The subject for consideration at this Ninth Colloquium, conservatory and provisional measures in international arbitration, has an enduring attraction and interest for two reasons: it has a substantial practical importance to the efficacy of international arbitration as a procedure for the settlement of commercial controversies, and at the same time the subject arouses a theoretical interest because it marks one of the important intersections between arbitration and national judicial systems. Whatever one's views may be as to the degree to which international arbitration ought to be free of the constraints imposed by juridical parochialism, it remains the case that the ultimate sanctions for the decisions taken by arbitral tribunals lie in the hands of the judges of national courts wielding coercive power that arbitrators do not now, and likely never will, possess.

The provisional remedies, to employ the usual American term, that will be dealt with in this paper are two: the preliminary injunction and attachment.¹ An injunction is a judicial order addressed to a party over whom the court has jurisdiction that commands, or prohibits, the performance of an act, the adjective "preliminary" denoting that such a remedy is given in advance of a determination of the merits of the controversy. An attachment, by contrast, is a judicial order normally addressed to a third party, almost invariably a stranger to the controversy, requiring that party to turn over property of the defendant to an official, who is to hold the property subject to further order of the court. In the case of an attachment, it is the court's jurisdiction or power over the obligor that permits the court to act. The common objects of an attachment are debts, such as bank balances or accounts payable, owed to the defendant.

These two remedies have practical objectives.² By requiring or prohibiting action by a defendant in advance of litigation on the merits, an injunction primarily serves to preserve the status quo pending a determination of the merits, and attachment has as its usual objective to ensure the availability of a sum against which a later judgment (or arbitral award) can be satisfied. In an age when a simple telex can move millions of dollars, the availability of such provisional relief can be decisive for the effective resolution of a controversy.³

Given the practical importance of provisional relief, one might suppose that vaunted "Anglo-Saxon pragmatism" in the hands of American judges would early have evolved and consistently applied a jurisprudence adequate to the task. The development has been more uneven. American law on the subject reveals complications and inconsistencies, reflecting, at least in part, the structure and history of the American judicial system and its ambivalent relation to arbitration and perhaps suggesting, as well, what an observer might be tempted to identify as a measure of ideological confusion. Yet the working out by American courts of the problems associated with the application of provisional remedies in arbitrable controversies might well persuade that same observer that, in the main, a reasonably satisfactory balance has been struck. It is the purpose of this paper to examine these points briefly.