Introduction

Interim and conservatory measures can be issued not only to protect the substantive claims made in an arbitration, but also to protect the arbitral proceedings against attempts by parties to delay their progress or undermine their privacy. At a time when legal and business conflicts are being fought with ever-increasing intensity, such attempts have become more frequent, while measures to protect arbitral proceedings have at the same time become more effective. Two examples illustrate the point.

In ICC case 12242,1 counsel for the claimant had disclosed to a newspaper journalist the amount of a claim that he was planning to make on behalf of his client. Counsel for the respondent learned of this disclosure when the journalist gave him an opportunity to comment (at very short notice). However, rather than commenting on the information, counsel for the respondent referred the matter to the arbitral tribunal, which issued a confidentiality order within two days of the counsel's referral (the other side was given an opportunity to comment).

In ICC case 8307,2 the first respondent made a counterclaim in the arbitration without objecting to the jurisdiction of the arbitral tribunal. The same respondent then filed the same claim in the State courts of the country in which it was registered, in patent violation of the arbitration agreement. Noting that he had authority to order interim or conservatory measures pursuant to Art. 23(1) of the 1998 ICC Rules of Arbitration, the sole arbitrator examined the claims made in the State court proceedings and in the arbitration and found them to be 'mainly the same'. Subsequently, he granted the requested anti-suit injunction against the first respondent, reasoning as follows:

10. It is not contested that an arbitrator has the power to order parties to comply with their contractual commitments. The agreement to arbitrate being such a commitment, its violation must be dealt with by an arbitrator by issuing an order to comply when it is patent that a suit filed in a State court is outside the jurisdiction of that court and is therefore abusive. This power vested in an arbitrator also operates as a guarantee of the efficiency and credibility of international arbitration.

It may happen that parties breach their duties of confidentiality and attempt to be obstructive even before the arbitral tribunal is constituted. Experience shows that this may be an even more critical stage. For example, a respondent may seek an unfair advantage early in a controversy by taking a claim that falls within the ambit of an arbitration agreement to the local courts of its home country. In certain jurisdictions3 a respondent may also seek to obtain an interim order of 'protection' from a State court ordering the claimant to abstain from initiating arbitral proceedings ('anti-arbitration injunction'). Another tactic an aggressive claimant or respondent may use is to disclose information about the imminent filing of a claim. Such news may be harmful per se to the other side and have a very negative impact on share values.

The 2012 ICC Rules of Arbitration have introduced the 'emergency arbitrator', who has power to order urgent interim or conservatory measures prior to the constitution of the arbitral tribunal.4 This paper deals with the question of whether, and to what extent, the Emergency Arbitrator Provisions, which apply only if the arbitration agreement in question was concluded on or after 1 January 2012 (Art. 29(6)(a)),5 will be useful in protecting the confidentiality of the proceedings and the jurisdiction of the arbitral tribunal.

The ICC Rules prescribe only two fundamental prerequisites for the ordering of Emergency Measures, which are (i) jurisdiction of the emergency arbitrator (Art. 6(2) of Appendix V); and (ii) urgency such that the requested measure 'cannot await the constitution of the arbitral tribunal' (Art. 29(1)). These prerequisites will be discussed in sections 1 and 2 below. In the subsequent two sections, the author will deal with two other criteria which come into play when emergency relief is requested, namely (iii) a 'reasonable chance of success on the merits' (section 3) and (iv) the proportionality of the measure (section 4). Finally, the form and types of measures that can be ordered under the Emergency Arbitrator Provisions will be discussed (section 5). [Page7:]

1. Jurisdiction of the emergency arbitrator

Legal writers have warned that '[a]rbitrators should exercise special care in ascertaining their jurisdiction before deciding on an application for interim relief', as this avoids 'the embarrassing situation of a tribunal that granted interim relief and later found that it did not have jurisdiction'.6 However, in view of the need for urgency, the prevailing view is that prima facie jurisdiction is sufficient for the arbitral tribunal to grant interim and conservatory measures.7

Article 29(5) provides that the Emergency Arbitrator Provisions apply only to parties who are either signatories to the arbitration agreement that forms the basis of the Application for Emergency Measures, or are the successors of signatories. If the President of the ICC International Court of Arbitration finds, on the basis of the Application, that this requirement is not met with respect to some or all of the parties, the Secretariat informs the parties that no emergency arbitrator proceedings will be carried out with respect to those parties (Art. 1(5) of Appendix V).

