The final speaker at a colloquium such as this has two basic fears: (1) Will there be anything left unsaid for him to discuss, and (2) Will any of the audience be left? Fortunately, there are some things left unsaid which I believe are worth saying, and a very substantial portion of the audience has remained to the end - a fact testifying to the quality of the program which has been presented.

As I listened today, two maxims struck me as important in evaluating conservatory and provisional measures in international arbitration - "He has the defects of his qualities and the qualities of his defects" and "The perfect is the enemy of the good".

One of the principal qualities of arbitration is that it is a private consensual process of dispute resolution. That quality, however, carries the inherent defect that arbitrators cannot directly call upon the authority of the state to execute their mandates. The arbitrator has no power to enjoin or to attach; the state, through its judicial system, must be called upon to achieve such measures.

This leads to my second maxim. If we try to make arbitration perfect - to have it do the same thing as courts - we may in seeking perfection lose the flexibility and capacity to operate alongside, but not under the detailed control of, the judicial system which is presently a hallmark of arbitration.

The problem of conservatory and provisional measures should be explored with these points in mind. Clearly, the judicial system has inherent advantages over arbitration with respect to the availability and use of provisional remedies in dispute resolution. Courts are judicial bodies with continuing presence. Arbitral tribunals are ad hoc in the sense that they are created by agreement of the parties for the purpose of resolving a given dispute. This fact and the arbitrator's lack of imperium require that in arbitration the administration of conservatory and provisional measures receive judicial assistance. This necessarily results in a bifurcation of this element of the arbitration. Obviously, looking at conservatory and provisional measures alone, the court system is more efficient with respect to these measures than arbitration.

This analysis suggests a number of consequences. First, where conservatory and provisional measures are likely to be of paramount importance to the dispute, arbitration may be a less satisfactory remedy than judicial proceedings. In this connection, it should be noted that, since the place of arbitration in international controversies is very often chosen for its neutrality, the choice of judicial proceedings may very well result in a situs with more contacts with the parties and the controversy than the situs of the arbitral tribunal. For example, if the Channel Tunnel dispute were in the English courts rather than before an arbitral tribunal with its seat in Belgium, the English courts would surely have the power to grant the injunction which was sought and denied because of lack of jurisdiction. From the contractor's point of view, litigation in England would have been referable to arbitration in Belgium.

Second, if the advantages of arbitration outweigh the disadvantages of lack of power to grant and enforce conservatory and provisional measures, great care should be exercised during the negotiation of the arbitration clause in selecting arbitration rules which create the greatest opportunity to secure conservatory and provisional measures. Moreover, in designating the place of arbitration it should be remembered that the place may also be an important element in the success or failure of efforts to obtain such measures. See Bank Mellat v. Helliniki Techniki S A. [1984] QB 291, holding that the mere fact that the parties agreed that any arbitration was to take place in England does not support jurisdiction of the English courts to [Page123:] order security for costs in international arbitrations.

In addition to the reflections on the discussion today noted above, it would seem appropriate to suggest that arbitral institutions may wish to consider whether their rules need any revision and provisional measures. Moreover, complimentary mechanisms might be considered. In this connection, see the discussion in Eric A. Schwartz's paper of the International Centre for Expertise and the ICC Pre-Arbitral Referee Procedure. Finally, I would favour the suggestion just made in his closing remarks by Lord Mustill that the usefulness of an international convention dealing with the problems of conservatory and provisional measures in international arbitration should be considered. Would it be helpful, for example, to amend the New York Convention of 1958 to deal specifically with orders of arbitral tribunals with respect to such measures?