrettable misapprehension of a critical fact, i.e. the parties' incorporation in their arbitration agreement of the provision contained in Article 8.5 of the ICC Rules. One can only wonder whether the outcome of McCreary and Cooper, which have continued to be relied upon by certain courts in the United States (see, e.g., Drexel Burnham Lambert. Inc. v. Ruebsamen, 531 N.Y.S. 2d 547 (1988), not an ICC case), would not have been different had the provisions of Article 8.5 been drawn to the courts' attention.

While the reluctance of the courts to grant provisional relief in the foregoing cases can arguably be understood in the absence of a provision such as that contained in Article 8.5, it is difficult to countenance an approach that would simply deny effect to the parties' agreement that Article 8.5 of the ICC Rules be applied. As the courts in McCreary and Cooper do not appear to have considered the possible impact of that provision, it cannot be assumed that other courts, even in those jurisdictions, would necessarily follow the reasoning set forth in those cases where an ICC arbitration clause has been adopted and Article 8.5 has been brought to the courts' attention.

Indeed, other US courts have granted interim relief in connection with ICC arbitration provisions, contrary to McCreary and Cooper (see, e.g., Matrenord. S.A. v. Zokor International Ltd., No. 84-1639, ship. op. (ED. Ill. Dec. 19, 1984), (rejecting McCreary and Cooper and granting a pre-arbitration attachment) and Rogers. Burgun. Shahine & Deschler, Inc. v. Dongson Constr. Co., 598 F Supp. 754 (SDNY 1984)). In the first of the foregoing two decisions, Article 8.5 was expressly mentioned.

The above cases highlight the importance for parties of bringing to the courts' attention the provisions of the ICC Rules when they are called upon to consider a request for interim or conservatory measures.

B. Which courts are competent to grant the relief requested?

Article 8.5 provides that the parties are at liberty to apply to "any competent judicial authority", which immediately raises the question: which authority is competent? The answer will, of course, vary depending upon the procedural laws of the countries to which a party might wish to apply for interim or conservatory relief, and a survey of those laws is beyond the scope of this paper.¹³ However, parties to ICC arbitrations should bear in mind that the competence of a particular judicial [Page49:] authority may be affected by the place chosen for the arbitration and the procedural law, if any, that is to apply.

A noteworthy recent judicial decision in this connection, that relates to an ICC arbitration agreement, is the judgment of the English Court of Appeal (Staughton LJ) in the case of The Channel Tunnel Group Ltd. and France Manche S.A. v. Balfour Beatty Construction Ltd. and Others (January 22, 1992).¹⁴ The contract in that case provided for ICC arbitration in Brussels, the parties being English and French concerns and the work that was the subject of their contract being the construction of a tunnel under the channel between England and France. Upon the receipt by the employer from the contractors of a notice that they would be obliged to suspend certain work in the tunnel unless certain conditions were met, the employer, prior to an arbitration being commenced, applied to the Commercial Court in London for an injunction restraining the contractors from suspending work. The court decided that, upon the submission from the contractors of an undertaking that they would not suspend work, no order would be granted, and this decision was then appealed.

The issue that was considered by the Court of Appeal was whether, where some of the parties were not English and they had all agreed to an ICC arbitration in Brussels and not England, an English court had power to grant an injunction, even though the work that was the subject of the injunction was to be carried out (at least partly) in England. Construing the relevant provision of the English Arbitration Act 1950 (Section 12(6)(h)),¹⁵ Lord Justice Staughton held that an English court did not have jurisdiction to grant the injunction requested since the seat of the arbitration was Brussels. The court stated:

Rule 8(5) of the International Chamber of Commerce provides that the parties may apply "to any competent judicial authority for interim or conservatory measures". That ought to mean the courts of Brussels. If it does not, and is wider in scope, it at most amounts to an option to choose some other curial law for that limited purpose. But it follows from what I have already said that an express choice of English law as the curial law does not confer jurisdiction under section 12(6)(h), if the arbitration has a foreign seat; nor would a choice of foreign law have taken away jurisdiction if the seat of the arbitration was in England.

That the English court in this case found that it was not empowered to act where the parties had agreed to arbitrate their dispute in a foreign jurisdiction underlines the importance, in this context, of the parties' choice of the place of arbitration. Although outside England interim measures of relief are commonly available from courts other than those of the place of arbitration, it cannot simply be assumed that they always will be.

[Note: By a judgment, dated January 21, 1993, the English House of Lords decided, on an appeal of the Court of Appeal's judgment, that:

...the Court does have power in the present case to grant the injunction for which the appellants contend...

Although the House of Lords agreed with the Court of Appeal that no such power arose in this case under Section 12(6)(h) of the Arbitration Act 1950 as the arbitration was a foreign one, it nevertheless considered that the Court had power to grant an interlocutory injunction under Section 37(1) of the Supreme Court Act 1981. It also found, however, that such an injunction should not be granted in the circumstances of this case.]

Choices of procedural law, to the extent made, may also be important. Indeed, one prominent French commentator has suggested that, if, in their contract, the parties designate the procedural law of a country that does not permit the requested interim relief pending arbitration, the court of a country that does permit such relief should, if requested to grant it, defer to the agreed procedural law and refuse to do so.¹⁶[Page50:]

Careful consideration of the implications, for the availability of interim and conservatory measures, of such choices may therefore be of critical importance when negotiating the arbitration agreement.

C. Does the relief requested constitute an "interim" or "conservatory" measure within the meaning of Article 8.5?

Article 8.5 provides that the parties may refer to the competent judicial authority for "interim" or "conservatory" measures. However, the Rules contain no definition of such measures. What an "interim" or "conservatory" measure is, within the meaning of Article 8.5, will therefore normally be left for the national courts to determine when faced with a request for relief from a party bound by an ICC arbitration clause.¹⁷

The interim and conservatory measures that courts have been willing to grant in such cases are extraordinarily diverse, ranging from injunctions and attachments to orders requiring interim payments, the appointment of experts and other measures.¹⁸

Although national legislation on the subject varies considerably, and attempts at generalization are hazardous in the face of such diversity, it is fair to say, as a general rule, that courts must be convinced, in issuing any such measures, that there is a substantial risk of significant prejudice to a party if the relief sought is not granted and that the measures requested will not frustrate or otherwise interfere with or prejudge the outcome of the arbitration to be conducted. Thus, the relief requested must generally be required urgently, it must be of a temporary, rather than a permanent, character, and there must be a threat of harm. Sometimes, there must also be a showing that the party requesting the measure has at least a colorable claim, if not a substantial likelihood of success on the merits.¹⁹

Although most of these principles are uncontroversial and universally accepted, notwithstanding their many domestic nuances, difficult situations may nevertheless arise where the line between what is permissible and what is not becomes more difficult to establish. Thus, for example, there has been a great deal of controversy in France concerning the interim character of applications before the juge des référés (the referee judge)²⁰ for provisional payments (provisions) where the parties are bound by an arbitration clause and the entitlement of the applicant to such payment would be an issue to be decided in the arbitration.²¹

Similarly, there has been criticism of the willingness of French courts to appoint experts to examine and report upon matters that are subject to arbitration under the agreement of the parties.²² Thus, for example, in a recent case where a contractor complained that the progress of his work under a construction contract was being delayed, he was able to obtain from the French referee judge, prior to [Page51:] the commencement of the arbitration, an order designating an expert to examine and report upon the delays in question notwithstanding the presence of an ICC arbitration clause in the contract between the parties. In ruling upon the employer's appeal of that decision, the Paris Court of Appeal held that (author's translation from the French):²³

... [the Employer] contends in any case that the requested expertise constitutes neither an interim measure nor a conservatory measure within the meaning of the new Code of civil procedure and of article 8.5 of the arbitration rules of the International Chamber of Commerce. They affirm that an expertise cannot be ordered in order to preserve or establish evidence of a fact upon which the resolution of a litigation may depend within the meaning of article 145 of the new Code of civil procedure.

(...)

That it is appropriate in this connection to emphasize that when ... [the judge] was seized the file had not been transmitted to the arbitrator and that, in accordance with article 8.5 of the arbitration rules the referee judge was competent to see that interim or conservatory measures were ordered.

(...)

That it was indeed urgent to assemble all of these elements [of fact relating to the technical means of execution of the contract] before the final dispersement of all those who participated on the project, as much at the level of the designers as all of the contractors, and to proceed with this examination before the disappearance of all of the elements used; that it was truly a matter of urgent conservatory measures as it appears that if they had not been provided for, the interests of the claimant would have been prejudiced.

Whatever the merits of the court's reasoning in the above passage, upon which it would not be appropriate in this paper to comment, it is evident that, in circumstances such as these, the foreign parties find themselves embroiled in proceedings before the local courts entailing investigations to be carried out by local experts with respect to matters that such parties may have assumed, when providing for international arbitration, would be addressed in an arbitral forum.

Although the report of an expert designated by the French courts is not binding and would not have to be followed or necessarily even taken into consideration by an arbitral tribunal subsequently constituted, it may nevertheless have as its object the very matters that the parties agreed to submit to arbitration.²⁴ If they wish to exclude recourse to the courts in such circumstances, parties can, however, and should say so expressly in their arbitration agreement or provide for some alternative procedure, such as the ICC's Pre-Arbitral Referee Rules or the Rules of the ICC's International Centre for Technical Expertise.²⁵ However, this still appears to be very rare in practice.

