30695829

Provisional measures in international commerical arbitration.
Yesilirmak, Ali
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UNIVERSITY OF LONDON
PROVISIONAL MEASURES
IN
INTERNATIONAL COMMERCIAL ARBITRATION
A DISSERTATION SUBMITTED TO
QUEEN MARY COLLEGE
UNIVERSITY OF LONDON
FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
BY
ALI YESILIRMAK
LLM, LLB
LONDON
2003
LONDM.
ABSTRACT
Interim protection of rights (through
provisional, including protective,
measures) is as important as the final protection of those rights.
This thesis examines
several problems and uncertainties surrounding
provisional measures in international commercial arbitration. Those
problems and uncertainties influence the effectiveness of arbitration;
thus, they constitute a threat to the future
of arbitration. The thesis aims
to identify, analyse, and
offer solutions to those problems and
uncertainties.
The thesis initially examines the
roots and evolution of the concepts of
arbitral powers to grant provisional measures and court assistance to
arbitration. This examination highlights the roots of the problems and
uncertainties and demonstrates how the approach towards provisional
measures shifted, in due course of time, from judicial authorities'
exclusive power to arbitrators' power to grant those measures and how
the courts' role regarding interim protection has evolved into assistance.
It further deals with the forum to seek provisional measures mainly to
demonstrate that today an arbitrator or another party-determined
authority is and should be the natural judge regarding interim protection
of rights and that the courts' assistance should be restricted to ensure
the effectiveness of arbitration.
It, in addition, investigates complementary mechanisms to arbitration for
providing interim protection in order to show that such mechanisms
enhance the effectiveness of arbitration for a period prior to the
appointment of an arbitrator.
The thesis also endeavours to establish the standards of procedure and
principles in regard of arbitral provisional measures, for instance, form,
requirements and types of arbitral provisional measures. The
establishment of these standards and principles makes arbitration a
more consistent and predictable dispute resolution mechanism. It thus
boosts the effectiveness of arbitration.
It finally discusses the enforcement of arbitral provisional measures to
show that some of these measures are effective without any coercion
and that some others, however, necessitate the use of coercive powers,
which are lent by judicial authorities.
2
ACKNOWLEDGMENTS
The author is grateful to the Schmitthoff Foundation for the grant of Mrs
Ilse Schmitthoff Scholarship that enabled him to initiate his doctoral
studies.
He further wishes to express his gratitude to all those whose support

and cooperation contributed greatly to this thesis, in particular the
American Arbitration Association and the International Court of
Arbitration of the International Chamber of Commerce for granting
permission to research through arbitral decisions in their databases and
to evaluate in this thesis the outcome of such research. The author is
also thankful to the staff working in those institutions for their patience
and invaluable assistance, particularly to William K Slate II, Michael
Hoellering (former General Counsel), Luis M Fernandez, Laura Ferris
Brown, and Steven Simpson of the AAA, and Dr Robert Briner, Dr
Horacio Grigera Naon (former Secretary General), Dominique Hascher
(former General Counsel), Dr Anne Marie Whitesell, Fernando Mantilla
Serrano (former Counsel), Slyvie Picard Renue of the ICC.
Special thanks are due to Professor Alan S Rau for the introduction of
the subject of this thesis to the author and to Professors Hans Baade,
Carl Baudenbacher, Roy M Mersky, Michael S Sturley, Russell J
Weintraub and Mr Jonathan Pratter of the University of Texas, School
of Law, Professors Hasan Nerad and Hakan Pekcanitez of Dokuz Eylül
University, Professor John Adams of the Queen Mary College, Centre
for Commercial Law Studies, Professor Ian Fletcher of the University
College of London, Larry Shore of Herbert Smith for their kind
assistance and support throughout the author's post-graduate studies.
Thanks are also due to the staff, particularly Sue Sullivan and Sandra
Baird at the Centre for Commercial Law Studies, Queen Mary College
for their kind assistance.
The author wishes to express his deepest indebtedness to his

supervisors Professor Julian DM Lew and Dr Loukas Mistelis for their
guidance, support, encouragement and friendship.
Finally, the author is thankful to his wife Arzu Aksap for her everlasting
support and patience.
3
TABLES
TABLE OF CONTENTS
Table of Abbreviations 8
Table of Cases ........................................................................
14
..............................................................................
Introduction 25
.................................................................................
CHAPTER I Evolution of Provisional Measures in International
Commercial Arbitration 51
.............................................
1 Arbitration Rules 56
1.1 Power Organ ...................................................................
Head
of or A Trade Institution
of 58
............................
1.1.1 1915 Plan 59
1.1.2 .................................................................. .
1922 Plan 60
.................................................................. .
1.1.3 ICC Arbitration Rules 1931 61
1.2 ..........................................
Recognition of Arbitrators' Power and of Concurrent Jurisdiction 63
1.2.1 ICC Arbitration Rules 1923,1927,1931, ..... 64
and 1939 ..............
1.2.2 Further Developments in the 1940s and Onwards 67
.............. .
1.2.2.1 AAA Commercial Arbitration Rules (1944 to 1997) 69
............
1.2.2.2 Copenhagen Rules 70
......................................................
1.2.2.3 ICC Arbitration Rules (1955 to 1988) 70
...............................
1.2.2.4 UNECE Arbitration Rules 1966 72
.......................................
1.2.2.5 UNECAFE Arbitration Rules 1966 73
...................................
2 International and National Legislations and Court Decisions 73
...........
2.1 1920-30s: Breaking of Judicial Mistrust Towards Arbitration -
Emergence of the Concepts of Court Assistance (Decrease in Rivalry
Towards Arbitration) and of Arbitral Power to Grant Provisional
Measures 76
...........................................................................
2.2.1950-60s: Even Less Rivalry but Residue of Mistrust 78
....................
2.3 1980s: The Tide Began to Turn - Trust to Integrity of Arbitrators and
Arbitration 82
............................................................................
Conclusion 84
.....................................................................................
CHAPTER II Forum to Seek Provisional Measures 87
...........................
1 General Jurisdiction of Arbitrators to Grant Provisional Measures 89
....... ...
1.1 Reasons In Support of Arbitral Jurisdiction 90
................................ ..
1.2 Sources of Arbitral Power 95
...................................................... ..
1 2.1 Parties' Agreement and Lex Arbitri 96
. ................................ ..
1 2.2 Inherent, Implied or Other Powers 98
. .................................
1.3 Amendment and Exclusion of the Power 100
.................................
1.4 Mandatory Rules of Applicable Law 101
.......................................
2 Exclusive Arbitral Powers to Grant Provisional Measures 103
............
3 Exclusive Judicial Powers to Grant Provisional Measures ............ 106
4 Concurrent Powers of Judicial Authorities and of Arbitrators 109
......... .
4.1 Reasons In Support of Concurrent Jurisdiction .......................... .
113
4
4.2 Jurisdiction on the Merits and Compatibility of Request for Judicial
Provisional Measure with Agreement to Arbitrate 121
4.3 Court Assistance to Foreign Arbitration ............................ .127
.....................................
4.4 Relationship Between Arbitral Jurisdiction and Courts' Jurisdiction 131
4.4.1 .
Freedom of Choice Approach 135
4.4.2 .......................................
Restricted-Access Approach: Principles Complementarity of and
Subsidiarity 138
4.4.2.1 .................................................................. .
Approach of National Laws 139
4.4.2.2 Approach Arbitration Rules ................................. 141
of
...........................
4.4.2.2.1 The Principle of Priority 142
.......................................
4.4.2.2.2 Appropriate Circumstances 143
4.4.2.2.2.1 Urgency ................................... 145
...............................................
4.4.2.2.2.2 Limits of the Tribunals' Power 147
...................
4.4.2.2.2.3 Paralysed Tribunal 147
..................................
4.4.3 Damages as Compensation for Judicial Provisional Measures
Incompatible with Arbitration Agreement
or Found to be Unjustified ................................................ 148
4.4.3.1 Damages Arising From Judicial Provisional Measure s
Incompatible with Arbitration Agreement 150
............... .
4.4.3.2 Damages Arising From Judicial Provisional Measure s
Compatible With Arbitration Agreement 152
4.4.4 Exclusion Agreements .................. 153
.................................................
4.5 Conflict of Jurisdictions 157
Conclusion .......................................................... 161
.................................................................................
CHAPTER III Emergency Arbitral Provisional Measures: Complementary
Mechanisms 166
.............................................................
1 Emergency Provisional Measures Available from Head or Organ of
Institution 173
............................................................................
2 Emergency Arbitral Provisional Measure Procedures 176
.................. .
2.1 Terminology 178
........................................................................
2.2 Integration with Arbitration Rules 179
.............................................
2.3 Jurisdictional Relationship with Arbitral and Judicial Proceedings 181
...
2.3.1 Relationship to Judicial or Other Arbitral Proceedings 181
......
2.3.1.1 Relationship with Judicial Proceedings 181
........................
2.3.1.2 Relationship with Other Arbitral Proceedings 184
.................
2.3.2 Relationship with Arbitral Proceedings Initiated under Arbitration
Rules of the same Arbitration Institution 185
..................................
2.4 Request for Measure and Answer 186
Request
..........................................
2.4 186
.1 ................................................................... .
2.4.2 Answer 189
..................................................................
2.5 Appointment and Challenge of Emergency Arbitrator 189
.................. .
2.6 Proceedings 193
....................................................................... .
2.7 Requirements to Grant Emergency Measures 195
........................... .
2.8 Form of Emergency Arbitrator's Decision 197
...................................
2.9 Modification or Revocation of Decision 199
....................................
2.10 Types of Emergency Measures 199
.............................................. .
2.11 Effect of Decision 201
................................................................ .
2.12 Appeal 201
..............................................................................
2.13 Compliance with Decision and Consequences of Non-compliance .
201
..
5
2.14 Confidentiality 205
........................................................................
2.15 Liability 205
................................................................................ .
2.16 Costs of Emergency Measure Proceedings 207
2.17 Ex Parte Requests for Emergency Measures .............................. .
208
3 Complementary Mechanisms: ........................... .
Can They be Useful/Effective Anyway? 209
4 ....................................
Alternative Solutions to Complementary Mechanisms .213
Conclusion ...............
213
.................................................................................
CHAPTER IV Arbitral Provisional Measures 218
................................... .
1 Initiation of Proceedings for Arbitral Provisional Measures 225
1.1 Who Initiates the Proceedings: A Party or the Tribunal ............
225
1.2 What Should a Request Contain? ............... ..
226
.......................................... .
2 Priority of Proceedings on Request for Provisional Measures 227
3 Requirements to Grant Measure ...... 229
a ..........................................
3.1 The Positive Requirements 234
................................................... .
3.1.1 Prima Facie Establishment of Jurisdiction 235
...................... .
3.1.2 Prima Facie Establishment of Case 236
.............................. .
3.1.3 Urgency 239
.................................................................. .
3.1.4 Imminent Danger, Serious or Substantial Prejudice 240
3.1.5 Proportionality .......... .242
.......................................................... .
3.2 The Negative Requirements 243
................................................. ..
3.2.1 If an examination of the merits of the case is required, the
tribunal may refrain from granting the measure requested 243
. ..
3.2.2 No Grant of Final Relief 245
.............................................
3.2.3 The tribunal may not grant a provisional measure if the
applicant does not have "clean hands" .......................... ..
246
3.2.4 The tribunal may not grant a measure where such measure is
not capable of being carried out ................................... 247
..
3.2.5 When the measure requested is not capable of preventing the
alleged harm ............................................................ 248
3.2.6 Request Must not be Moot 248
.......................................... ..
3.3 Security for Damages 248
Undertaking
......................................................... 251
3.4 An
.................................................................. ..
4 Form of a Measure 252
............................................................. ..
4.1 Award or Order? 254
................................................................. . 257
4.2 Decision Form
on the .......................................................... ..
4.3 Provisional Measures in Case of Extreme Urgency After the
Appointment of Arbitrators 260
................................................... 262
5 Duration of Provisional Measure
............................................ ..
6 Revision Reconsideration Modification or Revocation 263
................ ..
7 Types of a Measure 267
............................................................ ..
7.1 Measures Concerning Preservation of Evidence 271
....................... ..
7.2 Injunctions 271
........................................................................ 277
7.3 Security for Payment
........................................................... ..
7.4 Security for Costs 279
............................................................... ..
7.5 Provisional Payment 282
........................................................... ..
8 Ex Parte Measures 284
............................................................. ..
8.1 Right to be Heard As an Objection to Arbitral Power
to Grant Ex Parte Provisional Measures 287
....................................
6
8.2 Observance of the Principle of Impartiality As an Objection
to Arbitral Power to Grant Ex Parte Provisional Measures 290
8.3 Certain Other Considerations on Ex Parte Arbitral Measures .............
292
9 Costs Regarding Provisional Measure Proceedings .........
293
10 Damages As Compensation for Arbitral Provisional Measures ....................
Found to be Unjustified or Disobeyed 296
Conclusion .......................................
................................................................................. 297
CHAPTER V Enforcement of Arbitral Provisional Measures 303

............
1 Sanctions for Non-Compliance 309
1.1 ............................................. ...
Adverse Inference 311
............................................................. ...
1.2 Damages and Costs 312
.......................................................... ...
2 Varying Need for Enforceability 313
3 Enforcement of Arbitral Provisional Measures............................................ ...
316
3.1 Enforcement at the Seat of Arbitration ......................... ...
317
3.1.1 ................................... .
First Approach: Direct Enforcement of Arbitral Provisional
Measure as if It Were a Decision of a Court 318
3.1.2 Second Approach: Executory Assistance from National ................... ..
Judicial Authorities 319
...................................................
3.1.3 Third Approach: Transposition of Arbitral Order Into Court
Order 327
.................................................................... .
3.1.4 Fourth Approach: Enforcing Separate Court Order Based on
Arbitral Provisional Measure 328
...................................... .
3.2 Enforcement Abroad 330
.......................................................... ...
3.2.1 Enforcement Through National Laws 331
........................... ...
3.2.2 Enforcement Through Treaties 331
................................... .
3.3 UNCITRAL's Endeavours 339
Conclusion .................................................... .. 344
.................................................................................
Conclusion 349
..................................................................................
Annex 364
..........................................................................................
Bibliography 377
..................................................................................
7
TABLE OF ABBREVIATIONS
Institutions and Organisations
AAA American Arbitration Association

AFMA American Film Marketing Association
AIA Italian Arbitration Association
AR Arbitration Rules
ASA Swiss Arbitration Association
CIA Chartered Institute of Arbitrators
CAMCA Commercial Arbitration and Mediation Centre for the
Americas
CANE the Court of Arbitration of Northern Europe
CEPANI Belgian Centre for Arbitration and Mediation
CCI Chamber of Commerce and Industry of the Russian
Federation
CCIG Chamber of Commerce and Industry of Geneva
CIETAC China International Economic and Trade Arbitration
Commission
CMEA Council for Mutual Economic Assistance (Eastern Europe)
(COMECON)
CPR Center for Public Resources
DIS Deutsche Institution für Schiedsgerichtbarkeit
EAA English Arbitration Act
ECA European Court of Arbitration
ECAFE United Nations Economic Commission for Asia and the
Far East
EDF European Development Fund
ERR Emergency Relief Rules
EU European Union
FAA French Arbitration Association
FOSFA Federation of Oils, Seeds and Fats Associations
GAFTA Grain and Feed Trade Association
GCC Geneva Chamber of Commerce
HKIAC Hong Kong International Arbitration Centre
IACAC Inter-American Commercial Arbitration Commission
IBA International Bar Association
ICC International Chamber of Commerce
ICCA International Council for Commercial Arbitration
ICDR International Center for Dispute Resolution
ICSID International Centre for the Settlement of Investment
Disputes
JCAA Japan Commercial Arbitration Association
LCIA London Court of International Arbitration
8
LMAA London Maritime Arbitration Association
LME London Metal Exchange
MERCOSUR Common Market of the Southern Cone
MICA Multilateral Investment Guarantee Agency
NAI Netherlands Arbitration Institute
OREMP Optional Rules for Emergency Measures of Protection
PARP Pre-Arbitral Referee Procedure
PARR Pre-Arbitral Referee Rules
PCA Permanent Court of Arbitration (The Hague)
SAP Summary Arbitration Proceedings
SCC Stockholm Chamber of Commerce Arbitration Institute
SIAC Singapore International Arbitration Centre
UNCC United Nations Compensation Commission
UNCITRAL United Nations Commission for International Trade Law
UNECE United Nations Economic Commission for Europe
UNECAFE United Nations Economic Commission for Asia and the
Far East
UNIDROIT International Institute for the Unification of Private Law
WIPO World Intellectual Property Organisation
ZCC Zurich Chamber of Commerce
General Abbreviations
AA Arbitration Act
AC Law Reports, House of Lords (Appeal
Cases)
AO Arbitration Ordinance
AR Arbitration Rules
Arb J Arbitration Journal
ADR Alternative Dispute Resolution
ADRLJ Arbitration and Dispute Resolution Law
Journal
All ER All England Law Reports
ALR Australian Law Reports
Am J Comp L American Journal of Comparative Law
Am J Int'l L American Journal of International Law
Am Rev Int'l Arb American Review of International Arbitration
Arb Int Arbitration International
ASA Bulletin Swiss Arbitration Association Bulletin
BATIDER Banka ve Ticaret Hukuku Araýtirma
Enstitüsü Dergisi
Boston U Intl LJ Boston University International Law Journal
BLR Building Law Reports
BYBIL British Yearbook of International Law
CA Court of Appeal of England and Wales
9
Case W Res J Int'l L Case Western Reserve Journal of
International Law
CCP Code of Civil Procedure
ChD Chancery Division
CLR Common Wealth Law Reports
Clunet Journal de droit international
Co Company
Colum J Transnat'l L Columbia Journal of Transnational Law
Comm Commercial
Con LR Construction Law Reports
Copenhagen Rules International Law Association Arbitration
Rules 1950
Corp Corporation
CPR Civil Procedure Rules
Croat Arbit Yearb Croatian Arbitration Yearbook
DAC Departmental Advisory Committee
Doc Document
Dis Res J Dispute Resolution Journal
EAA 1889 English Arbitration Act 1889
EAA 1934 English Arbitration Act 1934
English AA 1996 English Arbitration Act 1996
ECHR European Convention on Human Rights
ECJ Court of Justice of the European
Communities
ECR Report of Cases before the Court of Justice
of the European Communities
EDNY Eastern District of New York
EFTA European Free Trade Area
EHRR European Human Rights Reports
EJCL Electronic Journal of Comparative Law
ER English Reports
EU European Union
European Convention European Convention on International
Commercial Arbitration 1961
European Ct HR European Court of Human Rights
F 2d The Federal Reporter Second Series
F 3d The Federal Reporter Third Series
Fordham Int'l LJ Fordham International Law Journal
F Supp Federal Supplement
Geneva Convention the Geneva Convention on the Execution of
Foreign Arbitral Awards 1927
Geneva Protocol the Geneva Protocol on Arbitration Clauses
1923
Geo Wash J Int'l L& Eco George Washington University Journal of
International Law and Economics
Harv Int'l LJ Harvard International Law Journal
10
Hastings Int'l & Comp L Rev Hastings International and Comparative Law
Review
HKHC Hong Kong High Court
HKLJ Hong Kong Law Journal
HL House of Lords
IBA Rules IBA Rules on the Taking of Evidence in
International Commercial Arbitration 1999
ICC Int'l Ct Arb Bull International Chamber of Commerce
International Court of Arbitration Bulletin
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
ICSID Centre International Centre for the Settlement of
Investment Disputes
ICSID Convention Washington Convention on the Settlement of
Investment Disputes between States and
Nationals of other States 1965
ICSID Rev-FILJ ICSID Review - Foreign Investment Law
Journal
IECL International Encvclopedia of Comparative
Law
Ind J Global Legal Stud Indiana Journal of Global Legal Studies
Int ALR International Arbitration law Review
Inter-American Convention Inter-American Convention on Arbitration of
1975
Int'l Bus Law International Business Lawyer
Int'l Fin L Rev International Financial Law Review
Int'l Law International Lawyer
ILA Rep International Law Association Report
ILM International legal Materials
ILR International Law Reports
!ran the Islamic Republic of Iran
Iran-US CTR Iran-United States Claims Tribunal Reports
JBL Journal of Business Law
J Int'l Arb Journal of International Arbitration
J Law Soc Scotland Journal of Law Society of Scotland
Juris-Classeur Pro Civ Juris-Classeur Procedure Civile
J Mar L& Com Journal of Maritime Law and Commerce
J World Inv Journal of World Investment
KB King's Bench
Law & Policy in Int'l Bus Law & Policy in International Business
Lloyd's Rep Lloyd's law Reports
LMCLQ Lloyd's Maritime and Commercial Law
Quarterly
LNTS League of Nations Treaty Series
Louisiana L Rev Louisiana Law Review
Mealey's IAR Mealey's International Arbitration Reports
11
Minn L Rev Minnesota Law Review
MLR Model Law Review
MR Master of Rolls
N. D. Cal. United States District Court for the Northern
District of California
NE North Eastern Reporter
New LJ New Law Journal
New York Convention New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards
1958
NSWLR New South Wales Law Reports
NW J Int'l L& Bus Northwestern Journal of International Law
and Business
NYAD New York Appellate Division
NYLJ New York Law Journal
NY L Sch I Int'l & Comp L New York Law School Journal of
International and Comparative Law
NYULQ Rev New York University Law Quarterly Review
OJ Official Journal of the European
Communities
PC Privy Council
PCIJ Permanent Court of International Justice
Proposed Plan Proposed Plan For Conciliation and
Arbitration Between Traders of Different
Countries
QBD Queen's Bench Division
RabelsZ Rabels Zeitschrift für ausländisches und
internationals Privatrecht
RCADI Recueil des Cours de I'Academie de Droit
International de la Haye / Collected Courses
of the Hague Academy of International Law
RDAI/I BLJ Revue de droit des affairs internationals /
International Business Law Journal
Register of Texts Register of Texts of Conventions and Other
Instruments concerning International Trade
Law
Rev Arb Revue de ('arbitrage
S Ct Supreme Court of the United States
SDNY South District of New York
SLR Singapore Law Reports
SPIL Swiss Private International Law
Register of Texts Register of Texts of Conventions and Other
Instruments concerning International Trade
Law
TAM Recueil des decisions des tribunaux
arbitraux mixtes
12
Texas Int'l LJ Texas International Law Journal
Tulane L Rev Tulane Law Review
U Cin L Rev University of Cincinnati Law Review
UCLA Law Rev UCLA Law Review
U III L Rev University of Illinois Law Review
U Miami Inter-Am L Rev University of Miami Inter-American Law
Review
U Miami YB Int'l L University of Miami Yearbook of International
Law
U Rich LR University of Richmond Law Review
UN United Nations
UNCITRAL Notes UNCITRAL Notes Organizing Arbitral
Proceedings
UNTS United Nations Treaty Series
US United States of America
USFL Rev University of San Francisco Law Review
Vanderbilt L Rev Vanderbilt Law Review
WAMR World Arbitration and Mediation Report
WL Westlaw
WLR The Weekly Law Reports
WTAM World Trade and Arbitration Materials
Yale LJ Yale Law Journal
YCA Yearbook of Commercial Arbitration
13
TABLE OF CASES
ARBITRAL CASES
AMERICAN ARBITRATION ASSOCIATION

Order of 1999 in AAA Case No. 52 153 00116 87 (unpublished).
Award of 2000 in AAA Case No. 50 T 114 00321 99 (unpublished).
Order of 1999 in AAA Case No. 50-T-133-00112-99 (unpublished).
Order of 1999 in AAA Case No. 507181-0014299 (unpublished).
Order No. 5 of 1998 in AAA Case No. 13T153-00870197 (unpublished).
Partial Award of 1999 and Final Award of 2000 in AAA Case No.
81.153.002696 (unpublished).
GERMAN-BELGIAN MIXED ARBITRATION TRIBUNAL

MAT Cie d'Electricite de Sofia et de Bulgarie (Belgium v. Bulgaria),
(1922) 2 TAM 924.
GERMAN-POLISH MIXED ARBITRATION TRIBUNAL

Ellermann v. Etat polonais (1924) 5 TAM 457.
INTERNATIONAL CHAMBER OF COMMERCE

ICC Award 2444 of 1976, extracts published in (1977) Clunet 932, and
Jarvin / Derains, 285.
ICC Award 3540 of 1980, extracts published in (1981) Clunet 914; and
VII YCA 1241982).
ICC Partial Award 3896 of 1982, extracts published in (1983) Clunet
914; X YCA 47 (1985); an d Jarvin / Derains, 161.
ICC Award 4126 of 1984, extracts published in (1984) Clunet 934.
ICC Award 4156 of 1983, extracts published in (1984) Clunet 937, and
Jarvin / Derains, 515.
14
ICC Final Award 5804 of 1989, extracts published in 4(2) ICC Int'l Ct
Arb Bull 76 (1993).
ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC
Int'l Ct Arb Bull 67 (1997).
ICC Second Interim Award 5835 of 1992 (unpublished).
ICC Final Award 5650 of 1989, extracts published in 16 YCA 85 (1991);
and Arnaldez / Derains / Hascher, 34.
Arb Bull 76 (1993).
ICC Second Interim Award 5835 of 1992 (unpublished).
ICC Final Award 5887 of 1991 (unpublished).
ICC Second Partial Award 5808 of 1994 (unpublished).
ICC Interim Award 5896 of 1991, extracts published in 11(1) ICC Intl Ct
Arb Bull 37 (2000).
ICC Interim Award 6023 of 1989 (unpublished).
ICC Partial Award 6566 of 1993, extracts published in 11(1) ICC Int'l Ct
Arb Bull 48 (2000).
ICC Interim Award 6709 of 1991, extracts published in (1992) Clunet
998; 5(1) ICC Int'l Ct Arb Bull 69 (1994); and Arnaldez / Derains /
Hascher, 435.
ICC Final Award No. 7047 of 1994, extracts published in 8 ICC Intl Ct
Arb Bull 61 (1997).
ICC Final Award 7210 of 1994, extracts published in 11(1) ICC Intl Ct
Arb Bull 49 (2000).
ICC Final Award 7489 of 1993, extracts published in (1993) Clunet
1078; 8 ICC Int'l Ct Arb Bull 68 (1997).
Arb Bull 52 (2000).
ICC Second Interim Award 7544 of 1996, extracts published in 11(1)
ICC Int'l Ct Arb Bull 56 (2000).
ICC Interim Award 7692 of 1995, extracts published in 11(1) ICC Ct Int'l
Arb 62 (2000).
15
Arb Bull 60 (2000).
Arb Bull 81 (2000)
Arb Bull 64 (2000).
ICC Partial Award 7972 of 1997 (unpublished).
ICC Second Partial Award 8113 of 1995, extracts published in 11(1)
ICC Intl Ct Arb Bull 65 (2000).
ICC Interim Awards 8670 of 1995 and 1996 (unpublished).
ICC Interim Award 8879 of 1998, extracts published in 11(1) ICC Int'l Ct
Arb Bull 84 (2000).
ICC Interim Award 8786, extracts published in 11 (1) ICC Int'l Ct Arb
Bull 81 (2000).
Arb Bull 91 (2000).
Arb Bull 98 (2000).
Arb Bull 103 (2000).
ICC Interim Conservatory Award 10021 of 1999 (unpublished).
ICC Interlocutory Award 10596 of 2000 (unpublished).
16
INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT
DISPUTES
AGIP v. Congo, cited in Award, 30 November 1979,1 ICSID Rep 311.
MINE v. Guinea, Decision of Tribunal, 4 December 1985, cited in 4
ICSID Rep 41.
Amco Asia Corp. v. Republic of Indonesia, ICSID Case No.ARB/81/1,
Award of 20.11.1984,1 ICSID Rep 413 (1993).
Holiday Inns v. Morocco (see Lalive, 133).
MINE v. Guinea (see 4 ICSID Rep 41).
Vacuum Salt v. Ghana, Decision 3 of the Tribunal, 14 June 1993,4
ICSID Rep 328.
Maffezini v. The Kingdom of Spain (see Procedural Order No. 2 (28
October 1999), extracts published in XXVII YCA 17 (2002)).
Atlantic Triton v. Guinea (see Friedland, Provisional Measures, 344).
IRAN-US CLAIMS TRIBUNAL

Atlantic Richfield Co. v. Iran, Case No. 396, Interim Award No. ITM 50-
396-1 (8 May 1985), reprinted in 8 Iran-US CTR 179.
Avco Corporation v. Iran Aircraft Industries, Iran Helicopter Support and
Renewal Company, National Iranian Oil Company and Iran, Case No.
261, Order of 27 January 1984, cited in Case 261, Partial Award No.
377-261-3 (18 July 1988), reprinted in 19 Iran-US CTR 200.
Behring International, Inc. v. Iranian Air Force, Case No. 382, Interim
Award No. ITM 46-382-3 (22 February 1985), reprinted in 8 Iran-US
CTR 44.
Boeing Company v. Iran, Case No. 222, Interim Award No. ITM 38-222-
1 (25 May 1984), reprinted in 6 Iran-US CTR 43.
Bendone-Derossi International v. Iran, Case No. 375, Interim Award No.
ITM 40-375-1 (7 June 1984), reprinted in 6 Iran-US CTR 130,131-132;
Iran v. United States, Decision No. DEC 116-A15(IV) & A24-FT (18 May
1993), extracts published in Pellonpää / Caron, 462.
Component Builders, Inc. v. Iran, Case No. 395, Order (19 February
1985) (unpublished) quoted in Interim and Interlocutory Award No.
ITM/ITL 51-395-3, reprinted in 8 Iran-US CTR 216.
Concurring Opinion of Charles N. Brower to Component Builders, Inc.
et al. v. Iran, Case No. 395, Order (10 January 1985), reprinted in 8
Iran-US CTR 3 ("Concurrent Opinion of Charles Brower").
17
Concurring Opinion of Howard Holtzmann to Bendone-Derossi
International v. Iran, reprinted in 6 Iran-US CTR 133.
Concurring Opinion of Richard M. Mosk of 21 October 1983 to Ford
Aerospace v. The Air Force of Iran, Case No. 159, Interim Award No.
ITM 28-159-3 (20 October 1983), reprinted in 3 Iran-US CTR 384.
E-Systems, Inc. v. Iran, Bank Melli Iran, Case No. 388, Interim Award
No. ITM 13-388-FT (4 February 1983), reprinted in 2 Iran-US CTR 51.
Ford Aerospace v. The Air Force of Iran, Case No. 159, Interim Award
No. ITM 28-159-3 (20 October 1983), reprinted in 3 Iran US CTR 384.
Ford Aerospace v. The Air Force of Iran, Case No. 159, Interim Award
No. ITM 39-159-3 (4 June 1984), reprinted in 6 Iran-US CTR 104.
Fluor Corporation v. Iran, Case No. 333, Interim Award No. ITM 62-333-
1 (6 August 1986), reprinted in 11 Iran-US CTR 292.
Iran v. the United States of America, Cases Nos. A-4 and A-15, Order
(18 January 1984), reprinted in 5 Iran-US CTR 112.
Iran v. United States, Case A/15, Dec. No. 35-A/15(II)-FT (5 March
1985), reprinted in 8 Iran-US CTR 63.
Iran v. The United States of America, Case A-15, Dec. No. Dec 52-
A/15-FT (24 November 1986), reprinted in 13 Iran-US CTR 173.
Iran v. the United States of America, Case No. B1 (Claim 4), Partial
Award No. 382-B1-FT (31 Aug. 1988), reprinted in 19 Iran-US CTR 273.
Iran v. The United States of America, Decision No. Dec. 116-A 15(IV) &
A24-FT (18 May 1993), extracts published in Pellonpää / Caron, 462.
Panacaviar, S.A. v. Iran, Case No. 498, Interim Award No. ITM 64-498-
1 (4 December 1986), reprinted in 13 Iran-US CTR 193.
RCA Global Communications v. Iran, Case No. 160, Interin-, Award No.
ITM 29-160-1 (30 October 1983), reprinted in 4 Iran-US CTR 5.
Rockwell International Systems, Inc. v. Iran, Case No. 430, Interim
Award No. ITM 20-430-1 (6 June 1983), reprinted in 2 Iran-US CTR
369.
Shipside Packing Co. v. Iran, Interim Award No. ITM 27-11875-1 (6
September 1983), reprinted in 3 Iran-US CTR 331.
Teledyne Industries Incorporated v. Iran, Case No. 10812, Order (8
September 1983), reprinted in 3 Iran-US CTR 336.
U.S. (Shipside Packing) v. Iran, Case No. 11875, Interim Award No.
ITM 27-11875-1 (6 September 1983), reprinted in 3 Iran-US CTR 331.
United Technologies Int'l, Inc. v. Iran, Case No. 114, Decision No. Dec
53-114-3 (10 December 1986), reprinted in 13 Iran-US CTR 254.
18
NETHERLANDS ARBITRATION INSTITUTION
NAI Interim Award 1694 of 1996, extracts published in XXIII YCA 97
(1998).
NAI Award in Summary Arbitral Proceedings in Case No. 2212 (28 July
1999), extracts published in XXVI YCA 198 (2001).
PERMANENT COURT OF ARBITRATION

Lance Paul Larsen v. Kingdom of Hawaii, available at <www.pca-
cpa.org/PDF/LHKAward.pdf>
SOCIETY OF MARITIME ARBITRATORS

Southern Navigation Ltd v. Petroleos Mexicanos, Interim Award No.
2015 of 1985, extracts published in XI YCA 209,210 (1989).
19
COURT CASES
AUSTRALIA
Resort Condominiums International Inc. v. (1) Ray Bolwell
and (2)
Resort Condominiums (Australasia) Pty. Ltd., excerpts
published in XX
YCA 628 (1995).
CANADA
CLOUT Case No. 68 (1993) (Federal Court of Canada, Trial Division).
EUROPEAN COURT OF JUSTICE

Denilauer v. Couchet, Case No. 125/79 (1980) ECR 1553.
Hans Hermann Mietz v. Intership Yatching Sneek BV, Case C-99/96,
(1999) ECR 1-2277.
Mario Reichert and Others v. Dresdner Bank, Case C-261/90, [1992]
ECR 1-2149.
R. v. Secretary of State for Transport, ex parte: Factortame Ltd. (No. 2),
Case C-213/89, (1990) ECR 2433.
Van Uden Maritime By, Trading as Van Uden Africa Line v.
Kommanditgesellschaft in Firma Deco-Line and Another, Case C-
391/95, (1998) ECR 1-7140.
FRit'Ic
Braspetro Oil Services Company v. The Management and

Implementation Authority of the Great Man-Made River Project extracts
from the French original published in XXIVa YCA 296 (1999).
Cubic Defense Systems, Inc. v. International Chamber of Commerce,
extracts from the French original published in XXIVa YCA 287 (1999).
Guinea and Soguipeche v. Atlantic Triton, (Decision of the Court of
Cassation, 18 November 1986), extracts of the English translation from
the French original published in 26 ILM 373 (1986)
Societe Eurodif et autre v. Republique Islamique d'Iran (14 March
1981), Rev Arb 69 (1985).
Societe Nationale des Petroles du Congo v. Republique du Congo,
Arret of 29 April 2003.
20
INTERNATIONAL COURT OF JUSTICE
Military and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America), Provisional Measure Order (10 May
1984), 1984 ICJ Reports 169.
ITALY
Scherk Enterprises AG v. Societe des Grandes Marques, No. 3989, IV
YCA 286 (1979).
NEW ZEALAND
Esso/BHP v. Plowman, reprinted in 11(3) Arb Int'l 235 (1995); and
(1995) CLR 10.
PERMANENT COURT OF INTERNATIONAL JUSTICE

Case Concerning the Polish Agrarian Reform and the German Minority
(Poland v. Germany), Order of 29 July 1933, PCIJ Judgments Orders
and Advisory Opinions, Series A/B, No. 58.
Sino-Belgian Treaty case (Belgium v. China), 1927 PCIJ Reports, Ser.
A, No. 8,9 (Order of 15 February 1927).
SINGAPORE
Bocotra Construction Pte Ltd v. Attorney-General of Singapore [1995] 2
SLR 523.
SPAIN
Bahia Industrial, S.A. v. Eintacar-Eimar, S.A., XVIII YCA 616 (1993).
SWEDEN
A. I. Trade Finance Inc v. Bulgarian Foreign Trade Bank Ltd, reprinted
in 14(4) Mealey's Int Arb Rep A-1 (1999).
SWITZERLAND
Maritime International Nominees Establishment v. Government of the
Republic of Guinea (MINE v. Guinea), Decision of the Geneva Authorite
de surveillance des offices de poursuite pour dettes et faillite, 7 October
21
1986, extracts of the English translation from the French original
published in 4 ICSID Rep 45.
UNITED KINGDOM
Bank Mellat v. Helliniki Techniki, S.A. [1984] Q.B. 291.
Channel Tunnel Group Ltd and France Manche SA v. Balfour Beatty
Construction Ltd and others, [1993] AC 334; [1993] WLR 262; [1993] 1
All ER 664; [1993] 1 L'Ioyds Rep 291.
Commerce & Industry Co. of Canada and Another v. Certain
Underwriters at Lloyds of London, [2002] 2 All ER (Comm) 204.
Coppee-Lavalin N.V. v. Ken-Ren Chemicals and Fertilizers Limited,
[1995] 1 AC 38, [1994] 2 All ER 499, (1994) 2 WLR 63, [1994] 2 Lloyd's
Rep 109.
Deutsche Schachtbau-und Tiefbohr GmbH v. The R. As Al Khauman
National Oil Co. And Shell Petroleum Co. Ltd [1987] 2 All ER 769.
Hassneh Insurance v. Mew [1993] 2 Lloyd's Rep 243.
Hubbard v. Vosper [1972] 2 QB 84.
In Re Q's Estate, [1999] 1 Lloyd's Rep. 931, [1999] 1 All ER (Comm)
499.
Mantovani v. Caparelli SpA, [1980] 1 Lloyd's Rep 375.
Patel v. Patel, [2002] Q.B. 551, [1999] 1 All ER (Comm) 923, [1999] 3
WLR 322.
Petroleum Investment Company Limited v. Kantupan Holdings
Company Limited, [2002] 1 All ER (Comm.) 124
Rena K, The [1978] 1 Lloyd's Law Rep 545.
Scott v. Avery [1843-1860) All ER 5.
Thompson v. Charnock (1799) 8 Term Reports 139.
Three Valleys Water Committee v. Binnie and Partners, (1990) 52 BLR
52.
Unione Stearinerie Lanza & Wiener, [1917] KB 558.
Viking Insurance Co v. Rossdale and Others, Commerce & Industry
Insurance Co. of Canada and Another v. Certain Underwriters at Lloyds
and Others, [2002] 1 WLR 1323, [2002] 1 Lloyd's Rep 219.
22
UNITED STATES
Alvenue Shipping v. Delta Petroleum (U. S.A. ), Ltd, 876 F.Supp. 482
(S. D. N.Y. 1994).
Anaconda v. American Sugar Refining Co., 322 U.S. 42 (1944).
Atlas Chartering Services v. World Trade Group, 453 F.Supp. 861
(S. D. N.Y. 1978).
Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith Inc., 910 F.2d 1049
(2ndCir 1990).
Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822 (2d Cir. 1990).
Carolina Power and Light Co. v. Uranex, 451 F. Supp. 1044 (N. D. Cal.
1977).
Charles Construction Company v. Derderian, 586 N. E.2d 992 (Mass.
1992).
Construction Exporting Enterprises v. Nikki Maritime, Ltd, 558 F.Supp.
1372 (S. D. N.Y. 1983).
Cooper v. Ateliers de la Motobecane S.A., 442 N.S. 2d 1239 (S. D.N.Y.
1982).
Corbin v. Washington Fire & Marine Insurance Co., 278 F. Supp. 393
(D. S. C. 1968), app'd 398 F. 2d 543 (4th Cir. 1968).
Daye Nonferrous Metals Co. v. Trafigura Beheer By, 1997 WL 375680
(S. D. N.Y. 1997).
E.A. S. T., Inc. of Stamford, Conn. v. MN Alaia, 876 F.2d 1168,1174,
1989 AMC 2024,2032 (5th Cir. 1989).
Filantro SpA v. Chilewich Int'l Corp., 789 F.Supp. 1229 (S. D. N.Y. 1992).
Grupo Mexicano de Desarrollo, S.A., at el. v. Alliance Bond Fund, Inc.,
et al., 527 US 308,119 S Ct 1961.
HSBC Bank USA v. National Equity Corp, 719 NYS 2d 20 (2001).
Island Creek Coal Sales Co. v. Gainsville, 729 F2d 1046 (6th Cir. 1984).
I.T. A. D. Assocs., Inc. v. Podar Bros., 636 F.2d 75 (4th Cir. 1981).
Konkar Maritime Enter., SA v. Compagnie Belge d'Affretement, 668
F.Supp. 267 (S. D. N.Y. 1987).
McCreary Tire and Rubber Co. v. CEAT, S. p.A., 501 F.2d 1038 (3 Cir.
1974).
Metropolitan World Tanker, Corp. v. P. N. Pertambangan Minjakdangas
Bumi Nasional (P. M. Pertamina), 427 F.Supp 2 (S. D. N.Y. 1975).
Metallgesellschaft AG v. MN Capitan Constante, 790 F.2d 280 (2d Cir.
1986).
23
Ministry of Finance and Planning v. Onyx Development Corp., 1989
U. S. Dist. Lexis 11995 (S. D. N.Y. 1989).
Ortho Pharmaceutical Corp v. Amgen Inc., 882 F.2d 806 (3rd Cir 1989).
Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp.,
935 F2d 1019 (9th Cir 1991).
(1) Publicis Communication and (2) Publicis S.A. v. True North
Communications, Inc., 206 F.3d 725 (7th Cir. 2000).
Puerto Rico Maritime Shipping Auth. v. Star Lines Ltd, 454 F.Supp. 368
(S. D. N.Y. 1978).
Rochester City School District v. Rochester Teachers Association, 394
N.Y. S. 2d 179 (1977).
Rogers, Burgin, Shanine & Deschler, Inc. v. Dongsan, 598 F. Supp. 754
(S. D. N.Y. 1984).
Sauer-Getriebe KG v. White Hydraulics, Inc., 715 F.2d 348 (7th Cir.
1983), cert. denied, 464 U.S. 1070.
Southern Seas Navigation Ltd v. Petroleos Mexicanos of Mexico City,
606 F.Supp. 692 (S. D. N.Y. 1985).
Sperry International Trade, Inc. v. Government of Israel, 532 F. Supp.
901 (S. D. N.Y. 1982), aff'd. 689 F. 2d 301 (2ndCir. 1982).
Swift Industries Inc. v. Botany Ind. Inc. 466 F 2d 1125 (3d Cir. 1972).
Tampinex Oil Ltd v. Latina Trading Corp., 558 F.Supp. 1201 (S. D. N.Y.
1983).
United States v. Panhandle Eastern Corp., 681 F.Supp. 229 (D. Del.
1988).
Unitramp, Ltd. V. Mediterranean Brokerage & Agents, S.A. S., 1993 U.S.
Dist. LEXIS 13304 (E. D. La. 13 September 1993).
Warth Line, Ltd v. Merinda Marine Co., 778 F.Supp. 158 (S. D. N.Y.
1991).
Yasuda Fire & Marine Ins. Co. of Europe, Ltd. v. Continental Casualty
Co., 37 F. 3d 345 (7th Cir. 1994).
24
INTRODUCTION
In a perfect world, contracting parties perform all their obligations

throughout their contract's life. Indeed, contracting parties comply with the
terms of international commercial contracts in thousands of transactions
every day. In a few cases, however, disputes arise. Some of the disputes
are settled amicably.
In many disputes, depending on the type of contract, arbitration is

generally preferred over litigation as a dispute settlement mechanism;
some other disputes end in litigation before national courts. The
contracting parties are aware of the need to protect their rights. They
choose to arbitrate convinced that arbitration is better suited for resolution

of their future or existing disputes than litigation or alternative (out of court)
dispute resolution ("ADR") mechanisms. '
Arbitration, like litigation, takes time.2 For instance, a typical International

Chamber of Commerce ("ICC") arbitration usually takes over one and a
For advantages of arbitration over litigation, see, e. g., Martin Domke, Commercial
Arbitration (New Jersey: Prentice-Hall 1965); Pieter Sanders, Quo Vadis Arbitration? -
Sixty Years of Arbitration Practice (The Hague: Kluwer 1999), 2-9 ("Quo Vadis"). On
ADR, see, e. g., Henry Brown / Arthur Marriott, ADR Principles and Practice, 2"d ed.
(London: Sweet & Maxwell 1999); and ICC (ed. ), ADR International Applications, ICC
Publication No. 640E, (Paris: ICC Publishing 2001).
2 This is due partially to "procedural safeguards and opportunities for all parties to be
heard. " Gary B. Born, International Commercial Arbitration Commentary and
Materials, 2nded. (The Hague: Transnational Publishers / Kluwer 2001) ("International
Arbitration"). It is noteworthy that in the 'good old days, ' arbitration was conducted in
a short period of time.
25
half years. 3 Consequently, protection of parties' rights often includes
interim protection. Indeed, parties' expectations from a dispute
resolution
mechanism for interim and final protection of their rights are very high.
Such protection has to be effective The question is whether or not
arbitration meets all these expectations.
Undoubtedly, international commercial arbitration4 is very effective in

providing final protection of rights. Both arbitration agreements and
awards concerning international commercial contracts are recognised
today in nearly most states in the world thanks mainly to the United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards. 5 Indeed, arbitration has evolved over time and has
become the main mechanism for resolving international business
disputes. 6
3 W. Laurence Craig / William W. Park / Jan Paulsson, International Chamber of

Commerce Arbitration, 3rd ed. (New York: Oceana 2000), para. 108 ("ICC Arbitration
2000").
4 Unless otherwise stated, a reference to "arbitration" is hereinafter a reference to
"international commercial arbitration. "
5 Done at New York, 10 June 1958,330 UNTS 38, No. 4739 (the "New York
Convention"). Other conventions relevant for the recognition and enforcement of
foreign arbitration agreements and awards in the international plane mainly are the
Geneva Protocol on Arbitration Clauses, done at Geneva, 24 September 1923,27
LNTS 258 (1924) No. 678 (the "Geneva Protocol"); and the Geneva Convention on
the Execution of Foreign Arbitral Awards, done at Geneva, 26 September 1927,52
LNTS 302 (1929), No. 2096 (the "Geneva Convention"); the Inter-American
Convention on Arbitration, done at Panama City, 30 January 1975, reprinted in 14 ILM
336 (1975) ("Inter-American Convention").
6 See, e. g., Alan Redfern / Martin Hunter, Law and Practice of International Commercial
Arbitration, 3rd ed. (London: Sweet & Maxwell 1999), 1; and Eric Robine, "L'evolution
de I'arbitrage commercial international ces dernieres annees (1990-1995) (The
Evolution of International Commercial Arbitration Over These Past Years (1990-
1995))", (1996) RDAI/IBLJ 145. One of the illustrations of its wide usage is the
growing number of arbitration cases, on which see generally infra Chapter IV.
26
As to interim protection of rights in arbitration, meeting expectations of
business persons poses a challenge. Such challenge is related to
problems and uncertainties surrounding provisional measures in
arbitration; these difficulties mainly concern the jurisdiction of arbitrators or
another party-determined authority to grant provisional measures, and the
role of courts' in respect of interim protection of rights. Further, the
problems extend to standards of procedure and principles as regards
arbitral provisional measures and their enforceability. In order to meet the
expectations of business persons, in other words, the users of arbitration
services, these uncertainties and problems should be resolved. In fact,
UNCITRAL is currently undertaking, upon suggestions made by various
experts in a special commemorative New York Convention Day held on 10

June 1998, a study in order to propose solutions to, among other issues,
the problems and uncertainties regarding provisional measures in
arbitration. 8 The study aims "for improvement of arbitration laws, rules,

practices". 9 UNCITRAL's study will be examined and referred to, as and
where appropriate, throughout this thesis. 10
Aims of the Thesis
This thesis aims to demonstrate that arbitration should, in principle, be the

forum to grant provisional measures and that the role of courts is limited to
Judicial provisional measures are available either from "state courts" or other "judicial
authorities" in various states. These two terms are used interchangeably throughout
this thesis.
8 See, e. g., UN Doc A/53/17.
9 See UN Doc A/CN. 9/WG. II/WP. 108, para. 5.
10 This study currently deals with three main issues of interim protection of rights in
arbitration: arbitral provisional measures, judicial provisional measures and
enforcement of arbitral provisional measures. See, e. g., A/CN. 9/524, paras. 1-14. On
the initial two issues, UNCITRAL's work has not been sufficiently advanced to
comment on it. Id. However, on the issue of enforcement of arbitral provisional
measures, there has been enough progress for comment, which is done in infra
Chapter V, Part 3.3.
27
assistance to arbitration. However, there are several questions and
uncertainties related to such measures. These questions and uncertainties
weaken the effectiveness of arbitration. Thus they constitute a threat to its
future. This thesis further aims to identify, analyse, clarify, and offer
solutions to those problems and uncertainties. Solutions will be offered for

enhancing effectiveness of arbitration in regard of interim protection of
rights. Arbitration needs to be effective to reach its raison d'etre, meeting
the needs of the business world and, thus, to survive. "
Methodology
In order to achieve its objectives, the thesis examines the historical
evolution of provisional measures in arbitration. It further analyses and
compares theory, law, and practice. All major arbitration conventions,
many laws and rules, the practice of the main arbitration institutions, and of
courts of various states as well as the views of several commentators are
critically assessed.
F)Afinitinn
Although "[t]he interim protection of rights is no doubt one of those general

law common to all legal systems", 12 there is no widely
principles of
See Introduction, infra notes 72-76 and accompanying text.

12 Lawrence Collins, "Provisional and Protective Measures in International Litigation",
1992(111)RdC 9,23, reprinted in. L. Collins, Essays in International Litigation and on
the Conflict of Laws (Oxford: Clarendon Press 1994), 1-188. See also, e. g., Jerome
B. Elkind, Interim Protection: A Functional Analysis (The Hague: The Martinus Nijhoff
1981), Chapters 11and III. On interim protection under private international law, see,
e. g., Collins, id.; Catherine Kessedjian, "Preliminary Document No. 10 - Note on
Provisional and Protective Measures in Private International Law and Comparative
Law" (Hague Conference on Private International Law Enforcement of Judgments,
October 1998), available at <http: //www. hcch. net/e/workprog/jdgm. html,
ftp: //hcch. net/doc/jdgmpolO. doc> last visited at 28 October 2003; George A.
Bermann, "Provisional Relief in Transnational Litigation", 35 Colum J Tran L 553
(1997). On interim measures in public international law, see, e. g., Elkind, id.; Karin
Oellers-Frahm, "Interim Measures of Protection" in: Encyclopedia of Public
International Law (1981), v. 1,69-72, Shigeru Oda, "Provisional Measures" in:
Vaughan Lowe / Malgosia Fitzmaurice (eds. ), Fifty Years of the International Court of
28
accepted definition of the concept of interim measures. 13 In fact, no
uniformity in respect of the concept of interim protection of rights exists in
public and private international law. 14 Nor is a concrete definition of that
concept or its scope found in international commercial arbitration. 15 A
provisional measure is, broadly speaking, a remedy or a relief that is aimed
at safeguarding the rights of parties to a dispute pending its final
Justice - Essays in honour of Sir Robert Jennings (Cambridge: Grotius 1996), 541-
556; and J. G. Merrills, "Interim Measures of Protection in the Recent Jurisprudence of
the International Court of Justice", 44 ICLQ 90-146 (1995). For general justification of
interim protection of rights, see, e. g., A. A. S. Zuckerman, "Interlocutory Remedies in
Quest for Procedural Fairness", 56 MLR 325-341 (1993).
13 See, e. g. Kessedjian, para. 2, note 3; and Bermann, 556. It is stated, in this regard,
that
the notion of "conservatory measure" is one of the most obscure that there can be.
Etymologically, it is understood as a measure which tends to safeguard a right. But
when one seeks to go more thoroughly into this concept, the certainties slip away
because, in reality, the "conservatory measure" covers very disparate hypotheses.
Stephen R. Bond, "The Nature of Conservatory and Provisional Measures" in: ICC
(ed. ), Conservatory and Provisional Measures in International Arbitration, ICC
Publication No. 519 (ICC Publishing 1993), 8 ("Conservatory Measures"). Further, it is
noteworthy that most, if not all, arbitration rules do not provide for a definition of
provisional measures. See UN Doc A/CN. 9/460, para. 116. The arbitration rules
could have given such definition but they refrain from doing so. That is probably
because they intend to leave to arbitrators and courts the freedom to decide how the
term "provisional measure" (or, in some cases, interim and conservatory measures,
etc. ) should be defined.
14 See "Second Interim Report Provisional and Protective Measure in International
-
Litigation of the International Law Association's [("ILA")] Committee on International
Civil and Commercial Litigation", 67 ILA Rep 185,202, para. 3 (1996), reprinted in 62
RabelsZ 128-130 (1998) ("Second Interim Report"). The Committee also indicated a
certain principles in respect of provisional and protective measures in international
litigation (the "ILA Principles"). Id., 192-204. On these Principles, see also Peter
Nygh, "Provisional and Protective Measures in International Litigation - The Helsinki
Principles", 62 RabelsZ 115-122 (1998). Indeed,
[d]ifferent legal systems have characterized interim measures of protection in
different ways and using different classification. In addition, the scope and variety
of interim measures available differ from country to country.
UN Doc A/CN. 9/WG. II/WP. 111, para. 7. Kessedjian indicates that "legal systems
diverge to a greater or lesser extent" in the area of law regarding provisional
measures. Kessedjian, para. 2. Indeed, the diversity in respect of the types of
remedies in a legal system, in some cases, is extreme. For example, thirty types of
protective measures are reported to be available in France. Id., note 4.
15 UN Doc A/CN. 9/WG. II/WP. 108, para. 65.
29
resolution. 16 The underlying principle in respect of provisional measures is
that no party right should be damaged or affected due to the duration of
adjudication. 7 The objective of such measures is generally to facilitate the
"effectiveness of judicial [or arbitral] protection 08 by providing interim relief,
which complements the final relief.
Characteristics
It may be difficult to list all of the characteristics of provisional measures
since they contain, inter alia, "very disparate hypotheses. "19 The difficulty
also lies in the fact that the types of provisional measures vary, at least to a
certain extent, from one country to another. 20 There are, however, certain
essential characteristics of provisional measures in arbitration.
The first characteristic is that applications for a provisional measure

"presuppose the existence of a dispute" final protection of which has
16 According to the European Court of Justice (the "ECJ"), provisional measures are
"intended to preserve a factual or legal situation so as to safeguard rights " Mario
....
Reichert and Others v. Dresdner Bank, Case C-261/90, [1992] ECR 1-2149, para. 34.
See, e. g., Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935
F2d 1019,1022-23 (9th Cir 1991) (holding that "[t]emporary equitable relief in
arbitration may be essential to preserve assets or enforce performance which, if not
preserved or enforced, may render a final award meaningless. "); and "Final Report on
Intellectual Property Disputes and Arbitration" (A Report of the ICC Commission on
International Arbitration Chaired by Julian D. M. Lew) published in 9(1) ICC Intl Ct Arb
Bull 37 (1998) ("Final Report on Intellectual Property Disputes").
17 Mario Reichert and Others v. Dresdner Bank, Case C-261/90, [1992] ECR 1-2149,
para. 34. German Polish Mixed Arbitral Tribunal of 1924 stated, in this respect, that
"[b]y means of interim protection the courts seek to make up for the law's delays in
such a way that as possible the outcome of the proceedings is the same as if they
could have been completed in one day. " Id. For the French original, see Ellermann v.
Etat polonais (1924) 5 TAM 457,459. In other words, provisional measures aim to
neutralise any actual or potential imbalance between the contracting parties at the
beginning of arbitration in accordance with the terms of the contract and the applicable
law. See Bernardo M. Cremades, "Is Exclusion of Concurrent Courts' Jurisdiction
over Conservatory Measures to be Introduced through a Revision of the
Convention? ", 6(3) J Int'l Arb 105,106 (1989) ("Exclusion").
18 Advocate General Tesauro's Opinion, Case C-213/89, R. v. Secretary of State for
Transport, ex parte: Factortame Ltd. (No. 2) (1990) ECR 2433,2450, para. 18.
19 See Bond in: ICC (ed. ), Conservatory Measures, 8.
)o
.
already or will be sought from the same or a different forum. 21 In other
words, there has to be a dispute that is to be litigated or arbitrated. This is
tenable in that interim protection should only be available where final
protection is or will be sought.
The second characteristic is that a remedy should be temporary /

provisional in nature. This is self-evident. 22 A temporary protection is only
needed "for a specified limited 23
time, at most until the final protection is
granted. 24 In other words, a provisional relief should preserve a right
pending the final relief. A caveat, however, has to be borne in mind.
Provisional relief, at the end of adjudication of the merits of the case,
"should be taken into account and [as the case may be] merged in the
arbitral tribunal's final adjudication of the dispute. "25
20 See Introduction, infra note 45 and accompanying text.

21 See, e. g., Bond in: ICC (ed. ), Conservatory Measures, 18. To this end, it should be
noted that when a measure is ordered by a court prior to formation of a tribunal, the
subsequent initiation of arbitration proceedings should normally be expected.
22 The measure is subject the tribunal's final adjudication. See Section 39(3) of the
English Arbitration Act ("EAA") 1996. See also ICC Interlocutory Award 10596 of
2000 (unpublished) (holding that a decision on a provisional measure "makes no final
findings of fact or law. In other words, no findings made herein prejudice the merits of
the dispute. ").
23 See Principle 12 of the ILA Principles. Indeed, an ICC tribunal granted its interim
injunction for a specified period of time (ICC Interim Conservatory Award 10021 of
1999) (unpublished) and upon the termination of such period extended it further (ICC
Partial Award 10021 of 2000) (unpublished). In this regard, see also Bernardo M.
Cremades, "The Need for Conservatory and Preliminary Measures", 27(5) Int'l Bus
Law 226,228 (1999) ("The Need"); Craig / Park / Paulsson, ICC Arbitration 2000,460.
24 See, e. g, Section 26(2) of the Hungarian Act LXXI on Arbitration 1994.
25 UN Doc A/CN. 9/WG. II/WP. 108, paras. 66 and 100. That is to say that a provisional
measure shall in no way prejudice the final award of an arbitral tribunal on the
substance of the case under adjudication. See, e. g., Article 37(3) of the Netherlands
Arbitration Institution ("NAI") Arbitration Rules.
31
The third characteristic is that interim relief should not exceed the final
relief or the legal protection sought as the interim relief aims to

complement and, in this sense, is ancillary to the final relief. 26
The fourth characteristic is derivative of the second. Interim relief should
normally be granted where it is risky to await the final relief. 27 This is the
requirement of urgency. 28 Where the parameter is safeguarding a party
right pending final protection, urgency generally seems to be a requirement
for grant of interim relief.
The fifth characteristic also is another derivative of the second: the interim
nature of the protection dictates that an interim measure could be

reviewed, modified, or terminated prior to final determination of a dispute "if
the circumstances of the case or the progress of arbitral [or judicial]
proceedings require". 29
26 See, e. g., Bond in. ICC (ed. ), Conservatory Measures, 9. In another words, a
provisional measure shall not constitute "prejudice to the rights of the [arbitrating]
parties or to the final determination of the dispute [in question]. " Article 35 of the
American Arbitration Association ("AAA") Commercial Arbitration Rules 1944. See
infra Chapter I, Part 1.2.2.1.
27 See, e. g., Bond, 18. Bond rightly indicates that urgency may not always constitute
one of the characteristics of provisional measures as such determination depends
upon the competent law, if there is any. Id. One example of where urgency is not a
requirement for the grant of a provisional measure is interim payment. See infra
Chapter IV, Part 7.5.
28 See, infra Chapter IV, Part 3.1.3.
29 UN Doc A/CN. 9/468, para. 64. See also UN Doc A/CN. 9/WG. II/WP. 108, para. 66;
and Principle 13 of the ILA Principles. On the issue of review, modification or
termination of an interim measure, see infra Chapter IV, Part 6. ICC Interlocutory
Award 10596 of 2000 (unpublished) (holding that "[t]he provisional nature of the
present dispute further means that all issues addressed in this decision may be
reargued by the parties in the later course of the arbitration and revisited by the
Arbitral Tribunal in the final award. ").
32
The sixth characteristic is that "there would be no need for interim
protection if the final decision on the merits could, in and of itself, satisfy all
the interests of the parties at stake in a dispute. ,30
The seventh characteristic is that, under certain a circumstances,

provisional measure may generally be decided without notice, ex parte. 31
However, because of due process considerations, an inter partes decision
on the measure should be given following the previous ex parte decision. 32
The eighth characteristic is that unlike judicial interim measures, arbitral
provisional measures are not themselves self-executing. This is because

of the fact that an arbitral tribunal does not have imperium, coercive
powers to enforce its own decision. 33 Accordingly, legally binding force is
not one of the characteristics of arbitral provisional measures.
The final characteristic is that an arbitral interim measure does not itself
bind third parties to arbitration. However, it may affect interests of third
parties "holding, for example, money or other assets of the party
30 See, e. g., Bond, 18.

31 See, e. g., UN Doc A/CN. 9/468, para. 70; and D. Alan Redfern, "Arbitration and the
Courts: Interim Measures of Protection - Is the Tide About to Turn? ", 30 Texas Int'l LJ
71,79 (1995) ("Arbitration and the Courts").
32 It seems that this is what is envisaged by the Principle 7 of the ILA Principles. On this
issue, see infra Chapter IV, Part 8.
33 Private parties like arbitrators are not empowered with imperium. That is because
they are private individuals not judges or enforcement officers of a state. Nor do they
hold any other post in the judiciary of or appointed by a state. Empowering a private
party is thought to cause anarchy. It is, in this regard, interesting to note that an
arbitrator (iudex) a private person appointed by parties to a dispute under early
Roman law did not also have imperium to enforce its decision. The Imperium was left
with the Praetor. See W. W. Buckland / A. D. McNair, Roman Law and Common Law,
(ed. by F. H. Lawson), 2nd ed. (Cambridge: Cambridge University Press 1965), 400.
The administration of justice by iudex at that time seemed to work. It should,
however, be noted that iudex later appointed by the state.
concerned since they may be obliged to take some action in respect of that
property by virtue of the order directed to the party. "34
Terminology
In international commercial arbitration, provisional measures35 are known
and referred to as, for instance, provisional and protective measures,

interim measures, interim measures of protection, interim or conservatory
36
measures, preliminary measures, preliminary injunctive measures, urgent
measures, 37 precautionary measures, and holding measures38. These
terms are often used interchangeably. 39 The references to the terms
"provisional", "interim", "interlocutory", "preliminary", and "urgent" measures
are, on one hand, references to the nature of these measures. 40 On the

other hand, the references to the terms "protective" and "conservatory"
measures are references to the purpose of these measures. 41 This
34 UN Doc A/CN. 9/468, paras. 64 and 70. In addition,

an arbitral tribunal could request
from a party to arbitration to cause a third party who, for instance, works for such
arbitrating party to comply with an arbitral provisional measure. For more information
on this issue, see infra Chapter II, Part 4.1. Further, an arbitrator may merely request
from a third party to cooperate in implementing of a measure albeit the failure to
comply with such request has no consequences. Mauro Rubino-Sammartano,
International Arbitration Law and Practice, 2nd ed. (The Hague / London / Boston:
Kluwer 2001), 631.
35 The term "measure" is, in some cases, replaced by the terms "remedy" or "relief". The
terms will hereinafter be used interchangeably throughout this thesis.
36 See, e. g., Section 21 of the Arbitration Rules of the Court of Arbitration of the Slovak
Chamber of Commerce and Industry.
37 See, e. g., Article 14 of the International Arbitration Rules 1996 of the Chamber of
National and International Arbitration in Milan.
38 This term refers to measures that inherently necessitate the use of coercive powers
once they are granted, e. g. attachments. Rubino-Sammartano, 631.
39 On some of these terms, see UN Doc A/CN. 9/WG. II/WP. 108, para. 63.
40 See, e. g., Emmanuel Gaillard / John Savage (eds. ), Fouchard Gaillard Goldman on
International Commercial Arbitration (The Hague / Boston / London: Kluwer 1999),
para. 1303.
41 See, e. g., id. It should be noted that, under such law as the Italian law, there is a
distinction between conservatory and provisional measures. In accordance with
Article 818 of the Italian Code of Civil Procedure ("CCP"), an arbitral tribunal could not
order a conservatory measure but could order "interlocutory payment or any other
'provisional' measure. " Bond, 10. It has also been argued that some provisional
3
purpose is, for international commercial arbitration, preservation of
arbitrating parties' rights. 42
It should be noted that, the terms "provisional measures" and "protective

measures" are not precisely defined in arbitration. 43 They are loosely used
to mean the same thing most of the time. These terms are probably
derived from the references made in various legal systems to those
measures. In a move to include every possible measure in the armoury of
a decision-maker, or arbitrator, on an interim relief request, the term

"conservatory" or "protective" is used along with the term "interim" or
"provisional" 44
.
Types of Provisional Measures

The types of provisional measures vary nearly in every national jurisdiction
and under both public and private international law; although it is possible
to trace functionally similar or identical types of measures (albeit under
different names) in each of those jurisdictions. 45 Perhaps because of this
measures, e. g., disposing of property, ordering production of documents, ordering

payment of security for costs, etc. are not of a conservatory nature.
42 Perhaps, this is the reason why Article 26 of the United Nations Commission on
International Trade Law ("UNCITRAL") Arbitration Rules makes reference to "interim
measures of protection".
43 Nor is the term "interim and conservatory" measures defined. For instance, no
definition of these terms is found in a prominent dictionary on arbitration. See K.
Seide (ed. ), A Dictionary of Arbitration and Its Terms (New York: Oceana / Dobbs
Ferry 1970).
as Under certain circumstances, an arbitral tribunal may render a decision on a request
for a provisional measure in accordance with a particular national law. See infra
Chapter IV, Part 3. In these circumstances, the applicable national law's definition of
interim relief and the distinction, if any, between interim and conservatory measures
becomes relevant. Otherwise, "[i]n arbitral practice, little importance is given to
semantical distinctions. " Blessing, para. 834.
45 See Collins, 24. On provisional measures available in various jurisdictions, see,
generally, Kessedjian, para. 9 etc.; Axel Bösch (ed. ), Provisional Remedies in
International Commercial Arbitration -A Practitioner Handbook (Berlin: De Gruyter
1994). To illustrate this, the following measures could be listed as examples:
preliminary injunction, appointment of experts for preservation of evidence,
ýý
variety, it is difficult to clearly determine the types of measures that are
available for the use of arbitral tribunals. In fact, institutional arbitration
rules and the UNCITRAL Arbitration Rules for ad hoc arbitration generally
refer to the types of interim measures broadly, sometimes indicating
certain examples. 46 Nonetheless, considering their function (or objective),
provisional measures in arbitration can generally be dealt with under three
broad categories: 47 measures related to the preservation of evidence,
measures related to the conduct of arbitration and "relations between the

parties during 48
arbitral proceedings", and measures aimed to "facilitate
later enforcement" of an award. 49 An atypical provisional measure, interim
payment, may be added to those categories.
Measures Related to Preservation of Evidence
A need to preserve evidence might arise prior to its presentation or
collection at an advanced stage of arbitral proceedings. Evidence might

fade away in a routine or exceptional course of events or due to intentional
sequestration, freezing orders, pre-award attachment, security for claim, and security
for costs. It is interesting to note, in regard of the type of a measure, that the United
States ("U. S. ") Supreme Court, in Grupo Mexicano, denied permitting a preliminary
injunction prior to entry of a money judgment. Grupo Mexicano de Desarrollo, S.A., at
el. v. Alliance Bond Fund, Inc., et al., 527 US 308,119 S Ct 1961. It should be further
noted that such measures as orders for clarification of statements, measures for
taking evidence, the appointment of an expert, fixing the date of a hearing, or
summoning a party or a witness to appear before the arbitral tribunal should not be
considered as provisional measures. See, e. g., Zhivko Stalev, "Interim Measures of
Protection in the Context of Arbitration" in: Albert Jan van den Berg (ed. ), International
Arbitration in a Changing World, ICCA Congress Series No. 6 (The Hague: Kluwer
1993), 103,104 ("Arbitration in a Changing World").
47 Apparently, neither the categories nor the examples provided under them are
exhaustive. On some other ways of categorising provisional measures, see, e. g., UN
Doc A/CN. 9/WG. II/WP. 108, para. 63; Bond in: ICC (ed. ), Conservatory Measures, 9-
10, and Redfern, Arbitration and the Courts, 78. On the examples of types of
measures that may be granted in practice, see infra Chapter IV, Part 7.
48 See Bond in: ICC (ed. ), Conservatory Measures, 9. Provisional measures aim to
prevent aggravation of a dispute or delay and disruption of arbitration proceedings are
likely to fall into this category.
36
conduct of a party. Alternatively, a key witness' statement or an expert
report about rotting goods might be required in order to establish the case
that is to or will be adjudicated.
The power to preserve evidence should not be confused with the power
regularly available to arbitral tribunals in respect of production or collection

of evidence. Arbitral tribunals are generally empowered to make certain
orders for the collection of evidence. 50 Such orders on production of
documents are different from provisional measures regarding preserving
evidence in that the production of documents aim more to collect evidence

than to preserve it. Apparently, the orders for production of documents
could aim to preserve evidence as well as to collect it. In fact, in some
cases it may be more appropriate to make an application for a production
order than an order to preserve evidence on an interim basis.
Measures Related to Conduct of Arbitration and Relations between

the Parties during Arbitral Proceedings
This is the broadest category of provisional measures, which are more
common in practice. In general terms, these measures involve ordering
parties to do or refrain from doing something. These are simply injunctions

that aim to protect a legal right. 51 Some examples of measures falling into
this category include:
orders to continue performing a contract during the arbitral
proceedings (e. g., an order to a contractor to continue construction
works despite its claim that it is entitled to suspend the works);
orders to refrain from taking an action until the award is made;
orders to safeguard goods (e. g., to take specific safety measures, to
sell perishable goods or to appoint an administrator of assets);
orders to take the appropriate action to avoid the loss of a right
50 See, generally, Craig / Park / Paulsson, ICC Arbitration 2000,449. On the collection
of evidence, see infra Chapter IV, note 202.
51 In close examination, any provisional measure that an arbitrator can order involves
some positive or negative action (inaction).
37
(e. g., to pay the fees needed to extend the validity of an intellectual
property right); orders relating to clean up of a polluted site. 52
Measures Aimed to Facilitate Later Enforcement of Award
There may be a need to avoid dissipation of assets from which the final
judgment / award could be satisfied. This type of measure is apparently
aimed at not leaving the winning party empty-handed with a Pyrrhic victory,
where all assets of the losing party were flown away. Examples for this
category include:
orders not to move assets or the subject-matter of the dispute out of
a jurisdiction; orders for depositing in a joint account the amount in
dispute or for depositing movable property in dispute with a third
person; orders to a party or parties to provide security (e.g. a
guarantee) for costs of arbitration or orders to provide security for all
or part of the amount claimed from the party. 53
Interim Payment
Interim payment is "an outright payment to the plaintiff which may be
subsequently revised on final judgment [or award]"54. It is an atypical

provisional measure in that the moving party is often granted, in full or in
part, the remedy it is seeking. Interim payment is available in the laws of
many states, but is foreign to the laws of as many states too. 55 Interim
52 UN Doc A/CN. 9/WG. II/WP. 108, para. 63. This list is not exhaustive. To this end,
"orders to the parties and other participants in arbitral proceedings to protect the
privacy of the proceedings (e. g., to keep files in a certain place under lock or not to
disclose the time and place of hearings)" also, in the view of this author, fall into this
category. For example, see id.
ss Id.
54 Second Interim Report, 67 ILA Rep 200, para. 37 (1996). Provisional payment
enables a party to survive or contributes to such survival by preserving the party's
cash flow. See also Julian DM Lew / Loukas Mistelis / Stefan Kröll, Comparative
International Commercial Arbitration, (The Hague / London / New York: Kluwer 2003),
para. 23-55.
55 For instance, the ILA Principles exclude interim payment from their scope. Principle
22 of the ILA Principles. In addition, some legal systems, e. g. Switzerland do not
recognise provisional payment as interim measure. See Wirth, 35. Further, it is
noteworthy that a provisional payment is excluded from the domain of court remedies
where the underlying case is referred to arbitration. See, e. g., Societe Eurodif et autre
38
payment could in principle be granted on an interim basis by arbitral
tribunals. 56
Importance of Interim Protection of Rights
Provisional measures play a very important role in international arbitration.

