The parties entered into a framework agreement, under which the respondent, a public entity in an East European state (X), undertook to make contributions in kind to three joint companies created pursuant to the framework agreement. The claimants, two French companies, accused the respondent of failing to take the steps necessary to realize its contributions and of hindering the registration of the joint companies. The claimants made a request for interim and conservatory measures in their request for arbitration, which they subsequently reiterated in a formal request for emergency measures. Likewise, the respondent requested interim and conservatory measures in its answer to the request for arbitration and again, subsequently, in its answer to the claimants' request for emergency measures.

Les parties conclurent un accord cadre, selon lequel la demanderesse, une personne morale de droit public située dans un État (X) de l'Europe de l'Est, s'engagea à réaliser des apports en nature au profit de trois sociétés communes créées conformément à l'accord cadre. Les demanderesses, deux sociétés françaises, reprochèrent à la défenderesse d'avoir omis de prendre les mesures nécessaires à la réalisation de ses apports et d'avoir fait obstacle à l'immatriculation des sociétés communes. Les demanderesses sollicitèrent dans leur demande d'arbitrage des mesures provisoires et conservatoires qu'elles réitérèrent ensuite dans une demande formelle de mesures d'urgence. De même, la défenderesse sollicita des mesures provisoires et conservatoires dans sa réponse à la demande d'arbitrage et à nouveau dans sa réponse à la demande de mesures d'urgence faite par les demanderesses.

Las partes concluyeron un acuerdo marco según el cual el demandado, una entidad pública de un estado (X) de Europa Oriental, se comprometió a efectuar contribuciones en especie a tres empresas conjuntas creadas en virtud del acuerdo marco. Los demandantes, dos sociedades francesas, acusaron al demandado de no tomar las medidas necesarias para realizar las contribuciones y de obstaculizar el registro de las empresas conjuntas. Los demandantes solicitaron medidas provisionales y cautelares en su demanda de arbitraje, lo cual reiteraron posteriormente en una solicitud formal de medidas de urgencia. Del mismo modo, el demandado solicitó medidas provisionales y cautelares en contestación a la demanda de arbitraje y de nuevo, posteriormente, en contestación a la solicitud de medidas de urgencia de los demandantes.

'1. On jurisdiction

Pursuant to Article 23 of the ICC Rules of Arbitration and Article 183 of the Swiss Statute of International Private Law, i.e. the law of the seat, the arbitral tribunal has jurisdiction to order the interim and conservatory measures which it would deem appropriate. Besides, this jurisdiction has been recognized by the parties in their written submissions and oral pleadings.

2. On the issue of denial of registration

The Framework Agreement provided for the creation of Joint Companies to perform the project. The following Joint Companies were created:

- [Company O] (hereafter the "Operating Company")

- [Company C] (hereafter the "Construction Company")

- [Company I] (hereafter the "Investment Company").

Registration of these Joint Companies was applied for. However, the registration of these companies was refused by the Court of Registration. The Court of Registration indicated that the Joint Companies could reintroduce their request for registration after some changes in the structure of capital contributions. The issue of the registration is now pending before the Supreme Court of [state X].

Claimants requests the arbitral tribunal to compel Respondent to make a minimum cash contribution to the registered capital of the Operating Company and of the Investment Company and to implement the correlative amendments of the articles of association in respect of those companies. Claimants argue that, as suggested by the Court of Registration with regard to the registration of the Joint Companies and as indicated in a previous decision of the [state X] Supreme Court in an unrelated case, by such contribution the registration of the Joint Companies will not be refused so that these Joint Companies, necessary instruments for the performance of the Framework Agreement, need not be liquidated.

Respondent argues that such cash contribution would require an amendment of the agreements between the parties, which is impossible, and that it is moreover not certain that such cash contribution will result in a registration of the Joint Companies.

The arbitral tribunal notes that in a long-term project, as was envisaged by the Framework Agreement concluded by Claimants and Respondent, all parties have the duty to cooperate in the realization of the venture and they may not jeopardize the purposes of the contractual arrangements they have made.

The arbitral tribunal notes that the interim and conservatory measures requested by Claimants would require an adaptation of the initial arrangements. Indeed, these measures would result in a-temporary-change from a contribution in kind by Respondent, as initially agreed, into a contribution in cash.

The arbitral tribunal notes that such an amendment may not be excluded under e.g. [state X] law in the event the circumstances have changed substantially between the execution of the agreement and the present situation.

However, the arbitral tribunal deems a possible amendment of the parties' agreements a substantial remedy which cannot be envisaged as a provisional or conservatory measure. Indeed, as such remedy requires full analysis of the merits of the contractual relations between the parties, it can only be part of the final decision on this aspect of the dispute.

The arbitral tribunal is aware of Claimants' argument that a decision from the [state X] Supreme Court denying the registration of the Joint Companies, risks to result in the liquidation of said companies. In Claimants' view, such liquidation would exclude further specific performance of the Framework Agreement and would limit Claimants' possible relief to payment of compensation. The arbitral tribunal notes, however, that specific performance of the Framework Agreement may still be ordered even after liquidation of the Joint Companies (e.g. the creation of new joint companies would remain an option).

3. On actions in the reclaiming of possession

Claimants request the arbitral tribunal to prohibit Respondent to cause [company V] to initiate any kind of action for the reclaiming of the assets contributed in kind to the Joint Companies. Moreover Claimants request the arbitral tribunal to instruct Respondent to prevent [company V] to initiate any such or similar actions.

However, Respondent committed itself in its written submissions and in its oral pleadings at the hearing that said assets would only be reclaimed whenever the Joint Companies were being liquidated as a result of a possible final refusal from the courts to register said companies, as is required under [state X] law.

In view of this commitment from Respondent, there is no urgency for interim and conservatory measures to prevent the reclaiming of assets which are presently in use in the Joint Venture.

However, if ever the [company V] or its receiver would reclaim the assets contrary to Respondent's commitment, such reclamation could prima facie be held against Respondent as the [company V] is wholly owned and controlled by Respondent.

4. On suspension of the arbitration proceedings

Respondent has required the arbitral tribunal as an interim and conservatory measure to suspend the present arbitration proceedings until the Supreme Court of [state X] has rendered a decision on the registration of the Joint Companies.

The arbitral tribunal recognizes that proceedings concerning the registration of the Joint Companies are at present pending before the [state X] Supreme Court and may have an impact on the further relation between the parties.

However, the dispute pending before the Supreme Court concerns parties different from the parties in the present arbitration. Moreover, the subject matter of the dispute, i.e. whether in the given circumstances registration of the Joint Companies should be granted under [state X] law, is only one of the matters which constitute the factual context of the dispute to be settled in the present arbitration. Consequently, the arbitral tribunal will take a possible decision from the Supreme Court into account in its assessment of the facts.

However, a decision from the Supreme Court in itself does not affect the jurisdiction of the arbitral tribunal to issue an award on the relief sought from this tribunal and is not a condition precedent for the arbitral tribunal to render its award(s). Consequently the arbitral tribunal will not suspend the proceedings.

For the reasons stated above, the arbitral tribunal hereby decides the following:

1) The arbitral tribunal has jurisdiction to decide on the interim and conservatory measures requested by the parties.

2) Claimants' request to enjoin Respondent to make a cash contribution to the registered capital of the Operating Company and of the Investment Company and to implement the correlative amendments of the articles of association of said companies, is not granted.

3) Claimants' request to prohibit [company V] or its receiver to initiate any kind of action for the reclaiming of the assets contributed in kind to the Joint Companies, is not granted.

4) Respondent's request to suspend the arbitral proceedings is not granted.'