Even if a party to an arbitration agreement is successful in obtaining relief from a court, as in the above circumstances, the issue of whether the relief obtained was truly "interim" or "conservatory" within the meaning of Article 8.5 may subsequently arise during the later arbitration. The issue tends to arise in one of two ways. It may, for example, be argued that, in seeking the intervention of a state court, a party has waived its right to arbitrate.²⁶ Alternatively, such conduct may be claimed to infringe the agreement to arbitrate and, thus, give rise to a claim for damages. There is abundant ICC arbitral jurisprudence on these [Page52:] questions that sheds light on the way in which arbitrators have construed the meaning of "interim" and "conservatory" under Article 8.5.

Thus, in ICC cases 2444 (Clunet (1977), p. 932), 4156 (Clunet (1984), p. 937) and 5650 (YCA XVI (1991), p. 85), it was held that an application to a state court for the appointment of an expert in advance of arbitration did not constitute either a waiver of arbitration (cases 2444 and 4156) or a violation of the arbitration agreement (case 5650). In each case, the expert report solicited was required urgently in order to record certain facts that might otherwise be difficult to determine, and the expert's report would not, under the relevant national statutes, be binding on the parties or any judicial or arbitral authority. In case 5650, for example, the claimant in the arbitration, a US contractor, had received a writ from three experts designated by a local court in an African country, at the instance of the defendant, an African State, requesting it to attend certain valuation proceedings to be carried out in connection with the hotel that was the object of the contract between the claimant and the defendant. The arbitrator, sitting in Geneva, held as follows with respect to the claimant's contention that the defendant had breached the arbitration agreement by initiating and requiring the claimant to attend the expertise proceedings:

First of all it must be cleared up whether an expertise can fall under the concept of `interim or conservatory measures' according to said Art. 8(5) of the ICC Rules for Arbitration. Generally speaking, it has been admitted in several awards rendered in accordance with the ICC Rules that an expertise can be construed as a conservatory measure in the sense of said Art. 8(5). In an award rendered in the matter no. 2444 in 1976 it is stated that :

"The contractual acceptance not having taken place, claimant requested an expert opinion from the departmental ... court ... in order to make a report on the installation. This request was in conformity with the ICC Rules of Conciliation and Arbitration (Art. 13(5) of the Rules of 1 June 1955 and Art. 8(5) of the text in force as of 1 June 1975). Respondent neglected, however, to inform promptly the Court of Arbitration or its Secretariat. This omission, however, does not affect the legitimacy of the request for interim measures addressed to the French court of ... (Clunet 1977, p. 933)."' (translation)

In his comment of that award, Mr Yves Derains states clearly that:

"Nor is it surprising, in these conditions that the arbitral tribunal, in the present case, indicated that the agreement by the parties to ICC arbitration does not deprive them of the right to resort to a judicial expert opinion, of a protective nature, before the arbitration was commenced (Clunet 1977, p. 934)."' (translation)

In other awards it was also decided that by resorting to a judicial expertise according to Art. 8(5), a party does not renounce the arbitration clause (see for instance the award rendered in matter no. 4156 in 1983: Clunet 1984, p. 940 and the award rendered in matter no. 4998 in 1985: Clunet 1986, p. 1139).

In the light of this general principle can the assignation dated 8 April 1986 be considered as in conformity with Art. 8(5)?

During the oral hearing, the defendant made it clear that a first assignation was delivered on 26 February 1986 against Company X, the task of the group of experts being to "provide all technical and other elements of fact likely to allow, should the case arise, the relevant jurisdiction, to determine the liabilities possibly incurred and to evaluate, if necessary, the sustained damages".

In the course of the expertise Company X contended that it was not involved alone and that claimant ought to be called in the expertise too. But the assignations of February as well as of April aimed only at having experts fulfilling the above-mentioned task. No judicial action was brought at that time against the claimant. The sense of the assignation of April against the claimant was to allow it to attend the expertise and to avoid the dangers arising for it from not being present at the expertise.

Anyhow the claimant was not bound by that expertise which could not have been used before a national court against it, according to Art. 12 of the Agreement. As the case might be, a new expertise would always have been possible in the framework of an ICC arbitration. But, on the other hand, h is not surprising that the claimant did not understand, at first glance, and without any explanation of the respondent, the exact meaning of the assignation of April directed against it. The letter of claimant, dated 18 April 1986, shows clearly that a misunderstanding arose between the parties. In conclusion, it must [Page53:] be held that the assignation dated 8 April 1986 did not amount to a violation of Art. 8(5).

Having decided that the expertise procedure did not infringe Article 8.5, the arbitrator went on to find, however, that the article had been violated by the subsequent introduction by the defendant against the claimant of a lawsuit in the local courts with respect to the merits of the dispute.²⁷

In other cases, ICC arbitrators have found that Article 8.5 was not infringed or arbitration waived where a party:

(i) obtained the attachment of the other party's bank accounts (case 4415, Clunet (1984), p. 530; see also case 4998, Clunet (1986), p. 1139, where this was implicitly admitted);

(ii) commenced garnishment proceedings to preserve goods that were the subject of the dispute between the parties (unpublished award);

(iii) sought to obtain an order enjoining the payment of a bank guarantee (unpublished award);

(iv) obtained an order authorizing it to contract with a new subcontractor in place of its original subcontractor, who was ordered to leave the site, without prejudice to the party's possible liability for damages in the event that it were found to have wrongfully terminated the subcontract (case 4126, Clunet (1987), p. 934);

(v) obtained an order for provisional payment (case 5103, Clunet (1988), p. 1206); or

(vi) obtained an order from an Italian court temporarily blocking payments under the contract at issue (unpublished award).

However, where a party had, prior to arbitration, applied for, and obtained from a Pakistani court, a permanent (as opposed to a temporary) injunction, the arbitrators, sitting in Paris, concluded that such party had waived its right to arbitrate the related claim as the court, in granting such injunction, was required to make a "final determination on the merits" (unpublished award). In so ruling, the arbitrators noted that:

Under English law [the proper law of the contract containing the arbitration clause], the commencement of an action claiming a permanent injunction will (in the absence of a sufficient countervailing factor) be almost irresistible objective evidence of an intention to repudiate or waive the arbitration agreement, and this will be so whether or not such action is combined with or accompanied by a claim for a temporary injunction. On the other hand an action claiming only a temporary injunction will not constitute such evidence. Such a rule of law is in accordance with the law of many other countries, and with the principle underlying Article 8.5 of the Rules of the ICC: "... 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". The inference would be that to apply for relief which does not fall within the words interim or conservatory measures' would infringe the agreement to arbitrate.

While there appears to be little controversy concerning the compatibility of most of the interim and conservatory measures considered above with Article 8.5 of the ICC Rules, and courts and arbitral tribunals have generally interpreted that provision consistently insofar as it relates to the measures allowable during the pre-arbitral stage of a dispute, that does not mean that the arbitral tribunal, once constituted, will necessarily agree or accept that the measures taken prior to its constitution should be allowed to stand. Indeed, as discussed further below, the arbitral tribunal, once seized of the matter, might direct a party to waive or otherwise take steps to have removed interim or conservatory measures obtained prior to the commencement of the arbitration proceedings. The attitudes of ICC arbitral tribunals in this regard have differed, however.

Moreover, even where the interim relief obtained by a party may be compatible with Article 8.5, that party may be liable to the other for damage caused by the measures in question if its claims are not ultimately successful in the arbitration.²⁸ However, any [Page54:] claim, in this connection, should normally fall within the arbitral tribunal's Terms of Reference if it is to be dealt with in an ICC arbitration.²⁹

D. What should be the duration of any court-ordered interim relief?

When interim or conservatory measures are sought prior to the commencement of any proceedings on the merits of the underlying claim, it is a common requirement of national procedural laws that such proceedings be commenced within a specified and relatively brief period of time thereafter. It appears to be widely accepted, in this connection, that the commencement of an ICC arbitration, whether in the country of the court issuing the interim or conservatory order, or elsewhere, will satisfy such a requirement.³⁰ However, if an ICC arbitration is not commenced, a court may, of course, decide to vacate an order earlier granted.

Because interim or conservatory measures are, by their very nature, temporary, they will normally endure only for so long as the merits of the related claim have not been finally decided. As mentioned above (and discussed further in Section III.A below), arbitrators, when seized of the file, might also direct the parties to take certain actions in respect of such measures or require that they be replaced with others under the control of the ICC arbitral tribunal.

This being said, a vexing problem may occur with respect, for example, to a judicially ordered expertise procedure. Such a procedure may take considerable time to be completed, thus, leading to a situation in at least one ICC arbitration of which the author is aware in which the expertise proceeding ordered by a French referee judge was being conducted in parallel with and independent of the arbitration proceeding. This would hardly seem to be within the spirit of Article 8.5 of the ICC Rules.

E. Must such relief be notified to the ICC?

Article 8.5 provides that any applications to judicial authorities or measures taken pursuant thereto "must be notified without delay to the Secretariat of the Court of Arbitration". This is to ensure that the arbitral tribunal, once constituted, will be aware of any such applications or measures. The requirement should therefore obviously only apply once a Request for Arbitration has been submitted to the ICC.