Indeed, the view that provisional measures are not important in
international commercial arbitration was abandoned a long time ago. 57
The availability of provisional measures was often deemed detrimental to
"the progress and the outcome of proceedings on the merits of a case. "58
To this end, interim protection of rights in international commercial
arbitration today is as significant as the final protection of those rights. 59

This is because once it is granted either by a court or an arbitral tribunal, a
provisional measure, "in its own terms, may have final and significant
v. Republique Islamique d'Iran (14 March 1981), Rev Arb 69 (1985) (Court of
Cassation).
56 See infra Chapter IV, Part 7.5.
57 In fact, the importance of interim protection of rights was recognised in the 1920s as,
during the preparation of the first ICC arbitration rules, particular attention was given
to such protection. See Roberto Pozzi, "Conciliation and Arbitration between
Merchants of Different Countries", ICC Brochure No. 13,20 (1920). But see Pieter
Sanders, "Procedures and Practices under the UNCITRAL Rules", 27 Am J Comp L
453-454 (1979) ("Procedures") (indicating that in the mid the 1970s, "[t]he question of
interim measures only occasionally present[ed] itself in an arbitration. "); Georgio Gaja,
International Commercial Arbitration - The New York Convention (New York 1984),
Binder I, Introduction, D. B. I. Indeed, within the 1960s, in accordance with Broches'
experience "arbitral tribunals were extremely loath to order provisional or interim
measures and one should have some confidence in the self-restraint which tribunals
would impose upon themselves. " Convention on the Settlement of Investment
disputes Between States and Nationals of Other States - Documents Concerning the
Origin and the Formulation of the Convention (Washington, D. C. 1968), v. II, Part I,
515 ("History"). The contrast between the above approaches is tenable as following
the period of permissiveness in the 1920s, the power of arbitrators to grant provisional
measures faced with resistance from judiciary and legislatures in the 1950s. Such
resistance was begun to relax in the 1980s. See generally infra Chapter I.
58 Kessedjian, para. 5. See also Collins, 27.
59 Born, International Arbitration, 920 (indicating that provisional measures are often
more important in international arbitration than domestic arbitration. ). It is even
argued that provisional remedies "are often more important than final judgment [or
39
consequences that cannot be reversed even if the measure is later
modified or turns out to be unnecessary in the light of the final award , 60
.
Indeed, "a final award may be of little value to the successful party if, in the
meantime, action or inaction on the part of a recalcitrant party has

rendered the outcome of the proceedings largely useless "61
....
The importance of and the need for interim protection of rights in arbitration
have grown immensely over the last twenty years. 62 The growth owes
much to globalisation63 and increased confidence in arbitration. 64 The
award]". See, e. g., Trevor C. Hartley, "Interim Measures under the Brussels
Jurisdiction and Judgments Convention", 24 EL Rev 674 (1999).
60 UN Doc. A/CN. 9/WG. II/WP. 108, para. 66.
61 UN Doc A/CN. 9/460, para. 117. See also, Cremades, The Need, 226-227.
62 This growth is, for instance, confirmed with the increasing number of decisions on
provisional measures, particularly over the last ten years. A survey conducted by the
AAA indicates that the number of requests for interim measures in international
commercial arbitration is nearly double the number of such requests under domestic
arbitration. See Richard W. Naimark / Stephanie E. Keer, "Analysis of UNCITRAL
Questionnaires on Interim Relief', 16(3) Mealey's IAR 23,26 (2001). See generally
infra Chapter IV.
63 The number of international commercial transactions has recently increased due
mainly to globalisation. See Coleen C. Higgins, "Interim Measures in Transnational
Maritime Arbitration", 65 Tulane L Rev 1519,1520 (1991); and ICC Interim
Conservatory Award 10021 of 1999 (unpublished). For the importance of interim
measures as regards construction contracts disputes, see, e. g., Peiro G. Parodi.
"Interim Measures in Respect to Arbitration in the Construction Business" in: Albert J.
van den Berg (ed. ), I. Preventing Delay and Disruption of Arbitration - ll. Effective
Proceedings in Construction Cases, ICCA Congress Series No. 5 (Deventer: Kluwer
1991), 485-86 ("Preventing Delay"); as regards maritime disputes see, e. g., Higgins,
1519-1549; and as regards intellectual property disputes, see, e. g., Final Report on
Intellectual Property Disputes published in 9(1) ICC Intl Ct Arb Bull 37-73 (1998). As
a result of globalisation, the number of disputes with international character has
increased immensely. For instance, the number of cases registered with the ICC
increased from 250 (in 1980) (see "News From the Court and Its Secretariat", 6(1) ICC
Int'l Ct Arb Bull 3 (1995)) to 593 (in 2002) (see <www. iccwbo. org/court/
english/right_topics/stat_2002. asp> last visited at 28 October 2003) within nearly
twenty years. Further, each year, nearly 5000 international arbitrations and
mediations are held in or from London. Judith Gill / Lord Hacking / Arthur Marriott /
Geoff Prevett / Peter Rees (eds. ), Delivering Results - Dispute Resolution in London
(London 2000), 5. Also, each year, approximately 2300 new arbitration cases register
with the thirteen major arbitration institutions (e. g., AAA, CIETAC, ICC, ICSID, LCIA,
and SIAC). This is in accordance with unpublished research entitled "Statistics on
40
growth is further related to the longer duration of arbitration proceedings
due to globalisation, the complexity, bureaucratisation, 65 or
institutionalisation of arbitration. 66
In addition, legal assistance is today available to arbitrating parties from
able lawyers familiar with the tools and strategies of international

adjudication (more specifically, of international commercial arbitration).
Indeed, perhaps due to such availability, provisional measures "are
sometimes misused as offensive weapons intended to exert undue

pressure on the other party or a means to delay or obstruct the
proceedings. "67 Misuses or abuses of provisional measures must be
Arbitration Centers' Activities" and done, in 2000, by Sylvie Picard Renuat and Esther
van Rossen of the ICC International Court of Arbitration. In sum, globalisation has a
positive effect on arbitration. Indeed, it is rightly argued that "[a]rbitration has become
more and more international following the globalisation of the economy. Arbitration
may be the juridical response to this globalisation. " Sanders, Quo Vadis, 24. See
also Bernardo Cremades, "Overcoming the Clash of Legal Cultures: The Role of
Interactive Arbitration", 14(2) Arb Int'l 157,172 (1998) ("Cultures").
64 This is partly observed in the fact that an increasing number of states, precisely 134,
adopted the New York Convention. In this regard, see <www. uncitral. org/ en-
index. htm> last visited at 28 October 2003. See, e. g., Sanders, Quo Vadis, 9.
65 See, e. g., Catherine Kessedjian, "Court Decisions on Enforcement of Arbitration
Agreements and Awards", 18(1) J Int'l Arb 1,11 (2001) (stating that "arbitration has
become increasingly 'procedure-oriented"'. ) ("Court Decisions"); Higgins, 1525
(indicating that "[r]ising concern over the abuse of procedural devices for purposes of
delay is spawned by the increasing trend of arbitral proceedings to acquire
characteristics of contested court litigation. "); and Fall S. Nariman, "The Spirit of
Arbitration", 16 Arb Int'l 261,263 (2000) (noting that, in arbitration, "'ceremonies' are
multiplying, formalities are on the increase and much time spent in adapting the arts of
litigation. ").
66 See Redfern/Hunter, para. 1-04; and Born, International Arbitration, 919. For
instance, the average length of an ICC arbitration is between one and two years. See
Craig / Park / Paulsson, ICC Arbitration 2000,14.
67 See, e. g., Klaus P. Berger, International Economic Arbitration (Deventer/Boston:
Kluwer 1993), 336 ("International Economic Arbitration"); Axel Bösch, "The Problem of
Provisional Remedies in International Commercial Arbitration" in: Bösch (ed. ), 4-5;
"Final Report on Interim and Partial Awards" (A Report of the ICC Commission on
International Arbitration chaired by Martin Hunter), published in 1(2) ICC Ct Bull 26,
para. 30 (1990) ("Final Report on Awards") (indicating that arbitration becomes to
have "increasingly adversarial character with a consequently greater emphasis on
...
disputing such matters as" interim protection of rights. ). See also Alan H. Kaufman,
41
controlled for maintaining the effectiveness of arbitration and the flexibility
needed in international trade. 68 The control is thus necessary for the
"benefit of trade ,69and its promotion.
Further, the growth in the importance of arbitral provisional measures is
related to "the ease and speed with which assets can be transferred in the
modern world to avoid a court judgement or an arbitral award "70
....
Indeed, where no assets to enforce a final award are in existence, the final
protection envisaged to is
safeguard a right simply a Pyrrhic victory. "
In sum, the existence and availability of effective interim protection of rights

in arbitration is vital for the further success of this institution. Luring
business persons to arbitration or keeping their satisfaction high with the
arbitral process could in practice prove to be very difficult only with

arbitration's other advantages72 where the availability of effective arbitral
interim protection is in question. 73 The degree of difficulty increases when
one is reminded that a comparatively effective interim protection of rights is

generally available from judicial authorities in international litigation. 74
"Major Strategic Issues in International Litigation", in: International Business Litigation

& Arbitration 2000 (New York: Practising Law Institute 2000), 1-20. The undue
pressure may have "psychological effects". See, in this regard, Cremades, The Need,
227. Further, some provisional measures actually force a party to settle the case. Id.
For instance, the issuance of a measure e. g., freezing assets of a party may pressure
it to settle the dispute on unfavourable terms where such measure could destabilise its
financial condition.
68 Cremades, Exclusion, 106.
69 Cremades, The Need, 227.
70 UN Doc. A/CN. 9/WG. II/WP. 111, para. 7.
71 See, e. g., Albert Jan van den Berg, The New York Arbitration Convention - Towards a
Uniform Judicial Interpretation (The Hague / Deventer: TMC Asser Institute / Kluwer
1981), 143 ("New York").
72 On the advantages and disadvantages of arbitration, see sources cited in Introduction,
supra note 1.
73 See, e. g., Note - "Arbitration-Availability of Provisional Remedies in Arbitration
Proceedings", 17 NYULQ Rev 638 (1940).
74 See generally infra Chapter V, notes 1 and 13.
42
(Litigation remains the main competitor of arbitration as a dispute
resolution mechanism. ) Problems and uncertainties regarding interim
protection of rights in arbitration affect the quality of justice provided for
parties in arbitration and its effectiveness. Consequently, such problems
and uncertainties pose a threat to the future of arbitration. To this end,
Bond states
[w]hile it is inevitable that litigation and arbitration each has certain
advantages and disadvantages vis-ä-vis the other, should parties
consider that the quality of justice rendered or the obtaining of
satisfaction on an arbitral award is substantially diminished by the
selection of arbitration over litigation, it would obviously bode ill for the
future of arbitration. 75
What would be a further threat to the future of arbitration is if arbitrating
parties were, in each case, referred to judicial authorities to obtain

provisional measures. Such referral would generally undermine the
parties' basic choice to resolve a dispute by way of arbitration rather than

by recourse to the courts. 76
In order to reach its aim, this thesis will examine:
" the evolution of provisional measures in arbitration;
" the forum to obtain such measures;
" complementary mechanisms;

" arbitral provisional measures; and
" enforcement of arbitral provisional measures.
75 Bond, 10.
76 See infra Chapter II, Part 1.1. Apparently, the interaction between the jurisdiction of
judicial authorities and that of arbitrators is unavoidable for the effectiveness of
arbitration and better distribution of justice. For the reasons with respect to such
interaction, see infra Chapter II, Part 4.1.
4-)
Evolution of Provisional Measures in Arbitration
Recognising the commercial need for interim protection of rights, some of

the early arbitration rules were permissive as regards arbitral competence
to grant provisional measures. In the first quarter of the 20th century,
national laws were generally silent on such competence. Both legislatures
and courts often mistrusted arbitration and arbitrators. Further, courts
were jealous of arbitration. Only a handful of laws dealt with the role of
courts with respect to provisional measures. These laws generally
envisaged court assistance to arbitration in rudimentary form. Within this
period, provisional measures were, in general, exclusively available from
courts regardless of where the final protection was sought. The second,
third, and even a part of the fourth quarter of the last century witnessed
dramatic changes. Some national laws and court decisions provided for
the exclusive jurisdiction of courts for interim protection of rights even
though the final protection of such rights was, by agreement, sought from
arbitrators. The negative attitude of legislatures and courts affected the
drafters of arbitration rules and thus these rules generally refrained from
empowering arbitrators to issue provisional measures. The rules were
generally permissive of court involvement in arbitration for interim
protection of rights. Regardless of such involvement, the substance of the
case in dispute remained within the arbitral domain. Such approach paved
the way for wide recognition of arbitral competence to issue provisional
measures in the last decade of the 20th century. Within the same period,
the courts' role was generally restricted to assistance for enhancing the
effectiveness of arbitration.
The evolution of the concept of court assistance to arbitration and the
of an arbitrator to grant provisional measures as well as historical,

power
44
political, and commercial causes that affected such evolution will be
examined. Such examination will enlighten the roots of some of the
problems and uncertainties about provisional measures in arbitration. "
The examination will also enhance understanding of some of the trends
concerning those measures and assist in shaping such trends for the 21St
century.
Forum to Obtain Provisional Measures
Nowadays, an arbitral tribunal is and should be the "natural forum" for
providing both final and interim protection of arbitrating parties' rights,

despite the fact that this view is not fully accepted. 78 The principle of party
autonomy in arbitration dictates such conclusion. Indeed, for instance, if

the tribunal is entrusted to finally determine the parties' rights, it is natural
that the tribunal should be entrusted to deal with the interim protection of
these rights. 79 However, there are still three salient problems and certain
other shortcomings with the tribunal's power. 80 A tribunal has no power
over third parties. Arbitration is a contractual mechanism binding upon the

contracting parties. Interim protection of rights against third parties has to
be sought from judicial authorities.
In addition, the tribunal cannot use coercive powers to force a party to
comply with its decision. An arbitral tribunal is not an organ of a sovereign.

Sovereigns do not entrust their functions to private individuals.
Accordingly, provisional measures that require use of coercive powers
could only be obtained from state courts.
77 See infra Chapter I.

78 See infra Chapter II, Part 1.
79 For further reasons in favour of the power of an arbitrator to grant provisional
measures, see infra Chapter II, Part 1.1.
80 See infra Chapter II, Part 4.1.
45
Further, an arbitral tribunal could only be available to provide interim
protection of arbitrating parties' rights when it is formed. At the stage prior

to constitution of the arbitral tribunal or, in some case, prior to the
transmittal of the file to the tribunal (collectively referred to as the "pre-
constitutional stage"), interim protection may be available from either

another party-determined authority, e. g. emergency arbitrator, 81or a court.
The above problems along with the shortcomings require court

involvement in the arbitral process. How such involvement is and should
be regulated is determined by arbitration rules and state laws. 82 Court
involvement in arbitration is necessary for the support of arbitration's
effectiveness. In determining the necessary degree of involvement, the

needs of international commerce should to be taken into account. The
effectiveness of arbitration requires a limited level of court support where
the exercise of power to grant provisional measures by an arbitral tribunal
is impossible or ineffective. In such cases, the courts' role is to
complement and assist the arbitration process. Thus it is necessary to
clarify the manner of coordination of the power between arbitrators or
party-appointed authorities and courts.
Complementary Mechanisms
No provisional measures are available from an arbitral tribunal at the pre-

constitutional stage, which is a very important phase of arbitration. This
phase unfortunately extends over a certain period of time due to

bureaucratisation or internationalisation of arbitration. The majority of
disputes are resolved within that period. In the absence of arbitral
81 See infra Chapter M.

82 See infra Chapter II, Part 4.
46
provisional measures, courts are generally the parties' only option for
interim protection of their rights. However, such option is, inter alia,
contrary to the parties' intention to resolve their disputes before a neutral /

party-determined authority. Referring a party to a court means channelling
such party to a forum (a court) it just opted out of by the agreement to
arbitrate. In addition, petitioning a court for interim protection may infringe
upon the confidential nature of arbitration intended by the parties.
Furthermore, such request may be considered a waiver of the right to
arbitrate. Finally, judicial provisional measures may, in some cases, not be

effectively available, or available at all.
In order to overcome the above salient problems, complementary

mechanisms were proposed83 and are also supported by the principle of
party autonomy. These mechanisms envisage entrusting a neutral person
with the issue of provisional measures. This neutral person may be a head
or an organ of an arbitration institution. Alternatively, contracting parties
may opt for emergency measure procedures, under which a neutral person
called an emergency arbitrator, pre-arbitral referee, or an arbitrator decides
a request for an interim protection of rights. It is necessary to examine

how such mechanisms operate and whether or not they would be effective
in providing provisional measures. Such examination will demonstrate that
the complementary mechanisms may be useful and effective at the pre-
constitutional stage.
Arbitral Provisional Measures
Once the power of an arbitral tribunal is established then it is necessary to

determine the standards of procedure and principles for the granting of
83 See infra Chapter III.
47
84 The determination of standards and principles is
provisional measures.
vital. The determination assists consistency and predictability of the
arbitration process. Thus the determination of standards or procedures
and principles affects the efficiency of that process.
Arbitration rules and laws are generally silent on these standards and
principles. However, arbitrators are often equipped with broad powers and
exercise wide discretion. The standards and principles should be flexible
so that they can suit the circumstances of each individual case. In

determination of such standards and principles, inter alia, the temporary
nature of provisional measures should be taken into consideration. Such
standards and principles should be pragmatic in order to suit the practical

needs of international commerce and arbitration.
For the determination of standards and principles, arbitrators, occasionally,
refer to or take inspiration from the law of the place of arbitration or any
other relevant law. Further, parties rarely make specific reference to
national laws in practice. In using their discretion for such determination,
arbitrators may be guided by arbitral case law and a comparative analysis

of various arbitration rules. To this end, it is useful to examine, in light of
that case law and such analysis, the standards of procedure and principles
for the grant of provisional measures. Seventy-two sets of arbitration rules
and arbitral practice mainly under the arbitration rules of the AAA, ICC,
ICSID, and UNCITRAL are examined in the thesis.
84 See infra Chapter IV.
48
Enforcement of Arbitral Provisional Measures
Arbitral provisional measures are, unlike judicial measures, not self-

executing. They have, however, certain weight. 85 Arbitrating parties may
voluntarily abide by the decisions of their tribunals. Otherwise, certain
sanctions may be available against a recalcitrant party. Adverse
inferences may be drawn where a party refuses to comply with a
provisional measure concerning preservation of evidence. Alternatively,
the recalcitrant party may be held liable for costs and damages concerning
two categories of provisional measures; namely, (i) measures related to
the conduct of arbitration and the relations between the parties during
arbitral proceedings, and (ii) measures aimed to facilitate later enforcement

of the award.
Drawing adverse inferences may be very effective. However, holding a
party liable for costs and damages in regard of provisional measures may
not always be effective. Particularly against the dissipation of assets, the
potential liability is not considered effective protection. The effectiveness

of arbitral provisional measures is directly related to the effectiveness of
arbitration. The success of arbitration lies in its appeal to its main users.
By taking the importance of the enforceability issue into account, several
legislatures introduced judicial assistance to arbitration for enforcement of
arbitral provisional measures. However, these efforts are not sufficient.

This is because there is disharmony in regard of the provision of judicial
assistance. Further, only a few laws provide for judicial assistance to

foreign arbitration. No arbitration convention expressly contains a
provision on the enforcement of arbitral provisional measures. The weight
85 See infra Chapter V, Part 1.
49
big.
LONDI{,
umv.
of arbitral provisional measures and how their effectiveness would be
enhanced through enforcement will be examined below.
50
CHAPTERI
EVOLUTION OF PROVISIONAL MEASURES

IN
INTERNATIONAL COMMERCIAL ARBITRATION
Interim protection of rights is not a new phenomenon. Some of the

interdicts of the Roman law aimed at protecting property on a
'
provisional basis. Later, in the middle ages, for instance in England,
the possessory assizes, which were inspired from possessory
interdicts2 were used to "mitigate the long delay which occurred
between the issuance of a writ of right and the trial delay which was
-a
due to the solemnity of the writ of right. ,3
In international content, the regulation of interim protection of rights
seems to date back to the beginning of the 20th century The drafters
.4
Buckland / McNair, 420-423.

2 Id., 421.
Elkind, 27.
Interim protection in international plane was contained in series of treaties dated
the early 1900s. See Elkind, 38-43. Perhaps, the most influential provisions in
respect of interim protection were placed in the Treaties for the Advancement of
Peace or Bryan Treaties of 1914. The Bryan treaties were signed between the
United States ("U. S. ") and China, France, and Sweden. For the U. S. -China
(Advancement of Peace) Treaty, see Charles I. Bevans, Treaties and Other
International Agreements of the United States of America 1776-1949, v. 6
(Washington: Department of State 1968-1976), 711-713; for the U. S. -France
(Advancement of Peace) Treaty see id., v. 7,883-885; and for the U. S. -Sweden
(Advancement of Peace) Treaty see, id., v. 11,741-743. Article IV(2) of each treaty
provided:
In case the cause of the dispute should consist of certain acts already
committed or about to be committed, the Commission [to be constituted in
accordance with the terms of each treaty] shall as soon as possible indicate
what measures to preserve the rights of each party ought, in its opinion, to be
taken provisionally and pending the delivery of its report.
The treaties affected the drafting of Article 41 of the Statute of the Permanent Court
of International Justice. See Elkind, 41,43-46. That Article was the basis of Article
41 of the Statute of the International Court of Justice. In this period, the function of
interim protection differed under various legal systems. See, generally, Elkind, 23-
31. The function was generally prevention of deprivation or disturbance of
51
of international commercial arbitration rules in those days were
probably affected by such regulation. Indeed, it was in 1915 when the
concept of interim protection of rights was introduced into international
commercial arbitration for mainly the satisfaction of commercial and
business needs.
The growth of arbitration as a dispute resolution mechanism, in general,
and, the idea of interim protection of rights, in particular, was naturally

related to evolution of international trade and business. In the evolution
of the international commercial arbitration practice, there are two
periods within which there were significant developments: the first and
the last quarters of the 20th century. These developments were no
haphazard. It was the rapid expansion of international trade and
business that triggered in the first place the flourishment of international
5
commercial arbitration in the beginning of the 20th century. Increasing
trade relations between Latin American states and the U.S. resulted in
creation of a mechanism for settling disputes arising from such relations

in 1915. This mechanism was composed of a set of arbitration rules.
Recognising the importance of interim protection of rights, these rules
were, for the first time, empowered a party-appointed authority to grant

interim measures for the protection of property in dispute.
National legislatures and courts soon after accepted that court
assistance in respect of interim protection was sometimes necessary

for success and effectiveness of international commercial arbitration
and effective distribution of justice. The necessity for courts'

involvement in arbitration in regard of interim protection of rights was
possession, prevention of violence and protection of status quo ante pending trial.
Id.
On the evolution of international business, particularly business environment, in the
1880s and afterwards see Geoffrey Jones, The Evolution of International Business
Introduction (London/New York: Routledge 1996), 29-41.
-An
52
also recognised by arbitration rules. However, national legislatures for
a long period of time refrained from empowering arbitrators to grant
provisional measures. State courts too took prohibitive approach to the
arbitral power.
The approach of legislatures and courts was a reaction to empowering
arbitrators under certain arbitration rules to grant provisional measures.

The refusal of recognition of arbitral power in respect of provisional
measures and the prohibitive approach of the courts had a negative

effect on the express regulation of the arbitral powers for interim
protection of rights. This effect gradually increased over the second,
third, and a part of the fourth quarters of the 20th Century. Throughout
these years, several attempts for improving regional and international
commercial arbitration practice were made with some success. During

these years, the business environment was changed due mainly to two
World Wars. The trends restricting free movement of goods and
business were generally adopted, particularly, after the Second World
War. 6
International legislatures in those days dealt with two main problems for
the success of international arbitration: recognition and enforcement of
arbitration agreements (for present and future disputes) and of awards.
The Geneva Protocol of 1923 and the Geneva Convention of 1927
dealt with the recognition and enforcement issue. ' In 1958, the New
York Convention perfected the system created then.
International trade and business boomed again in the 1980s. In fact,
the importance of international business in the world economy was
6 See, e. g., generally, Jones, 46-52.

See also the Treaty concerning the Union of South American States in respect of
Procedural Law, signed at Montevideo, 11 January 1889, II Register of Texts 5
(1973).
;3
revived and grown in the 1980s to the level of the 1920s. 8 Restrictions
on free movement of trade and business were steadily released and the
fall of the European Eastern Block (or of the Berlin Wall) 9 boosted
trade and business not only between east and west but also in
international (global) plane. These developments raised importance of
mechanisms for resolution of disputes, particularly international

commercial arbitration. The attention to arbitration contributed
positively already existing attempts to resolve problems of international
arbitration practice. The concept of interim protection of rights was
identified as one of those problems of international arbitration in 195610
and was dealt with under the European Convention on International

Commercial Arbitration" (the "European Convention"), the United
Nations Economic Commission for Europe (the "UNECE") Arbitration
Rules, and the Rules for International Commercial Arbitration of the
8 Jones, 59 (stating that "[b]etween 1880 and the 1920s international business
reached a significance in the world economy which it was not to approach again
until the 1980s. "). See also Sanders, Quo Vadis, 83. In support of this view, it
could be added that the 1980s is the most active period in the history of ICC
arbitration in which the ICC International Court doubled the requests it received
until 1980 from the ICC Arbitration Rules first inception in 1923 within the period
between 1980 and 1990. "A Survey of Ten Years of ICC Arbitration (1980-1990)",
1(1) ICC Ct Arb Bull 7 (1990). In this regard, it is interesting to note what Ronald
Reagan stated in 1986:
Today, world trade has increased to a level requiring a more expansive and
effective system for dispute resolution. In promoting and developing such a
system, international arbitrators can help to lessen conflict, promote harmony,
and bring world peace closer to fulfilment. (Emphasis added. )
Welcoming Letter to the VIIIth International Arbitration Congress of the International
Council for Commercial Arbitration, in: Pieter Sanders (ed. ), Comparative
Arbitration Practice and Public Policy in Arbitration, ICCA Congress Series No. 3
(Deventer: Kluwer 1987), 1 ("Comparative Arbitration").
This event marked the era of globalisation. On globalisation see, e. g., Jarrod
Weiner, Globalization and the Harmonization of Law (London/New York: Pinter
1999); Loukas Mistelis, "Regulatory Aspects: Globalization, Harmonization, Legal
Transplants, and Law Reform - Some Fundamental Observations", 34(3) Int'l Law
1055 (2000); Gordon Walker / Mark Fox, "Globalization: An Analytical Framework",
3 Ind J Global Legal Stud 375 (1996); and Martin Shapiro, "The Globalization of
Law", 1 Ind J Global Legal Stud 37 (1993).
10 UN Doc Trade/WP1/12, paras. 41-42.
Done at Geneva, 21 April 1961,484 UNTS 364, No. 7041 (1961-1964). 26
countries signed and ratified the European Convention. For the list of those
countries see <www. unece. org/trade/tips/comarbit/listpart. htm> last visited at 28
October 2003.
54
United Nations Economic Commission for Asia
and the Far East" (the
"UNECAFE"). 13 These Arbitration Rules
recognised the need to
empower arbitrators to grant provisional measures. They also
recognised the need for courts' assistance to arbitration for the
grant of
provisional measures. In the beginning of the 1980s, the
number of
national laws permitting arbitrators to grant
provisional measures
increased rapidly. This was related to the recognition
of the
commercial need by national legislatures through overcoming the
historical prejudice towards arbitration. 14 The
need for judicial
assistance to arbitration too gained wide acceptance in international
and national legislations as well as court decisions within the last part of
the 2 0th century.
12 Now the U. N. Economic

and Social Commission for Asia and the Pacific.
13 The 1972 Nestor Report did
not, however, identify the concept as one of the
problems perhaps because the issue was dealt with under the above arbitration
rules. For the Report of Ion Nestor on International Commercial Arbitration in 1972,
see UN Doc A/CN. 9/64.
14 In overcoming such
prejudice, the UNCITRAL Arbitration Rules and the Model
Law, both of which reflect the evolution of the issue of provisional measures in
arbitration played a vital role. Both the UNCITRAL Arbitration Rules and the Model
Law have improved, internationalised, and harmonised international commercial
arbitration. On the UNCITRAL Arbitration Rules, Berger, International, 63
(indicating that the UNCITRAL Arbitration Rules have inspired many provisions
contained in contemporary institutional arbitration rules. "); Sanders, Quo Vadis, 13
(stating that "today it can be noted that the UNCITRAL Arbitration Rules, to some
extent, have had a harmonising effect. "). On the Model Law, see, e. g., Redfern /
Hunter, 508; and Sanders, Quo Vadis, 83 (arguing that the wide adoption of the
Model Law "throughout the world contributed greatly to the harmonisation of
arbitration laws. "). Several experts from various parts of the World worked on the
preparation of the Model Law and laws of 43 jurisdictions are based on it.
Legislation based on the Model Law are enacted in Australia, Azerbaijan, Bahrain,
Belarus, Bermuda, Bulgaria, Canada, Cyprus, Egypt, Germany, Greece,
Guatemala, Hong Kong Special Administrative Region of China, Hungary, India,
Iran (Islamic Republic of), Ireland, Jordan, Kenya, Lithuania, Macau Special
Administrative Region of China, Madagascar, Malta, Mexico, New Zealand,
Nigeria, Oman, Peru, Russian Federation, Singapore, Sri Lanka, Tunisia, Turkey,
Ukraine, within the United Kingdom of Great Britain and Northern Ireland:
Scotland; within the United States of America: California, Connecticut, Illinois,
Oregon and Texas; Zambia, and Zimbabwe. See generally UN Doc
A/CN. 9/WG. II/WP. 108/Add. 1 available at <www. uncitral. org> last visited at 28
October 2003.
;ý
This Chapter studies the evolution of provisional measures in arbitration
and its historical, commercial, and political causes. The study of the
evolution and its causes will enlighten the roots of some of the
problems and uncertainties on those measures. The roots, evolution
and its causes enhance our understanding of today's trends and assist
shaping of trends for the 21st century in respect of those measures. In
this regard, two issues will mainly be studied. These issues are power
of arbitrators to grant provisional measures and court assistance
(concurrent jurisdiction of arbitrators and of courts) for interim protection
of rights. This Chapter examines the approach of (i) arbitration rules
and (ii) international and national legislatures as well as courts to those

issues.
1 Arbitration Rules
It was in the early years of the last century when a sophisticated set of
rules15 dealing with international commercial arbitration recognised the
need, to empower a party-appointed authority to grant interim
protection of rights. Indeed, in 1915, at the First Pan-American

Financial Congress, a plan (a dispute resolution mechanism) for
settlement of disputes by arbitration in trade between business persons

in the United States of America and the Argentine Republic was
(the "1915 Plan"). 16
prepared
15 The sophistication of which is perhaps a reflection of the fact that commercial

disputes in those days often settled by arbitration. See generally Arthur Nussbaum
(ed. ), International Year Book on Civil and Commercial Arbitration, (New York:
Oxford University Press 1928), v. 1,398.
16 The Plan came into force in 1916. The Plan was reprinted in AAA (ed. ), Year Book
Commercial Arbitration in the United States (New York: Oxford University Press
on
823. The Plan influenced by the Bryan Treaties as the U. S. was a
1927), perhaps
to them. On the Plan, see also Horacio Grigera Naön, "Latin American
party
System", in: Stefan N. Frommel I Barry
Arbitration Culture and the ICC Arbitration
Cultures in Commercial Arbitration Old
A. K. Rider (eds. ), Conflicting Legal -
Issues and New Trends (Kluwer: London 1999), 117.
56
The rules contained in the 1915 Plan were dealing with trade between
two trade institutions: the U.S. Chamber of Commerce and the Bolsa de
Commercio of Buenos Aires. In accordance with the 1915 Plan, an
arbitration committee each established within the above chambers of
commerce was empowered to deal with disposal of perishable or
seasonal goods. This power was given as recognition of a commercial
need to protect, on an interim basis, the rights of the arbitrating parties.
Since arbitration emerged in the beginning of the last century as a
dispute resolution mechanism for resolving disputes between business
persons belonged to various trade institutions, it was logical to
empower the administrative organ of a trade institution, which was
indisputably neutral, and readily available and whose integrity was free
from doubt for the grant of interim protection of rights. Also such
institution had moral powers over its (businessmen) members, which
powers eased the compliance with the institution's decision on the
interim protection.
The mechanism contained in the 1915 Plan was developed into two
divergent systems for effectiveness of interim protection of rights. For
nearly 40 years, an organ (a special committee) or a head of an
arbitration institution was empowered to grant certain interim measures.
This power, though it vanished in the 1950s for a period of time due to
political and historical "
reasons, still survives. Since the 1920s, along
with that power or, solely, in general, arbitral tribunals have been
18
empowered to grant interim measures under various arbitration rules.
Commencing from the 1930s, a number of arbitration rules made
references to the concurrent jurisdiction of arbitrators and of courts.
17 See infra Chapter III, Part I.

18 Apparently, any such power entrusted to a party-appointed
authority could/can only
be used where applicable national laws were/are permissive. See generally
Chapter I, infra Part 1.2.
57
This Part deals with evolution of power of an
organ or the head of trade
institution. It also studies arbitrators' competence to
grant interim
measures and the issue of concurrent jurisdiction under various
arbitration rules.
1.1 Power of Organ or Head of A Trade Institution
Until the formation of an arbitral tribunal or even after its formation,

there may be a need to urgently seek interim protection of rights. This
need is commercial. It was commercially vital for business persons that
their rights or the subject matter of a dispute were protected regardless
of the fact that such protection was provided on an interim basis. The
need for interim protection may require an established body or organ.
The 1915 Plan recognised and remedied the need by referring interim
measure applications to a permanent body. The 1915 Plan was taken

as a basis by the U.S. Chamber of Commerce's "Plan for Commercial
Arbitration" prepared in 1922 (the "1922 Plan") for promoting domestic
arbitration within the U.S. Both Plans probably affected the ICC Rules
of Arbitration 1931, which empowered the president of the ICC Court,
along with arbitrators, to take conservatory measures. However, the
concept of empowering an organ of a trade institution, e. g. a committee
or its president faced with troubles and abandoned in 1955 to be
revived in the 1990s. This Part examines the 1915 and 1922 Plans and
the ICC Arbitration Rules.
1.1.1 1915 Plan
In accordance with the 1915 Plan,

the Bolsa de Commercio of Buenos Aires and the United States
Chamber of Commerce each established a Committee on
arbitration and an official list of arbitrators, with bi-national
participation in both, and they agree to urge the insertion of a
standard arbitration clause in contracts between merchants of
the Argentine Republic and the United States of America. Rules
58
for the conduct of arbitration[sic]s are provided in connection
19
with the agreement. (Emphasis added.)
It was no coincidence that such a sophisticated plan was agreed by two

countries situated in the American Continent. Nor was it coincidence
that, upon approval of the Inter-American High Commission, similar
plans were negotiated between the United States Chamber of
Commerce and various commercial organisations in Brazil, Ecuador,
Panama, Paraguay, Uruguay, Venezuela, and Columbia.20 These
developments owed to the fact that, in those days, trading environment
in the Americas was favourable whereas Europe was at the brink of the
First World War thus trade relations within or from Europe were
hampered.
Article XII of the 1915 Plan provided:21

If a controversy which is submitted to arbitration involves
merchandise, the committee on arbitration which will have
supervision of the case may, after communication with the
parties, sell the merchandise or take such action as may, in their
judgment, be advisable to avoid increased loss. The proceeds
of such sales shall be deposited in bank to await the award of
arbitrators.
This Article responded the call for the commercial need to protect the
merchandise22in dispute on an interim basis. There are two issues to
note on the Plan. The Plan entrusted the committee on arbitration, as a
standing body available to provide interim protection of rights whenever
19 AAA (ed.), 823-824.

20 Id., 824. It is interesting to note that
a similar plan was signed between Chamber
of Commerce at Buenos Aires (Argentina) and the Associacä Commercial of Rio
de Janeiro (Brazil). See Nussbaum (ed.), 291, note 8.
21 AAA (ed.), 835. This Article
was entitled "Disposal of Perishable or Seasonal
Goods." The procedure for the sale of goods explained in Articles 5 and 8-11 of
the Rules for Dealing With Merchandise (an annex to the Plan). For the text of this
annex see id., 840.
22 The drafters of the Plan
considered, particularly, the protection of the merchandise
in dispute because, in those days, sale of goods contracts constituted a bulk of
59
necessary, with the power to grant provisional 23
measures. Further,
Article XII of the 1915 Plan
constituted the basis for interim protection
of rights under international commercial arbitration.
1.1.2 1922 Plan
Apparently, the 1915 Plan inspired the 1922 Plan for

promotion of
arbitration by use of businessmen of various domestic chambers
of
commerce in the U. S. 24 Apparently, the inspiration was motivated with
the recognition of the same commercial to the
need protect
merchandise in dispute. Article 14 of the Arbitration Rules of that Plan
provides:
If the circumstances of a case disclose that while the controversy
is pending there may be aggravation of damages, as in a case
involving rejection of perishable merchandise, the committee [on
arbitration of the relevant association] shall forthwith propose to
the parties that they assent, saving all of their rights, to such a
disposal of the merchandise, or such a course with other subject
matter, as will prevent further deterioration or aggravation of
damages in any other form. In all such cases, the committee
shall place the facts before the arbitrators. 25
This Article differed from Article XII of the 1915 Plan in one important
aspect. The latter gave power to direct sale, if necessary, the goods in
question whereas the former gave power to make a mere proposal for
sale. This author is unable to find any express stipulation as to why
direct power to sell the disputed subject matter amended to make a
proposal in that regard. Article 14 under the 1922 Plan was probably
international transactions and also because the above institutions aimed to assist
sale of goods transactions e. g., cotton.
23 The drafters did not entrust that power to arbitrators. That is probably because
they observed the difficulties that we still have today; namely, it takes some time to
appoint arbitrators, even in those days when arbitration was not judicialised and
internationalised or, in other words, comparatively simple and flexible and that until
arbitrators' appointment no interim protection could be available.
24 AAA (ed. ), 822,824. It seems that a similar mechanism was in operation under
the Arbitration Rules of, then, the London Court of Arbitration. See Article 17 of the
Rules of the London Court of Arbitration reprinted in: Nussbaum (ed. ), 270,273.
25 AAA (ed. ), 829. This Article was entitled "Prevention of Aggravated Damages. "
60
based on the promise that arbitrating parties
would voluntarily follow
any such proposal as they wilfully submitted their dispute for resolution
to the committee.
1.1.3 ICC Arbitration Rules 1931
The 1915 and 1922 Plans were mirrored and followed by the ICC
Arbitration Rules 1931. Article 11 of the Rules
empowered the
president (along with arbitrators) of the ICC Court of Arbitration with
certain emergency powers. That Article was flexible for creating most
effective means of interim protection. Article 11 left the power with
arbitrators but recognised the shortcomings of such competence and
also empowered the president26 of the then ICC Court of Arbitration for
providing such protection. 27
26 On the reason for

empowering the president with such power, Robert stated:
Experience has shown that urgent cases may arise which necessitate, outside
the monthly meetings of the Executive Committee, a decision concerning
conservatory measures to be taken in the interest of one or other of the parties.
[I]t was decided to insert a new Article [11 which empowered both the
...
president and the tribunal to grant provisional measures]
See Marx Robert, "The Court of Arbitration of the International Chamber of ....
Commerce - Revision of the Rules", 11 World Trade 301,302 (August 1931). This
statement suggests that, prior to the amendment, the Executive Committee had a
power in respect of conservatory measures. However, this author could not find
any information to support that proposition. The statement might be related to the
regulation of conservatory measures under the 1915 Plan upon which Article 11
most probably was based. Article XII of the 1915 Plan empowered the Committee
to grant certain conservatory measures. See Chapter I, supra Part 1.1.1.
However, the ICC Rules, after various discussions, refrained from empowering the
Executive Committee because the Executive Committee of the ICC was not really a
standing body as it convened once in a month. The awkwardness of the above
statement is probably because only a part of those discussions was referred to in
the Max Robert's commentary.
27 There were two important characteristics of the president's power: First, the
president of the Court of Arbitration was given the power in urgent cases to appoint
an expert, who was armed with power to adopt certain conservatory measures
including sale of the goods in dispute. The pre-condition for the use of that power
was the existence of an ICC arbitration clause. Second, the president's power
might only be used in urgent cases and upon a request from a party (never ex
officio). See Robert, 302. For the text of Article 11 and further characteristics
under such power, see Chapter I, infra Part 1.2.1.
61
Certain amendments made to Article 11 in 1939 but the president's
power retained only to be removed in 1955.28 Indeed, in this year, the

power of arbitrators to grant a provisional measure was too removed
from the ICC Arbitration Rules. The removal might be attributable to
potential and actual problems caused by the existence or practice of

that power due to the negative attitude of legislatures and courts
towards arbitration. 29 This is conceivable as the president's (or the
arbitrator's) power to grant conservatory measures made the institution

itself open to a challenge. A potential challenge meant potential
liability. In addition, arbitration was facing with hostility at the post war
(decolonisation period). 30 Further, the use of the power by the
era
President or arbitrators for interim protection of rights could be
considered sensitive, as such power perceived to belong to sovereign
within the context of arbitration in those days. Indeed, national
31
legislatures did not generally recognise the power in those days. The
concept of arbitral provisional measures from a standing body was
reintroduced to international commercial arbitration world in the
1990s. 32
1.2 Recognition of Arbitrators' Power and of Concurrent
Jurisdiction
The 1915 Plan was also inspired the drafters of the first ICC Rules of
Arbitration. In 1920, the Council of the ICC decided to undertake a
international 33 A special commission
study of commercial arbitration.
were set up for this purpose.
and, subsequently, a sub-committee
28 Frederic Eisemann, "The Court of Arbitration: Outline of Its Changes from

ICC (ed. ), 60 Years on Look at the Future,
Inception to the Present Day", in: -A
ICC Publication No. 412 (Paris: ICC Publishing 1984), 391,395 ("A Look at the
Future").
29 Id.
30 See Chapter I, infra note 52 and accompanying text.
31 See Chapter I, infra Parts 2.1 and 2.2.
32 See infra Chapter III, Part 1.
33 "Introduction", ICC Brochure No. 13,3 (1920).
6ý
34
Having studied various rules, the sub-committee proposed a set of
conciliation and arbitration rules, which were originally prepared by

Owen D. Young. 35 Article 10 of the proposed arbitration rules dealt with
provisional measures. 36 This Article inspired from the 1915 Plan. 37

was
After lengthy discussions, the arbitration rules38 were adopted with
minor amendments in 1922.39 These rules became the ICC Arbitration

Rules 1923.
Since 1923, the regulation under the ICC Arbitration Rules in their
several revisions almost always contained a provision on provisional

measures. To this end, it seems that, until the 1940s, the ICC
Arbitration Rules was pioneering in international plane. Since then,
several arbitration rules, following the ICC example, provided for interim
protection of rights.
This Part examines the approach of the ICC Arbitration Rules from their
initial inception and of various other international (institutional and ad
hoc) arbitration rules to the issue of provisional measures.
34 These rules were the Arbitration Rules of the International Cotton Federation
(1911), the Arbitration Rules of the Publisher's Congress (1912), the results of the
inquiry conducted by the Berlin Chamber of Commerce, the rules proposed by the
New York Chamber of Commerce, and the Arbitration Rules attached to the 1915
Plan. See Pozzi, 6,14.
35 "Proposed Plan For Conciliation and Arbitration Between Traders of Different
Countries", ICC Brochure No. 13,23 (1920) (the "Proposed Plan"). Owen D.
Young was the chairman of the committee on commercial arbitration of the
Chamber of Commerce of the U. S.
36 This Article provides:
In all cases the arbitrators, at the request of either or both of the interested
parties, shall have the right to make a provisional decision providing for such
measures of preservation as may be necessary, in so far as concerns the goods
in dispute.
Proposed Plan, 28
37 On Article XII of the 1915 Plan, see Chapter I, supra Part 1.1.1. It was no surprise
that the 1915 Plan was affected the drafting of the rules as Young who prepared
the draft was the chairman of the committee on commercial arbitration of the
Chamber of Commerce of the U. S.
38 These rules and the opinions of its author published in the ICC Digest No. 3. See
George L. Ridgeway, Merchants of Piece - The History of the International
Chamber of Commerce (Boston/Toronto 1959), 324.
63
1.2.1 ICC Arbitration Rules 1923,1927,1931, and 1939
With the exception of the 1927 Rules, the 1923,1931, and 1939 ICC
Arbitration Rules dealt with the issue of interim protection of rights.
This is an apparent reflection of the importance given to the issue
under
the rules. Article XXXIX, Section C of the Arbitration Rules 1923
provided:
In all cases, the arbitrators, at the request of either of the
interested parties, shall have the right to render a provisional
decision, providing for such measures of preservation as may be
indispensable and, when strictly necessary, disposing of the
merchandise or objects in dispute; it being, however, understood
and agreed that any such decision of the arbitrators shall not carry
it
with any personal responsibility on the part of such arbitrators. ao
Perhaps, due to a trouble caused by the exercise of the tribunal's
power or by the enforcement against a recalcitrant party of a provisional

decision, a provision on interim protection of rights was removed from
the ICC Arbitration Rules in 1927. However, a rule on interim protection
was re-appeared in the 1931 amendments to the Rules. Article 11 of
the ICC Arbitration Rules 1931, which was lengthier than Article XXXIX
of the previous Rules provided:
When the parties are bound by the arbitration clause of the
International Chamber of Commerce, in urgent cases at the
request of the parties or of one of them, the President of the Court
of Arbitration at any time before the arbitrator has entered upon
his duties, and the arbitrator himself after he has entered upon his
duties, shall have power to appoint an expert41 and if necessary
39 Id.
40 Rules of the Court of Arbitration of the International Chamber of Commerce, Court
of Arbitration Acceptance of Warrant 41 (19 January 1923). It is noteworthy that
the Drafting Committee of the Rules further requested that "the [[CC] Headquarters
[should] take into account the practice of arbitration, where necessary, the rights of
owners of trade marks of the goods in dispute, when the arbitrators according to
Article XXXIX might dispose of these goods. " See "Explanatory Commentary of
the Rules of Conciliation (Good Offices) and Arbitration", Appendix to ICC
Brochure No. 21,4 (1923).
41 It is not clear why power as regards interim protection was entrusted to an expert.
The drafters of the Rules probably thought that the handling of provisional measure
applications was necessitated a special experience. In respect of a possible
64
several experts to make statements of facts, adopt all
conservatory measures and if necessary to sell, after having
stated the facts, the goods in dispute for the account of their lawful
owner and in the form prescribed by local laws.
The expert appointed shall present to the Court of Arbitration or to

the arbitrator a detailed report on the accomplishment of his
mission.42
In 1939, Article 11 was amended so as to:

(1) modify the title as follows: "Provisional or Conservatory
Measures".
(2) in the first paragraph, substitute for the words "conservatory
measures" the words "provisional or conservatory measures".
(3) at the end of the article add: "and shall if necessary pay over
the proceeds of sale to the International Chamber of Commerce
(whose Secretary General shall have power to give a good receipt
for the same) to be held for disposal in accordance with the
Arbitration Award".43
A third paragraph was also added that Article:

"Before or in the course of the proceedings anyone or more of the
parties can, if they deem this preferable, apply to any competent
judicial authority for provisional or conservatory measures, without
this thereby violating the arbitration clause by which they are
bound. Notice of such an application shall be given forthwith to
the Court of Arbitration".44
negative effect of granting interim measures through an expert, the revision

committee stated:
This article [11] meets certain fears expressed in this connection; it had been
felt that it would be difficult to set a limit to the measures to be taken by the
expert as and when necessary and that such measures might prejudice the
subsequent arbitration procedure. ... Further, the mission of the expert has
been confined and limited as closely as possible, so that it ought now to be
impossible for any action to be taken by the expert to have any undue influence
on the subsequent arbitration or on the jurisdiction of the arbitrator.
Robert, 302.
42 "Resolution No. 14 Commercial Arbitration Amendments to the Rules of
- -
Conciliation and Arbitration of the International Chamber of Commerce", ICC
Brochure No. 77,28 (1931). Article 11 was entitled as "conservatory measures."
43 "Resolution 14 Amendments to the Rules of Conciliation and Arbitration of the
-
International Chamber of Commerce", /CC Brochure No. 100,13 (1939).
44 Id. According to Bagge, the amendment
aims at
confirming a right that already exists but about which there has been some
uncertainty, viz., that parties bound by an arbitration clause can, without
foregoing the benefit of the clause, apply to the courts for conservatory
65
Within twenty-five years from the 1915 Plan, two main issues
were
established, there was a commercial need for interim protection of
rights45 and such protection could be sought from arbitrators. Also, the
express acceptance of the court's role represented a remarkable step
and influenced most of today's arbitration rules and laws. The
acceptance recognised certain shortcomings of arbitral jurisdiction (e.g.
arbitrators' lack of coercive powers) and more importantly constituted
reflection of the negative approach of legislatures and courts to such
jurisdiction. 46
1.2.2 Further Developments in the 1940s and Onwards
Institutional arbitration rules were generally silent in regard of interim
measures of protection in the midst of the twentieth century 47 For

.
example, in 1958, only twenty of 127 arbitration rules (including rules of
all major arbitral institutions) surveyed dealt with interim measures of
protection. 48 Thirteen of those rules expressly empowered arbitral
tribunals to take interim measures whereas seven of the rules referred
measures such as attachment or distraint the application of which is reserved to

the national judicial authorities.
Algot Bagge, "Amendments to the ICC's Rules of Conciliation and Arbitration",
World Trade 47 (August 1939).
as These measures were initially referred to as "measures of preservation" or
"conservatory measures. " The aim was to protect the merchandise or object in
dispute. That was because their initial concern was the sale of goods transactions.
Indeed, the examples to such measures, e. g., sale of goods confirm that analysis.
However, the 1939 amendments made a reference to "provisional and
conservatory measures. " The aim was to enlarge the scope of the provision on
interim protection of rights (regardless of how a measure is referred to under the
applicable local law) in order to suit the provision for any type of transaction (in
addition to sale of goods transactions). See Bagge, 47.
46 On such approach, see Chapter I, infra Part 2.1.
47 But see, for instance, Article 24 of the (then) Arbitration Rules 1948 of the London
Court of Arbitration. This Article provided:
The arbitrator, arbitrators or umpire shall have power to make such order as he
or they may think fit for the interim protection, warehousing, sale or disposal of
the subject matter of arbitration. When the subject matter of the arbitration is
sold in accordance with this Rule the price received shall be paid forthwith into a
separate banking account in the name of the London Chamber of Commerce
pending the result of the arbitration.
66
parties to courts for such measures. 49 What can be inferred from this
statement is that the power of arbitrators to grant provisional measures
was not widely recognised in the 1940s. Such little recognition is
tenable. Once such powers were adopted under arbitration rules in a
period between 1919 and 1940, the reaction of that adoption of national
legislatures and courts was generally excessively reluctant due to the
mistrust towards arbitrators and arbitration. 5° The reason for such

mistrust was historical.In addition, interim measures were thought to
be within exclusive jurisdiction of courts. 51 The reason for the
exclusivity was both historical and political. Further, perhaps most

importantly, business environment was changed following the Second
World War. The trends restricting free movement of goods and
business were adopted. 52
Due to the above mistrust and exclusivity, the competence of an arbitral

tribunal to grant provisional measures had a set back commencing, in
international plane, with the ILA Arbitration Rules 1950 (the
"Copenhagen Rules"). These Rules refrained from dealing with arbitral
powers. This approach affected many arbitration rules and its effect
lasted until the 1990s. The 1960s witnessed revival of that power in
48 UN Doc Trade/WP. 1/15/Rev. 1,57.

49 Id.
50 See Chapter I, infra Part 2.2.
51 See Chapter I, infra Parts 2.1 and 2.2, and infra Chapter II, Part 3. It is noteworthy
that, in respect of security for costs, the attitude of the rules was different. The
majority of those (102 in precise) 127 arbitration rules contained a "provision either
for security for the costs of arbitration, or for the payment prior to the hearing of the
fees, or part of the fees, payable to the arbitral institution. " See Peter Benjamin,
New Arbitration Rules for Use in International Trade in: Pieter Sanders (ed. ),
International Commercial Arbitration (Paris: Dalloz 1958), v. 1,323,377
("International Commercial Arbitration I"). In some cases, the security could be
granted for both costs and arbitral fees. Some of the rules, in addition, provided
for security for claim provided either by the claimant or both of the parties. Id.,
377-378.
52 See, generally, Jones, 46-52; and Loukas Mistelis, "Is Harmonisation a Necessary
Evil? The Future of Harmonisation and New Sources of International Trade Law"
in: Ian Flecther / Loukas Mistelis / Marise Cremona (eds. ), Foundations and
67
international level due to the recognition
of the power's importance.
The UNECE Arbitration Rules 1966,
and the UNECAFE Arbitration
Rules 1966 initiated the revival.
The mistrust and exclusivity naturally

affected approach of arbitration
rules to the power of judicial authorities to grant provisional measures
and the effect of such power on the arbitration agreement. The rules
generally indicated that a request to a court for those measures is
neither a waiver nor an infringement of that agreement. The concurrent
jurisdiction of arbitrators and of courts for the grant of arbitral
provisional measures was expressly adopted again under the UNECE
Arbitration Rules. 53 The ICC Arbitration Rules 1975
with its 1988
amendments followed this approach.
This Part deals with how the approach to interim measures evolved
from the midst towards the final quarter of the last century. For this
purpose, the following rules are examined: the AAA Commercial

Arbitration Rules from 1944 to 1997, the ILA Rules on Commercial
Arbitration 1950, the ICC Arbitration Rules from 1955 to 1988, the
UNECE Arbitration Rules 1966, and the UNECAFE Arbitration Rules
1966.
1.2.2.1 AAA Commercial Arbitration Rules (1944 to 1997)
The AAA's first commercial arbitration rules were adopted in 1926.5a

The 1944 rules contained a provision dealing with arbitral provisional
measures and not with court assistance. This provision lasted until the
Perspectives of International Trade Law (London: Sweet & Maxwell 2001), para. 1-
002 ("Harmonisation").
53 The adoption of the concurrent jurisdiction arose from the reading the Rules along
with the European Convention. On this Convention, see Chapter I, infra Part. 2.2.
54 These rules were generally applicable to both national and international cases.
68
1997 with slight revisions in due course of time. 55 Article 35 the 1944
of
rules stated in its original version:
The Arbitrator, with the consent of the parties,
may issue such
interim orders as may be deemed necessary to
safeguard the
subject matter of the arbitration without prejudice to the rights of
the parties or to the final determination of the dispute. 56
1.2.2.2 Copenhagen Rules
The Copenhagen Rules reflected the negative attitude of national

legislatures towards arbitral power to grant provisional measures. 57
These Rules constituted an initiation of a shift under arbitration rules
towards accepting exclusive power of courts in handling provisional
measures. 58 Indeed, in accordance with Rule 1(2), the parties
reserve the right to apply to the courts in the manner prescribed

by local law, for protective or urgent measures such as inquiries,
or investigations by or before experts, which do not pre-judge the
issue [in dispute].
Rule 1(1) dealt with the interrelation between the merits of the case and
a provisional measure request. It provided that parties to arbitration

undertook not to apply to a court for the determination of dispute
(substance) in question. In other words, the request was separated
55
The 1997 version of the rules and the 1991 version of the International Arbitration
Rules along with their recent amendments closely follow Article 26 of the
UNCITRAL Arbitration Rules.
56
Article 35. In 1945, the term "interim" dropped from the text. Reflecting the
attitude of those days, Article 35 aimed to preserve property in question. That is
because international arbitration, in those days, concerned with sale of goods
agreements. This is conceivable as most of the transactions and disputes were, in
fact, related to sale of goods. For instance, between 1972 and 1974, total number
of international cases administered by the AAA was 104 and 43 percent of those
cases was related to sales contracts. Howard M. Holtzmann, A Guide to
International Arbitration Under the Rules of the American Arbitration Association
(New York, 1975), 8 (unpublished). Indeed, Article 26 of the UNCITRAL Arbitration
Rules, which was adopted in 1976, too makes specific reference to sale of goods
agreements. The scope of provisions on provisional measures was widened in
Article 17 of the Model Law in 1985. In confirmation with this development, the title
of the AAA rules amended from "conservation of property" to "interim measures" in
1988.
57
See Chapter I, infra Parts 2.1 and 2.2.
69
from and should not affect the scope of
arbitral domain in respect of the
merits.
1.2.2.3 ICC Arbitration Rules (1955 to 1988)
There was a dramatic change on the handling the

power of an arbitral
tribunal to grant provisional measures in the 1950s
under the ICC
Arbitration Rules. The ICC Arbitration Rules 1955
pursued the shift
towards recognition of courts' exclusive jurisdiction for the
grant of
provisional measures as set forth under the Copenhagen Rules.
Indeed, until 1998, the Rules refrained from expressly granting
arbitrators the power to issue provisional measures. 59
The ICC Arbitration Rules 1955, unlike their predecessors, did not
expressly confer upon an arbitral tribunal the power to grant provisional

measures. 60 The Rules dealt with the effect of the court intervention for
providing interim protection on the agreement to arbitrate. Article 13(5)
of the Rules provided:
The parties may, in case of urgency, whether prior to or during the
proceedings before the arbitrator, apply to any competent judicial
authority for interim measures of protection, without thereby
contravening the arbitration clause binding them. Any such
application, and any measures taken by the judicial authority shall
be brought without delay to the notice of the Court of Arbitration
or, when necessary, of the arbitrator.
It is noteworthy that a request to a court was optional under the ICC

Arbitration Rules 1939 whereas the ICC Arbitration Rules 1955 aimed
58 This shift did not affect the approach to the arbitral powers under the AAA
Arbitration Rules but had direct influence on the ICC Arbitration Rules. See
Chapter I, infra Part 1.2.2.3.
59 The ICC Arbitration Rules 1998 give such powers to arbitrators. On the detailed
examination of these Rules, see infra Chapter IV.
60 Indeed, as compared to the ICC Arbitration Rules 1939, the express power of the
tribunal to grant provisional measures was completely dropped off because "[t]he
conservatory measures and similar actions ... gave rise to more problems. "
Eisemann, 395.
70
to introduce an important limitation a request to a
court is permitted
where there is urgency.
Article 13(5) of the ICC Arbitration Rules 1955

was, whilst mainly
containing the basic theme, slightly amended in Article 8(5) of the ICC
Arbitration Rules 1975.61 In the 1988 amendments to this last Rules,
Article 8(5) was restated as:
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 so doing be held to
infringe the agreement to arbitrate or to affect the relevant
powers
reserved to the arbitrator.
Any such application and any measures taken by the judicial

authority must be notified without delay to the Secretariat of the
Court of Arbitration. The Secretariat shall inform the arbitrator
thereof.
Article 8(5) brought two important changes. It made a very important

reservation as to the need of courts' assistance. It initially differentiated
between two stages of arbitration proceedings. Although the Rules
made no reservation for the stage prior to transmittal of a file to
arbitrators, they indicated that, after the transmittal of the file, a right to
apply to a judicial authority should be exercised "in exceptional
circumstances. " This restriction served to limit a request for provisional
measures to a court in case where the tribunal was appointed. 62
However, Article 8(5) was fallen short of express recognition of arbitral
power to issue those measures. 63
61 The text of these Rules reprinted in I YCA 157-166 (1976).

62 This restriction seems to be a reflection of the view of complete autonomy of
arbitration from court intervention.
63 This Article recognises the relevant powers reserved to the arbitrator. The
intention was "neither to mandate nor [to] exclude" the issuance of interim
measures by arbitrators. Schwartz, Provisional Measures, 46. In arbitral practice,
arbitrators were generally found themselves empowered to grant those measures
basing generally on the language of Article 8(5). See, e. g., Ali Yesilirmak, "Interim
and Conservatory Measures in ICC Arbitral Practice", 11(1) ICC Intl Ct Arb Bull 31,
71
1.2.2.4 UNECE Arbitration Rules 1966
The tide towards arbitral powers to

grant provisional measures turned
again with the introduction of the UNECE Arbitration Rules. These
Rules again re-recognised the commercial
need for interim protection
and perhaps influenced from the ICSID Convention, which
expressly
empowered an arbitrator to "recommend" a provisional measure. 64 The
Rules adopted to complement the European Convention,
which aimed
to promote East-West trade. The Rules did not
expressly deal with the
court assistance to arbitration. 65 Article 27 of the Rules provided: 66
Subject to any legal provision to the contrary, the
arbitrators are
authorized by the parties to take any measure of conservation of
the goods forming the subject matter in dispute, such as the
ordering of their deposit with a third party, the opening of a
banker's credit or the sale of perishable goods.
1.2.2.5 UNECAFE Arbitration Rules 1966
These Rules were adopted for mainly promoting arbitration in the

ECAFE region. 67 The Rules failed to address the judicial powers to
grant provisional measures but indicated, in recognition of the
32, note 13 and 14 (2000) ("Interim"). The change of attitude towards permission
of arbitral powers to grant provisional measures was undoubtedly affected by the
UNECE and UNECAFE Arbitration Rules. See Chapter I, infra Parts 1.2.2.4 and
1.2.2.5, respectively.
64
See Chapter I, infra Part 2.2.
65
That is because the Rules were adopted for mainly complementing the European
Convention, which contain a provision on the court assistance (Article VI(4)).
66
The Rules gave further power to an arbitrator to grant security for costs. Article 28
of the Rules stated that "[t]he arbitrators shall be entitled to require security for the
costs of the arbitration proceedings. " The arbitrators' power is restricted to costs of
arbitration but not to claim in dispute as that was the trend at the time of the Rules'
adoption. Benjamin in: Sanders, International Commercial Arbitration, 345. As to
which costs and their initial apportionment, Cohn states that only the costs of
arbitration excluding costs of a party are counted and that they should equally be
distributed as an initial measure between the parties should the tribunal decide to
require security for costs. E. J. Cohn, "The Rules of Arbitration of the United
Nations Economic Commission for Europe", 16 ICLQ 946,966-967 (1967).
67
See, generally, Pieter Sanders, "ECAFE Rules for International Commercial
Arbitration", in: Pieter Sanders (ed. ) International Arbitration Liber Amicorum for
Martin Domke (The Hague: Martinus Nijhoff 1967), 252.
72
importance of arbitral powers to
grant these measures, in Article VI(6)
of the Rules: 68
The arbitrator/s shall be entitled to take

any interim measure of
protection which he/they deems/deem necessary in respect
of
the subject matter of the dispute.
2 International and National Legislations and Court Decisions

For a period between late 19th and early 20th
century, arbitration awards
were generally only morally binding; there were no legal sanctions
under most national Iaws69 against non-compliance of arbitrators'
decisions. When business persons commenced to recognise
arbitration as a favourable dispute resolution mechanism alongside
litigation, resistance from judiciary including lawyers was emerged.
Courts, for example, at a time, did not accept the idea of their
jurisdiction being ousted by private agreements in England 70
Nussbaum explained the negative attitude towards arbitration:
To a certain degree this unfavourable attitude may be ascribed to
a subconscious jealousy of arbitration, which may be competing
with the courts; but the actual basis of the opposition to arbitration
should be sought elsewhere. It will be admitted that the increase
of arbitration [practice] might endanger state jurisdiction and the
high ideals of impartial justice, if legislative and juridical measures
for the remedy of abuses were not provided. "
68 Article VI(7) provided that "[t]he arbitrator/s shall be entitled to fees and shall be
entitled to require security for the costs of the arbitration proceeding and his/their
fees. "
69 A notable exception is the English Act for Amending and Consolidating the
Enactments Relating to Arbitration 1889 (the "EAA 1889"). See Section 12.
70 See, e. g., Thompson v. Charnock (1799) 8 Term Reports 139-140; and Scott v.
Avery [1843-1860] All ER 5. But see Derek Roebuck, The Myth of Judicial
Jealousy", 10(4) Arb Intl 395-406 (1994) (arguing that there was no evidence of
judicial antipathy towards arbitration before the 18"Century. ).
Arthur Nussbaum, "Introduction", in: Nussbaum (ed. ), xi ("Introduction"). See also
Arthur Nussbaum, "Problems of International Arbitration" in: Nussbaum (ed. ), 1,5
("Problems"); Wesley A. Sturges, "Commercial Arbitration in the United States of
America" in: Nussbaum (ed. ), 165,169-171. The negative attitude partly owed to
the chaos erupted in France due to the law under which all disputes were subject
to arbitration in 1790. On this chaos, see mainly Jean-Louis Devolve, "The
Fundamental Right to Arbitration", in, Hunter / Marriot / Veeder (eds. ), 141,142.
73
A further reason for national legislatures
and courts' negative attitude
towards arbitration was related to
an inherent problem of arbitration,
namely, arbitrators' lack of power to coerce
compliance with their
decision. 72
Following the enactment of some legislative

remedies against possible
abuses of ousting courts' jurisdiction through arbitration agreement'73 it
was again in England where the negative attitude towards arbitration
initially relaxed in the 19th century Several American States followed
this trend soon afterwards. 74
Once courts recognised and enforced arbitration agreements

and
awards, 75 there were further issues to overcome for improving the
quality of arbitral justice. Dealing with such issues was also important
for the success of international arbitration and, thus of international
commerce. In the 1920s, a very important concept, which

complemented the recognition and enforcement of arbitration
agreements, was emerged. The concept was court assistance to
arbitration. 76 The court assistance was initially available to arbitration in
respect of appointment and removal of an arbitrator and compelling
witnesses to attend. " The concept accepted by English and American
legislatures was also extended in time to grant of provisional remedies
in support of arbitration in those countries. This approach was,
however, not generally followed; laws of many countries were silent on
the concept. Similarly, many laws were silent on arbitral competence to
grant provisional measures. A small number of laws dealt with such
72 On the issue of arbitrators' lack of coercive powers, see infra Chapter II. part 4.1
and infra Chapter V, Parts 2 and 3.
73 See the AA 1889, section 4.
74 Nussbaum, Introduction, xi. See also Sturges, 169-171.
75 See, e. g., R. Sutton, "Arbitration in English Law" in: Nussbaum (ed. ), 52-60.
76 This concept was characterised as a positive effect of an arbitration agreement.
Nussbaum, Problems, 6.
Id.
,4
competence. Those laws were generally restrictive. The
silence and
the negative attitude had both historical and/or
political causes.
Since the 1920s, the process of acceptance

and recognition of the
concepts of court assistance to arbitration in regard of provisional
remedies and of arbitral competence to grant those remedies
(particularly the latter concept) was, under international
and national
legislations, very slow. For a long period of time, a certain degree of
mistrust towards arbitration was existed. In addition, courts considered

arbitrators as their rivals or competitors. 78 The worldwide acceptance of
the court assistance to arbitration and of the arbitral tribunals' power to
grant interim measures of protection begun in the 1980s.
The evolution of the concept of court assistance and of arbitral
competence to grant interim measures under international and national

legislations and court decisions will be studied by examining three
periods: the 1920-30s, 1950-60s, and 1980s.
2.1 1920-30s: Breaking of Judicial Mistrust Towards Arbitration -

Emergence of the Concepts of Court Assistance (Decrease in
Rivalry Towards Arbitration) and of Arbitral Power to Grant
Provisional Measures
Neither the Geneva Protocol nor the Geneva Convention did contain
provisional measures. 79 It seems that only a handful
any provision on
of national laws dealt with court assistance to arbitration and arbitrators'
power to issue provisional measures. The concept of court assistance
to arbitration in regard of provisional remedies emerged in the U.S
78 Indeed, it was the case in France until 1981 when the new French arbitration law
adopted. See, e. g., Pluyette, 72,74.
79 Apparently, interim measures were not considered one of the main issues of
arbitration in those days.
7S
The statutes of Illinois (1921), 80 Nevada (1925), 81 North Carolina
(1939), 82 Utah (1927), 83 Wyoming 84
(1931), and the U.S. AA 192185
permitted the grant of certain provisional remedies by a court where

substance of a dispute fell into arbitral domain. Out of those laws,
Section 12 of the Nevada Act is remarkable:
At any time before final determination of arbitration the court may
upon application of a party to the submission make such order or
decree or take such proceedings as it may deem necessary for
the preservation of the property or for preserving satisfaction of
the award.
A similar but more extensive provision was contained in the EAA

1934.86 Under the Act, where a dispute was to be arbitrated, a court
had power to make orders on security for costs, preservation, interim
custody or sale of any goods which were the subject-matter of

arbitration, security for amount in dispute, detention, preservation or
inspection of any property or thing which was the subject of arbitration,
and interim injunctions or appointment of a receiver. 87
However, most national arbitration laws did not deal with the issue of
courts' assistance in regard of provisional measures to arbitration. That

was because the availability of court assistance to arbitration as to
provisional measures was implicitly assumed. 88
80 Revised Statutes of the Illinois, chapter 10, sections 1-17.

81 Statutes of Nevada (1925), chapter 7.
82 North Carolina Code Annotated (Michie, 1939), section 898(1).
83 Utah Laws, chapter 62, section 12.
84 Wyoming Revise Statutes Annotated (1931), section 7-112.
85 United States Statutes at Large, v. 43. (68 th Cong. 1923-25), Chapter 213, section
8.
86 Section 8, which was re-enacted in Section 12(6) of the EAA 1950. Section 44 of
the EAA 1996 contains, in most respects, a similar provision. The EAA 1934 was
enacted verbatim in Northern Ireland (AA 1937, c. 8, Schedule II), and New
Zealand (AA 1938, Schedule I).
87 See Article 8 of the EAA 1934, and the First Schedule to the Act.
88 Bagge, 47.
76
i-
In respect of power of a tribunal to grant interim measures of protection,

laws were generally silent too in the 1920s. 89 Laws of, for instance,
only three countries (out of eleven90) dealt with the issue. The Dutch
law dictated compliance of all provisional orders of an arbitral tribunal91
whereas, under the German law, arbitrators were not authorised "to
issue temporary attachments or injunctions". 92 Like the German law,
the Greek law stated that arbitral tribunal was not authorised to issue a
provisional decision. 93 The silence and the negative attitude were
related to historical prejudice against arbitration. They were also
related to political reasons because no sovereign in those days would
even consider leaving the issue of interim measures to a private
person, an arbitrator. It was generally thought that those measures
would require the use of coercive powers, which were exclusively
reserved to the sovereign.
2.2 1950-60s: Even Less Rivalry but Residue of Mistrust
In 1956, when the problems of arbitration were discussed, the court

intervention and assistance to arbitration was highlighted. It was
thought that such intervention and assistance were necessary 94 This
.
was despite the fact that jurisdiction of courts was completely ousted by
an arbitration agreement in regard of the substance of a case in
question. 95 The necessity arose in cases where arbitrators lacked
jurisdiction in dealing with certain essential issues. One of the
examples given was collection of evidence including compelling

witnesses to take oath or appear. It was observed that assistance to
89 See generally Nussbaum (ed. ), 193-235.

90 The International Yearbook dealt with the arbitration laws of Germany, England,
France, Greece, Italy, the Netherlands, Austria, Palestine, Poland, Russia, and the
U. S. Id., 193-235.
91 See id., 212.
92 Id., 44.
93
Id., 50.
94 UN Doc Trade/WP1/12, para. 40.
95 Id.
77
arbitrators was essential and allowed by "nearly all legal systems". 96
This was based on the promise that "when the arbitrators need the help
of the courts they should be allowed to ask them to perform the acts
which they themselves cannot perform. ,97 The same concept and its
basis applied to interim and conservatory measures. 98 The theoretical
grounds of the concept of court assistance to arbitration were

explained:
In all these cases [where court involves in arbitration] the question
is no longer one of competition but of co-operation between the
two types of jurisdiction. There can therefore be no objection in
principle to this sort of intervention by the courts in arbitration
proceedings. It should be remembered, however, that intervention
by the courts may mean extra delay and expense. To safeguard
the reputation for rapidity and cheapness which is one of the most
important inducements to parties to decide to resort to
international commercial arbitration, requests for the intervention
of the courts might usefully be limited in the preliminary stages
and in the adoption of provisional and conservatory measures.
The extent to which that could be done would depend on the
extent of the powers granted to arbitrators in this respect by the
99
various national legal systems. (Emphasis added. )
Courts' assistance to arbitration was also recognised by the UNIDROIT

Draft Law on Arbitration in Respect of International Relations of Private
Law 1957.100 Article 5(2) of the Draft Law provides that "[t]he fact of
claiming in a court of justice interim measures of protection shall not

prevent an arbitration agreement from being relied on. " This Article
stated that a request to is

a court not a waiver of agreement to arbitrate;
the arbitral domain. 101
accordingly, substance of a case remains within
96 Id. See also UN Doc Trade/WP. 1 Add. 1, para. 11. It was indicated that interim
measures or measures of conservation could be obtained from a court under all
European legal systems even though the substantive issues fell into jurisdiction of
an arbitral tribunal. UN Doc Trade/WP. 1/29, para. 53.
97 UN Doc Trade/WPl/12, para. 40.
98 Id., para. 41.
99
Id., para. 42.
100 Reprinted in (1957) UNIDROIT Yearbook 135.
101 The Draft Law, in this respect, followed the approach initially set forth in the ICC
Arbitration Rules 1939. See Chapter I, supra Part 1.2.1.
78
The New York Convention does not expressly deal with interim
measures. 102 However, the European Convention'03 took a similar view

to the UNIDROIT Draft Law. The Convention itself did not expressly
deal with the arbitral competence to grant provisional measures but
there is no prohibition in this respect. 104 Article VI(4) of the Convention
provides:
A request for interim measures or measures of conservation
addressed to a judicial authority shall not be deemed
incompatible with the arbitration agreement, or regarded as a
submission of the case to the court.
Further, it is considered that the Convention permits court assistance to
arbitration taking place in a country foreign to the place where the

assistance is sought. 105
102 But see infra Chapter II, Part 4.2.

103 This Convention was adopted to satisfy a need to overcome certain problems in
East-West trade in Europe for using arbitration as a dispute settlement
mechanism. Para. 4 of the Preamble of the Convention. On the convention, see
generally Pierre Jean Pointet, The Geneva Convention on International
Commercial Arbitration in: Pieter Sanders (ed. ) International Commercial
Arbitration -A World Handbook (La Haye: Martinas Niihoff 1965), v. 111,263
("International Commercial Arbitration III"); P. I. Benjamin, "The European
Convention on International Commercial Arbitration", 37 BYIL 478 (1961); and
Dominique T. Hascher, "European Convention on International Commercial
Arbitration of 1961", XVII YCA 711 (1992) ("European Convention"). The
Convention convened under the auspices of the Economic Committee for Europe
of the United Nations. See para. 2 of the Preamble to the Convention. Although
the Convention named European and signed and ratified by mainly European
Countries, the accession to the Convention is open to any country, which is a
member of the United Nations. See, mainly, Hascher, 711. In fact, the UNECE
Rules adopted to complement the Convention, which provides for that power. See
Chapter I, supra Part 1.2.2.4.
104 Hascher, European Convention, 735. Recent amendment work on the Convention
initially highlighted the importance of the above Article and suggested for
enlargement of it. See UN Doc Trade/WP. 5/2000/8/Add. 1, para. 31. However, the
work later focused on various other issues for improving effectiveness of the
Convention. See UN Doc Trade/WP. 5/2000/linformal/1.
105 It was observed that, at the time of drafting the Convention, in "practically" all
European countries, arbitrations treated in the same way regardless of being held
in a country in question or elsewhere. See UN Doc Trade/WP. 1/29,17-19.
79
Historically, the ICSID Convention followed the European Convention.
Article 47 of the ICSID Convention provides that, unless
otherwise
agreed, arbitrators can recommend106 any measure aim to preserve
parties' rights. 107 The Convention does not contain any express
provision on the issue of court assistance but excludes any remedy
other than ICSID arbitration itself in accordance with Article 26 of the
Convention. It is, however, considered that Article 26 is, due to
self-
contained system created by the ICSID Convention and Arbitration
Rules, excluded any court assistance. 108
The European Convention Providing a Uniform Law on Arbitration 1966
closely followed the European Convention in regard of interim

protection of rights. 109 Article 4(2) of the Convention states that "[a]n
application to the judicial authority for preservation or interim measures
shall not be incompatible with an arbitration agreement and shall not
imply a renunciation of the agreement. "
Within the 1950-60s, national arbitration laws were often silent on the
court assistance and arbitral powers to grant provisional measures. "o
106 It is recalled that the form of a measure

was indicated as "proposal" under the
1922 Plan, although the preparatory materials on the ICSID Convention made no
reference to the Plan.
107 See also Rule 47 of the Arbitration Rules. On arbitral provisional
measures in
ICSID arbitration, see generally infra Chapter IV.
108 On this issue, see infra Chapter II, Part 2.
109 European TS, No. 56 (1966).
110 Indeed, the 1960s also witnessed a doctrinal argument that, mainly, arbitration
should be detached from restraints and controls of laws of place of arbitration.
See, generally, Berger, International, 40-89; Redfern / Hunter, paras. 2-16-2-19;
Jan Paulsson, "Arbitration Unbound: Award detached from the Law of Its Country
of Origin", 30 ICLQ 358 (1981); and Jan Paulsson, "Delocalization of International
Commercial Arbitration", 32 ICLQ 53 (1983). Under this doctrine, courts played the
role of control at the stage of enforcement. The doctrine, although contributed
freeing from national restraints over international commercial arbitration, seems to
be ended up with failure of recognition. See, e. g., Redfern / Hunter, para. 2-17. It
should, however, be noted that even some of the proponents of that doctrine
accepted court assistance to arbitration during arbitral proceedings. See Goldman,
275-282. The approach of both the ICC and the LCIA Arbitration Rules seemed to
support, at least partially, the detachment doctrine for a period of time. Article 8 of
80
The court assistance to arbitration was generally assumed for the grant
of provisional measures. The Swiss Intercantonal Arbitration
Convention 1969 (the "Concordat") is an example on how provisional
measures are regulated within that period. Article 26 of the Concordat
initially sets the rule: "judicial authorities alone have jurisdiction to make
provisional orders." It then uniquely states that "the parties may
voluntarily submit to provisional orders proposed by the arbitral
tribunal". Although the approach of Article 26 towards interim
protection of rights was very liberal for the late 1960s when it was
enacted, it fell short of giving full powers to arbitral tribunals to issue
interim measures of protection. However, they could "propose," "offer,"
or "recommend" provisional measures. The Concordat's approach to
provisional measures contains a residue of mistrust towards arbitration.
This approach reflects the perspective of many national laws. It also
reflects the legislatures' reaction to power given to arbitrators for the
grant of provisional measures during the process of enactment of many
arbitration laws and the era of decolonisation and nationalisationof
legal systems.
2.3 1980s: The Tide Began to Turn - Trust to Integrity of

Arbitrators and Arbitration
This period marked the change of approach towards arbitration. It was

observed, for example that until the enactment of the new French
arbitration law in 1981, arbitration was considered a rival competitor to
the ICC Arbitration Rules 1975 provided that courts' assistance would be sought
under exceptional circumstances. See Chapter I, supra Part 1.2.2.3. Similarly, the
LCIA Arbitration Rules 1985 kept power to grant certain interim remedies solely
within the arbitral jurisdiction. Articles 13. The text of the Rules reprinted in X YCA
157,162 (1985). Article 13 seems to aim at "eliminating a potential means for
obstructing progress in arbitration." See J. Martin H. Hunter / Jan Paulsson, "A
Commentary on the 1985 Rules of the London Court of International Arbitration", X
YCA 167,170 (1985). However, the approach of both Rules to provisional
measures was changed due to the recognition of the need for court assistance for
efficiency of arbitration. See infra Chapter II, Part 4.4.
Mistelis, Harmonisation, para. 1-002.
81
courts in France. ' 12 However, importance
growing and practice of
international commercial arbitration and the effect of trustworthiness or
integrity that arbitration and arbitrators gained over 65 years of
arbitration practice caused the change of perception of arbitration as a
rival dispute resolution mechanism to judiciary. In fact, this is the
period when arbitrators' powers to grant provisional measures
commenced to have wide recognition. McDonnell examined in a
comparative study the availability of provisional measures within the
1980s. 13 According to his study, twelve out of twenty-six jurisdictions
surveyed provided for concurrent jurisdiction to judicial authorities and

arbitral tribunals. Thirteen of those contained exclusive powers to
114 One jurisdiction's
courts, approach could be interpreted as providing
for exclusive jurisdiction to arbitrators. ' 15
The allocation of the power under concurrent jurisdiction approach was,
according to McDonell, generally related to types of measures, ' 16 and
112 See, e. g., Pluyette, 74.