The signature requirement contained in Article 29(5) precludes difficult jurisdictional issues such as whether or not a party who has not signed the arbitral agreement is nevertheless bound by it. Such issues may depend on a number of factual questions and take time to be examined. In particular, the 'group of companies' or 'piercing of the corporate veil' theories cannot be applied to establish the jurisdiction of the emergency arbitrator, which makes the assessment of jurisdiction relatively simple.

As compared to an arbitration agreement that has been accepted by a party only tacitly or by implication, a signed arbitration agreement is a very solid basis for the jurisdiction of any arbitrator, including the emergency arbitrator. Therefore, it is submitted that the emergency arbitrator is a particularly appropriate organ to rule on interim or conservatory measures that take the form of confidentiality orders (preventing a party from exercising its freedom of expression) or anti-suit injunctions (preventing a party from pursuing an action in a State courts which would be competent in the absence of an arbitration agreement).

However, as it is inconceivable that the emergency arbitrator could order conservatory or interim measures that the arbitral tribunal, once constituted, could not grant, it is first necessary to consider whether the arbitral tribunal, once constituted, is entitled to issue anti-suit injunctions (its power to issue confidentiality orders is beyond doubt-see Article 22(3)).

In principle, under an arbitration agreement, any disputes related to that agreement, including breaches of the obligation to arbitrate, are to be decided by the arbitral tribunal.8 The arbitral tribunal has the power to award damages for a party's breach of its undertaking to arbitrate disputes. Compensation may also be granted in kind. From that perspective, an anti-suit injunction is 'in reality nothing more than an order given to the party acting in breach of the arbitration agreement to comply with its contractual undertaking to arbitrate the dispute it has submitted to the domestic courts'.9

The latter view has been challenged by some legal writers who state that it is not certain whether the obligation to submit a dispute to an arbitral tribunal can be enforced by way of injunction.10 However, what is at stake here is not a 'duty' to submit a dispute to arbitration, but an obligation to refrain from seizing the courts with a matter in respect of which the parties have made an arbitration agreement. The anti-suit injunction is designed to protect the negative obligations arising out of the arbitration agreement.11 Furthermore, pursuant to Article 28(1), the arbitral tribunal may order 'any interim or conservatory measure it deems appropriate' (emphasis added). Subject to possible mandatory law prohibiting arbitral tribunals from granting interim or conservatory relief in general, or certain types of interim or conservatory relief,12 Article 29(1) does not exclude any type of measures, giving the arbitral tribunal the broadest possible powers, including the power to order anti-suit injunctions. Hence the arbitral tribunal, once constituted, will indeed have the power to issue anti-suit injunctions. It can therefore be inferred that the emergency arbitrator has the same power.

However, it follows, from Article 29(5) that the emergency arbitrator cannot render confidentiality orders and/or anti-suit injunctions against States in investment disputes where the host State's offer to consent is contained in its national investment legislation, or where jurisdiction follows from bilateral investment treaties. Only States that have signed an individual ICC arbitration agreement after 1 January 2012 containing no opt-out provision will be bound by the Emergency Arbitrator Provisions and thus be subject to confidentiality orders and/or anti-suit injunctions made pursuant to those Provisions. [Page8:]

