Mesures provisoires et conservatoires/ Article 8(5) du Règlement CCI / Requête à fin de saisie par le demandeur devant une juridiction étatique après communication du dossier au tribunal arbitral / Le défendeur requiert le tribunal arbitral d'ordonner au demandeur de renoncer à la saisie / Absence des « circonstances exceptionnelles » / Violation de la convention d'arbitrage et de l'article 8(5), oui / Dans le cas d'espèce, la sanction de cette violation ne peut pas donner lieu à une ordonnance enjoignant au demandeur de renoncer à la saisie sans que lui soit substituée une garantie équivalente / Pouvoir du tribunal arbitral d'adresser des injonctions aux parties, oui

'Claimant obtained from [Country of Claimant] Court two attachment orders dated September 19, 1987 and February 10, 1988. The orders pertain to the attachment of Defendant's assets up to the amount of ... with the Ministries of Defence, Public Works, Housing and Finance as well as with certain banks and financial institutions.

In its Application, Defendant requests the Arbitral Tribunal to order Claimant to waive the attachments made against Defendant, and - if Claimant should not comply with such order - to order Claimant to deliver to Defendant a performance bond on demand for ... - payable to Defendant in accordance with the arbitrators' award.

Defendant refers mainly to art. 8(5) of the ICC Rules reading as follows:

"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 doing so be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator."

Defendant submits that there were no "exceptional circumstances" in the meaning of such rule and that for this reason Claimant's request for interim measures addressed to a State court instead of the arbitrators, represents an infringement of the agreement to arbitrate and a breach, by Claimant, of the relevant ICC Rules.

Claimant contends that it has not violated the agreement to arbitrate or the relevant ICC Rules. It submits inter alia that it has strictly complied with the requirements of Art. 8(5) of the ICC Rules when it promptly notified the Secretariat of the ICC Court on October 3, 1987, of the provisional order granted by the [Country of Claimant] Court and of the "exceptional circumstances". Claimant argued that the following reasons fall within the meaning of the term "exceptional circumstances" as contemplated by Art. 8(5) of the ICC Rules:

a) Defendant is a foreign company which has liquidated its business in [Country of Claimant] and abandoned that country.

b) There are various claims currently filed against Defendant before [Country of Claimant] courts.

c) Defendant might call the two performance guarantees in the total amount of ... - despite the expiry of the maintenance period.

The Arbitral Tribunal holds that it is given, by the ICC Rules, the power to make interlocutory orders addressed as directions to the parties of the arbitration (Craig/Park/Paulsson, International Chamber of Commerce Arbitration, 1985, Part. IV § 26.05). This power results implicitly from art. 8(5) of the ICC Rules. Pursuant to such provision, the parties shall only be allowed in exceptional circumstances to address their applications for interim or conservatory measures to a judicial authority after the file has been transmitted to the arbitrator. Hence follows that in the absence of exceptional circumstances parties have to address such requests to the arbitrator.

Pursuant to the Swiss Intercantonal Concordat on Arbitration (Art. 26) which applies to this Arbitration as to procedural matters "not covered by the ICC Rules" (Terms of Reference, section 6.1b), such power is not given to arbitrators. However, since the point is covered although only implicitly by the ICC Rules, such provision of the Swiss Concordat is superseded by the ICC Rules.

Therefore, the Arbitral Tribunal has the power to make an interlocutory order in accordance with Defendant's Application. It will now be examined whether there are sufficient reasons to issue such an order.

It is not contested by Claimant that it applied to the [Country of Claimant] court for the attachment orders after the file had been transmitted to the Arbitral Tribunal (otherwise Claimant would not have tried to justify its application by referring to exceptional circumstances). It results inter alia from Exhibit 95 that the first attachment order was granted by the [Country of Claimant] court on September 19, 1987, and it may be concluded, from Claimant's silence in this respect, that its motion for a writ of prospective attachment was made on the same day or not more than very few days earlier, in any event after the file had been transmitted, by the Secretariat of the ICC Court, to the Arbitral Tribunal on September 16, 1987.

