The claimant, a Luxembourg company, and the respondent, a Dutch company, entered into a framework agreement setting out conditions for the acquisition of an interest in a Polish company undergoing privatization and for the future conduct of business in that company's area of activity. Both parties accused each other of breaching the framework agreement. The claimant requested an interim measure ordering the respondent to pay into an escrow account an amount corresponding to the damage it would be caused if part of the Polish company's activity were not transferred to it, alleging that, as a holding company, the respondent's ability to pay compensation for such damage could be at risk.

La demanderesse, une société luxembourgeoise, et la défenderesse, une société néerlandaise, conclurent un accord cadre définissant les conditions de l'acquisition d'une participation au capital d'une entreprise polonaise en cours de privatisation et de la future conduite des affaires dans le domaine d'activité de cette entreprise. Les deux parties se reprochèrent réciproquement d'avoir violé cet accord. La demanderesse sollicita une mesure provisoire enjoignant à la défenderesse de mettre sur un compte de séquestre une somme correspondant au préjudice qu'elle subirait si l'activité de l'entreprise polonaise ne lui était pas transférée, arguant du fait que la capacité de la défenderesse, en tant que société holding, à payer des dommages-intérêts en réparation de ce préjudice pourrait être compromise.

El demandante, una sociedad luxemburguesa, y el demandado, una sociedad neerlandesa, concluyeron un acuerdo marco en el que se establecen las condiciones para la adquisición de una participación en una sociedad polaca que está pasando por un proceso de privatización y para la futura gestión comercial en el sector de actividad de dicha sociedad. Ambas partes se acusaron mutuamente de incumplir el acuerdo marco. El demandante solicitó una medida provisional ordenando al demandado que pagara en una cuenta bloqueada una suma correspondiente al daño potencial ocasionado si no se le transfiriera una parte de la actividad de la sociedad polaca alegando que, en su calidad de sociedad de cartera, la capacidad del demandado para pagar la indemnización por tal daño podría verse comprometida.

'IV.8. Assessment of other circumstances connected with the fulfilment of certain formal requirements for the decision-making process related to the request for the issue of an interim measure in this arbitration

1. The tribunal further states the following circumstances of significance in an assessment of the tribunal's authorization to decide on the request for an interim measure, which are also requirements for the issue of an interim measure:

- The dispute between the Claimant and the Respondent is an international commercial dispute. Furthermore, it is a type of dispute which could also be covered by international conventions, such as the New York Convention (although in this case it does not involve an arbitral award adopting a decision in the case per se, but a resolution ruling exclusively on an interim measure and the Claimant's request for the issue of an interim measure).

- A valid arbitration clause was negotiated between the Claimant and the Respondent in favour of the Court ...

- The tribunal was constituted in accordance with the Rules.

- The tribunal is authorized to adopt a decision ordering an interim measure in accordance with Article 23(1) of the Rules and in accordance with the leges arbitrii provisions applicable to these proceedings at the place of the proceedings. Ultimately, this competence would also be conferred on the arbitrators pursuant to Title Five of the Polish code of civil procedure, i.e. the f arbitri legislation in the state where the major part of the subject of the dispute is located, or a substantial part of the subject of the parties' principal interest concerning this dispute is located, even though Poland is not the place of arbitration.

- The tribunal's competence to issue interim measures was not precluded by agreement of the parties to the dispute.