2. Urgency of the measure

The second prerequisite for the ordering of Emergency Measures is that they 'cannot await the constitution of an arbitral tribunal' (Art. 29(1)). Legal writers have tried to give substance to this requirement. Voser states that Emergency Measures are available only in 'truly urgent situations'.13 Castineira also speaks of 'truly urgent interim relief' and states that the underlying matter must be dealt with by the arbitral tribunal unless it absolutely cannot await the arbitral tribunal's constitution.14 As explained by Craig and Jaeger,15 the relevant test is whether 'the measure sought could still be ordered by the arbitral tribunal once constituted' or whether the measure, if ordered by the arbitral tribunal once constituted, would come too late to prevent the harm.

a) Confidentiality order

In cases where a party threatens to disclose confidential information in an upcoming press conference, it is obvious that the measure cannot await the constitution of the arbitral tribunal. Once the information is out, it will be impossible to erase it from the memory of the interested public. Very often, the mere notice of a dispute can have immediate repercussions on the price of a company's shares.16 As can be seen from the example in the Introduction above, in which an arbitral tribunal issued a confidentiality order within two days of its being requested, if confidentiality duties are breached, the urgency will more often than not be such that the measure 'cannot await the constitution of an arbitral tribunal' (Art. 29(1)).

b) Anti-suit injunction

The question of urgency is much more difficult in a case where a party starts judicial proceedings in breach of an arbitration agreement. Normally, at the request of the other party, the court seized of the matter will refer the parties to arbitration (in accordance with Article II(3) of the New York Convention). This litigation will not delay or disrupt the pending arbitration in any way. In States where the courts may order the losing party to reimburse the prevailing party for the costs of the proceedings ('costs follow the event' rule), the party that is seeking to enforce the arbitration agreement may even obtain reimbursement of its costs; alternatively, that party may request an order from the arbitral tribunal, once constituted, granting it compensation for the costs it incurred in the court proceedings.17 In such a situation, it is difficult to perceive any urgency at all, let alone sufficient to justify that the requested measures 'cannot await the constitution of an arbitral tribunal' (Art. 29(1)).

The opinion has been expressed that arbitrators should issue anti-suit injunctions only 'when it comes to their attention that one of the parties has committed fraud or otherwise engaged in abusive behaviour in order to revoke the arbitration agreement'.18 For example, if a party initiates court proceedings with the intention of ruining its opponent and preventing the opponent from pursuing the arbitration, that behaviour must be qualified as 'abuse'.19

This narrow view has been challenged by other writers who have stated that the appropriateness of an anti-suit injunction cannot solely depend on the procedural conduct of the parties.20 In this regard, it is helpful to consider the case law of common law courts as a source of inspiration, as they have the longest experience with the application of anti-suit injunctions.21 In a landmark decision on 18 June 2003, the US Court of Appeals for the Fifth District, which was requested to restrain a party from pursuing an action in foreign courts to set aside an arbitral award, took account of several 'interrelated factors', namely (i) the '"inequitable hardship" resulting from the foreign suit', (ii) 'the foreign suit's ability to "frustrate and delay the speedy and efficient determination of the cause"' and (iii) 'the extent to which the foreign suit is duplicitous of the litigation in the United States'.22

In cases where a foreign court has been seized with a matter in breach of an arbitration agreement, common law courts have gone further, stating that 'there is no reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them'.23 This reasoning is echoed in legal literature, where it has been stated that the breach of the arbitration agreement is, per se, sufficient to justify an anti-suit injunction where other remedies, in particular the provisions of Article II(3) of the New York Convention, are not 'adequate' to cure the breach.24

In the present context (i.e. the emergency arbitrator is requested to order an anti-suit injunction), the issue at stake is not only whether the anti-suit injunction is permissible as such, but rather whether it is so urgently required that it 'cannot await the constitution of an arbitral tribunal' (Art. 29(1)). While it is obviously [Page9:] impossible to establish a single abstract rule encompassing all possible cases, the following considerations may be relevant:

• The judgment rendered by the court that has been seized with the merits of a matter will have res judicata effect in the State where it was rendered and effectively block enforcement of the award resulting from the arbitral proceedings. This may be sufficient to justify an anti-suit injunction. However, depending on the timing, it may be sufficient if the arbitral tribunal, once constituted, deals with the request for an anti-suit injunction.