The question sometimes arises as to what the consequences might be of a failure to notify "without delay" in a particular case. Arbitral tribunals have been called upon to construe the requirement in at least three cases (2444, Clunet (1977), p. 932; 4415, Clunet (1984), p. 530; and 5103 (Clunet (1988), p. 1206) and have refrained from imposing any sanctions for non-compliance with the notification provision.³¹ As a practical matter, any measures taken by one of the parties before the courts will be likely to be raised with the arbitral tribunal by one or both of the parties very early on in the arbitration proceeding.

II. After the transmittal of the file to the arbitrator

Once the arbitral tribunal has been constituted and the file has been transmitted to it by the ICC, the parties may, depending upon the circumstances, apply either to the courts or to the arbitral tribunal for provisional or conservatory relief. Whether and to what extent they may do so as well as certain of the related issues that may arise in ICC arbitration are now considered.

A. Recourse to the courts

Article 8.5 provides that the parties may continue to have recourse to the courts only "in exceptional circumstances".³² The implication is that, once the arbitrators have been seized of the file, applications for interim or conservatory [Page55:] measures should normally be addressed to them.³³ Where, however, the arbitrators would not have the power, under the rules governing the proceedings, to grant the relief required, or no equally effective alternative would be available in the arbitration itself, there seems little question that the parties should not be prevented from seeking relief from the courts if the circumstances otherwise warrant it (e.g., in cases of urgency). This arguably could also be the case where the arbitral tribunal, although constituted, is temporarily unable to function, due, e.g., to the resignation or challenge of an arbitrator.³⁴ An arbitral tribunal may also be reluctant to act in circumstances where the full amount of the advance on costs has not been paid, which would not normally occur until after the Terms of Reference have been submitted to the ICC Court (see Section III.B.3 below). The refusal or inability of an arbitral tribunal to grant provisional measures in such cases would arguably constitute "exceptional circumstances" permitting recourse to be made to the courts.

There appear, in fact, to have been few occasions upon which arbitrators have been required to construe the meaning of the words "in exceptional circumstances".³⁵ This is most likely because interim or conservatory measures, if required, will usually have to be taken, if they are to be effective, as soon as a dispute arises, long before an arbitral tribunal has been constituted and seized of the file.

In one recent case, however, an ICC arbitral tribunal decided that the claimant party in the arbitration, the local subcontractor of the defendant, a foreign contractor, had breached Article 8.5 by applying for and obtaining, after the file had been transmitted to the arbitrators, two orders from a court (in an Arab country where the construction project at issue had been performed) attaching assets of the defendant party within the jurisdiction of that court. The assets in question constituted funds owed to the defendant by a government entity with which it had contracted for the project in question and funds held by certain banks and financial institutions.

In that case, the arbitral tribunal found, first of all, that, under the ICC Rules, it had the power to make interlocutory orders addressed as directions to the parties of the arbitration. That power, according to the tribunal, results implicitly from Art. 8.5.³⁶ Having so found, the tribunal went on to conclude that the circumstances that led the claimant to seek attachment orders from a state court were not "exceptional" within the meaning of Article 8.5.

In this regard, the claimant argued that the following "exceptional circumstances" justified its application to the court for relief:

(i) the defendant was a foreign company that had liquidated its business in the country;

(ii) a number of other claims had been filed against the defendant in the courts by other parties; and,

(iii) the defendant still held two performance guarantees of the claimant which it might seek to call.

The arbitral tribunal considered, however, that none of the above circumstances were "exceptional" and that it was itself in a position to fashion adequate provisional relief. With respect to the points raised by the claimant, the tribunal reasoned as follows: [Page56:]

It is in international commercial arbitration not at all exceptional, but normal that one of the parties is, as seen from the other party's point of view, a "foreign" company. It is not exceptional either that the party, being a foreign party, does not hold any assets in the state of residence of a claimant party; therefore, the fact that such foreign company is liquidating its business in claimant's country and abandoning it, may not create an exceptional situation.

It is not rare that a main contractor entrusted with construction work... is being sued by more than one subcontractor or supplier. Even if it were true that various claims have been filed against Defendant before... [the local] courts, such circumstances would only be exceptional if the number and amounts of claims in dispute would justify reasonable doubts as to Defendant's solvency, i.e. as to the question whether Claimant could expect to be paid out of Defendant's assets in the country where it would have to seek execution of the requested award..... Nothing has been argued to this effect by Claimant.

The fact that Defendant might call two performance guarantees... does not justify an attachment order.... If Claimant has reasons to believe that Defendant might call the guarantees and that such calling would be unjustified, it may request the Arbitral Tribunal to issue an order by which Defendant is directed to refrain from calling the guarantees.

The Arbitral Tribunal holds therefore that Claimant was in breach of the agreement to arbitrate and of Art. 8(5) of the ICC Rules when it applied for attachment orders to the ... court.

After finding that the claimant was not entitled to apply to the court for relief, the arbitral tribunal concluded that the claimant should "waive" the attachments obtained. However, the tribunal at the same time directed the defendant to provide replacement security in the form of a bank guarantee to be issued in favor of the claimant in accordance with the tribunal's instructions. Such guarantee was to remain valid until after the final award in the arbitration had been notified to the issuing bank by the ICC, subject, however, to the guarantee's possible nullification by notice of the Chairman of the arbitral tribunal or the Secretary General of the ICC Court to the bank upon the occurrence of certain specified events.³⁷

The above case illustrates not only an ICC arbitral tribunal's interpretation of its authority to grant interim relief, but also its willingness to direct a party to relinquish judicial remedies already obtained. In that instance, the tribunal's resolve was evidently fortified by the fact that the claimant had sought relief from the courts after the file had been transmitted to the arbitral tribunal. One wonders, however, whether the tribunal would also have been willing to issue the directions that it did had the relief ordered by the courts preceded the transmission of the file to the arbitrators, i.e., had it been obtained at a time when Article 8.5 clearly allows recourse to the courts.

In principle, insofar as arbitrators have the authority to issue interim and conservatory measures, as the tribunal found in the above case, there should be nothing to prevent them from adopting the same approach whether or not the relief ordered by the court was obtained before or after the file was transmitted to the arbitral tribunal.³⁸ However, in at least one ICC case (no. 4998, reported in Clunet at (1986), p. 1139), the tribunal, in circumstances very similar to those of the case just described, refused a defendant's request for similar relief, i.e., the production of a bank guarantee in substitution for attachment orders that had been judicially obtained. In so ruling, the tribunal indicated that it would be "very serious" for an arbitral tribunal to modify a measure already ordered by an ordinary judicial authority.³⁹

A similar approach was adopted by another ICC tribunal in a more recent case. There, the tribunal, sitting in Switzerland, was requested by the claimant to direct the defendant to renounce an order obtained by it from an Italian court following the commencement of the arbitration, but prior to the transmission of the file to the arbitrators, that temporarily released it from any obligation to make further payments to the claimant party under the contract at issue. [Page57:]

The claimant also requested the tribunal to order the defendant to make an immediate partial payment to it.

The tribunal refused to accede to either of the claimant's requests. In so holding, it stated that (author's translation from French):

Italian law, applicable to the contract by the choice of the parties, made available to ... [the defendants] a referee procedure which authorized their payment to be withheld. Their demonstration convinced the Tribunal of Milan, which accorded such authorization, in the form of a séquestre libératoire. The arbitral tribunal is not competent to lift such sequestration or to order the defendants to renounce it.

The tribunal further explained that under neither the ICC Rules nor the Swiss Concordat, which governed the procedure, did it possess the power to "invite" a party to cause to be vacated a provisional order obtained from a national court. Nor did the tribunal consider, in the circumstances, that it had the authority to order a provisional payment to be made.

Although the tribunal's decision in the above case depended, in part, on its conclusion that it did not have the authority under the ICC Rules to give interim relief of the kind requested, it nevertheless also highlights the general hesitancy of tribunals to take action contrary to or inconsistent with interim relief already ordered by a court.

In yet another ICC case, moreover (no. 4126, reported in Clunet (1984), p. 934), the arbitral tribunal's hesitations extended to a situation where a national court had earlier been requested, but refused, to issue interim relief similar to that which the arbitrators were being asked to grant. In that case, the court had previously been requested, by one of the parties, to block the payment by the issuing bank of certain performance guarantees. The court had refused to enjoin the calling of the guarantees, and an application was, thus, made to the arbitral tribunal to direct that the guarantees not be called. The arbitral tribunal held (author's translation from French):

If it is true that the Owner was not a party to the referee procedure in the context of which the decision of the Court of Appeal was rendered, it is nonetheless the case that the object of the request now advanced before the arbitral tribunal is essentially identical to that judged in that procedure: a prohibition against the interested party to avail itself of the guarantees in issue. But even if for the reason indicated a strict rule of non bis in idem does not apply in this case, the rules of good procedural order recognized in an important number of countries including those of the European Communities do not prevent any less a party to an arbitration from availing itself, for a request that is essentially identical ..., of the successive possibilities offered by state jurisdictions and those inherent in the existence of another jurisdiction, this one arbitral, without there being an objective change in circumstances. Such a change not having been alleged by the contractor, it is bound by the decision of the Court of Appeal, independently of the question of whether the Arbitral Tribunal was or was not in existence at the time.