113 Neil E. McDonell, "The Availability of Provisional Relief in International Commercial
Arbitration", 22 Colum J Tran's L 272 (1984). For another publication that sheds
light to laws of seventeen jurisdictions in a slightly later period, see David W.
Shenton / Wolfgang Kuhn (eds. ), Interim Court Remedies in Support of Arbitration
(International Bar Association 1987). It was noted in 1991 that the source and
scope of arbitral powers were described as evolving "ill-defined area of the law".
Higgins, 1521.
114 These jurisdictions were Australia, Austria, Czechoslovakia, Denmark, Finland,
Greece, the Federal Republic of Germany, Italy, Rumania, Sweden, Switzerland,
and Yugoslavia. McDonnell, 277-78. In these jurisdictions, an application to a
court for interim measures was not considered as circumvention of agreement to
arbitrate. The substance of a dispute would remain within the arbitral domain.
See, for example, Sergei N. Lebedev, Handbook on Foreign Trade Arbitration in
CMEA Countries (Moscow 1983), 66.
115 That jurisdiction was the U. S. See McDonnell, 278-80. On this issue, see also
infra Chapter II, Part 4.2.
116 Only courts could order coercive measures whereas both courts and arbitral
tribunals could grant non-coercive measures. The jurisdictions opting for the
concurrent jurisdiction approach were Algeria, Belgium, Indonesia, Mexico, the
Netherlands, the United Kingdom, Syria, and Zurich (Switzerland). McDonnell,
275. On the coercive/non coercive measure distinction, see id., 276.
82
L
timing of a request for a measure' 17 Alternatively, in certain

.
jurisdictions, parties were free to make their applications any time to
any forum. ' 18
Nearly, the half of the jurisdictions surveyed by McDonnell empowered
arbitrators to grant provisional measures. The increase in the number

of jurisdictions recognising and remedying the commercial need for
arbitral powers for the issuance of such measures and court assistance
to arbitration reflects that the tide was begun to turn. The legislatures
and courts entrusted to the integrity of arbitration and arbitrators. The
political will to leave interim protection of rights within the domain of
judiciary was creepingly faded away. The historical rivalry between
arbitration and courts was begun to pave the way for cooperation for
better distribution of justice. This transformation of the role of courts
and arbitrators owed much to the re-boom of international business and

trade in the 1980s.
Conclusion
Interim protection of adjudicating parties' rights has a long history.

Roman law, for instance, provided for such protection. 119 In
international plane, the idea of interim protection found its place in
international treaties in the beginning of the last century. 120 This idea
in 121 Indeed, within the same period, the
mirrored arbitration rules.
availability of interim protection of merchandise or rights was
considered a commercial necessity, whilst modern international
commercial arbitration rules were in the process of creation. The
recognition of the need was related to the satisfaction of expectations,
117 Prior to formation of an arbitral tribunal, a measure could be ordered by a court

thereafter the tribunal has exclusive jurisdiction. This approach was taken mainly
by Luxembourg and Portugal and a part of the United States. See id., 276-77.
118 The Federal Republic of Nigeria, France, and Israel. Id., 277.
119 See Chapter I, supra note 1 and accompanying text.
120 See Chapter I, supra note 4 and accompanying text.
83
m
namely, interim protection of the rights of all users of arbitration at a

time when the volume of international commercial transactions and
business interactions were increased immensely in the first quarter of
the 20th Century. 122 A provision on interim protection was found its
place in the 1915 Plan aimed to resolve disputes between American

and Argentinean business persons. 123 A special committee was
established under the arbitration rules attached to such Plan. This
committee was empowered to deal with, inter alia, a request for a
provisional measure. The 1915 Plan constitutes the basis for interim
protection of rights in arbitration.
The dispute resolution system created by the 1915 Plan evolved,
recognising the commercial need, into two distinct systems. Some

rules empowered a head or a special committee itself or along with
arbitrators to grant a provisional measure. 124 The aim was to create a
system under which a request for a measure could, at any time,
(without the need of elapse of time) be considered and, if appropriate,
be remedied. This system recognised an inherent problem with
arbitrators' jurisdiction that prior to their appointment, arbitrators could

not issue any provisional measure. The system was, indeed, the initial
response of the drafters of arbitration rules to the lack of availability of

provisional measures from a party-determined authority at the pre-
formation stage. Other arbitration rules, along with the above power or
tribunal to issue 125
solely, empowered an arbitral a provisional measure.
The reaction of national legislatures and courts to empowering an
arbitral tribunal to grant a provisional measure was, except for a couple
121 See Chapter I, supra Part 1.

122 See Chapter I, supra Part 1.1.
123 See Chapter I, supra Part 1.1.1.
124 See Chapter I, supra Parts 1.1.2 and 1.1.3.
125 See Chapter I, supra Parts 1.1 and 1.2.
84
of national laws, excessively reluctant. 126 This reaction was mainly
related to the historical prejudice towards arbitration. This prejudice
found its roots in the perception by judiciary that arbitrators were their
rivals. The prejudice was also related to the fact that the increase in
arbitration practice (and decrease in judicial remedies) might endanger
state jurisdiction and high ideals of impartial justice. Further, the
reaction was related to another inherent problem with arbitrators'
jurisdiction; namely, arbitrators' lack of powers to coerce the
compliance with their decision.
Due to the above reaction, the drafters of arbitration rules dropped from
the contents of arbitral powers to grant provisional measures within the
midst of the 20th Century. 127 Further, since the adoption of the ICC
Arbitration Rules 1939, both arbitration rules and laws generally
accepted that a request to a court for such measures was neither

incompatible with nor violation of the arbitration agreement. 128
It did not take too long for the arbitration rules to re-consider their
position. Indeed, it was the UNECE Arbitration Rules that initially re-
discovered the need for interim protection of rights by arbitrators. 129
National laws too recognised such need in the 1980s. 13° Such
recognition much owed to the re-boom of international commerce and

business. The commercial need changed the political will by
overcoming the historical prejudice. Thus, the negative attitude of
national legislatures creepingly faded away. Many national laws, within

the last quarter of the 20th Century, expressly adopted the concept of
jurisdiction of courts. 131 In this period of
concurrent of arbitrators and
126 See Chapter 1, supra Part 2.1.

128 See Chapter I, supra Parts 1.2,2.2, and 2.3.
129 See Chapter I, supra Part 1.2.2.4.
131 Id.
85
time, courts' involvement into arbitration was regarded of co-operative
but not of competitive nature.132
The approach taken in the 1980s towards the issues of arbitral powers
and of the court's role concerning interim protection of rights constitutes
the basis for the approach taken today in respect of those issues by
arbitration conventions, laws, rules, and commentators.
132 Id.
86
CHAPTER II
FORUM TO SEEK PROVISIONAL MEASURES
There are traditionally two main fora to seek

provisional measures:
arbitral tribunals and courts. Contracting parties may also determine,
by agreement, some other authorities (e. g. emergency
arbitrators, pre-
arbitral referees or indeed arbitration institutions) to remedy provisional
'
measure requests. Provisional measures may be available and sought
from any one or, in some cases, all of those fora at the same time.
It is widely accepted today that an arbitrator is the "natural judge" for

interim measures of protection where there is an agreement to arbitrate
for a final remedy. 2 There are many reasons supporting this view. 3
Perhaps the most important of those reasons is the principle of party
autonomy: the agreement to arbitrate or refer a dispute to a party-

determined authority. This principle should be respected for both final
and provisional remedies. The ICSID Convention, for example, accepts
this view. The Convention envisages for the exclusion of, unless
otherwise agreed, all local remedies, including interim ones.
See, generally, infra Chapter III.

2 See, e. g., Kessedjian, Court Decisions, 7; Redfern, Arbitration and the Courts, 86;
Julian D. M. Lew, "LCIA New Arbitration Rules 1998 - Jurisdiction, Interim Relief
and Award", Kings College Conference (5 June 1998), 4 (unpublished) (indicating
that "[t]here is an increasing view that if parties have chosen arbitration as the
forum for settlement of their disputes, the arbitrators should also be the first source
of interim relief. ") ("Jurisdiction"); and Lew / Mistelis / Kröll, para. 23-14 (stating that
"[i]t is now widely recognised that the arbitration tribunal will often be the best
forum to determine the appropriateness of specific interim measures for each
case. "). This view reflects "the increasing acceptance of arbitration as a
satisfactory mechanism for resolving complex international commercial disputes
and increasing recognition by national courts that interlocutory judicial interference
in the arbitral process is often counterproductive. " Born, International Arbitration,
924. See also generally supra Chapter I.
3 See Chapter II, infra Part 1.1.
87
In contrast, some legal systems and arbitration rules, mainly as a
reflection or residue of the outdated concept of mistrust to arbitration,
4
refrain from empowering arbitrators to grant provisional measures.
This, however, reflects a minority view, at least in connection with
developed arbitration systems.
Indeed, most modern legal systems and arbitration rules, in contrast,

is essential and useful for
accept that court assistance to arbitration
effectiveness of arbitration. Thus these systems and rules adopt the
The acceptance is
concurrent jurisdiction approach. and adoption
related to and stems from inherent problems and shortcomings of
arbitration. Arbitration is generally considered very effective dispute
resolution mechanism for final protection of arbitrating parties' rights-5

However, the effectiveness of arbitration today is hampered by its
nature and operation.
There are three salient problems and certain other shortcomings' of

jurisdiction interim 7 These
arbitral concerning protection of rights.
salient problems are:
" an arbitral tribunal needs to be constitutedbefore it can deal with

any request for interim protection;
° This view has generally faded away as explained in supra Chapter I, Part 2.
5 Hence, the frustration of arbitration agreement is prevented. In other words,
contracting parties cannot, by disregarding their agreement to arbitrate, seek to
adjudicate the substance of their dispute in any other forum but arbitration. See,
e.g., Article 11(3)of the New York Convention; Article 26 of the ICSID Convention;
and Article 8(1) of the Model Law.
6 See Chapter II, infra Part 4.1.
These problems and shortcomings might perhaps have been overcome, at least to
a certain extent, were an international arbitration court to be established. On the
issue of international arbitration court see, e.g., Howard Holtzmann, "A Task for the
21st Century: Creating a New International Court for Resolving Disputes on the
Enforceability of Arbitral Awards", in: Martin Hunter / Arthur Marriott / V.V. Veeder
(eds.) The Internationalisation of International Arbitration (London Dordrecht
Boston: Graham Trotman / Martinus Nijhoff 1995), 109-113; and Stephen M.
Schwebel, "The Creation and Operation of an International Court of Arbitral
Awards", in: Hunter / Marriott / Veeder (eds.), 115-123.
88
IL,.
9 the tribunal does not have imperium thus it could not coerce
enforcement of any measure it granted nor could it grant certain
measures which intrinsically require the use of imperium; and
9 the tribunal could not grant provisional measures against third

parties to arbitration due to the contractual nature of arbitration.
There are efforts to minimise the negative effects of the above
problems through introducing complementary mechanisms8 and making

of arbitral provisional measures enforceable9. These efforts aim to
make arbitration more effective. The efforts either provide parties
alternatives to a judicial authority for interim protection or make

competence of a party-determined authority more effective through
enforcement of arbitral provisional measures. Although the efforts
minimise, to a certain extent, the need for concurrent jurisdiction, they

do not fully diminish such need yet.
This Chapter examines (i) the general jurisdiction of arbitrators to grant
provisional measures, and (ii) the exclusive arbitral jurisdiction for
issuing these measures, (iii) the exclusive jurisdiction of courts in
respect of such measures, and (iv) the concurrent jurisdiction approach

for the grant of provisional measures.
1 General Jurisdiction of Arbitrators to Grant Provisional
Measures
This Part discusses why arbitrators should be the natural forum for
interim measures of protection. It then deals with the source of arbitral
jurisdiction, its variation and exclusion, and the effect of mandatory
rules of municipal laws on it.
8 See generally infra Chapter III.

9 See generally infra Chapter V.
89
1.1 Reasons In Support of Arbitral Jurisdiction
There are several reasons supporting the view that arbitration should
be the "natural forum" for interim protection of rights once parties
submit their disputes to arbitration:-1°
" Perhaps the most important reason is utmost respect to the
sanctity of contract, the agreement to arbitrate. When parties

chose arbitration to resolve a dispute their primary aim is
simply to reach resolution of whatever disputes they may
have before arbitrators and to avoid resorting to any other
forum. The forum that parties seek to avoid is a court and
such aim should normally be respected. " Respecting that

aim is a reflection of the principle of party autonomy. The
resort to a court may undermine the arbitration agreement. 12
" Respecting the risk allocation agreed between the contracting
parties at the time the contract was entered into also

supports arbitral jurisdiction. 13 Indeed, the chosen arbitral
10
The reasons that make contracting parties prefer arbitration over litigation and
other dispute resolution mechanisms generally support arbitral jurisdiction as
regards interim protection of rights. See, e. g., Sanders, Quo Vadis, 2-9; and Ziad
Mody / T. T. Arvind, "Redeeming Sisyphus: The Need to Invigorate Interim Relief in
International Commercial Arbitration" in: Albert J van den Berg (ed. ), International
Arbitration and National Courts: The Never Ending Story, ICCA Congress Series
No. 10 (The Hague/London/New York: Kluwer 2001), 126 ("The Never Ending
Story").
11
Judicial assistance to arbitration is generally welcome in appropriate
12
circumstances. See Chapter II, infra Part 4.
Bösch (ed. ), 4. Bösch indicates that "the unrestricte-' availability of provisional
relief from public courts despite the existence of an arbitration agreement could
threaten to destroy completely the advantages of arbitration. " Id., 5. The
examples to destruction of advantages are, for instance, an attachment of
substantial assets to put pressure on the opponent or a threat of obtaining a
judicial injunction to make the underlying dispute public. Indeed, although interim
in nature, a judicial measure may have serious or irreparable consequences. Id.,
4.
13
Such respect is also supported with the principle of neutrality in arbitration. See
e. g., Jan Paulsson, "A Better Mousetrap: 1990 ICC Rules for a Pre-arbitral Referee
Procedure", 19 Int'l Bus Law 214,215 (1990), reprinted in 5 Int'l Arb Rep Sec F
(1990) ("Better Mousetrap"). In fact, contracting parties generally prefer a neutral
place for resolution of their disputes. For the principle of neutrality, see, e. g.,
Pierre Lalive, "On the Neutrality of the Arbitrator and of the Place of Arbitration", in:
90
forum is an important element in allocation of risks between
contracting parties. At the time of entering into a contract, a

party may have the intention not to take the risk of dealing
with "vagaries of laws" of a foreign country or of a foreign
court practice. 14 Such intention should be respected.
" If resolution of a final remedy in regard of a dispute is
entrusted to arbitrators, the same trust should logically be

shown to arbitral domain in determining a provisional remedy
concerning the same dispute. 15
0 Arbitrators are generally in a better position than judicial
authorities to identify whether a request for a provisional

remedy is used as a dilatory tactic16 or as an offensive /
abusive weapon" or there is a genuine need. 18 This is
because the arbitrators generally are far more "acquainted
with the facts" than judicial authorities and the arbitrators
Swiss Arbitration Association (ed. ), Swiss Essays on International Arbitration

(Zurich: Schulthess 1984), 23-33.
14 See, e. g., McCreary Tire and Rubber Co. v. CEAT, S. p.A., 501 F.2d 1038 (3 Cir.
1974). Martin Hunter / Jan Paulsson, "A Code of Ethics for Arbitrators in
International Commercial Arbitration", 13 Arbitration 153 (1984) (arguing that the
expectation of parties from their arbitrators is a decision unaffected from national
legal constraints. ); and Higgings, 1520 (indicating that arbitration is a "de-politicized
forum that does not harbor potential biases toward nationals of the domestic
courts' jurisdiction. ").
15 Broches indicated during the preparation of the ICSID Convention that "[i]f a
dispute was properly before the arbitral tribunal, it would seem reasonable to
empower it to order the parties not to take action which would make it impossible
to comply with a later award. " History, 515. See also, e. g., Pierre A. Karrer,
"Interim Measures Issued by Arbitral Tribunals and the Courts: Less Theory
Please" in: Albert J van den Berg (ed. ), International Arbitration and National
Courts: The Never Ending Story, ICCA Congress Series No. 10 (The Hague I
London / New York: Kluwer 2001) ("The Never Ending Story"), 98 ("Less Theory");
and Berger, International, 348.
16 E. g., MacDonnell, 273. A court should too refrain from issuing measures
"conducive to dilatory tactics of the [arbitrating] parties. " See, e. g., CLOUT Case
No. 68 (1993) (Federal Court of Canada, Trial Division).
17 Rubino-Sammartano, 364 (arguing that provisional measures could be used
"improperly to damage the other party. "); and Cremades, The Need, 226,227
(indicating that "[a]buses in the request for or adoption of conservatory and
preliminary measures must be controlled to the benefit of trade. ").
1B Berger, International, 336.
91
follow the case "from start to finish". 19 There is
always a
possibility that a request for a measure aims at delaying
arbitration proceedings.Indeed, the application to a court for
interim measures may be used as a tactical-oppressive
weapon to delay the proceedings. 2° It is true that dealing with

that request, however little it may be, takes
some time,
although the arbitrators are generally equipped with the
necessary powers and experience to assess such request
and to takeappropriate measures for minimizing the
request's negative effect. 21 An underlying aim of a request
could also be a distraction of the opponent party's attention,
effort and finance. 22 Further, in many cases, the reference to
a court is a tactical decision to gain advantage over the
adversary. For instance, a party may apply to its own
national court, which may be receptive of an interim measure
request. The grant of the request may have an impact on the
arbitral tribunal's decision, 23 on the responding party, or on
both. To this end, such party may, because of, for instance,
financial difficulties, have to cave in and settle the dispute in
19 Christian Hausmaninger, "The ICC Rules for

a Pre-Arbitral Referee Procedure: A
Step Towards Solving the Problem of Provisional Relief in International
Arbitration? ", 7(1) ICSID Rev. - FILJ 82,85 (1992) ("Pre-Arbitral Referee"). See
also Berger, International, 348. The preference of an arbitral tribunal over a court
is sensible and advisable where the request for an interim measure is made after
the tribunal is formed and accustomed with the case in dispute. Apparently, the
arbitrators' knowledge of the case assists effective protection of rights and avoids
the grant of unjustified measures.
20 The Arbitration Rules of the American Film Marketing Association (the "AFMA")
provides that "[t]hese [court] proceedings [in respect of an application for a
provisional measure] shall not delay [the] arbitration proceedings. " Article 10.
...
21 Also, the tribunal gets accustomed with the case and parties' positions through
interim measure applications. Karrer, Less Theory, 110. If the measure turned out
to be wrongly taken, the tribunal tend to speed up the arbitration proceedings to
minimise the negative effect of the wrongly taken measure. Id. Apparently, in
such case, damages could also be available. On the issue of damages, see
Chapter II, infra Part 4.4.3.
22 For instance, an interim measure application could be costly. But the tribunal
could require the party who is abusing its right to request a measure to bear those
costs. See, e. g., Karrer, Less Theory, 110. See also infra Chapter IV, Part 9.
92
24
unfavourable terms to it. Arbitrators would generally be in a
far better position than courts to determine whether or not
a
request is made for tactical purposes.
0 It is arguable that arbitrators' expertise25 in regard of a given
case makes them a more suitable forum in some

circumstances to deal with the case and a request for interim
protection of rights in a speedier manner than judicial
authorities. 26
0 Arbitration, generally, has a less disruptive effect (in

comparison to litigation) on the parties' overall commercial
relationship. 27 Carrying a dispute away from arbitral domain
for an interim measure may have an inflammatory effect on
the adjudication process and, consequently, on that
relationship. 28
" It is highly likely that, in proceedings for a provisional
measure before arbitrators, parties' arguments, subject

matter of arbitration (e. g. trade secrets), and, in some cases,
mere existence of arbitration may remain confidential. 29 In
23 Wirth, 44.
24 See, e. g., Hubbard v. Vosper [1972] 2 QB 84,96; and Francis Gurry, "The Need
for Speed", Biennial IFCAI Conference (24 October 1997, Geneva, Switzerland), 3
(unpublished).
25 It is highly likely that arbitrators will be appointed among those who are experts on
issues in question by either parties or the appointing authority.
26 Hausmaninger, Pre-Arbitral Referee, 85. In this regard, see also Kevin J. Brody,
"An Argument for Pre-Award Attachment in International Arbitration under the New
York Convention", 18 Cornell Int'l LJ 99, n. 1 (1985); and Douglas Reichert,
"Provisional Remedies in the Context of International Commercial Arbitration", 3
Int'l Tax & Bus Law 369 (1986).
27 See, e. g., Bösch (ed.), 3.
28 See, e. g., Hausmaninger, Pre-Arbitral Referee, 86.
29 See e. g., Berger, International, 349; and Hausmaninger, Pre-Arbitral Referee, 85-
86. The issue of confidentiality is highly debated. For court cases on the issue,
Plowman, in 11(3) Arb Int'l 235 (1995); United
see, e. g., Esso/BHP v. reprinted
States v. Panhandle Eastern Corp., 681 F. Supp. 229 (D. Del. 1988); Hassneh
Insurance v. Mew [1993] 2 Lloyd's Rep 243; and A. I. Trade Finance Inc v.
Bulgarian Foreign Trade Bank Ltd, (Svea Court of Appeal), reprinted in 14(4)
Mealey's IAR A-1 (1999). For views of commentators, see, e. g., Expert Reports in
Esso/BHP v. Plowman of Stephan Bond, S. C. Boyd, Julian Lew, and Hans Smit,
Arb Intl 213-283 (1995); Jan Paulsson / Nigel
collectively published in 11(3)
93
regard of judicial however, the confidentiality
measures,
cannot (always) be assured. Most proceedings before courts
in many countries are public; 30 consequently, decisions
of
courts on provisional relief are not confidential.
" The type and form of arbitral measures
are rarely fixed;
consequently, arbitrators, unlike judicial authorities may
'31
issue the most suitable type and form of the decision by
taking into consideration various aspects of a case. 32
" Finally, arbitral provisional measures are comparatively less
costly than judicial measures. One reason for the

comparatively little cost is that there is generally no appeal
against a decision of arbitrators concerning interim
measures33 though, under changed
circumstances,
reconsideration could in principle be sought. 34 Another
important reason is that arbitrators, generally, have the
freedom, by taking into consideration circumstances of each
case (e. g. parties' likely motives, urgency, importance of the

request, type and form of the measure sought, the right
whose protection is sought), to make decisions on several
issues that affect costs. Those issues may be whether or not
Rawding, "The Trouble with Confidentiality", 5(1) ICC Intl Ct Arb Bul 48-60 (1994);
and Patrick Neill, "Confidentiality in Arbitration", 12(3) Arb Int'l 287-318 (1996).
30 See, e. g., Hausmaninger, Pre-Arbitral Referee, 86, n. 12.
31 Courts have no option but to apply the applicable law, which clearly defines the
form and type of a measure that may be granted (forum regit processum).
32 See arbitral provisional measures referred to in, e. g., Sperry International Trade,
Inc. v. Government of Israel, 532 F. Supp. 901 (S. D. N. Y. 1982), aff'd. 689 F. 2d
301 (2nd Cir. 1982); and Rochester City School District v. Rochester Teachers
Association, 394 N. Y. S. 2d 179 (1977).
33 Hausmaninger, Pre-Arbitral Referee, 86. It should, however, be noted that a
second instance arbitral appeal is available under a small number of arbitration
rules, mainly in commodities arbitration. See, e. g., the Grain and Feed Trade
Association ("GAFTA"); and the Federation of Oils, Seeds and Fats Associations
("FOSFA") arbitrations. It is also noteworthy that an arbitral decision on provisional
is subject to appeal in India. See Lalit Bhasin, "The Grant of Interim
measures
Relief Under the Indian Arbitration Act of 1996" in: van den Berg (ed. ), The Never
Ending Story, 93,96.
34 See infra Chapter IV, Part 6.
94
to have a hearing, to have only written submissions, to hear
witnesses or experts and so on. In many occasions, if

arbitrators consider that, for instance, a request for a
measure is used as a tactical weapon they simply deny it or
refrain from, say, holding hearings, or appointing experts for
simplifying the provisional remedy adjudication. Indeed, in
this author's experience, arbitrators simply deny, for variety
of
reasons generally not apparent from their face, requests for
interim measures in simple orders, which surely do not cost
much to make. Nevertheless, it should be accepted that

requests to arbitrators for interim protection of rights might
occasionally cost as much as, if not more, requests to courts
for the same.
1.2 Sources of Arbitral Power
The jurisdiction of an arbitral tribunal to grant provisional measures
stems from different sources. It is a common practice nowadays that

arbitrating parties expressly empower the tribunal to grant provisional
measures. 35 National laws may also provide for default / fall back
powers for such purpose. Where neither the arbitration agreement nor
the lex arbitri, the law governing the arbitration36 expressly provide for
such power, it may be necessary to investigate whether the tribunal
35 This trend partly owes its existence to the evolution of laws, rules and practice on
the provisional measures within the 20th century. See supra Chapter I, Part 2. The
trend is also reinforced by the wide recognition of the UNCITRAL Arbitration Rules
and the Model Law. Both texts contain a provision on the power of an arbitrator to
grant provisional measures.
36 This is generally the law of the place of arbitration. On cases where the tribunal is
to such law whilst making decision on an interim measure request, see,
referred
8786, in 11(1) ICC Intl Ct Arb Bull 81
e. g., ICC Interim Award extracts published
(2000); and NAI Interim Award 1694 of 1996, extracts published in XXIII YCA 97
(1998). For arbitrators' power to grant provisional measures such laws as the law
the arbitration procedure, the law governing the arbitration agreement,
governing
the applicable substantive law as the case may be, or the law of the place of
enforcement may further be relevant.
95
would have inherent, implied or other powers for interim protection of
rights.
In granting provisional measures, an arbitral tribunal observes

variations or restrictions to their jurisdiction introduced by the arbitrating
parties. The tribunal also abides mandatory rules of the applicable law
on its jurisdiction.
This Part deals with the effect of a party agreement and lex arbitri on
the arbitral jurisdiction to grant provisional measures as well as
arbitrators' inherent, implied and other powers to grant these measures.
Further, it examines the variation and exclusion of such jurisdiction and
the role of mandatory rules of the applicable law
1.2.1 Parties' Agreement and Lex Arbitri
Arbitral tribunals' power to grant provisional measures may be

expressly included in the arbitration agreement itself. This inclusion is
done either through express stipulation in the arbitration agreement or
through incorporation, by a reference to ad hoc or institutional
arbitration rules that permit arbitral provisional measures. It should be
noted that the express stipulation in the agreement is hardly ever done
in practice. 37 Arbitrators are almost always empowered to grant
provisional measures through reference to arbitration rules. In other
words, the most likely source of power is arbitration rules which

constitute, through reference or incorporation, part of the parties'
37 See Lew, Interim Measures, para. 15. However, a number of agreements make
an express reference to provisional measures. See, e. g., Sperry International
Trade, Inc. v. Government of Israel, 532 F. Supp. 901,908-909 (S. D. N. Y. 1982),
689 F. 2d 301 (2nd Cir. 1982) (where the agreement between the parties
aff'd.
to provisional measures). Also it should be noted that, for
contained a reference
European Bank for Reconstruction and Development loan
example, a standard
an arbitration clause dealing with provisional measures. For
agreement contain
examples of clauses providing express stipulations concerning provisional
Paul D. Friedland, Arbitration Clauses for International
measures, see, e. g.,
Contracts (New York: Juris Publishing 2000), 56-59.
96
arbitration agreement, in ad hoc or administered arbitration. 38 For this
reason, this thesis examines the approach of seventy-two sets of
arbitration rules to provisional measures. Forty-three out of the
seventy-two rules surveyed including the AAA, ICC, ICSID and
UNCITRAL Arbitration Rules empower an arbitral tribunal to grant
The lex arbitri39 may also contain provisions empowering arbitrators to
grant interim measures of protection. 4°
38 The power
may also be contained in other documents. For instance, in ICC
arbitration, the terms of reference may too contain that power. The terms of
reference is one of the unique features of ICC arbitration. Apart from its historical
purpose, the aim of the terms of reference is to set forth, basically, the parties'
claims, counter claims, applicable laws, etc. in order for the smooth
commencement of arbitration proceedings. See Article 18 of the ICC Arbitration
Rules 1998. The concept of terms of reference is also adopted by such other
arbitration institutions as Article 24 of the Belgian Centre for Arbitration and
Mediation ("CEPANI") Arbitration Rules, Article 24 of the Italian Arbitration
Association ("AIA"), Article 15 of the Japan Commercial Arbitration Association
("JCAA") Arbitration Rules, and Article 23(7) of the Euro-Arab Chamber of
Commerce Arbitration Rules.
39 In some cases, there is no law governing arbitration but it is subject to
an
international convention. See, e. g., Article 47 of the ICSID Convention
(empowering arbitrators to "recommend" provisional measures. ).
ao Default powers are given to arbitrators, for instance, in all Model Law countries.
See supra Chapter I, note 14. See also, e. g., Algeria (Article 458bis 9(1) of the
CCP 1966, as amended); (Article Belgium (Article 1696(1) of the Judicial Code
1972, as amended); Bolivia (Article 35 of the Law on Arbitration and Conciliation
1997); Colombia (Article 32 of the Decree No. 2279 of 1989); Costa Rica (Article
52 (1) of the Law for Alternative Resolution of Disputes and the Promotion of
Social Peace); Ecuador (Article 9 of the Law on Arbitration and Mediation 1997);
Panama (Article 24(1) of the Decree Law 5 of 1999); Portugal (see Smit / Pechota,
2350); Sweden (Section 25(4) of the AA 1999); Switzerland (Article 183(1) of the
Private International Law Act 1987); Uruguay (Article 492 of the General CCP
1990); and Venezuela (Article 26 of the Commercial Arbitration Law 1998). In
addition, in such countries as Antigua & Barbuda (Article 13(6)(2) of the AA 1975);
Commonwealth of Australia (Article 23 of the International AA 1974, as amended),
France (Bösch (ed. ) 257); Hong Kong (Section 2(GB) of the AO), Netherlands
(Articles 1022 and 1051 of the AA 1986); the Oman (Article 24(1) of the Law of
Arbitration on Civil and Commercial Matters); Jordan (Article 23(1) of the Law No.
31/2001 on Arbitration); Pakistan (Article 41(2) of the AA 1940, as amended); and
the U. S. (see, e. g., Born, International Arbitration, 924-25, J. Stewart McClendon
(ed. ), Survey of International Arbitration Sites, 3rd ed. (AAA 1993), 123), national
laws provide for "opt in approach. " Under this approach, arbitrators' power to grant
from contracting parties' express agreement thus in the
provisional measures arise
measure is available. To this end, it
absence of such agreement no provisional
be noted that Section 38 of the EAA 1996 gives powers to arbitrators to
should
97
1.2.2 Inherent, Implied or Other Powers
Where there is no explicit or default power given to arbitrators for

interim measures, it is submitted that such measures may be granted
on the basis of inherent or implicit powers of arbitrators, 41 or of their

powers to conduct the arbitration proceedings.
The source of an inherent power is neither an arbitration agreement nor
a statute but the status of the arbitral tribunal as an organ entrusted

with the resolution of a dispute. 42 Inherent powers are generally relied
on by a small number of arbitral tribunals in international arena. 43 The
concept of inherent powers is rightly criticised since inherent powers is
order certain limited number of interim measures but Section 39 provides for opt in
approach for all other kind of measures. It should also be noted that such national
laws as Concordat (Article 26) provide for non-binding powers to arbitrators for
interim protection of rights.
41 Considering that arbitrators operate within a territorial boundary of which is marked
by lex arbitri, it can be stated that arbitrators are generally empowered to grant
provisional measures as laws of many states provide for arbitral competence to
grant provisional measures. Thus, in practice, a party agreement and lex arbitri
sufficiently provides for a basis today to grant an interim measure of protection.
Consequently, there is little need to seek another basis for such protection.
42 Hausmaninger, Pre-Arbitral Referee, 92. For arguments supporting inherent
powers, see, e. g., David D. Caron, "Interim Measures of Protection: Theory and
Practice in Light of the Iran-United States Claims Tribunal", 46 RabelsZ 465,476
etc. (1986) ("Interim Measures"). See also Michael F. Hoellering, "Interim
Measures and Arbitration: The Situation in the United States", 46(2) Arb J 22
(1991) ("Interim Measures"); Hoellering, "Interim Relief in Aid of International
Commercial Arbitration", 1 Wisc Int'l LJ 1,2 (1984) reprinted in: Arbitration & the
Law (1984), 123 ("Interim Relief'); Craig / Park / Paulsson, ICC Arbitration 2000,
460; Sigvard Jarvin, "Choosing the Place of Arbitration: Where Do We Stand? ", 16
Int'l Bus L 417,422 (1988); Berger, International, 332; Schwartz, Provisional
Measures in: ICC (ed. ), Conservatory Measures, 62; Craig / Park / Paulsson, ICC
Arbitration 2000,460; and Donald F. Donovan, "Powers of the Arbitrators to Issue
Procedural Orders, Including Interim Measures of Protection, and the Obligation of
Parties to Abide by Such Orders", 10(1) ICC Int'l Ct Arb Bull 65-66 (1999). See
also Charles Construction Company v. Derderian, 586 N. E. 2d 992 (Mass. 1992)
(accepting that an arbitrator has inherent and implied authority to grant a security
for claim. ); Konkar Maritime Enter., SA v. Compagnie Belge d'Affretement, 668
F. Supp. 267 (S. D. N.Y. 1987); Southern Seas Navigation Ltd v. Petroleos
Mexicanos of Mexico City, 606 F. Supp. 692 (S. D. N. Y. 1985); Island Creek Coal
Sales Co. v. Gainsville, 729 F2d 1046 (6th Cir. 1984); and Sperry International
Trade, Inc. v. Israel, 689 F2d. 301 (2d Cir. 1982).
43 E. g., the Iran-US Claims Tribunal, and certain other arbitral tribunals. See
Hausmaninger, Pre-Arbitral Referee, 92-93. Inherent powers are mainly relied on
98
a common law concept "alien to the civil law tradition". 44 That is mainly
because the concept infringes the principle of legality: it lacks
statutory
foundations 45
.
It is further submitted that arbitral jurisdiction

to grant provisional
measures derive from implied powers entrusted to arbitrators. 46 Implied
powers are based on the argument that parties, by submitting to
arbitrate a dispute, implicitly empower arbitrators to issue provisional
measures. Implied powers are considered to be an implicit extension of
the power to adjudicate the parties' dispute as envisaged in the
arbitration agreement. 47 Such

extension is justified by broad
interpretation of the arbitration agreement. 48 The broad interpretation
may be made where it is permitted under the applicable law.
49
In addition, if it exists, the eventual power of a tribunal to conduct
arbitral proceedings may provide a basis for interim protection of
by international tribunals (see, e. g., Caron, Interim Measures, 476 etc. ) and courts
of common law jurisdictions (see, e. g., Hausmaninger, Pre-Arbitral Referee, 92).
44 Hausmaninger, Pre-Arbitral Referee, 93.
45 Id. Hausmaninger also argues that the exercise of inherent powers not conferred
upon the arbitrators contradicts with the contractual nature of arbitration. Id.
46 In the absence of express stipulation, many argue that jurisdiction of an arbitrator
to grant a provisional measure is based on party autonomy (voluntas partium facit
arbitrum) or, in other words, "flows directly from the arbitration agreement itself. "
See, e. g., Berger, International, 331; Holtzmann / Neuhaus, 530; and Higgins,
1535-36. Parties, by conveying to an arbitral tribunal the power to adjudicate a
dispute, confer the tribunal, by "implication" or "extensive interpretation" of the
arbitration agreement a power to grant interim protection of rights. See, e. g.,
Karrer, Less Theory, 99. On the criticism concerning the use of implied powers in
commercial arbitration, see, e. g., Hausmaninger, Pre-Arbitral Referee, 94.
47 This is a reflection of the principle of party autonomy. See, e. g., Karl-Heinz
Bockstiegel, "The Role of Party Autonomy in International Arbitration", Dis Res J 24
(Summer 1997); and Klaus Peter Berger, "Party Autonomy in International
Economic Arbitration: A Reappraisal", 4(1) Am Rev Int'l Arb 1 (1993). It is
submitted, for instance, that arbitrating parties are obligated "not to worsen the
dispute nor to delay unduly the arbitration proceedings. " Bucher / Tschanz, para.
169. This obligation arises from the arbitration agreement or can be "based on the
principle of good faith. " See generally id.
48 E. g., Karrer, Less Theory, 99. The principles of effectiveness and good faith assist
in interpreting an arbitration agreement. See Caron, Interim Measures, 478.
49 See, e. g., Article 16 of the International Arbitration Rules of the American
Arbitration Association (the "AAA") International Center for Dispute Resolution
99
rights. 50 However, in such circumstances, it seems that only certain
provisional measures that are considered as procedural in nature may

be issued. 51
1.3 Amendment and Exclusion of the Power
Arbitrating
parties are free to design the terms of their arbitration
agreement as they see fit due to party autonomy 52 Consequently, the
arbitrating parties are at freedom to exclude or amend the power of
arbitrators to grant provisional 53
measures.
("ICDR"); Article 11 of the Arbitration Rules 1981 of the Copenhagen Court of the
International Arbitration; Article 20 of the Rules of International Arbitration of the
Croatian Chamber of Commerce; Article 15 of the Arbitration Rules of the ICC,
Rule 6 of the Rules for the Conduct of Commercial Arbitration 1981 of the Institute
of Arbitrators Australia, Article 23 of the Arbitration Rules of the Netherlands
Arbitration Institution ("NAI"); Article 20 of the Arbitration Rules of the Stockholm
Chamber of Commerce ("SCC"), Article 15 of the UNCITRAL Arbitration Rules;
and Article 38 of the Arbitration Rules of the World Intellectual Property
Organization (the "WIPO").
50 The ICC Arbitration Rules 1988 did not expressly deal with the power to grant a
provisional measure. This lack of clarity gave rise to, inter alia, an argument that
the tribunals' power to grant those measures implicitly derives from the procedural
powers granted to arbitrators to conduct arbitral proceedings in accordance with
Article 11 of those Rules. For instance, in ICC case 7544, the tribunal partly relied
on its power to conduct arbitration proceedings in granting an interim measure.
ICC Second Interim Award 7544 of 1996, extracts published in 11(1) ICC Int'l Ct
Arb Bull 56 (2000). Similarly, in ICC case 6632, the arbitral tribunal, after stating
that the ICC Arbitration Rules 1988 provided a self-sufficient set of rules, noted that
"[t]he arbitrators have to decide on all procedural, factual or legal aspects that
appear necessary for the resolution of the dispute and, as such, they undoubtedly
have the authority to issue interim orders/awards. " ICC Interim Award 6632 of
1993 (unpublished. ). In cases where the procedural rules are determined by
tribunal, it may make a reference to a national law or draw up its own rules.
arbitral
See ICC, Guide to Arbitration, ICC Publication No. 382 (1983), 39. The power to
grant certain interim measures may also derive from some other principles of
to campaign may be
arbitration. For instance, the power stop adverse aavertising
based on the principle of confidentiality, particularly where the campaigner is under
the duty in accordance with applicable arbitration rules or laws. See Bucher /
Tschanz, para. 169.
51 If provisional measures are classified as procedural matters, as is normally the
then the rules and laws applicable to procedure govern these measures.
case,
See Schwartz, Provisional Measures in: ICC (ed. ), Conservatory Measures, 58.
On the procedural /substantive distinction, see Chapter II, infra note 91.
52 A restriction on arbitrating parties may be imposed as to an amendment of
by the administering authority. It should, however, be noted that
arbitration rules
arbitration rules generally contain no such restrictions.
53 Articles 7(9) of the Arbitration Rules 2000 of the Chartered Institute of Arbitrators
(the "CIA"); Article 20 of the Arbitration Rules 1998 of the German Arbitration
Institution ("DIS"); Article 23 of the Arbitration Rules 1998 of the ICC; Article 19(1)
100
1.4 Mandatory Rules of Applicable Law
Mandatory rules of the applicable law (generally the law of place of

arbitration), including the law of the place of enforcement54 may restrict
or prohibit the jurisdiction of an arbitral tribunal to grant provisional
of the Rules for International Arbitration 1994 of the Italian Association for
Arbitration (the "AIA"); Article 25 of the Arbitration Rules 1998 of the London Court
of International Arbitration ("LCIA"); Rule 25 of the Arbitration Rules 1997 of the
Singapore International Arbitration Centre (the "SIAC"); Article 31 of the Arbitration
Rules 1999 of the Arbitration Institute of the SCC; Articles 1(1) and 26 of the
UNCITRAL Arbitration Rules; Article 28 of the International Arbitration Rules 1989
of the Zurich Chamber of Commerce (the "ZCC"); and Article 17 of the Model Law.
Further, it is accepted that the jurisdiction of an ICSID tribunal to recommend
provisional measures may be amended or excluded by an express party
agreement. See Article 47 of the ICSID Convention. See also Christoph H.
Schreuer, The ICSID Convention: A Commentary (Cambridge: Cambridge
University Press 2001), Article 47,215, para. 8; Brower / Goodman, 434-435; C. F.
Amerasinghe, "Submissions to the Jurisdiction of the International Centre for
Settlement of Investment Disputes", 5J Mar L& Com 211 (1974); and History,
815. The amendment may be negative. That is to say it restricts arbitral power
with respect to the circumstances under which they [provisional measures] are to
be recommended or with respect to the types of measures which will be
permissible." Schreuer, Article 47,214, para. 7. Neither the recent model clause
nor the earlier one deals with variations on or exclusions of Article 47. However,
the first ICSID model clause did cover exclusion agreements. One of two versions
of the recommended clause provides:
XXVI. No arbitral Tribunal constituted pursuant to this agreement shall, without
the special consent of the parties hereto, be empowered to recommend any
provisional measures before rendering its award.
See 7 ILM 1159,1179 (1968). The amendment may also be positive. That is to
say parties may empower an ICSID tribunal to grant binding arbitral provisional
measures. Schreuer, Article 47,214, para.7. See also A. Masood, "Provisional
Measures of Protection in Arbitration under the World Bank Convention", I Delhi
Law Review 138,145 (1972). In this respect, the second version of the model
clause provides:
XXVII. The parties hereto agree to abide by and comply with any provisional
measure [unanimously] recommended by an Arbitral Tribunal constituted
pursuant to this agreement.
See 7 ILM 1159,1179 (1968). The parties should be very cautious prior to entering
into such exclusion agreement as courts of some states may deny granting an
interim measure and refer parties to arbitration. See Chapter 11,infra Part 4.2. The
exclusion of arbitrators' jurisdiction "rarely happens in practice." Berger,
International, 333. But see Gaillard / Savage (eds.), para. 1319.
54 Apparently, the law of the place of enforcement is taken into
account where such
place is known to the arbitrators. However, it should be noted that, unless
otherwise indicated during the proceedings, arbitrators are generally unaware
where their decisions will be or will attempted to be enforced.
101
measures. 55 Arbitrators generally
comply with such limitation or
restriction in practice to the extent possible. 56
There are several concerns behind

compliance with the mandatory
rules of the applicable law. A conflicting decision with the applicable
law may be set aside where it is rendered57
or enforcement of such
decision may be resisted. 58
55 Indeed, five
out of the forty-three rules surveyed indicate that the jurisdiction
concerning interim measures of protection of an arbitral tribunal exists to the extent
it is permissible under the applicable law. Article 14 of the International Arbitration
Rules 1996 of the Chamber of National and International Arbitration of Milan;
Article 21 of the Arbitration Rules 1997 of the European Court of Arbitration (the
"ECA"); Articles 18 and 19 of the Rules for International Arbitration 1994 of the AIA;
Rule 25 of the Arbitration Rules 1997 of the SIAC; and Article 27 of the UNECE
Arbitration Rules 1966. It should also be noted that none of the rules surveyed do
permit in express terms the tribunal to act contrary to the mandatory principles of
the applicable law.
56 See ICC Interim Award 9301
of 1997 (unpublished) (denying the request to impose
a penalty for a failure to comply with a direction in an arbitration because of the fact
that such imposition is prohibited under the law of the place of arbitration, Belgian
law); ICC Interim Award 8786 of 1996, extracts published in 11(1) ICC Intl Ct Arb
Bull 81 (2000); ICC Second Partial Award 8113 of 1995, extracts published in 11(1)
ICC Intl Ct Arb Bull 65 (2000); ICC Final Award 7895 of 1994, extracts published in
11(1) ICC Int'l Ct Arb Bull 81 (2000); ICC Second Interim Award 7544 of 1996,
extracts published in 11(1) ICC Intl Ct Arb Bull 56 (2000); ICC Interim Award 6251
of 1990 (unpublished); ICC First Interim Award 5835 of 1988, extracts published in
8(1) ICC Int'l Ct Arb Bull 67 (1997); ICC Second Interim Award 5835 of 1992
(unpublished); and ICC Award 3540 of 1980, extracts published in (1981) Clunet
914; and VII YCA 124,129-130 (1982). It is noteworthy, in this respect, that the
restrictions imposed under the applicable law to the arbitral jurisdiction do not,
however, prohibit arbitrators to render a decision in formally non-binding form (e. g.,
order, recommendation) concerning a request for a provisional measure.
57 See, e. g., Article 34(2)(a)(iv) of the Model Law; and ICC Interim Award 9301 of
1997 (unpublished) (referring to the decision of a court setting aside an arbitral
decision conflicting with the Belgian law on imposing a penalty payment. ).
58 See, e. g., Article V(1)(d) of the New York Convention. Further, no sanction could
be imposed upon the failure to comply with the conflicting decision because of the
above reasons. Accordingly, the decision would be toothless. Moreover,
arbitrators are generally hesitant to be in conflict with the applicable law. It should
be noted, in this respect, that practice of commercial arbitration evolved over the
years by avoiding direct conflict with national laws. In addition, arbitrators may
have a duty "to make every effort to make sure" that their decision is enforceable
at law. Article 26 of the ICC Arbitration Rules 1988; and Article 35 of the ICC
Arbitration Rules 1998. See also Schwartz, Provisional Measures, 62. Thus, the
arbitrators may refrain from rendering unenforceable decisions.
102
2 Exclusive Arbitral Powers to Grant Provisional Measures
It seems that out of the arbitration
conventions, only the ICSID
Convention provides for, unless otherwise
agreed, the exclusive
jurisdiction to arbitrators to grant provisional 59 There is no
measures.
national law that empowers arbitrators exclusively to grant provisional
measures. 60 Parties may, however, oust courts' jurisdiction in
regard of
interim protection of rights to an extent permitted. 61 The
main benefit of
exclusive arbitral jurisdiction for interim protection of rights is the
resolution of issues regarding both partial and final protection within
one forum, which was agreed upon by the parties.
The ICSID Convention has created, for the aim of depoliticisation62 of

investment disputes, an "autonomous" and a "self-contained" arbitration
59 See Articles 26 and 47

of the Convention; and Rule 39(5) of the ICSID Arbitration
Rules. The exclusivity is not only related to judicial proceedings but also other
(non-ICSID) arbitral proceedings.
60 It is noteworthy that, for instance, the power to grant security for costs is reserved,
unless otherwise agreed by the arbitrating parties, to arbitrators under Section
38(3) of the EAA 1996. This provision changed the pre-act law which set forth in
the House of Lords' controversial decision in Coppee-Lavalin SA/NV v. Ken-Ren
Chemicals and Fertilizers Ltd (In Liquidation), [1994] 2 All E. R. 449. On the
criticism of this case, see, e. g., Jan Paulsson, "The Unwelcome Atavism of Ken
Ren: The House of Lords shows its Meddle", (1994) ASA Bull 439; David Branson,
"The Ken Ren Case: It is an Ado Where More Aid is Less Help", 10 Arb Int 303
(1994). See also, e. g., section 2GB(1) of the Hong Kong Arbitration Ordinance
("AO").
61 Indeed, four out of the seventy-two rules surveyed provide for exclusive arbitral
jurisdiction. One of those, the Arbitration Rules for the Court of Arbitration for
Sport (the "CAS") clearly exclude jurisdiction of courts in regard of provisional
measures. Article R37. The ICSID Arbitration Rules also provide for, in line with
the ICSID Convention, exclusive jurisdiction of an arbitral tribunal subject to
parties' contrary agreement. Article 26 of the ICSID Convention; and Rule 39 of
the ICSID Arbitration Rules. The Arbitration Rules of the Court of Arbitration of
Northern Europe (the "CANE") envisage a partial exclusivity. In accordance with
Clause 28 of these Rules, once the subject matter is seized by an arbitral tribunal,
the jurisdiction of a judicial authority is ousted in respect of interim payment.
Further, Article 25(3) of the LCIA Arbitration Rules provides for partial exclusivity:
arbitrators are solely empowered to deal with requests on security for costs. This
is, indeed, in line with Section 38(3) of the EAA 1996.
62 On the depoliticisation of investment disputes, see, e. g., Ibrahim F. I. Shihata,
Towards a Greater Depoliticization of Investment Disputes: The Roles of ICSID
and MICA (Washington D. C.: ICSID 1992).
103
system. 63 Article 26 of the ICSID Convention64
provides for the rule of
"exclusive remedy" as part of its
self-contained and autonomous
characteristics. 65 That is to say no court of a
contracting state should
adjudicate, even for a provisional remedy, a dispute arising from
an
agreement under which a valid consent is given to the jurisdiction of the
International Centre for the Settlement of Investment Disputes ("ICSID
Centre"). The rule of judicial exclusivity had been the
subject of
63 See, e.
g., Aron Broches, "A Guide for Users of the ICSID Convention", 8(1) News
from ICSID 5 (1991); and George R. Delaume, "Foreign Sovereign Immunity:
Impact on Arbitration", 38(2) Arb J 34,35 (1983) ("Sovereign Immunity"). The
arbitration system is autonomous and self-contained mainly because ICSID
arbitration operates "in total independence from domestic laws, including the law
prevailing at the seat of arbitration. " See George R. Delaume, Transnational
Contracts Applicable Law and Settlement of Disputes (A Study in Conflict
Avoidance) (New York: Oceana Publications, Dobbs & Ferry 1990), v. II, Booklet
17,37 ("Transnational Contracts"). See also, e. g., Broches, 5; and Antonio R.
Parra, "The Power of the Arbitrator and the Experience of the Arbitral Institutions
-
The Practices and the Experience of the ICSID" in: ICC (ed. ), Conservatory
Measures, 37,38 ("The Practices"). In this respect, see also Articles 27,44,53,
and 54 of the ICSID Convention. But see S. J. Toope, Mixed International
Arbitration - Studies in Arbitration Between States and Private Persons
(Cambridge: Grotius 1990), 223-245.
64 This Article
provides that "[c]onsent of the parties to arbitration under this
Convention shall, unless otherwise stated, be deemed consent to such arbitration
to the exclusion of any other remedy. "
65 This rule is also expressed as the "rule of judicial abstention. " See, e. g., George
R. Delaume, "ICSID Arbitration Proceedings: Practical Aspects", 5 Pace L Rev
563,565 (1985).
104
controversy66 until the 1984 amendment of the ICSID Arbitration
Rules. 67 Rule 39(5) of the Rules provides:
Nothing in this Rule shall prevent the
parties, provided that they
have so stipulated in the agreement
recording their consent, from
requesting any judicial or other authority to order provisional
measures, prior to the institution of the proceeding, or during the
66 For the list

of commentators' arguments for both in favour and against the rule of
judicial exclusivity, see, e. g., Schreuer, Article 26, para. 81-83. For
court decisions
in favour of the rule of judicial exclusivity see, e.
g., Maritime International
Nominees Establishment v. Government of the Republic
of Guinea (MINE v.
Guinea), Decision of the Geneva Authorite de surveillance des
offices de poursuite
pour dettes et faillite, 7 October 1986, extracts of the English translation from the
French original published in 4 ICSID Rep 45 (ruling that Article 26
meant, in the
absence of any stipulation to the contrary, "renunciation of all other recourse". );
and Guinea and Soguipeche v. Atlantic Triton, (Decision of the Court of Cassation,
18 November 1986), extracts of the English translation from the French original
published in 26 ILM 373 (1986) (holding that "the power of the national judge to
order conservatory measures is not excluded by the [ICSID] Convention of
Washington and can only be excluded by the express agreement of the parties or
by a tacit agreement arising from the adoption of arbitration rules including such a
renunciation. "). For a recommendation of an ICSID tribunal confirming the rule of
exclusivity, see, e. g., MINE v. Guinea, Decision of Tribunal, 4 December 1985,
cited in 4 ICSID Rep 41.
67 This amendment is in line
with the French Court of Appeal decision in Atlantic
Triton. See 26 ILM 373 (1986). The amendment was proposed "as an elaboration
upon Article 26 of the Convention" (see, e. g., Parra, The Practices, 38) and
unanimously adopted by the ICSID Administrative Council (see Res.
AC(18)/RES/57, Annual Report, 14,18 (1985)). See, e. g., Gaillard / Savage
(eds. ), para. 1309. However, Collins, for instance, rightly argues that national
courts may disregard Rule 39(5) because they may find that this Rule "may be
outside the scope of the rule-making power in Article 44 of the Convention, and
that some national courts will on grounds of public policy regard the agreement to
oust their jurisdiction ineffective. " Collins, Provisional, 105. This is, particularly, so
where no arbitral tribunal is in existence at the time when the request is made. It
should, however, be noted that no court yet found Article 39(5) ineffective on any
ground since the Rules' amendment. If parties wish to empower local courts to
grant provisional measures they should do so by an express agreement. In fact, a
suggested text for such an agreement is provided in the recent ICSID model
clauses:
Without prejudice to the power of the Arbitral Tribunal to recommend provisional
measures, either party hereto may request any judicial or other authority to order
any provisional or conservatory measure, including attachment prior to the
institution of the arbitration proceeding, or during the proceeding, for the
preservation of its rights and interests.
See ICSID Model Clauses, Doc. ICSID/5/rev., clause 14 (1993), reprinted in 4
ICSID Rep 357,365. Although the above clause is fully effective against an
investor, it may be "curtailed by considerations of sovereign immunity" against a
state. Delaume, Transnational Contracts, 45. It was also stated that the examples
of express agreements, which provide access to local courts for the grant of
provisional measures may be found, in practice, in financial agreements between
bankers and foreign governmental borrowers. See Delaume, Practical Aspects,
582.
105
proceeding, for the preservation of their respective rights and
interests.
3 Exclusive Judicial Powers to Grant Provisional Measures
A small number of national laws68 and arbitration rules69 empower

judicial authorities exclusively to grant provisional measures. There are
several arguments for the exclusive court jurisdiction. 70 Historically,
judiciary disapproved the idea of arbitrators, private individuals
adjudicating disputes." The reasons were generally related to the
arguments that arbitral jurisdiction "might endanger state jurisdiction
68 Argentina (Article 753

of the National Code of Civil and Commercial Procedure
1982), Austria (Articles 588 and 589(l) of the Austrian CCP 1895, as amended),
Brazil (see Matthew Heaphy, "The Intricacies of Commercial Arbitration in the
United States and Brazil: A Comparison of Two National Arbitration Statute, " 37
USFL Rev 441,455 (2003)), China (Articles 28 and 46 of the Arbitration Law),
Czech Republic (Section 22 of the Law on Arbitral Proceedings and Enforcement
of Arbitral Awards 1994), El Salvador (Smit / Pechota, 1558), Finland (Section 5(2)
of the AA 1992), Italy (Article 818 of the CCP 1990), Japan (Smit / Pechota, 1942),
Libya (Article 758 of the CCP), Liechtenstein (Article 605 of the CCP), Malaysia
(McClendon, 73), Oman (Smit / Pechota, 2205), Panama (Article 1444 of the
Judicial Code 1988), Philippines (Section 14 of the Arbitration Law 1953), Quebec
(Article 940(4) of the Arbitration Law), Singapore (McClendon, 94), and, arguably,
Spain. It seems that even the new Spanish Civil Procedure Code 2001 does not
expressly empower arbitrators to grant provisional measures. To this end,
opponents of arbitral provisional measures seem to boost their position with the
new law's lack of regulation. This author wishes to thank to his colleague Rosa
Lapiedra for her insightful comments on the new Spanish legislation.
69 Out of the arbitration rules surveyed only the Arbitration Rules of the Chinese
International and Economic Trade Arbitration Commission (the "CIETAC")
expressly oust the arbitral jurisdiction for the grant of provisional measures. Under
the CIETAC Rules, the parties cannot directly make their application to the relevant
judicial authority. This application can only be made through the Arbitration
Commission of the CIETAC. The Court will then pass the application to the
relevant judicial authority. It is stated that requests for provisional measures are
rarely made before the CIETAC. See Jonathan Crook, ul-eading Arbitration Seats
in the Far East: A Comparative Study" in: Frommel / Rider (eds. ), 63,71. It seems
that the Arbitration Court has no discretion in regard of passing the application on
to the relevant judicial authority. See Article 28 of the Chinese Arbitration Law.
See also Cecilia Hbkansson, Commercial Arbitration Under Chinese Law
(Uppsala: lustus 1999), 145. Whether or not a request for a measure can be
made directly to a court prior to making application for arbitration with the
commission is not clear. Some courts accepted such application whereas others
denied them due to the fact that they were not made through the Commission. Id.,
146-147.
70 Indeed, arguments
made in favour of concurrent jurisdiction approach may, to a
certain extent, be used for supporting exclusive-court-jurisdiction approach.
71 See
supra Chapter 1, Part 2.
106
and the high ideals of impartial justice". 72 Although the jealousy and
those fears are now redundant in majority of jurisdictions, their
residue
can still be found in a number of states, particularly in states where
arbitration laws have not recently been reformed. Today, it seems that
the choice of exclusivity is more political than philosophical.
Hence, it is argued that since arbitrators have no coercive powers to
enforce their decision on provisional measures they should not render

such decisions in any case. 73 It is further indicated, perhaps because
of arbitrators' lack of power concerning coercive measures, that "the
grant of provisional relief is not to be subject of a legal dispute with
respect to which parties may enter into a binding private settlement
agreement .... "74 As a result, "[p]arties cannot refer to arbitration issues
that they would not be entitled to settle. ,75 Moreover, it may be argued
that the main benefit of exclusive judicial jurisdiction to issue a
provisional measure today is the possibility of having enforceable

measures at anytime and anyplace within the state where the measure
granted. 76 Further, in this regard, it is arguable, for a small number of
72 Id. There were also "practical problems of one party only (ex parte) applications,
the time inevitably taken to bring the tribunal together, and the need for
enforcement powers on the part of the forum making the order. " See Lew /
Mistelis / Kröll, para. 23-10.
73 To this end, Bernardini states that empowering arbitrators to grant provisional
measures is prevented by "[t]he traditional view that the coercive powers are
State courts. " Piero Bernardini, The Italian Law on Arbitration -
vested only with
Text and Notes (The Hague: Kluwer 1998), 15, n. 30. This outdated view has long
been abandoned by many states. To this end, arguments for distinguishing
jurisdiction to grant interim measures and jurisdiction to enforce those measures
See, Robert Briner, "Special Considerations Which
were also very helpful. e. g.,
May Effect the Procedure (Interim Measures, Amiable Composition, Adaptation of
Contracts, Agreed Settlement)", in: Albert Jan van den Berg (ed. ), Planning
Efficient Arbitration Proceedings - The Law Applicable to International Arbitration,
ICCA Congress Series No. 7 (The Hague: Kluwer 1996), 362 ("Planning Efficient
Arbitration").
74 Bösch (ed. ), 52.
's Id., 377.
76 Karrer, Less Theory, 108. It should, however, be noted that the arbitrating parties
the subject matter of arbitration generally has no connection with that state.
or
Thus enforceability within the state where the measure is granted would not be a
great benefit. See infra Chapter V, Part 3.2.
107
cases, that judicial authorities may be a speedier and, thus, more
efficient forum than arbitrators for the grant and execution of interim
measures of protection."
None of the above reasons justify, in this author's view, the exclusive
jurisdiction of courts for interim measures of protection due mainly to
principle of party autonomy in arbitration and the other reasons in
favour of arbitral jurisdiction to grant such measures.78
Where courts have exclusive jurisdiction to deal with provisional

measures, an interesting question may arise: could arbitrators grant
provisional measures regardless of courts' exclusive jurisdiction? An
arbitral tribunal could in all circumstances "recommend" or "propose" to
the parties certain measures for protection of rights, e.g. measures for
non-aggravation of disputes.79 Apparently, whether that
77 It is interesting to note Article 753 of the National Code of Civil and Commercial
Procedure 1982 of Argentina, which provides: "[a]rbitrators cannot issue orders of
compulsion or enforcement. They must request compulsory measures from the
court which shall lend its assistance in order to achieve speediest and most
efficient conduct of arbitral proceedings." (Emphasis added.) However, one should
be reminded of the arguments in favour of jurisdiction of arbitrators to grant
provisional measures. See Chapter II, supra Part 1.1.
78 See Chapter II, Part 1.1.
79 Some commentators
argue that the tribunal has the power to issue orders or
awards on interim measures despite the fact that the law of the place of arbitration
reserves such power exclusively to national courts. See, e. g., Briner, 364; Bucher /
Tschanz, para. 170; and Blessing, paras. 850-51. They state that the prohibitions
of the lex arbitri on the arbitral power come into play where the arbitral measure
granted necessitates court assistance at the seat of the tribunal. Briner, 364; and
Blessing, para. 851. In this regard see also Warth Line, Ltd v. Merinda Marine Co.,
778 F. Supp. 158 (S. D. N.Y. 1991) (denying the claim that arbitrators do not have
power to grant provisional measures due to foreign law exclusively empowering
courts to order such measures. ). But see Born, International Arbitration, 922
(arguing that an [a]rbitrator will seldom grant provisional measures unless he is
satisfied that the national arbitration legislation applicable to the arbitral
proceedings allows him to do so. "). Further, whether the form of the measure is a
recommendation or not, arbitrator should not sanction the non-compliance where
the lex arbitri prohibits arbitral provisional measures.
108
recommendation/proposition is complied with depends upon how
co-
operative the parties are. 80
4 Concurrent Powers of Judicial Authorities

and of Arbitrators
It is undisputed that an arbitral tribunal is the "natural judge" for
deciding provisional measures. 81 However, the tribunal's
exercise of
jurisdiction for such measures is, in some
cases, impossible or
`ineffective'82. This is because arbitration has certain inherent
problems
and shortcomings in respect of interim remedies. These problems and
shortcomings are mainly related to nature and operation of arbitration.
Because of the above problems and shortcomings of arbitral
competence, most legal systems, 83 arbitration 84
rules, and
commentators accept the benefit of concurrent jurisdiction of arbitrators
and of courts for the grant of provisional measures. 85 This concurrent
jurisdiction aims to provide resolution to the problems and
shortcomings. Court involvement makes arbitration an effective means
of dispute resolution and thus assisting its survival as a dispute

resolution mechanism. 86
80 As indicated by Article 26(2) of the Concordat, the parties "may voluntarily submit
to provisional orders proposed by the arbitral tribunal. "
81 See Chapter II, supra Part 1.
82 Id.
83 There are two arbitration conventions dealing with provisional measures. The
European Convention recognises the concurrent jurisdiction of arbitrators and of
courts. See Article VI(4). However, under Article 26 of the ICSID Convention, the
court involvement for assistance is, unless otherwise agreed, prohibited. See
Chapter II, supra Part 2. For examples of national laws adopting concurrent
jurisdiction approach, see Chapter II, infra Part 4.4.
84
Annex.
85 See, e. g., Kessedjian, Court Decisions 1 (stating that "[i)nternational commercial
arbitration cannot entirely ignore national courts. Now, in the year 2001, this is a
fact, not a matter for intellectual controversy. "). See also Chapter II, infra Part 4.4.
86 To this end, it should be noted that without the assistance of a court, contracting
parties would be extremely hesitant to choose arbitration as their dispute resolution
mechanism due to the problems and shortcomings concerning arbitral jurisdiction
for providing interim protection of rights. See, e. g., "Note - Arbitration - Availability
of Provisional Remedies in Arbitration Proceedings", 17 NYULQ Rev 638 (1940).
But see Peter S. Caldwell, "Contemporary Problems in Transnational Arbitration",
in: APEC Symposium on Alternative Mechanism for the Settlement of
109
The concurrent jurisdiction approach naturally
accepts that even if a
request is made to a court for interim protection of rights, the substance
of the case remains within the arbitral domain, and that such request is
compatible with the agreement to arbitrate.
The regulation of concurrent jurisdiction varies. It is necessary to

examine the variations to propose "clear rules aimed at avoiding chaotic
results" and at enhancing the effectiveness of arbitration. 87 The
approach of the national laws, court decisions, arbitration rules to
concurrent jurisdiction shapes the respective roles of arbitrators and of
judges. This approach reflects both philosophical and political
choices. 88
The examination of the laws, rules and decisions demonstrate that
most national laws and rules accept the freedom-of-choice approach.

Under this approach, parties are free to make applications either to an
arbitrator or a court. However, today the trend is that arbitral
competence to grant provisional measures is primary to judicial
competence. Thus some national laws provide for restrictions to the
parties' freedom to chose the forum to seek interim measures. So do

89 Restrictions, be it contractual or statutory,
some arbitration rules.
generally aim to avoid abuse of access to courts for provisional
measures. Consequently, the restrictions assist in making arbitration
more efficient and fair.
The concurrent jurisdiction approach inevitably invites positive and
negative conflicts of jurisdictions.
Transnational Commercial Disputes, 27-28 April 1998, Bangkok {Thailand: The

Arbitration Office 1998), 6.
87 Kessedjian, Court Decisions, 11.
88 See, in this regard, Cremades, The Need, 226.
110
The concurrent jurisdiction approach raises certain other important
issues. These issues are whether or not (i)
exclusion of judicial or
arbitral power is permissible, (ii) court assistance to foreign arbitration is
allowed, and (iii) damages could be obtained for provisional measures
and forum to seek them. 90 The law of the country where the court is
89 It is generally considered that

a party agreement may restrict that freedom.
90 There are many
other issues, which are not examined in detail in this thesis.
These issues are, inter alia, the initiation of application for judicial measures, types
of and requirements for granting of the measures. There are mainly four means of
referral of a petition for court assistance- Arbitrators may alone be allowed to make
an application to a court for provisional measures (e.g., Article 183(2) of the SPIL).
Alternatively, contracting parties can make such application only after the
permission of the tribunal. Or the parties in some cases along with arbitrators may
be free to apply to a court for provisional measures. Finally, the initiation may be
left solely to parties. The initial two approaches are aimed to give the arbitrators an
initial screening power for vexatious interim remedy applications to a court. The
third and the fourth approaches are more in line with the principle of party
autonomy than the first two approaches. Particularly, the last approach is
recognised by many national laws. Those two approaches are not free from
criticism. The main criticism is the lack of initial screening done by arbitrators
(unlike the initial two approaches) for avoiding oppressive applications, However,
the lack of such preventive measure may be overcome through screening by
courts and arbitral tribunals of the application after it is made. To this end, there is
a burden, under those approaches, on both judicial authorities and arbitrators to
avoid vexatious applications. There is also a burden on the parties in choosing the
rules applicable to arbitration and the place of arbitration. The parties are advised
to act prudently in choosing the applicable rules and the place of arbitration, that
allow courts or arbitrators to avoid vexatious applications for interim measures.
The types of measures that could be granted by judicial authorities differ from one
to
country another. The types are generally left to the procedural law of the country
where the is
court assistance sought. Some national laws, for instance, provide for
list of measures that could be granted for assisting arbitration. See, in this regard,
e. g., California (Section 1297.93 of the CCP); England (Sections 43-44 of the AA
1996); Hong Kong (Section 2GB of the Arbitration Ordinance), Hungary (Section
37 of the Act LXXI on Arbitration 1994)- India (Article 9 of the Arbitration and
ý
Conciliation Ordinance), Ireland (Section of the AA 1998), New Zealand (Article
9(2) of the First Schedule to the AA 1996); Oregon (Section 36.470(3) of the
International Commercial Arbitration and Conciliation Act); Scotland, (Article 9 of
Schedule 7 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990);
Singapore (Section 27(l) of and the Second Schedule to the AA); Texas (Section
172.053 of the Act Relating to Arbitration or Conciliation of International
Commercial Disputes); and Zimbabwe (Article 9 of the AA 1996)). It is noteworthy,
in regard of England that the courts' powers exercisable in assistance to arbitration
include, for instance, an interim injunction restraining a party to remove its assets
from the jurisdiction (freezing order (Mareva injunction)), and an order for
(search (Anton Piller) order). It is also noteworthy that
preservation of evidence
Section 44(2)(a) of the EAA 1996 is related to the taking/collection of evidence but
See, in this regard, Viking Insurance Co v. Rossdale
not preservation of evidence.
Others, Commerce & Industry Insurance Co. of Canada and Another v.
and
located91 would be applicable to those issues. Any application to a
judicial authority should be notified to arbitrators for such
applications
may affect the substance of the case and may result in conflicting /
overlapping decisions, and for as a matter of courtesy. 92
Certain Underwriters at Lloyds and Others, (2002] 1 WLR 1323, [2002] 1 Lloyd's
Rep 219. The drafters of the Model Law, in contrast, found it
unnecessary to
specifically list the various possible measures; instead, they found it more
appropriate that Article 9 of the Model Law contain a general formula perhaps
partly because the measures "were an integral part of the general procedural law
applied by the court. " See UN Doc A/CN. 9/245, para. 188, reprinted in Holtzmann
/ Neuhaus, 340; and UN Doc A/CN. 9/216, para. 69, reprinted in Holtzmann I
Neuhaus, 336-37. It is, in respect of the types of measures, interesting to further
note that a contractual limitation, if it is held valid, could restrict the types of judicial
measures. See, e. g., Article 10(3) of the Arbitration Rules of the AFMA. On the
requirements to grant provisional measures, it should be noted that they too differ
from one legal system to another. In very broad terms, fumus boni juris and
periculum in mora are required in various legal systems. On these requirements
see, generally, infra Chapter IV, Part 3.
91 Even if the
parties are agreed to arbitrate the issue under national law different
from the law of the place of arbitration, the court at such place shall apply its own
law as regards issues on a request for a provisional measure so long as the
measure is considered as procedural but not substantive (forum regit processum).
The distinction between procedural and substantive is by no means clear-cut (see,
e. g., Lawrence Collins (gen. ed. ), Dicey and Morris on Conflict of Laws, 12 th ed.
(London- Sweet & Maxwell 1993), 170) and should be examined, in accordance
with the applicable laws in each case. For instance, under Swiss law, certain
provisional measures concerning, e. g., intellectual property and competition law
are considered substantive. See H. U. Freimuller, "Switzerland" in'. Shenton I Kuhn
(eds. ), 245. On procedural/substantive distinction, see, e. g., Lew / Mistelis I Krbll,
para. 23-9 (indicating that "[t]he power to order interim relief is generally classified
as a matter of procedure and therefore governed primarily by the law governing the
arbitration. "); Born, International Arbitration, 922; and Sigvard Jarvin, "To What
Extent Are Procedural Decisions of Arbitrators Subject to Court Review? "
("Procedural Decisions") in: Albert Jan van den Berg (ed. ), Improving the Efficiency
of Arbitration Agreements and Awards., 40 Years of Application of the New York
Convention, ICCA Congress Series No. 9, (The Hague- Kluwer 1999), 367
("Improving the Efficiency") (referring arbitral provisional measures as procedural
decisions). Further, Sanders states that an order regarding sale of perishable
goods "contains a decision on a matter of substance. " Sanders, Quo Vadis, 270.
But see Watkins-Johnson Company v. Iran, Case No. 370, Interim Award No. ITM
19-370-2 (26 May 1983), reprinted in 2 Iran-US CTR 362-363; and Ford Aerospace
and Communications Corporation, Auronatic Overseas Services v. The Air Force
Iran, Case No. 159, Interim Award No. ITM 28-159-3 (20 October 1983),
of
Iran US CTR 384-389. For these cases and the Iran-US
reprinted in 3 analysis of
Claims Tribunal's approach in this regard, see Caron, Interim Measures, 500-501.
92 The applicant is generally required to make the notification either directly or
through the arbitral tribunal (e. g., Section 12 of the Arbitration Rules 1996 of the
Arbitration Court Attached to the Economic Chamber of Commerce of the Czech
Republic; and Article 25 of the Arbitration Rules 1998 of the LCIA). The duty of
for instance, has been part of the ICC Arbitration Rules since 1939
notification,
(Article 23(2) of the 1998 Rules, Article 8(5) of the 1975 and 1988 Rules, Article
13(5) of the 1955 Rules, and Article 11(4) of the 1939 Rules). In fact, under the
112
This Part examines (i) reasons in support
of concurrent jurisdictions of
courts and of arbitrators, (ii) jurisdiction on the merits and principle of
compatibility, (iii) court assistance to foreign arbitration, (iv) the manner
in which the distribution of the jurisdiction between
courts and
arbitrators is done, (v) exclusion agreements, and (vi) conflict of
jurisdictions.
4.1 Reasons In Support of Concurrent Jurisdiction
There are several reasons in support of concurrent jurisdiction of
arbitrators and of courts for interim protection of rights. These reasons

are related to nature and operation of arbitration. The reasons derive
from arbitration's three salient problems and various shortcomings in
responding to contracting parties' need for interim protection of rights.

