The subject of our symposium is both extensive and difficult. In preparing my speech, I listed nearly eighty possible points that might be raised. But this figure is merely for your information, as I do not intend to submit you to torture! Many questions have already been answered in the course of the excellent reports we have heard that I was privileged to read before the symposium started. Moreover, because of the limited time available to me, I have had to be selective. Accordingly, I have finally decided to deal with six points only and I shall not overrun my allotted ten minutes. The first three are general questions. The other three relate to article 183 of the Swiss Federal Law on private international law of 18 December 1987, which came into force on 1 January 1989 (LDIP). In fact, I am starting from the principle that by honouring a Swiss lawyer with an invitation to present comments and conclusions on the symposium, the organisers intended that he should also speak about the changes for international commercial arbitration implied in the transition from the regime of Article 26 of the International Concordat on arbitration to that of Article 183 of the Federal Law.

I. Regarding the arbitrator's lack of power of coercion

It is certainly not incorrect to say in common with everybody else: that the arbitrator has no power of coercion, that he does not share the state's sovereign power. On the other hand, the inference often drawn from this truth - to the effect that the arbitrator should therefore refrain from decision making - is surprising. After all, a foreign judge has no more power of duress over another's country 's territory than an arbitrator does. An English judge has no power of coercion in France. But no French judge has ever deduced from this that English judges should refrain from making orders or passing sentence or, in short, ruling on the parties' respective rights. The whole question is whether, if applicable, his decisions will be enforced in France. Why would the arbitrator not exercise his prerogatives fully, provided he acts within the limits laid down by the arbitration agreement, and the rules of arbitrability? Several academic writers in the German language have taken care to draw a distinction between jurisdiction to make an order (Anordnungskompetenz) and jurisdiction to enforce (Zwangsvollstrckungkompetenz). This distinction is drawn, in particular, in a work (Einstweiliger Rechtsschutz in der internationalen Handelsgerichtsbarkeit, 1989) by Mr Axel Bösch, a participant at our symposium. Messrs François Knoepfler and Philippe Schweitzer have also done so in their oft-quoted article on "interim measures and arbitration" (in the Recueil de travaux suisse sur l'arbitrage international, published under the direction of Claude Reymond and Eugène Bucher, on the occasion of the ICCA Congress held in Lausanne in 1984). This distinction should be clearly borne in mind by arbitrators and perhaps by certain law-makers as well.

II. Regarding the sanction of failure to obey the arbitrator's order

Mr Stephen Bond, in his presentation this morning - both remarkable as to form and rich in legal substance - put forward the proposition which he intended to be reassuring and which in fact was so: "Arbitrators are human beings". Both he and other rapporteurs (in particular Mr Bernardini and Mr Schwartz) inferred from this that parties would usually tend to comply with the arbitrator's orders so as not to aggravate him and so as to avoid the arbitrator finding against them because of their failure to obey his orders. Undoubtedly it is true that as a general rule parties would not wish to annoy the arbitral tribunal unnecessarily and the tribunal [Page116:] will be grateful to them for this. On the other hand, to my mind it does not seem correct to say that the arbitrators would be justified in "drawing adverse inferences from a party's failure to obey orders for interim measures". If the relevant rule of law leads to a finding in favour of the party resisting the order, the arbitrators will have no option but to apply it. Assuming for example that the claim is statute-barred, the arbitrator will certainly not be able to disregard a plea based on prescription by arguing that it was invoked by a party who failed to comply with an interim order. Rather the arbitrator will find himself in a situation that quite commonly occurs to members of the human race: he will have to rise above his personal feelings.

III. Regarding territorial jurisdiction

Several important court decisions have been rendered in England on the question of territorial jurisdiction to order interim measures. They have been cited a number of times today. In the case Bank Mellat v. Helliniki Techniki S.A.(1984) Q.B. 291, Sir Michael Kerr held that the fact that the "seat" (i.e. the place in which the arbitration is held) of the arbitration happened to be in England did not constitute an adequate ground for jurisdiction. More recently, in Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd, the Court of Appeal held that either in the light of section 12(6) (h) of the Arbitration Act 1950, or under section 37 of the Supreme Court Act, 1981, English courts would have no jurisdiction to order interim measures unless the seat of the arbitration was in England or Wales. It does not fall within my remit to interpret laws passed by the Parliament in Westminster. I simply note that taken together the conditions laid down by the two decisions cited above are soon likely to result in a negative conflict of jurisdictions; with the judge of country A declining jurisdiction in the absence of finding another link with this country other than the seat of the arbitration, and the judge of country B having no jurisdiction either because the seat of the arbitration is elsewhere than in country B. I myself can see no decisive reason for attributing jurisdiction to the judge of the place of arbitration alone. I think that unless the law of the country in which the arbitral tribunal sits contains a rule to the contrary, the general standards of jurisdiction should be applied: the domicile or registered office of the defendant party, the place where the property is situated, etc.

