In presenting my comments and conclusions following the various exchanges of views, I intend to try to highlight a number of points for consideration although I am aware that in so doing I will no doubt pose more questions than I answer.

The point of view I wish to express is that of a French judge, first of all by presenting a summary of what I take to be the current views on the subject, and then by endeavouring to set out a number of propositions as a means of seeking practical solutions to the question.

I. Findings

Our studies seem to have highlighted a number of principles which are generally accepted.

The crucial issue is where exactly is the dividing line between the jurisdiction and prerogatives of the international arbitrator and those of the national courts. The question may be posed in the following terms: when may - or even in certain cases, must - the judge intervene, and at what stage of the arbitration?

In replying to this question, I shall follow two lines of thought:

A. It seems to be generally accepted that the judge's role has to be a limited one and be directed at a specific situation, thus ensuring that the arbitration does not fall under the "supervision" of the national judge. As we have seen, certain national judges (in the United Kingdom and the United States) are sometimes very reluctant to intervene, in their concern either "to refer the parties to the arbitrators as quickly as possible", by means of a radical interpretation of the New York Convention (Article II (3)), or to observe the principles of international jurisdiction when confronted by an arbitration which appears to have few links with their national legal system (decision of the Court of Appeal in London ).

B. However, it is also generally agreed that the advantages of appeal to the national judge need to be underlined, particularly in certain circumstances which frequently arise. Examples of this are before the matter has been referred to the arbitrator, or when the arbitrator is not yet in a position to take a decision which is urgent in its nature, or for example if he is temporarily prevented from so doing, or again, if in the light of the particular circumstances it is essential that a measure that is enforceable straightaway (attachment or sequestration, for example) be taken immediately. Only a national judge has the power to do this: the arbitrator has to restrict his role - or at least this is one legitimate view - to formulating "recommendations" for the parties' attention.

However, the latter view calls for immediate clarification.

First of all, it can never be one hundred per cent certain that the judge's decision will be effective or immediately enforceable. It is only enforceable within national territorial limits. But what is the position if the measure ordered by the judge has to be enforced abroad (for example, at a bank situated in a country other than that of the judge)?

This example is not merely theoretical, because a French judge - in practice the juge des référés (judge who deals with urgent matters on an interlocutory basis) - may take the view that he has jurisdiction to order a measure that is enforceable abroad, in a case where he considers there is an adequate link between the claim and the court to which the matter is referred, and that the case referred to him does not involve fraud. One possible view is that the court order (French in this case) will benefit from the provisions of the Brussels Convention - at least in a case in which enforcement takes place in an EEC country. However, this is subject to reservations, owing to the fact that [Page111:] Article 1 of this Convention provides that arbitration is excluded from its field of application. Hence there may well be a flurry of litigation in the court of the foreign country where enforcement is to take place, to which a challenge - based on the inapplicability of the Convention to arbitration cases - may be referred by the party opposed to the French judge's decision. Accordingly, in a case of this kind, the effectiveness of the intervention of the national judge would be in question, whereas an arbitral decision along the same lines, taken in the form of an award, would benefit from international enforcement procedure under the New York Convention.

In the second place - still on the subject of the respective advantages of the judge and the arbitrator where interim or conservatory measures are concerned - although the arbitrator has to restrict himself to making "recommendations", there are no grounds for saying that these will necessarily be ineffective and purely theoretical. Indeed the arbitrator has at his disposal considerable means of pressurising the parties into complying with his interim decisions, if only through his power - as judge of the merits of the case - to draw any legal conclusions, in his final award, especially as regards the parties' good faith, or the refusal of one of them to carry out a measure ordered in the course of the proceedings.

This first, if very brief, overview, leads to the inference that solutions in this field do not spring immediately to mind.

Is it possible, despite this, to formulate a number of simple rules, in the form of propositions, which would enable solutions to be reached - or at least guiding principles for resolving the problems?

II. Propositions

In this respect, I should like to formulate three propositions:

A. lst proposition: the idea of competition between the national judge and the arbitrator should be rejected and be replaced by the idea of complementarity.

Here I am advancing one of the fundamental principles of this field, illustrated in detail in Mr Pluyette's presentation relating to the rote of the French juge des référés in international arbitration. The principle is that the respective domains of intervention of the international arbitrator and the judge are different, and they only overlap in exceptional circumstances, as the judge is only called to make an order in such cases, when the arbitrator is not in a position to take the decision sought.