Thus, the arbitral tribunal was unwilling to grant provisional relief in respect of a question that had been raised before, and decided as a preliminary matter by, the courts. The tribunal's decision was not founded, in case 4126, on an interpretation of its authority under Article 8.5 of the ICC Rules, which was not, in fact, questioned, but rather derived from its reluctance to interfere, by means of a provisional decision, with the operation of guarantees where the courts had been unwilling to do so.

Thus, a party who seeks interim relief before the courts and fails may find itself unable to obtain the same or similar relief from an arbitral tribunal subsequently. If, however, it succeeds, the arbitral tribunal subsequently constituted may be reluctant to alter the relief obtained, although there have been situations in which arbitral tribunals have been willing to do so, as noted above. Moreover, where relief is sought from the courts after the arbitral tribunal has been seized of the file, there is a risk, depending on the circumstances, that Article 8.5 will be found to have been violated. The violation of Article 8.5 can also arguably give rise to a claim for damages (see, in this connection, however, note 29 above.).

B. Recourse to the arbitral tribunal

1) The arbitrator's authority

As already indicated, ICC arbitral tribunals have found that they have the power, under the ICC Rules, to order interim or conservatory measures "as directions to the parties" in the arbitration. Even though the ICC Rules do not [Page58:] contain any express provision to this effect, that arbitrators have such a power appears to be the prevailing view of the arbitrators in the ICC cases surveyed for the purpose of preparing this paper. Moreover, in those instances where ICC arbitrators have asserted that they did not enjoy such authority, a national procedural law expressly granting the courts exclusive competence in respect of interim measures (e.g., Article 26 of the Swiss Concordat) has generally also been found by the arbitrators to apply.

The absence of a provision in the ICC Rules expressly empowering the arbitrators to order interim or conservatory relief has nonetheless given rise to uncertainty concerning the powers of arbitrators under the Rules in this regard. Article 8.5 does, however, acknowledge the "relevant powers reserved to the arbitrator". This passage was added to Article 8.5 when the Rules were revised in 1975. At the same time, a provision was added to Article 8.5 restricting the parties' right to apply to the courts for interim relief after the transmission of the file to the arbitral tribunal only in "exceptional circumstances". The prior (1955) version of the Rules contained no such restriction;⁴⁰ nor was any reference made to the powers reserved to the arbitrator. It appears to have been precisely because the prior version of the Rules failed to mention the interim measures that the arbitral tribunal might order that the foregoing changes were made to Article 8.5.⁴¹

The current drafting of Article 8.5 has nevertheless led to legitimate inquiry concerning the nature and extent of the "powers reserved to the arbitrators". Some arbitral tribunals, as has already been mentioned, appear to consider that they enjoy such powers "implicitly" under Article 8.5 itself.⁴² Others have adopted the view that the parties or the law governing the arbitration procedure may confer such authority on the arbitral tribunal, but that in the absence of an express agreement or legal provision, the tribunal does not have the power to issue interim or conservatory measures. In the author's view, neither of the foregoing propositions takes sufficient account of the provisions of Article 11 of the ICC Rules.

Article 11 was introduced into the Rules in 1975 together with the modifications of Article 8.5 mentioned above. One of the most important features of the 1975 revision of the Rules, Article 11 provides as follows:

The rules governing the proceedings before the arbitrator shall be those resulting from these Rules, and where these Rules are silent, any rules which the parties (or, failing them, the arbitrator) may settle, and whether or not reference is thereby made to a municipal procedural law to be applied to the arbitration.

Article 11 was described by Dr. Frédéric Eisemann, the distinguished former Secretary General of the Court, as a "revolutionary innovation".⁴³ What is "revolutionary" about this provision is that it authorizes the parties and the arbitrators to conduct the arbitral proceedings outside any specific national procedural law, except insofar as any provisions of such law might otherwise apply mandatorily.

Provisional or conservatory measures are generally regarded as matters governed by laws of procedure, and, insofar as they are, should be subject to Article 11. By virtue of the broad powers that they enjoy under Article 11 to establish the procedure to be followed in the arbitration, ICC arbitrators should generally have the authority, therefore, to grant interim or conservatory measures, failing a mandatory provision of national procedural law or an express stipulation of the parties to the contrary.

Of course, parties and arbitrators must be attentive to mandatory provisions of national law that may prevent arbitrators from issuing such measures.⁴⁴[Page59:]

2) Considerations relating to the exercise of the arbitrator's authority

The nature and extent of the arbitrator's authority to grant interim or conservatory relief differ from that of the courts in numerous respects.

The most important and obvious such difference is that orders given by arbitrators are not self-executing, like those of courts, and must generally take the form of directions to the parties to perform or to refrain from performing certain acts. Such orders, unlike the orders of courts, also cannot extend to third persons not parties to the arbitration and generally must have something to do with the matter that is the subject of the dispute. There are, thus, a number of interim and conservatory measures (e.g., attachments) that arbitrators are simply not in a position to grant.⁴⁵

Although the orders of arbitrators are not self-executing, ICC arbitrators may have various means of encouraging compliance with their interim directions. Thus, in one recent case, the tribunal held out the possibility of imposing sanctions on the claimant in the event of its disobedience of the tribunal's award of interim relief. Similarly, a tribunal in another case appears to have accepted that it might be possible for it to impose penalties (astreintes) on a non-complying party, although it refused to provide for such penalties in that case because no mention of such relief was contained in the Terms of Reference, which the tribunal considered to be necessary.⁴⁶

Ultimately, of course, the arbitrators' greatest source of coercive power resides in their position as arbiters of the merits of the dispute between the parties. Parties seeking to appear before the arbitrators as good citizens who have been wronged by their adversary will generally not wish to defy instructions given to them by those whom they wish to convince of the justice of their claims. Of course, non-compliance could also expose the non-complying party to an action for breach of the parties' arbitration agreement, not to mention a possible action in the courts for enforcement of the arbitrator's award of the interim or conservatory measures concerned.⁴⁷

This having been said, there are other important differences between applications for interim measures before courts and arbitrators.

Thus, for example, interim relief can often be obtained from the courts on an ex parte basis without the knowledge or presence of the other party. Indeed, in certain circumstances, interim relief will only be effective if granted ex parte, e.g., to avoid the risk that assets will be hidden or transferred. It would be inconsistent with the principles generally governing arbitration, however, to permit ex parte relief. Indeed, Article 15.4 of the ICC Rules expressly provides that "all the parties" shall be entitled to be present at the hearings, which arguably prevents an ICC arbitral tribunal from convening a hearing, even for interim or conservatory purposes, on an ex parte basis.⁴⁸

Another possible distinction between the courts and arbitrators in this regard is that when a request for interim or conservatory relief is brought before an arbitrator, he may consider that he has broader discretion than a court might have both in deciding whether to grant the relief requested and in fashioning an appropriate interim remedy.

Although both the court and the arbitrator will wish to avoid making any interim order that[Page60:] could be said to prejudge the merits of the dispute, it will sometimes be the case that by the time an ICC arbitral tribunal is called upon to rule on an application for interim relief, it may already have before it a considerable amount of information about the merits of the case and may have formed a preliminary impression of the respective positions of the parties. Thus, in an ICC case, the arbitrator will normally already have in hand the Request for Arbitration and Answer of the parties. He may also have had to prepare the Terms of Reference (see Section III. B. 3 below) and heard the parties in this connection. To this extent, the arbitrator may be able to exercise his discretion on a more informed basis than a court not also seized of the merits. This was, in any event, the view taken by an ICC tribunal in a recent Partial Award (which has not been published) in which the tribunal, in ordering that a provisional payment be made by the defendant to the claimant, stated (author's translation from French):

The present Arbitral Tribunal is not a referee jurisdiction but a jurisdiction of the merits seized of provisional demands.

In addition, the parties have expressly empowered the Arbitral Tribunal to rule on such demands, the dispute relating to the conditions of granting a provisional payment.

The powers of the judge of the merits ruling provisionally are not limited like those of the referee judge and a serious dispute does not prevent a broader appreciation, although on a provisional basis, of the respective arguments of the parties. On the other hand, urgency is necessary in order for the judge of the merits to make a provisional decision as quickly as possible without awaiting a final decision.⁴⁹

The reference at the end of the above passage to "urgency" is important. Indeed, nearly all of the ICC awards reviewed in connection with the preparation of this paper required a demonstration of "urgency" in order for provisional relief to be granted. But the way in which "urgency" is evaluated may differ, depending on the arbitral tribunal and the national procedural law, if any, used by the tribunal as a reference. In one recent ICC arbitral award rendered by a tribunal in Paris, the tribunal set forth a classic formulation, defining "urgency" as arising where there is (author's translation from French):

... a risk of serious and irreparable harm, present or future... that would render indispensable the taking of an immediate decision such as to eliminate, avoid or reduce such harm.

In another recent case, the arbitral tribunal, also sitting in Paris, held that (author's translation from French):

... a situation has an urgent character when it requires that measures be taken in order to avoid that the legitimate rights of a party are not placed in peril.

There, the tribunal found that the bankruptcy of the defendant party did not create an "urgent" situation since the defendant's capital could not be transferred without judicial approval.

Other tribunals have added the requirement that the threatened harm be imminent. Thus, in one matter, a tribunal faced with a request from a defendant that it "arrest" the merchandise in dispute to prevent the claimant from taking possession of it, denied the request as the claimant had not yet sought to take possession and the defendant could prevent the claimant from doing so for sufficient time to allow the tribunal to grant appropriate interim relief should the need arise.