IV. Ex parte measures?

According to the prevailing, not to say unanimous opinion in Switzerland, it is possible for the arbitral tribunal to order interim or conservatory measures at the request of one of the parties without hearing the other, on condition that the other party is given the right to express himself at a later date, "which may, in certain cases, result in the tribunal modifying or countermanding the measures ordered at the outset" (Lalive/Poudret/Reymond, Le droit de l'arbitrage interne et international en Suisse, Lausanne, 1989, note 3, relating to article 183). Article 23.3 of the Rules of Arbitration of the Geneva Chamber of Commerce and Industry moreover, contains an explicit rule along these lines, in a case of urgency.

In his report - which coincides with my views in every point except that one - Mr Bernardini doubts whether a procedure of this kind would be compatible with the rights of due process that arbitrators should respect. Likewise, Mr Schwartz holds it to be incompatible with Article 15.4 of the ICC rules (hearings should respect the rules of due process) and with Article 3.2 of the Pre-arbitral Referee Rules.

In this connection, it should be noted that legal systems as attached to the rights of due process as are French and English law, for example, both allow ex parte measures. In this connection do the ICC rules pretend to be more royalist than the king? I have some difficulty in being convinced of this.

In support of his doubt, Mr Bernardini asserted, on page 24 of his report, that unlike the decision of the national judge, the arbitrator's order is not subject to appeal. As a counter to this argument, it seems to me that it can be stated that the pars inaudita is in any case entitled to ask the tribunal to reconsider its decision (cf. Marc Blessing "La procédure devant le tribunal arbitral", Bulletin of the ICC Court of Arbitration, vol. 3, no. 2, November 1992, p. 30). What is more, the very terms of Article 183 LDIP provide that submission to the arbitral tribunal's order of interim measures is bound to be voluntary. In the absence of such [Page117:] voluntary submission, the arbitral tribunal may request the judge with jurisdiction for his assistance. Accordingly, in one sense, the party who has not been heard has no need of appeal. It is sufficient for him, as a last resort, to refuse to submit to it and in such a case, it is not that party who will have responsibility for referring the matter to the national courts (in this sense, Walter/Bosch/Brönimann, Internationale Schiedsgerichtsbarkeit in der Schweiz, Berne 1991, pp. 155-156).

V. Regarding the role of the judge

It has just been pointed out that under article 183, para. 2 LDIP, if the party concerned does not submit voluntarily to the arbitral tribunal's order of interim or conservatory measures, the arbitral tribunal may petition the judge with jurisdiction for help. It may seem odd that initiative for such a request should be entrusted to the arbitral tribunal rather than to the petitioner party. There is not enough time for me to stop to consider this question. On the other hand, I should like to say a few words on the role of the judge. The opinions of learned writers differ on this question. At the two extremes, we find on the one hand the view that the judge's task should be restricted to ratifying the arbitrator's decision, whilst on the other hand we find the idea that he should to the contrary verify that the arbitrator's order is well founded and check, inter alia, the probability of the loss or damage to be prevented. The overriding opinion lies between these two extremes. It consists of stating that the judge renders an order "of his own motion rather than a decision of enforcement ratifying the arbitrator's decision" (Lalive / Poudret / Reymond, op. cit., note 10, relating to article 183 LDIP), but that nonetheless it is not up to him to open a new procedure relating to provisional measures. The judge's task is consequently to verify that the measures ordered by the arbitral tribunal do not conflict with his own country's law either as regards the manner in which they were taken or in their content. If the judge played a more incisive role, this would remove any practical meaning from the possibility of ordering interim measures that arbitrators are now acknowledged to have.

VI. What measures?

The arbitrator has to apply the rules of procedure that the parties have chosen, either directly or by reference to a law or to rules of arbitration. Failing this, the arbitrator will apply rules determined by himself. He may find himself in the position of ordering measures which the law of the place of arbitration is not familiar with.

The judge, for his part, applies his own national law (Article 183, para. 2, 2nd sentence LIDP). Hence he can only order measures that are provided under his own country's law (Poudret, Bulletin de l'Association suisse de l'arbitrage, 10, 1992/1, p. 43; Note Olivier Merkt, in Revue suisse de droit international et de droit européen, 3/1991, p. 372). Accordingly it is to be expected that when confronted by measures ordered by an arbitrator that are unknown in his national law, he will order the measures permitted by his law that most closely resemble those measures.

Finally, the subject of this symposium can be approached in a number of ways. For example, there is the approach corresponding to "the old mistrust" referred to by Mr Bernardini in his report, or as one might call the "no poaching" approach. Perhaps vestiges of this do remain, but it seems to be close to being abandoned. There is also a dogmatic approach, that is one that relies on deducing every solution from a general assertion: for example because there is an arbitration agreement, any intervention by the national judge is rejected as illogical, or, to the contrary, the fact that the arbitrator is deprived of the power of enforcement appears to exclude his ordering interim measures. My preference - like that of several rapporteurs - favours a more pragmatic approach. Who will be able to act the most rapidly, if speed is of the essence, or who will understand the facts more easily, if this factor is essential? Of necessity, this type of pragmatic approach leads to the principle of cooperation between the arbitrator and the judge. It is not mere chance that in conclusion to his own report, Mr Bernardini recalled the speech presented by President Goldman on the occasion of the 60th anniversary of the ICC Court of Arbitration.