This Part examines these problems and shortcomings, respectively:
Arbitrators, 93
prior to their appointment, are not in a position
0
to grant any interim measure. It may take months to form an
arbitral tribunal. 94 In order to overcome this first salient
ICC Rules, any application for, and the grant of a provisional measure should be
notified to the ICC Secretariat without delay. The consequence of failure to comply
with the duty to inform arbitrators is not dealt with in any of the rules surveyed.
Such failure should not affect the validity of the application or the measure in
question. See ICC Award 2444 of 1976, extracts published in (1977) Clunet 932,
and Sigvard Jarvin / Yves Derains, Collection of ICC Arbitral Awards 1974-1985
(Deventer / Boston: ICC Publishing / Kluwer 1990), 285; ICC Award 4415 of 1984,
extracts published in (1984) Clunet 952,957, and ICC Award 5103 of 1988,
extracts published in (1988) Clunet 1206. See also Yves Derains, "Note", (1977)
Clunet 932,935. In case the applicable rules or laws do not provide for it, informing
the tribunal of the request is advisable as it demonstrates the relevant party's good
will in its action. At least, it is a courtesy to the tribunal and to the relevant
93
arbitration institution to make such a notification.
Even if the tribunal is appointed it needs, in some cases, to await transmittal of the
file to it prior to issuing any measure. See, e. g., Article 23(1) of the ICC Arbitration
Rules.
94
This statement is particularly true where the tribunal consists of more than one
members. Also, a party might delay proceedings for provisional relief by simply not
appointing an arbitrator. Hausmaninger, Pre-Arbitral Referee, 89. Such delay may
frustrate, at least to a certain degree, the proceedings for interim protection.
Apparently, this is where the concept of interim measures is considered as a
procedural matter. On the procedural / substantive distinction see Chapter II,
11)
problem, various complementary mechanisms
are proposed.
Under these mechanisms, a
party-determined authority is
empowered to issue
emergency measures prior to
appointment of arbitrators. 95 However, in any case, courts
may grant those measures any time (generally, at a day or
night) when a need arises.
0 Arbitrators have no power (jurisdiction) over third
parties to
arbitration agreement due to contractual (consensual) nature
of arbitration. 96 In international arbitrations, involvement of
such third parties as banks (as issuers of letters of credit or
bank guarantees) and persons (who, e. g. may legally hold
goods in dispute; subcontractors) is sometimes unavoidable.

However, since arbitrators' power derives from arbitration
agreement, no arbitral power could be exercised over legal

rights of third parties to arbitration. Indeed, an arbitral
tribunal has "no power to give directions to third parties (e.g.
to banks where funds of the opponent are placed) 97 For this
.,,
reason, it was argued that "arbitrators' conservatory orders
supra note 91. In such cases, an aggrieved party may press for constitution of the
tribunal despite the resistance from the opponent through a petition either to,
where possible, party-determined authorities or, in general, to judicial authorities.
See, e. g., Section 44 of the EAA 1996.
95
See, generally, infra Chapter III.
96
Indeed, the Model Law indicates that an arbitral tribunal operating under the law
may order "any party" to take interim measures. Article 17.
97 in 8(1) ICC Intl Ct Arb
ICC First Interim Award 5835 of 1988, extracts published
Bull 67 (1997). See also ICC Final Award 9324 of 1998, extracts published in
11(1) ICC Int'l Ct Arb Bull 103 (where the arbitral tribunal refrained from extending
injunction for suspension of payment of a bank guarantee issued by a court
an
due to the fact that the dispute arose); ICC Final Award 10062
against a bank main
2000 (unpublished) (where the arbitral tribunal refrained from making an order
of
bank, in an arbitration arising from a sale/purchase agreement to which
against a
the bank was not a party); and Lance Paul Larsen v. Kingdom of Hawaii
(indicating, in procedural order no. 3, that the tribunal has no jurisdiction over third
to the arbitration agreement involved. ), available at <www. pca-
parties
last visited at 28 October 2003.
cpa. org/PDF/LHKAward. pdf>
114
are under [certain] aspects less protective than
... attachment
orders rendered by a state court. ,98
Despite the unavailability of arbitral

against third parties, it should be noted that an interim
measure may be extended to, as the case may be,
arbitrating parties' "officers, agents, servants, employees,
and attorneys" and those persons controlled by the parties or
their officers. 99 Further, in some cases, an arbitral direction
to an arbitrating party could have the intended result. For
instance, an arbitral tribunal does not have the power to
issue a freezing order towards a non-party bank but it can
order the relevant party before it to refrain from moving the

assets elsewhere. 100 It should also be noted that the
tribunal's decision "reflects on the rights of third parties. "101
For instance, despite the fact that an arbitral tribunal does
not have any power, as indicated above, to issue a

provisional measure over a guarantor who is not a party to
the arbitration agreement, an arbitral decision on the main
the guarantor. 102
obligation unavoidably affects
" Arbitrators' power, even over arbitrating parties, is restricted
since arbitrators have no coercive powers (imperium) to
enforce their decisions. Coercive powers are within the
98 ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC Int'l Ct Arb
Bull 67 (1997). See also Redfern / Hunter, para. 7-24 (indicating that arbitral
measures could be directed to "any persons or entities"
orders on provisional
within the parties' control. ).
99 In Order of 1999 in AAA Case No. 52 153 00116 87, the tribunal expressly
the (unpublished). On this case, see infra
extended its order to above persons
Chapter IV, note 115.
, oo Such an order should not, in the view of this author, infringe the doctrine of comity
due to the principle of party autonomy. See, in this regard, Chapter II, infra note
272 and accompanying text. But see Karrer, Less Theory, 106. On the doctrine of
R. Paul, "Comity in International Law", 32 Harv Int'l LJ 1
comity, see, e. g., Joel
(1991).
101 Karrer, Less Theory, 105.
I15
prerogative of a state and no state would delegate
such
powers to private individuals. An arbitrator is not "an
emanation" of any state. 103 Hence, "[n]ot even the arbitrators'
directions to the parties themselves
are self-executing. "104
Also, there is no "contempt to court" in 105
arbitration.
Accordingly, arbitrators generally refrain from
ordering
measures that intrinsically require the use of coercive
powers. 106 However, as compared to arbitral measures,
judicial provisional measures may provide relatively more
legal protection. These considerations led to the view that
arbitral measures are "often" ineffective as they lack "coercive
elements". 107 However, it should be noted that effectiveness
of arbitral provisional measures would not necessarily be

harmed in each case. Arbitrators have certain other powers
102 For further examples see, e. g., id.

103 Bond in: ICC (ed. ), Conservatory Measures, 14. See also Julian D. M. Lew,
Applicable Law in International Commercial Arbitration (Dobbs Ferry / New York-
Oceana 1978), 535 (arguing that "an international arbitration tribunal is a non-
national institution; it owes no allegiance to any sovereign State-, it has no lex fori in
the conventional sense"). On the last point see, e. g., A. F. M. Maniruzzaman,
"International Arbitrator and Mandatory Public Law Rules in the Context of State
Contracts: An Overview", 7(3) J Int'l Arb 53-64 (1990); Klaus Peter Berger, "The
International Arbitrators' Application of Precedents", 9(4) J Int'l Arb 5-22 (1992)1
and Lew / Mistelis / Kr6lI, para. 6-33. For a view to the contrary, see David, 76-77.
It is noteworthy in this regard that adjudication of a dispute by a private individual
was allowed by the state under Roman law for a period of time. See Introduction,
note 33.
104 ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC Int'l Ct Arb
Bull 67 (1997). See also Stalev, 110. It should be noted that arbitral decisions on
through the assistance of courts. See infra
provisional measures are enforceable
Chapter V, Part 3.
105 In Arbitration Between Unione Stearinerie Lanza & Wiener, [1917] KB 558,559
re
(holding that an arbitrator has no power to hold a party contempt to a court or to
issue a writ of attachment. ).
106 See, e. g., ICC Final Award 7828 of 1995 (unpublished) (holding that "it exceeds
the arbitrator's competence to subject the Defendant to attachment if he fails to
the period of two weeks. "), and ICC Final Award
pay the ordered amount within
7589 of 1994, extracts published in 11(l) ICC Int'l Ct Arb Bull 60 (2000) (holding
that the arbitral tribunal does not have power to order measures "designed to
award such as attachment of assets at third-
ensure enforcement of a possible
debtors banks, or orders directed to third-party debtors to take or
party such as
(e. g. Mareva Injunction)". ).
omit certain actions
116
and means that may make their decision to
carry some
weight. 108 Indeed, arbitral provisional
measures are often
complied with. 109 Further, there is a growing tendency under
national laws for making such measures enforceable. '10
" The arbitrators may not always have the
necessary powers to
issue interim measures. "' Indeed,
some national laws and
arbitration rules, to a certain extent, prohibit or restrict arbitral
provisional measures. To this end, it is noteworthy that some
national laws12 and arbitration rules13 restrict the types of
measures that could be granted by an arbitrator.
" It was argued that arbitrators may hesitate granting
provisional measures for various reasons and such hesitation
'0" See infra Chapter V, Part 1. Also,

arbitral decisions can be far more flexible than
judicial provisional measures. See this Chapter 11,supra Part 1.1. Such flexibility
enhances, in some cases, the effectiveness of the measures.
109 See infra Chapter V, note 2.
Arbitrators are not allowed to grant measures that intrinsically require use of
coercive powers, e. g., attachments.
112 See, e. g., Article 17 of the Model Law, and Article 38(4) of the EAA 1996 (both
imposing restrictions as to the "subject-matter of the dispute" or "the subject of the
arbitral proceedings", respectively. ). On the nature and extent of these restrictions,
see Chapter 11,infra note 113.
113 For instance, the texts of Article 21 of the AAA-ICDR Arbitration Rules; Article 26 of
the UNCITRAL Arbitration Rules; and Article 17 of the Model Law appear to
contain a restriction on subject matter of dispute. See, e. g., Redfern / Hunter,
paras. 7-22 & 7-23; and Gr6goire Marchac, "Interim Measures in International
Commercial Arbitration under the ICC, AAA, LCIA and UNCITRAL Rules", 10 Am
Rev Int'l Arb 123,128 (1999). If such interpretation is accepted, then an arbitral
tribunal cannot grant such provisional measures as those aiming at preserving
status quo or at prevention of flight of assets. Id., paras. 7-21, and 7-26. However,
the texts of the above provisions should not be literarily read. The limitation as to
the subject matter ought to be related to the rights regarding the subject matter.
Indeed, it is an established rule that "interim measures are intended to protect
rights relating to the subject-matter of the dispute. " Caron, Interim Measures, 485.
See also, e. g., Case Concerning the Polish Agrarian Reform and the German
Minority (Poland v. Germany), Order of 29 July 1933, PCIJ Judgments Orders and
Advisory Opinions, Series A/B, No. 58; and RCA Globcom Communications and
The Islamic Republic of Iran, Interim Award No. 30-160-1 (30 October 1983),
reprinted in 4 Iran-US CTR 5-8. The limit of interim protection is, accordingly,
11 to rights not a part of the dispute. " Id. The practice of the Iran-
actions prejudicial
US Claims Tribunal supports this view. Id. See further Otto Sandrock, "The
Cautio Judicatum Solvi in Arbitration Proceedings or The Duty of an Alien Claimant
to Provide Security for the Costs of the Defendant", 14(2) J Int'l Arb 17,35 (1997)-t
and Lew / Mistelis / Kr6II, para. 23-41.
117
is a shortcoming of arbitration justifying concurrent
jurisdiction. ' 14 The hesitation may be based on the fear that,
by proving wrong, arbitrators might be held liable. 115
However, the existence of that fear is theoretical as no
arbitrator has, in practice, been held liable. ' 16 The hesitation

may also be related to the arbitrators' desire not to be
appearing to "favour one litigant at an early stage of the
114 See,
e. g., Lew, Jurisdiction, 6. It is, for instance, submitted that arbitrators from
civil (continental) law countries are less likely to grant provisional measures than
those from common law countries. It is argued that the difference in those
countries is laid down on varying legal traditions- it is often more difficult to obtain
an interim remedy in a civil law country than that in a common law country. See
Cremades, The Need, 230. This author, however, disagrees with the above
argument. Also, that argument does not reflect the arbitral practice today. There
are several reasons for that. The main reason is perhaps the fact that arbitrators
should not have prejudices towards the parties and the case in dispute. Further,
many arbitrators today have theoretical and practical knowledge of both common
and civil law.
116 Sanders, as an academic
and practitioner involved in arbitration over 60 years,
states that "[c]ourt proceedings against arbitrators are highly exceptional and if
...
instituted as far as I [he] know, unsuccessful. " Sanders, Quo Vadis, 236. See also
Karrer, Less Theory, 109. Arbitrators are generally not held personally liable where
their decisions rendered in good faith. Under the approach accepted by many
laws, liability of arbitrators is restricted to very limited circumstances. For instance,
arbitrators may be held liable for "deliberate wrongdoings" or their acts or omission
of "bad faith. " See, e. g., Section 29 of the EAA 1996; and Article 7(E) of the
Turkish International AA. See also, in this regard, Sanders, Quo Vadis, 234. On
the issue of liability see, e. g., Julian D. M. Lew (ed. ), The Immunity of Arbitrators
(London: Lloyd's of London Press 1990); Alan D. Redfern, "The Immunity of
Arbitrators" in- ICC (ed. ), The Status of the Arbitrator (ICC Publishing, 1995), 121 -,
Eric Robine, "The Liability of Arbitrators and Arbitral Institutions in International
Arbitrations Under French Law", 5(4) Int'l Arb 323 (1989), - Christian Hausmaninger,
"Civil Liability of Arbitrators-Comparative Analysis and Proposals for Reform", 7(4)
J Int'l Arb 5 (1990); and Susan D. Franck, "The Liability of International Arbitrators:
A Comparative Analysis and Proposal for Qualified Immunity", 20 NY Law School J
Int'l And Comp Law 1 (2000). See also Cubic Defense Systems, Inc. v.
International Chamber of Commerce, extracts from the French original published
in XXIVa YCA 287 (1999) (15 September 1998, Court of Appeal, Paris) (holding
that the ICC could only be held liable where its breach of duty is proved. ), and
Corbin v. Washington Fire & Marine Insurance Co., 278 F. Supp. 393 (D. S. C.
1968), app'd 398 F. 2d 543 (4 1hCir. 1968). It is also noteworthy that, under the ICC
Arbitration Rules 1923, arbitrators were contractually immune from liability for
damages arising from decisions as regards provisional measures. The immunity
dropped forever from the Rules in 1927 along with the provision on interim
measures. See supra Chapter 1, Part 1.2.1. Restricting arbitrators' liability aims to
provide for the proper environment in which arbitrators can distribute justice free
from considerations of being held liable. Any damages arising from wrongful
measures could be compensated from, if obtained, the security for damages.
118
proceedings". 117 Generally, the court, which grants a
provisional measure is generally not the same as the one that
adjudicates the merits. This fact, however, should not be a
basis for an argument that arbitrators giving
a decision in
regard of a request for a provisional measure not on the
merits of a case appears favouring one side over the other. It
may be considered that such appearance occurs where
arbitrators take into account likelihood of success on the
merits. Nonetheless, it is not always the case that arbitrators
take into account likelihood of success on the merits. They
rather take into account whether or not there is a prima facie

case. 118 Even if a tribunal considers the likelihood of success
on the merits and renders a provisional decision, it can

change its decision after thoroughly examining the merits. 119
It should further be noted that arbitrators' hesitation for the
granting of provisional measures is in the sharp decrease. 120
" In international arbitrations, decision making even after the
appointment of arbitrators may be comparatively slow. This

is because an arbitral tribunal usually consists of "several
members in different, even in distant countries. 02 1 The
members are generally from different countries due to the
principle of neutrality. This fact, for some, "casts doubt on

the tribunal's ability to take truly urgent measures. "122 Such
doubt relies on inability of such tribunals to act with the
for those measures. 123 The
necessary speed on a petition
117 Paulsson, Better Mousetrap, 215; and Marchac, 129.

118 See infra Chapter IV, Part 3.1.2.
120 See arbitral cases generally referred to in infra Chapter IV.
121 ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC Intl Ct Arb
Bull 67 (1997).
122 Hausmaninger, Pre-Arbitral Referee, 88; and Craig / Park / Paulsson, ICC
Arbitration 2000,471.
123 Craig / Park / Paulsson, ICC Arbitration 2000,471.
119
assumption that tribunals act slower because the
members
are from different and distant countries to each other is
not
entirely true. Arbitrators may communicate over a telephone,
video-link or internet for a decision on the petition. Further, it
should be kept in mind that the chairman of the tribunal may
alone be empowered to deal with urgent situations or to
decide on such procedural issues as interim 124
measures.
0 In cases where arbitrators have no legal background, it is
contended that they "may often lack the proficiency required

to handle adequately a provisional remedies procedure 025
.
Parties and arbitration institutions as appointing authorities
are randomly careless in appointing inexperienced

arbitrators. Further, experience demonstrates that arbitrators
who are appointed from outside the legal profession are

generally very experienced in a particular field with a certain
degree of knowledge on legal issues, and that non-legal
arbitrators are generally appointed along with arbitrators with

legal background. In fact, it is not a general practice in
international commercial arbitration that the sole arbitrator or
the chairman of arbitral tribunal is appointed from outside the
legal profession.
0 Finally, it is contended that because arbitration is "typically a
one instance procedure, " such remedies available against

typical judicial measures as "motion to appeal, vacate or
modify" "will generally be absent in an arbitration proceeding

[against arbitral orders]. "126 It is added that "since provisional
measures cannot readily be issued as (interim) awards, the
124 This is where the interim measure requested is considered as a procedural matter.
See Chapter II, supra note 91.
125 Hausmaninger, Pre-Arbitral Referee, 89 (Emphasis in the original).
126 Id., 91. Certain commodity arbitrations constitute exceptions to arbitrations being
one-instance procedure. See Chapter II, supra note 33.
120
responding party is practically left without
means to have the
arbitral order set aside. "127 Although these
arguments are
true to a certain extent, they underestimate the facts
that an
arbitral order could always be amended or revoked
under
new circumstances and that, in arbitral practice, provisional
measures are, in some cases, granted in the form of
award. 128
4.2 Jurisdiction on the Merits and Compatibility of Request for

Judicial Provisional Measure with Agreement to Arbitrate
A request to a judicial authority for a provisional measure, either before
or during the arbitral proceedings is compatible with the agreement to

arbitrate. 129 One aspect of the doctrine of compatibility reflects dual
principles, which are, in fact, a logical conclusion of acceptance of the

concurrent jurisdiction approach: 130(i) the request is not a waiver of the
right to arbitrate, 131 (ii) nor does the existence of an arbitration
agreement prevent a judicial authority from granting an interim
measure. 132 What naturally derives from the latter principle is that
127
Hausmaninger, Pre-Arbitral Referee, 91.
128
See infra Chapter IV, Part 4.
129 The doctrine of compatibility sets forth that "the 'negative effect' of an arbitration
agreement, which is to exclude court jurisdiction, does not operate with regard to
such interim measures. " See LIN Doc A/CN. 9/264, para. 1, reprinted in Holtzmann
/ Neuhaus, 343.
130 See, e.g., Article 9 of the Model Law. These principles seem to be adopted in
almost all of the Model Law jurisdictions and jurisdictions that accept arbitral
powers to grant provisional measures (e.g., Belgium (Article 1679(2) of the Judicial
Code 1972, as amended), and the U.S. (see Born, International Arbitration, 959)).
Thirteen of the arbitration rules surveyed contain this principle. See Annex.
Further, Article VI(4) of the European Convention accepts the principle of
compatibility. In this regard, see also, e.g., Bahia Industrial, S.A. v. Eintacar-Eimar,
S.A., XVIII YCA 616 (1993) (Audencia provincial of Cadiz, 12 June 1991).
13 For instance, under Article 9 of the Model Law, the principle of the non-waiver is
applicable regardless of where the arbitration takes place. See Article 1(2) of the
Model Law. See also, e.g., ICC Award 4156 of 1983, extracts published in (1984)
Clunet 937, and Jarvin / Derains, 515; and ICC Award 4415 of 1984, extracts
published in (1984) Clunet 952.
132 This principle is adopted in Article 9 the Model Law for clarifying the practice under
the New York Convention. See, e.g., LIN Doc A/CN. 9/168, para. 29, reprinted in
Holtzmann / Neuhaus, 333-34; and UN Doc A/CN. 9/207, para. 61, reprinted in
121
despite the initiation of the request, the
merits of the case in question
remains within the arbitral domain. In other words, so long as the
request is for a provisional measure, 133the arbitration agreement is not
waived.
As to the judicial grant of provisional measures, national laws,

arbitration
rules and scholars generally and rightly accept that an
agreement to arbitrate does not and should not hinder the grant of the
measures by courts. This is simply because the court intervention does
not hinder but assists the effectiveness of arbitration. Indeed, the
unavailability of judicial provisional measures in arbitration proceedings
would normally be one of the most important reasons for not choosing
Holtzmann / Neuhaus, 334-35. In other words, the negative effect of an arbitration

agreement; namely, the exclusion of court's jurisdiction is not operable as regards
provisional measures. That is mainly because of the fact that "the availability of
such measures is not contrary to the intentions of the parties agreeing to submit a
dispute to arbitration and that the measures themselves are conducive to making
the arbitration efficient and to securing its expected results. " UN Doc A/CN. 9/26,
para. 1, reprinted in Holtzmann / Neuhaus, 343. On the principle of non-waiver,
see also, e. g., ICC Award 2444 of 1976, extracts published in (1977) Clunet 932.
Whether or not the measure granted is an interim measure is determined under
the law of the country where the application for the measure is made for. For
instance, Article 9 of the Model Law does not restrict the courts' grant of any
particular kind of interim measures. See, e. g., UN Doc A/40/17, para. 96, reprinted
in Holtzmann / Neuhaus, 345.
133 Whether or not a relief is qualified as 'provisional' is subject to the applicable law.
The treatment under national laws may vary. In any case, the examples to
measures that would probably be considered provisional are the issuance of
11
payment of bond in summary proceedings" (e. g., ICC Partial Award 6566 of 1993,
extracts published in 11 (1) ICC Int'l Ct Arb Bull 48 (2000), application for garnishee
order (e. g., ICC Interim Award 6023 of 1989 (unpublished. )), a request for a
referee proceedings (e. g., ICC Interim Award 6709 of 1991, extracts published in
(1992) Clunet 998; 5(l) ICC Int'l Ct Arb Bull 69 (1994)- and Jean-Jacques Arnaldez
/ Yves Derains / Dominique Hascher, Collection of IC6 Arbitral Awards 1991-1995
(The Hague / London / Boston- ICC Publishing / Kluwer, 1997), 435. For further
Schwartz, Provisional Measures, 53. However, where the
examples, see, e. g.,
to a court is not for an interim injunction but for a permanent injunction
application
the right to arbitrate. See, e. g., ICC
such application may constitute a waiver of
Interim Award 5896 of 1991, extracts published in 11 (1) ICC Int'l Ct Arb Bull 37
(2000) (holding that a request for a permanent injunction on the issue that, by
agreement, fell within the arbitral domain was a waiver of the right to arbitrate. ),
and ICC Partial Award 10372 of 2000 (unpublished) (indicating, by implication, that
a request to a court for a permanent injunction in regard of the dispute that was
initially referred to arbitration would be considered as a waiver of the right to
arbitrate. ).
122
arbitration as a dispute resolution mechanism. 134 However, some U.S.
courts take the view that the courts' duty to refer the parties to
arbitration under Article II of the New York Convention prevents the
assistance of the courts to grant pre-judgment attachments.
Neither the text nor the preparatory materials of the Convention deal
with provisional measures. Where contracting parties agree to arbitrate

their disputes and a party, regardless of that agreement initiates a court
action, Article II of the Convention requires the courts to "refer the

parties to arbitration, " unless it finds the arbitration agreement "null and
void or incapable of being performed. "
In almost all of the contracting states of the New York Convention, it is
clear that Article II refers to the substance of a dispute and that it does
not prevent a court to intervene, for effective protection of rights and
execution of the arbitration agreement, with arbitration proceedings to
assist. 135 Some U.S. federal and state courts, however, interpreted the
language of that Article as a bar for court assistance to arbitration in
respect to pre-award attachments. Those decisions and the
unfortunate result of their interpretation are vigorously challenged by
some other U. S. courts. There is at the moment an "unfortunate split of

authority" within the U. S. concerning the availability of pre-award
attachments where a case falls within the ambit of the New York
Convention. '36
134 See, e. g., Note "Arbitration-Availability of Provisional Remedies in Arbitration

-
135 The historical evolution also supports this conclusion. Indeed, Article II is
originated from Article IV of the Geneva Protocol of 1923. Article IV aimed to
to adjudicate substance of a case where the parties were in
prevent courts
agreement to arbitration.
136 Howard M. Holtzmann / Donald Francis Donovan, "United States", in: Jan
Paulsson (gen. ed. ), International Handbook on Commercial Arbitration,
123
Article 11of the Convention requires
courts to stay adjudicating merits of
a case that was previously agreed to be resolved through
arbitration.
According to some courts, the word "stay"
means no court assistance
available to arbitration.
This line of interpretation was initially
recorded
in McCreary Tire and Rubber Co. v. CEAT, S.p. A. 137 The dispute
in this
case related to alleged breaches of an exclusive distributorship
agreement entered into between McCreary, a Pennsylvania
corporation, and CEAT, an Italian corporation. The agreement referred
disputes to arbitration under the ICC Arbitration Rules
in Brussels,
Belgium. McCreary, in an attempt to frustrate the arbitration
agreement, attached certain debts owed to CEAT and initiated a
lawsuit. CEAT removed the case to a federal court. One of the 'issues
before the Third Circuit was whether or not the pre-judgment
attachment should be removed. The Court referred the parties to
arbitration in accordance with Article 11of the New York Convention and
further held that the request for a pre-award attachment "seeks to
038
bypass the agreed upon method of dispute resolution
.
The opposite view, which seems to be the prevailing one, was taken in,
for instance, Carolina Power and Light Co. v. Uranex. 139 The dispute in
Supplement 28 (January 1999), 37 (The Hague / London / New York- Kluwer)

("International Handbook").
137 501 F.2d 1032 (3 Cir. 1974).
138 th
Id. See also I.T.A. D. Assocs., Inc. v. Podar Bros., 6*16F.2d 75 (4 Cir. 1981) For
a number of lower courts followed the McCreary line, see, e.g., Cooper v. Ateliers
de la Motobecane S.A., 442 N.S.2d 1239 (S.D.N.Y. 1982),- and Metropolitan World
Tanker, Corp. v. P. N. Pertambangan Minjakdangas Bumi Nasional (P. M.
Pertamina), 427 F. Supp 2 (S. D. N. Y. 1975). In this respect, it is noteworthy that,
where the McCreary line is accepted, there is a risk of negative conflict of
jurisdiction; both courts and arbitrators deny the issue of interim measures; e. g.,
where under the applicable rules or laws arbitrators are not empowered to grant
provisional measures. Such negative conflict brings the risk of denial of justice.
See Sigvard Jarvin, "Is the Exclusion of Concurrent Courts' Jurisdiction Over
Conservatory Measures to be Introduced by a Revision of the Convention", 6(1) J
Int'l Arb 176 (1989).
139 451 F. Supp. 1044 (N. D. Cal. 1977). See
also, e.g., E.A. S.T., Inc. of Stanford,
Conn. MN Alaia, 876 F.2d 1168 (5th Cir. 1989). This line of view supported by
several commentators. See, e.g., Hoellering, Interim Relief, 12-13; Lawrence F.
124
this case arose from the contract between Carolina Power,
a North
Carolina public utility company and Uranex, a French
company for sale
of uranium concentrates.Upon the dramatic increase in the price
of
the uranium, Uranex ceased the delivery on the contract price
and
requested renegotiation. The parties agreed to submit their disputes to
arbitration. Carolina Power attached a debt owed to Uranex for
satisfaction of a future arbitral award in its favour. Uranex moved to lift

the attachment. The Uranex court expressly refrained from following
the reasoning and the outcome of the McCreary court by stating, inter
alia, that "the availability of provisional remedies encourages rather

than obstructs the use of agreements to arbitrate. "140 To this end, it
should be noted that in Uranex, the parties had no intention to frustrate

the agreement to arbitrate.
Ebb, "Flight of Assets From the Jurisdiction 'In the Twinkling of a Telex': Pre-and
Post Award Conservatory Relief in International Commercial Arbitration", 7(1) J Int'l
Arb 9 (1990); Charles Brower & W. M. Tupman, "Court-Ordered Provisional
Measures under the New York Convention", 80 Am J Int'l L 24 (1986); Joseph D.
Becker, "Attachments in Aid of International Arbitration-The American Position",
1(1) Arb Int'l 40 (1985); New York City Bar Report on the Advisability and
Availability of Provisional Remedies in the Arbitration Process, The Record, 625,
629 (December 1984),- Reichert, 368; P. Fitzpatrick, "Attachment Prior to the
Enforcement of International Arbitral Awards Under the New York Convention", 6
Fordham Int'l LJ 556 (1983). It should also be noted that some courts, including
the Second Circuit, distinguished McCreary. They held that interim measures
other than attachments should be available under the New York Convention. See,
Sauer-Getriebe KG White Hydraulics, Inc., 715 F. 2d 348 (7 1hCir. 1983),
e. g., v.
cert. denied, 464 U. S. 1070; Rogers, Burgin, Shanine & Deschler, Inc. v. Dongsan,
598 F. Supp. 754 (S. D. N. Y. 1984); Ortho Pharmaceutical Corp v. Amgen Inc., 882
F. 2d 806 (3 rd Cir 1989); Borden, Inc. v. Meiji Milk Products Co., 919 F.2d 822 (2d
Cir. 1990); and Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith Inc., 910 F. 2d
1049(2 ndCir 1990).
140
451 F. Supp. 1052.
125
The McCreary has found little support the U. S. 141
within and it is not
followed in international arena. 142 The best display for the decline
Is
perhaps Channel Tunnel
Group Ltd and Another
v. Balfour Beatty
Construction Ltd and Others. 143 In this
case, twelve British and French
companies acting as a joint venture entered into a construction contract
with the Channel Tunnel Group Ltd to design and commission the
Channel Tunnel. The construction contract contained a dispute
resolution system, including arbitration in Brussels, Belgium. A dispute
arose over a variation order on payments regarding the cooling system.
Upon the contractors' threat that they would suspend to
work until a
decision has bees reached on the cooling system, the Channel Tunnel
Group made a request in England for an interim injunction to
prevent
the contractors from suspending the work. The contractors resisted.
The case went all the way to the House of Lords. On the issue of
whether or not a court could order an interim measure when the case
fell within the domain of arbitration and of the New York Convention,
141 Indeed, several U. S.

courts took the same line of interpretation with the Uranex
court. See, e. g., Borden Inc. v. Meiji Milk Products Co., 919 F.2d 822 (2d Cir.
1990), cert. denied, 500 U. S. 953 (1991). For lower court decisions adopting, the
Uranex line, see, e. g., Daye Nonferrous Metals Co. v. Trafigura Beheer BV, 1997
WL 375680 (S. D. N. Y. 1997); Alvenue Shipping v. Delta Petroleum (U. S.A. ), Ltd,
876 F. Supp. 482,487 (S. D. N.Y. 1994); and Filantro SpA v. Chilewich Int'l Corp.,
789 F. Supp. 1229 (S. D. N.Y. 1992). See also Section 7502(c) of the New York
Civil Practice Law and Rules. In this regard, it should be noted that, under Section
8 of the Federal AA, attachments are permitted for maritime matters regardless of
the agreement to arbitrate the underlying dispute. See, e. g., Anaconda v.
American Sugar Refining Co. 322 U. S. 42 (1944); Construction Exporting
Enterprises v. Nikki Maritime, Ltd, 558 F. Supp. 1372 (S. D. N.Y. 1983); E.A. S. T.,
Inc. of Stamford v. MN Alaia, 876 F.2d 1168 (5'h Cir. 1989); and Unitramp, Ltd. V.
Mediterranean Brokerage & Agents, S.A. S., 1993 U. S. Dist. LEXIS 13304 (E. D. La.
13 September 1993). Many commentators also support the availability of
attachments in maritime industry see, e. g., Nicholas J. Healy, "Obtaining Security
in Aid of Arbitration", 3 LMCLQ 267 (1976); and Higgins, 1519.
142 See, e. g., Scherk Enterprises AG v. Societe des Grandes Marques, No. 3989, IV
YCA 286 (1979) (Corte di Cassazione, 12 May 1977); and Rena K, The [1978] 1
Lloyd's Law Rep 545. See also van den Berg, The New York Arbitration
Convention, 139-140.
143 [1993] AC 334. As indicated above, many national laws and arbitration rules
decline to follow the views of the McCreary court by expressly adopting the
principle of compatibility. See Chapter 11,supra note 130.
126
Lord Mustill, with whom all the other Lords were in agreement,
expressly disagreed with the McCreary and stated: 144

The purpose of interim measures of protection [by courts] is not
...
to encroach on the procedural powers of the arbitrators but to
reinforce them, and to render more effective decision at which the
arbitrators will ultimately arrive on the substance of the dispute.
Provided that this and no more is what such measures aim to do,
there is nothing in them contrary to the spirit of international
arbitration.
In sum, the principle of compatibility should be accepted even if a case

falls within the ambit of the New York Convention. 145 In other words,
courts should have the power to grant provisional measures but they
should exercise utmost caution in exercising such power. 146 That is to
say, courts should distinguish and deny oppressive and vexatious

applications, e. g. a request to circumvent an arbitration agreement.
4.3 Court Assistance to Foreign Arbitration
Court assistance is generally available to arbitrations taking place in a
country where the court is located. However, vital evidence or a party's

assets from which an award would be satisfied might be in a country
foreign to the place of arbitration. In such cases, convenience and
efficiency requires availability of provisional measures in aid of
arbitration whose seat is or is deemed to have been in a foreign country

(or simply foreign arbitration).
144 [1993] AC 365. The current EAA enacted in 1996 too contains an express
court assistance whilst arbitration taking place. Section 44.
provision recognising
145 For facilitating world-wide harmonisation, the principle is adopted in Article 9 of the
Model Law. See, e.g., UN Doc A/CN. 9/264, paras. 1-3, reprinted in Holtzmann
Neuhaus, 343.
146 See, e.g., Hoellering, Interim Relief, 13 (indicating that courts should be guided
with "minimal interference" and they "should exercise discretion in determining why
parties seek protective measures. "). See also Born, International Arbitration, 948.
127
In most arbitration agreements, contracting parties specify the
place of
arbitration. 147 For such specification, parties usually opt for
a neutral
and geographically convenient place. 148 Such place is generally neutral
to parties, dispute, performance of a contract, and ultimately the
outcome of the arbitration. Nevertheless, a need may arise to obtain

provisional measures in a place foreign to the place of arbitration. 149 In
those circumstances, court assistance to foreign arbitration may be
necessary for convenience, effectiveness of arbitration and protection
of arbitrating parties' rights. The availability of such assistance is a
relatively new issue. Indeed, most national laws are silent on this
issue. 150 Under laws of some countries, court assistance to foreign
arbitration seems to be unavailable. 15' On the contrary, under laws of

some other countries, court assistance to foreign arbitration, in
recognition of the need for such assistance, seems to be permitted. 152
147 For instance, in 2001, contracting parties determined the place of arbitration in
84% of ICC cases. See 13(l) ICC Int'l Ct Arb Bull 11 (2002).
148Arbitral institutions are generally authorised to determine, failing a party
agreement, the place of arbitration. In exercising such authority, they consider,
inter alia, neutrality and convenience.
149 For preservation of evidence, status quo (see, e.g., Channel Tunnel Group Ltd and
France Manche SA v. Balfour Beatty Construction Ltd and others, [1993] AC 334"
[1993] WLR 262; [1993] 1 All ER 664, [1993] 1 Lloyd's Rep 291), or prevention of
dissipation of assets.
1,50Even the new German arbitration law does not deal with the issue. See Article
1025 of the German CCP.
151 Brazil (Bbsch (ed.), 112-13), China (Id. at 165), India (see, e.g., Mariott
International Inc. v Ansal Hotels Limited, extracts published in XXVI YCA 788-806
(2001) (Delhi High Court). But see cases referred to in, e.g., Prathiba M. Singh /
Devashish Krishan, "The Indian 1996 Arbitration Act - Solutions for a Current
Dilemma", 18(l) J Int'l Arb 41-58 (2001); and Lira Goswami, "Interim Reliefs- The
Role of Courts" in: van den Berg (ed.), The Never Ending Story, 111.); and
Panama (Bbsch (ed.), 525).
152 Austria (136sch (ed.), 58-60); Belgium (id., 88); Canada (id., 140-141); Denmark
(id., 179); England (see Sections 2(3) and 44 of the AA); Finland (136sch (ed. ), 234-
235); France (id., 264); Hong Kong (see CLOUT Case No. 42 (1992) (High Court
of Hong Kong) (stating that it is "at least open to argument" that in international
cases a Model Law court might be "more ready to assist a party to an international
arbitration agreement, notwithstanding the fact that the arbitration had its seat
elsewhere. "), Italy (136sch (ed. ), 379); Korea (id., 394); Articles 1(2) and 9 of the
Model Law; the Netherlands (Article 1074(2) of the Netherlands AA. See A. J. van
den Berg / R. van Delden / H.J. Snijders, Netherlands Arbitration Law
(Deventer/Boston- Kluwer 1993)); Norway (136sch(ed.), 509,511); the Republic of
South Africa (Id., 639); Sweden (Id., 680); Turkey (Articles 1(3) and 6 of the
128
It is clear that the assistance to foreign arbitration
enhances the
effectiveness of interim protection of rights in arbitration and,
accordingly, of arbitration. For this reason, this author is of the belief
that such assistance should be permitted.
In order to grant a measure, a foreign court should initially examine,
considering that there is a valid arbitration clause, whether it is

appropriate for the court to be involved in a case referred to
arbitration. 153 If the response is positive, since the necessity and
convenience are the primary reasons supporting court assistance to

foreign arbitration, the court, examining a request for such assistance,
should broadly consider whether it is the

most appropriate or
convenient forum to grant a provisional measure. 154 If, for instance,
International Arbitration Law); and the U. S. (see, e. g., Borden, Inc. v. Meiji Milk
Products Co., Ltd, 919 F2d 822 (2d Cir. 1990); Tampinex Oil Ltd v. Latina Trading
Corp., 558 F. Supp. 1201 (S. D. N. Y. 1983); Atlas Chartering Services v. World
Trade Group, 453 F. Supp. 861,863 (S. D. N. Y. 1978); and Carolina Power & Light
Co. v. Uranex, 451 F. Supp. 1044 (N. D. Calif. 1977). But see Contichern v Parsons
Shipping Co., 229 F3d 426 (holding that a New York rule permitting attachment is
restricted to domestic arbitration and does not allow attachment in assistance to
maritime arbitration in London. )). However, it should be noted that some U. S.
courts, e. g., the Third and the Fourth Circuits are generally against court
intervention for interim protection of rights. Accordingly, no court assistance would
be available from such courts to arbitration taking place outside the U. S. See
Wagoner, 71.
153 The to this is given in Chapter 11,
infra Part 4.4.
response question
154 The test derived from combination of factors required by Channel Tunnel and
Borden courts. On summary of these factors as well as some other proposed
factors, see Born, International Arbitration, 970. Craig / Park / Paulsson indicate
that, in intervening with arbitral process, courts should consider "whether justice
intervention, the existence of an arbitration clause. "
requires their notwithstanding
Craig / Park / Paulsson, ICC Arbitration 2000,477. In this regard, it should be
that, in each country, court assistance to foreign arbitration may be made
noted
For instance, for French courts' support to foreign
under various grounds.
arbitration, there has to be a link or a contact between any given case and the
jurisdiction. This link could be established where the place of execution of a
measure is in France (jurisdiction rationae /oc/) or a measure is sought against a
French national Ouriscliction rationae personae). Pluyette, 76. Apparently, an
for a measure should not be "artificial or fraudulent". Id. The limitation
application
to prevent undue interference in the affairs of a foreign court - the court may refuse
to exercise these powers if the choice of seat outside England and Wales "makes
it inappropriate to do so. " See Lord Mustill / Stewart C. Boyd, Commercial
Arbitration - 2001 Companion, 2 nd ed. (Lonclon- Butterworths 2001), 324; and
Kelda Groves, "Virtual Reality: Effective Injunctive Relief in Relation to International
129
there is another forum that is more appropriate for the
grant of a
provisional measure, the court should refrain from intervening. For
instance, a court of a country A where the
contractor's headquarters is
located should, in principle, not issue an injunction against the
Employer located in country B in a construction
contract in respect of
building a highway in the latter country. That is mainly due to fact that it
is very difficult to establish the case against such Employer
even on a
prima facie basis as the work is performed in a foreign country and that
such injunction could not be directly enforceable against the
Employer. 155 The test of convenience or appropriateness aims to avoid
conflict of jurisdictions between courts, e. g. court of a place of

arbitration and a foreign court.
Once the court establishes that it is the most appropriate forum to grant
the judicial provisional measure requested, it should then apply, in
principle, the standards and criteria under its own law to order such
measure. 156
Arbitrations", [1998] Int ALR 188,192. In this regard, see also Commerce &
Industry Co. of Canada and Another v. Certain Underwriters at Lloyds of London,
[2002] 2 All ER (Comm. ) 204; and Viking Insurance Co v. Rossdale and Others,
Commerce & Industry Insurance Co. of Canada and Another v. Certain
Underwriters at Lloyds and Others, [2002] 1 WLR 1323, [2002] 1 Lloyd's Rep 219.
Where there is little or no contact with the forum in which a provisional measure
was sought, state courts are generally reluctant to grant such measure. See Bond,
12; and HSBC Bank USA v National Equity Corp, 719 NYS 2d 20 (2001).
155 However, such kinds of injunctions are used in practice, in some countries, to stop
payment of letter of credits/bank guarantees.
156 See, e. g., UN Doc A/CN. 9/524, para. 77. For a different view, see id. To this end,
it is noteworthy that the harmonisation of standards for the grant of judicial
provisional measures would be extremely difficult in an international document.
For this reason, for instance, the current draft of the Judgments Convention
prepared by the Hague Conference on Private International Law contains a very
brief clause on interim measures, indicating that the (draft) Convention does not
in
prohibit any way the grant of judicial provisional measures. See Preliminary Doc
No 8 (March 2003), Preliminary Result of the Work of the Informal Working Group
on the Judgments Project available at < ftp. hcch. net/doc/genaff pd08e. pdf> last
-
visited at 28 October 2003. Thus, the issue of standards for judicial measures
should be left with national procedural laws.
130
4.4 Relationship Between Arbitral Jurisdiction Courts'
and
Jurisdiction
Judicial involvement in the arbitral process has been

widely recognised,
although "in almost every case"157 no such involvement is necessary
once arbitrators are appointed. 158 Professor Sanders commented,
some twenty-five years ago'about that involvement, that "[i]nternational
arbitration is like a young bird, trying to fly; it rises in the air but from
time to time falls back upon its home nest. ,159
In determining court involvement into arbitration, the principle of party
autonomy has to be taken into account and is given utmost

significance. 160 Foremost upholding party autonomy is a direct result of
recognition of international arbitration as a mechanism for resolving

international disputes. 161 However, the principle of party autonomy
should not extend to total autonomy. 162 This is for mainly so for
"ensuring that international commercial arbitration is effective"; 163
157
Redfern / Hunter, para. 7-10.
158
Id.
159 Pieter Sanders, "Trends in the Field
of International Commercial Arbitration",
(1975-11) RCADI 207,288. Lord Mustill describes the involvement in a similar
fashion:
Ideally, the handling of arbitrable disputes should resemble a relay-race. In the
initial stages, before the arbitrators are seized of the dispute, the baton is in the
grasp of the court; for at that stage there is no other organisation which could
take steps to prevent the arbitration agreement from being ineffectual. When
the arbitrators take charge they take over the baton and retain it until they have
made ar award. At this point, having no longer a function to fulfil, the arbitrators
hand back the baton so that the court can in case of need lend its coercive
powers to the enforcement of the award. But in real life the position is not so
clear-cut. Very few commentators would now assert that the legitimate
functions of the court entirely cease when the arbitrators receive the file, and
conversely very few would doubt that there is a point at which the court takes on
a purely subordinate role.
Lord Mustill, 119.
160 Pluyette, 75-76.
161 Id., 74-75.
162 See, e. g., Goldman, 259; and Gaillard / Savage (eds. ), para. 1302. For those
problems and shortcomings, see Chapter 11,supra Part 4.1.
163 Goldman, 257. See also Redfern / Hunter, para. 7-10,345. It should be noted that
arbitration "cannot survive, much less prosper, without the active and effective
support of the national courts Jacques Werner, "Should the New York
131
consequently, contributing the aim of "effectiveness and good
164
administration of [international] justice".
The effectiveness and good administration of justice the

are
determinative balancing factors for reconciling the tension165 between
involvement of courts into arbitral process and parties' will to keep
courts out from involving in resolution of their disputes by opting for

arbitration. 166 This reconciliation also satisfies the needs of
international commerce-, namely, balancing certainty with flexibility in
arbitration by avoiding any abuse of court involvement. 167 The
reconciliation requires collaboration or co-operation of arbitrators and of

168 The to courts
courts. role allocated under the concept of co-
operation is "one of assistance and control. ,169 International and
national legislatures generally indicate circumstances where a court

intervenes or interferes with arbitral process to make international
arbitration more effective. Two apparent examples for intervention to
arbitration process are setting aside 170

an award and refusal of
recognition and enforcementl7l. In addition, international and national
legislations specify, in most cases, circumstances where assistance of
Convention be Revised to Provide for Court Intervention in Arbitral Proceedings? ",

6 (3) JI nt'I Arb 113,115 (1198 9).
164 Pluyette, 73. Holtzmann indicates that judges and arbitrators are "associates in a
system of international justice. " H. M. Holtzmann, "L'arbitrage et les Tribunaux des
Associes clans un Systerne cle Justice Internationale", (1978) Revue de lArbitrage
253,302. See also Goldman, 259. The effectiveness and good administration of
justice require, inter alia, assistance for prope conduct of arbitration (e. g.,
preservation of evidence). See Redfern / Hunter, para. 7-10.
165 Redfern observes that "the tension inevitably exits between arbitration and the
... Channel
courts of law Redfern, Arbitration and the Courts, 72. See also
......
Tunnel Group Ltd v. Balfour Beatty Construction Ltd, [11993]AC 334,367-68.
166 Pluyette, 73. See also Reichert, 370 (stating that court assistance "should be
exercised with discretion. If appropriately administered, such judicial assistance
would bolster the utility of international commercial arbitration, foster international
trade, and decrease the workload of courts. ").
167 Cremades, Exclusion, 112.
168 See Goldman, 257-58.
169 Id, 275 (Emphasis in the original. ).
170 See, e. g., Sections 67-68 of the EAA 1996, Article 1484 of French New CCP,
Article 34 of the Model Law, and Article 190 of the SPIL.
132
courts could be lent to arbitration The grant of provisional measures is
among those circumstances. 172
Once judicial involvement in support of

arbitration is accepted, a need
to regulate co-existence of jurisdictions of judicial
authorities and
arbitrators arises. This is because both jurisdictions are generally
t1similar or identical", and they sometimes overlap
and may even be in
conflict. 173 Due to such "overlapping and possibly conflicting" 174
nature
of concurrent jurisdiction, the co-ordination of the powers of courts and
arbitrators is felt necessary. The concept of co-ordination recognises
the overwhelming need of cooperation and is in line with principles of
legal protection and legal certainty. 175 The coordination contributes to
the effectiveness of arbitration and to the effective distribution of justice.
International conventions do not regulate the method of co-ordination

between arbitrators and courts. 176 Most national arbitration laws
including the Model Law are silent too. Similarly, arbitration rules do
not generally deal with the issue of coordination. " '
Only a handful of national laws and a number of arbitration rules deal
with methods of co-ordination. 178 Under some of those laws and rules,
parties are free to apply to either fora; the choice is truly open. This
freedom of choice approach is, however, against the principle of party
171 See, e.g., Article V of the New York Convention.

172 For examples of other circumstances, see, e.g., Goldman, 275-281.
173 Cremades, Exclusion, 111; Rubino-Sammartano, 365; and Hausmaninger, Pre-
Arbitral Referee, 96.
174
Hausmaninger, Pre-Arbitral Referee, 96.
175 1
d., 96.
176 Under ICSID arbitration, involvement of courts is not, unless otherwise agreed,
permitted. See Chapter 11,supra Part 2. Article VI(4) of the Geneva Convention,
although expressly accepts the co-operation of courts and arbitral tribunals, does
not deal with the method of the co-operation.
177 Thirty-nine out of seventy two sets of rules surveyed are silent on the issue. See
Annex.
178
See Chapter 11,infra Part 4.4.2.
133
autonomy and is free invitation for abuse. Thus such approach hinders
the effectiveness of arbitration. So in order to make arbitration more
effective and to avoid any such invitation, some other laws and rules
envisaged for restricted access to courts. 179 Under the restricted-
access approach, access to courts for interim measures of protection Is
allowed under "appropriate" circumstances. The courts' role is
described as complementary, prior to the appointment of the arbitral
tribunal and subsidiary thereafter. In any case, the court, in assisting
arbitration, should exercise "utmost caution and should be prepared to
act when the balance of advantage plainly favour the grant of relief. "180
Further, the grant of security for costs and provisional payment should,
in principle, be left to arbitrators as there is generally no immediate
urgency in regard of such measures and assessment of likelihood of

success on the merits and of the need for those measures are better
made by arbitrators than courts. 181
It should further be noted that courts should endeavour to do everything

in their power to prevent abuse of either of the coordination methods.
In this regard, any abuse can be the source of liability of the abuser. In
addition, the arbitration rules' coordination of jurisdiction of arbitrators

and of courts is subject to the parties' ability to restrict or exclude
courts' jurisdiction. 182
179 Apparently, the coordination of jurisdictions under arbitration rules is subject to

applicable law.
180 See Channel Tunnel Group Ltd and France Manche SA v. Balfour Beatty
Construction Ltd and others, [1993] AC 334,367; [1993] WLR 262; [1993] 1 All ER
664; [1993] 1 L'Ioyds Rep 291.
181 See, Article 38(3) of the EAA 1996. A court in England has no power under
e.g.,
the EAA 1996 to order security for costs in aid of arbitration. See, e. g., David St
John Sutton / Judith Gill, Russell on Arbitration, 22nded. (Sweet & Maxwell 2003),
para. 7-142. On security for costs granted by arbitrators, see infra Chapter IV, Part
7.4.
182
134
This part examines the freedom
of choice and restrIcted-access
approaches. It further deals with the issues of damages in
regard of
abusive requests for court assistance and exclusion agreements.
4.4.1 Freedom of Choice Approach
The general approach in many states, which accept

concurrent
jurisdiction is that parties are, unless otherwise 183
agreed, given a free
choice both prior to the appointment of arbitrators or during arbitration
proceedings. 184 They are free to make applications to
arbitrators or
courts with no hindrance at any time. 185 A similar approach is adopted
under most of the arbitration rules surveyed. 186
The freedom of choice approach should be approached with great

care.
When a party is given a free choice to determine the forum to apply for
a measure, such freedom is susceptible to abuse. 187 Indeed, such

abuse, in some cases, is seen in practice. A request for a measure
could be used as a procedural weapon. 188 Particularly, a court should
be aware of the possibility of abuse and they, consequently, should not
accept any request where the court finds that the request is not
183
See Chapter 11,supra Part 1.3.
184 One prominent example seems to be Switzerland. See Wirth, 42-43; Stephen V.
Berti, (Commentary on) Article 183 in, Stephen V. Berti (ed.), International
Arbitration in Switzerland (London: Kluwer 2000), para. 5. The Swiss approach
11
rests on the argument that an arbitral tribunal is not in a position to ultimately grant
the same effective legal protection as a state court since the measures ordered by
an arbitral tribunal are generally not directly enforceable by the tribunal itself but
need almost always be enforced with the assistance of a state judge. " (Citation
omitted. ) Wirth, 42-43. The freedom of choice approach is reflected in lack of
regulation of the manner of how concurrent jurisdiction would be exercised.
185Apparently, conflicts, if any, need to be resolved. See Chapter 11,infra Part 4.5.
186A prominent example to the blank cheque approach is Article 26(3) of the
UNCITRAL Arbitration Rules. Perhaps because of that liberty, the number of
requests from arbitral tribunals to grant provisional measures, for instance under
the Iran-U. S. Claims Tribunal's practice, "appears to be relatively low." See
Pellonp6ti / Caron, 451; and Caron, Interim Measures, 467. ) It should, in this
regard, be noted that if a party chooses to make a request to a court, generally no
restrictions do apply to it. For instance, Article 26(3) of the UNCITRAL Arbitration
Rules seems to provide no restriction in that respect.
187 See Chapter 11,Part 1.1.
135
genuine, that there is no urgency, and that it aims at gaining tactical
advantage over a respondent. Further, the freedom of choice
approach, if accepted in full, intervenes with the principle of party
autonomy and parties' choice of arbitration over litigation.
Party autonomy demands prejudice toward arbitral jurisdiction. When

parties agree on arbitration to resolve their disputes, this agreement
should be upheld if and where it is possible. Parties, apparently, can
always opt in, by agreement, for assistance of judicial authorities in
regard of interim protection. In fact, they are at liberty to exclude
189
jurisdiction of arbitrators in full in that regard. Otherwise, the
prejudice should be in favour of arbitral jurisdiction. In other words, the
degree of equilibrium between party autonomy and court involvement
should be on the side of the former. The outside intervention should

only be accepted where the exercise of arbitral power to grant
provisional measures Is, in general, ineffective or such power is not
available at all. Such intervention is justified for maintaining effective
legal protection thus effective distribution of justice.
Parties are advised to follow a common sense approach in choosing

the forum to make their interim relief applications. 190 They should not
abuse the freedom of choice approach. 191 Otherwise they might be

held liable for damages arising from such abuse. 192
188
See Chapter 11,supra notes 16-17 and accompanying text.
189
190 If the choice is "truly open", parties should examine the nature of the relief sought
in making the choice of the forum to apply. See Redfern / Hunter, para. 7-17.
191 Redfern / Hunter give the following practical advise, which would certainly be useful
to follow in regard of cases where the applicable national law does not clearly deal
with the co-ordination of arbitral and judicial jurisdiction*
the answer to the question of whether to seek interim relief from the court or
from the arbitral tribunal is likely to depend upon the particular circumstances of
each case. If, for example, the arbitral tribunal is not yet in existence (or, in an
ICC case, has not yet received the file), and the matter is one of urgency [or,
alternatively arbitrators do not have necessary powers to grant the measure to
be applied for], the only possibility is to apply to the relevant national court for
136
4.4.2 Restricted -Access Approach: Principles of Complementarity
and Subsidiarity
A small number of national laws delicately

regulate the issue of
concurrent jurisdiction. The same sensitivity in coordinating the
concurrent jurisdiction is demonstrated
by a few arbitration rules.
Under these laws and rules, varying degree
of equilibrium between
party autonomy and court involvement is maintained.
The national laws and arbitration rules generally accept that

courts' role
prior to constitution of arbitral tribunals Is complementary* where no
party-appointed authority is in existence, courts step in and assist
arbitration proceedings. 193 After appointment of arbitrators, courts' role
is subsidiary. arbitrators have priority to deal with provisional measure
requests and where circumstances are not appropriate for them to

grant these measures then, only then, national courts step in and
provide for their assistance. 194 The role of courts also remains
subsidiary if arbitrating parties previously agreed for one of the
emergency measure mechanisms. In such case, since a request for a
interim measures, whilst at the same time taking steps to move the arbitration
forward, so as to show that there is every intention of respecting the agreement
to arbitrate. Where the arbitral tribunal is in existence, it is appropriate to apply
first to that tribunal for interim measures, unless the measures sought are ones
that the tribunal itself does not have the power to grant. (Emphasis in the
original. ) (Citation omitted. )
Redfern / Hunter, para. 7-18.
192
193
Even prior to the formation of a party-appointed authority, a court should exercise a
self-restraint. The court should lend its assistance where the moving party proves
a compelling need not awaitto the appointment of such authority. Wagoner, 69.
194 Whether circumstances are appropriate or not is determined by the applicable law
or the relevant arbitration rules. In determining whether a circumstance is
appropriate, the nature of the relief may be taken into account. Redfern / Hunter,
para. 7-17. For instance, measures for preservation of evidence (where there is
urgency); coercive measures (e. g., attachments), certain injunctions (courts should
be extremely careful in regard of injunctions, as in some cases, the grant of an
injunction by a court would affect the case at hand thus jurisdiction of arbitrators).
E.g., Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd, [1993] AC 334;
and Patel v. Patel, [2002] Q. B. 551, [1999] 1 All ER (Comm) 923, [1999] 3 WLR
117
measure could be made to a party-determined authority, there is
generally no need for courts' complement. 195
The validity of the restricted-access approach

envisaged by arbitration
rules largely depends upon the permission under the applicable law. 196
This Part studies the approach of national laws

and of arbitration rules
concerning the restricted-access approach
4.4.2.1 Approach of National Laws
The approach of national laws in relation to the coordination of

jurisdictions varies considerably. For instance, in Malaysia,
interim
measures are initially to be sought from arbitrators. 197 In Belgium, 198
Ltlxemhourg, 199 North Carolina 200those measures are sought from
and
courts until constitution of an arbitral tribunal and generally from the
tribunal once it is constituted or seized of the matter in question.
Similarly, under the 1986 Dutch AA, if a party seeks interim relief from a
court notwithstanding the arbitration agreement, the court may decline

to assert jurisdiction in regard of such relief by "taking into account all
,j201
circumstances
.
322. The courts should not interfere with arbitration for security for costs
applications. Redfern / Hunter, paras. 7-29-7-32.
195 On the complementary mechanisms, see, generally, infra Chapter 111.
196 This issue is dealt with in Chapter 11,infra Part 4.4.4.
197 P. G. Lim, "Malaysia" in- Paulsson (gen. ed. ), International Handbook (Supplement
32, December 2000), 21.
198 Lambert Matray, "Belgium" in: Paulsson (gen. ed. ), International Handbook
(Supplement 20, October 1995), 19.
199 Ernest Arendt / Thiýa Harles-Walch, "Luxembourg" in: Paulsson (gen. ed. ),
International Handbook (Supplement 18, September 1994), 11.
200 Section 1-567.39 of the International Commercial AA (providing that except for
prior to an arbitral tribunal's appointment or unavailability of it, a party shall seek
provisional measures from arbitrators. ).
201 Article 1051(2). In this regard, it is noteworthy that under Section 2712.36 of the
Ohio Code on International Commercial Arbitration, a party may directly apply to a
court for interim measures. However, the court should not grant the measure
requested "[u]nless the party shows that an application to the arbitral tribunal for
138
In France, the role of courts in granting interim relief depends
upon the
constitution of tribunal. Prior to the tribunal's constitution, the role of
courts is complementary and is justified with the considerations of
urgency and risk. 202 After the formation of a tribunal, courts' role Is to
assist the arbitrators under exceptional circumstances and is
203 Their is justified
subsidiary . role again where there is urgency, and
risk. Further, 'in some cases, the justification arises from a situation in
which inaction could be considered denial of justice. This last ground
could be invoked "if the circumstances reveal a total paralysis of the
arbitral tribunal and its powerlessness to fulfil its function, thus depriving
,,204
a party of the fundamental right of 'judgment' under fair conditions.
Section 2GC(6) of the 1997 Hong Kong AO states that a court may
decline to give its assistance to arbitration in regard of interim measures
(1) where the case "is currently subject of arbitration proceedings"; and
(ii) the court "considers it more appropriate for the matter to be dealt
with by the relevant arbitral tribunal. " A commentator indicates that a

case is most likely to be referred to a court where, Inter alia
[i] the rights of a third party are involved, [Ii] an ex parte
application is required, [iii] the arbitral tribunal does not have
power to grant all the interim relief sought in a single application
or [iv] the court's powers of enforcement are more effective than
those of an arbitrator (for example, with regard to an
injunction ). 205 (Citations omitted. ) (Emphasis added. )
Similarly, section 44 of the EAA 1996, after stating that parties can
interim forth the rules for
empower arbitrators to grant measures, sets
the measure of protection would prejudice the party's rights and that an interim
from the is to
court necessary protect their rights."
202
measure of protection
Pluyette, 79-87.
203 189.
204
Id., 90.
205 Neil Kaplan, "Hong Kong" in: Paulsson (gen. ed. ), International Handbook
(Supplement 29, December 1999), 56.
139
court involvement to arbitration.
Section 44 contains the
most
elaborate rule on the court assistance out of the laws surveyed 206
This
.
rule should, in this author's view, be taken as example by
other laws.
Section 44(5) provides that court assistance
will only be available
where arbitrators have no power to act or are unable to act timely and
effectively. A tribunal has no power nor can act, for instance, prior to
its
formation or where for some reason it is paralysed
afterwards, against
third parties, in regard of measures require use of coercive
powers, e. g.
freezing or search orders. 207
Section 44 further distinguishes circumstances in which court

assistance is available by taking into account the urgency of the matter.
Section 44(3) deals with circumstances in which urgency
exist. Under
such circumstances, a party or a proposed party, generally prior to
appointment of an arbitral tribunal can make application to preserve
evidence or assets. This Section provides for a judicial power in
assistance to arbitral proceedings to make, for instance, a search
(Anton Pillar) order. 208
Where there is no urgency, in accordance with Section 44(4), a party
can apply to a court upon notice to other parties and the tribunal, with
the agreement of those other parties or the permission of the tribunal.
206
The philosophy behind Section 44 is:
if a given power could possibly be exercised by a tribunal, then it should be, and
parties should not be allowed to make unilateral applications to [a court]. If,
...
however, a given power could be exercised by the tribunal, but not as effectively,
in circumstances where, for example, speed is necessary, the ... [court] should
be able to step in.
Departmental Advisory Committee on Arbitration Law, 1996 Report on the
Arbitration Bill, para. 216 (the "1996 DAC Report").
207 See, e.g., Johnson, 15; and the 1996 DAC Report, para. 214. In this regard, see
also In Re Q's Estate, [1999] 1 Lloyd's Rep. 931, [1999] 1 All E.R. (Comm.) 499.
The principles set out in Section 44 of the EAA 1996 seems to be generally
accepted in India. Goswami, 116.
208 Section 44 of the EAA 1996.
140
Apparently, that Section aims to prevent any suggestion that a court
209
"might be used to interfere with or usurp the arbitral process ,,
....
4.4.2.2 Approach of Arbitration Rules
There are a few rules, which elaborate the circumstances where a

request to a judicial authorityis authorised. The prominentexampleof
these rules is the ICC Arbitration Rules 1998 210 These Rules accept
.
the co-existence of the jurisdiction of the courts and tribunals in
providing interim protection of rights. Under Article 23(2) of the ICC
Arbitration Rules 1998, courts are entrusted with the power to grant
provisional measures before the formation of the tribunal and, under
21
appropriate circumstanceS, 1 even thereafter. The acceptanceof the
court assistancefor interim protectionof rights at the stage prior to the
constitution of an arbitral tribuna1212is a reflection of the
213
complementarityprincipleunder arbitrationrules. The acceptanceof
courts' involvement under appropriate circumstances after the
209The 1996 DAC Report,
para. 215.
210 See also Article 21
of the ECA Arbitration Rules 1997 ("[i]t is desirable that the
decision whether to grant or not, upon a party's application, holding measures or
interlocutory injunctions, be made by the arbitral tribunal rather than by state
courts. ").
211 See Article 23 the ICC Arbitration Rules. Alternatively, "under
of exceptional
circumstances* under Article 8(5) of the ICC Arbitration Rules 1988. The
exceptional circumstances are also required for courts' assistance under Clause
28 of the CANE Arbitration Rules; and Article 25 of the LCIA Arbitration Rules
1998.
212 Or prior to transmittal of the file to it. Under the ICC Arbitration Rules, the file is
transmitted to the tribunal as soon as it is constituted. However, the advance on
costs requested by the Secretariat of the ICC International Court of Arbitration has
to be paid before the transmission under Article 13 of the ICC Arbitration Rules.
The advance on the costs is determined in accordance with Article 30 of the same
Rules.
213 Schwartz indicates that parties to an ICC arbitration are mclearly liberty to apply
at
to the courts formprovisional measures at the pre-constitutional stage. Schwartz,
Provisional Measures, 47. He further states that at the pre-constitutional stage,
provisional measures "would not otherwise be available unless the parties had
agreed to an alternative procedure [emergency measures] Id., 54-55. These
alternative procedures may generally be called as emergency measure
procedures. See, generally, infra Chapter 111.In this regard, see also ICC Partial
Award 6566 of 1993, extracts published in I1 (1) ICC Int'l Ct Arb Bull 48 (2000);
ICC Interim Award 6023 of 1989 (unpublished.); and ICC Final Award 5650 of
141
appointment of arbitrators reflects the principle of subsidiarity under
these arbitration rules. 214
The ICC Rules contractually allocate the judicial

and arbitral jurisdiction
concerning provisional measures to the extent permitted under the
applicable law. Thus, the arrangement is valid where exclusion or
limitation to the courts' jurisdiction is allowed 215
The arranoement
.
recognises a unique principle, which favours arbitrators over judicial
authorities as a forum to seek provisional measures. "once the
arbitrators have been seized of the file, applications for interim and
conservatory measures should normally be addressed to them. ,216
This principle may be referred to as the "principle of priority. " Under

Article 23(2) of the ICC Arbitration Rules, court assistance is permitted
where the circumstances are "appropriate". These Rules do not

provide further guidance as what qualifies circumstances as
appropriate. The views of the commentators and the ICC arbitration
practice shed light to the uncertainty about the circumstances.
This Part examines the principle of priority and appropriate

circumstances.
4.4.2.2.1 The Principle of Priority
The ICC Arbitration Rules, since 1975, recognise arbitral tribunals'
priority over the courts to deal with applications for provisional
1989, extracts published in 16 YCA 85 (1991); and Arnaldez / Derains / Hascher,

34.
214 The ICC Arbitration Rules acknowledge this principle since 1975. It should be
noted that the parties' right to apply to a court for provisional measures was first
recognised under the ICC Arbitration Rules 1939. See supra Chapter 1,Part 1.2.1.
215 See Chapter 11,infra Part 4.4.4.
216 ICC Second Partial Award 8113 of 1995, extracts published in 11(1) ICC Int'l Ct
Arb Bull 65 (2000) (citing Schwartz, Provisional Measures, 54-55).
142
measures.217 his principle is expressed in a negative
manner. The
ICC Rules state that parties may apply to the courts for
provisional
measures where the circumstancesare "exceptional"(under the 1975-
1988 Rules) or "appropriate" (under the 1998 Rules).218 The
positive
way of making such statement is that the jurisdiction of an arbitral
tribunal to grant provisional measures, on one hand, 219 On
is primary.
the other hand, the jurisdiction of Judicial authorities in that
respect
remains subsidiary. In other words, unless there is a justified reason,
e. g. an appropriate circumstance, to apply to a court, an application for
a provisional measure should be addressed to an arbitral tribunal.
4.4.2.2.2 Appropriate Circumstances
Article 23(2) of the ICC Arbitration Rules 1998 provides that a party is at
liberty to apply to a judicial authority for a provisional measure in
,220
Itappropriate circumstances.
When the ICC Arbitration Rules 1988 underwent an amendment in

1998, the term "exceptional circumstances" replaced to "appropriate
217 See Article 8(5) of the ICC Arbitration Rules 1988-

and Article 23(2) of the ICC
Arbitration Rules 1998. On the former, see supra Ckapter 1, Part 1.2.2.3.
218 This negative expression owes its
existence to the negative attitude taken towards
arbitral provisional measures since the beginning of the last century. See,
generally, supra Chapter 1.
219 The principle of priority is supported by the fact that the Rules generally seem to
regulate the jurisdiction of the tribunal prior to dealing with concurrent jurisdiction.
See, e. g., Article 23 of the ICC Arbitration Rules; and Article 26 of the UNCITRAL
Arbitration Rules. This pattern of regulation is perhaps because of the fact that
arbitration rules generally aim at regulating arbitral jurisdiction. Accordingly, the
drafters' primary concern is to deal with the issue of arbitral jurisdiction, rather than
to regulate concurrent jurisdiction. An alternative interpretation of this may be that
the rules are designed to remind the parties that their primary option for obtaining
interim measures is their arbitral tribunal. If the tribunal is unable, for any reason,
to assist the parties in regard of interim protection of their rights, the parties would
have an option to refer their requests to courts. But see Article 23(l) of the
Arbitration Rules 1992 of the Chamber of Commerce and Industry of Geneva (the
"CCIG").
220 The ICC Arbitration Rules contain this Article without change in most part since
1975 to create "a hierarchy in favour of applications being made to the arbitrators
whenever possible. " As explained by Schwartz to the Working Party entrusted to
prepare ICC Arbitration Rules 1998 (unpublished).
143
circumstances." The latter term was particularly subject to criticism,
as,
for instance, arguably the tribunal's lack
of power under the applicable
law may not be construed as an exceptional 221
circumstance
.
The term "appropriate circumstances" is not defined in the ICC Rules 222
.
Nor the 1988 Rules did define the term "exceptional
circumstances. "
The determination of the appropriate or exceptional circumstances,
according to one view, is generally to be made by arbitral tribunals or
"by the competent [local] authorities in accordance
with their [own]
j, 223
law.
Some commentators attempt to examine the meaning of the

appropriate circumstances. Goldman states*
[n]othing indicates,in the rules, of what may consist the
exceptional situations to which the text refers [Article 8(5) of the
1975 and 1988 Rules]; it will of course be for the state judge
seized to decide this. One can, however, think that the exception
should only be admitted in cases of extreme urgency and where
there is manifestly a threat of imminent harm; for example, to avoid
the rotting of perishable goods, or to ensure the conservation or
recovery of documents or things exposed to possible destruction
by a natural catastrophe in situations where the arbitral tribunal
would not be in a position to intervene in due time 224
.
221
See, e. g., id. The LCIA Arbitration Rules still contain the use of the term
11exceptional circumstances. " See Article 25. Perhaps, the lack of such power may
be construed as an exceptional so long as the term "exceptional circumstances" is
222
construed broadly.
Article 25 of the LCIA Arbitration Rules is also silent on the definition of the term
.1exceptional circumstances. "
223
ICC Interim Award 8786 of 1996, extracts published in 11 (1) ICC Int'l Ct Arb Bull 81
(2000) (citing Craig / Park / Paulsson, ICC Arbitration 2000,423). However, it
should be noted that whether or not the circumstances were appropriate would be
taken into account by an arbitral tribunal where a subsequent request for the same
or a different measure is made to the tribunal or where the tribunal is asked to
consider damages arising from a request to a court claimed to be made under
inappropriate circumstances. See Chapter 11, infra Parts 4.5 and 4.4.3,
224
respectively.
Berthold Goldman, "Arbitrage Commercial International", Jurisclasseur Droit
Intemational, Fascicule 586-5-2, No. 77 (1991) as translated by Schwartz,
Provisional Measures, 55, note 35.
144
Further, Jarvin construes the term "appropriate circumstances"
as
itwhere the urgency of the matter so requires or where the party
225
considers this to be more effective ,,
Calvo, within the same line,
.
construes the same term as "a situation of urgency and/or the
prevention of further damages, as well as circumstances recognized as

226
appropriate by any competent judicial authority Similarly, ,,
....
according to Craig / Park / Paulsson, urgent or binding and enforceable
227
provisional measures can only be obtained from a court Moreover,
.
according to these authors, an interim measure against a third party or
conservatory measure for the storage, preservation or sale of the
perishable goods may also be examples to appropriate circumstances.
The ICC practice demonstrates that a circumstance is "exceptional" or

itappropriate" where 228 (i) there is urgency; (ii) the tribunal lacks the
power to grant the measure requested; and (iii) the tribunal is paralysed
or otherwise unable to act.
4.4.2.2.2.1 Urgency
Urgency is certainly one of the most important requirements for granting

229
provisional measures . Urgency should be considered along with the
225
Jarvin, 43.
226 M. A. Calvo, "The New ICC Rules of Arbitration Substantial and Procedural
-
Changes", 14(4) J Int'l Arb 41,50 (1997).
228 See, generally, Schwartz, Provisional Measures, 54-55. Moreover, there are
other circumstances that may not be construed as appropriate. See, e. g.,
various
ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC Int'l Ct Arb
Bull 67 (1997) (stating, inter alia, that "[ilt is in international commercial arbitration
exceptional, but normal that one of the parties is, as seen from the other
not all
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
therefore, the fact that such foreign company is liquidating its
claimant party;
business in claimant's country and abandoning it, may not create an exceptional
situation. ").
229 See Clause 28 of the CANE Arbitration Rules.
also
145
230
requirement of serious or irreparable harm. The degree of urgency
may be observed in three folds.
First of all, the degree of urgency qualifies as

extraordinary or, perhaps,
exceptional where an instant action is required in order to avoid a
231
serious or irreparable harm In such a case, it is appropriate to apply
.
to a court for a provisional measure,
Second, the degree of urgency may not always

require an instant
action. In this case, the tribunal, once constituted, may be able to avoid
the harm by a measure, and accordingly a request to a court for that
232
measure is not appropriate
.
Finally there may be no urgency at all. That means no harm will, in
principle, be done for the period up to the final award if the measure
requested is not granted. In such cases, interim protection is not
appropriate at all.
230
See infra Chapter IV, Part 3.1.3.
231 For instance, in ICC case 4156, the parties applied to a local court for an
appointment of an expert in order to ascertain some facts regarding their dispute.
The question before the tribunal was whether or not this application accounts to a
waiver of the parties' right to arbitrate. The tribunal concluded that parties did not
waive their rights in the application by holding that the parties resorted to the court
because of the urgency of the matter in question, and that the court did not decide
on the merits of the case. See (1984) Clunet 952. See also ICC Award 2444 of
1976, extracts published in (1977) Clunet 932, and Sigvard Jarvin / Yves Derains,
Collection of ICC Arbitral Awards 1974-1985 (Deventer/Boston: ICC Publishing /
Kluwer 1990), 285. Further, for instance, court assistance may be appropriate, in a
construction contract, for determination of the contractor's performance or
technique used prior to evidence being lost. Moreover, there is urgency in cases of
sale and disposition of perishable or seasonal goods.
232 For instance, no instant action is, in principle, required for security for costs and
provisional payment. Consequently, these measures should generally be
requested from an arbitral tribunal.
146
4.4.2.2.2.2 Limits of the Tribunals' Power
If a grant of a provisional
measure is not within the limits of arbitrators'
power, then the parties can apply for this measure to a CoUrt.233 For
instance, arbitrators do not have power against third to
parties
arbitration. Further, they cannot grant attachments
or freezing orders
that intrinsically require use of coercive powers. For instance, in ICC
234
case 7589 , the tribunal was asked to determine whether or not the
Respondent was entitled to damages allegedly related to an attachment
obtained by the Claimant from a local court before the file is transmitted
to the tribunal. The tribunal held-
Article 8.5 of the [1988] Rules does state that in "exceptional
circumstances", a party shall be at liberty to apply to a competent
judicial authority for conservatory interim measures. One can
argue that this "exceptional circumstances" limitation should not
apply in this case, since the conservatory measure sought - an
attachment - is one that the Arbitral Tribunal does not have the
power to grant. (Emphasis added. )
In cases where the measure cannot be granted by an arbitral tribunal,

its granting could be requested from a competent court. However, in
those cases, prior to making such request, the applicant should
consider whether or not (not the same one but) an effective alternative
provisional measure may be obtained from a tribuna 1.235
4.4.2.2.2.3 Paralysed Tribunal
Provisional measures may be requested from a court where the tribunal

is paralysed or otherwise unable to act because of resignation, death,
challenge of an arbitrator(s), or any other reason. This is because the
233 Apparently, limitations as regards jurisdiction of the arbitral tribunal also fall into
this category. On the extent of such limitation, see Chapter 11,supra notes 111-
113.
234 ICC Final Award 7589 of 1994, extracts published in 11(1) ICC Int'l Ct Arb Bull 60
(2000).
235 For instance, rather than asking the tribunal to stop the withdrawal of a letter of
credit, a party may request from its tribunal to prohibit the other party withdrawing
such letter.
147
tribunal by being paralysed becomes unable to
act upon any request for
4.4.3 Damages as Compensation for Judicial Provisional