It should also be emphasized that the grave and irreparable harm usually required by arbitral tribunals can take many forms. Anglo-American lawyers often understand "irreparable" harm as meaning harm that cannot readily be compensated by an award of monetary damages. However, ICC arbitral tribunals have sometimes construed the risk of financial loss itself to constitute irreparable harm. Such loss may, of course, be truly "irreparable" when its severity threatens the financial existence of the applicant for relief. This could, for example, be a consideration when a tribunal is faced with an [Page61:] application for a provisional payment. However, the normal delay that a party may suffer in awaiting payment pending the settlement of a dispute would probably not, in most circumstances, be sufficient to justify an interim award of relief. One ICC arbitral tribunal has stated in this connection:

... the creditor's normal impatience to see his claim satisfied or at least secured, or the normal risk that the debtor's ability to pay his debts might deteriorate in the course of the proceedings, are not sufficient to justify provisional payment or security measures.... In the absence of factual circumstances which call for an urgent remedy against the foreseeable risk of an aggravation of the situation, provisional payments and providing security in view of the final award fall outside the scope of provisional and protective measures in the meaning of Art. 8(5) of the ICC Rules ....

There is a tendency on the part of many arbitral tribunals, however, consistent with the view that they often have of their mandate, to construe the requirement of urgency sufficiently broadly to justify interim measures designed not so much to prevent irreparable harm as to avoid the "aggravation" of the dispute that is the subject of the arbitration. Thus, for example, in ICC case 3896 (Clunet (1982), p. 914), an arbitral tribunal sitting in Lausanne found that, in order to prevent the aggravation of the dispute submitted to arbitration, it was justified in proposing that one of the parties not call bank guarantees issued by a third party bank in connection with the matter in dispute, although the guarantees were otherwise callable on demand.

Similarly, in an unpublished Partial Award in a more recent ICC case, an ICC arbitral tribunal, on the application of the claimant party, a contractor, ordered the defendant employer to withdraw its call of two on-demand bank guarantees, which were at the same time the object of applications for injunctions before the relevant national courts, the basis for the tribunal's order being "to ensure maintenance of the status quo between the parties". In so holding, the tribunal noted that:

... the balance between the position of the parties existing at the time when proceedings were initiated would be upset if ... [the employer] would receive the amounts involved prior to the final award of the tribunal. This danger exists and is urgent as long as the call on the bank guarantees has not been withdrawn.

The tribunal therefore holds that there exists a case of urgency justifying the rendering of an interim order.

In addition to ordering the defendant to withdraw its call on the bank guarantees in that case, the tribunal (i) directed the parties to withdraw their judicial proceedings in all jurisdictions, (ii) ordered the claimant to confirm that the validity of the bank guarantees was being extended until the issue of the final award on the merits, and (iii) ruled that the bank guarantees should be modified to provide that they would be payable "in conformity with the terms of the final award by order of the tribunal".

The latter decision, in particular, arguably went very far in interfering with and suspending the operation of the contractual mechanisms governing the parties' relationship. Although arbitrators may have an understandable wish to prevent a litigious situation from deteriorating further while an arbitration is under way, it can reasonably be asked how far it is appropriate for an arbitrator to go in taking steps to preserve the "balance" between the parties. How is that balance to be defined, and when, in the interest of preserving it, can contractual mechanisms be altered or suspended? In the last analysis, the answer will usually depend upon the circumstances of the particular case.⁵⁰

Thus, in the Partial Award of another ICC tribunal it was held that:

... it is essential, until the final award on all the claims and counterclaims, that the contractual provisions agreed between the parties keep producing all their effects, exception made of events, facts or circumstances which would justify the suspension, totally or partially, of the execution of these obligations or the invocation of the exceptio non adimpleti contractus.[Page62:]

In that case, the tribunal ordered the defendant employer to continue paying the claimant contractor's monthly invoices during the arbitration, notwithstanding the defendant's claim that it was owed money by the claimant for the claimant's alleged breaches of the contract at issue. The tribunal considered in this connection that the merits of the defendant's damages claim were:

…guaranteed sufficiently according to the contractual provisions agreed by the parties, by the benefit of the contractual guarantees which … [the contractor] must renew."

However, the tribunal would not allow the defendant to call the bank guarantee issued in its favor and ruled that the tribunal had "sole authority to allow any can of this guarantee or to cancel it at any moment".

Thus, on the one hand, the tribunal required that the contract provisions be allowed to produce their normal effects while on the other it considered that interference with the bank guarantees was justified. It is important to note, however, that, in weighing the applications for interim relief made to it, the tribunal considered whether the party opposing such relief was protected against the consequences of the tribunal's order by adequate security, i.e., in that case, bank guarantees.⁵¹

Apart from considerations of the kind just discussed, arbitrators will also normally be concerned to ensure that interim measures ordered by them are capable of being carried out. Thus, in a Partial Award in a recent ICC case, the arbitral tribunal, citing Article 26 of the ICC Rules,⁵² refused to accede to the defendant/counter-claimant's request that the claimant, a bankrupt company, be ordered to post a bank guarantee because that order could not have been executed in the country where the claimant's bankruptcy proceedings were pending. The tribunal noted, in particular, that the measure requested would have required the claimant to provide a counter-guarantee to the bank issuing the guarantee in favor of the defendant, effectively giving priority to one of the claimant's creditors over the others. The tribunal, thus, concluded that the requested order instructing the claimant to provide a guarantee would be deemed by the courts where the bankruptcy proceeding was pending to be contrary to the public policy regarding the equality of creditors in bankruptcy proceedings and therefore unenforceable.

More generally, arbitral tribunals appear to be reluctant to order interim or conservatory measures if they are not satisfied that such measures would be capable of preventing the harm that is claimed by the applying party to be threatened.

3) Other considerations

a) As from what point in time is the ICC arbitrator empowered to order interim measures?

Article 13 of the ICC Rules provides that:

Before proceeding with the preparation of the case, the arbitrator shall draw up ... a document defining his Terms of Reference.

The Terms of Reference, in turn, shall only become operative, according to Article 9.4 of the Rules, once the advance on costs has been paid in full to the ICC, and that Article further provides that "the arbitrator shall only proceed in respect of those claims for which the advance on costs has been duly paid". A question therefore arises as to whether an ICC arbitral tribunal can grant interim relief before the Terms of Reference have become operative in accordance with the foregoing provisions.

By limiting applications to the courts for interim measures once the file is "transmitted" to the arbitrator, Article 8.5 itself implies that such measures should be available from the arbitrator as soon as the file has been so transmitted. Moreover, insofar as the arbitrator's authority to issue such measures derives from Article 11 of the ICC Rules, as discussed above, or otherwise from his inherent powers, the parties should not generally be required to make an express stipulation in the Terms of Reference on this subject, the arbitrator's necessary powers arising independently. The injunction contained in Article 13 with respect [Page63:] to the arbitrator's "preparation of the case" also can arguably be construed as referring to the substantive claims and defenses in the arbitration and not temporary protective measures that could be deprived of their efficacy if it were necessary to await the time when the Terms of Reference become operative.⁵³

This being said, none of the ICC awards granting interim relief that were reviewed for the purpose of this paper predated the effective date of the Terms of Reference; nor was the question of the arbitrator's power to issue such relief in advance of such date considered in any of those awards. In one case, however, the claimant's request for interim relief had been submitted as an urgent application to the arbitral tribunal before the Terms of Reference were signed. Without making an award, the arbitrators nevertheless formulated a series of "strong recommendations" to the parties in the form of an "urgent appeal".

Indeed, given the time necessary for an award to be prepared and scrutinized for approval by the ICC Court, interim orders in ICC arbitrations will often take the form, at least initially, of instructions, directions or recommendations to the parties, rather than being incorporated in an award. This raises the question, considered below, of whether an award is necessary or desirable in respect of the interim measures ordered.

b) Is it necessary or desirable for the arbitrators to issue an award?

The foregoing discussion of the ICC's experience of interim and conservatory measures in ICC arbitration has been based on a review of ICC arbitral awards, primarily "interim" or "partial" awards.

The ICC Rules do not contain any reference to "interim" awards, and "partial" awards are only mentioned in Article 21, which provides, in pertinent part, that:

Before signing an award, whether partial or definitive, the arbitrator shall submit it in draft form to the International Court of Arbitration....

Article 24 of the Rules, furthermore, provides that "the arbitral award shall be final", from which it might be inferred that the drafters were not thinking about purely interim or interlocutory awards, but rather awards, whether partial or definitive, that finally dispose of at least some of the substantive issues in the arbitration. In many jurisdictions, moreover, purely interim or interlocutory awards are not enforceable by the courts in accordance with local arbitration legislation.⁵⁴

As can be seen from the foregoing discussion, however, interim and conservatory measures issued by ICC arbitral tribunals often take the form of, or are included in, awards submitted to the Court for scrutiny under Article 21 of the ICC Rules, and the Court has regularly approved such awards, even though they may be neither "final" nor even always "enforceable".

