I am honoured to be given this opportunity to have the privilege of addressing such a learned audience, which facilitates my task by exempting me from indulging in details and particulars. However the topic is very delicate on the international level, since there are no concrete rules to depend upon. Taking in consideration the difficulty to cover all the points or problems related to the concerned subject, in such a limited time. Nevertheless, I am intending to try to raise the main issues of the topic in this paper.

I. Conservatory and provisional measures

Conservatory and provisional measures constitute a sort of remedy provided for present need or for the immediate occasion to meet a particular exigency, particularly a temporary process available to a plaintiff in civil action, which secures him against loss, irreparable injury which the action is pending.

Such measures include the remedies of injunction, appointment of a guardian to have the property of the debtor in his custody, to be administered for the benefit of both parties until the court grains its judgment on substance. The said measures include as well in commercial deals, the order to deposit the goods in the custody of a third person, or to sell the perishable goods. The order addressed to the defendant on the request of the plaintiff to refrain from calling a letter of guarantee submitted by the plaintiff to the defendant in construction contracts to guarantee the proper performance of the contractual obligations, is one of the most important provisional measures to be decided in the international commercial transactions.

One can wonder how can such measures be imposed and concretely applied in arbitral proceedings.

The matter is not that simple to be dealt with in few words. However, we have to distinguish between the ad hoc arbitration and institutional arbitration. It should be noted from the very beginning that ad hoc arbitration can be conducted according to a certain sort of rules either conventional, or legal. The parties may also adopt a set of ready-made rules laid down be a specific organisation such as UNCITRAL, but not under the auspices of a specific existing arbitral institution. It could be conducted as well in accordance with the procedural rules of a specific domestic law, which usually is the lex fori or the law of the place where the arbitration is conducted, in the absence of the parties' agreement concerning the applicable procedural rules.

In ad hoc arbitration, the matter could be dealt with, then, either by the parties' agreement, or by the rules referred to by them either legally prescribed by the applicable procedural law or issued by a specific organisation such as UNCITRAL Arbitration Rules of 1976. It can be also determined by the Arbitral Tribunal, if there is no prima facie rule to be applied.

The situation is different in the case of institutional arbitration, usually the rules of the existing arbitral institution, which deal expressly with the matter in an explicit text. In any case, the matter of imposing provisional or conservatory measures would be decided either in the State's Courts or by the Arbitral Tribunals.

II. Different solutions in deciding interim measures

The solutions relating to order interim measures, depend on one of the following cases:

1) If there is an agreement between the arbitration parties, to empower the Arbitral Tribunal to order such sort of measures, the agreement [Page105:] should be respected either if it is embodied in the arbitration clause or made before the Tribunal. This solution should be adopted whether the arbitration is ad hoc or institutional, unless in this last case the institutional arbitration rules envisage this matter, by a specific rule. Due to the fact that the power of the Arbitral Tribunal in this concern is based on the parties' agreement, it should be emphasised that the Tribunal has no authority to decide measures which are beyond any sort of agreement by the parties and cannot be decided by a mere consensus, but by a judicial order decided by the Judiciary, such as an attachment of a debtor's property as a conservatory measure to bring the debtor's property under the custody of the Court until a judgment or an award is rendered on substance. The writ of attachment, according to the dominant doctrinal opinion, should be decided by the Court and cannot be decided by the Arbitral Tribunal.

2) If the arbitration agreement between the parties does not determine the forum to be competent to order interim measures, the solution to be adopted depends on whether the arbitration is ad hoc or institutional.

a) In an ad hoc arbitration, we have to refer to the domestic procedural law of the country where the arbitration is conducted. If such law is silent, the judicial Courts are the competent authority to impose the conservatory and provisional measure on either party in arbitration, according to the dominant doctrinal and judicial opinion. In this concern, one should consider Article 1022 of the Dutch Code of Civil Procedure which added a new book four to the Code in 1986 dealing with arbitration, which provides that an arbitration agreement does not preclude a party from requesting a court to grant interim measures of protection.

b) In case of institutional arbitration, the rules applied may or may not envisage the matter. If the institutional arbitration rules are silent we have to refer to the procedural domestic law of the state where the arbitration is conducted, in case the Arbitrators cannot reach decision as to the procedural rule which should apply. If the institutional arbitration rules envisage the matter, it could be prescribed that the Arbitral Tribunal may have the competence to order conservatory and provisional measures, while some institutional rules give such competence exclusively to the judicial Courts.

(i) In the first instance, we find that the Convention on the Settlement of Investment Disputes between States and Nationals of other States of 1965, by which the International Centre for settlement of Investment Disputes (ICSID) was established, provides in its Article 47 that: "Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party."