IV.9. Appropriateness of an interim measure

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3... . in the tribunal's opinion, there must be at least a justified concern from the Claimant's pleas and, to a reasonable extent, from the evidence presented by the Claimant that in the future the Respondent will be unable or unwilling to comply with the claim sought by the Claimant in the Request, if the request for the issue of an interim measure is to be upheld. There are no specific justified concerns from the Claimant's pleas or from the documents presented by the Claimant that in the future the Respondent will be unable or unwilling to comply with the claim sought by the Claimant in the Request. The reason cited by the Claimant, that the Respondent is an entity existing for the purpose of holding shares in certain companies within the [Z] group, and that, as part of various group restructuring actions, it could lose the ability to pay compensation for damage granted to the Claimant, is merely a reason generally valid for any entity which is a member of any grouping of enterprises, and in the broader context (as any entity may transfer its assets to another entity without being a member of any grouping of enterprises) is a reason that is generally valid for any respondent in any dispute. In the case in question, the existence of a reasonable risk that the Respondent would lose the ability to pay compensation for damage as a result of intra-group restructuring was not proven, and in the opinion of the tribunal is absent. Ultimately, if such a situation were to arise, the Claimant's corresponding rights can be sufficiently protected by virtue of regulations on legal succession, as it can be assumed that, even in such an extreme case of which the Claimant is afraid, the Claimant would undoubtedly not cease to exist without a legal successor and its rights and obligations would have to be settled accordingly and/or transferred to another person in full. Arbitration is controlled by the parties to the dispute themselves to a much stronger degree than proceedings before general (state) courts, and therefore it can be assumed that the parties to the dispute, in particular, will be sufficiently cautious in checking and verifying, throughout the proceedings, legal personality and any changes concerning the status of the counterparty. It can be expected, then, that the Claimant will check and verify whether such changes are taking place in respect of the Respondent. The Respondent is a legal person with its registered office in the Netherlands. In the Netherlands, all matters concerning legal persons set up for the purpose of engaging in business are subject to the principle of publicity. Information entered in the business registers maintained in the Netherlands by chambers of commerce (Kammer van Koophandel) and collections of documents maintained in respect of these registers are public instruments and public registers, and changes concerning the legal personality of such legal persons must be publicly disclosed. Therefore, it is up to the Claimant to check matters concerning the personal status of the Respondent and, where appropriate, to seek the exercise of its rights by other means in cases where circumstances are discovered which could indicate that changes might occur on the part of the Respondent which would subsequently hamper the exercise of the Claimant's rights if successful in these proceedings concerning the case per se. The concern cited by the Claimant in this point and in connection with the request for the issue of an interim measure is therefore only hypothetical. It could be applied to any party to any dispute, and if the tribunal were to uphold the request for the issue of an interim measure, it would de facto reduce part of the normal obligations of a party to any dispute (i.e. to act with due prudence and verify the status of the counterparty). ...

4. The grounds on which (inter alia, but evidently in particular) the Claimant is seeking the issue of an interim measure as discussed above, i.e. the claim made by the Claimant that the Respondent is an entity existing for the purpose of holding shares in certain companies within the [Z] group, and that, as part of various group restructuring actions, it could lose the ability to pay compensation for damage granted to the Claimant, indicates-in the opinion of the tribunal-that the risk claimed by the Claimant is actually very minimal. Therefore, the tribunal interprets this fact from the aspect of the grounds for the issue of the interim measure completely differently from the Claimant and the Claimant's interpretation of this matter.

...........

7. As the fulfilment of the Claimant's plea [for realization of its acquisition under the privatization scheme] is sufficiently safeguarded, i.e. under the already existing interim measure issued by the District Court of [city A] under No ..., the force and effect of which is confirmed by both parties (or the force, effect and binding nature [o]f which is not denied by either of them), the assurance exists that, if successful in this arbitration, the Claimant will be able to seek fulfilment of the claim [for the acquisition] in the future, and with regard to the fact that the claim to compensation for damage is raised by the Claimant only as an alternative if the Claimant's plea is not upheld, the tribunal considers the issue of an interim measure requiring the Respondent to remit ... to an escrow account held at [a named bank] or another Europe bank belonging to [the same group], or requiring the Respondent to produce a bank guarantee for ... granted to the Respondent by [the aforenamed bank] or another European bank belonging to [the same group], to be superfluous. In the tribunal's opinion, an interim measure is a measure which should regulate the relations of the parties temporarily and only to the strictly necessary extent. If the tribunal were to uphold the Claimant's request for the issue of an interim measure, this extent would evidently be exceeded. If the tribunal were to grant the request for the issue of an interim measure, the tribunal believes that this degree of absolute appropriateness would be significantly exceeded.