• In certain jurisdictions,25 a party may not only try to seize the court with the merits, but may also seek to obtain an interim order of 'protection', ordering the other party to abstain from initiating or pursuing arbitral proceedings ('anti-arbitration injunction'). Such orders may be issued by the courts within days or weeks, especially if the court is not independent and impartial.

If the place of the arbitration lies within the jurisdiction of the court that has issued the anti-arbitration injunction, the interim order of 'protection' will prevent the arbitration from going forward. This may deprive the other party of the sole effective means of asserting its rights, thereby denying that party its right of access to justice.26 But even if the place of the arbitration lies outside the jurisdiction of the State court that has issued the anti-arbitration injunction, the injunction may have devastating effects on an arbitrator living in the country where that court is situated and/or on the party or parties established in that country.27 In such cases, there may be urgency to the point that the anti-suit injunction 'cannot await the constitution of an arbitral tribunal' (Art. 29(1)).

• If the court's anti-arbitration injunction is not immediately enforceable and subject to further appeal, it may be appropriate to await the outcome of the court proceedings of first instance, especially in countries where there are effective guarantees that the court proceedings will be fair.

• State courts may order excessive pre-trial document production.28 This may entail huge costs for the party that seeks to enforce the arbitration agreement and divert its attention (and financial resources) away from the preparation of its case for the upcoming arbitration. If the pre-trial document production procedure is imminent, an anti-suit injunction issued by the emergency arbitrator may be the appropriate remedy.

• The financial resources of the party seeking to enforce the arbitration agreement may be so limited that it cannot retain another counsel in a foreign country and conduct court proceedings in a foreign language, rapidly leading to negative consequences for the party that is unable to participate. In these cases, too, an anti-suit injunction by the emergency arbitrator may be the appropriate remedy.

• If the State court proceedings initiated in breach of the arbitration agreement are properly qualified as 'abusive', then an anti-suit injunction by the emergency arbitrator will usually be warranted.

• In all of these situations, the time needed to constitute the arbitral tribunal is highly relevant. If a sole arbitrator is to be appointed, the process may only take a few days. The sole arbitrator can deal with a request for interim relief even prior to drawing up the Terms of Reference.29 In these situations, the request for interim relief can perhaps await the constitution of the arbitral tribunal. However, in cases where a panel of three arbitrators needs to be constituted, the time required for the arbitral tribunal to be set up and to be in a position to start its work and deal with a request for interim or conservatory measures may be significantly longer.

As is obvious from the above considerations, there may be situations in which an anti-suit injunction would, in principle, be necessary but in which the measure can await the constitution of the arbitral tribunal. In these cases, the emergency arbitrator ought to formulate his or her order with special care; even if the order is without prejudice to the decisions of the arbitral tribunal (Art. 29(3)), the parties will inevitably refer to it when the request for interim relief is reintroduced in the arbitral proceedings. [Page10:]

3. 'Reasonable chance of success on the merits'

The next requirement to be examined is whether there is a reasonable chance of success on the merits or a prima facie establishment of the case.30

a) Confidentiality order

If a request for a confidentiality order is submitted to the emergency arbitrator, the 'merits' to be assessed on a prima facie basis are (only) whether or not the parties are subject to a duty of confidentiality. This may be a difficult question from a legal point of view but will rarely involve complex factual issues; for this reason, the emergency arbitrator should be able to deal with it very quickly, which comports with the emergency arbitration's mission.