Pursuant to Rule 39 of the ICSID arbitration rules, a party may request at any time during the proceeding that provisional measures for the preservation of its rights be recommended by the Tribunal, which may also recommend provisional measures on its own initiative or other than requested by a party. The Tribunal may at any time modify or revoke its recommendation after giving each party an opportunity of presenting its observations. It is obvious then, that ICSID Rules give the opportunity to the Arbitral Tribunal to recommend, and not to order, the suitable provisional measure, that is why paragraph (5) of the same Rule provides that: "Nothing in this Rule shall prevent the parties, provided that they have so stipulated in the agreement recording their consent (i.e., mutual consent of ICSID jurisdiction), from requesting any judicial or other authority to order provisional measures, prior to the institution of the proceeding, or during the proceeding, for the preservation of their respective rights and interests." Rule 39 of the ICSID Rules gives no shadow of doubt that the judiciary has the original competence for ordering provisional measures, while the Arbitral Tribunal may recommend such measures.

It is also a matter of significance to note that Article 26 of UNCITRAL Arbitration Rules of 1976 provides in its paragraph (1) that: "At the request of either party, the Arbitral Tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods." While UNCITRAL Arbitration Rules accept the competence of the Arbitral Tribunal for ordering provisional measure, paragraph (3) of the same Article provides that "A request for interim measures addressed by any party to a judicial authority shall not be deemed [Page106:] incompatible with the agreement to arbitrate, or as a waiver of that agreement." This rule ascertains that the judiciary authority has the original competence for ordering conservatory and provisional measure, while the competence of the Arbitral Tribunal in this concern is an exceptional one and should be based either on an explicit agreement between the parties or on institutional arbitration rule. Article 17 of the UNCITRAL Model Law on International Commercial Arbitration of 1985 assures the power of Arbitral Tribunal to order interim measures by prescribing that: "Unless otherwise agreed by the parties, the Arbitral Tribunal may, at the request of a party, order any party to take such interim measure of protection as the Arbitral Tribunal may consider necessary in respect of the subject-matter of the dispute. The Arbitral Tribunal may require any party to provide appropriate security in connection with such measure." However, it should be noted that Article 9 of UNCITRAL Model Law provides that: "It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure".

(ii) In the second instance, where the institutional arbitration rule provides expressly the competence of the judicial courts for ordering provisional measures, we may refer to paragraph (5) of Article 8 of the International Chamber of Commerce (ICC) Arbitration Rules, which provides that: "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."

III. The Arab perspective

The majority of the Arab national legislations governing commercial arbitration, either national or international, have ignored dealing with the matter of imposing interim measures, before or during arbitral proceedings.

Nevertheless, the Sultanate of Oman deals with the concerned matter in the Sultani Decree No. 79 of 1981 as modified by the Decree No. 38 of 1987 which created the Board for settlement of commercial disputes which has two sorts of competence, firstly as a judicial authority, secondly as an institution for administering arbitration, empowered to constitute the Arbitral Tribunal in each dispute, this Tribunal is presided by a judge nominated by the Chairman of the Board and a number of arbitrators equal to the number of the disputing parties to be chosen by the parties, otherwise the Chairman of the Board substitutes them in such nomination. Article 12 of the above-referred Decree provides that: "The Board is competent to order provisional and conservatory measures, even if it is not competent to rule over the main action.". The Chairman of the Board has the authority according to Article 19 to impose certain interim, conservatory or urgent measures if he estimates that the interests of either disputing parties are jeopardized.

However, the prevailing doctrinal and judicial opinion in Arab countries does not accept the competence of Arbitral Tribunals to order interim measures, unless otherwise agreed by the parties even in such case the parties' agreement cannot be legal in respect of all measures, such as the writ of property attachment and the provisional measures, which should be decided by a state authority.

Despite what I have just mentioned above, one can find in the laws of some Arab Countries, legal provisions which, implicitly, empower the Arbitral Tribunal to render interim awards deciding partially or provisionally in some certain cases what it deems appropriate, before rendering final awards.

The Saudi Arabian Law of Arbitration (Article 18), the Algerian Code of Civil Procedures (Article 453), the Syrian Code of Civil Procedures (Article 529) and the Egyptian Code of Civil Procedures (Article 508) provide, in the same trend, that any award, whatever its sort, rendered by the Arbitral Tribunal cannot be enforceable unless the exequatur is obtained from competent Court, which means that the Arbitral Tribunal may render interim awards in some cases.

It would be a matter of interest to refer in this occasion to the Egyptian Draft for international commercial arbitration which adopts the UNCITRAL Model Law of 1985, Article 9 of the said Draft provides that: "A party in an arbitration agreement may request before or during arbitral proceedings, from the competent [Page107:] court an interim or conservatory measure, the court may grant the requested measure." Article 18 of the Egyptian Draft provides that "if it is agreed upon by the parties, the Arbitral Tribunal may, at the request of a party, order any party to take such interim measure of protection as the Arbitral Tribunal may consider necessary in respect of the subject matter of the dispute. The Arbitral Tribunal may require any party to provide appropriate security in connection with such measure."