Because of the increasing tendency of arbitral tribunals to issue interim and partial awards with respect to these and other matters, the ICC Commission on International Arbitration a few years ago formed a Working Party to study the matter of such awards. In the report produced by the Working Party,⁵⁵ it was concluded that orders for interim measures of protection, although neither final nor irreversible, may be made in the form of an arbitral award, subject to the provisions of Article 21. It was, however, the Working Party's view that orders for interim measures should not normally be made in the [Page64:] form of an award as this would only have the effect of delaying the issuance of such measures, given the need for the award's scrutiny and approval by the Court under Article 21. In this connection, the Working Party observed that scrutiny would not make any "meaningful contribution" to such awards, which are not generally accompanied by detailed reasons, and for which "great speed is normally of the essence" (Final Report, para. 25).

An award may nevertheless sometimes be desired in respect of certain interim measures in order to enhance their enforceability. However, as already indicated, it cannot be assumed that such an award will necessarily be enforceable as an award (see note 54 above). Familiarity with the requirements of the law applicable where the interim measure may be required to be carried out is therefore essential.

III. The International Centre for Expertise and the ICC pre-arbitral referee procedure

In addition to the interim and conservatory measures discussed above, the ICC offers two complementary mechanisms that may be used to obtain certain forms of such relief without recourse to the courts before an arbitral tribunal is in a position to deal with the matter.

The first such mechanism is the International Centre for Expertise, which permits an expert to be appointed by the ICC to report upon technical matters that may be the subject of a dispute between the parties to a contract. The findings or recommendations of the expert are not binding upon the parties unless they otherwise agree (Article 6.3 of the Rules for Expertise). However, the procedure offers an alternative to the appointment of experts by the courts in jurisdictions such as France prior to arbitration in circumstances where the parties may wish to ensure the neutrality of the expert and to avoid the possible disadvantages (e.g., linguistic) of a local procedure. ⁵⁶

The ICC's Pre-Arbitral Referee Procedure, meanwhile, provides many more possibilities for interim or conservatory relief prior to arbitration. Modeled after the French referee judge procedure, the Pre-Arbitral Referee Rules (the "Referee Rules") have only been in force since January 1, 1990, and the ICC has not yet had any cases referred to it thereunder.⁵⁷ However, the Referee Rules provide that the Referee appointed pursuant thereto shall have the power to order:

(a) any conservatory measures or any measures of restoration that are urgently necessary to prevent either immediate damage or irreparable loss and so to safeguard any of the rights or property of one of the parties;

(b) a party to make to any other party or to another person any payment which ought to be made;

(c) a party to take any steps which ought to be taken according to the contract between the parties, including the signing or delivery of any document or the procuring by a party of the signature or delivery of a document; and

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

Pursuant to Article 2.4 of the Referee Rules, the Referee shall retain the power to grant interim relief notwithstanding the transmission of the case to an arbitrator, unless the parties or arbitrator provide otherwise.

Enforcement of the Referee's orders depends primarily on the parties' good will. Article 6.6 [Page65:] of the Referee Rules provides, in this respect, that the "parties agree to carry out the Referee's order without delay". The Rules do, however, provide for certain means of encouraging compliance. For example, Article 6.8.1 provides that non-compliance with the order is sanctionable by the competent jurisdiction, although court enforcement of a Referee's order may be problematic if such an order is not regarded as an arbitral "award".

Nonetheless, the Pre-Arbitral Referee Procedure constitutes a significant addition to the chain of dispute resolution mechanisms offered by the ICC, obviating the need in many cases for recourse to the courts at any stage of a dispute. Parties may, thus, provide for an ICC expertise, referee, conciliation, or arbitration, thereby maintaining confidentiality throughout the course of the dispute resolution process.

IV. Conclusion

From the above discussion, it is apparent that there are a number of different forums that may be available to provide interim or conservatory relief at the different stages, or prior to the commencement, of an ICC arbitration procedure. The nature, extent and enforceability of the relief available may vary, depending upon the place of the arbitration, the place where the interim or conservatory measures are required to be executed, the procedural law, if any, applicable to the arbitration proceedings and the provisions of any relevant agreements of the parties. The ICC Rules provide a flexible framework in dealing with the multitude of issues that may arise in this connection, and modern arbitral legislation has generally supported the issuance of such interim or conservatory relief, thus enforcing and contributing to the efficacy of the ICC arbitral process.

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Hoellering, "Interim Measures and Arbitration - The Situation in the United States", Arb. J. 22 (June 1991)

Hoellering, "Interim Relief in Aid of International Commercial Arbitration", Wis. Int'l L.J. 1 (1984)

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Jarvin, "Is Exclusion of Concurrent Courts' Jurisdiction over Conservatory Measures to Be Introduced by a Revision of the Convention?", 6J. Intl. Arb. 171 (1989)

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Keitel, "Pre-arbitration Attachment: Is It Available in International Disputes?", 1 Rev. Lit. 211 (1981)

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1
Article XVIII of the 1922 Rules provided:"In all cases, the arbitrators, at the request of either of the interested parties, shall have the right to render a provisional decision, providing for such measures of preservation as may be indispensable and, when strictly necessary, disposing of the merchandise or objects in dispute; it being, however, understood and agreed that any such decision of the arbitrators shall not carry with it any personal responsibility on the part of such arbitrators."According to a Memorandum, authored by Mr. Roberto Pozzi and included in a brochure (no. 13) published by the Council of the International Chamber of Commerce in 1920 under the title "Proposed Plan for ICC Arbitration," this provision had as its source the then rules of the Chamber of Commerce of the United States and of the Commercial Exchange of Buenos Aires, "whereby right is given to the arbitrators to pronounce provisional awards in order to provide for the preservation or sale, for account of persons concerned, of the merchandise which forms the object of the trial".

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2
Article 26(1) of the present UNCITRAL Arbitration Rules is very similar. That provision has been criticized, however, insofar as it refers only to "measures for the conservation of the goods forming the subject matter in dispute". See Baker and Davis, "Arbitral Proceedings Under the UNCITRAL Rules: The Experience of the Iran-United States Claims Tribunal," 23 Geo. Wash. J. Intl. & Econ. 267 at pp. 331 et seq. (1989).

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3
In this connection, the Introduction of the 1922 Rules stated: "In view of the advantages which would accrue to the business world from the creation of an international organization whereby disputes between residents of different countries may be settled without recourse to formal legal procedure, the International Chamber of Commerce believes that it should encourage the use of conciliation and arbitration."

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4
Thus, for example, Article 26 of the 1969 Swiss Intercantonal Arbitration Convention (the "Concordat") provides that the courts have exclusive competence to order provisional measures. The new Swiss Law on International Arbitration, which entered into force on January 1, 1989, provides, however, that the arbitral tribunal may order such measures. German and Italian law, by contrast, as well as the laws of certain other countries still preclude various arbitrator-issued interim measures, although most modem arbitration legislation permits arbitrators to issue such measures (see, e.g., Article 17 of the UNCITRAL Model Law on International Arbitration). See also in this connection, Rubino-Sammartano, International Arbitration Law (1990), pp. 345-365 and the collection of papers published by the International Bar Association in 1987 entitled Interim Court Remedies in Support of Arbitration (ed. Shenton and Kuhn).

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5
The provision contained in the 1922 Rules authorizing the arbitral tribunal to provide for conservatory or provisional measures was deleted from the Rules in 1927. Then, in 1931, the Rules were again amended to provide that the arbitrators could appoint an expert to take conservatory and other measures. In a move that presaged the ICC Pre-Arbitral Referee Procedure discussed in Section IV below, a provision was also added to the Rules in that year that permitted the President of the Court of Arbitration to appoint an expert for this purpose before the arbitrator "entered upon his duties". That provision, together with the authorization given to the arbitrators to appoint an expert to take conservatory measures, was eliminated from the Rules in 1955. See Dr. Frédéric Eisemann's related comments in "The Court of Arbitration: Outline of its Changes from Inception to the Present Day", 60 Years of ICC Arbitration (1984), pp. 394-395.

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6
Of those, the awards in the following cases have been published in part: ICC cases 2444 (Clunet (1977), p. 932); 3540 (Clunet (1981), p. 915 and YCA VII (1982), p. 124); 3896 (Clunet (1982), p. 914 and YCA X (1985), p. 47); 4126 (Clunet (1984), p. 934); 4156 (Clunet (1984), p. 937); 4415 (Clunet (1984), p. 530); 4998 (Clunet (1986), p. 1139); 5103 (Clunet (1988), p. 1206); and 5650 (YCA XVI (1991), p. 85).

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7
In 1939, the following provision was added to the Rules: "Before or in the course of the proceedings any one or more of the parties can, if they deem this preferable, apply to any competent judicial authority for provisional or conservatory measures, without this thereby violating the arbitration clause by which they are bound. Notice of such an application shall be given forthwith to the Court of Arbitration."

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8
In ICC arbitration, the file is transmitted to the arbitral tribunal only after at least half of the advance on costs fixed by the Court has been satisfied (Article 2.b of Appendix III of the ICC Rules).

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9
Article II (3) of the New York Convention provides that: "The court of a Contracting State, when seized of an action in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed." Unlike the New York Convention, the 1961 Geneva Convention contains a specific provision (Article VI (4)) to the effect that: "A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court."