French substantive law takes this view, that since in the field of international arbitration, it is indeed established that the national courts - particularly the juge des référés - have jurisdiction to order interim and/or conservatory measures, but essentially on a temporary basis, in other words before the case has been referred to the arbitral tribunal, and, moreover, on condition that the matter is urgent. These two conditions are cumulative, and in laying down this rule the Cour de Cassation moreover specified that the jurisdiction of the juge des référés was "exceptional", thus underlining the philosophy behind the system established: usually the arbitrator has jurisdiction; the judge only intervenes in exceptional circumstances (Cour de Cassation, 1ère Civile, 6 March 1990: Horeva v. Sitas, currently unpublished. See also a decision pointing in the same direction; Cour d'appel de Paris, 13 February 1990, Dalloz-Sirey 1990 p. 593, note Peyrard).

Hence, under the French international arbitration law the basic principle is that, in certain limited circumstances, a national judge can be called upon to take what might be termed a "supportive role", if an impasse situation has arisen, or he can be appealed to when a dispute arises of a kind that can only be resolved by him, and in any case his intervention is limited as to its subject matter and extent.

B. 2nd proposition: the international arbitrator alone should have jurisdiction over the merits of the case.

The arbitrator, who is appointed by the will of the parties to settle the merits of the dispute, must be in a position to exercise his prerogatives fully and freely, and in particular it is up to the courts to take care to ensure where necessary that the arbitrator's freedom to exercise his jurisdictional authority is protected.

Here we see once again the idea of cooperation referred to above. To achieve this, it is essential to ensure coordination of the respective complementary jurisdictions of the judge [Page112:] and the arbitrator in areas where the distinction between interim/conservatory measures and the substance of the case is sometimes uncertain. Here we are basically concerned with interim provision and the appointment of an expert.

Interim provision is very widely practised in France. It is a simple, rapid and effective procedure which enables the juge des référés, following a hearing of all the parties, to grant a sum of money as an advance payment prior to the decision on the merits of the case, to a plaintiff whose claim the judge considers is "not seriously disputable". While the advantages of this procedure are obvious, i.e. it discourages delaying tactics on the part of the debtor, it is clear that the system also has disadvantages, when it is applied to arbitration. Indeed, a writ instigating interlocutory proceedings, prior to the matter's referral to arbitration, may well enable the creditor to obtain satisfaction speedily, to the extent of rendering arbitration on the merits of the case unnecessary and hence completely excluding the arbitrator's jurisdiction, contrary to the will of the parties - all the more so since in France, in practice, interim provisions are allowed to extend to the total debt claimed if it appears that as a whole it is not seriously disputable. Here, there is clearly a real danger of matters getting out of control, accordingly judges dealing with such interim proceedings have to be cautious to ensure that they avoid this problem so as to safeguard the international arbitrator's jurisdiction.

Another subject currently under discussion in France concerns the decision to appoint an expert: can it really be classified as an "interim" or "conservatory measure, when the expert is called upon to issue an opinion on factors closely related to the merits of the case?

There is difference of opinions on this issue. Some take the view that the appointment of an expert is a measure that is neither interim (in that the expert continues his task until it is completed) nor conservatory (except in exceptional cases, in that the expert makes no contribution to "conservation" of rights or evidence, and his opinion forms part of the final decision on the merits). Others, on the contrary, underline that the aim of the expertise procedure is often designed to preserve items of evidence, that the expert's opinion is no more binding on the arbitrator than it is on the judge, and that, accordingly, the appointment of an expert is a measure closely akin to conservatory measures in the light of its aim and its final outcome. This is the stand recently taken by the Paris Court of Appeal, where, in one of its orders (ruling on appeal against the appointment of an expert by a juge des référés in the context of an international arbitration) it took care to modify the expert's terms of reference, to ensure that these were strictly neutral in nature with regard to the merits of the dispute (Cour d'appel de Paris, 14th Chamber B. 3 July 1992, unpublished to date).

One way of resolving such contradictory doctrinal viewpoints would be to say that whilst it is clear that the appointment of the expert is not totally interim or conservatory in nature, it does nonetheless form part and parcel of the measures preparatory to the decision on the merits of the case, and that in this respect it may happen that, in certain circumstances, it is appropriate to apply to the court to appoint an expert - for example when the arbitrator is not yet in a position to deal with a request of this kind.

C. 3rd proposition: This is expressed in two rules which are corollaries to one another:

- in principle and unless the parties agree otherwise, the arbitration agreement will not prevent resort to the national courts for interim and/or conservatory measures to be taken.

- the arbitrator may be vested by the parties with power to take interim and/or conservatory measures and the parties may exclude recourse to the national courts.

The first is a rule of French substantive law and we know that it is one that is generally applied in international arbitration law (cf. ICC Rules; ICSID Convention; 1961 Geneva Convention Article IV, 4°).