Measures Incompatible with Arbitration Agreement
or Found
to be Unjustified
The grant of a provisional measure brings itself with the risk of, however
small it may be, unjustified interim decision. In such cases, damages
suffered due to such decision, includin'g costs
associated with
proceedings regarding such measure may be recoverable. 236 Damages
arising from arbitral provisional measures should normally be sought
from an arbitral tribunal 237 Damages
. arising from judicial provisional
measures, where the substance of the case is subject to arbitration,
should too be recoverable from arbitrators and, alternatively, from
238
CoUrtS.
The advantage of dealing with the issue of damages before arbitrators

is adjudicating all remedies (be it interim or final) before one forum.
This seems to be more in line with party autonomy and parties' desire
to resolve their disputes before a party-determined forum. Thus, it
enhances effectiveness of arbitration. Further, whether or not interim
relief is justified in many occasions depends upon the decision of

tribunal on the merits. Rather than making a fresh request to a court for
damages, the tribunal can determine once --d for all issues relating to
236 See, e. g., Section 6212 of the New York Civil Practice Law.
238 Only a handful of national laws seem to make reference to forum where to seek
damages. In such countries as France and Germany, arbitrators are solely
empowered to deal with the issue of compensation. See 136sch (ed. ), 271,298,
respectively. In such other countries as Canada, China, Italy, and the U. S., both
judicial authorities and arbitrators seem to be generally empowered to deal with
that issue. Id., 152,170,383, respectively. In Norway and Scotland, parties seem
to be able to make an agreement to refer any issue on damages to arbitrators. Id.,
515,608, respectively. See also, e. g., Warth Line, Ltd v. Merinda Marine Co., Ltd,
148
the underlying dispute including the damages regarding Judicial
provisional measures. In sum, the tribunal Is better equipped to deal
with such issue and it is more convenient forum than a court. 239
A potential pitfall of seeking a claim for damages in regard of judicial

provisionalmeasures from arbitrators is that they may be hesitant to
grant such cla iMS. 240 The hesitation may be based on the fact that the
issue of damages is very closely connected to jurisdiction of courts. In
order to minimise the denial of a claim for damages, parties are well-
advised to include such claim in their statement of claims if a measure
was already obtained. In any case, the parties are further advised to
seek security for damages regardless of the issuing forum'. a court or

an arbitrator.
778, F. Supp. 158 (S. D. N. Y. 1991) (confirming an arbitral decision on damages

arising from foreign court proceedings. ).
239It seems that an arbitration clause covering all disputes connected to the underlying
relationship is wide enough to permit any claim on damages arising from unjustified
interim remedies relating to such relationship.
240 For instance, in ICC case 8445, the Claimant applied to a local court for an
injunction. The local court granted the injunction; however, the appellate court
vacated it. The Respondent made a claim for the costs of these local proceedings.
The tribunal indicated that such proceedings were ostensibly for provisional
measure only. It further noted that the application for such claim was specifically
authorized under the relevant arbitration rules (Article 8(5) of the ICC Arbitration
Rules 1988) and "cannot be considered, in and of itself, a breach" of the
agreement to arbitrate. According to the tribunal, the appellate local court,
1,presumably in accordance with that court's discretion and local rules of procedure,
determined that no costs be assessed" in its vacation order. The tribunal came to
the conclusion that "[i]t is not within the purview of this Arbitral Tribunal's authority
to reconsider, or take other decisions with respect to, such court related costs. "
(Emphasis added. ). ICC Final Award 8445 of 1996 (unpublished. ). On this case,
Yesilirmak, Interim Measures, 35-36. Similarly, in ICC case 7536, the tribunal
see
decide the granted by the local court has
was asked to whether or not attachment
Itraison d6tre" since evidence obtained in the hearings suggested that the invoices
based The tribunal initially found out that
upon which the attachment were paid.
'lout of the total of these invoices, only an amount of ... was due by [the
Respondent] to [the Claimant]. " The tribunal, however, held that it "has no
jurisdiction to draw the consequences of that situation on the maintenance of the
Attachment, a power which lies within the jurisdiction of the courts. " (Emphasis
... Ct
). ICC Final Award 7536 of 1996, extracts published in 11(l) ICC Int'l
added.
Arb Bull 52 (2000). It should be noted that the applicable procedural law, in this
149
In examining recovery of damages, the difference between the
damages relating to measures incompatible with arbitration
agreement
and the ones relating to measures compatible with arbitration
agreement should be taken into account.
4.4.3.1 Damages Arising From Judicial Provisional Measures

Incompatible with Arbitration Agreement
The damages arising from judicial provisional measures incompatible
with arbitration agreement should be recoverable as they arise from a

breach of such agreement. The agreement is breached where its terms
are infringed or where an arbitral decision is not complied with.
Where parties were validly agreed to restrict their access to a court for
provisional measures then such restriction should be respected. For

example, according to Article 23(2) of the ICC Arbitration Rules, an
arbitrating party's access to a judicial authority for a provisional
measure is restricted to "appropriate circumstances" after the
arbitration file is transmitted to the arbitral tribunal. Article 23 would be
breached where an application to a court is made under "inappropriate
circumstances. , 24
1 The moving party may be ordered to compensate
the damages arising from such application.
For instance, in ICC case 5650, the dispute arose out of an agreement
"to study and carry out the complete extension program for [a hotel] on
the property set aside for this purpose and according to the program
for this project. ,242 The respondent requested an
submitted
a
appointment of referee from a local court and brought a suit in a court
case, was the Italian law, under which arbitral tribunals are not allowed to grant
conservatory measures. Article 818 of the Italian CCP-
241 The meaning of the term "appropriate circumstances" is dealt with above. See
Chapter 11,supra Part 4.4.2.2.2.
242 ICC Final Award 5650 of 1989, extracts published in XVI YCA 85 (1991); and
Arnaldez / Derains / Hascher, 34.
150
on the merits of the case. The claimant filed a request for arbitration in
order to cease, inter alia, the court action brought against him, and to
recover costs of all court proceedings. The tribunal held that an
appointment of a referee can be construed as a conservatory measure
243
in the sense of Article 8(5) of the ICC Arbitration Rules 1988 The
.
Tribunal also ruled that the filing of a suit was a clear violation of
agreement to arbitrate and Article 8(5). This filing, according to the

Tribunal, could "in no way be qualified as 'interim or conservatory
measures'. "244 As a result, the tribunal held that the respondent should
bear the costs of arbitration entirely due to the above violation.
An arbitral tribunal may order any of the parties to refrain from an act.
Non-compliance with such order may also be held an infringement of
arbitration agreement as by such agreement parties are considered to

abide their tribunal's decision. Consequently, the infringing party may
be asked to compensate damages arising from such non-compliance.
245
For example, in ICC case 8887 there was a contract providing for
,
technical and engineering services in connection with liquid petro-
chemical transhipment facility. The claimant asserted that the
respondent breached the contract by failing to pay for the services
rendered. In the course of arbitration, the sole arbitrator requested

from the respondent not to take any further action in the local courts.
243 The tribunal held that "the task of the group of experts [is] to 'provide all technical
and other elements of fact likely to allow, should the case arise, the relevant
jurisdiction, to determine the liabilities possibly incurred and to evaluate, if
necessary, the sustained damages'. It also indicated that "new expertise
.. ." ICC Arbitration. "
would always have been possible in the framework of an
244 The tribunal noted that "[flhis point was so self-evident that, during the oral hearing,
the counsel of the defendant recognized that [Claimant] should not have been
involved in the suit Similarly, the English Court of Appeal held that a request
... ." despite the to exclude
made to Italian courts for interim relief parties' agreement
court's jurisdiction for interim protection is considered a breach of such agreement.
Such breach gave rise to damages. Mantovani v. Caparelli SpA, [1980] 1 Lloyd's
Rep 375.
151
However, the arbitrator later found out that such
order was not abided
with. Consequently, the arbitrator, upon the claimant's request,
ruled
that the respondent was in breach of Its binding agreement to
arbitrate.
According to the tribunal, due to such breach, the
respondent made
"itself liable for damages" that the claimant might suffer provided that
damages 246
such were "in direct causation with the breach ,,
.
In similar cases, an arbitral tribunal, in addition to costs of arbitration,
may award compensation to cover damages arising from the

t. 247
infringemen
4.4.3.2 Damages Arising From Judicial Provisional Measures

Compatible With Arbitration Agreement
Where a measure obtained from a court was compatible with the
applicable rules, the damageS248arising from such measure should still,

in principle, be recoverable, upon a party request, provided that the
measure is the result of abusing the right to apply to a court for interim
protection and/or is eventually proved to be wrong 249 An abusive
.
applicant runs the risk of paying damages. However, there needs to be
causation between the damages and the measure, which proved to be
wrong.
For instance, in an AAA case, the arbitral tribunal held that the
application to a court for a provisional measure was itself a breach of

250
the agreement to arbitrate and ordered the payment of expenses . In
245 ICC Final Award 8887 of 1997, extracts published in 11 (1) ICC Int'l Ct Arb Bull 91
(2000).
246 The tribunal, the payment of the claimant's all estimated costs,
as a result, ordered
which was not challenged by the respondent regarding local court proceedings.
247 In this respect see cases cited by Schwartz, Provisional Measures, 53-54, note 29.
248 The scope of damages should be wide and should cover costs of court
proceedings concerning the measure.
249 See Schwartz, Provisional Measures, 53-54.
250 Award of 2000 in AAA Case No. 50 T 114 00321 99 (unpublished). See also ICC
Final Award 7589 of 1994, extracts published in 11(l) ICC Int'l Ct Arb Bull 69
152
this case, a dispute arose concerning the termination of the
Development Agent Agreement and, mainly, related to the
payment of
royalties. The respondent, prior to the request for arbitration, applied to
a local court and obtained a pre-judgment attachment for guaranteeing
the payment of his claimed salaries. The claimant sought in his request
the payment of all costs it made in association with the pre-judgment
attachment. The tribunal awarded the claimant's request concerning
such costs.
4.4.4 Exclusion Agreements
Due to the contractual nature of arbitration, contracting parties can

251
exclude jurisdiction of an arbitral tribunal Whether or not arbitrating
.
parties can agree to limit or exclude the jurisdiction of courts concerning
interim measures is not clear-cut. Save for the ICSID Convention,
international arbitration conventions do not deal with exclusion of

jurisdiction 252 The that do not
national court's number of countries
.
allow parties to oust courts' jurisdiction 253seems to be lower than those
that do perm it254 The arbitration rules rarely deal with the issue of
.
(2000) (implying that had there been abuse, it could have ordered compensation
for damages. ).
251
252 In ICSID arbitration, jurisdiction of courts is, unless otherwise agreed, excluded for
provisional measures irrespective of whether or not an arbitral tribunal is formed.
See Chapter 11,supra Part 2.
253 Brazil (136sch (ed. ), 123-124); Denmark (id., 187-188); Hong Kong (Schaefer, Part
4.3.2.1); Italy (136sch (ed. ), 382 for arbitrato irrituale); Liechtenstein (id., 418); the
Netherlands (id., 495-496. However, in accordance with Article 1022(2) of the AA,
a judge may refuse to give its assistance to parties in regard of interim measure
application. Id. ); Norway (id., 514); Philippines (id., 553-54); and South Africa (id.,
643).
254 Australia (Bbsch (ed.), 38); Belgium (id., 98); Canada (id., 148-49)- England
(Section 107 of the EAA 1996 specifies mandatory principles of thý Act and
Section 44 on courts' jurisdiction in regard of interim relief is not contained therein.
Consequently it seems that it is valid to exclude courts jurisdiction by an
agreement. See also Sections 4 and 44(l) of the Act. See further Adam Johnson,
"Interim Measures of Protection in Arbitration Proceedings" 14, Speech Given at
the International Bar Association Conference in Barcelona on September 1999
(unpublished. ). Johnson indicates that such exclusion agreements should be in
express terms and a traditional Scott v. Avery clause does not prevent parties to
request interim relief from a court. Id.); Finland (Bbsch (ed.), 243-44. However,
153
exclusion agreements in express terms. The rarity is related to the
delicacy of dealing with jurisdiction of courts that is
undoubtedly within
sole discretion of legislatures. One example of the rarity is the ICC
Arbitration Rules, which limit the courts' jurisdiction
on provisional
measures to appropriate circumstances. 255
any exclusion agreement should be related to a specific right but not "a general
unlimited waiver. " Id., 243); France (id., 269), Italy (id., 382 in regard of arbitrato
irrituale); Korea (id., 397); Luxembourg (id., 434); Mexico (id, 448-49); Morocco
(id., 464-65), Sweden (id., 686); Switzerland (id., 713. See also Wirth, 40-41.
However, Wirth states that, in cases where arbitrating parties also
exclude court
assistance for enforcement of arbitral provisional measures, the answer would be
different. This is due to the argument that such exclusion, in fact, waives the
effect
of any interim protection of rights; consequently, it may constitute an excessive
self-restriction of a legal right. Such self-restriction may be denial of justice and
may be prohibited under Swiss law. Id., 41); and the U.S. (see id., 754. See also
William P. Mills, III, "State International Arbitration Statutes and the U.S. Arbitration
Act: Unifying the Availability of Interim Relief", 13 Fordham Int'l LJ 604-648 (1989-
1990). But see Anaconda v. American Sugar Refining Co., 322 U.S. 42 (1944)
(holding that jurisdiction of courts could not be excluded as regards seizure of a
vesoel.)). The German law is also suggested to allow restrictions on courts'
jurisdiction. Schaefer, Part 4.2.3. In this regard, it is noteworthy that the Model
Law itself does not contain any provision on the issue of exclusion agreements.
Indeed, the issue is left open in the Model Law. See, e.g., UN Doc
A/CN. 9/SR. 312, paras. 43 and 46, reprinted in Holtzmann / Neuhaus, 344-45. The
French delegate indicated that "[s]uch a course was also in the interests of the
parties themselves who could not foresee every eventuality in advance." Id., para.
46. But see the view of the Chartered Institute of Arbitrators' observer (indicating
that an exclusion agreement contained in the LCIA Arbitration Rules "had been
found valuable and acceptable. "). Id., para. 42. It should be noted that none of the
Model Law jurisdictions does expressly deal with the issue of exclusion
agreements. See Binder, 69. It is, however, interesting to observe that in two
Model Law jurisdictions, Canada, and Mexico those agreements are held valid. It
was indicated that Article 9 of the Model Law should neither "preclude" nor
"positively give effect to "exclusion agreements. See, e.g., UN Doc A/40/17, para.
97, reprinted in Holtzmann / Neuhaus, 345-46. It should be further noted that a
general exclusion of courts jurisdiction in favour of arbitration is not "sufficient to
exclude courts jurisdictions to grant provisional measures. " Lew / Mistelis / Krbll,
para. 23-117. See also In Re Q's Estate, [199911 Lloyd's Rep 931,935.1
255 Article 26 of the ICC Arbitration Rules. Two cases, inter alia, deal wth such
limitation. In ICC case 7895, the tribunal held that the "parties may, subject to
requirements of ordre public, by contract agree not to present requests for
provisional measures to court of competent jurisdiction ICC Final Award
.. - ."
7895 of 1994, extracts published in 11(l) ICC Int'l Ct Arb Bull 81 (2000).
Moreover, in ICC case 7915, the tribunal upheld the parties' agreement not to seek
any remedy, including provisional measures, from a municipal court for a period of
30 days commencing from the termination of the agreement. ICC Final Award
7915 of 1994, extracts published in 11(l) ICC Int'l Ct Arb Bull 64 (2000). The
place of arbitration, in this case, was Florida, the U. S. The other examples for
arbitration rules that contain rules for exclusion agreements are Clause 27 & 28 of
the CANE Arbitration Rules; Article 25(3) of the LCIA Arbitration Rules; and Article
39(5) of the ICSID Arbitration Rules.
154
There are arguments both against and for exclusion agreements.
Against the validity of exclusion agreements, it is argued that such
agreements should not be held valid due to the fact "that the provisional
remedies may be necessary to secure a party's legal position and that
they are applied in situations the importance of which cannot be
assessed in advance. ,256
It was further argued that "effective and quick interim relief' as provided
for by a court could not be derogated. 257 This is because the
derogation may result in a circumstance where "effective interim relief is
eliminated completely because interim proceedings before an arbitrator

will not be as time efficient or as enforceable as proceedings in the
state court. ,258 Accordingly, the derogation may cause denial of justice
for a party. To this end, for instance, in France, a court's jurisdiction
could not be completely excluded in regard of interim protection of
rights as the complete exclusion disregards "conflictual situation that
has been irremediably jeopardised culminating in a genuine 'denial of
justice', provided there is a sufficient link giving it [a French court]
jurisdiction to take measures justified by urgency or risk. ,259
Arguments in favour of upholding exclusion agreements are mainly

based on the principle of party autonomy, in other words upholding
party agreement. Indeed, contracting parties should, in this author's
view, be able to freely "take the risk" of empowering their arbitral
2,56
E.g., 136sch(ed.), 187-188.
257 351.
E.g, id., 295. See also Berger, International,
258
136sch(ed.), 295.
259 Pluyette, 75. See also Jean-Pierre Ancel, Comments in: ICC (ed.) Conservatory
Measures, 110,113; and Gaillard / Savage (eds. ), para. 1322 (arguing that
for facilitating the enforcement of final award fall within the exclusive
measures
domain of courts).
155
tribunal to solely deal with interim relief. 260 The parties, in international
commerce, are in a position to weigh the risks they are taking and are
able to take counter measures, e, g. expedited arbitration procedures for
minimizing the risk of unavailability of interim protection. In addition,
like agreements excluding appeals (setting aside) from awards
are
valid, exclusion agreements concerning interim protection of rights
should, by analogy, be held valid. 261
The arbitration rules, such as the ICC Arbitration Rules, and the LCIA
Arbitration Rules do not rightly envisage total exclusion. They merely
accept the principles of complementarity and subsidiarity.

Consequently, court assistance is permitted in "appropriate
circumstances. j262 For this reason, such restrictions should, in this
author's view, not be barred but complied with for partial exclusion
should not be considered as denial of justice. That is due to the fact
that effective protection of parties' rights would always be available
even if a court's jurisdiction is restricted where the principles of
complementarity and subsidiarity are adopted. As to total exclusion, it

should be kept in mind that, in some legal systems, such exclusion may
be considered a breach of the principle of due process (denial of
justice) and thus is held invalid.
Where contracting parties agree for complementary mechanisms, they

waive their rights to request from a court m,
"!ýasure that falls w&, in the
260 B6sch (ed. ), 294. See also Wirth, 41 (indicating that international merchants are
"sophisticated enough to comprehend" the legal consequences of an exclusion
agreement; therefore, there is no need to extend, whatever the basis might be, a
special protection to them. ) also Guinea and Soguipiýche v. Atlantic Triton, 26 ILM
373-376 (1987) (Cour de Cassation, 18 November 1986) (the court hold that "the
power of a State court to order conservatory measures, which power is not
expressly excluded by the Washington [ICSID] Convention, can be excluded only
by means of an express agreement of the parties or by an implicit agreement
from the adoption of arbitration rules which contain such renunciation. ").
resulting
261 See, e. g., Bbsch (ed. ), 324, and 397.
156
domain of an emergency arbitrator.263 Still,
no total exclusion is
provided for under such mechanisms. Opting for expedited
arbitration
rules should not itself be considered an exclusion agreement
as no
such intention is contained in mere reference to these rules 264
.
However, the fact that arbitration takes place
under the expedited
arbitration rules should be taken into account in deciding whether there
is urgency or not for the grant of provisional measures.
An exclusion agreement is better to be made in

writing with very clear
terms indicating express exclusion of courts' jurisdiction
in regard of
265
provisional remedies
.
4.5 Conflict of Jurisdictions
In cases where concurrent jurisdiction is adopted, the possibility of
positive and negative conflicts between jurisdiction of arbitrators and of

266
courts cannot be avoided negative conflict of jurisdiction occurs
.A
where both arbitrators and courts deny jurisdiction by asserting that the
267
jurisdiction belongs to the other one There is a positive conflict of
.
jurisdiction where both arbitrators and courts assert jurisdiction in
regard of provisional measures. In such a case, arbitrators and courts

268
may issue different and occasionally conflicting decisions
.
262 On what constitute appropriate circumstances, see Chapter 11, supra Part
4.4.2.2.2.
263 Gaillard / Savage (eds.), para. 1321 (indicating that such agreement is "perfectly
valid and can be inferred from parties intention to resort to" an emergency
arbitrator for provisional measures. ).
264
See id., para. 1321.
265
See, e. g., id. 1319.
266
Rubino-Sammartano, 651.
267 In fact, in cases where arbitrators have no jurisdiction to grant an interim measure,
such negative conflict of jurisdiction could potentially occur in the U.S. where some
courts refuse to grant provisional measures where a case falls under the New York
Convention. See Chapter 11,supra Part 4.2.
268
Rubino-Sammartano, 651.
157
international arbitration conventions do not regulate the issue
of conflict
of jurisdictions. Nor do most national laws.269
Some national IaWS270provide for and commentatorS271

argue that,
perhaps as a matter of convenience and speed, the forum first seized
of has in principle priority to decide a provisional measure request.
However, if party autonomy is extensively upheld, a court should refrain
from interfering with arbitration unless the intervention is necessary for
support. The court should play its complementary and subsidiary role
and; consequently, it should give priority to arbitration, agreed method
of settlement, and the arbitral tribunal is the natural adjudicator of the
dispute in question. Thus any potential conflict should in principle be
resolved in favour of arbitrators, and arbitration.272 The exception to
this principle is circumstances where the tribunal is incompetent to act
or unable to act effectively. 273
There could be some variations of potential or actual conflicts between

jurisdiction of an arbitral tribunal and of a court. If the tribunal issues a
measure, the court should not intervene to modify or revoke it so long
as the tribunal is able to act effectively. Where the court plays its
complementary or subsidiary role no or little conflict would arise. In this
regard, the court, where necessary, should give preclusive effect to the
tribunal's findings of fa cts 274

.
269 For instance, although the drafters of the Model Law accepted the possibility of a
conflict of jurisdictions, they, nonetheless, refrained from dealing with this issue.
See UN Doc, A/CN/. 9/264, para. 5, reprinted in Holtzmann / Neuhaus, 343-44; and
UN Doc, A/CN. 9/SR. 312, paras. 49-50, reprinted in Holtzmann / Neuhaus, 344-45.
270 See, e. g., Art. 1041(2) of the German CCP (providing that a court should refuse to
if an application for the measure has
enforce an arbitral provisional measure
already been made to a court. ).
271 See, e. g., Hausmaninger, Pre-Arbitral Referee, 98 (arguing that "the forum first
called upon has [generally] prima facie jurisdiction. ").
272 Rubino-Sammartano, 651.
273 See Chapter 11,supra Part 4.5.
274 See, e. g., Section 1297.94 of the California CCP; Section 1-567-39 (d) and (e) of
the North Carolina International Commercial AA; Section 2712.16 of the Ohio
158
In cases where a court orders an interim
measure, a tribunal could be
faced with a request to modify or terminate (asking
a party to withdraw)
it. The tribunal should, in principle 275
be able to issue, as the case may
,
be, an independent and conflicting decision
with the court order either
directly, where permitted, or effectively
amending or terminating it.276
Revised Code Annotated; Section 36-470(4)

and (5) of the Oregon International
Commercial and Conciliation Act; Article 249.9, Section 4
of the Texas Act Relating
to Arbitration or Conciliation of International Commercial Disputes;
and Section
9(l) of the First Schedule to the New Zealand AA. Under these
provisions, the
preclusive effect is generally given where the arbitral decision on the facts is
not
contrary to public policy and the tribunal has jurisdiction. It should be noted, in this
regard, that the Model Law left the determination of the issue of conflict of arbitral
jurisdiction with competence of courts to national laws. UN Doc A/40/17, para.
169, extracts published in Holtzmann / Neuhaus, 547.
27E
Subject, apparently, to the applicable laws.
27E
See, e. g., Section 44(6) of the EAA 1996:
If the court so orders, an order made by it under this section
shall cease to have
effect in whole or in part on the order of the tribunal or of any such arbitral or
other institution or person having power to act in relation to the subject-matter of
the order.
This "novel provision" is, in fact, in line with the underlying principle in regard
of
court assistance in England. arbitrators should, in principle, exercise jurisdiction
over issues regarding interim measures of protection. The DAC Report 1996, para.
216. See also Mustill / Boyd, 324. Accordingly, whilst a court makes an order in
regard of a request for an interim relief, it can hand over to an arbitral tribunal "the
task of deciding whether or not that order should cease to have effect. " Id. See
also Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith Inc., 910 F 2d 1049 (2d
Cir. 1990) (arguing that arbitral tribunal may order the relevant party to refrain from
enforcing the court order it obtained rather than directly vacating such order). The
Amco tribunal, in this regard, indicated that
an international Tribunal is not bound to follow the result of a national court.
One of the reasons for instituting an international arbitration procedure is
precisely that parties - rightly or wrongly - feel often more confident with a legal
institution which is not entirely related to one of the parties. If a national
judgment was binding on an international Tribunal such a procedure could be
rendered meaningless.
Accordingly, no matter how the legal position of a party is described in a national
judgement, an International Arbitral Tribunal enjoys the right to evaluate and
examine this position without accepting any res judicata effect of a national
Court. In its evaluation, therefore, the judgements of a national court can be
accepted as one of the many factors which have to be considered by the arbitral
tribunal.
Amco Asia Corp. v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award of 20
November 1984,1 ICSID Rep 413 (1993). See also Bucher / Tschanz, para. 178,
91 (arguing that a tribunal could vary or terminate, under the SPIL, a previous court
order); Rubino-Sammartano, 651; Gaillard / John Savage (eds. ), para. 1330', and
Lew / Mistelis / Kr611,para. 23-130. But see Berger, International, 347 (arguing that
such review goes "beyond the authority of the tribunal and constitute an
159
That is because the court order is temporary in
nature and does not
deprive the tribunal of its jurisdiction to
render a further interim or,
277
indeed, a final remedy It is also because the tribunal
. could apply its
own requirements and could take into account the facts
and
circumstances of the case in question. A change in circumstances
also
justifies the review. The principle of comity should not be a bar to the
278
tribunal's review That is due to the principle of party
. autonomy.
Giving priority to the arbitral decision is upholding the
agreed means of
settlement.
In cases where the request to a court is denied, the tribunal should still,
in principle, grant a similar or an identical measure 279 The reasons
.
explained in the preceding paragraph, including the change in
circumstances justify that. The obstructionist requests for aiming to

delay arbitration proceedings, however, should not be allowed.
In this context, it should be noted that tribunals may be hesitant "to take
action contrary to, or inconsistent with, provisional measures already
impermissible interference in the competence of the municipal courts. "); and ICC
Case No. 4998 of 1985, extracts published in (1986) Clunet 1139.
277 See Emmanuel Gaillard, "Arbitrage Commercial International-Intervention du Juge
Etatique", Jurisclasseur Droit International, Fascicule 586-8-2, No. 142 (1991),
Schwartz, Provisional Measures, 54 (arguing that a tribunal may "direct the parties
to take certain actions in respect of such [judicial] measures or require that they be
replaced with others under the control of the ICC arbitral tribunal. "); and Gaillard /
Savage (eds. ), para. 1330 (indicating that a tribunal's order should prevail over a
court order due to the fact that "the only justification for applying to the courts lies in
the presumption that they are equipped to take the protective measures required in
the circumstances more rapidly. ").
278 However, it does not mean that the tribunal should make direct orders to courts.
The tribunal has jurisdiction only over the parties to arbitration. See also Chapter
11,supra note 96 and accompanying text.
279 But see ICC Award 4126 of 1984, extracts published in (1984) Clunet 934 (denying
a request to a tribunal for an interim measure identical to the one previously
submitted to a court and finding that although the principle of ne bis in idem is not
applicable, for the sake of good procedural order, such re-submission would be
prevented unless new circumstances arise. ).
160
,280
ordered by a court. The hesitance couid be associated
with the
arbitrators' reluctance of interfering with court's jurisdiction.
Conclusion
Arbitration is the natural forum for interim measures 281
of protection
.
The jurisdiction of a tribunal to grant provisional measures
almost
always derives from arbitration agreement, e.g. arbitration rules.282
National laws may also provide for default powers for the grant of
arbitral provisional measures. In rare circumstances, where none of the

above does deal with such measures, the power to grant them may
arise from the tribunal's inherent, or implicit power or its power to
conduct arbitration proceedings.
However, the exercise of arbitral jurisdiction for provisional measures is,

in some cases, impossible or ineffective, which is related to nature and
283
operation of arbitration . This is because arbitral jurisdiction has three
salient problems and certain other shortcomings in regard of interim

284
protection of rights . For this reason, the concurrent jurisdiction
approach is generally accepted.
A logical conclusion of the concurrent jurisdiction approach is that a
request for a provisional measure either before the formation of an
280 Schwartz, Provisional Measures, 57. See, e. g., ICC Award 4998 of 1985, extracts
published in (1986) Clunet 1139 (finding very serious to modify a judicial measure
where it found itself out of jurisdiction under Article 26 of the Concordat to grant an
interim measure. ). But see ICC First Interim Award 5835 of 1988, extracts
in 8(1) ICC Int'l Ct Arb Bull 67 (1997) (holding that the waiver of
published
attachments (for security) may be directed to a party provided that a replacement
security is submitted by the other party. ).
28 For reasons supporting this view, see Chapter 11,supra Part 1.1.
282 On the sources of a tribunal's jurisdiction, see, generally, Chapter 11,supra Part
1.2.
283 See Chapter 11,supra Part 4.
161
arbitral tribunal or during arbitration proceedings is compatible with
285
agreement to arbitrate. The principle of compatibility has two facets.
0 The request is not a waiver of the right to arbitrate.
Further, the existence of the arbitration agreement does
not
prevent a court to issue an interim measure.
The convenience and efficiency require, although it is not yet fully

accepted by all national laws, the grant of provisional measures in aid
286
of foreign arbitration Since the seat of an arbitration is often
.
determined as a geographically convenient and neutral place, a judicial
provisional measure available from the courts at the seat would in most
cases be meaningless. That is because the parties, their assets and,
most importantly, the subject matter of arbitration would be foreign to

such seat. Thus, the measure obtained at the seat would be
ineffective. In granting a measure, the court of a foreign country should
examine whether it is the most appropriate / convenient forum even if it

has jurisdiction. Having established that it is, it then, in principle,
applies the standards available under its own national law to grant the
measure.
In establishing the degree of judicial involvement into arbitral process,

party autonomy should be taken into account and given utmost
287
significance . However, the party autonomy should not extend to total
autonomy due to the above salient problems and shortcomings of
arbitration. This is for ensuring that arbitration is effective. That is also

for effectiveness and good administration of justice, which reconciles
the tension between court involvement into arbitration and parties' will
to keep courts out of arbitration process. That reconciliation satisfies
the needs of international commerce. balancing security with flexibility
285
286
162
in arbitration by avoiding any abuse of court involvement. The
reconciliation requires and results in collaboration or cooperation of
arbitrators and of courts. The concept of cooperation necessitates, in
regard of interim protection of rights, court assistance to arbitration,
which is accepted by many national laws and arbitration rules. Such
cooperation needs to be co-ordinated. On the method of coordination
most national laws and arbitration rules are silent. The examination of
the remaining (a small number of)i laws demonstrate that there are two
methods of co-ordination. freedom of choice approach and restricted-
access approach. The latter approach should, in this author's view, be
adopted.
Under the freedom of choice approach, the choice to make application

to any forum is completely open regardless of the stage of
288
arbitration However, such freedom is an invitation for abuse of court
289
involvement. Indeed, that freedom is, in some cases, abused
.
Courts should be aware of the possibility of abuse and deny a request
made for tactical purposes. The full freedom also intervenes with the
principle of party autonomy. Where arbitration is chosen for resolution

of disputes, such choice should normally be respected. In case of
abuse, the moving party may be held responsible for damages. Thus,
for not being held liable, the moving party is advised to follow the
common sense in choosing the forum to make an application.
Under the restricted-access approach, the principles of
complementarity and subsidiarity are accepted by taking into account

two different stages of arbitration .290 At the stage prior to formation of
an arbitral tribunal, the role of court is complementary to arbitral

2138See Chapter 11,supra Part 4.4.1.
289 See Chapter 11,supra notes 187-188 and accompanying text.
290 See Chapter 11,supra Part 4.4.2.
163
jurisdiction in regard of interim protection of rights. After that
stage, the
role of the court Is subsidiary. The court should only act where the
tribunal or another party-determined authority is unable to
act or its act
would be ineffective. In order to avoid abuses, an access to a court
should be subject to the tribunal's permission.
The principles of complementarity and subsidiarity are reflected in a
small number of arbitration rules 291 The ICC Arbitration Rules are the
.
prominent example to those rules. Under the ICC Arbitration Rules,
court assistance is permitted at the pre-formation stage. Following the
formation of the tribunal, the Rules indicate that arbitrators should have
priority in regard of interim protection of rights and that a court should

assist where the circumstances are appropriate. In light of the ICC
practice and scholarly opinions, which this author concurs with, the
circumstances are appropriate where, again, the tribunal is unable to
act or, for the time being, its act is ineffective; namely,
where there is urgency for interim protection of rights,

where the tribunal's power is limited, e. g. for attachments or
measures against third parties to arbitration, or
where the tribunal is paralysed or otherwise unable to act.
The restriction or exclusion of a court's jurisdiction under arbitration
rules is subject to applicable laws. In this regard, it should be noted

that, by adoption of the principles of comple-mentarity and sub--idiarity
(and by accepting court assistance under appropriate circumstances
within the concept of subsidiarity), parties only restrict court assistance

fully it. 292 Such restriction should, in this
to arbitration but not exclude
author's view, be upheld due to the fact that partial exclusion should not
be considered as denial of justice since, under the restrictive approach,
291 See Chapter 11,supra Part 4.4.2.2.

164
effective protection for interim protection of rights would
always be
available. Even total exclusion of court assistance, though it may
not,
under some laws, be permitted, should be upheld due to the principle of
party autonomy.
In all cases, deciding whether or not to assist

arbitration, a judge should
exercise utmost caution. He should only act where the circumstances
of the case plainly favour assistance. '9'
Where a request for a judicial measure is incompatible with the

agreement to arbitrate or such measure proves to be wrong or abusive,
damages arising from it should be recoverable from an arbitral tribunal
as this choice of forum (arbitral tribunal) mainly enhances effectiveness

294
of arbitration and is more in line with the principle of party autonomy
.
For effectiveness of arbitration and good distribution of justice, unless

there is a reason for court assistance in accordance with the principles
of complementarity and subsidiarity, an arbitral tribunal should be
preferred over a court in case of conflict between these two fora. 295 To
this end, where the arbitral tribunal issues a provisional measure, no
court should, in principle, intervene to modify or revoke such measure.

Further, where the court orders a provisional measure, the tribunal
should, in principle, be able to issue conflicting decision, in effect,

amending or terminating (asking a party not to comply with it) such
measure. This is mainly because judicial measure is temporary in
nature and does not deprive the tribunal of its jurisdiction to render an
interim relief.
293 See Chapter 11,supra note 149 and accompanying text.

295
165
CHAPTER III
EMERGENCY ARBITRAL PROVISIONAL MEASURES:

COMPLEMENTARY MECHANISMS
Arbitration is the natural forum to seek '

However, there are three salient problems
and certain shortcomings
concerning the tribunal's jurisdiction to grant provisional measure
s-2
One of those problems is that, at the pre-formation
stage, prior to the
appointment of a tribunal, provisional measures are not available from
the tribunal as, at this stage, no tribunal is in existence. There
exists a
lacunae. The unavailability of arbitral provisional measures
at the pre-
formation stage, is detrimental. Unfortunately, it takes
certain period of
time to appoint an arbitral tribunal. This is related to the fact that due to
the globalisation, complexity, bureaucratisation or institutionalisation of
arbitration over the last 85 years, "[i]nstitutional arbitration can now be

painfully slow in forming the arbitration tribunal In all but 'fast-track'
A
arbitrations The period between the appearance of a dispute and
the formation of an arbitral tribunal "is now often measured in weeks or
even months. A If a party awaits for constitution of the tribunal for

interim protection of rights, in some cases, "the dispute would surely be
,,5
academic (ie the damage done) That period constitutes a very
See supra Chapter 11,Part. 1.1.

See supra Chapter 11,Part 4.1.
Johnny Veeder, "The View From London: The New 1996 Act and the New LCIA
Rules", ("The View") in: Wymbo P. Heere (ed.), Contemporary International Law
Issues.- New Forms, New Applications, Proceedings of the ASIUNVIR Fourth
Hague Joint Conference, (The Hague: TMC Asser Instituut 1998), 206,207.
Id. See also supra Chapter 11,Part 4.1.
Jan Paulsson, A Better Mousetrap, 215. In addition, for instance,
the respondent's money needed to pay an award may flee, so that a claimant
who is eventually awarded damages finds that there is no gold at the end of
rainbow. Or evidence needed to prove a party's case may have been
destroyed; or bananas in dispute may have rotted on a tropical wharf so that
there is no possibility of knowing whether they had met the quality specifications
when they first delivered. Or the respondent may engage in acts that are
166
important phase of arbitration: "[w]hat happens in that
relatively short
period in the early days of a case may have a crucial
effect on the
entire arbitration. ,6 Indeed, a survey conducted in the U.S.
demonstrates that a majority of disputes settle prior to a trial It this
.7 is
author's experience that, in majority of cases, a party either uses or
considers using a request for provisional measure as a tool for
8
settlemen t. Where the party request is successful, then such party will
generally be in a commending position to force the respondent party to
a settlement under terms favourable to It.9
Where no arbitral provisional measures are available, a court is the only

forum to seek provisional measures. However, channelling a party to a
court is, inter alia, against the party's original intention of referring their
disputes to arbitration; namely, resolution of the disputes by a neutral /
party-determined authority. 10 In other words, a provisional measure

from a court infringes the parties' initial will of neutrality. " To refer
destroying the claimant's business so that an eventually favourable award in the

arbitration would be, at best, a Pyrrhic victory.
See Howard Holtzmann, "Remarks" in- Heere (ed.), 202 ("Remarks").
6 Holtzmann, Remarks, 202.
7 Over 60 percent in the U.S. See Herbert M. Kritzer, "Adjudication to Settlement-
Shading in the Gray", 70(3) Judicature 161,163 (1986). Before the U.S. District
Courts, more than 75 percent of the cases are settled prior to trial during the
twelve-month period ended 30 September 1997. Heather Russell Koenig, "The
Eastern District of Virginia.- A Working Solution For Civil Justice Reform", 32 U
Rich LR 799,829 (1998). See also Hubbard v. Vosper [1972] 2 QB 84,96.
Further, many international disputes settle right after exchanges of statement of
claim and defence. See, in this respect, Schwartz Provisional Measures, 45,55.
8 On the issue of abuse, see supra Chapter 11,Part 1.1.
9 Id. It should, however, be noted that not all provisional measures could be subject
to abuse. For instance, measures aimed at preserving evidence may hardly be a
subject for abuse.
10 Indeed, the reasons for preference of such mechanisms over litigation are
generally similar to the reasons in support of arbitral jurisdiction to grant provisional
measures. See supra Chapter 11, Part 1.1. Apparently, regardless of those
to refer their requests for provisional measures to a
reasons, parties may choose
judicial authority. There is nothing wrong with such choice. In fact, in such cases
freezing of assets or provisional measures against third parties to arbitration, a
as
to a court may be the only effective means to pursue. These cases
request
justification for concurrent jurisdiction approach. See generally supra
constitute
Chapter 11,Part 4.1.
11 Paulsson, 215.
167
parties to a court for an interim measure means asking them to go back
to the forum they just opted out. Experience demonstrates that thi's
forum, if available, may perhaps be the home
court of the requesting
party or any other fora but the home court of the respondent.
Regardless of the place of the forum, a party to
an arbitration
agreement expressed its will to resolve its dispute in a neutral party-
determined forum. In addition, a request for a provisional measure
from a court is an open invitation for abuse.12 Also, such request may
also infringe possibly intended confidential nature of arbitration
proceedings. 13 Further, the request may be, though less frequently,
14
considered as a waiver of the right to arbitrate. This is "a relic of the
outdated view that ordinary litigation is to be preferred over
arbitration. 05 Moreover, assistance of judicial authorities 'in respect of
provisional measures, in some cases, may not be effectively available,
16
or not available at all. To this end, it is submitted that it may take up
to twelve months in some countries to obtain a provisional measure.17
The unavailability of a measure from a court may be due to the fact that
some courts consider the existence of arbitration agreement as a bar to
their jurisdiction. Certain U.S. courts interpret, as explained above, that
agreement to arbitrate a dispute precludes their intervention even for
to international commercial arbitration.18
providing assistance
In order to overcome the above problems and after having considered

the importance of the problem, the drafters of a small number of
institutional arbitration rules offered complementary mechanisms to
12 See supra Chapter 1,Part 1.1.

13 Benjamin Davis, "The ICC Pre-arbitral Referee Procedure in Context with
Technical Expertise, Conciliation and Arbitration", 9(2) ICLR 218,230 (1992).
14 See, e. g., Hans Smit, "Provisional Relief in International Arbitration: The ICC and
Other Proposed Rules", 1(3) Am Rev Int'l Arb 388,389-390 (1990).
15 Id., 390.
16 For circumstances where judicial assistance to arbitration may not be available,
see supra Chapter 11,
Part 4.2.
17
Gurry, 2.
168
arbitration for making available interim protection of rights from a party-
determined authority at the pre-formation stage. In addition to their
importance, the availability of complementary mechanisms is
also
supported by the principle of party autonomy. Further, the availability of
such mechanisms may, at least in some cases, deter any unnecessary
(unreasonable) request for a provisional measure. 19 In other words,
such availability may avoid the use of provisional measures as a tactical

tool. To this end, these mechanisms assist greatly to the effectiveness
of arbitration.
20
The need for a neutral but party determined authority, other than an
arbitrator himself, offering interim protection of rights in an urgent

manner is not novel. In fact, as early as 1915, the necessity was
recognised and a neutral (party-determined) arbitral mechanism for

granting provisional
measures was proposed The mechanism
.21
created was taken as guidance by several arbitration institutions, most
notably by the ICC. Interim measures were available from the president
of the Court of Arbitration under the 1931 and 1939 editions of the ICC
Arbitration Rules but the power of the president was abandoned in the
1955 edition of the Rules. 22
Today, in order to meet the need for a party-appointed neutral authority

to grant provisional measures, parties who choose arbitration as their
,8 See supra Chapter 11,Part 4.2.

,9 Humphrey Lloyd, "What is Pre-Arbitral Expertise and How Does it Differ from the
Pre-Arbitral Referee Procedure? ", Institute of Business Law and Practice,
Conference on Arbitration and Expertise (Paris, 12 April 1991), 18-19
(unpublished); and Davis, 229.
20 The need is expressed as "to more fully implement the parties' intent to arbitrate
disputes". The AAA Commercial Arbitration Rules Revision Committee,
any future
ADR Currents, 6 (December 1998).
22 See supra Chapter 1,Part 1.1.3.
169
dispute resolution mechanism have two options. 23 They
. can expressly
provide for a mechanism in their arbitration agreement to obtain
an
emergency provisional measure. Alternatively, the parties may agree to
use the complementary mechanisms available from a few arbitration
institutions.
The parties are free to contractually create their

own emergency arbitral
provisional measure rules. " In practice, parties appoint one or three-
member panel for duration of a contract to grant provisional

standing
measures if necessary 25 This can be done in theory at any time prior
. -
to or after -a dispute has arisen. The practical experience
demonstrates that it is highly unlikely to have such agreement where
a
dispute has 26 The difficulty
already arisen major with the standing
.
panel approach is the expense to 27
retain the members of the panel. In
order to overcome this difficulty, parties may themselves create a
mechanism under which an emergency arbitrator may be appointed by
an appointing authority when a dispute emerges. Alternatively, the
23 It should be
noted that there are other mechanisms under which a certain type of
provisional measures may be obtained. The best example to this is perhaps
preservation of evidence by a pre-arbitral technical expert. This Chapter does not,
however, deal with those mechanisms since the main objective of technical
expertise is not of interim protection of rights. On the pre-arbitral technical expert,
see, e. g., Yves Derains, "Technical Expertise and Refere Arbitral" in- Pieter
Sanders (ed. ), New Trends in the Development of International Commercial
Arbitration and the Role of Arbitral and Other Institutions, ICCA Congress Series
No. 1 (Kluwer: Hamburg 1982), 183-184 ("New Trends"); and Schwartz,
Provisional Measures, 64. On the expertise procedure see, e. g., the ICC Rules of
Expertise. For the text, see ICC Publication No. 520. For more information on the
ICC Rules for Expertise, see Herv6 Charrin, "The ICC International Centre for
Expertise-Realities and Prospects", 6(2) ICC Int'l Ct Arb Bull 33-46 (1995); Lloyd,
1; Michael BOhler, "Technical Expertise", 6(1) J Int'l Arb 135 (1989); and Derains,
Refere Arbitral, 183.
24 In fact, they can adopt the emergency arbitral relief procedures offered by certain
institutions to their specific needs. For these procedures, see Chapter
arbitration
I11,supra Part 2.
25 Derains, Refere Arbitral, 190.
26 Lloyd, 14- and Smit, 391. At this stage, generally, one of the parties has certain
incentiveý to delay or obstruct final or temporary resolution of any of the disputes.
To this end, one should keep in mind that the general tendency in litigation or,
less, in arbitration proceedings is that parties hardly ever agree on
perhaps
anything once a dispute is taken before a judicial or arbitral authority.
170
parties may adopt a complementary mechanism procedure
available
from some arbitration institutions.
The complementary mechanisms mainly take two forms. Some

arbitration institutions, following the [CC example 28
, empower the
president, the head or an organ of the relevant arbitration association
or
institution to grant provisional measures. This power generally ceases
to have an effect as soon as an arbitral tribunal is formed.
Some other institutions have created special rules that

can be called as
emergency provisional relief procedures. These procedures envisage
for a mechanism under which a neutral person is empowered to
grant
certain provisional measures. This person is called a pre-arbitral
referee, emergency arbitrator, or simply arbitrator, who is appointed
either by parties or the relevant institution. The concept of providing
emergency arbitral provisional relief procedure was resurrected and
developed by the ICC. After 10 years of study, the ICC introduced the
Rules for a Pre-Arbitral
Referee Procedure in 1990.29 These innovative
Rules are inspired from ref&6 procedure of French law. 30
The ICC Pre-Arbitral Referee Procedure, in turn, inspired certain other
arbitration institutions. In 1997, the European Court of Arbitration (the

"ECK) included the Pre-Arbitral Referee Rules in its Arbitration Rules
27
Smith, 391.
28
See supra Chapter 11,Part 1.1.3.
29
For the text of the Rules, see ICC Publication No. 482, reprinted in 1 ICC Ct Arb
Bull 18-23 (1990). For more information on the ICC Pre-Arbitral Referee
Procedure, see, e.g., Davis, 218; Hausmaninger, Pre-Arbitral Referee, 82; Smit,
388; Christine L6cuyer-Thieffry, "Examination of ICC's Pre-Arbitral Referee
Procedure- An Innovation in Dispute Resolution", 1 WAMR 13 (1991); and
Paulsson, 214.
30
On the ref6r6 procedure, see, e.g., Wallace R. Baker / Patrick de Fontbressin,
"The French R&&6 Procedure -A Legal Miracle?", 11U Miami YB Int'l L1 (11992-
1993); Jean de Hauteclocque, "French Judicial Expertise Procedure and
International Arbitration", 4(2) J Int'I Arb 77-101 (1987); and Gaillard / Savage (ed.),
728-734.
171
as an optional mechanism The Summary Arbitral Proceedings
.31 of the
NAI Arbitration Rules in 1998, the Optional Rules for Emergency
Measures of Protection of the AAA in 199932
and the Draft Emergency
Relief Rules of the W, p033 followed the ICC's 34 The last
initiative
.
Rules were never adopted. The Rules will,
nevertheless, be examined
in this Chapter as they constitute a complete
and well-thought set of
rules.
The need for use of those mechanisms "may arise

in any type of
,,35
dispute Certain disputes, e. g. the disputes concerning trade
. secrets
or intellectual property generally demand, however, speedier and more
confidential resolution than other types of disputes. 36
31 For the text of the ECA Pre-Arbitral Referee Rules,

see 10 WTAM 237-243 (1998).
32 Although these Rules
were designed for the AAA Commercial Dispute Resolution
Procedures 2003, parties can opt to use them where arbitration is taken place
under the International Arbitration Rules. It is interesting to note that one of the
reasons for implementing these Rules was to remedy the deficiency that exists in
the U.S. as regards interim protection of rights where parties agree to arbitrate.
See supra Chapter 11,Part 4.2. Indeed, the AAA Commercial Arbitration Rules
Revision Committee indicated that "[t]hese optional rules respond to the
...
preference of courts to limit their involvement in matters where the parties have
expressed an intention to arbitrate." See The AAA Commercial Arbitration Rules
Revision Committee, 6. See also supra Chapter 11,Part 4.2.
33 For more information on these Rules, see V.';PO Documents ARB/AC/11/95/3,
WIPO/ARB/DR/5; and ARB/AC/111/96/3. See also Gurry, 1, and Richard A.
Horning, "Interim Measures of Protection; Security for Claims and Costs; and
Commentary on the WIPO Emergency Relief Rules (In Toto)" in: WIPO Arbitration
Rules - Commentary and Analysis (New York: Juris Publishing 2000), 155,170-
175, reprinted in 9 Am Rev Int'l Arb 155 (1998).
34 It should be noted that the LCIA failed to adopt emergency relief procedure in
1997. For the developments at the LCIA and the text of the Discarded New LCIA
Rule on Interim Measures, see Veeder, The View, 206-211. The main reason for
the failure, according to Veeder, is the perception that the emergency arbitrator is
in fact a non-arbitrator and that "the concept of any 'Provisional Order' by a non-
arbitrator" would be unacceptable. Id., 210-211.
35
Gurry, 2.
36
Id.
172
It is further noteworthy that complementary mechanisms are available
laW37
to an extent the applicable upholds the exclusion agreements
38
valid.
In order to provide alternativesolutionsfor overcomingthe effect of the

lacunae or, in other words, the effect of the unavailability of arbitral
provisional measures at the pre-formation stage, a fast-track
mechanism for appointment of arbitral tribunal could be adopted or a
party can seek certain "self-help" measures for eliminating the necessity
for complementary mechanisms.
This Chapter examines (i) institutions' direct proposition to the solution

of the problem: the empowering institution's head or organ with
emergency powers to grant provisional measures; (ii) the emergency
arbitral measure procedures; (iii) the effectiveness of the
complementary mechanisms; and (iv) alternative solutions to the
complementarymechanisms.
1 Emergency Provisional Measures Available from Head or

Organ of Institution
It seems that four sets of arbitration rules currently provide for interim
protection of rights from a head or an organ of the relevant institution
prior to appointment of an arbitrator. These rules apparently
resurrected the mechanism first employed in the 1915s and survived
until the 1950S.39
The examination of the above rules mainly demonstrates that

provisional measures could generally take the form of an "order" and
37 For instance, law of the place of arbitration, law applicable to procedure, and law
applicable to arbitration agreement.
173
that two of those institutions provide for limited powers in respect of
granting provisional measures whereas the other two have no
restriction. The restrictions are mainly related to the types of measures
that could be granted.
In accordance with Article 12(l) of the Arbitration Rules 2002 of the

Arbitration Court attached to the Economic Chamber of the Czech
Republic and Agricultural Chamber of the Czech Republic, the
president of the court is empowered to take "in urgent cases, acting

upon application of one party or both of them, ... measures to conserve
evidence. " This Article further states that, for conservation of evidence,
the arbitrator "may appoint one or more expert witnesses or take other
appropriate steps. " The president's power exits for the period prior to
the formation of an arbitral tribunal but after the claimant's statement is
filed. Under the Rules, a party has a choice to make its application to a
the is 40
court so president's power not exclusive ,
Similarly, Section 1(6) of the Arbitration Rules 1995 of the International

Commercial Arbitration Court at the Chamber of Commerce and
Industry of the Russian Federation seems to empower, upon a request
from a party, the chairman of the International Commercial Arbitration
Court (the "ICAV) to determine "the amount and the form of the
security for a claim."
Article R37 of the Procedural Rules 1994 of the Court of Arbitration for
Sport4l contains no restriction concerning the types of emergency
provisional measures:
The Presidentof the relevant Division,prior to the transfer of
the file to the [arbitral] Panel, or thereafter the Panel may,
'0 Section12(2).
41 The Rulesfor the Resolutionof DisputesArisingDuringthe OlympicGamesof the
Courtof Arbitrationfor Sportprovidefor a similarprovision(Article14).
174
upon application by one of the parties, make an order for
provisional or conservatory measures.
...
This Article further requires that the opponent shall be heard. However,
in cases of utmost urgency, that requirement is waived provided that
42
the opponent is heard subsequently In accordance with Article
.
R37(4), the grant of a measure may be conditioned upon
posting of a
security. It is noteworthy that, under the Rules, a right to apply to
judicial authorities for provisional measures is expressly waived. 43
Likewise, broad powers are given to a three-member permanent

committee established to deal with provisional measures at the pre-
formation stage under the Rules for International Arbitration 1994 of the
44
Italian Association for Arbitration The Association appoints members
.
of the committee for a period of three years. Its chairman or one of its
members on behalf of the chairman can carry out the committee's

functions where the member is authorised by the Committee. A party
to arbitration may apply for a provisional to the permanent
measure
45 The application
committee before the formation of arbitral tribunal .
46
shall contain supportive arguments and documents The Committee
.
has the same powers as an arbitral tribunal established under the
Rules in respect of provisional measures and the Committee's decision
can take the form of an order. 47
There are two issues that could be dealt with in regard of the power
exercised by the head / organ of an arbitration institution for interim
protection of rights. The decision given by the head / organ of the
42
Article R37(3).
43
Article R37(2).
44
Article 2.
45 Article 8. By virtue of Article 8(2), where the tribunal is formed, the application is to
be made to it.
46
Article 8(l), para. 2.
47
Article 19(l).
175
institution seems to be morally binding on the
parties. The failure to
abide by the decision may lead to the non-complying
parties'
responsibility for damages and costs of those interim measure
proceedings as a matter of breach of contract. In addition, where the
measure issued is likely to cause damages to the opposing party, the
head / organ may request security for damages from the
moving party
despite the fact that the power to issue such security is
not expressly
envisaged under the relevant rules. That is due to the fact that such
security intrinsically related to and should be inseparable from the
power to grant a provisional measure,
2 Emergency Arbitral Provisional Measure Procedures
The emergency arbitral provisional measure rules offer mechanisms
complementary to arbitration for interim protection of rights. The NAI

Summary Arbitral Proceeding S48and the WIPO Draft Emergency Relief
RuleS49are the most comprehensive sets of rules.
All emergency arbitral relief rules aim at providing a speedy mechanism

for obtaining arbitral provisional measures. The Jurisdiction of an
emergency arbitrator is merely limited to grant of provisional measures
and; consequently, the emergency arbitrator does not have jurisdiction
over substance of a case. Each of the rules, apart from the ICC Pre-
Arbitral Referee Procedure and the ECA Pre-Arbitral Referee Rules,
48 he rules on the Summary Arbitral Proceedings contain 15 articles. In addition, in

accordance with Article 42a(3) of the NAI Summary Arbitral Proceedings, Section
One (General Provisions), and Section Five through Seven (Award, Costs, and
Final Provisions) of the NAI Arbitration Rules are applicable along with certain
other provisions to the Summary Arbitral Proceedings. The pre-requisite for the
application of the Summary Arbitral Proceedings is that the place of arbitration was
determined to be in the Netherlands in accordance with Article 42a(4) of the NAI
Summary Arbitral Proceedings. If the place of arbitration was not determined by
the parties, Rotterdam is the place of arbitration for the purpose of application of
the Section Four (the Summary Arbitral Proceedings) of the NAI Arbitration Rules.
In this regard, it is noteworthy that the Netherlands' Code of Civil Procedure is
permissive of summary arbitral proceedings. See Article 1051.
176
has a different approach in creating such mechanism. In other words,
almost every one of them has more or less a different way of handling
'legal' and 'mechanical' difficulties 50 in creating a speedy
complementary procedure. It should be noted at the outset that the
rules contain certain similarities in handling those difficulties and that
the ICC Pre-Arbitral Referee Procedure seems to be an inspiration to
all. 51
The legal and mechanical difficulties are mainly related to the speedy
nature of emergency relief procedure. In handling those difficulties,

there has been undoubtedly constant tension with aim to create a
speedy procedure and two important of international

principles
commercial arbitration: party autonomy and due process. 52 The extent
of one of these principles' acceptance over the others shapes the
formation of various stages of emergency measure proceedings. Three
main examples to those stages are appointment of emergency

arbitrator, determination of time limits (for answer, hearing etc. ), and
opportunity to present one's case.
To that end, one of the most important characteristics of the emergency
relief procedures is that all but the WIPO Draft Emergency Relief Rules
requires interpartes proceedings.
This Part deals with the issue of (i) terminology, (ii) integration of arbitral
relief procedure with arbitration rules of a given institution, (iii)
jurisdictional relationship to arbitral and judicial proceedings, Ov)
49 The Rules contain 16 articles and the WIPO Arbitration Rules were, as a whole,
few exceptions, applicable to emergency relief proceedings. Article 1.
with a
50 See WIPO Document ARB/AC/11/95/3, para. 9.
51 A further inspiration seems to stem from the Proposed Rules for Provisional Relief
in Arbitration prepared by Professor Hans Smith and a group of his law students at
the Columbia University in 1991. For the text of these Rules, see SmIt, 409-410.
52 See, in this respect, WIPO Document WIPO/ARB/DR/5, paras. 16-19.
177
request for measure and answer, (v) appointment and challenge of
emergency arbitrator, (vi) emergency measure proceedings, (vii)
powers of an emergency arbitrator, (viii) requirements to grant
emergency measures, (ix) form of emergency arbitrator's decision, (x)
modification and revocation of decision, (xi) effect of decision, (xii)
appeal, (xiii) compliance with decision and effect of non-compliance,
(xiv) confidentiality, (xv) costs of emergency measure proceedings, and
(xvi) ex parte requests for emergency measures.
2.1 Terminology
The emergency rules examined employ different terms in referring to

the procedure they propose. The ICC and the ECA refer to the
53
procedure they propose as the "Pre-arbitral Referee Procedure." The
AAA prefers the "Optional Rules for Emergency Measures of
Protection". The NAI refers to its rules as the "Summary Arbitral
Proceedings." The WIPO uses the term "Emergency Relief Rules." It
seems that the term "emergency provisional (or interim) arbitral relief
(or remedy or measure) procedure (or rules)" reflects main
characteristics of the mechanism in question.
The decision-maker under the ICC Pre-Arbitral Referee Procedure and

the ECA Pre-Arbitral Referee Rules is called as "pre-arbitral referee. "
The other rules refer to the same person as "arbitrator" (the NAI
Summary Arbitral Proceedings) or "emergency arbitrator" (the AAA
Optional Rules for Emergency Measures of Protection and the WIPO
Draft Emergency Relief Rules). The last term seems to be preferable.
This is because an emergency arbitrator not only makes a decision
judicially but also is different to an arbitrator since it does not finally
resolve substance of a dispute. An emergency arbitrator, as a neutral
53 This name was inspired from the French original W&6 arbitral. It was used
because no other satisfactory English translation was found.
178
party-determined authority, merely complements, in urgent cases, to an
arbitrator prior to his appointment for providing interim protection of
arbitrating parties' rights. In regard of resolving issues on an interim
basis the emergency arbitrator is, in one sense,
an arbitrator as he
resolves the request for an interim remedy in a judicial manner.54
2.2 Integration with Arbitration Rules
There are mainly two means of handling the relationship between
emergency relief procedure and arbitration rules. The emergency relief

procedure can have its own separate existence and can only apply
where there is a specific reference, either in arbitration clause or
through a special agreement, to them. In other words, if arbitrating
parties wish to make the procedure applicable they ought to opt for it.
This approach demonstrates optional character of certain rules and can
be referred to as "opt-in approach". Alternatively, the emergency
measure rules may have automatic application where the parties made
a reference to arbitration rules of a given institution. This is the
9C
automatic inclusion approach".
Save for the NAl Summary Arbitral Proceedings, the emergency arbitral
measure procedures do not become a part of an arbitration agreement

by a mere reference to the arbitration rules of the arbitration institutions
examined. There must be a specific agreement for the application of

those procedures. That agreement may be made before the dispute is
arisen or there can be a submission agreement. It should also be

indicated that, like an agreement to arbitrate, an agreement to submit
disputes to emergency provisional relief procedures is subject to the
of arbitration. 55 That is to say that the

mandatory rules of place
54 It should be noted that one of the drafters of the Pre-Arbitral Referee Procedure
refers the r6f6rd arbitral as "arbitrator". See also Chapter III, infra notes 164-167
and accompanying text.
*55 See, para. 3 of the preamble to the ECA Pre-Arbitral Referee Rules.
179
mandatory rules of applicable laws may restrict or prohibit grant of
emergency arbitral provisional measures. In this regard, the law of
place of arbitration, law applicable to arbitration, and law of place of
enforcement, if known, should generally be taken into account.
The NAI Summary Arbitral Proceedings constitutes a

part of the NAI
Arbitration Rules and by a mere reference they become a
part of an
arbitration agreement. Apparently, arbitrating parties could refrain from
employing the NAI Summary Arbitral Proceedings by express
agreement.
Making opt-in approach acceptable to arbitration community is perhaps

the most difficult hurdle to tackle in process of success of emergency
arbitral provisional relief procedures. It would be a lot easier to market

the emergency measure rules as part of the overall institutional
arbitration package. However, it is tenable that most arbitration

institutions do not want to fully commit themselves by adopting the
automatic inclusion approach to procedures that have not been tested.

The concern is simple no arbitration institution wants to risk losing the
confidence of arbitrating parties. Perhaps because of this reason, the

WIPO Draft Emergency Relief Rules rightly took a cor-npror-nise sclution
between the opt-in and the inclusion 56 The

automatic approaches .
standard recommended WIPO arbitration clause was envisaged to
include a specific reference to the Draft Emergency Relief Rules 57 If
.
this reference was not stroke out at drafting stage then the Draft
Emergency Relief Rules would become part of a contract. The use of
56 See WIPO Document WIPO/ARB/AC/111/96/3, para. 5.

57 In this regard, Article 46 of the WIPO Arbitration Rules was envisaged to be
for further achieving the incorporation of the Draft Emergency Relief
amended
Rules to the Arbitration Rules.
180
inclusive language was aimed at facilitating greater use of the Draft
Emergency Relief Rules. 58
2.3 Jurisdictional Relationship with Arbitral and Judicial

Proceedings
There are logically two variations to examine in respect of the

jurisdictional relationship between emergency arbitral relief procedures
and judicial or other arbitral proceedings- (i) the relationship to other

arbitral or judicial proceedings, and (ii) the relationship to arbitral
proceedings initiated under the rules of the same arbitration institution.
2.3.1 Relationship to Judicial or Other Arbitral Proceedings
The emergency measure procedures examined generally accept the
possibility of concurrent jurisdiction of emergency measure proceedings

with judicial and other arbitral proceedings . 59 The other arbitral
proceedings are the ones that are held under arbitration institutions
different to the arbitration institution, which administers relevant
emergency arbitral relief procedure.
2.3.1.1 Relationship with Judicial Proceedings
None of the complementary mechanisms does provide for exclusive

jurisdiction for emergency arbitral provisional relief. 60
The regulation of the relationship between the complementary
mechanisms and court proceedings varies. The approaches of the ICC
Pre-Arbitral Referee Procedure, the ECA Pre-Arbitral Referee Rules,
and the WIPO Draft Emergency Relief Rules seem to differ depending
58
Horning, 170.
59 See, in this respect, Hausmaninger, Pre-Arbitral Referee, 100.
60 The drafters of these mechanisms seem to find the access to courts for interim
too important to be set aside. In this
protection at the pre-constitution stage
Sigvard Jarvin, "Alternative Solutions to the Intervention of the
regard, see
181
upon the timing of a request for a provisional measure to a judicial
authority. If the request to a court is made prior to an application for an
emergency provisional measure to the relevant arbitration institution,
the court seizes the case. Under such circumstance, emergency
arbitral proceedings cannot commence as, an emergency arbitrator
does not have jurisdiction to deal with emergency relief 61
requests.
This approach seems to aim at giving freedom to a party
prior to its
decision to make its choice. Once a party exercises that freedom then
its liberty to make a request in accordance with the emergency arbitral
62
relief procedure ceases The logic is to avoid duplication of fora and
.
unwanted contr,:)diction between the decisions of arbitral and judicial
fora. This approach is criticised as the emergency arbitral provisional
relief proceedings can be circumvented by simply launching an

application for a provisional relief to a court. 63
The compromise position is that when a request to a court is made after

the commencement of emergency measure proceedings, an
emergency arbitrator can, in principle, retain his emergency powers and
64
render a decision This position is generally subject to a parties'
.
agreement to contrary and mandatory rules of the applicable law. 65
Article 42o of the NAI Summary Arbitral Proceedings and Article 0-7 of
the AAA Optional Rules for Emergency Measures of Protection provide
Engineer" ("Alternative Solutions") in: van den Berg (ed. ), Preventing Delay, 402-
403.
6, Article 1(1) of the ICC Pre-Arbitral Referee Procedure. It seems that this
interpretation is implicitly accepted in Article 12(3) of the ECA Pre-Arbitral Referee
Rules and Article 111(a)of the WIPO Draft Emergency Relief Rules.
62 It seems that this approach is adopted initially by the ICC Pre-Arbitral Referee
Procedure and followed by the other Rules.
63 Horning, 171.
64 See Article 2(4) of the ICC Pre-Arbitral Referee Procedure; Article 12(3) of the
ECA Pre-Arbitral Referee Rules; and Article 111(a)of the WIPO Draft Emergency
Relief Rules.
65 See Article 2(4) of the ICC Pre-Arbitral Referee Procedure, and Article 12(3) of the
ECA Pre-Arbitral Referee Rules.
182
that a request to a judicial authority is not incompatible
with agreement
to arbitrate nor is it a waiver of the right to arbitrate. The NAI Summary
Arbitral Proceedings and the AAA Optional Rules for Emergency
Measures of Protection do not deal with any
other aspect of their
relationship with judicial proceedings on provisional measures. This
approach is tenable as the relationship of emergency or summary
arbitral proceedings with judicial proceedings is a delicate issue. The
failure to regulate this issue enhances acceptability
of the rules in
question by judicial authorities though lessens their acceptability by
users of arbitration.
It seems necessary to deal with two further questions: First, what is the
effect of the emergency arbitral provisional relief procedure's existence
on the availability of judicial provisional measures? In such countries
as England, the court assistance to arbitral process in respect of
provisional measures is available under limited circumstances.
According to Section 44(5) of the EAA 1996, a court shall grant interim
relief "only if or to the extent that the arbitral tribunal and any arbitral or
other institution or person vested by the parties with power in that
regard, has no power or is unable for the time being to act effectively. "
This provision and a reference to a complementary mechanism should
be read as a change to courts' role at the pre-formation stage from
to complementary 66 To this the
subsidiary end, availability of
.
emergency arbitral relief procedure does not fully obstruct court
67
assistance to arbitration; it only further restricts such acce ss .
66 On these roles, see generally supra Chapter 11,Part 4.4.

67 However, it was thought that Section 44(5) may be considered as obstructive of
court assistance to arbitration. See, in this respect, Holtzmann, Remarks, 205-,
and Veeder, The View, 209-211. Even if that is the case, that Section is not one of
mandatory provisions of the EAA 1996 and parties may make agreements to
contrary. In fact, Rule 4(5) of the Discarded New LCIA Rule on Interim Measures
contains such agreement. See id., 211.
183
Second, what is the effect of the emergency procedures on jurisdiction
of courts where the existence of arbitration agreement results in

exclusion of courts' jurisdiction as to interim protection of rights?
Certain U. S. courts refrain from granting provisional measures since
they consider arbitration agreements preclude courts' assistance on
interim measures of protection. 68 Smit suggests that, except for
granting of the measures against third parties, the courts should "step
back" and should not grant any measure. 69 It is right that an
emergency arbitrator should benefit from the prejudice towards
confining all disputes within arbitration once parties agree to arbitrate.

However, such prejudice should not be so extensive to prevent courts'
from could only benefit. 70 In
constructive assistance which arbitration
any case, to the extent permitted, parties can regulate the role of courts
in such circumstances as such regulation is done by various emergency
71
relief rules .
2.3.1.2 Relationship with Other Arbitral Proceedings
It seems that only the WIPO Draft Emergency Relief Rules deal with
this issue. Pursuant to Article 111(a)of the Rules, a
where request to the
WIPO is made for an emergency provisional measure prior to initiating

the emergency arbitrator retains his powers "to
another arbitration,
and to modify it. " That is probably for ensuring that the
make an award
arbitrator remains in power until, at least, the arbitrator
emergency
decides on his jurisdiction.