To assess whether the parties are under a duty of confidentiality, the emergency arbitrator will first take account of the arbitration agreement, which may expressly deal with confidentiality. Confidentiality may also be an obligation resulting from the law applicable to the arbitration agreement. While there is no opportunity in the present article to discuss whether or not a duty of confidentiality is implicit in any arbitration agreement,31 the author would simply refer to Lazareff's proposition that confidentiality is 'an inherent part of international commercial arbitration, subject to the sole exception of absolute and overriding public interest'.32

A duty of confidentiality may also arise out of the substantive provisions of the contract or out of the applicable arbitration rules. It has been stated that the 2012 ICC Rules of Arbitration do not impose a duty on the parties to keep the existence and the subject matter of the arbitration confidential.33 During the drafting of those Rules it was thought that 'the issue of confidentiality is an issue which is best left to the parties'.34 However, the intent of the drafters of rules can only be relevant to the extent it is expressed in the rules. The 2012 ICC Rules of Arbitration refer directly to 'orders concerning the confidentiality of the arbitration proceedings' in Article 22(3). In the present author's view, this reference presupposes a duty of confidentiality that extends to the parties.35

Regardless of whether or not the parties are under a duty of confidentiality, it is beyond doubt that the arbitral tribunal has the power to order measures necessary to avoid an aggravation of the dispute.36 Any 'non-marginal risk of aggravation of the dispute is sufficient to warrant an order for interim relief'.37 On that basis, even in cases where the parties are not under a general duty of confidentiality, they may be ordered to abstain from disclosing specific information about the arbitration or evidence that has been submitted in the arbitration, where this would lead to a risk of aggravation of the dispute.

If a duty of confidentiality is incumbent on the parties pursuant to the norms or principles referred to above, then there is more than a 'reasonable chance of success on the merits'. In such situations, the case for confidentiality has practically been proven and the emergency arbitrator must issue the confidentiality order, subject to the other prerequisites discussed in this article.

b) Anti-suit injunction

If an anti-suit injunction is requested, the 'merits' to be assessed on a prima facie basis by the emergency arbitrator are (only) whether or not the arbitral tribunal, once constituted, will confirm its jurisdiction.

Since the Emergency Arbitrator Provisions apply only to parties that have signed the arbitration agreement or to the successors of signatories (Art. 29(5)), the question to be decided on a prima facie basis is rather limited in scope: if there is a signed arbitration agreement (or unequivocal documentary evidence of a successor relationship), there will usually also be a 'reasonable chance' that the arbitral tribunal will ultimately confirm its jurisdiction.

4. Proportionality

The last prerequisite to be assessed is that of proportionality. As has been stated in legal literature,38 '[t]he possible injury caused by the requested measure must not be out of proportion with the advantage which the applicant hopes to achieve'.

With respect to confidentiality orders, there might be objections that a measure that enjoins a party from making statements in public is out of proportion, as it limits the party's fundamental right to freedom of expression (cf. Art. 10(1) of the European Convention on Human Rights). However, as has been demonstrated in section 3(a) above, a duty of confidentiality presupposes an (express or implicit) agreement on confidentiality, which is nothing other than a waiver of a party's right to freedom of expression. In other cases, where the [Page11:] confidentiality order is justified by an obligation to avoid an aggravation of the dispute (see also section 3(a) above), it will again not be out of proportion because the serenity and efficiency of the arbitral process will usually have to be placed above a party's interests to publicize information.39

With respect to anti-suit injunctions, the reasoning is very similar. The objection might be that the order prevents the party concerned from exercising his or her fundamental right of access to the courts (cf. Art. 6 of the European Convention on Human Rights). However, as has been demonstrated in section 1 above, an agreement to arbitrate necessarily includes a waiver of the right to seize the courts with a matter in respect of which the parties have made an arbitration agreement.

Nevertheless, there may be room for argument over the proportionality of a measure. In particular, there may be cases where an anti-suit injunction might unjustly deprive a party of a legitimate advantage in the foreign court.40 For instance, an impecunious party might request the State court to declare the arbitration agreement invalid,41 or the impecunious party might benefit from legal assistance in court proceedings. Legal writers have also referred to the risk that the anti-suit injunction might prevent a party from tolling a limitation period or from offsetting its claim.42 These risks would have to be weighed against the circumstances that support the 'urgency' of the measure as discussed in section 2(b) above.

5. Form and types of measures that can be ordered under the Emergency Arbitrator Provisions

The emergency arbitrator must always rule in the form of an order (Art. 29(4)). If the emergency arbitrator finds that the prerequisites for the order requested are not met, he or she must reject the request, which should likewise be done in the form of an order.