The second rule gives rise to a number of questions:

Firstly, it is established (at least under French law) that resort to the national courts can be excluded by the parties in the arbitration agreement. True, such a stipulation may present a number of dangers, in that sometimes a situation may call for an urgent decision at a time when the arbitrator is not yet in a position to take it. However, in theory there is nothing to [Page113:] prevent such an expression of contractual freedom, which, after all, is acknowledged to be an underlying principle of arbitration, the only limit being, of course, arbitrability (the parties may not vest an international arbitrator with power to take interim measures in a divorce case, for example, or to order criminal sanctions). Furthermore, the disadvantages underlined above might be offset, either by the parties' agreeing to limited resort to the courts, or by a decision by the judge himself on the ground that he has power to make a ruling by reason of urgency and risk, despite the exclusion of jurisdiction in the contract.

A second question relating to the exercise of the arbitrator's powers in the area of interim/ conservatory measures, is what form the arbitral decision should take: "recommendation", procedural order, interim or preparatory award?

This question as to form in fact conceals a fundamental question, which goes to the very heart of our subject: the power of the international arbitrator to take coercive measures or measures prohibiting the free disposal of certain goods - classic examples of this being conservatory attachment and the registration of a mortgage charge.

In this connection, not all national laws answer this question in the same way. Under French law, some learned authors maintain that such measures are classified as measures of compulsory enforcement and that, as such they fall within the exclusive jurisdiction of the national judge who alone has sovereignty to order compulsory enforcement of his decision against the recalcitrant party, if necessary with the support of the public authorities. Hence, in such a case there would be an absolute obstacle to the exercise of the arbitrator's power to make a ruling. This would therefore be a case of inarbitrability.

I am not convinced by this analysis, which seems to flow from an unnecessary extension of domestic procedural rules to the international system.

In the first place, a distinction should be drawn between the arbitrator's power to decide the case and the power to enforce his decision. It is clear that the power of enforcement is a matter that falls exclusively within the prerogatives of the national judge, whose power stems from the Constitution, and that it is a matter for the judge alone. However, the power of decision making may be split between the national judge and the arbitrator: this is the very basis of arbitration.

Secondly, the international arbitrator may not be considered legally to be a rival of the national judge at the procedural level. The domain in which he exercises his decision-making power is different, lying outside any national jurisdictional or procedural system. By his very nature, the international arbitrator may be considered to play the role of an international court, or at least he has a real jurisdictional authority that is totally separate from the domestic system. This is the position under French law, where, as we know, the parties - or the arbitrator - have total freedom of choice as to which procedural rules to apply, and these rules do not even have to form part of any specific national law - subject to compliance with the basic principles referred to as "international public procedural policy", a typical example of which is the principle of respecting the parties' rights to due process.

In addition, it can be stated that although the international arbitrator's jurisdiction is limited regarding its subject matter by the will of the parties (he may only rule on the dispute which the parties have submitted to him), for decision-making purposes, he has the same jurisdiction as a full court, which should enable him to take any interim or conservatory measures (even ones involving constraint), provided his decision is rendered enforceable by the national court in accordance with the conditions of the general law. This obligation to have the award confirmed by the national court is a primary guarantee and safeguard of the principle of sovereignty of the state. A second guarantee is offered under French law, that is to say the supervisory power that can be exercised by the judge through the procedure for setting aside an award. For this, the arbitrator's decision, obviously, has to be in the form of an arbitral award (as under the legislation, only awards are subject to the setting aside procedure). However, case law precedents have held that any preparatory decision by the arbitrator, whatever it is termed (for example "procedural order" or "order") should be classed as an award and be subject to the setting aside procedure, provided the instrument signed by the arbitrator has decision-making characteristics, and settles a dispute between the parties. [Page114:]

All these reasons demonstrate the need for recognising that the international arbitrator - under the supervision of the judge responsible for matters of enforcement and setting aside has full power to rule on all interim or conservatory measures, and the way this power is divided between the arbitrator and the national court, accordingly, depends upon the circumstances. Moreover, the Cour de Cassation has ruled along these lines, limiting the jurisdiction of the juge des référés to the period prior to the referral of the case to the arbitrator, and describing the jurisdiction of the national court as "exceptional". This clearly means that the international arbitrator would generally be the decision maker with regard to jurisdiction. Lastly, in this area, the arbitrator also has an additional advantage: by ordering an interim and/or conservatory measure he is able to embark upon the examination of the merits of the dispute, since he is first and foremost the judge of the merits of the case. He will therefore have greater latitude than the national judge (whose powers are strictly limited ) when it comes to implementing any measure necessary for preparing the final decision.

In conclusion, it must be said once again that in the field of international arbitration, the person who normally has jurisdiction to decide everything relating to the arbitration procedure is the arbitrator appointed for this purpose by the parties, and the national judge should only intervene - apart from his exclusive power to render the arbitrator's decisions enforceable - if need be, for cooperating in the smooth running of the arbitration.