8. Furthermore, it should be noted that the current interim measure issued under Ruling of the District Court of [city A] No ... ensures that, even in the future, the Respondent will be able to dispose of shares in [company X] and that there will be no paid or free transfer or impairment of assets belonging to the [activity to be acquired]. Thus, in the opinion of the tribunal, the Claimant's alternatively applied claim to compensation for damage is also indirectly safeguarded ...

9. In assessing the appropriateness of the requested interim measure, the tribunal also considered the fact that not even the District Court of [city A] had found reasons for the issue of an interim measure in the form of the "confiscation" of ... shares of the debtor in the registered capital of [company Y], the purpose of which should be, in the view of the Claimant, the satisfaction of the Claimant's title to compensation for damage. The Claimant's request for the issue of an interim measure, as contained in the Request, essentially fails to include reasons other than those already set out in the justification of the request for the issue of an interim measure ... raised before a general court. Although the tribunal, in the evaluation of matters connected with the request for the issue of an interim measure, addressed the same issues entirely autonomously and independently of the ruling of the District Court of [city A], it de facto arrived at the same conclusions as the said Polish general court, even though the tribunal was not influenced at all by the statement of grounds attached to the ruling of the said Polish court ...

10. As the fulfilment of the Claimant's plea [for realization of its acquisition under the privatization scheme] is sufficiently safeguarded under the already existing valid and effective interim measure ordered by the District Court of [city A] under No ..., and the ordering of a new (additional) interim measure safeguarding an alternative claim to compensation for damage if the Claimant's plea [for realization of the acquisition] is not fulfilled, whereby the Respondent would be required to remit ... to an escrow account held at [the aforenamed bank] or another Europe bank belonging to [the same group], or whereby the Respondent would be required to produce a bank guarantee for ... granted to the Respondent by [the aforenamed bank] or another European bank belonging to [the same group], would result in another significant limitation on the Respondent's ability to dispose of its assets without the existence of attested circumstances that could give rise to a justified concern that later execution of the decision (if the Request is upheld) would be at risk, the tribunal does not consider the issue of the interim measure proposed by the Claimant in the Request to be reasonable.

11. However, based on the circumstances above and circumstances that will be discussed in part below, the tribunal came to the conclusion that, with regard to the nature and purpose of a procedural measure in the form of an interim measure, with regard to the circumstances of this dispute, with regard to the fact that the risk of a possible threat to the future execution of the decision has not been sufficiently verified in the matter which is the subject of the request for the issue of an interim measure, and with regard to the existence of another interim measures issued by a Polish general court and as discussed in detail above, the issue of an interim measure at this point in time would be inappropriate and therefore the request cannot be upheld.

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IV.11. Content of the request for the issue of an interim measure, structure and nature thereof

1. Safeguarding interim measures in the form of the obligation to remit a certain amount to a designated account or in the form of bank guarantee security are admissible in the tribunal's opinion. These are standard measures which are clearly for security and the protection of creditor rights in connection with the possible burdening or prevention of the future enforcement of a decision.