Sometimes, interim measures are expressed in the form of mere recommendations. Parties usually comply with recommendations in order to show their good will.43 Recommendations are not entirely unsuitable if the emergency arbitrator finds it appropriate to address the parties in this form. In the order granting or denying the Application for Emergency Measures, the emergency arbitrator may make recommendations in addition to the order. However, these recommendations do not have any binding effect.

The ICC Rules do not define what types of interim or conservatory measures may be ordered under the Emergency Arbitrator Provisions. Therefore, a great deal of flexibility is permitted. The emergency arbitrator may order 'any type of conservatory, provisional or interim measure that an arbitral tribunal may order, no less and no more'.44 If there is a confidentiality obligation, then it can be protected through all the measures possible also under Article 22(3).

Conclusion

As the above analysis has shown, the emergency arbitrator can act as a 'protector' or 'guardian' of the obligations arising out of or in connection with the arbitration agreement during the critical period prior to the commencement of the arbitration and/or prior to the constitution of the arbitral tribunal. This may help to de-escalate the conflict and save time and costs, but only in cases where the litigants have signed the arbitration agreement or are successors of signatories. In these cases, it may be hoped that the mere availability of confidentiality orders or anti-suit injunctions from the emergency arbitrator within a very short period of time will prevent irregular behaviour.

1
See Decisions on ICC Arbitration Procedure, ICC ICArb. Bull., 2010 Special Supplement, 40.

2
See Interim, Conservatory and Emergency Measures in ICC Arbitration, ICC ICArb. Bull., 2011 Special Supplement, 13.

3
For a comparative review of jurisdictions where anti-arbitration injunctions are or are not available, see J.D.M. Lew, 'Control of Jurisdiction Issued by National Courts' in A.J. van den Berg, ed., ICCA Congress Series No. 13 (2006) 185 at 190 et seq.

4
For an analysis of the new Emergency Arbitrator Provisions, see E. Castineira, 'The Emergency Arbitrator in the 2012 ICC Rules of Arbitration' Les Cahiers de l'Arbitrage/The Paris Journal of International Arbitration (2012) 65; A. Reiner & C. Aschauer in R.A. Schütze, ed., Institutional Arbitration (2013), ICC Rules, Art. 29; N. Voser & C. Boog, 'ICC Emergency Arbitrator Proceedings: An Overview' in Interim, Conservatory and Emergency Measures in ICC Arbitration, ICC ICArb. Bull., 2011 Special Supplement, 81.

5
In the text which follows, unless indicated otherwise, references to articles refer to the ICC Arbitration Rules as in force as from 1 January 2012.

6
See J.M. Abascal, 'The Art of Interim Measures' in A.J. van den Berg, ed., ICCA Congress Series No. 13 (2006) 759.

7
A. Yesilirmak, Provisional Measures in International Commercial Arbitration (2005) at 175, with further references.

8
E. Gaillard, 'Anti-Suit Injunctions Issued by Arbitrators' in A.J. van den Berg, ed., ICCA Congress Series No. 13 (2006) 235 at 238.

9
Ibid. at 239.

10
L. Lévy, 'Les Anti-Suit Injunctions prononcées par les arbitres en droit commun de l'arbitrage', paper presented at IAI conference, 21 November 2003, 3, note 6.

11
See G. Born, International Commercial Arbitration (2009) vol. I at 1038, with further references to anti-suit injunctions rendered by English courts.

12
e.g. Italian Code of Civil Procedure, Art. 818, which prohibits arbitral tribunals from ordering interim relief; Austrian Code of Civil Procedure, Art. 593(1), which prohibits arbitral tribunals from ordering interim relief ex parte.

13
N. Voser, 'Overview of the Most Important Changes in the Revised ICC Arbitration Rules', ASA Bulletin (2011) 783 at 815 et seq.