69 Smith, 394.
'0 On the issue of court assistance to arbitration, see generally Chapter Part
11, 4.
71 See Chapter 111,supra note 64 and accompanying text.
184
2.3.2 Relationship with Arbitral Proceedings Initiated under
Arbitration Rules of the same Arbitration Institution
The relationship between an emergency arbitral provisional relief

procedure administered by an arbitration institution and arbitration to be
commenced under the same institution is generally dealt with under the
emergency arbitral relief rules themselves. There can be two distinct
circumstances. First, an application for an emergency measure may be
made prior to filing a request for arbitration or constitution of arbitral
tribunal. Indeed, this is the case, which the emergency relief rules are
generally designed for. An emergency arbitrator shall under such
circumstances have the power to ruie on the measure requested. 72

What does it happen where an arbitral tribunal is seized of the case
after the appointment of the emergency arbitrator? The solution offered

to this question differs. Under the WIPO Draft Emergency Relief
RuleS73 NAl Summary Arbitral Proceedings
and the '74 emergency
arbitrators' powers apparently cease upon the appointment of a

tribunal. This is obviously for avoiding duplication of fora. However, the
75
ICC Pre-Arbitral Referee Procedure and the ECA Pre-Arbitral Referee
RuleS76 provide that, unless the parties agreed otherwise, the
emergency arbitrator retains his emergency powers even after the
tribunal is formed. A related question is the effect of a decision of the
emergency arbitrator on the jurisdiction of an arbitral tribunal formed.
Under the ICC Pre-Arbitral Referee Procedure, the decision (which
takes the form of an order) of the emergency arbitrator "does not pre-
judge the substance of the case nor shall it bind any competent
jurisdiction which may hear any question, issue or dispute in respect of
72 See Article 1(1) of the ICC Pre-Arbitral Referee Procedure; Article 12(l) of the
0-1 the AAA Optional Rules for
ECA Pre-Arbitral Referee Rules; Article of
Article 42a (2) the NAI Summary Arbitral
Emergency Measures of Protection; of
WIPO Draft Emergency Relief Rules.
Proceedings; and Article 111(b)(i)of the
73 Article 111(b)(1).
74 Article 42a(2).
75 Article 2(4).
185
which the order has been 77
made.Y, In fact, the decision remains in
force until the emergency arbitrator or the arbitral tribunal modifies it.78
Under the ECA Pre-Arbitral Referee Rules, the arbitral tribunal is
empowered to review the decision of the emergency arbitrator.79
Second, where a request for arbitration is filed and an arbitral tribunal is

formed prior to making an application for an emergency measure, the
moving party should not be allowed to use emergency measure rules

from the date of formation of the tribunal. Under the WIPO Draft
Emergency Relief Rules, once a party made a request for arbitration
that party is deemed to waive his right to emergency provisional
measures. 80 The for this is obviously to the

reason related
complementary nature of the emergency measure rules. Once an
arbitral tribunal is seized of a case, it alone should have, in principle,
the competence to rule on provisional measures. The complementary
role is, in fact, recognised by all five sets of rules for emergency arbitral
measures. Under these rules, a request may only be made prior to the
appointment of an arbitral tribunal or seizure of the case by it. 81
2.4 Request for Measure and Answer
2.4.1 Request
In order to commence emergency arbitral relief proceedings, a request

for a provisional measure has to be made to the secretariat of the
76
Article 12(l).
77 Article 6(3) of the ICC Pre-Arbitral Referee Procedure.
78 Article 6(3). Under these Rules, an arbitral tribunal has, in principal, the same
powers as a pre-arbitral referee (Article 2). Apparently, these powers are
ICC Arbitration Rules (Article 23). It is
additional to those provided under the
interesting to note that the powers provided under the ICC Pre-Arbitral Referee
Procedure is far more detailed than the ones provided under Article 23.
79 Article 12(l).
80 See Article 111(b)(ii).
81 See Article 1(1) of the ICC Pre-Arbitral Referee Procedure; Article 12(2) of the
ECA Pre-Arbitral Referee Rules; Article 42a(2) of the NAI Summary Arbitral
186
relevant institution and, under some rules, directly to the
respondent.
The request for the measure under all the
of rules shall contain certain
elements. Perhaps the most detailed list is provided
under the WIPO
Draft Emergency Relief Rules. Article IV(c)
of these Rules provides
. JOC
82
that the request shall contain..
(i) the names, addresses and telephone, telefax
or other
communication references of the parties and of the
representative, if any of the Claimant,
(ii) a copy of the Arbitration Agreement and of the relevant facts
of any contract of which it forms part;
(ii1) a concise statement of relevant facts and a statement of the
rights to be preserved;
(iv) a statement of the interim relief sought,
(v) a concise statement of the harm expected to the Claimant if
the interim relief is not granted and an explanation of
why
such relief is required urgently-,
(vi) evidence justifying the grant of the interim relief sought,
including copies of documents and statementsý
(vi i) any observations that the Claimant may wish to make on
whether it wishes a hearing to be held, and, if so, the date,
time and place thereof.
The request may also include, where the parties have an option to
choose their emergency arbitrator, the name of the arbitrator upon

which the parties have reached agreement, or any other information in
respect of such arbitrator, including "technical or professional
83
qualifications, nationality and language requirements".
Proceedings; Article 0-5 of the AAA Optional Rules for Emergency Measures of
Protection; and Article 111(b)(i)-(ii)
of the WIPO Draft Emergency Relief Rules.
82 See also Article 3(2)(2)(a)-(f) of the ICC Pre-Arbitral Referee Procedure; Article 3
of the ECA Pre-Arbitral Referee Rules; Article 42c of the NAI Summary Arbitral
Proceedings; and Article 0-1 of the AAA Optional Rules for Emergency Measures
of Protection.
83 Article 3(2)(2)(e) and (d) of the ICC Pre-Arbitral Referee Procedure.
187
As the time is of essence in emergency measure applications, It is
advisable to accompany the request with confirmation that it has sent to
the respondent. 84
Further, for the same reason, the request may contain any such
relevant information as the name of attorney(s) who will represent the

85
claimant, and experts and witnesses, if any
.
The request must be made in the language agreed upon by the parties.
If there is no agreement, it is advisable that the request is made as
some of the rules provide for, in the same language as the agreement
86
referring to emergency measure rules . If that language is different to
the operating languages of the relevant institution, it is prudent to
include a translation of the request into one of the operating languages.
In all cases, the claimant should act in good faith and should disclose
all facts, circumstances or documents that are either known to it or

87
within its possession in respect of the request for a measure This is
.
by far the most important duty imposed upon the claimant in respect of
the request. The duty obviously resembles to a duty imposed on a
to obtain a temporary restraining order fruin a court in

person who wish
the U. S. 88 A breach of this duty may cause damages, which might be
remedied by compensation. The basis for compensation would be a
duty to co-operate or breach of the principle of good faith.

contractual
Pre-Arbitral Referee Procedure-, and Articles

84 See, e. g., Article 3(2)(2)(f) of the ICC
42d and 42e of the NAI Summary Arbitral Proceedings.
85 Article 3 of the ECA Pre-Arbitral Referee Rules.
86 ICC Pre-Arbitral Referee Procedure, and Articles 3 and
See Article 3(2)(2) of the
10 of the ECA Pre-Arbitral Referee Rules.
87 See Article IV(d) of the WIPO Draft Emergency Relief Rules.
88 Horning, 173.
188
2.4.2 Answer
In line with the urgent character of emergency provisional

measures,
response time to the request in emergency measure proceedings is
also shorter than that commonly required in arbitration proceedings.
The answer should be given within eight days under the ICC Pre-
Arbitral Referee Procedure 89 and 10 days under the ECA Pre-Arbitral
Referee Rules9o. The AAA Optional Rules for Emergency Measures of
Protection do not provide expressly for a specific time for response. It
seems that the answer will be provided within a period to be determined

by the emergency arbitrator. 91 Under the WIPO Draft Emergency Relief
Rules, the answer shall normally be given within 60 hours from the
respondent's receipt of the claim 92

.
The answer, as usual, replies in writing to the particulars of the
request. 93 Any evidence, e. g. documents or statements, the
respondent relies on shall accompany it. The answer shall also contain
any counterclaim, which is logically subject to the requirements of
making a clai M. 94
2.5 Appointment and Challenge of Emergency Arbitrator
It seems that all of the rules envisage for appointment of a single
emergency arbitrator. This is again self-explanatory and dictated by the
urgent nature of the emergency measure procedure.
89
Article 3(4).
90
Article 5.
9, Article 0-3 of the AAA Optional Rules for Emergency Measures of Protection.
92 Article V.
93 See Article 3(4) of the ICC Pre-Arbitral Referee Procedure; Article 5 of the ECA
Pre-Arbitral Referee Rules; and Article V(b)(i) of the WIPO Draft Emergency Relief
Rules.
94 See, e.g., Article 42i of the NAI Summary Arbitral Proceedings.
189
All but one of the rules further opts for party autonomy and envisages
for two-tier mechanism for the appointment of the tribunal. 95 The
parties may agree on the identity of the emergency arbitrator. In such

be appointed as the arbitrator. 96
case, the agreed person will
Otherwise, a default appointment procedure is available.
Under the ICC Pre-Arbitral Referee Procedure, where the parties have
not chosen or agreed on their pre-arbitral referee, the chairman of the

ICC International Court of Arbitration or, in his absence, one of vice-
chairmen as soon as possible appoints the referee. In the appointment

process, he ta',,..;s into consideration, inter alia, parties' submissions,
technical and professional requirements of the case, the referee's
97
nationality and residence.
Similarly, the ECA Pre-ArbitralReferee Rules provide that parties can

nominate their pre-arbitral referee who then will be appointed by the
executive committeeof the court. Otherwise,the executivecommittee
appointsa referee
after having verified his independence and impartiality and after
havingtaken into accountany criteria proposedby the partiesas a
requirement for appointment, his possession of the experience
required to deal [with] this matter, the possible proposals made by
the parties and his 98
time [ofl availability.
95 See Article 4(l) of the ICC Pre-Arbitral Referee Procedure; Article 7 of the ECA
Pre-Arbitral Referee Rules; Article 42f of the NAI Summary Arbitral Proceedings;
and Article VI I of the WIPO Draft Emergency Relief Rules.
96 After the confirmation of the prima facie existence of arbitration agreement, the
appointment is to be approved by the chairman (Article 4(l) of the ICC Pre-Arbitral
Referee Procedure) or the executive committee of the court (Article 7(2) of the
ECA Pre-Arbitral Referee Rules).
97 Article 4(2).
98 Article 7(3).
190
Under the NAI Summary Arbitral Proceedings, unless parties
specifically agreed otherwise, 99 the Administrator appoints an
emergency arbitrator. 100 According to these Rules, nationality of the
emergency arbitrator does not bar him from appointment. 101 The
Administrator confirms in writing the appointment of the emergency
arbitrator. 102
Article VII(b) of the WIPO Draft Emergency Relief Rules provides for
appointment of an emergency arbitrator from a standby panel

established where there is no agreement on the identity of the
referee. 103
Unlike the other institutional procedures in which the appointment by

institution is envisaged as a default procedure, the AAA Optional Rules
for Emergency Measures of Protection provide for appointment of the
emergency arbitrator only by the AAA. 104 This appointment is made

005
from a standby panel that could be referred to as "visiting firemen
.
The AAA's approach seems to avoid a party's "dragging its feet to give
itself sufficient time to render the relief requested moot or less
effective. 006
Whether expressly indicated in the applicable rules or not, the relevant

appointing body determines the most suitable candidate for the
appointment of an emergency arbitrator. By doing so, that body
probably considers the technical requirements of the case, skills and
99 An agreement on the appointment of an arbitral tribunal is not sufficient. The

parties specifically agree on the appointment of an emergency arbitrator. Article
42f(l).
100 Article 42f(l).
101 Article 42f(l).
102 Article 42f(2).
103
See also Article VI of the WIPO Draft Emergency Relief Rules.
104
Article 0-2.
105
Lloyd, 15.
191
experience of the arbitrator and, above all, other reasonable
requirements indicated by the parties.107 It is needless to say that, in
any case, the arbitrator should be asked if he accepts the office.108
The emergency arbitrator may be challenged and, if

necessary,
replaced by the appointing authority within a certaln period of time'09 in
cases where there are certain circumstances that prevent a person
from acting as an arbitrator. 110 The appointing authority has, in
cases
of challenge, sole discretion without disclosing reasons"' and its
decisionneeds to be final (without an appeal) in order for facilitating
speedy proceedings. 112
Except for the AAA Optional Rules for Emergency Measures of

13 14
Protection' and the NAI Summary Arbitral Proceedings' an
emergency arbitrator is prevented from acting as a member of arbitral
tribunal unless otherwise agreed by the parties or required by a
106
See Smit, 395.
107 See Article 4(2) of the ICC Pre-Arbitral Referee Procedure.
108 See, e.g., Article 42f(3) of the NAI Summary Arbitral Proceedings; and Article 15(2)
of the NAI Arbitration Rules.
109 For instance, seven days from the receipt of the notice of appointment under
Article 8 of the ECA Pre-Arbitral Referee Rules, whereas 24 hours from the receipt
under Article VIII of the WIPO Draft Emergency Relief Rules.
110 Those are probably events that affect independence and impartiality of arbitrators.
See Article 4(4) of the ICC Pre-Arbitral Referee Procedure; Article 8 of the ECA
Pre-Arbitral Referee Rules; Article 0-2 of the AAA Optional Rules for Emergency
Measures of Protection; and Article VIII of the WIPO Draft Emergency Relief
Rules. The replacement of an emergency arbitrator could be necessary, for
instance, where he dies or becomes unable to act. See, in this respect, Article 4(5)
of the ICC Pre-Arbitral Referee Procedure. The replacement could also be
necessary where the emergency arbitrator resigns from his duties.
See, e.g., Article 4(6) of the ICC Pre-Arbitral Referee Procedure. This is probably
for avoiding any further aggravation, which will preclude moving further in the
emergency measure proceedings.
112 See Article 6 of the ICC Pre-Arbitral Referee Procedure; and Article 8 of the ECA
Pre-Arbitral Referee Rules.
113
Article 0-5.
114 Article 421(3). An emergency arbitrator can act as arbitrator where a request for
such role comes from both parties.
192
' 15 The policy behind this prohibition is that the
court. proceedings
taken, the information obtained, and the decision rendered
under
emergency measure rules should remain confidential and hence should
not affect the decision concerning the substance of the case where
different fact finding and evidentiary procedures exist. ' 16 The
counter-
argument, which this author agrees with, perhaps is that the emergency
arbitrator has already gotten acquainted with the case and if he to
become an arbitrator it is likely that the case will resolve in a short
period of time. ' 17 Further, it is highly unlikely that an experienced

arbitrator let himself affected with emergency measure proceedings.
2.6 Proceedings
An emergency arbitrator is normally given broad powers in conducting

proceedings in order to facilitate smooth and rapid resolution of a
case. 118 This is because time is of the essence.119 The WIPO Draft
Emergency Relief Rules can be taken as a good example in order to
demonstrate how various rules deal with the conduct of emergency
provisional relief proceedings. Article X of the Rules provides- 120
a) The Emergency Arbitrator shall conduct the Procedure in such

manner as the Emergency Arbitrator considers appropriate.
b) In particular, the Emergency Arbitrator may
(i) proceed without a hearing and make an award where
the Emergency Arbitrator considers that each party
has had an opportunity to present its case, 121
115 See Article 2(3) of the ICC Pre-Arbitral Referee Procedure, Article 19 of the ECA
Pre-Arbitral Referee Rules; and Article IX of the WIPO Draft Emergency Relief
Rules.
116 See Jarvin, Alternative Solutions, 402; Smit, 392, L6cuyer-Thieffry, 14, and
Konstantin D. Magliveras, "The Arbitral Referee Procedure -A New Initiative of the
International Chamber of Commerce", 35 J Law Soc Scotland 322-325 (1990).
117
Smith, 392.
18 See Article 5(3) of the ICC Pre-Arbitral Referee Procedure; Article 9(2) of the ECA
Pre-Arbitral Referee Rules; Article 0-3 of the AAA Optional Rules for Emergency
Measures of Protection; and Article X(a) of the WIPO Draft Emergency Relief
Rules.
119 Derains, Refere Arbitral, 188.
120 See also, generally, Articles 42j and 42g of the NAI Summary Arbitral Proceedings.
121 This is the due process requirement observation of which is a basic requirement in
any kind of proceedings, arbitral or else. On this requirement, see Article 5(3) of
1931
convene, on the shortest possible notice, the parties
for the purpose of a hearing,
whether in person, by
telephone or by teleconference, at time, date
a and
place fixed by the Emergency Arbitrator;122[and]
hear one party, and proceed to make
an award in the
absence of the other party, if the Emergency Arbitrator
is satisfied that the other party has been
given notice
of time, date and place of the hearing that was
adequate, in view of the emergency nature of the
Procedure, to enable that other party to be
present;
modify, in the event that a hearing is conducted and
an award is made in the absence of a party, the time
limit for the delivery or transmission of the Answer to
the Request by that party, or convene a further hearinq
for the purpose of receiving further submissions.12!
(Citations added.)
These broad powers are restricted mainly by the requirement of giving
each party a fair opportunity to present its case. 124
Under the ICC Pre-Arbitral Referee Procedure, parties undertake, by
acceding to the Rules, to assist in implementing the referee's term of

reference particularly, "to make available to him [the referee] all
documents which he may consider necessary and also to grant free
access to any place for the purpose of any investigation or inquiry. ,125
The theory of competence/competence126is a universally accepted

principle of arbitration law adopted by all modern arbitration law and
rules. Indeed, the ICC Pre-Arbitral Referee Procedure 127 and the ECA
the ICC Pre-Arbitral Referee Procedure; Article 9(2) of the ECA Pre-Arbitral
Referee Rules; and Article 0-3 of the AAA Optional Rules for Emergency
Measures of Protection.
122 See also Article 5(5) of the ICC Pre-Arbitral Referee Procedure; and Article 0-3 of
the AAA Optional Rules for Emergency Measures of Protection.
123 See also Articles 5(l), 5(3), and 5(6) of the ICC Pre-Arbitral Referee Procedure,
and Article 9(4) of the ECA Pre-Arbitral Referee Rules.
124 See, in this respect, Lloyd, 15.
125 Article 5(4).
126 See, e. g., Gaillard / Savage (ed. ), para. 650.
127 Article 5(2).
194
Pre-Arbitral Referee Rules' 28 expressly provide that the referee deals
with challenges to its own jurisdiction. In addition, by agreeing to

emergency arbitral relief procedure, parties undertake the duty to assist
the emergency arbitrator in successfully resolving the dispute in
question. This duty and the principle of competence/competence
should be applicable to emergency relief procedures even if they are

not expressly referred to. 129 The speedy nature of emergency
provisional measure proceedings also justifies that suggestion.
2.7 Requirements to Grant Emergency Measures
It seems that the determination of requirements for the grant of

emergency measures generally remains within an emergency
arbitrator's discretion. 130 This is tenable. It is very difficult to pinpoint
exactly what the requirements are for granting provisional measures.

The requirements may usually change depending upon the
circumstances of each case, nationality of the parties and the nature of

the dispute. Similar discretion is afforded to arbitrators. 13
1 They
generally tend to use this discretion quite successfully. There seems to

be no reason to believe that emergency arbitrators will be less
successful in using the discretion entrusted upon them.
The examination of various rules demonstrates that grant of an
emergency measure requires and first urgencyforemost

or
132 After all a request is being made to obtain a measure
emergency.
128
Article 9(1).
129 For an express stipulation, see Article 42h of the NAI Summary Arbitral
Proceedings.
130 See Articles 14 and, particularly, 15 of the ECA Pre-Arbitral Referee Rules; and
Article XI (a) of the WIPO Draft Emergency Relief Rules.
132 See Article 2(1)(a) of the ICC Pre-Arbitral Referee Procedure; Articles 14 and,
15 of the ECA Pre-Arbitral Referee Rules; Article 0-1 of the AAA
particularly,
Optional Rules for Emergency Measures of Protection; Article 42k of the NAI
Summary Arbitral Proceedings; and Article XI (a) of the WIPO Draft Emergency
Relief Rules.
195
grant of which cannot await the appointment of an arbitral tribunal. A
further requirement is the existence of "immediate damage
or
IOSS,, 133 134
irreparable or "irreparable loss or damage" that will be
caused where the request for emergency measure is not granted.
Under certain rules, the emergency arbitrator, solely within his

discretion, determines the conditions that may restrict or prevent the
135 136
grant of emergency measures. The arbitrator may.
require, having regard to any agreement between the

parties, that a party commence arbitration proceedings
on the merits of the dispute within a designated period of
time; 137or
require that a party in whose favor an award is made
138
provide adequate security. (Citations added.)
It is interesting to note that, under the NAI Summary Arbitral

Proceedings, where "the case is not sufficiently urgent or is too
complicated to be decided by a provisional decision" an emergency
arbitrator may deny the request for a provisional measure. 139
133 Article 2(1)(a) of the ICC Pre-Arbitral Referee Procedure.

134 Article 0-4 of the AAA Optional Rules for Emergency Measures of Protection. The
irreparable loss means a loss that cannot be adequately compensated with money.
See, in this respect, Lloyd, 13; and infra Chapter IV, Part 3.1.4.
135 Article 6(4) of the ICC Pre-Arbitral Referee Procedure; Article 15 of the ECA Pre-
Arbitral Referee Rules; and Article XI(c) of the WIPO Draft Emergency Relief
Rules.
136 Article Xl(c) of the WIPO Draft Emergency Relief Rules. See also Article 6(4) of
the ICC Pre-Arbitral Referee Procedure.
137 See, in this respect, Principle 12 of the ILA Principles.
138 See Article 6(4) of the ICC Pre-Arbitral Referee Procedure; Article 421 (2) of the
NAI Summary Arbitral Proceedings; and Rule 0-6 of the AAA Optional Rules for
Emergency Measures of Protection.
139 Article 42k of the NAI Summary Arbitral Proceedings. The sole arbitrator applying
the NAI Summary Arbitral Proceedings in a dispute arising from termination of a
joint venture agreement issued an interim payment as an interim measure by
applying the standards set forth under the Dutch law. The tribunal based its
decision on the express choice of parties as regards substantive law in their
agreement and Article 46 of the NAI Arbitration Rules. The standards applied by
the arbitrator were urgency and balancing of the interests in this case. See Award
in Summary Arbitral Proceedings in Case No. 2212 (28 July 1999), extracts
published in XXVI YCA 198,204 (2001).
196
Where the relevant set of rules contain no explicit or insufficient legal
procedures or standards that would Justify the grant of a provisional
measure or the establishment of those standards or procedures are left
to an arbitral tribunal without indicating any further guidance, the
tribunal has two options. Although, each case should be / is treated
differently, the tribunal can either take the guidance of standards
and
procedures applied by fellow arbitral tribunals in various other
international cases or can apply the standards or procedures set forth
under the applicable law. In any case, in making its decision, the
tribunal should take into consideration particularities of dispute in
question and nationality of disputing parties.
Neither of the above approaches is wrong but both of them lead to
certain problems. The first approach necessitates the existence of
arbitral case law or other authoritative materials to rely on. The case
law are difficult to obtain but is emerging 140 The main trouble with the
.
second approach is the difficulty to determine applicable law. Is it the
law applicable to substance or the one applicable to procedure, or is it
the law of the place of arbitration ? 141 In addition, the role of the law of
place of enforcement, if known, is to be considered.
2.8 Form of Emergency Arbitrator's Decision
The decision of an emergency arbitrator in inter partes proceedings can

take two forms, an award or an order. 142 Under two of the Rules, the
140
See infra Chapter IV, Part 3.
141
See Holtzmann, Remarks, 205.
142 In this regard, it is noteworthy that there is usually an extendable time limit within
which an emergency arbitrator renders a decision. This limit reflects parties' will
and design to put pressure on the emergency arbitrator to render his decision
within that period. An emergency arbitrator gives his decision as soon as possible.
For instance, under the WIPO Draft Emergency Relief Rules, an emergency
arbitrator is required to make its decision "within 24 hours of the termination of any
hearing. " Article X11. In addition, Article 6(2) of the ICC Pre-Arbitral Referee
Procedure provides that the emergency arbitrator renders his decision within 30
days from the transmittal of file to him. This time limit is extendable either upon the
197
ICC Pre-Arbitral Referee Procedure and the ECA Pre-Arbitral Referee
Rules, a pre-arbitral referee may only take its decision in form
a of an
143
order. Under Article 0-4 of the AAA Optional Rules for Emergency
Measures of Protection, however, an emergency arbitrator has
a power
144
to grant an interim award Similarly, Article XI of the WIPO Draft
.
Emergency Relief Rules empowers the emergency arbitrator to
grant its
decision in a form of an award, though it does not indicate the type
of
the award. Under the last two Rules, it is not expressed whether the
decision could also normally be given in a form of an order. It is safe to
assume that, if it is requested, the emergency arbitrator who i's
equipped with ý,ie power to grant an award can also grant an order, a
less stringent form of a decision than an award.
Article 421(l) of the NAI Summary Arbitral Proceedings expressly states

that a decision of an emergency arbitrator is an award and the
provisions applicable to award in the NAI Arbitration Rules are also

applicable to this decision.
emergency arbitrator's request or the chairman's (of the ICC International Court of
Arbitration) initiative. See also Article 13 of the ECA Pre-Arbitral Referee Rules,
Article 421(l) of the NAI Summary Arbitral Proceedings; and Article 49(2)(e) of the
NAI Arbitration Rules. The decision is in most cases required to contain reasons.
Article 6(1) of the ICC Pre-Arbitral Referee Procedure; Article 14 of the ECA Pre-
Arbitral Referee Rules; and Article 0-4 of the AAA Optional Rules for Emergency
Measures of Protection. The reasons may enhance acceptability of the decision
and provide for guidance in avoiding a similar situation in the future. Lloyd, 17. It
is interesting to note here that Article 11 of the ECA Pre-Arbitral Referee Rules
deals with seat of arbitration (in Article 14) and provides that the decision is to be
rendered at the seat of the proceedings. It is not clear, however, that whether or
not Article 11 infers power for emergency arbitrator to render an award. In this
respect, it should be noted that the AAA Optional Rules for Emergency Measures
of Protection does not contain a provision on the seat of arbitration although a
decision rendered under these rules is an award. This uncertainty may be
overcome by simply making the AAA International Arbitration Rules also applicable
where there is a reference to the Optional Rules for Emergency Measures of
Protection to the extent possible and desirable.
143 Articles 6 and 14, respectively.
144 It is noteworthy that an interim award is enforceable in the U. S. See infra Chapter
V, Part 3.2.2.
198
The legal nature of a decision of the emergency
arbitrator is important
as it determines whether or not the decision is enforceable as an award
under the New York Convention. 145 Apparently, if an emergency
arbitrator is not considered as an arbitrator under a national IaW146then
his decision cannot be considered as award.
2.9 Modification or Revocation of Decision
Where the circumstances under which a decision is given by an

emergency arbitrator are changed, it is logical that the changed
circumstances should be re-evaluated and, if necessary, the decision
should be modified or revoked. As a result, any application for
modification or revocation of a decision of an emergency arbitrator

should be based on changed circumstances and can be made until the
end of the emergency arbitrator's term, generally until the constitution
of an arbitral tribunal. 147
2.10 Types of Emergency Measures
The powers of an emergency arbitrator are generally specified in the
relevant rules. To a large extent, the emergency arbitrator is

empowered with wide discretion / authority subject to generally parties'
agreement to contrary. 148 That is to say the parties are generally
empowered to widen
or restrict the powers provided for under
149 This approach is, in fact, supported by
emergency measure rules.
the paramount principle of party autonomy. The WIPO Draft
Emergency Relief Rules provide that, an emergency arbitrator is
empowered to grant any measure he "considers urgently necessary to
145 On this issue, see Chapter 111,infra Part 2.13.

146 See Chapter III, infra notes 164-167 and accompanying text.
147 See Article 0-5 of the AAA Optional Rules for Emergency Measures of Protection.
Having said that one should note that there will be no objection to revision or
revocation of an order. However, revision or revocation of an award may pose
difficulty. On which see infra Chapter IV, Part 6.
148 Apparently, the powers are also subject to mandatory rules of applicable laws.
199
preserve the rights of the parties. 050 However, in each case, it is
wise
to examine the applicable rules with great care
as to whether or not the
application falls within the ambit of the relevant rules. In accordance
with the ICC Pre-Arbitral Referee Procedure an emergency arbitrator is
empowered 151
"[t]o order any conservatory measures

or any measures
of restoration that are urgently necessary either to
prevent immediate damage or irreparable loss and so to
safeguard any of the rights or property of one of the
parties, 052
"[florder a party to make any other party or to another
person any payment which ought to be made;"
"[t]o order a party to take any step which ought to be
taken according to the contract between the parties,
including the signing or delivery of any document or the
procuring by a party of the signature or delivery of a
document"
"[flo order any measures necessary to preserve or
establish evidence."
An emergency arbitrator, unless otherwise agreed, does not generally

have power to grant any measure other than the one requested due
149 See, e. g., Article 2(l)(1) of the ICC Pre-Arbitral Referee Procedureý and Article 42j
of the NAI Summary Arbitral Proceedings. See also Lloyd, 14.
150 Article Xl(a).
151
Article 2(1). See also Article 14 of the ECA Pre-Arbitral Referee Rules; and Article
XI of the WIPO Draft Emergency Relief Rules. The subsection (b) of Article XI
contains a detailed exemplary / non-exhaustive list of powers according to which
an emergency arbitrator may
(i) issue an interim injunction or restraining order prohibiting the commission or
continued commission of an act or course of conduct by a party; (ii) order the
performance of a legal obligation by a party; (iii) order the payment of an amount
by one party to the other party or to another person; (iv) order any measure
necessary to establish or preserve evidence or to ascertain the performance of
legal by a party; (v) order any measure necessary for the
a obligation
of any property; (vi) fix an amount of damages to be paid by a party
conservation
for breach of the award under such conditions as the Emergency Arbitrator
considers appropriate.
152 The language of this sub-paragraph covers conservatory measures aim at
preserving a party's rights. This language seems to be inclusive of any provisional
measure. But see Smit, 397.
200
probably to party autonomy. 153 He might, however, "suggest that the
original order sought was inappropriate and by agreement make an
, 154
order other than the one sought.
2.11 Effect of Decision
It is clear that a decision of an emergency arbitrator does not aim at
pre-judging the substance of the case. 155 The decision is provisional. It

is logical to assume that the decision stands until either an arbitral
tribunal or a competent judicial body confirms, modifies, or terminates
it.
2.12 Appeal
Permission to appeal or any other recourse against a decision of an
emergency arbitrator does not suit the urgent nature of the emergency
measure proceedings. 156 To this end, under the ICC Pre-Arbitral
Referee Procedure, a "right to all means of appeal or recourse or
opposition to" a judicial authority or any other authority against decision

the is "insofar can validly be made. "' 57
of referee waived as such waiver
2.13 Compliance with Decision and Consequences of Non-
compliance
Under the ICC Pre-Arbitral Referee Procedure and the ECA Pre-Arbitral
Referee Rules, parties expressly undertake to carry out without delay a

decision of an emergency arbitrator. 158 Thus, the decision has by
153 See Article 2(2) of the ICC Pre-Arbitral Referee Procedure, and Article 14 of the
ECA Pre-Arbitral Referee Rules. The other rules are silent on this issue. For the
contrary view, see Smit, 397.
Lloyd, 15.
155 Procedure; Article 16 of the ECA Pre-
Article 6(4) of the ICC Pre-Arbitral Referee
Arbitral Referee Rules- and Article 42m of the NAI Summary Arbitral Proceedings.
156 Apparently, rnodificatiýn of a decision under certain circumstances is an exception
issue, Chapter III, supra Part 2.10.
to that rule. On the modification see
157 Article 6(6). Hausmaninger indicates that several legal systems accept such
it is the decision is rendered. Hausmaninger, Pre-
waiver valid where made after
Arbitral Referee, 104.
158 Article 6(6) and Article 21, respectively.
201
contract a binding effect. 159 This effect, as well as the fact that
an
arbitration institution "lends its standing" to any emergency measure
granted may enhance voluntary compliance. 160 In order to enhance the
compliance, an order may be, where available, "backed by a sanction
of liquidated damages in the event of its breach 161A failure to carry
.,,
out the decision may further be remedied. In case of failure, an
emergency arbitrator, an arbitral tribunal or the competent court can,
where permitted, compensate any damage caused by that failure. 162 In
regard of the issue of damages, it should also be noted that where the
decision of an emergency arbitrator is proved to be wrong or otherwise
caused damages, arbitral tribunal or the competent court might hold the
applicant liable for such damage. 163
In addition to contractual mechanisms for liability, where possible, the
parties can obtain assistance from a judicial authority for enforcement

of the emergency arbitral decision.164 In this respect, there are a few
issues to consider. The question as to whether or not the emergency
arbitrator is considered an arbitrator has a crucial importance. This is
because only then the decision may be categorised as an order and
may be enforced. This author believes that the emergency arbitrator,
159 Lloyd, 16- and Gurry, 3 (indicating that "only the most audacious, if not reckless,
lawyer wýuld counsel a client not to abide by the order, even if it has merely a
contractual status
160 See, in this Hausmaninger, Pre-Arbitral Referee, 103-104.
respect,
161 Id.; and Smit, 399. The availability of liquidated damages, fines, or penalties is
subject to applicable law. See infra Chapter IV, Part 7.2.
162 See Article 6(8)(1) of the ICC Pre-Arbitral Referee Procedure. The emergency
for for failure to comply with his
arbitrator himself can also provide penalties
decision. See Article Xl(b)(vi) of the WIPO Draft Emergency Relief Rules.
163 See Article 6(8)(2) of the ICC Pre-Arbitral Referee Procedure.
164 See Article 21 of the ECA Pre-Arbitral Referee Rules. As we noted above,
Derains, one of the drafters of the ICC Pre-Arbitral Referee Procedure, refers to
the "W&6" arbitral as an "arbitrator. " Derains in: Sanders (ed. ), New Trends, 186-
87. But see Societe Nationale des Petroles du Congo v. Republique du Congo,
Arret of 29 April 2003 (Cour D'Appel de Paris) (holding that a pre-arbitral referee is
Jarvin, Procedural Decisions, 369. It should further be noted
not an arbitrator); and
that, at the end, it is the competent law that would qualify a referee as an arbitrator.
202
whether it is referred to as referee or else is an arbitrator.165 The
emergency arbitrator who is a -neutral person determines, in judicial
a
manner, the issues before him in a binding decision,
which by
agreement may be an order or an award. This approach is
also in
conformity with the principle of party autonomy.
Further, the similarities between the concept

of arbitral provisional
measures and that of emergency arbitral provisional measures are
expected to cause the acceptance of the latter by legal systems "to the
same extent that arbitral relief is recognized today as an alternative to
provisional court relief. ,166 Indeed, if an emergency arbitrator is
accepted as an arbitrator by a given legal system, his decision could be
enforceable like a decision of an arbitrator.167
Also, decisions of an emergency arbitrator, like one of an arbitrator, 168
may arguably be enforceable under the New York Convention. Gurry

rightly states that
"[w]hile it is not a question that is free from doubt, the better view
seems to be that an award given by an emergency arbitrator in
such a [emergency relief] procedure be enforceable under the
New York Convention if the award is considered to be enforceable
in the jurisdiction in it is 069
award which granted .
Hausmaninger, Pre-Arbitral Referee, 104. It is also for the competent law to

qualify the decision as order or an award.
165 In this respect, see, generally, Chapter 111,supra Part 2.1. But see Societe
Nationale des Petroles du Congo v. Republique du Congo, Arret of 29 April 2003
(Cour D'Appel de Paris).
167 For the enforcement of an arbitral decision, see infra Chapter V, Part 3.1. To
support this it
view, should be noted that Article 1051(3) of the Netherlands' CCP
provides that in
an award rendered summary arbitral proceedings is enforceable in
accordance with the provisions of the Code applicable to enforcement of arbitral
awards.
168 For the enforcement of an arbitral award under the New York Convention, see infra
Chapter V, Part 3.2.
169 Gurry, 4. However, Jarvin states, in regard of the ICC Pre-Arbitral Referee
Procedure, (which is generally applicable to other emergency measure rules) that
the arbitral referee's "order is not an 'award' in all legal systems, because it iis not
final, and the New York Convention only applies to final awards. " Jarvin,
Alternative Solutions, 403.
203
The law of such jurisdiction may require that a decision is to be final
and binding to be considered as an award. The decision is binding so
long as parties agreed in advance to accept it as binding.170 Is the
decision final? It can be argued that the decision is final in respect of
the issues it deals with 171 The enforcement regime of the decision
.
could, in any case, be improved on both national and international
level.172 Apparently, the latter provides for a harmonised and more
effective means than the former.
However, there is a great danger that a given legal system would not
accept an emergency arbitrator as an "arbitrator" and, as a result, the

decision rendered in accordance with emergency relief procedure
would be neither an award nor an order. Accordingly, that legal system

might not lend its assistance for enforcement of that decision.
However, this non-enforceability should not be exaggerated. This is
because (i) "[t]he parties have agreed to the arbitral referee procedure'
it may be supposed that they thereby have confidence in it", and (ii)
"[t]he very existence of such a procedure is likely to instil discipline in
both parties. " 173
170
Derains, Refere Arbitral, 189.
171 See, in this respect, infra Chapter V, Part 3.2. Derains argues that a decision of an
"the to take interim
arbitral referee is final in the context of appropriateness
basis facie appraisal of a factual
measures at a certain moment on the of a prima
situation. " Derains, Refere Arbitral, 189.
172 Indeed, the UNCITRAL should take enforcement of emergency arbitrators'
decisions into its calendar in considering the enforcement of arbitral provisional
issue, infra Chapter V, Part 3.3.
measures. On this see
173 Lloyd, 18. Further, he rightly indicates:
Contrary to the view of some lawyers, businessmen do not go out of their way to
disputes. If disputes occur resulting in arbitration, experience shows that
seek by
honoured without the need for enforcement state
awards are generally
courts.
Id., 19.
204
2.14 Confidentiality
Some of the rules indicate in express terms that the

emergency arbitral
measure proceedings are confidential. 174 The ICC Pre-ArbItral Referee
Procedure, for instance, requires confidentiality of "any
submissions,
communications or documents (other than the order [a decision of an
emergency arbitrator]) established or made solely for the purposes" of
emergency arbitral measure proceedings. 175
The confidentiality is subject to parties' agreement to contrary or a

decision of an arbitral tribunal or a judicial authority that later seizes of
the case. The aim of confidentiality is to protect the integrity of
emergency measure proceedings and to avoid pre-judgment of the

substance of a case.
2.15 Liability
Emergency arbitrators and arbitration institutions, which administer

emergency arbitral relief procedure should be excluded from liability to
the extent possible under relevant law. 176 The policy behind this
approach is twofold. First, it aims at making sure that the emergency
arbitrator conducts its duty and renders a decision without the fear of
Second, the relevant institution's administration of
being held liable.
emergency measure procedure should not be hindered due to fears of

being held liable. The emergency arbitrator should, unless otherwise
agreed by the parties and accepted by the arbitrator, logically be
subject to liability regime applicable to arbitrators. Any private
174 See Article 6(7) of the ICC Pre-Arbitral Referee Procedure-,Article 5(4) of the ICC
Pre-Arbitral Referee Procedure* and Article 17 of the ECA Pre-Arbitral Referee
Rules. Where there is no suýh stipulation, the confidentiality is subject to the
to under the relevant law. On the issue of
principles applicable arbitration
confidentiality, see supra Chapter Part
11, 1.1.
175
Article 6(7).
176 Smit, 400. On the issue of liability, see Hausmaninger, Pre-Arbitral Referee, 105-
108. See also supra Chapter 11,Part 4.1.
""05
agreement on the liability is also subject to mandatory requirements of
the competent law.
It was argued that, due to its rapid and complex character, emergency
arbitral relief procedure might result in "a greater number of wrongful
decisions than other proceedings.077 Such result may also occur
where an emergency arbitrator does not have necessary
qualifications. 178 Consequently, emergency arbitrator and/or arbitral
institution may be subject to liability claims.179 The issue of liability is
ultimately determined in accordance with the applicable law. Any fear
that the emergency arbitrator or the relevant institution may be held
responsible because of the emergency measures granted is simply
unfounded. Any measure that proved to be wrong would be modified or
revoked. Further, any damage that may occur due to a wrongful
decision can be remedied from a security, posted by the moving party,
that is, in most cases, a pre-condition for grant of emergency measure.
Even in cases where no security was required, the emergency arbitrator
or an arbitral tribunal formed later is generally capable of remedying
any damage suffered due to the issuance of the emergency arbitral
measure. In any case, experience shows that parties are hesitant to
institutions for the above reasons. 180
sue arbitrators or arbitration
It seems that out of all emergency relief rules only the ICC Pre-Arbitral
Referee Procedure, the NAI Summary Arbitral Proceedings, and the

WIPO Draft Emergency Relief Rules contain express provisions in
respect of emergency arbitrator's liability. In accordance with Article
6(8) of the ICC Pre-Arbitral Referee Procedure, both the ICC and the

178 Id. However, it is logical to assume that the relevant arbitral institution examines
thoroughly the qualifications of a candidate prior to his appointment.
179 Id.; UN Doc A/CN. 9/263, para. 31; and UN Doc A/CN. 9/SR. 316, para. 39.
1,30See, e.g., Hausmaninger, Pre-Arbitral Referee, 105-108. See also supra Chapter
11,Part 4.1.
206
pre-arbitral referee is, in principle, exempt from liability. The
referee
may be held liable, in accordance with that Article, "for the
consequences of conscious and deliberate wrongdoing."
Under Article 66 of the NAI Arbitration Rules,

which contains the NAI
Summary Arbitral Proceedings, no liability
could be asserted on any of
the Institution, the Administrator or an arbitrator for
any act or omission
so long as the arbitration is governed by the Rules.
In accordance with Article 77 of the WIPO Arbitration Rules,

except for
deliberate wrongdoing neither an emergency arbitrator
nor the WIPO
would be liable for any act or omission in respect of emergency arbitral
proceedings. 181
2.16 Costs of Emergency Measure Proceedings
The costs associated with emergency measure proceedings are

generally apportioned between parties. 182 What are the costs
associated with the proceedings? The costs generally comprise of
administrative charges of the relevant institution, fees and expenses of
the emergency arbitrator, 183and costs of any expert, if appointed. 184 In
accordance with the NAI Summary Arbitral Proceedings, generally the

losing party bears the costs and they may contain the ones mentioned
181 Article 77 to the WIPO Arbitration Rules envisaged to be applicable to the Draft
Emergency Relief Rules, see Article 1 of the WIPO Draft Emergency Relief Rules.
182 See Article 7(1) of the ICC Pre-Arbitral Referee Procedure; and Article 0-8 of the
AAA Optional Rules for Emergency Measures of Protection. Under Article 18 of
the ECA Pre-Arbitral Referee Rules, the executive committee deals with the costs.
183 The fees and expenses of the arbitrator generally fixed by the relevant institution
by taking into account mainly the time spent and complexity of the case, and
urgency of the matter. See Appendix A. 2 to the ICC Pre-Arbitral Referee
Procedure; Article 18 of the ECA Pre-Arbitral Referee Rules, and Article XVI of the
WIPO Draft Emergency Relief Rules.
184 Article 7(1) of the ICC Pre-Arbitral Referee Procedure. See also Articles XV and
XVI of the WIPO Draft Emergency Relief Rules.
207
above as well as expenses incurred in respect of legal
185
representation.
2.17 Ex Parte Requests for Emergency Measures
Almost all of the emergency measure procedures

anticipate for inter
partes proceedings for the grant of an emergency measure. 186 The
WIPO Draft Emergency Relief Rules, however,
contain a provision
dealing with ex parte requests in Article X111.This Article
provides that
where notice to the respondent involves a "real risk" that the purpose of
emergency relief proceedings would be defeated, a claimant may
transmit its request only to the WIPO Dispute Resolution Centre but not
to a respondent.
The emergency arbitrator appointed by the WIPO, in accordance with

Article VII of the Rules, considers those requests. The emergency
arbitrator may decide to hear only the claimant in the absence of the
respondent where there is a real risk that the emergency relief
proceedings would be defeated. The test of real risk may be defined as
itevidence of bad faith on the part of the other party, or an indication
that notice would entail the risk that vital evidence might be destroyed
or other irreparable damage [is] done. "' 87
The emergency arbitrator shall conduct the proceedings in accordance
with the WIPO Draft Emergency Relief Rules and renders an order,
is binding the parties. 188 The form of the
which contractually upon
185 Article 42n of the NAI Summary Arbitral Proceedingsý and Articles 57-61 of the NAI
Arbitration Rules. See also Award in Summary Arbitral Proceedings in Case No.
2212 (28 July 1999), extracts published in XXVI YCA 198,207-208 (2001) (ruling
that the losing party should bear the costs incurred in the arbitral proceedings. ).
186 However, under these proceedings, a party who was given proper notice to attend
the proceedings fails to attend them, the proceedings can continue and a decision
in its See, e. g., Article 10(b)(iii) of the WIPO Draft
can be reached absence.
Emergency Relief Rules.
187 Gurry, 3.
188
Article X111(c)-(d).
"08
decision is intentionally chosen as "order" rather than "award"
as it was
rightly thought that an award rendered ex parte is not enforceable
under Article V(1)(b) of the New York Convention.189 The failure to
comply with an ex parte order is a breach of contract, and damages
arising from such breach can be claimed in arbitration proceedings to
be taken place later.
Article X111(c)also provides a safeguard in order to give an opportunity

to the respondent to be heard. That Article states that the order "shall
be made subject to the condition that the order, and such further
documentation as the Emergency Arbitrator considers appropriate, be
served on the Respondent in the manner and within the time ordered
by the Emergency Arbitrator
The ex parte measure procedure is obviously derived from the concept
of temporary restraining measures. The difficulty with this concept is

that it is known in some legal systems but unfamiliar to many.
Consequently, the application of that procedure may be considered a
violation of public policy in some countries. 190
3 Complementary Mechanisms: Can They be Useful / Effective

Anyway?
The objective of the complementary mechanisms is to lessen the need
of courts' involvement in arbitration. These mechanisms can potentially
reach this aim and thus can certainly be effective. However, the
drafters of the mechanisms accept courts' constructive assistance that
may be necessary in certain circumstances, e. g. for avoiding dissipation
Thus save for the Procedural Rules 1994 of the Court of

of assets.
189 WIPO Document ARB/AC/111/96/3,para. 10. Article V(1)(b) provides that where a
party is not given proper notice of appointment of arbitrators or proceedings or
the award rendered may be denied.
unable to present its case, enforcement of
190 Holtzmann, Remarks, 204.
'109
Arbitration for Sport, 191none of the mechanisms
provide for exclusive
jurisdiction concerning interim protection to either the head
or organ of
the arbitration institution or the emergency arbitrator at the pre-
formation stage of arbitration.
The degree of effectiveness of emergency provisional measures is

likely to depend on
192
* "the particular circumstances of a given case"?
the reception of emergency measure procedures by a given legal
193
system and
,
194
o usage by businessmen.
The discussion on usefulness of the complementary mechanisms is
generally channelled to the emergency arbitral provisional measure

procedures. Indeed, the reintroduction of the complementary
mechanisms by the ICC in 1990 was welcomed with both cheer and
195 96
suspicion . It was, for instance, considered as an "innovative"'
91
mousetrap" that obviates, to a certain extent, the need of court
involvement in regard of interim protection of rights. 197 However, the

ICC Pre-Arbitral Referee Rules were referred to in only five cases
following their inception. 198 Perhaps partly because of its initial failure
'91
See Chapter 111, supra Part 1.
192
Paulsson, Better Mousetrap, 216.
193 Hausmaninger, Pre-Arbitral Referee, 105. On this aspect, see Chapter III, supra
Part 2.13.
194
On this see, Chapter 111, supra Part 3.
195 E.g., Lord Mustill, "Comment" in: ICC(ed.), Conservatory Measures, 118,121
(stating that he would "be a little surprised if it [the pre-arbitral referee procedure]
to
can react as quickly an emergency as a court operating at its best. ").
196 See "The ICC Pre-Arbitral Referee Procedure: An Innovation in Dispute
Resolution", 1(1) ICC Int'l Ct Arb Bull 18 (1990).
197 See Paulsson, Better Mousetrap, 214.
198 See [CC Doc No. 420/473, para. 13. In this regard, it is noteworthy that for a long
period of time, there was only one dispute that referred to the ICC Pre-Arbitral
Referee Procedure. See Eric A. Schwartz, "Comment" in- ICC (ed.), The New
1998 ICC Rules of Arbitration, ICC Publication No. 512 (ICC Publishing, - Paris
210
to attract arbitrating parties' attention, it is indicated that the emergency
measure procedures contain "too many basic uncertainties."' 99 It is
argued that the procedures must be "swift," the requirements to grant

emergency measures need to be "predictable" and sanctions for non-
compliance with the emergency measure must be "available". 200 It is
further stated in explaining why those procedures are not widely
accepted:
The [arbitral] institutions knew that it is vital to fulfilling their public
responsibilities and to maintaining their credibility that they not
lead parties into a procedure unless the institution has a sound
basis for confidence that doing so will not result in legal
uncertainties and be a breeding ground for expensive litigation.
Further there was the danger that a party might use the
institutional procedure only to find, perhaps after it was too late,
it
that should have gone immediately to a national court. 201
However, on the contrary, it is thought that the availability of emergency
arbitral measure procedure "from arbitration institutions offers the best
way forward for arbitration."202 This author agrees with this proposition.
This is because the availability of such procedure "would work in the
interests of the promotion and development of arbitration as an
effective and comprehensive means of dispute resolution for

international commercial disputes.403
It seems that several arbitration institutions find it useful to make the

emergency arbitral provisional measure procedures available. These
procedures, as explained above, generally provide for a swift resolution

of a dispute at the pre-formation stage and give certain discretion to
1997), 70,72. In this regard, see also Schwartz in: ICC (ed.) Conservatory
Measures, 64.
"'9 Holtzmann, Remarks, 206.
200 Id., 204. In this regard, Jarvin questions the usefulness of the ICC Pre-Arbitral
Referee Procedure since the order of a pre-arbitral referee is, according to his
view, not enforceable. Jarvin, Alternative Solutions, 403.
20' Holtzmann, Remarks, 206.
202 Gurry, 4.
203
Id.
211
emergency arbitrators to handle the emergency measure requests."'
Certain sanctions are also available for those parties that do not abide
with a decision of an emergency arbitrator. 205 In this regard, it is
noteworthy that the mere existence of such a dispute resolution
procedure at the vital stage of arbitration (prior to the appointment of
arbitrators) where concurrent jurisdiction approach is open for abuse
may have deterrent effect on a bad-faithed party. 206 What can make
the emergency arbitral provisional measure procedures more effective
and hence more acceptable to arbitration community is perhaps their
enforcement at the both national and cross-border level.
The availability of these complementary mechanisms and the test of

their effectiveness bring into mind the question of their usage. The
evidence demonstrates that there is a growing body of usage. Two
references were made under the ICC Pre-Arbitral Referee Rules in

2001.207 The AAA Optional Rules for Emergency Measures of
Protection were used once, through submission, and several arbitrating
parties referred to these rules in both domestic and international
208 The NAI received 11 requests in 1999,20 requests in 2000,
cases.
and 10 requests within the first eleven
months of 2001 for interim
the Summary Arbitral Proceedings 209 There
protection of rights under .
were eight submissions to the Court of Arbitration for Sport for interim
December 2000 210

measures until .
204
See Chapter 111, supra Part 2.6.
205
See Chapter 111, supra Part 2.13.
206
See Lloyd, 18-19.
207
See 13(l) ICC Int'l Ct Arb Bull 14 (2002).
208 As of 12 March 2001. The e-mail of Luis Fernandez, Vice President, AAA
International Center for Dispute Resolution, to this author.
209 As of 14 December 2000. The letter of F. D. von Hombracht-Brinkman, Managing
Director, Netherlands Arbitration Institute, to this author. See also NAI Award in
Summary Arbitral Proceedings in Case No. 2212 (28 July 1999), extracts
published in XXVI YCA 198 (2001).
210 As of 11 December 2000. There were 59 cases registered with the Court as of
that date according to the letter of Matthieu Reeb, Acting Secretary General, Court
of Arbitration for Sport, to this author.
21
-2
After all the complementary mechanisms are available and in use.
Indeed, they are in the process of becoming trendy.
4 Alternative Solutions to Complementary Mechanisms
Holtzmann proposes two alternative methods to complementary

mechanisms in filling up the lacunae where these mechanisms are
unavailable . 21
1 The first method is an obvious one: appointment of
arbitral tribunal as soon as possible. This is possible in fast-track

arbitration but parties may find, by agreement, other means for speedy
appointment of their tribunal.
The other method is taking certain self-help measures for eliminating

the necessity for complementary mechanisms. The example given by
212
Holtzmann is on preservation of evidence..
[I]f a party fears that the other side might destroy evidence, the
party that has such fears could, simultaneously with commencing
arbitration write a letter to the other side warning it against
destroying particular evidence and warning that if such evidence
becomes unavailable the arbitral tribunal would be asked to draw
adverse inferences from its absence. That could be as effective
as seeking an emergency interim measure - and far quicker.
The above solutions are very creative and can be helpful in certain
circumstances. However, these solutions could not always be as
effective as the complementary mechanisms.
Conclusion
An arbitral tribunal, a party-determined authority is the natural judge for
providing any relief even if the relief is sought on an interim basis.
However, at the pre-formation stage, no relief can be obtained from the
21' Holtzmann, Discussion, 215.

212 Id. He continues by adding- "[t]hat is only one example; with little imagination,
counsel could develop numerous other types of self-help measures along the
same lines. " Id.
1
-3)
tribunal as it is yet to be formed. That stage, however, constitutes a
very important phase of arbitration and the fate of a dispute is generally
213
determined at such stage
.
In the absence of the availability of provisional measures from a party-

determined authority, courts are the only option for such measures. At
the pre-arbitral stage, in fact, at all stages of arbitration, judicial support
for obtaining provisional measures is, for certain circumstances,
unavoidable and helpful for interim protection of arbitrating parties'
rights. Indeed, complementary mechanisms do not generally provide
214
for or envisage to be exclusive means for the interim protection
.
However, there are several objections to referring a party who choose
to arbitrate to a court for provisional measures:
A request to a court at the pre-formation stage is against parties'
choice of forum for resolution of their dispute and neutrality of
that forum.
0 It is an open invitation for abuse of court assistance.
* Complementary mechanisms keep arbitration confidential.
* The request to a court may, in some cases, be considered as a
waiver of the right to arbitrate.

Finally, assistance of judicial authorities may not always be
(effectively) available thus complementary mechanisms may be
the parties' only option at the pre-formation stage for provisional
measures.
By taking into account the above objections, the complementary
mechanisms are proposed for remedying the lack of availability of

from a party determined authority. The
complementary mechanisms envisage the grant of emergency
213 See Chapter 111,

supra notes 6-9 and accompanying text.
214 See Chapter 111,
supra note 40 and supra Part 2.3.1.1.
214
provisional measures by a neutral / party-determined authority (an
arbitrator, emergency arbitrator, pre-arbitral referee) at the pre-
formation stage. The principle of party autonomy too supports the
basis of the complementary mechanisms. The availability of these
mechanisms has potentially deterrent effect on unnecessary requests
for provisional measures to courts and thus may avoid forum shopping.
The need for complementary mechanisms was recognised as early as

1915.215 Nowadays, parties, in practice, can create a mechanism
under which emergency provisional measures are available at the pre-

216
formation stage Arbitration institutions are also attempted to cure
.
the lack of availability of arbitral provisional measures from a neutral
party-appointed authority at that stage. For this purpose,

complementary mechanisms to arbitration are introduced for preserving
rights on an interim basis. At the outset, it should be noted that these
mechanisms empower a neutral party-determined authority to grant
provisional measures generally until the arbitral tribunal becomes
operative. Further, these mechanisms do not create exclusive means
of recourse. judicial involvement is not fully obviated. These
mechanisms are twofold. First, arbitration rules of some arbitration

institutions empower a person generally the head/president or an organ
217 The
of the institution to grant certain provisional measures . measure
taken by the relevant person / organ is morally binding upon the
arbitrating parties. Failure of such measure could, however, be taken
into account in calculation of damages or costs by the arbitral tribunal to
be formed. This mechanism is resurrection of the mechanism created

in the 1915.

216 See Chapter 111,supra notes 24-27 and accompanying text.
217 See Chapter III, supra Part 1.
I 15
Second, some other institutions, namely the ICC, the ECA, the NAI,
and the AAA propose certain emergency arbitral provisional measure
21
8
procedures under various nameS. All of the above procedures aim at
providing an effective mechanism for obtaining emergency arbitral
relief. In order to reach that aim, an emergency arbitrator, under those
procedures, is empowered, until the formation of arbitral tribunal to
grant certain provisional measures. The. emergency arbitrator should
be considered as an arbitrator as it judicially resolves an issue on an
219
interim baSiS.
In shaping the above procedures, their drafters took into account three
main principles.220 The first principle is the observance of the need to
create a mechanism under which interim protection is provided for in a
speedy manner. This need is, indeed, the reason for the creation of the
emergency arbitral measure procedures. However, these procedures
also observe the principles of party autonomy and of due process.
The emergencyarbitral provisionalmeasure procedures are swift and

effective. These procedures generally give wide discretion to the
emergency arbitrator to deal with requests for emergency measure. A
decision of the emergencyarbitrator has certain weight and there are
some remediesavailableagainstrecalcitrantparties:221
An emergency arbitral measure has, by contract, binding
222
effe Ct.
* Such measurehas also the backingof the relevantarbitration

institution.

219 See Chapter I11,supra Part 2.1.
220 Id., Part 2.
221
See Chapter III, supra Part 2.13.
222
Id.
216
e Damages may be ordered in case of failure to comply with
the measure.
The measure may, depending upon the applicable law
(where an emergency arbitrator is considered as
arbitrator),
potentially be enforceable at the place where it is issued or
elsewhere under the New York Convention. However, the
possible clarity as to enforcement under national laws and
the New York Convention would enhance the effectiveness of
those measures.
The emergency measure procedures assist facilitating effectiveness of

arbitration in providing an effective means for interim protection of rights
at the pre-formation stage. Indeed, there is a growing recognition and
223
use of the emergency measure procedures. The existence and
availability of these procedures 'offer best way forward for arbitration. '
For these procedures' further promotion and use, they should be made
known to potential users. This author is of the opinion that, within the
next decade or so, the complementary mechanisms' acceptance and

usage will be dramatically increased. This is because of the
importance of interim protection of rights at the pre-formation stage.
223
Id.
-117
CHAPTERIV
ARBITRAL PROVISIONAL MEASURES
Faced with a request for a provisional measure, an arbitral tribunal

initially establishes whether it has the necessary power to grant such
measure. Once the tribunal establishes its power, it then determines
the standards of procedure and principles for the grant of such
measure. The determination of these standards and principles is vital
as it facilitates consistency and predictability of arbitration process,
regardless of where arbitration takes place. ' Thus, such determination
makes arbitration process more efficient.
Arbitration rules and laws are generally silent concerning the standards
and principles for the grant or an arbitral provisional measure.
However, it should be noted, at the outset, that arbitrators are given
broad powers and wide discretion in establishing such standards and
principles.2 In such establishment, it should be kept in mind that the
Naimark I Keer, 23.

Broad powers are generally given to arbitrators to supplement the applicable
procedural rules at their discretion in order to avoid procedural particularities of
national laws and local court procedure. See, e.g., Article 16 of the AAA-ICDR
Arbitration Rules; Article 15(l) of the ICC Arbitration Rules; Article 14 of the LCIA
Arbitration Rules; Article 20 of the Arbitration Rules 1999 of the Arbitration Institute
of the SCC; Article 38 of the WIPO Arbitration Rules; Article 15(l) of the
UNCITRAL Arbitration Rules; Article 25(2) of the Egyptian Law 1994; Sections
33(l) and 34 of the EAA 1996; Article 1494 of the French CCP; Article 19(2) of the
Model Law; Article 1036 of the Netherlands AA-, Article 16 of the Portuguese
Arbitration Law; Article 816 of the Italian CCP; Article 182 of the SPIL. The
arbitrators' discretion to supplement the applicable procedural rules was initially
provided under the Article 11 of the ICC Arbitration Rules 1975. This Article was
described as a "revolutionary innovation." Eisemann, 398. This innovation was
designed "to separate the arbitration, to the extent possible, from local procedural
law." Derains / Schwartz, 209. In this regard, see, e.g., Dominique Hascher, 'The
Law Governing Procedure: Express or Implied Choice by the Parties - Contractual
Practice," ("Law Governing Procedure") in: van den Berg (ed.), Planning Efficient
Arbitration, 322. On the powers of arbitrators, see also supra Chapter 11,Part 1.2.
It is noteworthy that UNCITRAL is currently undertaking a study on, inter alia,
218
standards and principles should be flexible for tailor-making the
appropriate measure in accordance with circumstances of each
3
individual case In addition, the provisional nature of such measure
.
and "the specific needs of international arbitral practiceA should, inter
alia, be taken into account.
In determining the standards of procedure and principles, arbitrators

occasionally make reference to or inspire from various national laws,
e. g. law of the place of arbitration or applicable substantive law, law of

the place of enforcement. Nonetheless, where a national arbitration
law is applicable as a default procedure or through a party agreement
and such law makes reference to national procedural rules for the grant
of provisional measures, these rules will apply to arbitral process. A
reference to national procedural law is, however, hardly ever done in

5
practice .
In their establishment of the standards and principles, arbitration rules

6
or arbitral case law may provide guidance to arbitrators .
arbitral provisional measures indicating applicable standards and principles. See

A/C N. 9/WG. IIPWP. 12 3.
3 Berger, International Economic Arbitration, 338. See also, e. g., Redfern / Hunter,
para. 1-129 (indicating that "adaptability" is a principal advantage of arbitration).
To this end, it is noteworthy that an arbitral tribunal has a duty to "adopt procedures
suitable to the circumstances of the particular case" under Article 33(l) of the EAA
1996.
4 Berger, International Economic Arbitration, 335.
5 See, e. g., Craig / Park / Paulsson, ICC Arbitration 2000,299-300; and Marc
Blessing, "The ICC Arbitral Procedure under the 1998 ICC Rules - What has
Changed? ", 8(2) ICC Int'l Ct Arb Bull 16,23 (1997) (stating that "the freeing of the
international arbitral procedure from local procedural rules is one of the most
significant milestones and achievements of international arbitration, and much of
the worldwide success of arbitration and its recognition as the most reliable
method for settling disputes ......).
In this regard, it should be noted that arbitrators would take into account and, if
required, apply, the mandatory principles of the law of the place of arbitration
if known, the law of place of enforcement. See, e. g., Bbsch, 7 (arguing that
and/or,
the arbitrator should take the law of the place of enforcement into account for
by issuing interim measures. ). Otherwise,
serving the petitioner well enforceable
the arbitrator's decision would be set aside at the place of arbitration or refused to
be enforced elsewhere.
219
Consequently, comparative appraisal
of arbitration rules and in-debt
analysis of arbitral case law are useful for providing
guidelines to
arbitrators for such determination. For the purpose
of comparative
analysis, seventy-two sets of arbitration ruleS7 are examined At the
.8
outset, it should be indicated that some of the forty-four
sets of
arbitration rules containing a provision on provisional measures deal
with certain aspects of the standards of procedure and principles.
Arbitral case law may provide guidance to

arbitrators or "may be
persuasive"9 of how an arbitral tribunal handles a request for an interim
measure. 10 Apparently, one should accept that "there is little
precedent
in international commercial arbitration" and that each arbitral case is
and should be considered individually. " Nevertheless, arbitral practice
has been witnessing emergence of transnational
procedural rules
regarding arbitral provisional measures.12 Such practice and rules
7
See Annex. For text of the rules, see, generally, Eric Bergsten (ed.), International
Commercial Arbitration (Kluwer); and Jan Paulsson (gen. ed.), International
Handbook.
8
The rules are chosen by taking into consideration the geographical location of the
institutions, the size of their caseload and the type of disputes administered e.g.,
9
maritime, and intellectual property.
Julian D.M. Lew, "Commentary on Interim Measures in ICC Arbitration Cases",
11(1) ICC Int'l Ct Arb Bull 23 ("Commentary").
10
Yesilirmak, Interim Measures, 36.
11
Lew, Commentary, 23. On the issue of precedential effect of arbitral decisions"
see, e.g., Julian D.M. Lew, "The Case for the Publication of Arbitration Awards" in:
Jan C. Schultsz / Albert J. van den Berg (eds.), The Art of Arbitration (Deventer
Kluwer 1982), 223-232; Horacio A. Grigera Na6n, "Editorial", 5(2) J Int'l Arb 5
(1988); Berger, International International Economic Arbitration, 509-525; R. A.
Schutze, "The Precedential Effect of Arbitration Decisions", 11(3) J Int'l Arb 69
(1994); and Craig / Park / Paulsson, ICC Arbitration 2000,64 1, and Lew / Mistelis
Kroll, paras. 2-31,2-43,1-44, and 2-46.
12
See, e. g., Craig / Park / Paulsson, ICC Arbitration 2000,639-641; and Vratislav
Pechota, "The Future of the Law Governing the International Arbitral Process.
Unification and Beyond", 3 Am Rev Int'l Arb 17-29 (1992). Such transnational
procedural rules undoubtedly affected from procedural principles common to many
nations, and such works as the ILA Principles (see 67 ILA Rep 185 (1996))l- and
the Draft European Model Law on Civil Procedure (see, e.g., Hakan Pekcanitez /
Bilgehan Ye§ilova, "Avrupa Medeni Usul Kanunu Tasarisi ve Degerlendiriimesi"
(European Draft Model Law on Civil Procedure and Its Examination) in- Dokuz
EylOl University (ed.), Prof Dr. Mahmut T. Birsel'e Armagan (Izmir 2001), 335. But
see, e. g., Christoph W. 0. Stoecker, "The Lex Mercatoria- To What Extent Does it
220
owes much to the freedom given to arbitrators in regard of
granting
provisional measures, in particular, and of establishing rules
of
procedure in general. 13 In this regard, it is noteworthy that
although
most arbitral tribunals were very "cautious" about granting interim
measures until the beginning of the 1990S,14the trend is in the process
ofchange. 15 To this end, it should further be noted that the difficulty to
shed a light to the practice is extreme. That difficulty is generally

16
related to confidentiality in arbitration However, there are a few
.
Exist? ", 7(1) J Int'l Arb 101-126 (1990) (arguing that there is no room in
arbitration
for lex mercatoria arbitralis. ).
13 See, Chapter IV, supra note 2. Further, this Chapter IV examines from the
beginning to the end, the arbitrators' freedom in regard of issuing provisional
measures.
14 Indeed, for instance, Broches
stated, during the preparation of the ICSID
Convention, that "experience indicated that arbitral tribunals were extremely loath
to order provisional or interim measures and one should have some confidence in
the self-restraint which tribunals would impose upon themselves. " History, 516.
See also Sanders, Procedures, 453-454 (indicating that in the mid 1970s, "[t]he
question of interim measures only occasionally present[ed] itself in an arbitration. ").
Even in the 1980s, an arbitral tribunal stated that it "has anguished over the
wisdom of granting interim relief See Southern Seas Navigation Ltd v.
......
Petroleos Mexicanos of Mexico City, 606 F. Supp. 692,693 (S. D. N. Y. 1985). The
approach taken today towards that issue described by an arbitral tribunal- "[t]he
imposition of provisional measures is an extraordinary measure which should not
be granted lightly by the Arbitral Tribunal. " Maffezini v. The Kingdom of Spain,
Procedural Order No. 2 (28 October 1999), extracts reprinted in XXVII YCA 13,18
(2002).
The success rate of interim measure requests is reported to be fifty percent
(twenty five out of fifty cases). See Naimark / Keer, 25. See also, in this regard,
M. I. M. Aboul-Enein, "Issuing Interim Relief Measures in International Arbitration in
the Arab States", 3(1) J World Inv 77,81 (2002) (indicating that forty percent of the
requests concerning provisional measures are accepted under the practice of the
Cairo Regional Centre for International Commercial Arbitration. ). This is due
mainly to arbitrators' recognition of the importance of interim protection of
arbitrating parties' rights. See Introduction, notes 57-76 and accompanying text.
But see Lew / Mistelis / Krbll, para. 23-4 (stating that "[i]nterim measures are
granted only in limited circumstances as they can be determinative of the dispute
and may be hard or even impossible to repair. "); and Born, International Arbitration,
933. The last author indicates that arbitrators' hesitance for granting provisional
measures is based on the fact that their power arose from a private agreement,
that there are many uncertainties surrounding arbitral provisional measures and
that such measures are not self-executing. Id. In addition, according to Born,
arbitrators may be concerned that, by issuing the provisional measure requested,
they would pre-judge the merits of the case in dispute or would appear impartial.
Id. Further, the grant of arbitral provisional measures is, according to him, "time-
consuming and distracting. " Id. But see supra Chapter 11,Part 1.1.
16 On the issue of confidentiality and its effect concerning publication of arbitral
decisions, see supra Chapter 11,Part 1-1-
-) -) I
exceptions. The practice of the Iran-US Claims Tribunal, 17 which
operates under the UNCITRAL Arbitration Rules 18and of a number of
ICSID tribunals are easily accessible. 19 Likewise, some ICC and AAA
17 The Tribunal has established

under serious of extraordinary events that took place
in the Islamic Republic of Iran ("Iran") and their reflection in the U.S. A crisis
occurred as a result of various reasons between Iran and the U.S. in 1979, and this
crisis led to seizure of the U.S. Embassy in Iran as a result of which a number of
Americans were held hostage, and to freeze of Iranian assets worth over 8 billion
dollars in the U.S. See, e.g., Aldrich, 2-6; Aida Avanessian, Iran-United States
Claims Tribunal in Action (London I Dordrecht I Boston: Graham & Trotman I
Martinus Nijhoff 1993), 1-5; and, generally, W. Christopher / H. H. Saunders I G.
Sick, R. Carswell I R. H. Davis I J. E. Hoffman, Jr. / R. B. Owen, American
Hostages in Iran - The Conduct of a Crisis (London I New Haven. Yale University
Press 1985) Iran and the U.S. eventually found a peaceful solution by agreement
called the Algiers Accords. The Accords contain a number of declarations
(Declaration of the Government of the Democratic and Popular Republic of Algeria,
19 January 1981 (the "General Declaration"), and the Declaration of the
Government of the Democratic and Popular Republic of Algeria Concerning the
Settlement of Claims by the Government of the United States of America and the
Government of the Islamic Republic of Iran, 19 January 1981 (the "Claims
Settlement Declaration"), collectively reprinted in 1 Iran-US CTR 1-12),
undertakings (Undertakings of the Government of the United States of America
and the Government of the Islamic Republic of Iran with respect to the Declaration
of the Government of the Democratic and Popular Republic of Algeria, 19 January
1981, reprinted in 1 Iran-US CTR 13-15), and some technical documents (e.g.,
Escrow Agreement, 20 January 1981, and the other technical documents
collectively reprinted in 1 Iran-US CTR 16-54). The Accords provide for the
release of Iranian assets frozen in the U.S. and the transfer of those assets to an
escrow account held by the Central Bank of Algeria. Upon realisation of the
transfer, as envisaged by the Accords, the hostages were released. The Accords
also provide for the settlement of claims between a government and a national of
the other State in a "binding arbitration." See General Principle B of the General
Declaration. See also, generally, Articles I and 11of the Claims Settlement
Declaration. For this purpose, the Iran-US Claims Tribunal was established. The
Tribunal composes of three chambers and nine arbitrators. See Article 111(l)of the
Claims Settlement Declaration. "All decisions and the awards of the Tribunal shall
be final and binding. " Article IV(1) of the Claims Settlement Declaration.
The Rules have employed with slight modifications by the Iran-United States
Claims Tribunal. See Article 111(2) of the Claims Settlement Declaration. The
modified version of the Rules does not contain any material change concerning
Article 26 of the UNCITRAL Arbitration Rules. See Final Tribunal Rules of
Procedure (3 May 1983), reprinted in 2 Iran-US CTR 405-442, and Provisionally
Adopted Tribunal Rules (10 March 1982), reprinted in 1 Iran-US CTR 57-94.
19 Surely, the Iran-US Claims Tribunal's practice is the most important source of
information on the interpretation of the UNCITRAL Arbitration Rules. There is an
on the Tribunal's practice. See, e. g., Charles N.
abundant amount of publications
Brower I Jason D. Brueschke, The Iran-U. S. Claims Tribunal (The Hague I Boston
/ London: Martinus Nijhoff 1998)' George H. Aldrich, The Jurisprudence of the Iran-
United States Claims Tribunal (6xford: Clarendon Press 1996), and J. J. van Hof,
Commentary on the UNCITRAL Arbitration Rules The Application by the Iran -
-
U.S. Claims Tribunal, (Deventer / Boston: Kluwer 1991). ("Interim Measures").
Indeed, the case law of the Tribunal has already "lead to a better understanding
7-)-,
cases concerning provisional measures are also accessible because
either their extracts are published or certain articles / notes touched
/ 20
upon examined them. Similarly, a small number of arbitral decisions
issued in accordance with various other arbitration
rules have been
published. Apart from the above publications, this author has had the
benefit of researching through some of the decisions
of arbitral tribunals
on provisional measures at the AAA and the ICC. The outcome of that
research will also be dealt with below.
The research at the AAA extends to a period between late 1997

and
early 2000 but excludes then pending files The research was done
.
21
through 613 files in English of the AAA- lCDR. Out of the files
examined, there were twenty-two cases where requests for provisional
and growing confidence in the smooth functioning of the Rules Berger,

International Economic Arbitration, 64. See also, e.g., Charles H. Brower, "The
Iran-United States Claims Tribunal", 224 RCADI 123,170-174 (1990-V), and
Caron, Interim Measures, 468. The Tribunal "consistently filled the gaps in its
procedural rules by reference to customary international arbitration practice and
not, for example, by reference to Dutch law [as it is the law of the place of
arbitration]. " See Caron, Interim Measures, 472. See also, e.g., E-Systems, Inc. v.
Iran, Bank Melli Iran, Case No. 388, Interim Award No. ITM 13-388-FT (4 February
1983), reprinted in 2 Iran-US CTR 51-57. The Tribunal's practice, due partly to
many references to the customary rules, provides for guidance in regard of uniform
interpretation of arbitration rules on interim protection. For ICSID tribunals'
practice regarding provisional measures see, e.g., Parra, The Practices in. ICC
(ed.), Provisional Measures, 37. Some decisions of ICSID tribunals are available
in the ICSID' s web page at <www.wb-icsid.org> and some others are published in
ICSID Reports.
0 For decisions of ICC tribunals on provisional measures, see, e.g., Schwartz,
Provisional Measures, 45-69; and Yesilirmak, Interim Measures, 36. Further,
various issues of the Clunet, YCA, and Swiss Arbitration Association Bulletin
contain a quite number of decisions on the same issue of ICC tribunals and of
some other tribunals. For decisions of AAA tribunals see, e.g., Michael F.
Hoellering, "The Practices and Experience of the American Arbitration
Association", in- ICC (ed.), 1998 ICC Rules, 31-36. Aboul-Enein indicates in
regard of the practice of the Cairo Regional Centre for International Commercial
Arbitration that the Centre administered 50 cases in 2000. In the same year, ten
requests were made for provisional measures. Six of those denied meanwhile four
were granted. Aboul-Enein, 81.
21 The Center deals mainly with, where there is an international element, cases held
under the AAA-ICDR Arbitration Rules, the AAA Commercial Dispute Resolution
Procedures, and the Arbitration Rules of the Inter-American Arbitration
Commission. The Center administers disputes regarding variety of areas of law
222
33
measures were made. 22 In twelve of those cases, arbitral tribunals
reached no decision because either the case was withdrawn or came to
an end for another reason. In six cases, the requests were granted In
the form of an order or a partial award. In the remaining four cases, the
requests were denied.
The researches at the ICC cover two periods. The first period is
between the mid-eighties and 1998. Nearly 75 awards dealing with
provisional measures were found. 23 The second period covers a year
commencing from January 1999. The research on the second period
was done through awards in English and thirty awards were found
24
concerning interim measures As compared to the previous research,
.
there is a clear increase in the requests for provisional measures in ICC
arbitration.
This Chapter examines the standards of procedure and principles for

the grant of provisional measures. It deals with (i) initiation of arbitral
and administers cases under several other arbitration rules. In this regard, see
<www. adr. org>.
22 The
cases examined were dealing with such issues as sales, employment, joint
marketing, service, manufacturing, distribution, development agent, consulting,
capital contribution, mining and exploitation, franchising, option, driver, purchase,
operating, resale of software, construction, software distribution, non-disclosure,
and representation agreements. The parties to those cases were from such
countries as Canada, Chile, Colombia, Dominican Republic, England, France,
Germany, India, Singapore, Spain, Sudan, Sweden, and the U.S. Undoubtedly,
the number of provisional measure requests made before AAA arbitral tribunals is
a lot more than the number found by this author as the files of the cases then
pending could not be examined.
23 Twenty-three of those awards published in the Spring 2000 issue of the ICC Int'l Ct
Arb Bull.
24 The cases examined were dealing with such agreements as agency, construction,
delivery, distribution, joint venture, mining, print and supply, power purchase,
procurement and co-operation, purchase, sale of goods and service, intellectual
property licence, share purchase, software, and supply and service. The parties to
those cases were, inter alia, Argentina, Austria, Bangladesh, Bermuda, Brazil, the
British Virgin Islands, China, Egypt, England, France, Germany, Hungary, Iran,
Italy, Japan, Lithuania, Netherlands, Norway, Romania, Saudi Arabia, Slovakia,
Sweden, Switzerland, Turkey, Turkmenistan, and the U. S. In this regard, see also
Lew, Commentary, 23, note 3. It should be indicated that these are the decisions
224
proceedings for a provisional measure, (ii) priority of the proceedings,
(iii) requirements for the grant of the measure, (iv) its form, (v)
Its
duration, (vi) its reconsideration, modification or
revocation, (vii) types
of provisional measures, (viii) ex parte provisional measures, (ix) costs
in regard of those measures, and (x) the issue of damages.
1 Initiation of Proceedings for Arbitral Provisional Measures
There are mainly two issues to tackle with- who initiates the
proceedings and what should the request contain?
1.1 Who Initiates the Proceedings: A Party or the Tribunal
A proceeding for an arbitral provisional measure is generally initiated

through a party request. Indeed, "[a] situation in which interim
measures would be required but where no party makes a request is
,,25
difficult to conceive In conformity with this, the view that the request
.
should be party-oriented is confirmed by twenty-seven sets of the rules
26
surveyed . However, arbitral tribunals are, occasionally, empowered,
under some rules, to grant a provisional measure without a party

27
requeSt. Many national laws too require a party request for interim
28
protection of rights .
that the author was able to found and that there may be more decisions dealing
with provisional measures than the cases found by this author.
25 Caron, Interim Measures, 481. Indeed, a party request was essential under the
ICC Arbitration Rules 1931. See supra Chapter 1, Part 1.1.3. But see for a case
where the tribunal is granted sua sponte, without a request from any party,
Hoellering, The Practices, 33-34.
26 Annex.
27 Rule 7(9) of the Arbitration Rules 2000 of the Chartered Institute of Arbitrators;
Rule 39 of the Arbitration Rules of the ICSID; Article 47 of the Arbitration Rules of
the ICSID Additional Facility; Article 1134 of the North American Free Trade Area
Agreement ("NAFTA"); Rule 25 of the Arbitration Rules 1997 of the SIAC. See
also Article 41 of the Statute of the International Court of Justice, 15 Documents of
the United Nations Conference on International Organization 355 (San Fransisco,
1945) ("ICJ Statute"); and Article 66 (4) of the Rules of the International Court of
Justice, Acts and Documents concerning the Organization of the Court, No. 2,3
(1972) and No. 3,93 (1977) ("ICJ Rules").
28 See, e. g., Article 17 of the Model Law; and Article 183(l) of the SPIL.
Giving arbitrating parties an initiative to
seek a provisional measure, if
they need it, is a matter of party autonomy. 29 In
contrast, the main
purpose of empowering an arbitral tribunal to grant a measure upon its
own initiative in international commercial arbitration is for perhaps to
avoid aggravation of a dispute and; thus, enabling the tribunal to
proceed with arbitration smooth ly. 30
Some of the rules surveyed do not deal with the issue

of who makes
the request at all. Nonetheless, it should be safe to assume that it
Is, in
principle, a party who should apply for a measure since the principle of
party autonomy is one of the paramount principles of international
commercial arbitration. It should, in this regard, be noted that if both
parties make a joint request for the same measure, then there is a
strong incentive for a tribunal to comply with the request.
1.2 What Should a Request Contain?
A party request for a provisional measure should contain certain
elements. Rule 39(l) of the ICSID Arbitration Rules, for instance,

describes these elements and may, in this author's view, be used as
guidance where the applicable arbitration rules are silent. In

accordance with that Rule, the request should "specify the rights to be
preserved, the measures the recommendation of which is requested
29 See, e. g., Berger, International Economic Arbitration, 335.