2. However, the Claimant's request for the issue of an interim measure arouses certain doubts as to what the Claimant is actually demanding. In the tribunal's opinion a request in the case per se and a request for the issue of an interim measure must be exact. As the tribunal, or Court, is unable, in the decision-making process, to exceed the framework of a request or grant something which has not been sought, in the tribunal's opinion this condition must also be clearly respected in decisions on a request for the issue of an interim measure. The principle concerned, according to which it is not possible to go beyond the confines of a request in the decision-making process, has the same purpose in the case of an interim measure and could result in a situation where the framework of expanded subjective arbitrability is transgressed, i.e. the framework of what the parties (in the case in question the Claimant) made the subject of proceedings based on objective arbitrability (a case may be a subject of proceedings before arbitrators), subjective arbitrability (a valid arbitration agreement has been negotiated in respect of a matter and this applies to the subject of the proceedings) and split active subjective arbitrability (the given matter has become the subject of a dispute based on a specific request). In a detailed interpretation of the Claimant's request, the question is thus raised of whether the Claimant is demanding that the Respondent be required to remit ... to an escrow account held at [the aforenamed bank] or at another European bank which is part of [the same group], or whether the Claimant is demanding that the Respondent be required to present a bank guarantee in the amount of ... made to the Respondent by [the aforenamed bank] or another European bank which is part of [the same group]. In this respect (or in other words) the question is whether the Claimant is demanding that, in the form of an interim measure, the Respondent be required to remit ... to an escrow account held at [the aforenamed bank] or at another European bank which is part of [the same group], or whether it is proposed that the Respondent be required to present a bank guarantee in the amount of ... made to the Respondent by [the aforenamed bank] or another European bank which is part of [the same Group]. The difference lies in which entity should have the right to choose between the placing of the said amount in an escrow account and the submission of a bank guarantee, specifically, whether this choice is to be made by the tribunal in its decision-making or by the Respondent. This is not entirely clear in the request for the issue of an interim measure, even though it is a very important question. Although this matter seems to be simple at first glance, in a detailed examination of the Claimant's request various conclusions can be reached, and it should be stated that the Claimant's request is not particularly precise ...The tribunal arrived at the conclusion that the literal wording of the Claimant's request indicates that the tribunal should make the choice, and depending on this choice should also decide either to order the Respondent to remit a certain amount to an account or to order the Respondent to produce a bank guarantee for a certain amount (although the Claimant probably intended this obligation to be imposed as an alternative and that the Respondent would make the choice, in the opinion of the tribunal the Claimant did not phrase this particularly well). With regard to the fact that the request for the issue of an interim measure was refused not on the grounds of failure to comply with formal requirements, but due to its inappropriateness, there was no need to address this matter in detail. If the tribunal had arrived at the conclusion that all reasons for the issue of an interim measure had been met, it would evidently have called on the Claimant to provide a more detailed specification of the request for the issue of an interim measure ...

3. In addition, as regards the content of the interim measure, in the opinion of the tribunal at least the following two rules should be taken into consideration:

- an interim measure may only be binding for the parties to the dispute, not third parties;

- an interim measure must not anticipate a ruling in the case per se.

4. As regards the first principle, i.e. an interim measure may only be binding for the parties to the dispute, as regards the request for the issue of an interim measure this rule would be respected, in the opinion of the tribunal, either in the case of an interim measure in the form of the obligation to remit a certain amount to a bank account or in the case of an interim measure in the form of the presentation of a bank guarantee. The submission of a bank guarantee requires the cooperation of a bank in connection with the issue thereof, but the bank cannot be bound by an interim measure to issue a bank guarantee. Naturally, in this respect, the issue of enforcement of an interim measure in the form of the submission of a bank guarantee is disputable, as a bank cannot be forced to provide a bank guarantee. With regard to the fact that the tribunal arrived at the conclusion that the issue of an interim measure in this case is not reasonable and would be inappropriate given the circumstances assessed above, it was not necessary to evaluate this matter any further.

5. As regards the other requirement, that an interim measure must not anticipate a ruling in the case per se, it is necessary to diversify here too. As regards the question of whether or not to issue an interim measure, in the tribunal's opinion if the interim measure sought were issued this rule, in the specific case and strictly from a formal aspect (i.e. solely and particularly from the aspect of the nature of an obligation imposed in the form of an interim measure), would be respected as it entails a decision on fulfilment rather than a decision on determination. However, the amount at which the interim measure should be ordered is more problematic-whether up to [the amount stated in the request] or a lower amount. In this respect, an ordered interim measure would evidently anticipate the actual ruling on the amount of compensation for damage, as the amount of compensation for damage is one of the key issues which will probably have to be addressed in these proceedings. The Respondent contests this amount in its statements on the request to issue an interim measure. Irrespective of the arguments set out in these submissions, the tribunal states that the amount concerned will, with a certain degree of probability, have to be a subject in the taking of evidence in the case per se, where all arguments and statements of the parties will be taken into consideration (besides all relevant evidence which is admitted in the case). However, any decision making regarding this matter could be grasped at that stage as anticipation in the case per se. In addition, the tribunal is of the opinion that without detailed taking of evidence in the case it is not possible to assume a clear opinion regarding the amount [stated in the request] not even in the decision making on the interim measure, which would be temporary.