None of the points raised by Claimant as "exceptional circumstances" fall within the meaning of such term as contemplated by Art. 8(5) of the ICC Rules:

It is in international commercial arbitration not at all exceptional, but normal that one of the parties is, as seen from the other party's point of view, a "foreign" company. It is not exceptional either that the party, being a foreign party, does not hold any assets in the state of residence of a claimant party; therefore, the fact that such foreign company is liquidating its business in claimant's country and abandoning it, may not create an exceptional situation.

It is not rare that a main contractor entrusted with construction work in the value of more than ... is being sued by more than one subcontractor or supplier. Even if it were true that various claims have been filed against Defendant before [Country of Claimant] courts, such circumstances would only be exceptional if the number and amounts of claims in dispute would justify reasonable doubts as to Defendant's solvency, i.e. as to the question whether Claimant could expect to be paid out of Defendant's assets in the country where it would have to seek execution of the requested award in [Country of Defendant]. Nothing has been argued to this effect by Claimant.

The fact that Defendant might call two performance guarantees in the total amount of [currency] 282,200 - does not justify an attachment order, even less an attachment order for an amount of [currency] 1,061,880 (= 376%). If Claimant has reasons to believe that Defendant might call the guarantees and that such calling would be unjustified, it may request the Arbitral Tribunal to issue an order by which Defendant is directed to refrain from calling the guarantees.

The Arbitral Tribunal holds therefore that Claimant was in breach of the agreement to arbitrate and of Art. 8(5) of the ICC Rules when it applied for attachment orders to the [Country of Claimant] court. It is obvious that such attachment orders for a considerable amount of ... causes damages to Defendant as they expose Defendant to interest charges which would not have to be borne otherwise. There is also a risk of exchange losses.

On the other hand, the Arbitral Tribunal is aware of the fact that attachment orders are routinely available according to most legislations in the world if the requesting party shows reasonable cause for such security. Pursuant to the provisions and court practice of most states, an agreement to arbitrate does not exclude the parties' right to apply for such orders at least before the arbitration tribunal has been appointed. In accordance with these principles, parties are "at liberty to apply to any competent judicial authority for interim or conservatory measures" in ICC arbitration (Art. 8(5) of the Rules) before the file is transmitted to the arbitrator. It is true that when the parties exercise such right "unbalanced" situations may result where - as it appears in the case at issue - one party's claim is fully secured and

the other party's (counter-)claim is not. However, such situations even if they may in many cases not reflect a fair and appropriate balance of both parties' risk exposure, have to be tolerated as an unavoidable consequence of the coexistence between state court jurisdiction and arbitral jurisdiction as it results - in ICC arbitration - from Art. 8(5) of the Rules and from similar provisions in many legislations.

After the file has been transmitted to the arbitrators, the parties should no longer seek to have their claims secured by attachment orders of the judicial authority; they may instead apply for conservatory orders to the arbitrators as discussed above. However, it has to be admitted that the arbitrators' conservatory orders are under different aspects less protective than attachment orders rendered by a state court. The arbitral tribunal has no power to give directions to third parties (e.g. to banks where the funds of the opponent are placed). Not even the arbitrators' directions to the parties themselves are self-executing. The arbitrators' decision making is under certain circumstances much slower than the state judges, in particular:

a) if the file has been transmitted to the arbitral tribunal only recently, before the arbitrators have had an opportunity to acquaint themselves with the dispute and to prepare the Terms of Reference,

b) if the arbitral tribunal consists of several members in different, even in distant countries.

In the case at issue, the attachment order has been applied for in the same week the transmittal of the file to the arbitrators took place. It may even be that Claimant's Counsel had prepared and filed the request before he had received a copy of the letter of the Secretariat of the ICC Court, dated September 14, 1987 from which he could see that the file had been transmitted to the arbitrators. Under these circumstances and taking into account what has been discussed above, the Arbitral Tribunal holds that the sanction for the breach of the agreement to arbitrate and of Art. 8(5) of the ICC Rules may not consist of an order directing Claimant to waive the attachment without any replacement security. Such direction will be given to Claimant only under the condition that Defendant replaces the existing security by furnishing a bank guarantee to be issued by, and to be deposited with, a bank in Switzerland or France in favour of Claimant. This solution avoids most of the damages of which Defendant is complaining (interest charges; exchange loss risks) and has the further advantage that the security is placed in a neutral place rather than in a party's country.'