30 It should be noted that none of the ICSID tribunals seem to have practised, in light
of the published decisions, the power to recommend a provisional measure upon
its own initiative. In Holiday Inns v. Morocco (see Lalive, 133), MINE v. Guinea
(see 4 ICSID Rep 41), Amco Asia Corporation, Pan American Development
Limited and P.T. Amco Indonesia v. Republic of Indonesia (see 1 ICSID Rep 410),
and Vacuum Salt v. Ghana (see 4 ICSID Rep 423), Maffezini v. The Kingdom of
Spain (see Procedural Order No. 2 (28 October 1999), extracts published in XXVII
YCA 17 (2002)) the requests for provisional measures were made by one of the
parties whereas in Atlantic Triton v. Guinea (see Friedland, Provisional Measures,
344) both parties had requested certain provisional measures. To this end, it is
noteworthy that, in Vacuum Salt v. Ghana, the tribunal reserved to act upon its own
initiative to make a recommendation, should the need arise. See Decision 3 of the
Tribunal, 14 June 1993,4 ICSID Rep 328.
226
and the circumstances that necessitate such measures 31 The last
.,,
item is important as without a good cause no measure would probably
be granted. The detailed analysis of the reasons further "enable
comments by the other party and deliberations by the tribunal. ,32
Where the request does not contain any of the above elements, the
tribunal may undoubtedly require the relevant party to supply further
information concerning the above elements prior to rendering its
decision.
It should further be noted that the request does not necessarily be in

33
writing . The request may also be made orally, for instance, during the
34
hearings.
2 Priority of Proceedings on Request for Provisional Measures
Since the purpose of a provisional measure is interim protection of

rights pending final award, priority should be given to a request for this
measure. Also the request should be dealt with, as much as possible,

in a short period of time.
Giving priority to and handling in

with a speedy manner of requests for
provisional measures are expressly required only in a small number of
31 See also Article 66(l) of the ICJ Rules. Apparently, the response to the request
the as the request. For example, Rule 23 of the
should too contain same elements
"[t]he tribunal shall request the
Arbitration Rules of the CCIG states that
its " A list of elements that may be contained for
respondent party to state position.
for may provide guidance for determining
a request emergency arbitral measures
for On what should a request contain for
the list of elements provisional measures.
Chapter 111,Part 2.4.
emergency arbitral measures, see supra
32 Caron, Interim Measures, 480.
33 But see id.
34 See Pellonpj; j / Caron, 438. Further, Caron states in respect of the Iran-US
that "the Tribunal accepted initially, in at least one
Claims Tribunal's practice
for interim measures. " Caron, Interim
instance, an oral request by a party
Measures, 480-481, note 45.
-) 1
227
35
rules. For instance, under the ICSID arbitrationsystem, there seems
to be an "assumption that to preserve the rights of a
party [a] speedy
action may be 36
required". By relying on this assumption,Rule 39(2) of
the ICSID Arbitration Rules providesthat the consideration
on a request
for provisional measures shall have priority. It is, indeed, this
author's
experiencethat nearly all requestsfor interim measureare handledwith
a certain speed and generally priority is given to such requests 37
.
Due to the priority given to a request for provisional

measures, many
commentators argue that the request tends to disrupt or delay
arbitration proceedings 38 It is difficult to agree with this argument39 as
.
it is very easy for an arbitral tribunal to distinguish whether
or not the
request is flagrant. Further, it should be kept in mind that "[t]he main
rule will be that the arbitral process will continue undisturbed by the
request. ,40 Furthermore, the request for an interim measure may have
positive effect in resolution the dispute 41

of .
35 See, e. g., Rule 23 of the CCIG Arbitration Rules; Article R37

of the Court of
Arbitration for Sport Arbitration Rules; and Rule 39 of the ICSID Arbitration Rules.
Article 66(2) of the ECJ Rules is also noteworthy. "[a] request for the indication on
interim measures of protection shall have priority over all other cases. The
decision thereon shall be treated as a matter of urgency."
36 Note C to the ICSID Arbitration Rules 1968,1 ICSID Rep 99.
37 ICSID arbitral tribunals, for example, not only gave priority to the requests for
provisional measures but they also dealt with them in a "reasonable speed."
Schreuer, Article 47,228, para. 43. In fact, the requests before the ICSID tribunals
were generally responded approximately within two to five months. Id., 229, para.
43. Similarly, the Iran-US Claims Tribunal too gives priority to such requests.
Indeed, the Tribunal uses temporary restraining measures for dealing with very
urgent applications. On temporary restraining measures, see Chapter IV, infra
Part 4. For such applications, the Tribunal generally renders its decision upon
hearing both parties within a reasonable time.
38 See, e. g., History, 814; and Karrer, Less Theory, 110. See also Chapter IV, supra
note 15.
39
Karrer, Less Theory, 110.
40
Id.
41
Karrer rightly states that
a request may have an overall speeding up effect. A motion for interim
measures may be used to "load up" a terms of reference hearing with matters
which will become important on the merits of a main claim anyway and whose
discussion may be significantly furthered by early attention.
228
3 Requirements to Grant a Measure
For the grant of any provisional measure

on an interim basis either by
courts or arbitrators, there needs to be "a strong
showing of an
immediate and compelling 42
need". Apparently, such showing is sought
for minimizing "the risk of making an order
which may turn out to be
premature and erroneous after the facts and law have been fully
developed at the hearing on the merits of the dispute. Y43Apart from the
above need, national arbitration IaWS44and arbitration agreements, (by
incorporation, ruleS45) do not generally deal, in detail, with
arbitration
the requirements to grant arbitral provisional measures 46 Arbitration
.
rules generally contain a broad language, which leaves a quite-wide
room for discretion. Twenty-seven out of forty-three sets of the rules
(that permit arbitral provisional measures) surveyed deal
with the
By asking for urgent preliminary relief, a party can dramatize its request
on the
main point. If an interim relief was requested, but denied, or if interim measures
are in place that may turn out to be wrongly taken, then arbitral tribunal will tend
to speed up proceedings on the main point so that the impact of the interim
measures or their absence is minimized.
Id.
42 Wagoner, 73. Indeed, "the more the requested measure affects the rights of the
party concerned the more diligence is required from the arbitral tribunal in
ascertaining" and adjudging the need. See Berger, International Economic
Arbitration, 336.
44 Karrer indicates that "[t]he lex arbitri says of course nothing about the matter."
Karrer, Less Theory, 104. It is needless to say that each legal system contains
certain requirements for the grant judicial provisional measures. See Chapter IV,
infra note 56 and accompanying text.
45 It is interesting to note, in this regard, that, for instance, even the drafting history of
the ICSID Convention does not shed much light to the circumstances under which
the grant of provisional measures is appropriate. See History, 337,422, and 515.
Arbitrating parties may, nonetheless, set forth, in their arbitration agreement, the
requirements to grant arbitral provisional measures, though such reference is, if
ever, rarely made in practice.
46 However, there are a few exceptions. For instance, Article 32 of the Rules of
Procedure 1993 of the Permanent Court of Arbitration Attached to the Chamber of
Economy of Slovenia provides for a well-detailed explanation of the requirements,
Under these Rules, prior to granting a measure, the tribunal may require
"demonstration of the probability of the existence of the claim and of the danger
that obtaining of the relief or remedy sought would otherwise become impossible or
considerably more difficult. " Further, it should be noted with interest that, in
accordance with Note A to the ICSID Arbitration Rules, "the parties should not take
steps that might aggravate or extend their dispute or prejudice the execution of
award. " See 1 ICSID Rep 99.
229
requirements to grant arbitral provisional measures 47 Twenty-two sets
.
of the rules refer the requirements as "where the tribunal deems
48 49
necessa ry, or under "appropriate circumstances. ,
In addition, the
survey demonstrates that a circumstance may be appropriate where the
purpose of a measure is related to securing a claim, which is tried by
50
the tribunal or the measure is aimed at preventing events, which
,
could, otherwise, not be avoided 51 The requirement of "necessity" may
.
also be, in many cases, paired with "urgency". 52
The above explanations demonstrate that the texts of arbitration rules
are not very clear and helpful as to the requirements for the grant of
arbitral provisional measures. The clarity is obviously as important as
the existence of the right for interim protection. That is because the
lack of clarity may cause problems on the exercise of the right itself by
arbitrating parties and thus may "affect the rights of the parties to a
significant extent. 53
), The lack of clarity is mainly based on the following
issues:
0 "[i]n international practice authority to prescribe provisional
measures was left to the appreciation of the tribunal, presumably
because it was difficult to foresee [in advance] the types of
that "154
situations might arise
47
Annex.
48 See, e.g., Article 21 of the AAA-ICDR Arbitration Rules; and Article 26 of the
UNCITRAL Arbitration Rules. In regard of the last Rules, Pellonp6; Ji & Caron
that "the Rules provide that [in order to be granted] interim measures
suggest
be just "desirable" or "recommendable. " (Emphasis in the
should necessary - not
original. ). Pellonptiýj / Caron, 441.
49 See, e.g., Article 23 of the ICC Arbitration Rules.
50 the Arbitration Institute of the SCC.
Article 31 of the Arbitration Rules 1999 of
51 See Article 14 of the International Arbitration Rules 1996 Chamber of National and
International Arbitration of Milan.
52 Arbitration Rules 1997 of the ECA.
See, in this respect, Article 21 of the
53 Berger, International Economic Arbitration, 335. It should also be noted that "[i]t is
in the exercise of the arbitrators' discretion
in the interest of justice that certainty
for Costs", 63 Arbitration 36,38 (1997).
" Peter Bowsher, "Security
....
54 See History, 515.
230
arbitral tribunals may apply procedural (or, rarely,
substantive)
laws on the determination of the 55
requirements accordingly,
.
there is no commonly agreed harmonised

one set of principles
that would provide guidance for parties and 56
arbitrators, and
in cases where the tribunal uses his
own discretion, if permitted,
for determination of the requirements, there
is relatively little
information on the actual practice
of arbitrators on interim
protection for rights.
In establishing the requirements for the grant of

provisional measures,
an arbitral tribunal, in the absence of a party agreement, may, for
instance, adopt the principles of the applicable 57
procedural law.
55 The parties
or arbitrators are generally empowered to subject the arbitration
proceedings to a national law. Apparently, that law is likely to be the law of the
place of arbitration. Indeed, in the Interim Award 8786 of 1996 (extracts published
in 11(l) ICC Int'l Ct Arb Bull 81-84 (2000)) the arbitral tribunal applied the local
standards for the grant of an interim measure. In this respect, it should be noted
that not for long ago, arbitrators usually applied the law of the place of arbitration to
the procedural issues, including (at least certain) interim measures.
56 That is because the applicable procedural laws may differ depending mainly
upon
the place of arbitration. Also there is another reason why those laws should not be
chosen as the applicable law- the place of arbitration 'is generally determined as a
geographically convenient neutral venue; thus, there is "no good reason to rely on
the law of civil procedure of the seat of arbitration to fill the gap. " Karrer, Less
Theory, 104.
57 E.
g., law of the place of arbitration or any other law applicable to arbitration. See,
e. g., Yesilirmak, Interim Measures, 34; Cremades, The Need, 228; NAI Interim
Award 1694 of 1996, extracts published in XXIII YCA 97-112 (1998). See also
Chapter IV, supra notes 2 and 55 and accompanying text. Indeed, to the extent
provisional measures considered as procedural issues, until a few decades ago,
the law of the place of arbitration was applicable in the absence of a party
agreement to contrary. See, e.g., Article 16 of the ICC Arbitration Rules 1955; and
Article 15 of the Draft Uniform Law on Inter-American Arbitration, Inter-American
Juridical Yearbook (1955-1957) (Pan American Union, Washington, D.C. 1958),
219. Article 11 of the ICC Arbitration Rules 1975, for instance, changed the above
practice. For the view that an arbitrator should disassociate himself from both the
legal system to which he belongs and procedural law of the place of arbitration,
see Rubino-Sammartano, 650. The requirements, under common law, for the
grant of provisional measures generally are the existence of irreparable harm-,
likelihood of success on the merits or sufficiently serious question as regards the
merits of the dispute in question, and a balance of hardship tipping towards the
applicant. The requirements, in civil law countries, generally are fumus bonijuris
(summary finding that the claim is founded) and periculurn in mora (danger that
rights may be impaired by the lapse of time). Further, it is submitted that similar
23)1
Alternatively, the tribunal may either rely on the
past experience of its
individual memberS58 or transnational arbitral procedural
rules /
customary rules for supplementing arbitration rules.59 It is submitted,
as an example to the former, that "arbitral tribunals should grant or
deny interim measures on the basis of a comparative law approach. ,,60
According to this suggestion arbitral tribunals should consider the

following criteria: "fumus boni iuris, periculum in mora, and
proportionality. ,61 In addition, cases on interim protection of rights
under public international IaW62or growing number of arbitral decisions
on provisional measures may provide guidance to the tribunal. 63
This author suggests that in granting a provisional measure, an arbitral

tribunal, can, in principle take guidance from arbitral case law,
comparative analysis of arbitration rules and scholarly opinions. The

examination of arbitral case law, the texts of arbitration rules and
scholarly opinions demonstrates that there are positive and negative
requirements that arbitrators generally apply for the issuance of a
provisional measure. In addition, the grant of a measure may be
requirements need to be satisfied for the grant of provisional measures by both

courts and arbitrators in most of the Arab states. Aboul-Enein, 79.
58 Caron, Interim Measures, 472
59 In this regard, see Chapter IV, supra notes 2,12 and 13 and accompanying text.
61 Id., 104. See also Article 17 of the Joint American Law Institute / UNIDROIT
Working Group on Principles and Rules of Transnational Civil Procedure,
UNIDROIT 2002, Study LXXVI-Doc 7 (May 2002) ("UNIDROIT Principles").
Further, the condition "periculum in mora" may be applied by a tribunal operating
under the SPIL. See Wirth, 37-38. Fumus boni iuris may be referred to prima
facie establishment of a case or likelihood of success on the merits of the case
whereas periculum in mora is similar to imminent danger, serious or substantial
prejudice to a right if the measure sought is not granted. On which see Chapter IV,
Parts 3.1.2 and 3.1.3, respectively.
62 For instance, the Iran-US Claims Tribunal referred, in many of its decisions, to the
ICJ's case law. The Tribunal chooses to follow the practice of that court perhaps
because many of the members of it were/are lawyers practicing public international
law. Such approach may also be attributable to the mixed nature of the Tribunal.
On the mixed nature of the Tribunal, see, e.g., David D. Caron, "The Nature of the
Iran-United States Claims Tribunal and the Evolving Structure of International
Dispute Resolution", 84 Am J Int'l L 104 (1990).
232
subject to a security for damages. Further, the request for a measure
could be dismissed upon an undertaking of a party not to infringe the
right that is subject of the interim protection.
In case the tribunal refrains from granting the request because, for
instance, the balance of arbitrating parties' interests does
not fully
justify the measure or any of the above requirements are not
met, it
may nonetheless believe that rights of one or both parties may actually
or potentially be infringed. In such cases, the tribunal can expedite the
64
arbitration proceedings to mitigate the possible harm
.
It is noteworthy for evidencing the satisfaction of the requirements that

"the facts supporting the request for interim measures of protection
63 Apparently, customary rules or

case law has no binding effect on the tribunal. See
Chapter IV, supra notes 9-11 and accompanying text.
64 For instance, a dispute related to contracts regarding various infrastructure
projects, the contractors brought a claim for, inter alia, termination of the contract
and release of the performance guarantees given to the Employer. During the
proceedings, the contractors requested from the tribunal, as an interim measure,
to order the employer not to pursue the cashing of the guarantees. The
respondent argued that the term of the guarantees would expire prior to the
termination of arbitration proceedings therefore they should be encashed and put
into an escrow account. The tribunal rejected this argument for, inter alia, that
such solution "could potentially create considerable cash flow problems" to the
claimants but suggested the claimants to extend the term of the guarantees to a
certain period of time. The tribunal also considered [despite the possibility of
having a lengthy arbitration proceedings] that, in its view, the best solution was to
render an award as soon as possible Indeed, the tribunal rendered its final
award within a year from its decision on the interim measure request. ICC Final
Award 9928 of 1999 (unpublished). A similar result reached in an AAA case. The
dispute, in this case, arose from an exclusive distributorship agreement. The
claimant requested a preliminary injunctive relief preventing the respondent, as Its
distributor, from selling any competitive products due to the distribution agreement.
The respondent claimed that the agreement was invalid and unenforceable. The
tribunal denied the preliminary relief request, adjudication of which, according to
the tribunal went to the 'very heart of the case. ' However, the tribunal noted that
the final adjudication in the case should be "conducted as expeditiously as
possible. Indeed, the tribunal rendered its final award within six months from its
order on the request. Order of 1999 in AAA Case No. 50-T-133-00112-99
(unpublished).
-3
65
have to be substantiated by prima facie evidence". Thus, an interim
measure could be ordered where there is mere probability of "the
relevant facts and rights. ,66 The probability requires a summary
assessment of such facts and rights. This assessment is justified with
the interim nature of provisional measures.67
This Part examines those positive and negative requirements, security

for damages and the effect of an undertaking by a party.
3.1 The Positive Requirements
Arbitration rules commonly refer to "necessity" as a positive

68
requirement to grant a provisional measure This reference implies
.
that, for the grant of a provisional measure, there needs to be an
imminent danger of prejudice to a right of an applicant should an urgent
action not taken. In other words, the imminent danger should
necessitate an urgent action. Accordingly, two positive requirements

from the "necessity": and prejudice 69 1n
arise requirement of urgency .
addition to the above two, in light of the arbitral case law, comparative
analysis of arbitration rules and scholarly opinions, there are three more
positive requirements. The requirements for the grant of a provisional
.70
measure collectively are.
* prima facie establishment of jurisdiction',
65 Berger, International Economic Arbitration, 336. See also ICC Interlocutory Award
10596 of 2000 (unpublished) (the tribunal applied "a prima facie standard of
review. ").
66
Wirth, 38.
67 Id. It is also noteworthy that the tribunal should give reasons where it grants the
measure requested. If the reasons for interim protection of rights "are understood,
there is a better chance that they will be obeyed in the right spirit. " Karrer, Less
Theory, 109.
68 See Chapter IV, supra notes 47-48 and accompanying text.
69 Caron, Interim Measures, 491.
70 A similar list of requirements was suggested by, e.g., Blessing, Introduction, para.
857. In this regard, this author agrees with Blessing that the availability of a
concurrent power of a national judge to issue an interim measure has no relevance
in the tribunals' decision on whether or not to issue an interim measure. Id., para.
2 33
4
* prima facie establishment of case;
o urgency;
0 Imminent danger, serious or substantial prejudice if the
measure requested is not granted; and
proportionality.
3.1.1 Prima Facie Establishment of Jurisdiction
It is not unusual in arbitration for an arbitral tribunal to face

with a
request for a provisional measure prior to submissions of arbitrating
71
parties . It is equally usual that the tribunal has to deal with such
requests despite the fact that its jurisdiction has not yet been definitively
established or, perhaps, is under challenge. However, the
establishment of full jurisdiction would usually take certain or in some
cases a lengthy period of time. Time is of the essence for interim
protection of rights. Accordingly, in order to remedy the necessity for
urgency, the existence of prima facie jurisdiction is generally considered
72
satisfactory for the grant of a provisional measure For instance, the
.
Iran-US Claims Tribunal consistently applied the prima facie jurisdiction
test by closely following the decision of the International Court of
Justice in Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America). 73 Judge Holtzmann, in his
862. It should be noted that the second, third and fourth requirements have
applied in full or in part by ICC tribunals. See, Yesilirmak, Interim Measures, 34.
71 See, in this
regard, supra Chapter 111,note 7 and accompanying text.
72 See Bond, 18; Berger, International Economic Arbitration, 335; Lew / Mistelis
Kr6II, para. 23-68; and Pyoung-Keun Kang, The Relationship Between International
Arbitration and National Courts with Specific Reference to Provisional Measures
(1996) (unpublished PhD thesis), 181-182.
73 Provisional Measure Order (10 May 1984), 1984 ICJ Reports 169. It is noteworthy
that the part of the Order on the prima facie jurisdiction test is adopted
unanimously. See also Ford Aerospace v. The Air Force of Iran, Case No. 159,
Interim Award No. ITM 39-159-3 (4 June 1984), reprinted in 6 Iran-US CTR 104,
108. The Tribunal, in this case, made a specific reference to the Nicaragua
decision. Prior to the Ford Aerospace decision, the Tribunal generally did not deal
with jurisdictional questions or mainly used such statements as "it would appear
that the Tribunal has jurisdiction over [the] claim See Rockwell International
... ......
Systems, Inc. v. Iran, Case No. 430, Interim Award No. ITM 20-430-1 (6 June
235
concurrent opinion, further indicated in Bendone-Derossi that in
deciding whether the tribunal has prima facie jurisdiction, "the benefit of
74
doubt" should be given to the existence of jurisdiction Moreover, for
.
instance, ICSID tribunals seem to adopt the prima facie test. In Holiday
Inns v. Morocco, following the continuous challenge to its jurisdiction,
the arbitral tribunal held that "it has jurisdiction to recommend
provisional measures ..., [however] the Parties [have] the right to
...
express, in the rest of the procedure, any exception relating to the
jurisdiction of the Tribunal on any other aspects of the dispute. ,75
3.1.2 Prima Facie Establishment of Case
The prima facie establishment of a case in dispute may be necessary

for the grant of a provisional measure.76 This is apparently for the
1983), reprinted in 2 Iran-US CTR 369-371. See also RCA Global

Communications v. Iran, Case No. 160, Interim Award No. ITM 29-160-1 (30
October 1983), reprinted in 4 Iran-US CTR 5-8. Following Ford Aerospace, the
Tribunal consistently apply the prima facie jurisdiction test. See, e. g., Bendone-
Derossi International v. Iran, Case No. 375, Interim Award No. ITM 40-375-1 (7
June 1984), reprinted in 6 Iran-US CTR 130,131-132- Iran v. United States,
Decision No. DEC 116-A15(IV) & A24-FT (18 May 1199ý), extracts published in
Pellonptiti / Caron, 462. The same line of practice followed by other tribunals
74
acting under the UNCITRAL Arbitration Rules too.
6 Iran-US CTR 134.
75
Decision (2 July 1972). See Lalive, 136. See also Vacuum Salt v. Ghana where
the decision embodied an undertaking in which the party assured the tribunal to
comply with the terms of the claimant's request for a provisional measure. In this
case, the jurisdiction was successfully challenged by Ghana. This challenge,
which was made in the beginning of the proceedings, did not prevent the tribunal
from embodying the undertaking into its decision. It should, however, be noted
that the decision was not a recommendation, though the tribunal implied that it had
the power to make a recommendation. See Decision No. 3 of the Tribunal, 14
June 1993,4 ICSID Rep 328. In regard of ICSID arbitration, it needs to be noted
that some commentators argue that the registration of a request for arbitration by
the ICSID's Secretary General after his screening power is exercised in
Article 36(3) of the ICSID Convention provides a sufficient basis
accordance with
for a recommendation of a provisional measure. See Brower / Goodman, 451-456;
G. R. Delaume, "ICSID Tribunals and Provisional Measures -A Review of the
Cases", 1 ICSID Rev FILJ 392,393 (1986); Friedland, Provisional Measures,
-
34 1; and Masood, 145. It is difficult to agree with such argument as, inter alia, "the
determination by the Secretary General, 'based only on the information contained
in the request, ' should not exempt the tribunal from independently satisfying itself
issue " Parra, The Practices, 42.
as to its authority to provisional measures.
76
The requirement for prima facie establishment of a case is similar to the
fumus bonijuris or likelihood of success on the merits. On the last
requirement of
2 36
satisfaction of tribunal that the moving party has, with reasonable
77
probability, a case or, alternatively, for determination that the claim or
the request is not frivolous or vexatious.78 In this regard, Caron
rightly
argues that the likelihood of success on the merits is sotto voce an
79
element for issuing provisional measures. Caron continues.
It certainly is appropriate that when a case manifestly lacks
merit,
necessarily costly and disruptive interim measures to protect such
dubious rights should not be granted. A tribunal must determine
prima facie not only whether it possesses jurisdiction but also
whether the question presented by the case is frivolous.80
The examination of substance of a case for a prima facie test should be

limited. An arbitral tribunal makes an "overall assessment of the merits
of the case" in question in order to determine whether the moving

party's case is "sufficiently strong to merit protection. ,81 However, the
tribunal should refrain from prejudging the merits of the case 82
.
The prima facie test is gained some recognition. For instance, in ICC
case 9301, there was a request for an injunction prohibiting the
point, an ICC tribunal ruled that "the applicant [should] render plausible that it has a
prima facie contractual or legal right to obtain the relief it seeks. " ICC Interlocutory
Award 10596 of 2000 (unpublished). Apparently, the pre-requisite for such prima
facie establishment of a case is the existing of a right whose protection is sought.
Maffezini v. The Kingdom of Spain, Procedural Order No. 2 (28 October 1999),
extracts reprinted in XXVII YCA 13,18 (2002). It is noteworthy that such right
should fall within the ambit of the case in dispute and within the coverage of the
relevant arbitration agreement.
77 It is not necessary to establish the whole case but it is sufficient to establish prima
facie the right, which the measure requested is aimed to protect. See, Wirth, 37.
78 Arbitrators should consider whether or not the applicant has a legitimate interest in
its request by limited examination of the merits of the case in dispute. See ICC
Second Interim Award 7544 of 1996, extracts published in 11(1) ICC Int'l Ct Arb
Bull 56,59 (2000). It should be noted that the assessment of legitimate interest
carries weight for avoiding vexatious applications for a provisional measure.
79 Caron, Interim Measures, 490. See also Pellonp66 / Caron, 442. Berger, in this
regard, states that "[d]epending upon the degree to which the requested measure
infringes the rights of the other party, success on the merits of the underlying claim
by the requesting party has to be likely. " Berger, International Economic
Arbitration, 337. But see, van Hof, 190.
'30 Caron, Interim Measures, 491.
8, Redfern / Hunter, para. 7-26.
82 See Chapter IV, infra Part 3.2.1.
3
Respondent or any person under its authority to use no longer the
Claimant's trademark logo. The arbitrator, after establishing its power
to grant provisional measures, held:
[S]ince [the Claimant] establishes that there is a prima facie right of
action for illegitimate use of the letterhead in question, the
Arbitrator accepts the request seeking an injunction prohibiting the
use of the [the Claimant's] trademark, tradename and logo 83
(Emphasis added. ) ....
83 ICC Interim Award 9301 of 1997 (unpublished). See

also, e.g., ICC Final Award
5804 of 1989, extracts published in 4(2) ICC Int'l Ct Arb Bull 76 (1993) (denying a
request for a provisional measure for, inter alia, the lack of prima facie
establishment of the case); ICC Final Award 5804 of 1989, extracts published in
4(2) ICC Int'l Ct Arb Bull 76 (1993)- ICC First Interim Award 8894 of 1997, extracts
Xrb
published in 11(l) ICC Int'l Ct Bull 94 (2000) (the tribunal postponed its
decision on the application for a provisional measure because of the fact that the
evidence before the tribunal was confusing); ICC Second Interim Award 5835 of
1992 (unpublished) (holding that "the Claimant filed his request for provisional
measure almost one year after the signature of the Terms of Reference, in the
absence of any sudden or unforeseeable events justifying the grant of such
measure. ).
2 318
3.1.3 Urgency
Urgency is an essential requirement to grant a provisional 84

measure.
Indeed, it is, in principle, the promise behind interim
protection that
there is urgency, which necessitates the grant of an interim 85
measure.
In other words, grant of a measure is justified where there is
a necessity
to safeguard the right in question before the final award is rendered.
Otherwise, if the making of decision could await the final determination
of the parties' case there is inherently no basis of seeking interim

protection of rights. 86
84 It is stated, in this
regard, that "[i]n respect of all categories of provisional
measures urgency is a sine qua non Brower/ Goodman, 461. In ICC case
... ......
8113, the arbitral tribunal denied the request for a provisional payment on the
ground that "the Tribunal, after having examined all the facts of the case, is not
convinced of the existence of urgency, the basic requirement for granting a
provisional measure in the Claimant's favour. " (Emphasis added. ) ICC Second
Partial Award 8113 of 1995, extracts published in 11 (1) ICC Int'l Ct Arb Bull 65-69
(2000). See also ICC Interim Award 6632 of 1993 (unpublished) (holding inter alia
that "the application lacks the urgency required to address the issue by way of an
interim award. "); Panacaviar, S.A. v. Iran, Case No. 498, Interim Award No. ITM
64-498-1 (4 December 1986), reprinted in 13 Iran-US CTR 193,197 (observing,
whilst denying the request for a stay of the parallel court proceedings, that no
request was made within six years from the commencement of such proceedings);
Atlantic Richfield Co. v. Iran, Case No. 396, Interim Award No. ITM 50-396-1 (8
May 1985), reprinted in 8 Iran-US CTR 179-182, on this case, see Pellonpki /
Caron, 442, note 28; Concurring Opinion of Howard Holtzmann to Bendone-
Derossi International v. Iran, reprinted in 6 Iran-US CTR 133,140 (upon the
respondents' application to stay parallel court proceedings initiated in Germany to
obtain a provisional measure, Judge Holtzmann concurred with the Tribunal by
arguing, inter alia, that the "Respondent has made no showing of urgency justifying
the issuance of interim relief: the court order was entered in June 1983, ten
months before Respondent sought a stay. "); and Order of 1999 in AAA Case No.
507181-0014299 (unpublished) (denying the motion for interim relief in an order
because of the fact that the tribunal would render the final award within three
months. ). However, in this last case, the tribunal reserved the parties' right to re-
present the motion should the issuance of the final award be delayed. The tribunal
apparently considered that urgency would be remedied as the matter in question
would finally be resolved within a short period of time.
85 See Baker / Davis, 139. The urgency is not required for interim payment on
account. See Chapter IV, infra Part 7.5.
86 The requirement of urgency plays little role or, mostly, no role for the grant of
security (for costs, payment, and damages) and provisional payment.
2 39
The establishment of urgency may vary from
one tribunal to another.87
For example, in ICC case 10596, the tribunal defined the
requirement
of urgency. The dispute in this case arose from termination
of
distribution agreements. As an interim measure, the
respondent made
a request for delivery of several documents. The tribunal required, inter
alia, the existence of urgency to grant the relief sought. In regard of
urgency, the tribunal held that
the request relates to a matter of urgency, it being understood that
(Iurgency" is broadly interpreted; the fact that a party's potential
losses are likely to increase with the mere passing of time and that
it would be unreasonable to expect that a party to wait for the final
award 88
suffices
.
3.1.4 Imminent Danger, Serious or Substantial Prejudice
For the grant of a provisional measure, it needs to be an imminent

danger of a prejudice to a right, if the measure requested is not granted
before the final resolution of a dispute.89 Interpretation of this
87 The determination
may vary "depending on the arbitral tribunal and the national
procedural law, if any used by the tribunal as a reference." Schwartz, Provisional
Measures, 60.
88 ICC Interlocutory Award 10596
of 2000 (unpublished). See also Schwartz,
Provisional Measures, 60; and Bond, 18-19. Further, for instance, two tribunals
whose seats were in Paris dealt with urgency. The first tribunal held that urgency
arises when there is "a risk of serious and irreparable harm, present or future
that would render indispensable the taking of an immediate decision such as to ...
eliminate, avoid or reduce such harm. " The second tribunal held that "[a] situation
has an urgent character when it requires that measures be taken in order to avoid
that the legitimate rights of a party are not placed in peril. See Schwartz,
Provisional Measures, 60.
89 This requirement seems to be similar to the requirement of "periculum in mora." It
should be noted that there is a clear and inherent link between the requirements of
urgency and grave harm. See Caron, Interim Measures, 497, and Baker / Davis,
139. But see van Hof, 190. She argues that "[p]rejudice or preventing prejudice
may be urgent and thus related to the concept, but this relationship need not
necessarily exist. " Id. As regards the concept of "inherent link," see, e.g., ICC
Second Partial Award 8113 of 1995, extracts published 11(1) ICC Int'l Ct Arb Bull
65-69 (2000); and ICC Final Award 5804 of 1989, extracts published in 4(2) ICC
Int'l Ct Arb Bull 76 (1993). It should also be noted that an imminent danger may
occur where there is a risk of aggravation of a dispute. For example, in ICC case
3896, the arbitral tribunal held that
in order to prevent the aggravation of the dispute submitted to arbitration, it was
justified in proposing that one of the parties not call bank guaranties issued by a
third party bank in connection with the matter in dispute, although the
guarantees were otherwise callable on demand.
240
requirement varies from one legal system to another. Under common
law, a provisional measure is generally granted where there is a risk
of
irreparable prejudice or harm if the measure requested is not granted.
An irreparable harm usually refers to harm "that cannot readily be
compensated by an award of monetary damages."90 Under civil law,
the principle of periculum in mora is generally considered satisfactory.
In arbitration, the requirement of imminent danger or serious or

substantial harm should be satisfactory where "the delay in the
adjudication of the main claim caused by the arbitral proceedings [or, in
other words, the delay in the rendering of the final award] would lead to
a 'substantial' (but not necessarily 'irreparable' ) prejudice for the
...
requesting party. "91
ICC Partial Award 3896 of 1982, extracts published in (1983) Clunet 914; X YCA 47
(1985); and Jarvin / Derains, 161. See also Second Interim Award 5835 of 1992
(unpublished); ICC Award 3896 of 1982, extracts published in (1983) Clunet 914,
and X YCA 47 (1985); and ICC Interlocutory Award 10596 of 2000 (unpublished).
The tribunal held, in this last case, that under longstanding practice in ICC
arbitration, "the parties must refrain from taking any action which may aggravate the
dispute. " The tribunal further ruled that "any non marginal risk of aggravation of the
dispute is sufficient to warrant an order for interim relief. Indeed, it would be foolish
for the Tribunal to wait for a foreseeable, or at least plausibly foreseeable, loss to
occur, to then provide for its compensation in the form of damages .... rather than
to prevent the loss from occurring in the first place. "
90
Schwartz, Provisional Measures, 61. However, "[w]hile the existence of mere
financial harm is not usually the basis for exercising extraordinary power of
granting interim relief, [it is clear from the case law that] the potential or a
bankruptcy or extraordinary financial consequence [which could] not be repaired by
a damage award is a valid reason for disturbing the status quo. " Southern
Navigation Ltd v. Petroleos Mexicanos, Interim Award No. 2015 of 1985, extracts
91
published in XI YCA 209,210 (1989).
Berger, International Economic Arbitration, 336 (arguing that "an act prejudicial to
the right of one of the parties should not be characterized as being acceptable
simply because damages are available. "). He rightly argues for requiring a
standard less than irreparable harm. He supports his argument with the example
given under Article 26 of the UNCITRAL Arbitration Rules: the sale of perishable
goods. Id. See also van Hof, 190; and Baker / Davis, 139-40. Further, "[flrom a
commercial point of view - which is the position that a tribunal in international
economic arbitration has to take the disruption to business relations and the
-
from such acts cannot be truly compensated by damages. "
waste resulting
Berger, International Economic Arbitration, 336; and Caron, Interim Measures,
493-94. Moreover, according to Schwartz, "ICC tribunals have sometimes
financial loss itself to irreparable harm. Such loss
construed the risk of constitute
may, of course, be truly 'irreparable' when its severity threatens the financial
241
3.1.5 Proportionality
An arbitral tribunal ought to take into account the effect

of any interim
measure, for granting it, on arbitrating parties' rights to a certain extent.
This is to say that "the possible injury caused by the requested
Interim
measure must not be out of proportion with the advantage which the
92
claimant hopes to derive from it.,,
existence of the applicant for relief." Schwartz, Provisional Measures, 60. See
also ICC Final Award 5804 of 1989, extracts published in 4(2) ICC Int'l Ct Arb Bull
76 (1993) (holding, in denial of the request for a provisional measure, that "[i]t has
not been clearly shown that the damage, potential or actual, would be very serious
for the applicant if the measure is not adopted. But see, e.g., ICC Second Partial
Award 8113 of 1995, extracts published in 11(1) ICC Int'l Ct Arb Bull 65-69 (2000)
(holding that "the Claimant would not incur any grave and irreparable harm if not
granted the sought measure before the Final Award expected to be issue in
1995."). (Emphasis added.) Similarly, in more than one occasion, the Iran-US
.
Claims Tribunal ruled that "injury that can be made whole by monetary relief does
not constitute irreparable harm." See, e.g., Iran v. The United States of America,
Decision No. Dec. 116-A 15(IV) & A24-FT (18 May 1993), extracts published in
Pellonp6ti / Caron, 462-463. See also, e.g., Iran v. the United States of America,
Case No. B1 (Claim 4), Partial Award No. 382-Bl-FT (31 Aug. 1988), reprinted in
19 Iran-US CTR 273; Iran v. the United States of America, Cases Nos. A-4 and A-
15, Order (18 January 1984), reprinted in 5 Iran-US CTR 112-114 (holding that
"the circumstances as presented to the Tribunal at the time were not such as to
require the exercise of its power to order the requested interim measure of
protection, as these circumstances did not appear to create a risk of an irreparable
prejudice, not capable of reparation by payment of damages."). (Emphasis
added. ) Id., 114.
92 Berger, International Economic Arbitration, 336-37. See also, Karrer, Less Theory,
104; Cremades, The Need, 230; and Lew / Mistelis / Krbll, para. 23-65. The
principle of proportionality may also be referred to as the principle of
reasonableness. Berger, International Economic Arbitration, 337. On this
principle, see also MAT Cie d'ýIectricit6 de Sofia et de Bulgarie (Belgium v.
Bulgaria), (1922) 2 TAM 924,926-27 (arguing that "the possible injury that may be
caused by the proposed interim measures of protection must not be out of
proportion with the advantage which the claimant hopes to derive from them. "); and
Bin Cheng, General Principles of Law as Applied by International Courts and
Tribunals (London: Stevens 1953), 273. In applying this principle, the tribunal
should carefully examine the allocation of the risks between the parties at the
signing of the contract or, if the risk allocation is changed over the life of the
contract, at the time when a dispute arises. For determination of such risk
allocation, the tribunal need to look into the terms of the contract, if they are silent,
"is likely to make an overall interpretation of the contract (Emphasis in the
it
original. ) Blessing, Introduction, para. 859. According to Blessing
for instance, show that the parties had
such an overall interpretation may,
assumed and accepted, in the underlying contract, very considerable and
if were the conclusion, it would hardly
uncovered commercial risks - and such
be justified to direct far-reaching protective measures. By contrast, if the
interpretation of the overall spirit of the contract shows that the parties had pain-
stickingly endeavoured to confine the limits of their risks and had themselves
242
3.2 The Negative Requirements
The existing of any of the six negative requirements

set out below may
lead to the denial of an application for a provisional
measure:
* the request should not necessitate examination of merits of the
case in ques ion,
0 the tribunal may refrain from granting final relief in the form
of a
provisional measure,
9 the request may be denied where the moving
party does not
have clean hands,
the request may be denied where such measure is
not capable
of being carried out;
e when the measure requested is not capable of preventing the

alleged harm; or
93
o the request may be denied where it iS Moot.
Arbitrators may observe these requirements either collectively or
individually.
3.2.1 If an examination of the merits of the case is required, the

tribunal may refrain from granting the measure requested
An arbitral tribunal may refrain from examining the merits of the case in
dispute as "[t]he taking of interim measures is without prejudice to the
outcome of the case. A4 Further, the tribunal does not wish to prejudge
provided for numerous protective tools etc., a Tribunal will probably find it
appropriate to issue a protective interim order, if the circumstances have driven
the accepted risk-sphere way out of the contractually accepted range.
Id. In this regard, it is interesting to note that a tribunal refrained from restoring the
status quo existed right before the dispute arose in an ICC case. The tribunal
refrained from ordering, without posting a security, the party to lift attachments
obtained from a local court. See ICC First Interim Award 5835 of 1988, extracts
93
published in 8(1) ICC Int'l Ct Arb Bull 67 (1997).
Some of these requirements resemble to the requirements to grant provisional
measures under English law. See, e. g., L.A. Sheridan, Injunctions and Similar
Orders (Barry Rose: Chichester 1999), 119, etc.
94
Sanders, Commentary, 196. Apparently, the tribunal has to take the substance of
a case in dispute for establishment of prima facie jurisdiction. See Chapter IV,
supra Part 3.1.2.
24 ')
the merits or to be accused of doing it. That is because
the
prejudgment may infringe or, at least, shadow the tribunal's
lity. 95
impartia The merits of a case should be examined in full trial.
a
In many cases, arbitrators denied, in relation to

a request for interim
measures, to examine the merits of the case in dispute. For instance,
in ICC case 6632, both parties applied for a security for
costs, the
arbitral tribunal denied the applications by holding-
The Arbitral Tribunal considers that, in the
present stage of its
information, it cannot, without pre-judging the issues
relating to the
merits of the case, determine whether the Contract was validly
terminated or not and whether the property was legally or illegally
seized by Respondent 96 (Emphasis )
.... added.
95 Any such pre-judgment

may cause setting aside or refusal of enforcement of an
award. See, in this regard, e.g., Articles 34(2)(a)(iv), 34(2)(b)(ii) of the Model Law,
and Articles V(11)(d),V(2)(b) of the NY Convention. In any case, a provisional
measure should not prejudice the decision on the substance. See Article 292 of
the Netherlands AA.
96 ICC Interim Award 6632
of 1993 (unpublished). In addition see, e.g., ICC Second
Partial Award 8113 of 1995, extracts published in 11(1) ICC Int'l Ct Arb Bull 65-69
(2000) (the arbitral tribunal denied the request for an interim measure as "the grant
of the measure requested by Claimant implies a pre-judgement of the dispute.
(Emphasis added. ); ICC First Partial Award 8540 of 1999 (unput)lished) (the .. ."
tribunal refrained from pre-judging the merits of the case in dispute concerning the
request for certain injunctions. ); Holiday Inns v. Morocco (where, with respect to
the tribunal's recommendation, Lalive states that "[n]othing is said or implied could
touch the merits in litigation." Lalive, 193); Atlantic Triton v. Guinea (denying the
request on pre-judgment security on the ground, inter alia, that "the fact that both
requests were directly linked to, and dependent on, resolution of the basic claims
in the arbitration. This was particularly so with respect to Atlantic Triton's request,
which virtually restated its principal claim. " (Emphasis added. )); Maffezini v. The
Kingdom of Spain, Procedural Order No. 2 (28 October 1999), extracts reprinted in
XXVII YCA 13,18 (2002) (indicating that "[i]t would be improper for the Tribunal to
pre-judge the claimant's case ...... ). Further, in an AAA case, a dispute arose from
a distribution agreement and the claimant requested from the tribunal to enjoin, on
an interim basis, the respondent from selling competitive products. The
respondent's objection to the preliminary injunctive relief was that it had never
been a party to the agreement. Because of the fact that this claim was also the
essence of the respondent's defence, the tribunal refrained from dealing with the
substance of the case. Accordingly, the tribunal denied to issue the relief sought.
Order of 1999 in AAA Case No. 507181-0014299 (unpublished). See also
Friedland, Provisional Measures, 348.
244
3.2.2 No Grant of Final Relief
An arbitral tribunal "will not (or, at any rate,

should not) grant a decision
on the merits under the guise of interim relief." 97 An arbitral interim
measure "may not operate to grant the final relief sought" for preserving
"the provisional nature of the interim measures".98 Arbitral
case law
generally confirms this view. For instance, in Behring International,
Inc., v. Iranian Air Force, the dispute arose mainly
over the storage
charges for warehousing the respondent's property. The Iran-US
Claims Tribunal held that
the granting of the full interim relief requested by Respondents, in
particular, the transfer to Respondents of possession, custody and
control of the warehoused goods would be tantamount to
Respondents ...,
awarding the final relief sought in their
counterclaim. 99
However, as it could not convince the claimant to store the goods in a
modern portion of its warehouse, in order to avoid further deterioration

of the goods, the Tribunal later held:
97 Bond, 18. Van Hof argues, on the contrary, that

[t]he conclusion that a tribunal would not be able to order interim relief if this
happened to constitute the principal relief sought appears unconvincing It is
....
understandable that a certain safeguards might be required, for example, to
prevent the Claimant from dismissing his suit, but it is hard to conceive of any
fundamental objections apart from this.
Van Hof, 191.
98 Berger, International Economic Arbitration, 337. See also Baker / Davis, 340.
Perhaps another reason for not granting the final relief on an interim basis may be
to avoid changing the status quo. For instance, in ICC case 9950, the arbitral
tribunal denied changing the status quo that was existed at the date when the
request for arbitration was filed on factual grounds. ICC Interim Award 9950 of
2000 (unpublished). But see Lew/ Mistelis / Kr6II, para. 23-64.
99 Case No. 382, Interim Award No. ITM 46-382-3 (22 February 1985), reprinted in 8
Iran-US CTR 44,46. See also, e.g., United Technologies Int'l, Inc. v. Iran, Case
No. 114, Decision No. Dec 53-114-3 (10 December 1986), reprinted in 13 Iran-US
CTR 254,259. In this case, the dispute arose out of contracts "for servicing and
overhaul of helicopter components owned by one of the respondents". Upon the
claimant's request for reimbursement of the storage costs for preservation of the
goods, the Iran-US Claims Tribunal, by taking into account the fact that one of the
claims submitted by the claimant is for storage charges, denied the request by
ruling that "it appears that the request for interim measures is, in this respect,
identical to one of the Claimant's claims on the merits. Under such circumstances,
to grant this request would amount to a provisional judgment on one of the
Claimant's claims. "
'45
Since a transfer within Claimant's own warehouse has
not been
made possible, the Tribunal sees no alternative to transferring the
goods to a warehouse selected by Respondents. In the
circumstances of this case, it would be impractical for this
international Tribunal to maintain control of the goods through
a
warehouse selected by and subject to the discretion of the
Tribunal. Certain of the goods may require repackaging,
special
maintenance or special handling, involving daily management
decisions for which the Tribunal cannot assume responsibility.
Moreover, the use of a third party conservator is unnecessary in
this case as Respondents' title to the goods and eventual right to
possession as between the Parties is undisputed.100(Citations
omitted. )
3.2.3 The tribunal may not grant a provisional measure if the
applicant does not have "clean hands"
This principle is self-explanatory and was observed, for instance, in ICC
case 7972.101 In this case, the claimant concluded a distribution
contract with the respondent, whereby the respondent was granted the
exclusive right to sell touch-screen computers. The parties also signed
a non-competition clause, in which the respondent undertook not to
compete or develop similar products. The claimant alleged that the
respondent breached their contract, and, as a consequence,

terminated the contract. The claimant then filed a request for
arbitration. The claimant also applied for an injunctive relief stopping

the respondent to manufacture, to distribute and to sell the claimant's
products. The arbitral tribunal rejected the application on the ground

that the claim upon which the relief based is time-barred. The tribunal
further, interalia, held:

The decision whether or not to grant an injunction lies in the
discretion of the Tribunal from which it is sought. Generally, a
100Case No. 382, interim and interlocutory Award No. ITM/ITL 52-382-3 (21 June
1985), reprinted in 8 Iran-US CTR 238,278. In regard of this case, Caron rightly
that "[i]t be possible by creative thinking on the part of the tribunal
suggests may
to find that will not simultaneously grant the final relief
and parties measures
requested. " Caron, Interim Measures, 488.
101 ICC Partial Award 7972 of 1997 (unpublished).
246
tribunal will not issue an injunction where it is found that the
petitioner does not have clean hands.
We have found that [the claimant] discovered manufacture and

[the ...
sale of products by the respondent] in 1991. [The claimant]
Itsat on this knowledge" for more than two years before, on 28 April
1993, it invoked [the respondent's] breach and sent a notice of
termination of the Distribution Agreement. In the meantime, [the
claimant] actively sought and obtained, in May 1991, an additional
investment of USD 5.000.000 by [the respondent] in [the
claimant's business].
In such circumstances, we determine that [the claimant] cannot

now be heard to say that it is entitled to an injunction to enjoin [the
respondent] henceforth from manufacturing, distributing and
selling [the claimant's] products. (Emphasis added. )
3.2.4 The tribunal may not grant a measure where such measure
is not capable of being carried out
It is submitted that "arbitrators will normally be concerned to ensure

...
that interim measures ordered by them are capable of being carried
102 This concern partly relates to arbitrators' duty, according to
OUt.,,
certain arbitration rules, to take into account the enforceability of the
they 103 Further, arbitrators would not wish to waste

award render.
time delay the arbitration proceedings where it Is not likely
valuable and
that the measure they would grant is not capable of being carried out.
For instance, in ICC case 721 0,104 upon the revocation of licenses
by the State X, the claimant applied for an

concerning mineral rights
The aim of the application was to prevent the State X from
injunction.
in any part of the territory
making any disposition of the mineral rights
by the licences. The tribunal did not rule on the issue
covered relevant
In its final award, the tribunal held that one of the
until its final award.
102
Schwartz, Provisional Measures, 62.
103 See, e. g., Article 35 of the ICC Arbitration Rules.
104 ICC Final Award 7210 of 1994, extracts published in 11(1) ICC Int'l Ct Arb Bull 49-
was Paris and the applicable law
52 (2000). In this case, the place of arbitration
X. See, for a similar case, Schwartz, Provisional
was the law of the Country
Measures, 62.
247
reasons why it did not rule on the application was "because [had it
granted the application] it could not have monitored any order made."105
(Emphasis added.). Similarly, in ICC case 5835, the tribunal, in
denying the request for a provisional measure indicated that it took the
enforceability of the provisional measure requested into account. 106
3.2.5 When the measure requested is not capable of preventing

the alleged harm
Inasmuch as provisional measures are designed to safeguard, on an

interim basis, the right in question or, in other words, avoid any harm to
that right, they should, at least on their face, capable of serving this
purpose. 107
3.2.6 Request Must not be Moot
It is obvious that where the request is already moot, the measure

requested would not be granted. For instance, in Iran v. Unded States,
Case No. A/15, the claimant requested from the tribunal to prevent the
public sale of nuclear fuel allegedly belonging to it. Due to the fact that
the fuel was already sold before the tribunal was able to consider the
issue, it was held that the request became moot. Accordingly, the
tribunal refused to entertain it. 108
3.3 Security for Damages
The grant of some provisional measures, particularly those ones aiming

to preserve the status quo may likely, potentially or actually prejudice
105 ICC Final Award 7210 of 1994, extracts published in 11(1) ICC Int'l Ct Arb 49-52
(2000).
106 ICC Second Interim Award 5835 of 1992 (unpublished). See also ICC Final Award
7489 of 1993, extracts published in (1993) Clunet 1078; 8(1) ICC Int'l Ct Arb Bull
68 (1997), and Hascher, Procedural Decisions, 48.
107 Schwartz, Provisional Measures, 62.
108 Iran v. The United States of America, Case A-15, Dec. No. Dec 52-A/15-FT (24
November 1986), reprinted in 13 Iran-US CTR 173-175.
248
the counter-party's rights. 109 In such cases, an arbitral tribunal
should,
in this author's view, request from the applicant
a security for
damages. 110 Security for damages is an undertaking
whereby the
109This is despite the fact that

a request to a court for a provisional measure should
not normally affect the outcome of arbitration proceedings. See, e.g., Article 37(l)
of the Arbitration Rules 1993 of the Netherlands Arbitration Institute (the "NAl").
and Article 11 of the Arbitration Rules 1980 of the French Arbitration Associatioý
(the "FAA").
110 In fact, the ECJ ruled that interim
payment would not be considered within the
meaning of Article 24 of the Brussels Convention unless, inter alia, the repayment
is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim.
The repayment is guaranteed where a security for damages is obtained. See, e.g.,
Van Uden Maritime BV, Trading as Van Uden Africa Line V.
Kom manditgeselIschaft in Firma Deco-Line and Another, Case C-391/95, (1998)
ECR 1-7091,1-7131, para. 22; and Hans Hermann Mietz v. Intership Yatching
Sneek BV, Case C-99/96, (1999) ECR 1-2277,1-2314, para. 42. Not many
arbitration laws do contain express provision on security for damages. For
instance, the Model Law refrains from mentioning security for damages. See, in
this regard, UN Doc A/40/17, para. 166, reprinted in Holtzmann / Neuhaus, 546-47.
However, Article 17 does not exclude the possibility of a tribunal's granting of
security for damages. See e.g., id. But see also, e.g., Article 28(3) of the
Arbitration Law of the People's Republic of China (stating that damages may be
recoverable in case the application proved to be faulty.); Article 9(l) of the
Ecuadorian Law on Arbitration and Mediation 1997, Section 25(4) of the Swedish
AA 1999; and Section 9-9-35 of the Arbitration Codý of Georgia. Twenty-nine sets
of the arbitration rules surveyed contain a provision on the security. See Annex.
According to these rules, the tribunal is generally empowered to ask for
appropriate security. Further, only three of the rules surveyed contain a provision,
which expressly empowers the tribunal to grant security for damages. See Article
31 of the Arbitration Rules 1999 of the Arbitration Institute of the SCC; Article 28 of
the Arbitration Rules 1993 of the Bulgarian Chamber of Commerce (providing for a
submission of a counter-guarantee by the moving party for a provisional measure);
and Article 14a of the Rules of Arbitration of the International Arbitration Centre of
the Federal Economic Chamber of Vienna. However, in some cases, a tribunal's
is in
power restricted regard of the security for damages. See, e.g., Article 21(2) of
the AAA-ICDR Arbitration Rules, and Article 26(2) of the UNCITRAL Arbitration
Rules (empowering to grant security for the costs of provisional measures).
Where there is no express power to grant security for damages, such power may
derive from the broad interpretation of the arbitration agreement. Where a security
is requested about an interim measure, it is apparent that the tribunal's jurisdiction
extends to damages claims arising from such measure. See e. g., Wirth, 38, and
Berger, International Economic Arbitration, 342 (stating that security for damages
claim may be handled within the same arbitration since such claim arose "out of or
in connection with the contract". ). It is also submitted that the obligation "to
mitigate damages or not to worsen the dispute" could also be the basis for security
for damages. Buscher / Tschanz, 88. It is, in this regard, noteworthy that security
for damages could be granted, without the need for a specific request, as the
purpose of it is to avoid unjust suffering of a party. See, e. g. Article 23(l) of the
ICC Arbitration Rules- and Article 46 of the WIPO Arbitration Rules. See also, e g.,
Article 17 of the Mo'del Law; and Article 183(3) of the SPIL. That should be,
however, subject to the existence of any risk of loss, which may arise out of the
interim relief granted.
`49
successful moving party undertakes to indemnify the adversary, should
the measure prove to be unjustified."' This is because a
provisional
measure is based on a summary review of the facts and law, which
review would affect, prima facie establishment of jurisdiction and prima
facie establishment of case.' 12 It is likely that the outcome
of such
review would change during or at the end the adjudication. The amount
of security should cover the actual costs and the potential damages to
the adverse party. ' 13 In determining the amount, financial capability of
the moving party should be taken into account. ' 14
There are a few arbitral cases where a security for damages were dealt
with. For instance, in ICC case 7544, upon application of the Claimant
for a provisional payment, the tribunal ruled:
The Arbitral Tribunal is faced with a delicate task of weighing up
...
the probability as to whether, after the claims and counterclaims
have been fully argued before it, the net result will be in favour of
Claimant, as the latter alleges, or in favour of Defendant; having
decided it can [however, ] in order to cover the risk that the final
...
decision might not be consistent with the decision reached in this
award, and not to prejudice the right of set-off, the Tribunal
considers that it is appropriate that the party in whose favour the
decision on an interim payment is made provide a guarantee of
like amount. Consequently, the order to Defendant to pay the
amount of ... to Claimant is made subject to Claimant providing a
guarantee of like amount in the form and subject to the conditions
set forth in the decision section of this award. ' 15 (Emphasis
added. ) (Citations omitted. )
"I On the issue of damages as compensation, see Chapter IV, Part 10.
112 See Chapter IV, supra Parts 3.1.1 and 3.1.2.
114 That is particularly important where the security for damages is a precondition for
the grant of the measure requested.
115 ICC Second Interim Award 7544 of 1996, extracts published in 11 (1) ICC Int'l Ct
Arb Bull 56-60 (2000). See also, e. g., ICC First Interim Award 5835 of 1988,
extracts published in 8(1) ICC Int'l Ct Arb Bull 67 (1997); and Order of 1999 in AAA
Case No. 52 153 00116 87 (unpublished) (ordering, in a case concerning allegedly
unjust termination of the Joint Marketing Service and Manufacturing Agreement,
the respondent to comply with its injunction pending the final award and to subject
the injunction's coming into effect posting of either cash or other kind of bond. )
(unpublished). In ordering of any measure of security, a tribunal should consider
whether the type of security that will be issued is available from a bank. For
250
3.4 An Undertaking
An arbitral tribunal may deny the request for a provisional measure if

there is an undertaking or a declaration in good faith by the party
against whom such measure is sought that it does not intend to infringe
the right in question. Apparently, it is within the discretion of the tribunal
to accept such undertaking or declaration.116 Where there is an
undertaking, arbitrators may decide on the request with or without
considering the other requirements for granting the measure requested.
For instance, in ICC case 7692,117a dispute arose from the agreement
according to which the claimant is entitled to the use of the
respondent's "computer programs and technology, which relate to
predicting movements in financial instruments." The claimant
requested, inter alia, an injunction to prevent the use or dissemination
of its technology and data by the respondent, pending the final award.
The respondent, contrary to the claimant's arguments, claimed that the
claimant's technology is not in their possession. Furthermore, the
respondent, in any case, "undertook not to use any of that technology
during the course of arbitration." The arbitral tribunal held, basing on
instance, whether a bank is willing to provide a security until the tribunal renders its
final award or whether it would be advisable to obtain a security in the form of
blocking by a party of a certain amount of money in the bank account jointly held by
the parties. See, generally, Karrer, Less Theory, 104.
116 In using such discretion, the circumstances of the case and previous actions of the
arbitrating parties may be taken into account.
117 ICC Interim Award 7692 of 1995, extracts published in 11(1) ICC Ct Int'l Arb 62-63.
There are several other published cases in which an undertaking given by a party,
by itself or along with other causes, was held sufficient reason for denying interim
measure applications. See, e.g., Fluor Corporation v. Iran, Case No. 333, Interim
Award No. ITM 62-333-1 (6 August 1986), reprinted in 11 Iran-US CTR 292,298-,
Avco Corporation v. Iran Aircraft Industries, Iran Helicopter Support and Renewal
Company, National Iranian Oil Company and Iran, Case No. 261, Order of 27
January 1984, cited in Case 261, Partial Award No. 377-261-3 (18 July 1988),
reprinted in 19 Iran-US CTR 200,201-202; United Technologies Int'l, Inc. v. Iran
etc., reprinted in 13 Iran-US CTR 254,258; and Vacuum Salt v. Ghana, Decision
No. 3,14 June 1993, reprinted in 4 ICSID Rep 323-324. In this last case, upon the
undertaking of Ghana that it would not deny Vacuum Salt's access to records, the
tribunal refrained from recommending the preservation of evidence as requested
by the Respondent but instead it embodied this undertaking into its decision by way
of noting its existence. Perhaps, that was because such indication would later
justify taking actions against the recalcitrant party.
251
the undertaking, that "there is no sufficient likelihood or danger" that
respondent would use the claimant's technology." Accordingly, the
request was denied.
4 Form of a Measure
Arbitral provisional measures may generally take the form of an

"' Such measures are also issued in the form of an award, "9
order.
decision, direction, "O 121 122
request, proposal, recommendation, or else.
118 Eighteen out of the seventy-two sets of rules surveyed provide for
order as the
form of a decision concerning provisional measures. See Annex. It is not clear
from the text of those rules whether a tribunal may grant the measure in any other
form, including an award. In regard of the Iran-US Claims Tribunal's practice,
Pellonpa6 / Caron indicates that the number of orders concerning interim
measures "seems at least double the number of awards." See Pellonpaa / Caron,
448, note 62.
119 Fourteen of those rules expressly permit the tribunal to issue orders as well as
awards in respect of interim measures. See Annex. The authority to grant
provisional measures in the form of an award may also be found under the laws of
some countries. See, e. g., England (Section 47(l) and 39 of the AA (permitting
the grant of a "provisional award"); France (Pluyette in ICC (ed. ), Conservatory
Measures, 88); India (Bhasin, 95); Scotland (Article 17(2) of Schedule 7 to the Law
Reform Act 1990 (Miscellaneous Provisions)); Switzerland (see Blessing,
Introduction, para. 867); and the U. S. (see infra Chapter V, Part 3.2.2). It is
argued, in this respect, that due to the scrutiny of an ICC award, the presumption
in ICC arbitration is to issue provisional measures in the form of an "order. " Final
Report on Awards, paras. 6 and 37.6; and Bernardini, 28. However, this Chapter
IV cites several ICC decisions on interim measures rendered in the form of award.
See also, e. g., C. H. Brower, "The Iran-United States Claims Tribunal", 224 RCADI
123,175 (1990-V).
120 See, Section 17 of the Arbitration Rules 1995 of thc; Perrnanent Court of
e.g.,
Arbitration of the Mauritius Chamber of Commerce and Industry.
121 See, e.g., Rule 39 of the ICSID Arbitration Rules; and Article 34 of the Rules of
International Arbitration of the Croatian Chamber of Commerce. The term
'recommendation' under these Rules should be read as 'order'. Indeed, an ICSID
tribunal very recently held, in an order:
While there is a semantic difference between the word 'recommend' as used in
Rule 39 and the word 'order' as used elsewhere in the [ICSID] Rules to describe
the Tribunal's ability to require a party to take a certain action, that difference is
more apparent than real. It should be noted that the Spanish text of that Rule
uses also the word 'dictacion'. The Tribunal does not believe that the parties to
the Convention meant to create a substantial difference in the effect of these
two words. The Tribunal's authority to rule on provisional measures is no less
binding than that of a final award. Accordingly, for the purpose of this Order, the
Tribunal deems the word 'recommend' to be of equivalent value as the word
-order'.
Maffezini v. The Kingdom of Spain, Procedural Order No. 2 (28 October 1999),
in XXVII YCA 13,18 (2002). But see Schreuer, Article 47, para.
extracts reprinted
28. The Maffezini tribunal's view is more in line with the view taken by the ICJ and
European Court Human Rights regarding provisional measures. In any
the of
252
Provisional measures could further be granted in the form of temporary
restraining orders. In this regard, it should be noted that the forms
other than award and order (including temporary restraining order)
123
generally have a moral force although there may be some sanctions
124
applicable where they are ignored It should also be noted that if the
.
applicable national law prohibits the grant of provisional measures,
such restriction is likely to prevent grant of an order or an award on
125
interim measures. However, the restriction should not, in any way,
prevent the grant of, for instance, a proposal regarding the measure
126
requested .
This Part initially examines the traditional forms under which a

provisional measure may be granted. an order or an award. It then
deals with decision on the form of the measure and interim protection of
rights in cases of extreme urgency after the appointment of arbitrators.
case, possibility of an ICSID tribunal's drawing adverse inferences if its

recommendation on an interim protection of rights is not complied with, and the
backing of the World Bank of the ICSID and the potential economic pressure that
may be exerted against a recalcitrant state may facilitate voluntary compliance
with such recommendation. See, e.g., Lew / Mistelis / Krbll, para. 23-29.
122 See, e. g., Article 23 of the Arbitration Rules 1996 of the Commercial Arbitration
and Mediation Centre for Americas (the "CAMCA"). This Article, however, does
not define what the term "else" refers to. In this regard, it is noteworthy that the
chairman, after consultation with its co -arbitrators may send a letter to the parties
indicating its provisional views regarding protection of parties' rights. Such letter
may facilitate interim protection of parties' rights. Craig / Park / Paulsson, ICC
Arbitration, 2000,463-64. In this regard, see also ICC Case No. 6445, extracts
published in Hascher, Procedural Decisions, 80-92. For examples to all of the
above categories of decisions, see generally Brower, 175, notes 178-181.
123The exception to this is a "recommendation" that may be granted under the ICSID
Convention and the ICSID Arbitration Rules. See Chapter IV, supra note 121.
124
See infra Chapter V, Part 1.
125 Indeed, a similar reference to applicable local law was made under the ICC
Arbitration Rules 1931. See infra Chapter 1, Part 1.2.1. The reference to local law
the Geneva Convention. In accordance with Article 1(1) of the
conformed with
Convention, law of the place of arbitration, in the absence of a party agreement,
governed the procedure.
126 See supra Chapter 11,Part 3.
25 33
4.1 Award or Order?
Although there are difficulties in defining the terms "award" and "order",
it is nonetheless safe to accept that an award aims to finally resolve
one or more of the issues in dispute and is binding whereas an order
aims to deal with "technical and procedural matters" and is "rendered
27
without any formality and reasoning j)l
The advantages and
.
disadvantages of one form to the other mainly are:
9 An award is formal whereas an order is not. The preparation of

an award takes longer than that of an order. To this end, in
some cases, for instance, in ICC arbitration, an award, unlike an
order, needs to be scrutinised by the ICC International Court of
128
Arbitration. The preparation time and, scrutiny of an award,
as the case may be, naturally have a certain delaying effect in

the issuance of the award.
* An order does not have a res judicata effect and revised at any
time whereas an award, in principle, has a resjudicata effect.
e Both an award and an order on provisional measures may be
enforceable under a state law generally where the place of

129
arbitration is in such state.
s An award may potentially be enforceable under the New York

Convention whereas an order is generally considered to be
130
not. Indeed,the reasonfor requestingan award is to enhance
13 1
the prospectof enforcement. However,it should be noted that
is
it not the tribunal's duty to evaluate, in case it decides to grant
an interim measure requested, whether the relief is actually
enforceable under the applicable laws or the New York
127 Lew / Mistelis / Kr6ll, para. 24-5. On the form "award" and "order", see, e. g., 1d.
paras. 24-3 24-34; Redfern / Hunter, paras. 8-01-8-03,8-32-8-42.
-
128 Article 27 of the ICC Arbitration Rules.
130 On this issue, there are arguments both in favour and against. See infra Chapter
V, Part 3.2.2.
131 On the issue of enforcement, see infra Chapter V, Part 3.2.2.
"54
132
Convention. "It is thus the applicant's ultimate responsibility
and risk to seek and obtain enforcement of an award granting
, 133
interim relief.
9 An order may be issued ex parte, whereas the grant of an ex

parte award may be troublesome because of due process
considerations on national and international levels, particularly
under Article V(l)(b) of the New York Convention.
The approach of national laws to the form under which a provisional
measure may be granted differs. Some laws are permissive for the
grant of the measure in the form of award whereas others are not. 134
There are also conflicting views as to whether a provisional measure
may be granted in the form of an award or an order. 135 One view is that
interim measures are not intended to have res judicata effect and that
they could be "revised at any time. " Thus, it is not appropriate to grant
them in the form of an award. 136 This view may also be supported with
the fact that, in some cases, the grant of an award takes some time due
to, for instance, scrutiny of an award. Because of this delay, it is
132 In this regard, the issue as to whether finality is a characteristic of an award needs
to be examined. See infra Chapter V, Part 3.2.2.
133 ICC Interlocutory Award 10596 of 2000 (unpublished).
134 American law (see, e. g., Sperry International Trade, Inc. v. Government of Israel,
532 F. Supp. 901 (S. D. N. Y. ), aff'd., 689 F. 2d 301 (2 Cir. 1982)) is an example to
permissive laws whereas Australian law is an example to non-permissive laws (see
Resort Condominiums International Inc. v. (1) Ray Bolwell and (2) Resort
Condominiums (Australasia) Pty. Ltd., excerpts published in XX YCA, 628-650
(1995) (Supreme Court of Queensland, 29 th October, 1993). Michael Pryles,
"Interlocutory Orders and Convention Awards: the Case of Resort Condominiums
v. Bolwelf', 10(4) Arb Int 385 (1994)). In this respect, see Chapter IV, supra note
115. It should also be noted that it may not be up to the arbitral tribunal to freely
determine the form. See, e. g., Braspetro Oil Services Company - Brasoil
(Cayman Islands) v. The Management and Implementation Authority of the Great
Man-Made River Project (Libya), extracts from the French original is published in
XXIVa YCA 296 (1999) (1 July 1999, Court of Appeal, Paris); Final Report on
Awards, para. 28.
135 There i's generally no objection for the grant of provisional measures in the other
forms.
136 See, e. g., Karrer, Less Theory, 109.
255
argued that decisions on provisional measures should normally take the
form of an order.137
The counter view, with which this author agrees, is that a tribunal
should be able to grant provisional measures in the form of award,
138
including partial or interim but not final award. Experienceconfirms
139
this view. However,this view does not exactly fit into the traditional
approach to awards. This is because finality of an award on provisional
measures has a temporal element and is, strictly speaking, not
intended to have a res judicata effect like 140
a final award. The
temporal element is that an award is final and binding for a certain
period of time: until it is amended, revoked or confirmed in the final
award.141 The acceptabilityof this approach is an issue for national
137Final Report on Awards, para. 26.

