The claimant, a Turkish industrial manufacturer, purchased equipment from the second of the two respondents, both Austrian companies, for the purpose of manufacturing products that were to be marketed by the first respondent. The claimant accused the first respondent of failing to purchase the products from it and to pay certain invoices. The second respondent had agreed to guarantee the first respondent's debts towards the claimant. To secure its claim against the second respondent, the claimant applied to the arbitral tribunal for a conservatory measure preventing the payment of two bills of exchange for equipment purchased from the second respondent.

Le demandeur, un fabricant industriel turc, acheta du second défendeur du matériel destiné à la fabrication de produits qui devaient être commercialisés par le premier défendeur, les deux défendeurs état d'origine autrichienne. Le demandeur allégua que le premier défendeur n'avait pas procédé à l'achat des produits et n'avait pas réglé certaines factures. Le second défendeur s'était engagé à se porter garant des dettes du premier défendeur envers le demandeur. Pour garantir sa demande à l'encontre du second défendeur, le demandeur sollicita du tribunal arbitral une mesure conservatoire interdisant le paiement de deux lettres de change émises pour le matériel vendu par le second défendeur.

El demandante, un fabricante industrial turco, adquirió equipos al segundo de los dos demandados, un par de sociedades austríacas, con el objeto de fabricar productos destinados a ser comercializados por el primer demandado. El demandante acusó al primer demandado de no haberle comprado los productos y de no haberle pagado algunas facturas. El segundo demandado había aceptado avalar el pago de las deudas del primer demandado con el demandante. Para garantizar su pretensión contra el segundo demandado, el demandante solicitó al tribunal arbitral una medida cautelar para impedir el pago de dos letras de cambio por el equipo comprado al segundo demandado.

'IV. The issue of provisional measures against [Respondent 2]

12. The Parties' Respective Positions

12.1. In its Request for Arbitration, [Claimant] seeks the delay of payment of two bills of exchange until the end of these proceedings which, together with four other bills of exchange, were issued to [Respondent 2] in 1995 for the payment of the equipment which [Claimant] had purchased from [Respondent 2] under the Equipment Contract. In its legal brief of . . . June 1999 and again during the First Hearing of . . . July 1999, [Claimant] reduced its request to one bill of exchange, i.e. the one which became due on . . . July 1999 for an amount of . . .

12.2. [Claimant] maintains that it has submitted prima facie evidence to have a Claim for loss of profit and unpaid bills against [Respondent 2]. It claims to have the right to compensate the sum represented by the mentioned bill of exchange with its Claim for loss of profit. As it might take considerable time until such compensation would be paid by [Respondent 2], [Claimant] argues to run the risk to suffer even greater damage than it has already suffered.

12.3. [Respondent 2], on the other hand, contends that the arbitral tribunal is not authorized to award any provisional measures against third parties because the bill of exchange, whose payment is sought to be blocked by the arbitral tribunal, was sold and endorsed to a bank together with the other five bills of exchange soon after the conclusion of the Equipment Contract, i.e. on . . . 1996. According to [Respondent 2] this arbitral tribunal would have no power and no jurisdiction to enjoin a third party such as a bank to not present this bill of exchange at its due date.

12.4. Furthermore, Respondent argues that the amount represented by the bill of exchange to be blocked by provisional measures of this arbitral tribunal could not be set off for lack of reciprocity. This would even be so if it were assumed that [Claimant] based its Claim on the Equipment Contract, which [it] does not since it bases its Claim on the Delivery Agreement.

12.5. Bills of exchange, so [Respondent 2]'s further argumentation, represent negotiable instruments. Such instruments guarantee to any of its holders the payment of the amount represented by it. By the delaying of the payment of such a bill of exchange as requested by [Claimant] the entire legal concept of a negotiable bill of exchange would be totally undermined.

13. Deliberations of the arbitral tribunal

13.1. Pursuant to Art. 23(1) ICC Rules (and Art. 183 PIL), the arbitral tribunal may order interim or conservatory measures unless the parties have otherwise agreed. As the parties have not excluded such possibility by agreement in the arbitration clause or since, this arbitral tribunal is authorized to order such measures.

13.2. [Claimant] has not contested that the bill of exchange in question was sold to a third party in January 1996. Therefore, the conservatory measures of this arbitral tribunal would have to be directed either against the Turkish bank, the purchaser of the bill of exchange, or even a further (unknown) person which has purchased it since January 1996, i.e. a third person not involved in the present proceedings.

The question to be decided by this arbitral tribunal is, therefore, whether it is authorized to award provisional measures against third persons.

13.3. The arbitral tribunal realizes the fundamental principle that jurisdiction is reserved to state courts. Hence, international arbitration must be seen as an exception to this principle which may not be extended to issues which are not defined by the arbitration agreement or to persons which are not bound by it.

This idea is expressed in Art. 183(2) PIL, which even with respect to provisional measures awarded against one of the parties in arbitration proceedings, provides that if the party concerned by such measures does not voluntarily comply with these measures, the arbitral tribunal must request the assistance of the competent state courts if the interim award is to be enforced. As a consequence, even with respect to the parties of the arbitration proceedings themselves the arbitral tribunal has a competence which is limited to the awarding of the provisional measures only.

Any award made by an arbitral tribunal, be it final or interim, may only address the parties of the arbitration agreement and any award involving third persons is a domain strictly reserved to state courts and may, consequently, not be awarded by this arbitral tribunal. This seems to be all the more essential for provisional measures which are ordered upon prima facie evidence. Consequently, this arbitral tribunal is of the unanimous opinion that [Claimant]'s request must be dismissed.

13.4. Moreover, as [Respondent 2] has rightly pointed out, any set-off presumes the reciprocity of the two amounts to be set off against each other. This prerequisite is clearly not fulfilled in casu, because, on . . . July 1999, when the bill of exchange became due, it was presumably presented by its holder, a third party, to the Turkish bank which has guaranteed its payment. Hence, even if a third person could be prevented from presenting or honouring the bill of exchange by provisional measures, [Claimant]'s request for provisional measure would have to be dismissed for lack of reciprocity.

14. Conclusion

The arbitral tribunal is of the unanimous opinion that [Claimant]'s request for provisional measures against [Respondent 2] is to be dismissed.'