On the Arab regional level, we find several multilateral Arab Conventions, containing provisions for the settlement of commercial disputes by arbitration and the enforcement of arbitral awards. The conventions deal with the settlement of commercial disputes by arbitration are:

a. The (1970) Arab Institution Convention for the guarantee of investments, which includes an annex for settling the disputes by way of negotiations, conciliation or arbitration. This convention is ratified by all Arab States.

b. The (1974) convention for the settlement of investment disputes between the hosting countries and the investors of other Arab Countries. The States which are parties to this Convention are United Arab Emirates, Sudan, Egypt, Jordan, Syria, Iraq, Palestine and Kuwait.

c. The Unified Convention of 1980 for the investment of Arab capital in Arab Countries, which includes an annex for settling the disputes by arbitration. It should be noted that this convention has been ratified by all Arab States.

d. The (1987) Amman Arab Convention for Commercial Arbitration. The States which have joined this convention are Jordan, Tunisia, Iraq, Libya, Arab Yemen and Democratic Yemen (Presently the State of Yemen). Amman Convention will not be operative unless it is ratified by seven States. The Amman Convention is the most important one, as far as inter-Arab States arbitration is concerned, since it is the first convention regulating the inter-Arab States arbitration in an institutional manner for commercial disputes arising between any person or persons natural or juristic, irrespective of their nationalities, have commercial relations with one of the Contracting States or any of its agencies, or have their principal place of business in one of these States. The disputes arising from such transactions can be settled according to Amman Convention, by stipulating an arbitration clause or by a separate agreement between the parties after the dispute arises.

The Amman Convention provides for the establishment of the Arab Arbitration Centre, which will be located in Rabat, Morocco, having an independent legal personality. The Convention organizes the constitution of the Arbitral Tribunal in each case.

Pursuant to Article 29, the Arbitral Tribunal is empowered to take, at the request of either party, any interim or conservatory measures it deems necessary, such as the ordering of depositing the subject matter with a third party, or the sale of perishable goods.

The convention of 1974 concerning the settlement of investment disputes between the hosting countries and other Arab Countries has similar provision. Article 18 of the said Convention provides that: "Unless otherwise agreed by the parties, the Arbitral Tribunal may recommend interim measures it deems necessary for the preservation of the rights of either party."

It is a matter of significance to refer in this topic to the Cairo Regional Centre for International Commercial Arbitration which was set up in Cairo by an international convention between the Asian-African Legal Consultative Committee (AALCC) and the Egyptian Government in 1979 to provide facilities for arbitration under rules based on the UNCITRAL Arbitration Rules and performs such other functions as promoting international commercial arbitration in the Middle East region. Therefore, Article 26 of UNCITRAL Arbitration Rules is applicable with regard to any dispute to be settled under the auspices of the Cairo Regional Centre.

IV. Problems related to the execution of conservatory and provisional measures

The major problem in this concern is the recognition and enforcement of the above-referred measures, if they are recommended or ordered by a foreign judge or by an Arbitral Tribunal. [Page108:]

The problem will not be raised, if the measures have been ordered by a judicial authority in the State where such measures are to take place and be executed, because they will be measures imposed by a State Court, therefore they will be binding and should be enforced as such. In case the measures are imposed by a Court located in a country other than the country where the measures will be executed, these measures will not be executed unless the legal requirements requested by the law of this last country will be fulfilled. In this concern the foreign order shall not be enforceable unless it bears the exequatur according to the rules prescribed by the domestic laws. Almost all Arab countries' laws require the reciprocity condition to grant exequatur to the foreign judgements and orders, issued by foreign judicial authorities.

If the interim or conservatory measures are imposed by an arbitral tribunal, we have to state that the order of measures issued by an arbitral tribunal located in the country where the measures are to be executed will not be enforceable, according to the majority of Arab Countries' laws of procedure, unless an order of execution is issued by the court originally competent to decide on the dispute. If the measures have been ordered by a foreign arbitral tribunal, such measures will not be enforceable, unless the requirements of the enforcement of foreign arbitration awards are fulfilled.

The (1958) New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards plays an important role in this concern. It should be noted that 89 counties including nine Arab countries are now parties. The nine Arab countries are Algeria, Bahrain, Djibouti, Egypt, Jordan, Kuwait, Morocco, Syria and Tunisia.

The 1983 Arab Convention of Riyadh for judicial cooperation may also play an important role in this concern, in the countries which are parties in the said convention, ratified by Jordan, Iraq, Tunisia, Sudan, Syria, Soumal, Palestine, Libya, Morocco, Mauritania and Yemen.

The difficulty may arise if the measures are recommended and not ordered by the Arbitral Tribunal, such recommendation will not make the measures enforceable, unless there is an agreement between the parties to execute the recommendation of the Arbitral Tribunal either before or during the arbitral proceedings.

V. Conclusion

The role of the courts in imposing conservatory and provisional measures may take place in the cases where there is no agreement between the litigants to empower the Arbitral Tribunal in imposing such measures, or when agreement is against public order according to any national legal system, or where the institutional arbitration rules confer to the courts such competence either exclusively or beside the competence of the Arbitral Tribunal. The courts play, as well, an important role with respect to the enforcement of the interim measures, either imposed by foreign courts or by arbitral tribunals conducting arbitration either in the country where the measures will be executed or outside this country. Therefore, it is recommended, to facilitate the execution of provisional and conservatory measures, to obtain the order of such measures from a court located in the country where the measures are to be executed.