6. As the tribunal essentially refused the Claimant's request for the issue of an interim measure, mainly for the reasons cited above, in its assessment of the request for the issue of an interim measure it did not address (at this stage of the proceedings) the Respondent's objection concerning the justification, or lack of justification, for the amount of ..., which, according to the Claimant's proposal, should be remitted to an account, or a bank guarantee to this amount should be presented by the Respondent. An assessment of the justification for this amount is connected with an assessment of the Claimant's plea to the payment of compensation for damage, and therefore, in assessing the justification for this amount the tribunal would find itself in a situation where, in its decision on the Claimant's request for the issue of an interim measure, it would evidently anticipate a ruling in the case per se, which is not admissible before the start of the evidence-taking process. Furthermore, the anticipation of a ruling in this matter and in connection with the nature and circumstances of this dispute would evidently be impossible at this stage of the proceedings.

IV.12. Form of decision on the request for the issue of an interim measure

1. The tribunal also had to address the issue of whether the decision on the request for the issue of an interim measure is to be issued in the form of an order or in the form of an arbitral award. Article 23(1) of the Rules permits both variants.

2. The issue of an interim measure in the form of an arbitral award should facilitate the enforceability of the fulfilment of the interim measure. However, it is necessary to bring attention to the fact that an arbitral award should be used to make a decision with final force at the moment the tribunal believes that its ruling should be unchangeable and binding on the parties. These doubts led to a situation where a working party of the ICC Commission arrived at the conclusion more than fifteen years ago that decisions on requests to issue an interim measure should not be taken in the form of arbitral awards. The working party also mentioned other practical problems connected with the issue of interim measures in the form of arbitral awards. Other problems could occur in connection with the recognition and enforcement of arbitral awards in accordance with the New York Convention. For example, in the United States there is a recorded case where an arbitral award containing an interim measure was enforced by the American courts as final, even though it was only a partial arbitral award which also contained an interim measure. In contrast, there is a different view expressed in the Australian case of Resort Condominium v. Bolwell, in which the Supreme Court of Queensland rejected the enforcement of an American arbitral award containing an interim measure which was intended to maintain the status quo. The Australian court concluded that the arbitral award was only of a procedural nature and did not resolve the dispute with final effect or establish the rights of the parties with final force. With regard to these facts, the enforcement of this ruling, which in the view of the Australian court was not actually an arbitral award, was rejected in accordance with the New York Convention. Although these examples might seem very remote from the situation being addressed in the case in question, they are typical situations which need to be considered in the assessment of the form that the decision on the request for the issue of an interim measure will take.

3. The tribunal concluded that decisions on a request for the issue of an interim measure (in general) should primarily be in the form of an order to prevent the possible anticipation of a decision in the case per se and the related consequences. Certain exceptions could be considered in cases where a request for the issue of an interim measure is upheld and where, with consideration for the place in which the implementation of the interim measure can be anticipated an order would probably be an inadequate form. If a request for the issue of an interim measure is refused for the reasons specified above, in the tribunal's opinion it is not possible to consider an arbitral award. Such a decision may only be issued in the form of an order. In cases where a request for the issue of an interim measure is refused, as in this decision, the use of an arbitral award would be entirely inappropriate and would only raise the probability that such a decision will be confused with a decision in the case per se, or may only increase the impression that a decision in the case per se has been anticipated. Naturally, this is inadmissible. Thus, in the tribunal's opinion, if a request for the issue of an interim measure is refused, it is de facto possible only to use an order, despite the wording of Article 23(1) of the Rules. Therefore the order was chosen as the form in which to convey this decision.'