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10
See, e.g., Ebb, "Flight of Assets from the Jurisdiction in the Twinkling of a Telex: Pre and Post Award Conservatory Relief in International Commercial Arbitrations", 7 J. Intl. Arb. 9 (1990); Brower and Tupman, "Court-Ordered Provisional Measures under the New York Convention," 80 Am. J. Intl. Law 24 (1986); Becker, "Attachments in Aid of International Arbitration - the American Position", 1 Arb. Intl. 40, 44-48 (1985); McDonell, "The Availability of Provisional Relief in International Commercial Arbitration", 20 Col. J. Trans. L. 2.73 (1984).

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11
It should be noted that a contrary line of US cases, most notably Carolina Power & Light Co. v. Uranex 451 F. Supp. 1044 (ND. Cal. 1977), has found court-ordered interim relief to be compatible with the New York Convention.

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12
The McCreary case arose under the 1955 Rules. The applicable provision of the 1955 Rules (Article 13.5) was, however, very similar to Article 8.5. See the text at note 32 below.

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13
A useful survey of the subject is contained, however, in the collection of papers, entitled Interim Court Remedies in Support of Arbitration published in 1987 by the International Bar Association (ed. Shenton and Kuhn).

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14
At the time when this paper was written, this judgment was on appeal before the House of Lords. Since that time, by a judgment, dated January 21, 1993, the House of Lords has ruled upon the appeal in a manner differing from the Court of Appeal, as discussed further below.

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15
Section 12(6)(h) provides as follows: "The High Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of ... (h) interim injunctions or the appointment of a receiver as it has for the purpose of and in relation to an action or mater in the High Court."

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16
See Goldman, Juriscl. dr. intl., fasc. 586-5-1, no. 98, (author's translation from the French): "... if the parties to an international arbitration agreement expressly submit it to a foreign law that does not provide for urgent judicial procedures applicable in respect of that agreement, the French referee judge should not declare himself competent." Other conflict of law issues abound. See Brody, "An Argument for Pre-Award Attachment in International Arbitration Under the New York Convention", 18 Cornell le. LJ. (1985) 99 at pp. 122-123; Ramos-Mendez, "Arbitrage International et Mesures Conservatoires", Rev. Arb. (1985) 51 at pp. 63-67.

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17
Professor Berthold Goldman has suggested that because the ICC Rules are intended for international arbitration, the available interim measures should be defined by reference to international concepts of provisional and conservatory measures. Goldman, "Arbitrage Commercial International," Juriscl. dr. intl., fasc. 586-5-2, no. 75. However, in the absence of a precise international concept, the tendency reflected in the jurisprudence is to qualify a measure as interim or conservatory by reference to a particular national procedural law.

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18
See, in this connection, the collection of International Bar Association papers referred to in note 13 above.

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19
To demonstrate likelihood of success could be difficult in an international context given the possible relevance of foreign laws governing the merits. See, in this connection, Goldman, Juriscl. dr. intl., fasc. 586-5-1, no. 99.

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20
The referee judge is empowered, under French law, to order certain interim and conservatory measures in cases of urgency or, with respect to provisional payments, where the payment obligation is not "seriously contestable" (Arts. 808-809 of the French New Code of Civil Procedure).

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21
The French courts have accepted to grant such provisional payments, notwithstanding an ICC arbitration clause, in cases where an arbitral tribunal has not yet been seized. See Goldman, Juriscl. dr. intl., fasc. 586-5-1, no. 104; de Boisséson, Le droit français de l'arbitrage (1990), p. 761; Gaudemet-Tallon, note, Rev. Arb. (1990) 637. However, the French Cour de Cassation has held that an application for such a provisional payment cannot be regarded as a provisional or conservatory measure within the meaning of Article 8.5 of the ICC Rules when the arbitration is already in progress. See Cass. (1re ch. civ.), 14 mars 1984, Rev. Arb. (1985), p. 69, note Couchez. Commenting on this decision, Professor Goldman states that it is fully justified because the granting of such a provisional payment by a court, once the arbitral tribunal has been seized, would deprive the latter of all or part of its competence. See Juriscl. dr. ital., fasc. 586-5-2, no. 76. However, it is odd that, in this connection particularly, the character of a measure as either conservatory or provisional should be a function of the time when such measure is requested (i.e., before or after the arbitrators have been seized). For an example of an ICC arbitral decision recognizing the compatibility with Article 8.5 of a provisional payment ordered by a French court, see the award in case 5103 at Clunet (1988), p. 1206.

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22
See, in this connection, de Hauteclocque, "French Judicial Expertise Procedure and International Arbitration,"4 J. Intl. Arb. 77 (1987).

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23
Arrêt of November 12, 1991 in Campenon Bernard v. Eurodisneyland SCA and Lehrer McGovem Bovis SARL.

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24
See, with respect to the introduction of court-ordered expert reports in an ICC arbitration, the extract from the award in ICC case 2444 and the note thereon at Clunet (1977), p. 932.

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25
The French Court of Cassation has held that it will enforce an agreement of the parties excluding recourse to the courts for interim relief. See Cass. (1re ch. civ.), 18 novembre 1986, Rev. Arb. (1987), p. 315; Cass. (2eme ch. civ.), 20 mars 1989, Rev. Arb. (1989), p. 494. In the United States, as well, the parties may be entitled to exclude the availability of judicial interim relief (see, in this connection, Mills, "State International Arbitration Statutes and the U.S. Arbitration Act: Unifying the Availability of Interim Relief', 13 Fordham Intl. L.J. 604 (1989-1990)); but see Anaconda v. American Sugar Refining Co., 322 U.S. 42 (1944) (holding that parties could not exclude court jurisdiction to grant seizure of a vessel). One commentator has recently noted with respect to this issue: "Although most legal systems permit individuals to contractually waive judicial protection, they usually allow such waiver only if an adequate substitute is available. Since arbitrators are an inadequate substitute when it comes to issuing certain important provisional measures, the court must retain jurisdiction in these instances." Hausmaninger, "The ICC Rules for a Pre-Arbitral Referee Procedure: A Step Towards Solving the Problem of Provisional Relief in International Commercial Arbitration?" 7 ICSID Rev. - For. Inv. L. Jour. (1992), p. 82 at note 65.

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26
Although Article 8.5 does not mention waiver of arbitration as a possible consequence of a party's recourse to the courts, ICC tribunals have nevertheless referred to that provision in determining whether such recourse constitutes waiver.

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27
In that case, the lawsuit was subsequently withdrawn. However, had it not been, the arbitrator may have been able to issue an order directing that it be. The party instituting the lawsuit might, in such case, also be liable to the other party for its costs incurred in connection therewith and other possible damages.

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28
Indeed, in ordering interim measures, courts will sometimes require that security (e.g., a bank guarantee) be tendered in respect of possible damage to the other party. See also in this connection note 51 below.

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29
In at least one ICC case (award unpublished), the tribunal, sitting in Switzerland, refused w consider a defendant's counterclaim for damages where the claimant obtained an order from a Swiss court attaching its bank accounts during the arbitration. The tribunal reasoned that such claim was not included in the Terms of Reference. It is to be noted that the attachments were obtained in that case after the Terms of Reference had been signed. No claim appears to have been made in the proceeding, however, that the attachments were obtained in violation of Article 8.5.

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30
See, e.g., ICC case 4415 (Clunet (1984), p. 530) regarding an attachment obtained in Switzerland.

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31
Thus, in case 4415, the arbitral tribunal held (author's translation from the French): "It must be observed that in not notifying, immediately and spontaneously, the Secretariat of the Court of Arbitration of the two orders of sequestration obtained in Tessin, A failed to comply with the obligation arising out of the above-cited provision [Article 8.5]. But this failure is not such that it must lead to the nullification of the arbitration procedure or the rejection of the action. Article 8.5 in fine only lays down, in effect, manifestly a simple rule of order."

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32
These words were added to the ICC Rules in 1975. The prior version of the Rules (Article 13.5 of the 1955 Rules) provided: "The parties may, in case of urgency, whether prior to or during the proceedings before the arbitrator, apply to any competent judicial authority for interim measures of protection without thereby contravening the arbitration clause binding them. Any such application, and any measures taken by the judicial authority shall be brought without delay to the notice of the Court of Arbitration or, when necessary, of the arbitrator." See also note 7 above settling forth the version of the rule contained in the 1939 Rules.

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33
In this respect, Article 8.5 arguably includes a waiver of recourse to the courts, other than in "exceptional circumstances." As indicated in note 25 above, such a waiver appears to be permissible under French law. However, to the author's knowledge, its validity has yet to be examined by the courts in many countries. Such a waiver presumably would not be effective in countries where the law confers exclusive jurisdiction on the courts to order interim measures.

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34
In a non-ICC content, the French Court of Cassation (Cass. 2eme ch. civ., 20 mars 1989, Rev. Arb. (1989), p. 494) considered that a provisional payment could be ordered by the French referee judge where an arbitrator was being challenged and the tribunal was paralyzed as a consequence.

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35
One commentator has written (Goldman, Juriscl. dr. int'l., fasc. 586-5-2, no. 77) (author's translation from French): "Nothing indicates, in the rules, of what may consist the exceptional situations to which the text refers; it will of course be for the state judge seized to decide this. One can, however, think that the exception should only be admitted in cases of extreme urgency and where there is manifestly a threat of imminent harm; for example, to avoid the rotting of perishable goods, or to ensure the conservation or recovery of documents or things exposed to possible destruction by a natural catastrophe in situations where the arbitral tribunal would not be in a position to intervene in due time."