14
E. Castineira, supra note 4 at 67.

15
W.L. Craig & L. Jaeger, 'The 2012 ICC Rules: Important Changes and Issues for Future Resolution', Les Cahiers de l'Arbitrage/The Paris Journal of International Arbitration (2012) 15 at 18.

16
e.g. S. Lazareff, 'Confidentiality and Arbitration: Theoretical and Philosophical Reflections' in Confidentiality in Arbitration, ICC ICArb. Bull., 2009 Special Supplement, 81.

17
cf. ICC case 5946 in J.-J. Arnaldez, Y. Derains, D. Hascher, Collection of ICC Arbitral Awards, 1991-1995 (1997) 48.

18
L. Lévy, 'Anti-Suit Injunctions Issued by Arbitrators' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (2005) at 126.

19
L. Lévy, supra note 10 at 7.

20
See also E. Gaillard, supra note 8 at 263.

21
See explanations in House of Lords judgment of 2 Apr. 2009, Airbus Industrie GIE v. Patel and others [1998] 2 All ER 257.

22
(2003) XXVIII Yearbook Commercial Arbitration 952; as for anti-suit injunctions under US law, see also G. Born, supra note 11 at 1039 et seq.

23
English Court of Appeal (Civil Division), 17 May 1994, XXII Yearbook Commercial Arbitration (1997) 846.

24
G. Born, supra note 11 at 1045.

25
See J.D.M. Lew, supra note 3.

26
S.M. Schwebel, 'Anti-Suit Injunctions in International Arbitration-An Overview' in E. Gaillard, ed., Anti-Suit Injunctions in International Arbitration (2005) 12.

27
C.J. Greenwood, 'Anti-Suit Injunctions in International Arbitration-A Public International Lawyer's Perspective' in E Gaillard, ed., Anti-Suit Injunctions in International Arbitration (2005) 148.

28
e.g. Rule 34 of the US Federal Rules of Civil Procedure.

29
cf. ICC case 12779 in Decisions on ICC Arbitration Procedure, ICC ICArb. Bull., 2010 Special Supplement, 75.

30
On this requirement see E. Castineira, supra note 4 at 76; see also A. Yesilirmak, supra note 7 at 177, with further references.

31
See I.M. Smeureanu, Confidentiality in International Commercial Arbitration (2011) at 14 et seq.; see also Confidentiality in Arbitration, ICC ICArb. Bull., 2009 Special Supplement, with contributions by Burn/Pearsall, Derains, Dimolitsa, Hwang/Chung, Lazareff, Smutny/Young.

32
S. Lazareff, supra note 16.

33
J. Fry, S. Greenberg, F. Mazza, The Secretariat's Guide to ICC Arbitration (2012) at para. 3-807.

34
N. Voser, supra note 13 at 803.

35
A. Reiner & C. Aschauer, supra note 4 at para. 449.

36
E. Gaillard, supra note 8 at 239.

37
Provisional measure rendered in ICC case 10596, published in J.-J. Arnaldez, Y. Derains, D. Hascher, Collection of ICC Arbitral Awards 2001-2007 (2009) 315.

38
A. Yesilirmak, supra note 7 at 182, with further references.

39
An exception is to be made where parties are under a legal duty to publicize information, e.g. listed companies; see G. Burn & A. Pearsall, 'Exceptions to Confidentiality in International Arbitration' in Confidentiality in Arbitration, ICC ICArb. Bull., 2009 Special Supplement, 23 at 34.

40
See US Court of Appeals for the Fifth District, 18 June 2003, supra note 22.

41
See the cases reported by A. Reiner, 'Impecuniosity of Parties and its Effect on Arbitration-From the Perspective of Austrian Law' in DIS German Institution of Arbitration (ed.), Financial Capacity of the Parties (2004) 37 at 44.

42
L. Lévy, supra note 18 at 125.

43
G. Marchac, 'Interim Measures in International Commercial Arbitration under the ICC, AAA, LCIA and UNCITRAL Rules' 10 The American Review of International Arbitration (1999) 123 at 133.

44
E. Castineira, supra note 4 at 75.