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36
In this connection, the tribunal referred to Craig, Park & Paulson, International Chamber of Commerce Arbitration, Part IV, Section 26.05, where it is stated that: "ICC arbitrators have the inherent power to make interlocutary orders relevant to the arbitration and addressed to the parties."

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37
Subsequently, however, the defendant succeeded in having the attachment orders set aside by the local courts in question, and, as a result, the replacement security ordered by the tribunal was not required to be issued.

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38
See also, in this connection, Gaillard, "Arbitrage Commercial International," Juriscl. dr. int'l., fasc. 586-8-2, no. 142 (author's translation from French): "The competence of the referee judge does not have the effect of depriving the arbitrators of the right to rule in the final instance on these questions. The provisional nature of the referee's orders permits the arbitrators to review the measures taken by state jurisdictions." See also the cases cited by Professor Gaillard at no. 164 of his article.

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39
However, it is to be noted that the tribunal in that case also found that it did not have the power to issue interim or conservatory orders by virtue of the provisions of Article 26 of the Swiss Concordat (see note 4 above), which was found to apply to the arbitration.

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40
See the text of the 1955 version of the Rules at note 32 above.

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41
See the Summary Record of the meeting on October 8, 1974 of the ICC Commission on International Arbitration (Doc. No. 420/169).

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42
Related to this view is the notion that, in the absence of a relevant provision of national law to the contrary, arbitrators have an inherent or implied power, as arbitrators, to grant interim relief. In fact, this is the view that appears to have been adopted by the Working Group constituted in connection with the preparation of the UNCITRAL Model Law on International Commercial Arbitration. See Holtzmann and Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (1989), p. 530. See also, with respect to the jurisprudence of the Iran-U.S. Claims Tribunal, Baker and Davis, "Arbitral Proceedings Under the UNCITRAL Rules: The Experience of the Iran-United States Claims Tribunal," 23 Geo. Wash. J. Intl L. Econ. 267 at pp. 335-336 (1989).

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43
Eisemann, op. cit., p. 398.

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44
It is noteworthy in this connection that in one recent case an ICC arbitral tribunal found that it was empowered to issue the interim measures requested even though the Terms of Reference provided that the Swiss Concordat applied to procedural matters "not covered by the ICC Rules". The tribunal held: "... since the point is covered - although only implicitly - by the ICC Rules, such provision of the Swiss Concordat is superseded by the ICC Rules".

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45
For this reason, commentators have argued that interim relief granted by arbitrators cannot totally replace the relief available from the courts. See, e.g., Hausmaninger, op. cit., pp. 87-91.

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46
The arbitrators' authority to impose penalties in international arbitration is a controversial topic. See, e.g., Redfem and Hunter, International Commercial Arbitration (2d ed., 1991), pp. 361-363. For an example of a law that expressly empowers arbitrators to impose penalties for noncompliance with an arbitrator's direction, see Article 1056 of the Netherlands Arbitration Act 1986. In considering the problem of the execution of interim measures ordered by the arbitrators, the UNCITRAL Secretariat noted, in connection with the preparation of the UNCITRAL Model Law, that an arbitral tribunal is empowered to take a failure to obey an order for interim measures into account in its final decision, particularly in any assessment of damages. See Holzmann and Neuhaus, op. cit. at p. 531.

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47
With respect to the possible enforceability of such awards, see Section DI. B. 3. b below.

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48
Similarly, Article 3.2 of the ICC Rules for a Pre-Arbitral Referee Procedure (see Section IV below) effectively excludes the possibility of an ex parte procedure. It is nevertheless interesting to note that in his footnotes on the new Swiss Law on International Arbitration in the explanatory booklet of the Swiss Arbitration Association entitled The New Swiss Law on International Arbitration (1990), Dr Marc Blessing states with respect to Article 183 (Provisional and Protective Measures) (page 34) that the arbitrator's order may be granted ex parte, but that "the right to be heard sanctioned in Article 182.3 will require that the other party be given an opportunity to thereafter comment on the request (or the order issued) and apply for a dismissal of the request, or for the reversal or modification of an order already issued". As far as ICC arbitration is concerned at least, this, as stated, would appear to be incompatible with Article 15.4 of the Rules.

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49
The approach of the arbitral tribunal was not unlike that followed by a federal district court in New York (Sperry International Trade v. Government of Israel 532 F. Supp. 901 (SDNY (1982)), although in a very different context, in which the Court found, in respect of an application for interim remedies, that an arbitration panel has broader powers than a court, to grant "equitable relief", thus affirming the principle that arbitrators are not necessarily bound by the same standards in considering applications for such remedies as judges might be. See also, in this connection, Onyx Development Corp. v. Ministry of Finance and Planning of the Republic of Suriname (S.D.N.Y., June 24, 1988) confirming an arbitral award instructing the defendant to place US$ 6.9 million in an escrow account pending the final award.

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50
In this connection, Craig, Park and Paulsson have written in International Chamber of Commerce Arbitration (2d ed. 1990), p. 417: "Action to preserve the status quo is a ... delicate matter. An order by a tribunal to a party to refrain from exercising an alleged contractual right prior to a final decision on the merits may prejudice that party .... In appropriate cases, however, ICC tribunals may give such an order on the condition that the corresponding performance of the other party is likewise respected, particularly if such performance involves the payment of money or advancing security."

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51
In this connection, it is to be noted that Article 17 of the UNCITRAL Model Law on International Commercial Arbitration expressly empowers the arbitral tribunal to require a party to provide appropriate security in connection with an interim order from which it may benefit. A similar provision is contained in Article 183.3 of the Swiss Law on International Arbitration.

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52
Article 26 provides that: "In all matters not expressly provided for in these Rules, the International Court of Arbitration and the arbitrator shall act in the spirit of these Rules, and shall make every effort to make sure that the award is enforceable at law."

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53
A delicate problem may arise, however, if one of the parties contests the validity of the arbitration agreement or otherwise objects to the tribunal's jurisdiction. For a discussion of the manner in which this problem was treated at the Iran-U.S. claims tribunal, see Baker and Davis, op. cit., p. 338.

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54
Thus, for example, Article 1049 of the Netherlands Arbitration Act 1986 distinguishes between "partial final" and "interim" awards. According to Article 1059 of such Ad only final or partial final awards, unlike "interim" awards, have binding force or may, pursuant to Article 1062, be granted leave for enforcement or, under Article 1064, be subject to setting aside. (But cf. Article 1051 of the said Act concerning summary arbitral proceedings.) Similarly, a provisional or protective order issued pursuant to Article 183 of the Swiss Law on International Arbitration does not constitute an award and is neither directly enforceable nor subject to recourse. See Lalive, Poudret and Reymond, Le Droit [de l'arbitrage] interne et international en Suisse (1989), p. 362. Article 183.2 of the Swiss law provides, however, that if a party does not comply with the arbitral tribunal's order the tribunal may request the assistance of a competent court. In other jurisdictions, however, awards of interim relief may be recognized and enforced as awards. Thug, for example, some state statutes in the United States specifically provide for court enforcement of arbitrator-issued awards of interim relief. See Mills, "State International Arbitration Statutes and the U.S. Arbitration Act: Unifying the Availability of Interim Relief" 13 Fordham Intl L.J. 604, 637-8 (1989-90) (citing the Florida, California and Texas arbitration statutes). The UNCITRAL Model Law, by contrast, is silent on the issue. See Boltzmann and Neuhaus, op. cit., p. 530.

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55
See the Final Report on Interim and Partial Awards at 1 ICC Ct. of Arb. Bull. (Dec. 1990), p. 26.

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56
As this paper is being prepared, the Rules for Technical Expertise are undergoing review by the ICC Commission on International Arbitration for possible amendment.

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57
However, there is abundant literature concerning this procedure. See Arnaldez and Schäfer, "Le règlement de référé pré-arbitral de la CCI", Rev. Arb. (1990), p. 83; Davis, "The ICC Pre-Arbitral Referee Procedure in Context with Technical Expertise, Conciliation and Arbitration", 9 Intl. Constr. L. Rev. 218 (1992); Derains, "Expertise technique et référé arbitral", Rev. Arb. (1982), p. 239; Hausmaninger, "The ICC Rules for a Pre-Arbitral Referee Procedure: A Step Towards Solving the Problem of Provisional Relief in International Commercial Arbitration?" 7 ICSID Rev. - For. Inv. L. Jour. (1992), p. 82; Paulsson, "A Better Mousetrap: 1990 ICC Rules for a Pre-Arbitral Referee Procedure", Intl. Bus. Law. 214 (May 1990); Smit, "Provisional Relief in International Arbitration: The ICC and Other Proposed Rules", 1 Am. Rev. Intl. Arb. 388 (1991); Lécuyer-Thieffry "Examination of ICC's New Pre-Arbitral Referee Procedure", 1 World Arb. & Med. Rep. 13 (1990); see also "The ICC Pre-Arbitral Referee Procedure: An Innovation in Dispute Resolution", 1 ICC Int. Ct. Arb. Bull. (June 1990), p. 18. The Pre-Arbitral Referee Procedure has also recently been incorporated in an International Bar Association form of performance guarantee for international construction contracts. See 20 11111. Bus. Law. 243 (May 1992).

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