1313
This Chapter IV contains several partial, interim or interlocutory awards dealing
with provisional measures. The form of an award is generally considered as
interim (occasionally partial, preliminary, interim, interlocutory etc.). It should be
noted that "the terms 'interim' and 'partial' are virtually used interchangeably,
without any particular meaning being attributed to either expression Final
Report on Awards, para. 5. The statement was used to refer to ICC practice,
which, in this author's belief and experience, also reflects international commercial
arbitration practice. Even if the measure takes the form of an order it is suggested
that it should contain reasons. See, e.g., Article 23 of the ICC Arbitration Rules
1998. See Sigvard Jarvin, uAspectsof the Arbitral Proceedings" in: ICC (ed.), The
New 1998 ICC Rules of Arbitration, (ICC Publication No. 586) (Paris: ICC
Publishing 1997), 26,28 ('1998 ICC Rules"). This is mainly because if the reasons
uare understood, there is a better chance that they will be obeyed in the right spirit."
Karrer, Less Theory, 109. Further. in some states, orders of an arbitrator may be
enforceable. See infra Chapter V, Part 3.2.1. It may be useful to indicate the
reasons for enhancing the enforceability in those states.
139 See various awards cited in Chapter IV. This is despite the fact that most of
arbitral decisions on interim protection of rights are rendered in the form of order In
practice.
140 See Karrer, Less Theory, 109. Otherwise, an award is "generally final and binding
and has res judicata effect between the (arbitrating) parties, i.e., no claim can be
brought in respect of the same matter." Lew / Mistelis / Kroll, para. 24-1. For more
information on the concept of res judicata see, e.g., G. Richard Shell, "Res
Judicata and Collateral Estoppel Effects of Commercial Arbitration", 35 UCLA Law
Rev 623-675 (1988).
141For this reason, certain U.S. courts take the view that an award on provisional
measure deals with a separable issue (from the underlying issues) which is finally
resolved for a certain period of time. Thus such courts find no illegality or
impropriety regarding that award. See infra Chapter V, Part 3.2.2. This view is in
256
laws.142 A provisional measure in the form of an award is useful in
making arbitration more effective dispute resolution mechanism as such
form facilitates, to a great extent, enforcement of arbitral decisions
concerning interim protection of rights. Thus, an award concerning
interim protection of rights should, in this author's view, be
permissible.143
4.2 Decision on the Form
It should be noted that parties are generally free to choose the form of
a measure. They may specifically exclude or exclusively include any

form in their arbitration agreement. Arbitrators, unless otherwise
agreed, or specifically or exclusively requested by the parties, 144
generally have discretion to determine the form of the measure

145 Such discretion, for instance,
requested . seems to be given to ICC
line with the specific needs of arbitration world in regard of interim protection of
rights. Indeed, according to Caron,
[t]he substantive effect of an interim award may be cancelled by rendering of a
further interim award superceding the earlier interim relief. In such a case the
earlier relief is not revoked ab initio but rather the temporary period for which it
was to exist is drawn to a close. (Citations omitted. )
Caron, Interim Measures, 515. It should be noted that "supercession implicitly
recognizes that the earlier measures were binding for some time and that a failure
to observe those measures for that time would be a breach of the agreement to
arbitrate. " (Citations omitted). Id.
142 See Chapter IV, supra note 134.
143 See, in this regard Chapter IV, supra note 119 and infra Chapter V, Part 3.2.2. But
see, e.g., Karrer, Less Theory, 109.
144 See, e.g., Final Report on Awards, paras. 33 and 37.2. Where only one of the
parties requests an award on a provisional remedy, the Final Report on Awards
recommended that
the arbitrator must exercise his discretion, but bearing in mind that the
presumption is in favour of a single final award. Potential savings of time and
costs for the parties, the effective and efficient conduct of the arbitration and the
need to make every effort to ensure that an award is enforceable are the
primary factors to be taken into consideration by the arbitrator.
Id., paras. 34 and 37-3.
145 See Bernardini, 27; and Berger, International Economic Arbitration, 343 (arguing
that for ensuring "the necessary procedural flexibility", the determination of the
form should be left to the tribunal. ). But see Lew, Commentary, 28 (arguing that
'where the request is made for a specific form, then the tribunal should not use any
discretion. "). In order to avoid refusal of its request, a party may request both
order and award as alternative forms. See, e. g., ICC Final Award No. 9154 of
1998, extracts published in 11 (1) ICC Int'l Ct Arb Bull. 98-103 (2000). Rather than
refusal of its request, if it is made for a specific form, a party may prefer to have
257
146 In ICC arbitration practice, for example, in ICC case
arbitrators.
5804, the Claimant sought a provisional measure in the form of an
award. 147 However, the tribunal rendered the measure in the form of an
order. Similarly, in ICC case 7489, the tribunal found "no legal or
practical need to decide the issue by a formal award .048 Accordingly,

the tribunal issued an order. In two other cases, requests were made
either for an award or for an order but they are denied. Instead, the
measure was granted in the form of a recommendation 149 or a

150
proposal . Even though neither a recommendation nor a proposal
has a binding effect, the parties are likely to accept and implement such
interim protection measure in any other form. That is confirmed with the fact that
"[flrequently, parties are anxious to have the tribunal's order, whatever its form. "
Lew, Commentary, 28.
146 Final Report Jarvin, Arbitral Proceedings, 43; and Yves
on Awards, para. 37.3.
Derains / Eric A. Schwartz, A Guide to the New ICC Rules of Arbitration (The
Hague / London / Boston- Kluwer 1998), 275. The last two authors indicate:
The ICC was reluctant to specify in Article 23(l) [of the 1998 ICC Arbitration
Rules] what form orders of interim or conservatory relief ought to take. Article
23(l), thus, leaves it up to the arbitrators to determine whether such a decision
should take the form of an order, with reasons, or an award, a matter that will
often depend upon the nature of the measure and the laws of the place of
arbitration or the country where the measure is to be carried out. (Citation
omitted. )
Derains / Schwartz, 275.
(1993).
(1997), (1993) Clunet 1078; and Hascher, Procedural Decisions, 48.
149 In ICC case 5887, the claimant and the respondents entered into a contract for
realisation of a brewery. A dispute arose on a payment of a contractual obligation.
The claimant pleaded for a payment of the allegedly outstanding amount and the
by the claimant in favour of the
release of performance guarantee provided
While arbitration proceedings had been continued, the respondents
respondents.
called the bank guarantee. Upon this event, the claimant.,
the Tribunal to order the defendants to abstain from any action which
asked
de facto change unilaterally the Terms of Reference and the course of
might
in particular, to abstain from calling the bank
arbitration procedures and,
guarantees pending the arbitration proceedings.
In its reply the Tribunal recommended the defendants to formally renounce

... the proceedings. (Emphasis
from calling the bank guarantee pending arbitration
added. )
See ICC Final Award 5887 of 1991 (unpublished). See Yesilirmak, Interim
Measures, 31, note 6.
150 See ICC Partial Award 3896 of 1982, extracts published in (1983) Clunet 914; X
YCA 47(1985), and Jarvin / Derains, 161.
258
decision. 151 These forms may particularly be
useful where the tribunal
is not authorised to grant provisional measures
under applicable
152
laws.
What criteria should a tribunal consider in exercising its discretion

as to
the form? The criteria recommended for ICC arbitration
could, in this
author's view, provide useful guidance in this respect: "[p]otential
savings of time and costs for the parties, the effective and efficient
conduct of the arbitration and the need to make every effort to ensure
that an award is enforceable.... 3153Among all, apparently, the parties'
wishes should be taken into account to a possible extent. In addition, in
making the decision between award and order, the tribunal should take
into account the advantages and disadvantages of one form to the
154
other. In particular, the form of "award" may be preferred where
enforcement of the decision (particularly, international enforcement) is
necessary and the decision in this form can be awaited. 155 In any case,
151 In this
connection, see Craig / Park / Paulsson, ICC Arbitration, 418; and ICC
Award No. 3896, extracts published in (1983) Clunet 914; X YCA 47 (1985), and
Jarvin / Derains, 161. See also generally infra Chapter V, note 2. It should, in this
regard, be noted that the ICC Court of International Arbitration "has regularly
approved" awards that contain recommendations or proposals. Schwartz,
Provisional Measures, 63. A decision in the form of "recommendation" in ICSID
arbitration does indeed have a binding effect. See Chapter IV, supra note 121 and
accompanying text.
152 See Chapter 11,Part 3.
supra
153 Final Report on Awards,
para. 37.3
154 See Chapter IV, supra Part 4.1.
155 On the issue of enforcement,
see Chapter IV, supra note 119 and infra Chapter V,
Part 3. In this regard, it is noteworthy that Article 26 of the UNCITRAL Arbitration
Rules empowers an arbitrator to grant an "interim award". This provision was
suggested in the discussion of the Preliminary Draft about the Rules in the Fifth
International Arbitration Congress, New Delhi, India, in 1975. The Vth International
Arbitration Congress - Proceedings (New Delhi- Printaid 1975), D-99. Upon such
suggestion, the provision on interim measures (Article 22) was clarified so as to
provide "[s]uch interim measures may be established in the form of an interim
award. " See LIN Doc A/CN. 9/97/Add. 2, reprinted in VI UNCITRAL Yearbook, 182,
184 (1975). This clarification contained in the revised draft (Article 23). See UN
Doc A/CN. 9/112 reprinted in VII UNCITRAL Yearbook 157 (1976). The
UNCITRAL Secretariat's comment on Article 23 is noteworthy: "In order to facilitate
the enforcement of interim measures taken by the arbitrators [this Article]
...
authorizes the arbitrators to establish these measures in the form of interim
awards. " See Van Hof, 176.
259
the choice of an arbitral tribunal on the form is subject to the
applicable
law.
4.3 Provisional Measures in Case of Extreme Urgency After the

Appointment of Arbitrators
After the appointment of arbitrators, in cases of urgency (e.
g. where
there is a need for an ex parte measure), an arbitrator may
issue an
order and then if necessary incorporate it into an award. 156 The
benefits of this approach are the satisfaction of speed and
enforceability concerns and its being "a strong reminder to the
disobedient 057
to comply with the tribunal's previous decision
.
Temporary restraining measures could also serve the similar purpose.
The Iran US Claims Tribunal uses these measures. The Tribunal
adopted the concept of "temporary restraining measures" as

[a]nalogous to the temporary restraining order of American
procedural law, pending further determination of a request for
...
interim measures. ' 5
The temporary restraining measures may be used either because a
member of tribunal may not be reached in time

or because the panel wished to reserve its final decision on the
interim measures request until after it received comments from the
party against whom interim measures were sought. In this way
temporary restraining measures reduce the urgency of the
tribunal's rendering its final decision on the interim measures
156 See,
e. g., ICC Interim Award 8879 of 1998, extracts published in 11 (1) ICC Int'l Ct
Arb Bull 84 (2000).
157 Lew, Commentary, 28.
158
Brower, 180. Brower further indicates-
In various municipal systems "interlocutory relief is granted within weeks, days
or even hours of the threatened detriment and this is anticipated in the
procedure by which it is granted in most jurisdictions". ... Such speed of
deliberation cannot be assumed in international claims litigation, however.
Concurring Opinion of Charles N. Brower to Component Builders, Inc. et al. v. Iran,
Case No. 395, Order (10 January 1985), reprinted in 8 Iran-US CTR 3,6
("Concurrent Opinion of Charles Brower"). Judge Brower cited to Jerome Elkind,
Interim Protection, A Functional Approach (The Hague.- The Martinus Nijhoff 1981),
191. It is stated, in this respect, that "only where there is a specific and compelling
need will the Tribunal grant a request for interim measures prior to receiving the
views of the opposing party. " Brower / Brueschke, 224.
260
request, and the159time necessary to fully and properly consider the
request gained . (Citations omitted.)
On the source of the power to grant temporary restraining

measures
under the practice of the Iran-US Claims Tribunal, it is argued that such
power is either "inherent" or that Article 26(l) of the UNCITRAL
Arbitration Rules,160by implication, "encompasses a power to order
temporary restraints. ,16
1 This approach should be taken as example for
arbitrations taking place under other arbitration rules. The power to
issue a temporary restraining measure may be given to or exercised by
the chairman of an arbitral tribunal if the applicable laws and rules
permit it or, indeed, do not prohibit it.
The temporary restraining measures have, in the practice of the Iran-

US Claims Tribunal, taken the form of either orders or interim
awards. 162 However, such measures in arbitration should not be
granted in the form of an award as such form may be used after

hearing the opponent. The requirements to grant temporary restraining
measures are more or less similar to those for granting any provisional
measure. These are the existence of prima facie
requirements
jurisdiction, urgency, and threat to prejudice the rights in dispute. 163 On
the determination of the prima facie jurisdiction, the claimant should
159 Caron, Interim Measures, 482-483. See also Pellonp66 / Caron, 447, and The
Government of the United States of America on behalf and for the benefit of
Teledyne Industries Incorporated v. Iran, Case No. 10812, Order (8 September
1983), reprinted in 3 Iran-US CTR 336-337 (holding that urgency is an essential
element on the grant of the order to stay of the parallel court proceedings pending
the Tribunal's decision on the basis of the parties' views).
160 See, alternatively, Article 26 of the Iran-US Claims Tribunal's Rules.
161 Pellonp66 / Caron, 448; and Caron, Interim Measures, 484.
162 For examples on each category, see, e. g., Caron, Interim Measures, 483, note 52.
163 See in this respect, Brower, 181; and also Concurring Opinion of Charles Brower,
7-8. See also Shipside Packing Co. v. Iran, Interim Award No. ITM 27-11875-1 (6
September 1983), reprinted in 3 Iran-US CTR 331 (grant of a measure of
temporary restraint upon threat to sell goods forming the subject matter). Although
urgency is not expressly mentioned in any of the awards, it is, in principle, an
essential element for granting any provisional measure. On the issue of urgency,
see Chapter IV, supra Part 3.1.3.
"() I
164
take advantage of the benefit of doubt. For the satisfaction of the
other conditions, Caron suggests that the benefit of doubt
should be
used in favour of granting it; for instance, "temporary
restraining
measures may be granted unless there is a manifest lack
065
of
preju ice.
Both parties do not need to be heard for granting temporary

restraining
measures as interpartes proceedings would undermine the purpose of
employing such measures. 166 However, the respondent needs to be
167
heard in a subsequent hearing.
5 Duration of Provisional Measure
An arbitral jurisdiction has a temporal element. An arbitral tribunal is

empowered to issue a measure, after its formation, upon the
, 168
commencement of proceedings, "during the course of
069 070
proceedings, or "at any stage of proceedings. The tribunal has
no authority to issue a provisional measure once it becomes functus
164 Pellonp66 / Caron, 448*1

and Caron, Interim Measures, 484. See also Brower
Brueschke, 225-226.
165
Caron, Interim Measures, 484.
166
See id.
167 See Chapter IV, infra Part 8.
168 See, e. g., Section 21
of the Arbitration Rules of the Court of Arbitration of the
Slovak Chamber of Commerce and Industry.
169 See, e. g., Article 31
of the Arbitration Rules 1999 of the Arbitration Institute of the
SCC.
170 See,
e. g., Article 38 of the Arbitration Rules 1998 of the NAI. In fact, a request for
a provisional measure could, in principle, be made at any time before the final
award is rendered. That is true regardless of the fact that whether or not the
resolution of that measure is contained in the terms of reference. At the post-
award stage, a provisional measure may be obtained, if necessary, from the
competent national court prior to the recognition or enforcement of the award. In
this regard, it should be noted that Article VI of the New York Convention provides
for stay of an arbitral award's execution. According to that Article, if a request for
setting aside or suspension of an arbitral award is made to a judicial authority, this
authority "may, if it considers it proper, adjourn the decision on the enforcement of
the award" and may also, upon application, order the party in whose favour the
enforcement is stayed to provide "suitable security. " The stay of enforcement, at
the post-award stage, may also be requested under Article 50(2) of the ICSID
Convention where a request is made for interpretation, revision or annulment of an
arbitral award. See Articles, 50(2), 51(4), and 52(5) of the ICSID Convention.
262
officio. The duration of a measure should normally be that of the
171
arbitral proceedings. The effect of an interim measure of protection
could possibly extend further to cover uncertainty during the time when
deadline out for filing an action to set aside the final award.172
a runs
6 Revision Reconsideration Modification or Revocation
Provisional measures, as the term suggests, are intended to have a

provisional effect pending final resolution of the case in dispute. These
measures are not, in principle, intended to have a resjudicata effect in

the conventional sense. 17' The provisional effect of the measure may
be finalised or revoked either prior to or in the final award. The final
award could contain a ruling reiterating the earlier provisional measure
or amending or revoking such measure. 174 However, even prior to the
issuance of the final award, under changed circumstances or in
accordance with new facts, a need may arise to amend, revise,
reconsider, modify, or revoke the provisional measure previously
granted. In such cases, the form of the measure becomes the focal
point for determining whether such revision or revocation could be
made. If the decision takes the form of an order or any other form but
171In this respect, see Rule 39(4) of the ICSID Arbitration Rules. Note D to the 1968
ICSID Arbitration Rules also provided: "[tlhe measures recommended must be
'provisional' in character and be appropriate in nature, extent and duration to the
risk existing for the rights to be preserved." See 1 ICSID Rep 100. These Notes
accompany to the 1968 Rules and they aim at providing explanations with regard
to the Rules but they, themselves, do not have a legally binding force. However,
ICSID tribunals may take these Notes into account. See, e.g., Lalive, 133, note 2.
See also Bucher / Tschanz, para. 178 (stating that a provisional measure *ceases
to be effective" upon the issuance of the final award).
172Karrer, Less Theory, 102.
173Id., 109. See also Chapter IV, supra note 140 and accompanying text.
174The submission that an arbitral tribunal could have a physiological difficulty in
amending or revoking its earlier decision for an interim measure of protection is
misconceived. See Karrer, Less Theory, 109. The tribunal, like a state court,
should have and, indeed, has, no difficulty in recognising the fact that its earlier
decision on the measure given without full examination on the merits (basing on
limited facts and under time pressure) and, thus, such examination could result in
a further decision or a final award substantially different from the earlier decision.
Id. See also ICC Interim Conservatory Award 10021 of 1999 where the tribunal
263
an award,there is no objectionfor reconsiderationor modificationof the
decision. However,if the measure issued in the form of an award,then
modificationor reconsiderationbecomes troublesome. 175
As to the revision or revocation of orders or other forms of decisions

(but awards) on provisional measures, certain arbitration rules give
express permission for such revision or revocation. "" A number of
tribunals exercised their authority to either revise or revoke their orders
on interim measures of protection or accepted the possibility of such
revision or revocation. For instance, in Iran v. United States, Cases A-4
and A-15, the Iran-US Claims Tribunal denied, in an order, the request
for preventing the auction of the goods, which constitute a part of the
the dispute. 177 In its order, the Tribunal stated :178
subject matter of
expressly indicated that the decision may be different in amended or revoked the
final award (unpublished).
175Caron, Interim Measures, 513-514.
176See Article 19 of the Rules for International Arbitration 1994 of the AIA, and Rule
39 of the Arbitration Rules of the ICSID, and Article 47 of the ICSID Additional
Facility Rules. It is further worthwhile to note Rule 7(111)of the Arbitration Rules
1997 of the SIAC. This Rule provides that 0[a]norder for provisional relief may be
confirmed, varied or revoked in whole or in part by the arbitrator who made it or
any other arbitrator who may subsequently have jurisdiction over the dispute to
which it relates." Similarly, decisions of the ICJ on provisional measures could be
modified or revoked where "some changes in the situation justifies" so. Article
76(l) of the ICJ Rules. In this regard, see also Sino-Belgian Treaty case (Belgium
v. China), 1927 PCIJ Reports, Ser. A, No. 8,9 (Order of 15 February 1927) (where
the tribunal revoked its earlier order). The revision and revocation were expressly
permitted under the ICC Arbitration Rules 1923. See supra Chapter 1,Part 1.2.1.
177Cases Nos. A-4 and A-15, Order (18 January 1984), reprinted in 5 Iran-US CTR
112-114. See also Order of 1999 in AAA Case No. 507181-0014299 (preserving,
where a request for interim measure is denied, the right to re-present the request
in case "a substantial change of facts may cause irreparable harm to" the moving
party's business.) (unpublished). Similarly, in accordance with Rule 39(3) of the
ICSID Arbitration Rules, an ICSID tribunal "may at any time modify or revoke its
recommendation." Such modification or revocation could generally be done where
there are new circumstances justifying them. In this regard, Schreuer states that
0[i]f the circumstances requiring the provisional measures no longer exist, the
Tribunal is under obligation to revoke them". Schreuer, Article 47,231, para. 48.
In this regard, see also supra Chapter 11,note 274. Apparently, the determination
of the existence or non-existence of the circumstances is within the sole discretion
of the Tribunal.
1'8 Cases Nos. A-4 and A-15, Order (18 January 1984), reprinted in 5 Iran-US CTR
114. However, one should keep in mind that this case was between two states.
264
The Tribunal holds that the circumstances,
as they now present
themselves to the Tribunal, are not
such as to require the exercise
of its power to order the requested interim measure
of protection.
The Tribunal notes that this decision
not to exercise its power does
not prevent the Party which has made the request from
making a
fresh request in the same case based
on new facts,
Indeed, within thirteen days from the

above decision, the claimant
made another request based on the new facts. The Tribunal
accepted
that the items of the property are irreplaceable,
as a result, granted the
179
measure requested
.
With respect to revision or revocation of an

award on a provisional
measure, it should be noted that an ordinary award normally has a res
judicata effect. 180 Accordingly, its revocation and revision
could only be
done under very restricted circumstances. 181 However, an
award for
interim protection of rights may need to be revised or revoked under the
changed circumstances, in accordance with new facts, or if the term of

it is expired or perhaps in the final award. 182 As indicated above,
although the reconciliation of such revision or revocation with res

judicata effect of an award is a matter for the applicable law, it is
beneficial to have the form of an award on interim protection of rights
within armoury of an arbitral tribunal. 183 In such cases, where a

provisional measure previously issued is revised or revoked due to, for
179 Interlocutory Award No. ITL 33-A-4/A-15(111)-2, (1 February 1984),

reprinted in 5
Iran-US CTR 131-133.
180 See Chapter IV, supra note 135-136 and
accompanying text.
181 An award is generally corrected in such limited
circumstances, e. g. where there is
clerical, typographical or computation errors or where there is a need to interpreted
specific point or part of the award. On the issue of correction or interpretation, see,
e. g., Article 30 of the AAA-ICDR Arbitration Rules; Article 29 of the ICC Arbitration
Rules; Article 27 of the LCIA Arbitration Rules, Articles 35-37 of the UNCITRAL
Arbitration Rules; Article 66 of the WIPO Arbitration Rules; and Article 33 of the
Model Law.
182 See Caron, Interim Measures, 515. The circumstances that has already
considered in full should not be a cause for reconsideration or revocation unless,
for instance, the earlier measure is granted ex parte. Id. On ex parte measures,
see Chapter IV, infra Part 8.
183 See Chapter IV, supra notes 142-143,134 and accompanying text.
265
example, changed circumstances, the effect of such measure, in part or
in full, should cease to exist from the point of revision or revocation.184
To this end, it should be noted that the arbitral tribunal should, within
the text of the new measure or perhaps, most probably, in the final
award, take into consideration any adverse effect of the measure
revised or revoked. That is to say damages could be granted possibly
185
out of a security.
The possibility of revision or revocation of an award on provisional
measures is confirmed in arbitral practice. For instance, in Behring

International, Inc. v. Iranian Air Force, the Iran-US Claims Tribunal,
after issuing an award on security for costs of the measure issued,

retained the jurisdiction to "revise or supplement" its decision. 186
Similarly, in ICC case 10021, the tribunal ruled, in an interim

conservatory award, that the award should stay in force for a certain
period of time unless, inter alia, the final award was issued prior to the
187
end of that period . The interim conservatory award was based on
the tribunal's assumption that the final award would be rendered within
that period of time. However, the tribunal could not render its award
within such period. Upon the claimant's request, the tribunal rendered
a partial award in which it was held that the award on conservatory
to be in force for further period of time. 188
measures was remained a
1134
See Chapter IV, supra note 141.
185This is, indeed, one of the reasons justifying the grant of a security for damages.
186 Case No. 382, Interim Award No. ITM 46-382-3 (22 February 1985), reprinted in 8
Iran-US CTR 44,48. Similarly, in Fluor Corporation, after denying the request for a
provisional measure in an interim award, the Tribunal held that such denial "is
without prejudice to the Respondent renewing its request in the event of change
... Award
in the circumstances. " Fluor Corporation v. Iran, Case No. 333, Interim
... 1986), in 11 Iran-US CTR 296,298. See
No. ITM 62-333-1 (6 August reprinted
Company Iran, Case No. 222, Interim Award No. ITM 38-222-1 (25
also Boeing v.
May 1984), reprinted in 6 Iran-US CTR 43,46.
187 Interim Conservatory Award 10021 of 1999 (unpublished). On this award, see
Chapter IV, infra note 197 and accompanying text.
266
The tribunal facilitated this extension by specifically amending in the
partial award the relevant terms of the interim conservatory award.
7 Types of a Measure
Unlike laws of a certain small number of states, 189arbitration rules do
not generally clarify the types of provisional measures that could be

granted by arbitrators. 190 Indeed, eighteen out of the seventy-two rules
surveyed empower tribunals to take "any" or "all" appropriate interim
measures. 191 The reference to "any" or "all" provisional measures gives
a wide discretion to arbitrators in determining the appropriate
192
measure. The benefit of discretionis the ability of arbitratorsto issue
", 9 See, e. g., Sections 38 & 39 of the EAA 1996;

and Section 2GB of the Hong Kong
AO.
190 For an exception, see, e. g., Rule 25 of the Arbitration Rules 1997
of the SIAC. For
a long period of time, arbitration rules referred to measures aimed at protection of
goods / merchandise in question. The reference was related to the fact that those
rules were prepared for resolving disputes in relation to sale of goods transactions.
See, generally, supra Chapter 1. It is noteworthy, in this regard, that arbitrating
parties can determine the measures that would be granted by the arbitral tribunal in
their tailor-made arbitration rules although such express determination rarely
occurs.
191 See Annex. Some of the examples given, in this respect, are preservation of
goods or property (by ordering that the goods be deposited with a third person or
that perishable goods be sold), preserving evidence, appointment of an expert for
a survey, injunctive relief, preventing dissipation of assets, security for costs, and
security for payment. See, e. g., Article 7(8) of the Arbitration Rules 2000 of the
CIA; Article 28 of the Arbitration Rules 1993 of the Court of Arbitration at the
Bulgarian Chamber of Commerce, and Article 8(2) of the Rules of Arbitration and
Appeal of the GAFTA. Article 26 of the UNCITRAL Arbitration Rules refers to the
conservation of goods, ordering their deposit with a third person or the sale of
perishable goods, which are only examples. See, in this regard, e. g., Sanders,
Commentary, 196; Baker / Davis, 133; and E-Systems, Inc. v Iran, Case No. 388,
Interim Award No. ITM 13-388-FT (4 February 1983), reprinted in 2 Iran-US CTR
51,60. Some more examples could be added: an arbitral tribunal
may, instead of ordering the goods to be deposited with a third party, order them
transferred to a more appropriate storing facility or even take temporary control
over them itself. The possibility of utilizing third party depositories is not
restricted to "goods; " funds (represented, e. g., by a letter of credit) may be
placed to in escrow as an interim measure. (Citations omitted)
Pellonp66 / Caron, 444. With respect to types of arbitral provisional measures
in ICC Lew, Commentary, 29. In
granted, for instance, arbitration practice, see
to collect evidence. See
addition, arbitral tribunals are generally empowered
Chapter IV, infra note 202 and accompanying text.
192 See, in this respect, Lew / Mistelis / Kr611,para. 23-3 (indicating that "[w]hat interim
in international commercial arbitration is determined
measures are appropriate
according to the specific facts of each dispute and the arbitrators' subjective
26 7
flexible measures that could never be granted by a court operating
under the constraints of a national law.193 Having such wide discretion,
the tribunal may order any measure available under lex arbitri, lex
causae, or lex executionis (law of the forum where the measure is likely
to be enforced). However, the tribunal is not generally restricted with
the types of measures available to a judge. The tribunal may issue any
measure that is usually granted in international arbitration practice. In
sum, an arbitral tribunal's armoury includes variety of provisional
measures and the tribunal is much more flexible in choosing the most
appropriate kind of measure than a state judge.
Certain restrictions may, however, be imposed on the tribunal's

discretion in respect of types of measures.In this regard, mandatory
rules of the applicable law may need to be observed. 194 To confirm
perception of the risks involved. "). In using their wide discretion, arbitrators
occasionally refer to procedural law of the seat of arbitration (as the law applicable
to arbitration) in practice. See ICC Second Interim Award 7544 of 1996, extracts
published in 11 (1) ICC Int'l Ct Arb Bull 56-60 (2000); and ICC Interim Awards 8670
of 1995 and 1996 (unpublished) (in both cases the arbitral tribunals mainly applied
the principles of the law of the place of arbitration in reaching the conclusion that
security for payment was available under the ICC Arbitration Rules 1988 despite
the fact that the Rules were thought not to regulate this kind of security). See also,
for the extracts from the decision of the arbitral tribunal in Sperry International,
Sperry International Trade, Inc. v. Israel, 689 F2d 301 (2d Cir. 1982). It should be
noted that arbitrators should not restrict themselves with the measures available at
the seat of arbitration provided that the measure is intended to have effect at the
seat. The seat is often a neutral place in international commercial arbitration.
Arbitrating parties and the subject matter may have no connecting element with the
seat. Karrer, Less Theory, 109. Further, even if the measure is intended to have
effect at the seat and elsewhere, it should be kept in mind that measures not
available in the form granted under the local law may still be enforceable in some
Germany with some adaptations. Id. See also infra Chapter V,
countries, e. g.,
Part 3.2.1; and Berger, International Economic Arbitration, 339 (stating that "the
limited to the remedies known in the procedural law of the
arbitrators are not
country of the seat. ").
193 See, in this regard, Craig / Park / Paulsson, ICC Arbitration 2000,462-63 (stating
that an arbitral tribunal has "an obligation to try to find an equitable and
solution to prevent irreparable and
commercially practicable procedural
unnecessary injury to the parties.").
194 See, Lew, Commentary, 29. The observation of, for instance, the lex arbitri is
for the measures' validity (particularly if it is an award)
necessary upholding
(if known) is important if the enforcement of the
whereas that of the lex executionis
measure will be sought.
268
this, it should be noted that arbitral tribunals would not grant measures
that are beyond their powers due mainly to consensual nature of
195
arbitration. For instance, tribunals may deny requests for a Mareva-
196 197 98
type injunction, an attachment, or a post award attachment'
.
Further restrictions may arise from the text of the rules incorporated
in
their agreement by contracting parties. For instance, Article 26 of the
UNCITRAL Arbitration Rules restricts the type of measures that may be
granted to "the subject-matter in dispute. "199 The Model Law too
195Also because arbitrators do not wish to be in

conflict with lex arbitri or law of place
of enforcement. That is to say that where those laws empower arbitrators to grant,
for instance, measures against third parties or measures that intrinsically require
the use of coercive powers, arbitrators are likely to grant those measures. But see
Karrer, Less Theory, 106. He argues that whether or not an arbitrator can grant,
for instance a Mareva injunction is a matter of comity. Id. But see supra Chapter
11,note 100.
196 ICC Interim Award 6251 of 1990 (unpublished) (holding that the tribunal does
not
have the authority to issue a Mareva injunction.). Indeed, it is stated that Mareva
or Anton Piller relief requires the use of draconian powers which "are best left to be
applied" by judiciary. 1996 DAC Report, para. 201. But see Lew / Mistelis / Krbll,
paras. 23-47 - 23-51. Apparently, the reason for not equipping arbitrators with
such powers is more political than philosophical. See Karrer, Less Theory, 106.
197 ICC Partial Award 10021 of 2000 (unpublished) (finding "it inappropriate to grant
requests of attachment where the power of national courts would be a
prerequisite. "). See, e.g., Berger, International Economic Arbitration, 341
(attachment, as a coercive remedy, is reserved to jurisdiction of judicial
authorities. ). See also Article 1696(l) of the Belgian Judicial Code.
198 ICC Final Award 7828 of 1995 (unpublished) (holding that "[i]t exceeds the
arbitrator's competence to subject the Defendant to attachment if he fails to pay
the ordered amount within the period of two weeks. ")
199 Further, several of the rules surveyed contain similar or other kind of restrictions.
See, e.g., Article 21 of the AAA-ICDR Arbitration Rules ("including injunctive relief
and measures for the protection or preservation of property. "); Article 35 of the
Securities Arbitration Rules 1993 of the AAA ("including measures for conservation
of property, without prejudice to the rights of the parties or to the final
determination of the dispute".); Article 10(2) of the Arbitration Rules 1995 of the
AFMA ("[s]uch interim measures may include but not need to be limited to
measures for the conservation of the rights, funds, goods or materials forming the
subject matter in dispute; ordering deposit of disputed rights, funds, goods or
materials with a third person or organization; or the freezing of prints or other
motion picture materials to prevent further exploitation or utilization of a picture or
other materials during the pendency of the proceedings. "); Article 52 of the
Arbitration Rules 1986 of the Center for Conciliation and Arbitration of the
Chamber of Commerce, Industry and Agriculture of Panama ("including measures
for the preservation of the goods forming the subject matter in dispute, such as
ordering that the goods be deposited with a third person or that perishable goods
be sold"); Article 34 of the Rules of International Arbitration 1992 the Croatian
Chamber of Commerce ("including measures for the conservation of the goods
forming the subject matter in dispute, such as ordering their deposit with a third
269
contains almost identical restriction: an interim measure needs to be
related to the "subject matter of the dispute." These limitations should
generally be interpreted broadly: the restriction should be related to the
subject matter of the rights in dispute.200 In any case, the tribunal's
jurisdiction is limited to the parties involved and the remedy that it could
201
grant in the final award
.
This part examines the types of measures regularly seen in arbitral

practice: measures concerning preservation of evidence, injunctions,
security for payment, security for costs, and provisional payment.
person or the sale of perishable goods". ); Rule 13 of the Non-administered

Arbitration of International Disputes 1992 of the CPR Institute for Dispute
Resolution ("including measures for the preservation of assets, the conservation of
goods or the sale of perishable goods". ); Article 27 of the Arbitration Rules of the
European Development Fund ("including measures for the conservation,
preservation or safe-custody of the goods forming the subject matter in dispute,
such as ordering their deposit with a third person or the sale of perishable good". );
Article 27 of the Arbitration Rules 1994 of the Geneva Chamber of Commerce (the
"GCC") Commercial Arbitration Centre (including the measures for preservation of
the contentious goods, such as ordering the deposit of the goods with third parties
or the sale of the perishable goods with third parties or the sale of the perishable
items thereof in compliance with the procedural rules in the country where the
interim measure is adopted". ); and Article 46 of the WIPO Arbitration Rules 1994
("including injunctions and measures for the conservation of goods which form part
of the subject matter in dispute, such as order for their deposit with a third person
or for the sale of perishable goods". ). See also Article 7(11) of the Arbitration
Rules 2000 of the CIA; Articles 40 of the Arbitration Rules 1983 of the Korean
Commercial Arbitration Board; Rule 25 of the Arbitration Rules 1997 of the SIAC;
and Articles 27 of the UNECE Arbitration Rules 1966.
200 See supra Chapter 11,note 113. However, It is submitted that whether a tribunal
operating under the above rules or the Model Law could grant a measure aim at
preserving the status quo is "doubtful", and security for claim. Redfern / Hunter,
para. 7-26. Such argument could not be made in regard of the restriction
Article 25(l)(c) the LCIA Arbitration Rules. The
contained, for example, under of
tribunal is, under these Rules, empowered to order "any relief which the [a]rbitral
[t]ribunal would have power to grant in an award See also Charles
Construction Company v. Derderian, 586 N. E. 2d 992 (Mass. 1992) (denying an
has the to a security for claim where the
argument that an arbitrator power grant
empowered arbitrators with the power to grant interim relief
arbitration agreement
to safeguard the property that is the subject matter of the arbitration. ).
201 See, e. g., Section 39(l) of the EAA 1996.
270
7.1 Measures Concerning Preservation of Evidence
Preservation of evidence on an interim basis is generally sought where

there is a risk that the evidence will be harmed or perished, if an urgent
measure is not taken. The aim for such preservation is to facilitate
proper conduct of arbitration. The arbitral power to preserve evidence
is recognised under nearly all arbitration rules and laws containing a
202
provision on interim measures. Such power is exercised with no
203
trouble in arbitral practice.
7.2 Injunctions
The term "injunction" refers to asking a person to do or refrain from

doing something. In a broad sense, many arbitral decisions are
injunctions. Experience demonstrates that arbitrators grant variety of
injunctions on, e. g. transfer of goods to another place, sale of goods or
stay of the sale, supply of goods, establishing an escrow account to
202 In addition, institutional or ad hoc arbitration rules or national laws generally deal
with collection of evidence. For instance, under Article 20(l) of the ICC Arbitration
Rules, an arbitral tribunal is empowered to establish the facts by all appropriate
means. The similar powers are entrusted to an arbitral tribunal in accordance with,
e.g., Article 19(3) of the AAA-ICDR Arbitration Rules; Article 23 of the Arbitration
Rules 1994 of the CIETAC- Rule 4 of the Rules of Arbitration and Appeal 1997 of
the FOSFA; Article 43 oi the ICSID Convention and Rule 34 of the ICSID
Arbitration Rules; Article 3 of the International Bar Association's 1999 Rules of
Evidence; Article 20 of the ICC Arbitration Rules; Article 22(1)(d)-(e) of the LCIA
Arbitration Rules; and Article 24(3) of the UNCITRAL Arbitration Rules. The
protection of evidence on an interim basis could be done either by the above
provisions or through powers entrusted to arbitrators under the relevant rules or
laws for interim protection of rights. The power regarding the collection of
evidence is generally used - where there is no urgent need of protection of
evidence - for simply establishment of the case in dispute. The benefit of relying
on this power is that it is more likely than not that court assistance could be sought
for collection of evidence. See, e.g., Article 38(4) of the EAA 1996; Article 27 of
the Model Law; Articles 184(2) and 185 of the SPIL; and Section 7 of the U. S.
Federal AA 1925. It should, however, be noted that an arbitral tribunal, in principle,
ought to be free to rely on whatever power it thinks effective to protect the evidence
in peril.
203 See, e.g., Behring International, Inc. v. Iranian Air Force, Case No. 382, Decision
(19 December 1983), reprinted in 4 Iran-US CTR 89 (appointing an expert for
determining the status of the goods that were deteriorating. ); and AGIP v. Congo,
cited in Award, 30 November 1979,1 ICSID Rep 311 (recommending the
collection of all books and documents that might be lost.). But see, e. g., Vacuum
27 1
hold proceeds of a letter of credit, preserving or changing the status
204
quo, and anti suit injunctions. An injunction may be coupled with a
fine. To illustrate the arbitral case law, for instance, in Behring
205
International, Inc. v. Iranian Air Force, upon the request of transfer of
goods to another warehouse due to possibility of deterioration, the Iran
US Claims Tribunal held, inter alia, that
the Respondents' property must be removed from [the claimant's
warehouse facility] ... in order to prevent unnecessary damage
and/or deterioration. The conditions under which the goods are
presently stored are inadequate to conserve and protect them and
irreparable prejudice to Respondents' asserted rights may result if
they are not transferred to a more appropriate facility 206 (Citation
omitted. )
In addition, in two cases, the Iran-US Claims Tribunal granted the

207
request for sale of the goods in dispute though, for example, in two
,
other cases, it denied similar requests by mainly relying on the
respondents' undertakiIngs.208 Similarly, with respect to the stay of sale
Salt v. Ghana (denying the request for preservation of evidence because of the
respondent's undertaking. ).
204 The
preservation of status quo may sometimes be vital as in certain cases an
award of damages cannot fully remedy the loss of a party. For instance, damage
to reputation, loss of business opportunities and similar heads of claim, which are
real enough but difficult to prove and to quantify ... " may be avoided through
provisional measures. Redfern / Hunter, para. 7-25.
205 Case No. 382, Interim and Interlocutory Award No. ITM/ITL 52-382-3 (21 June
1985), reprinted in 8 Iran-US CTR 238. See also, e.g., Iran v. The United States of
America, Case A-15, Dec. No. Dec 52-A/15-FT (24 November 1986), reprinted in
13 Iran-US CTR 173-175.
206 Case No. 382, Interim and Interlocutory Award No. ITM/ITL 52-382-3 (21 June
1985), reprinted in 8 Iran-US CTR 276. However, the Iran US-Claims Tribunal, by
recognising the possibility that the claimant might have a warehouseman's lien
over the goods in dispute, granted forty-five days to the claimant to apply to a court
in the U.S. for establishing measures protecting its security interest. Id., 282.
207 See Behring International, Inc. v. Iranian Air Force, Case No. 382, Award No. ITIVI
25-382-3 (21 June 1985), reprinted in 3 Iran-US CTR 173-175 (holding that, under
Article 26 of the Tribunal Rules, the Tribunal is authorised to grant the stay of sale
of goods); and U. S. (Shipside Packing) v. Iran, Case No. 11875, Interim Award No.
ITIVI27-11875-1 (6 September 1983), reprinted in 3 Iran-US CTR 331 (ordering the
claimant to halt the proposed sale of goods in dispute).
208 See Avco Corporation v. Iran, Case No. 261, Partial Award No. 377-261-3 (18 July
1988), reprinted in 19 Iran-US CTR 200,201-202; and United Technologies Int'l,
Inc. v. Iran, Case No. 114, Dec. No. 53-114-3 (10 December 1986), reprinted in 13
Iran-US CTR 254-260. See also, in this regard, Iran v. United States, Case A/15,
272
of goods, in Iran v. United States, Cases, A-4 and A- 15,209the claimant
made a request from the Tribunal to enjoin the respondent "from
auctioning movable properties of Iran's Embassy and Consulates in the
United States". The Tribunal ordered the respondent
to take all necessary and appropriate measures to
prevent the sale
of Iran's diplomatic and consular properties in the United States
which possess important historical, cultural, or other unique
features, and which, by their nature, are irreplaceable.210
In regard of supply of goods, in an AAA case,211a dispute

arose from
various agreements and their amendments concerning exclusive
consignment for the storage, marketing and sales of certain surplus
parts. The issue in dispute was mainly whether those agreements were
rescinded. The sole arbitrator was asked to rule on the destiny of the
parts, which were in the possession of the respondents until the
issuance of the final award. The arbitrator ordered, inter alia, that the
respondent should not make or offer to make any sales of the parts
without the express permission of the claimant. The respondent was
permitted to submit proposals for the sales of goods and the claimant
was ordered not to unreasonably withhold or delay its permission to the
proposed sales. The aims of such order seem to be the continuation of
the respondent's business until the final award is rendered and also the
protection of the claimant's benefit by subjecting the sales of the parts
to its permission, which could not be unreasonably withhold. The
arbitrator also kept track of the sale mechanism created by him by
Dec. No. 35-A/15(il)-FT (5 March 1985), reprinted in 8 Iran-US CTR 63-64 (holding
that the denial was based on the fact that the request became moot. )
209 Case Nos. A-4
and A-15, Interlocutory Award No. ITL 33-A-4/A-15(ill)-2 (1
February 1984), reprinted in 5 Iran-US CTR 131-133. See also ICC Interim
Conservatory Award 10021 of 1999 (unpublished) (ordering a party to refrain from,
on an interim basis, selling encumbering, leasing or otherwise disposing its
interests in shares of a company. ).
210 Iran v. United States, Case Nos. A-4 and A-1 5, Interlocutory Award No. ITIL 33-A-
4/A-15(111)-2 (11February 1984), reprinted in 5 Iran-US CTR 133.
211 Order No. 5 of 1998 in AAA Case No. 13T153-00870197 (unpublished).
'173
ordering the supply of information concerning the proposals and the
permissions.
As regards establishing an escrow account, in Sperry International

Trade, Inc. v. Government of Israel, an AAA tribunal
ordered, where
Israel was trying to withdraw the letter of credit given in its favour, that
the proceeds of the letter of credit was to be held in an
escrow account
212
in the joint names of Israel and Sperry.
With respect to preserving or changing status quo, 213

it is noteworthy
that an arbitral tribunal should carefully consider contractual
and
statutory rights of contracting parties; for instance, what risk allocation
is envisaged 214or what rights a party have under the applicable law.215
Further, an applicant should not be permitted to rely on arguments that
are or should have known by it at the time of entering into arbitration

216 For instance, in ICC 217
agreement. case 5835, the tribunal ruled..
The fact that the Defendant is a company with a relatively small
capital and small assets, and that its balance sheet for the year [X]
showed a deficit, should normally have been investigated by the
Claimant when he signed the [agreement]. Likewise, the Claimant
also should have known, that the Defendant's balance sheet for
the [next year] showed a higher deficit. The Claimant also knew
of the terms and dates of payment by [Claimant] to the Defendant.
212 See Sperry International Trade Co. v. Government of Israel, 689 F 2d 301,303,
note 2 (2nd Cir. 1982).
213 For instance,
measures for prohibiting withdrawal of a bank guarantee, selling
shares of a company, changing its board of directors, etc.
214 On risk allocation,
see Chapter IV, supra note 92.
215 Apparently, as regards the
contractual rights, generally, the balance existed
between the parties under the agreement should be maintained whereas as
regards the statutory rights and remedies, normally, the balance existed at the
initiation of arbitration proceedings should be maintained. On the latter, see
Cremades, The Need, 227.
216 A party, for example, cannot argue, if it knew or should have known, that the other
party is from or established under the laws of a country that is not a party to major
treaties facilitating enforcement of arbitration awards. But see Cremades, The
Need, 227.
217 ICC Second Interim Award 5835 of 1992 (unpublished). On the facts regarding
this case, see ICC First Interim Award 5835 of 1988, extracts published in 8(1) ICC
Int'l Ct Arb Bull 67 (1997)
274
218
Whether or not an arbitrator could grant an anti-suit injunction is an
interesting issue. That is because it, on the one hand, invites the clash
219
of two institutions. judiciary and arbitrators On the other hand,
.
it is highly doubtful whether an arbitral tribunal should be allowed
to tell another arbitral tribunal or a state court what -to do, or
whether it should be allowed to interfere indirectly with the
workings of another arbitral tribunal by orderin one of the parties
what to do in the other arbitration or litigation.229
In this regard, it is argued that a tribunal, be it arbitral or judicial, should,

in principle, decide on only its own jurisdiction; hence refrain from
interfering any other tribunal's decision on jurisdiction 22' However, in
.
case, a party's act is vexatious, the tribunal should be able to order,
propose or recommend that party to cease those acts for protection of
the other party's rights or prevention of aggravation of the dispute. In
other words, if permitted, the tribunal can take a flexible approach.
That is because, by agreeing to arbitrate, contracting parties
demonstrate their desire of the forum for resolving any possible
disputes. Such desire should be upheld. For instance, the ICSID
tribunal, in Holiday Inns v. Morocco, refrained from directly ordering
Morocco to withdraw local court actions taking against the claimant.
The tribunal, however, made three recommendations, one of which
suggested the withdrawal of court actions. The other two, however,
218 For a review of judicial anti-suit injunctions, see, e. g., Lew / Mistelis / Kroll,
paras. 15-24 - 15-33.
219 The courts traditionally have hostility towards arbitrators. See supra Chapter 1,
Part 2.1. The potential clash is generally resolved by Article 2(3) of the New York
Convention. See also, e. g., Article 26 of the ICSID Convention. Domestic laws
too for provisions that cause courts or other arbitral tribunals to refer
may provide
in dispute. See, e. g., Article 8 of the
the case to the tribunal validly seized the case
Model Law, Section 9 of the EAA 1996. In fact, if a dispute is agreed to be
through judicial authorities should deny any request to them
resolved arbitration,
for the resolution of the dispute and refer the parties to arbitration.
221 1
d.
'175
mainly aimed at remedying the respondent's concerns for
222
court
actions.
Injunctions may couple with a fine provided that such fine is

permitted
under the relevant arbitration agreement223
and is not prohibited under
224
the applicable law. Such fine is a penalty payment to
prevent
disobedience. For instance, in an AAA case, the arbitral tribunal
indicated that it could grant a penalty payment in case the injunction
225
granted would not be obeyed In this case, a dispute arose between
.
the parties with respect to three agreements on assignment,
employment and consulting. Upon the claimants' request, the tribunal
enjoined, in a partial award, the respondents from, inter alia, the use of
the claimant's trade name, trademark and know-how. The tribunal in its
award refrained from imposing sanctions with the hope that the
respondents comply with its directives without the "threat of sanctions".
However, the tribunal reserved its jurisdiction to grant any Interim
measure in case its directives were not complied with. The tribunal
expressly indicated that it is within its armoury to sanction the failure to
222 Decision
of Tribunal (2 July 1972). See Lalive, 136-137. See also Wirth, 37
(indicating that, in two unpublished cases, the tribunals granted anti-suit injunctions
basing their decisions on the arguments that either by agreeing to arbitrate parties
obliged not to seek any relief outside arbitration or cnnfidentiality clause contained
in the substantive contract prevented such relief. Wirth, 37. On the issue of
comity, see supra Chapter 11,note 100.
223 The power to issue such fine may expressly be contained in the arbitration
agreement. Otherwise, the power arises from broad interpretation of the
agreement. See, Karrer, Less Theory, 105. But see Berger, International
Economic Arbitration, 341 (stating that the issuance of a penalty payment is"
beyond the authority and the mandate of an arbitral tribunal. ").
224 ICC Final Award 7895 of 1994, extracts published in 11 (1) ICC Int'l Ct Arb Bull 64-
65 (2000) (the tribunal found itself with the power to order an injunction coupled
with a fine under the ICC Arbitration Rules 1988 in "the absence of (i) an
agreement of the parties to the contrary, and (ii) a mandatory provision of French
procedural law requiring otherwise See also ICC Interim Award 9301 of 1997
(unpublished) and ICC Final Award 9154 of 1998, extracts published in 11(1) ICC
Int'l Ct Arb Bull 98-103 (2000). Laws of such countries as Belgium, France, and
Netherlands (Article 1056 of the Netherlands AA) seem to recognise the adoption
Karrer, Less Theory, 105. But, for instance, Swedish law
of such arbitral power.
too expressly prohibits imposition of fines. Section 25 of the Swedish AA 1999.
276
comply with its directives by payment of a specified amount for
each
226
time period the respondents fail to COMply.
7.3 Security for Payment
A security for payment or claim is a kind of advance payment

guaranteeing for the enforcement of the final award where the applicant
proves to be right on the merits of the case in dispute. The power to
grant such security generally arises from the broad interpretation of
either power given to the tribunal in regard of interim protection of rights
or the arbitration agreemen t. 227 For the grant of security for payment,
the moving party needs to demonstrate, inter alia, that it is highly likely
that the award, if it is rendered in its favour, would not be enforced. For
instance, in ICC case 8786, the respondent requested a security for
claim by arguing that the claimant would not comply with the award that
would be in its favour and the chances of such award's enforcement in
State X "are less than SliM.,,228 The claimant objected to these
225 Partial Award

of 1999 and Final Award of 2000 in AAA Case No. 81.153.002696
(unpublished). The place of arbitration was Nevada, the U. S.
226 It is noteworthy that the
respondents did not comply with the tribunal's directives.
The tribunal sanctioned the non-compliance, in its final award; and accordingly, the
sanction became a post-award relief. The tribunal ruled that if any of its injunctions
as provided in its partial award was not complied with, the respondents were to pay
USD 1000 for each day of non-compliance for a period of twenty days.
227 Tne save for a few, do not generally empower an
arbitration rules surveyed,
arbitrator to grant security for payment. For the exceptions, see Article 38(l) of the
NAI Arbitration Rules; Article 25(l)(a) of the LCIA Arbitration Rules; and Article
17(l) of the CEPANI Arbitration Rules. In this regard, see also NAI Interim Award
No. 1694 (21 December 1996), extracts reprinted in XXIII YCA 97 (1998). For the
concept of broad interpretation of arbitration agreement, see, e. g., ICC Second
Partial Award 8113 of 1995, extracts published in 11(l) ICC Int'l Ct Arb Bull 65
(2000), and Lew / Mistelis / Krbll, para. 23-44. See also Charles Construction
Company v. Derderian, 586 NE 2d 992 (Mass. 1992) (Massachusetts Supreme
Court) (holding that where the arbitration agreement or the applicable law is silent
on the power to take security for claim, "the arbitrator's authority to act would be
reasonably implied from the agreement to arbitrate itself"). But see Swift Industries
Inc. v. Botany Ind. Inc. 466 F 2d 1125 (3d Cir. 1972) (holding that "to award
(security for claim] as an adjunct to declaratory relief a form of pre-judgement
the agreement by its lack of reference to security seems to
execution which
to intend, is to the framework of the agreement and to
exclude rather than eclipse
venture on to unprotected grounds. ").
228 ICC Interim Award 8786 of 1996, extracts published in 11(1) ICC Int'l Ct Arb Bull
81-84 (2000). A similar request was denied by another arbitral tribunal on the
277
arguments. The arbitral tribunal refused the request on the grounds
that the applicant "has failed to sufficiently substantiate the
existence of
a not easily reparable prejudice" and that there was no urgency".229 In
ICC case 10021, however, the tribunal indirectly complied
with the
request for security payment. In this case, the claimant requested the
tribunal to attach the assets of the respondents. The tribunal,
rather
than, accepting the request, ordered the respondents mainly to refrain
from disposing of the assets in dispute since the power to attach assets
would not be within the domain of arbitration 230 The dispute, in this
.
case, arose from breach of certain agreements including a
shareholders agreement concerning a cement company. The claimant
made a request for security for claim by arguing that respondents were
transferring their shares in the company. The respondents did not deny
the claim and made no reasonable explanation about it. Further, the
claimant also claimed that apart from its shares in the company, the
respondents no longer had sufficient liquid assets enabling them to
satisfy a possible award for damages. In fact, the tribunal observed
that the respondents refrained from depositing their share of costs and
stating real value of their shares or real estate. In addition, the claimant
demonstrated to the tribunal that it had certain monetary claims. Under
the above circumstances, the tribunal held that the value of the
respondents' shares in the company did not seem to exceed the
amount of security requested. Accordingly, the tribunal ordered, the

in
respondents, an award, not to transfer or in any way dispose of those
shares (rather than attaching the respondents' assets).
that the law the place of arbitration did not provide for security for claim
ground of
ICC Final Award 7560 of 1990 (unpublished). See Yesilirmak, Interim Measures,
33, note 29.
229 ICC Interim Award 8786 of 1996, extracts published in 11(1) ICC Int'l Ct Arb Bull
82-83 (2000). The tribunal relied mainly on the requirements set forth under the
law of the place of arbitration for the grant of the measure requested. See also
NAI Interim Award 1694, extracts reprinted in XXIII YCA 97 (1998).
230 ICC Interim Conservatory Award 10021of 1999 (unpublished).
278
7.4 Security for Costs
Security for costs may be defined as "[p]ayment into

court in the form of
cash, property or bond by a plaintiff or an appellant to secure the
231
payment of costs if such person does not prevail. ,
Under some
national laws, security for costs is referred to as cautio judicatum solvi,
the duty of an alien claimant to provide security for costs
of its
232
defendant
.
The issue of security for costs of arbitral proceedings (e. g. legal costs,
tribunal's costs, travelling expenses, etc. ) or of arbitrating parties "very
233
occasionally comes Up,, and is highly debated. Such security for
costs should not "normally" be required in international arbitration 234 It
.
is rightly argued that a contracting party normally bears, whilst entering
into a contract, the risk of having a dispute, which is agreed to be
settled in an arbitration 235 That is because is "the

. such risk general
236
commercial risk of being engaged in business and trade" Further,
.
there is and should be no alien claimant in international arbitration.
231 Black's Law Dictionary, 6thed., (St Paul, Minnesota- West Publishing 1990), 1357.
232 See Sandrock, 17. The examples to those countries where a security for costs
may be required in litigation see, e.g., Austria (Article 57 of the CCP); Germany
(Article 110 of the CCP); Turkey (Article 32 of the International Private and
Procedural Law); and the USA (see, e.g., Noah Rubins, "In God We Trust, All
Others Pay Cashý Security for Costs in International Commercial Arbitration", 11(3)
Am Rev Int'l Arb 307,327 (2000)). But see Article 17 of the Convention Relating to
Civil Procedure, done at the Hague on 1 March 1954,286 UNTS 265, No. 4173-,
and Article 9(l) of the European Convention on Establishment of 1955, signed at
Paris on 13 December 1955,1955 UNTS 141, No. 7660.
234 See, e. g., Blessing, Introduction, para. 8K Redfern / Hunter, para. 7-32
(indicating that arbitrators are unlikely to grant security for costs.); V. V. Veeder,
"England" in- Paulsson (gen. ed.), International Handbook, Supplement 23 (March
1997), 43 (indicating that an arbitrator's broad discretion to order security for costs
under the EAA 1996 "is likely to be exercised most sparingly where the arbitration
is truly international". ). Indeed, it is observed that ICC arbitrators "were extremely
reluctant to grant" such measures. Craig / Park / Paulsson, ICC Arbitration 2000,
467.
235 Apparently, where a party becomes successful at the end of arbitration
proceedings, the costs would be apportioned in accordance with the applicable rule
or law (e. g., costs follow the event, or each party bears its own costs).
236 Blessing, Introduction, para. 886.
279
That is because each and every claimant and
counter-claimant should
be equally distant to the law of the forum where
arbitration takes place
and indeed because there is no lex fori in arbitration. 237 However, in
cases where an arbitral tribunal is empowered to grant security for
costs, and, under appropriate circumstances, a security for costs may
be 238 To this there
granted . end, are mainly two issues to examine (Ii)
whether or not the tribunal has the power to grant such security, and (ii)
what the appropriate circumstances are.
The power to issue security for costs may derive from arbitration
S239 laWS240.
rule or applicable It is generally accepted that arbitrators
241
should have the power to issue security for CoStS. Sixteen of the
242
rules surveyed provide for security for costs of the measure granted
.
237
See supra Chapter 11,note 103.
238
See, e.g., Sandrock, 30-37.
239
Annex.
240 See e. g., SPIL (see,
e. g., Wirth, 36 (stating that under exceptional circumstances,
e. g., where there is a "clear and present danger" or even where there is a "potential
risk" of non-recovery of legal costs, an arbitral tribunal may order security for
costs. )); Section 38(3) of the EAA 1996 (stating that, unless otherwise agreed, a
tribunal may order security for costs though such order, under that Section, could
not be based on the fact that a party is ordinarily resides out of England or that a
company or association incorporated under the law of a foreign country or
managed or controlled from such country. ); Section 2GB(l)(a) of the Hong Kong
AO; Section 7(2) of the Ireland AA 1998; Section 12(l) of the Singapore
International AA. However, it should be noted that the device of security for costs
is unfamiliar to many legal systems. W. Laurence Craig / William W. Park / Jan
Paulsson, Craig, Park & Paulsson's Annotated Guide to the 1998 ICC Arbitration
Rules with Commentary (Oceana Publications, Inc. 1998), 139 ("Annotated
Guide").
242 See, e. g., Article 21 of the Arbitration Rules of the AAA-ICDR-, Article 35 of the
Securities Arbitration 1993 of the AAA; Article 18 of the Arbitration Rules 1993 of
the Board of Arbitration of the Central Chamber of Commerce of Finland; 25(2) of
the LCIA Arbitration Rules; Article 38 of the NAI Arbitration Rules; Article 46 (b) of
the WIPO Arbitration Rules (under "exceptional circumstances"); and Article 26(2)
of the UNCITRAL Arbitration Rules. It is noteworthy, in this regard, that, under
Article 25(2) of the LCIA Arbitration Rules, an arbitral tribunal is exclusively (and not
a court) empowered to grant security for costs (legal or otherwise), Further, the
scope of the security, e. g., whether it covers legal expenses, costs of arbitration,
attorney's fees, remuneration of the tribunal is not generally dealt with under the
above rules. See, e.g., Article 7(8)(b) of the Arbitration Rules 2000 of the CIA
(provides only for security for costs). But see Rule 11 of the Arbitration Rules 1981
280
For the remaining arbitration rules that do not contain express
provisions on security for costs, the general power to grant a provisional
measure should generally be sufficient for the grant of security for
243
CoStS.
None of the rules do set forth what the appropriate circumstances are
for the grant of security for costs. It should initially be kept in mind that,
in dealing with a request for security for costs, an arbitrator should not
hinder access to justice and should treat the parties with equality, e. g.
require the moving to provide counter security too. 244 Arbitral case law
of the Copenhagen Court of International Arbitration provides "[plarties to a dispute

shall provide security for all expenses of the arbitral proceedings."
243 It should be noted, in regard of the power to grant security for costs, that twenty-
nine sets of the rules surveyed contain a general provision on the security.
According to these rules, the tribunal is generally empowered to ask for
appropriate security. The broad interpretation of such rules enables the grant of
security for costs by arbitrators. See, e.g., Article 14 of the International Arbitration
Rules 1996 of the Chamber of National and International Arbitration of Milan-,
Article R37 of the Arbitration Rules 1994 of the Court of Arbitration for Sport
Arbitration; and Article 23 of the Arbitration Rules 1998 of the ICC. It should be
noted, in this regard, that during the preparation of the ICC Arbitration Rules 1998,
several suggestions were made to expressly deal with security for costs in the
Rules as a result of the founding in the Ken Ren decision of the House of Lords.
See Copp6e-Lavalin N.V. v. Ken-Ren Chemicals and Fertilizers Limited, [1995] 1
AC 38, [1994] 2 All ER 499, (1994) 2 WLR 63, [1994] 2 Lloyd's Rep 109. This
decision reversed the Court of Appeal's earlier decision in Bank Mellat v. Helliniki
Techniki, S.A. [1984] Q. B. 291. However, the ICC's "Working Party preferred not
to make any specific reference in this respect, but the wording of Article 23 would
seem broad enough to allow the making of an application for and the issuing of a
by the Tribunal on, the security for costs. " See Marc Blessing, "Keynotes on
ruling
Arbitral Decision Making", in- ICC, 1998 ICC Rules, 44,44-45. See also, in this
/ Schwartz, 274, 622 (stating that "[n]otwithstanding the
regard, Derains note
of the Ken-Ren cases, those drafting the New Rules were reluctant to
experience
because they did not wish to encourage the
mention security for costs expressly
which, apart from being rare, are generally
proliferation of such applications,
disfavoured in ICC arbitrations. "); Sigvard Jarvin, "Aspects of the Arbitral
Proceedings", in: 1998 ICC Rules, 38,43 (1997); and Craig / Park / Paulsson,
Annotated Guide, 139; ICC Final Award No. 7047 of 1994, extracts published in
8(1) ICC Int'l Ct Arb Bull 61 (1997); ICC Interim Award No. 6632 of 1993
(unpublished); and ICC cases cited in the Craig / Park / Paulsson, Annotated
Guide, 139.
244 In this regard, see Wirth, 36. Since the moving party generally deposits advance
institutional rules, an order to deposit further amount in
on costs under arbitration
the name of security for costs may have the effect of preventing a commercially
its See Craig / Park Paulsson, ICC Arbitration 2000,
weak party to pursue claims.
para. 26.05; and Lew / Mistelis / Kr6II, para. 23-55.
281
is not generally very helpful in determining the appropriate
circumstances. 245 It is submitted that, in practice, "arbitrators
are
unlikely to order security for costs where their eventual award is
enforceable under the New York Convention or similar treaty,
unless it
is shown convincingly that the losing party
will almost certainly be
unable to meet an award of costs against it [due, for instance, to its
insolvency]. ,246 Such unavailability should be a result
of changed
circumstances following the entry into force of the parties' agreemen t.247
Otherwise, basing on the unavailability to make
a claim for security for
costs would infringe the principle of good faith 248
.
7.5 Provisional Payment
Provisional payment is aimed to restore, prior to final adjudication of the
merits of the case, an obligation or a right existence of which is not

seriously challenged. Provisional payment is not a very typical kind of
interim measure of protection. It could even be argued that it is not an
interim measure as, for the grant of it, an arbitral tribunal needs to-
245 See, e. g., ICC Final Award No. 7489

of 1993, extracts published in (1993) Clunet
1078; 8(1) ICC Int'l Ct Arb Bull 68 (1997); and Hascher, Procedural Decisions, 48
(denying the exercise of the power to grant security for costs by arguing that the
application was not "irreconcilable with its ground. "); and ICC Final Award No. 7047
of 1994, extracts published in 8(1) ICC Int'l Ct Arb Bull 61 (1997) (denying the
request for security for costs mainly because the moving party based its reasoning
on the ground that it knew or should have known at the time of entering into the
arbitration agreement. ). Similarly, in ICC case 6632, upon the raise of the issue of
liquidation of the Claimant, the Respondent requested security for costs. The
Claimant too made the same request. The Respondent claimed that the
Claimant's liquidation was for the purpose of being judgment proof. The
Respondent did not object Claimant's request for security for costs. It, indeed,
expressly offered to provide a security for costs. The Tribunal, under the
circumstances of the case, requested from both parties to provide for security for
costs. ICC Interim Award 6632 of 1993 (unpublished).
246 Redfern / Hunter, para. 7-32. Whether or not the claimant resides or is
incorporated in a place other than the place of arbitration should never be taken
into account in granting a security for costs in international arbitration. Section
38(3) of the EAA 1996. Further, contractual arrangement that each party bears its
own costs or that each party deposits certain amount of money as an advance to
cover the costs may prevent the grant of security for costs. See Craig / Park
Paulsson, ICC Arbitration 2000,467-68.
247
Sandrock, 30.
248
Id.
'82
decide, prior to the full adjudication, that the moving party is entitled to
a certain amount of money. 249 For the purpose of arbitration,
provisional measures should be considered as interim remedies, which
may be amended or revoked in the final award. For the grant of a
provisional payment, it is necessary to establish that an arbitral tribunal
is empowered to grant such measure. For instance, in ICC case 7544,
an arbitral tribunal found that interim payment on account is not
prohibited by the ICC Arbitration Rules where no mandatory provision
to contrary existed under the applicable law.250 It should be noted, in
this regard, that in another ICC case,251the tribunal ruled that under the
circumstances of the case, the grant of provisional payment would be
"premature." Apparently, in this case, the tribunal, by implication,
upheld its jurisdiction to grant provisional payment.
Once the jurisdiction is established it is necessary to determine on what

grounds a provisional payment may be granted. An ICC tribunal, for
example, found that the principles of procedure of the French law

principle S252 on interim payment on account provide for a useful
guidance as the law of the place of arbitration for granting provisional

in the before the tribunal 253 Further, tribunal
payment case an arbitral
.
should be very careful for not prejudicing the merits of the case in
granting provisional payment. If there is any serious challenge to the
right in regard of the provisional payment, the tribunal should refrain
249
See supra Introduction, note 54.
250 ICC Second Interim Award 7544 of 1996, extracts published 11(1) ICC Int'l Ct Arb
Bull 56-60 (2000). To this end, it should be noted Section 39(2) of the EAA 1996
to
expressly permits parties empower their tribunal with the power to grant security
for payment. Even if the lex arbitri prohibits the provisional payment such payment
may be made in accordance with the lex causae or law of the place of
enforcement. This approach seems to be adopted by, for example, Swiss law.
See Wirth, 35.
251 ICC Second Partial Award 5808 of 1994 (unpublished).
252 The tribunal cited Article 809(2) of the French New CCP. This Article provides that
where the existence of the obligation cannot seriously be denied, the court may
order an interim payment on account.
283
from granting such payment. 254 Even if it grants the measure, the
tribunal should seek security for damages in case such measure may
prove to be wrong. 255
8 Ex Parte Measures
Provisional measures are usually granted through inter partes

proceedings- both the applicant and the respondent are heard in
adversarial proceedings. An arbitral tribunal may actually convene and
hear parties on a request for a provisional measure. Alternatively, in
cases where the convening of the tribunal cannot be awaited (because,
e. g. arbitrating are from different countries), the
parties and arbitrators
parties may be heard, for instance, over a telephone conference 256 or a
videoconference. Further, in such cases, the parties may, for example
in the terms of reference, empower the chairman of the tribunal to grant
257 However,
arbitral provisional measures . whilst all of the above may
facilitate the speedy adjudication of requests for interim protection of
rights, there may sometimes be a need, in cases of urgency or where
253 ICC Second Interim Award 7544 11 (1) ICC Int'l Ct Arb
of 1996, extracts published
Bull 56-60 (2000).
254 See, in this id (after "weighing
regard, the up probability as to whether, after the
claims and counterclaims have been fully argued before it, the net result will be in
favour of" the moving party, the tribunal reached the positive conclusion).
However, in ICC case 9984, the arbitral tribunal did not uphold the request for a
provisional payment. In this case, the claimant made a request for interim
payment of the certain amount of money that is, according to itself, not contested.
But the tribunal ruled that the amount was, in fact, seriously contested and whether
or not to grant the measure "is too closely linked with the solution of whole
dispute. " ICC Partial Award 9984 of 1999 (unpublished).
255 ICC Second Interim Award 7544 of 1996, extracts published 11(1) ICC Int'l Ct Arb
Bull 56-60 (2000) (requiring a security for damages "in order to cover the risk that
the final decision might not be consistent with the decision reached ... [on an
interim basis], and not to prejudice the right of set-off " in the amount of the
...
provisional payment ordered. ). Indeed, the ECJ too held, in van Uden, that an
interim payment does not constitute a provisional measure within the meaning of
the Brussels Convention unless, inter alia, the repayment to the defendant of the
sum awarded is guaranteed should the applicant proved to be unsuccessful.
(1998) ECR 1-7136-37, paras. 45-47.
256 See, e. g., Island Creek Coal Sales Co. v. The City of Gainsville, Florida, 764 F2d
437,438-39 (2d Cir. 1985).
257 Otherwise, such transfer of power may arise from the general arbitral procedural
powers. See, e. g., Berger, International Economic Arbitration, 349.
284
258
element of surprise is required, for ex parte259 provisional
260
measures. There is urgency or the element of surprise is necessary,
for instance, where a trade secret is likely to be disclosed, or where
there is likelihood of dissipation of assets, or where vital evidence is
261
likely to be lost. National courts generally grant ex parte measures
.
Arbitral tribunals should too be empowered to issue ex parte provisional
measures. The reasons justifying the grant of arbitral provisional
measures also support the arbitral power to issue ex parte
258
UN Doc A/CN. 9MG. IIMP. 110, para. 52.
259 A measure in the absence of the
adverse party or without notification to it.
260 It is observed during the
preparation of the UNCITRAL Arbitration Rules that
parties were to be given a right to be heard in regard of interim measures except
for "urgent matters. " UN Doc A/CN. 9/97/Add. 3, reprinted in VI UNCITRAL
Yearbook 184,185 (1975).
261 For instance, the German Constitutional Court
upheld the validity of ex parte
measures against the claim of a breach of a constitutional principle of auditur et
altera pars for protecting party interests and; thus, effectiveness of adjudication.
Schaefer, Part 4.2.2.2. Similarly, the U.S. Supreme Court found no infringement of
the constitutional due process requirement of notice and opportunity to be heard
with the issuance of ex parte measures. That is, however, subject to a subsequent
opportunity to be given to the respondent for the challenge of the measure. See
Reichert, 374; and 136sch (ed.), 754-755. Likewise, for English law, see, e.g.,
Petroleum Investment Company Limited v. Kantupan Holdings Company Limited,
[2002] 1 All ER (Comm) 124 (indicating that "[u]nless giving notice would be
impossible or impracticable e.g., because of the urgency of the situation, an
application for an injunction should only be made without notice to the respondent
in circumstances where it would be likely to defeat the purpose of seeking the
inj.unction if forewarning were given.). It is submitted that ex parte measures are
available in certain Arab states provided that a right to be heard is subsequently
given. Aboul-Enein, 82. In addition, although Section 684.16(l) of the Florida
International AA, which, in principle, prohibits ex parte proceedings for an interim
measure of protection, Section 684.16(3) of the Florida International AA permits ex
parte measures provided that the tribunal immediately extends the right to modify
or terminate such measure to all parties not notified. Further, laws of the following
countries generally permit ex parte court-ordered provisional measures- Australia
(Bbsch (ed. ), 39), Austria, (id., 68), Belgium (id, 98), Brazil (id., 124), Canada (id.,
149), China (id., 169), Denmark (id., 188), England (see, e.g., Section 44(3) of the
EAA 1996. See also Groves, 190. ), Finland (Bbsch (ed. ), 244), France (id., 269),
Greece (id., 325), Hong Kong (id. 345), Ireland (id., 365), Italy (id., 382), the
Republic of Korea (id., 398), Liechtenstein (id., 418), Mexico (id., 449), Morocco
(id., 465), Norway (id., 514-15), Panama (id., 530), Puerto Rico (id., 573), Scotland
(id., 607-8), Singapore (id., 629), the Republic of South Africa (id., 643), Spain (id.,
666), Sweden (id., 686-87), Switzerland (id., 716), Turkey (Article 101 of the CCP).
On examination of ex parte measures from the human rights perspective, see,
e. g., Collins, 179-191 (indicating that ex parte measures are, under certain
in various legal system and international bodies. ).
circumstances are permitted
See also Article 17.2 of the UNIDROIT Principles.
285
262
measures. The most importantof these reasons is the parties'will to
seek protection of their rights, including interim protection from
an
arbitral tribunal. Thus, an arbitral tribunal is the natural forum to seek
ex parte provisional measures, although it may not be the most
appropriateforum in every case. In fact, the need for ex parte arbitral
measures is likely to be very low as such measureswould normallybe
availablefrom an arbitral tribunal once such tribunal is formed long after
the time of a dispute's appearance. The need for ex
parte measures
generally arises at the time of or right after the dispute's appearance
but long before submission of a case to an arbitral tribunal. Further,
such ex parte measuresgenerallyrequireenforceabilityper se. In such
cases, a court would be the most appropriate forum to apply for. In this
regard, it is noteworthy that the request for and the grant of ex parte
measures occasionally occur in arbitration practice. For instance, a
survey done by the AAA demonstrates that only one out of fifty cases
on interim measures were held ex parte. 263 Further, this author has not
come across any ex parte decision on an interim measure in his
ICC. 264
research at the AAA and the
Occasionally, when there is a need for ex parte measures, an arbitral

tribunal should be empowered to grant such measure. However, the
arbitral power to grant ex parte provisional measures faces with, among
others, two main objections. These objections are generally related to
265 266
the right to be heard and the principle of impartiality in arbitration .
262
263
See Naimark / Keer, 25.
264 Although it does not mean that there has not been any such decision.
265 The right to be heard (audi alteram partem) is a facet of the principle of natural
justice, or of due process. This right is a universally recognised fundamental right.
See, e. g., V. S. Mani, "Audi Alteram Partern - Journey of a Principle From the
Realms of Private Procedural Law to the Realms of International Procedural Law",
9 Indian Journal of Int'l Law 381-411 (1969). This right's infringement may cause,
in international arbitration, setting aside of the outcome of an award or refusal of
the enforcement under, for instance, Article V(1)(b) of the New York Convention,
and Article 5 of the Inter-American Convention.
286
This Part examines objections to arbitral competence to grant ex parle
provisional measures: (i) the right to be heard and (ii) the principle of
impartiality. It also deals with certain other issues on the same
measures.
8.1 Right to be Heard As an Objection to Arbitral Power to Grant

Ex Parte Provisional Measures
The right to be heard shouldcertainlybe observedin the adjudicationof

substantive claims. Would this right fully extend to proceedings
concerning provisional measures? Inter partes proceedings are
generally required for the grant of interim measures of protection.
Arbitration rules and practice too seem to confirm this view.267 For
instance,the ICSIDArbitrationRules specificallyrequire that an arbitral
tribunal "shall only recommend provisional measures, or modify or
revoke its recommendation,after giving each party an opportunity of
presenting its observation S. n268 This rule aims at avoiding
ifunintentionallyunfair 269
dispositions". It seems to be envisagedunder
the ICSID arbitrationsystem that the arbitral tribunal "must decide how
this opportunitywill be given.11270
The examinationof publishedawards
demonstratesthat ICSID arbitral tribunals did not make a decision on
interim protectionwithout giving each party an opportunityof presenting
266 For the other objections, see, e.g., UN Doc A/CN.91487, para. 70; UN Doc
A/CN.9/523, para. 21; and Yves Derains, "Arbitral Ex Parte Interim Relief, Dis Res
J 61 (August/October 2003) ("Ex Parte Relief). On a very convincing rebuttal of
these objections, see, e.g., James E Castello, "Arbitrators Should Have the Power
to Grant Interim Relief Ex Parte", Dis Res J 60 (August/October 2003).
267 Six out of seventy-two arbitration rules surveyed expressly require that adverse
party shall be heard. See Article 7(11) of the CIA Arbitration Rules; Article 17(2) of
the Copenhagen Court of International Arbitration, Arbitration Rules 1981; Article
11 of the FAA Arbitration Rules 1980; Article 22 of the LCIA Arbitration Rules-,Rule
25 of the SIAC Arbitration Rules; and Rule 39(4) of the ICSID Arbitration Rules.
See also Article 66(2) of the ICJ Rules.
268
Rule 39(4).
269 Note E to the 1968 ICSID Arbitration Rules, reprinted in 1 ICSID Rep. 99.
270 Id.
287
271
its case. Similarly, with respect to the
practice under the ICC
ArbitrationRules, it is submittedthat272 "[i]t would be inconsistent
with
the principlesgenerallygoverningarbitration to
... permit ex parte
relief." It is furtherindicatedthat the ICCtribunalshearall of the parties
beforerenderingany decisionon provisionalmeasures .
273
The Iran-US
Claims Tribunal too, applyingthe UNCITRALArbitrationRules, has
consistentlygiven partiesopportunityto commentin writing,whenever
274
possible,when it dealtwith requestsfor a provisionalmeasure. This
practiceseems to be based on the principleof the right to be heard
which is envisagedunder Article 15(l) of the UNCITRALArbitration
275
Rules.
However, in some cases, there is utmost urgency or element of

surprise
is necessary, e. g. where vital evidence would be lost due to starting of
another phase of construction or to stop the sale of disputed securities.

In such cases, ex parte measures are required. This is because the
principle of fairness requires acting in a speedy manner without giving

notice to the responding party. Indeed, the concept of granting ex parte
measures is recognised by several legal system S.276 Two of the
arbitration rules surveyed too expressly recognise such possibility for a
271 See Schreuer, Article 47,216,

note 19.
272 Schwartz, Provisional Measures, 59.
273 See,
e. g., ICC Final Award 8893 of 1997 (unpublished. ). The requirement to grant
the right to a hearing for interim measures of protection, arguably, arises from
Article 21(3) of the ICC Arbitration Rules 1998. This argument was raised by
Schwartz, Provisional Measures, 59. He referred to Article 15(4) of the ICC
Arbitration Rules 1988, which corresponds Article 21(3) of the 1998 ICC Arbitration
Rules. This last Article provides that "all parties shall be entitled to be present" at
the hearings. Schwartz argues that this rule "arguably prevents an ICC arbitral
tribunal from convening a hearing, even for interim or conservatory purposes, on
an ex parte basis. " Id.
274 Caron, Interim Measures, 500; Brower / Brueschke, 224-225. See also, e. g.,
and
Component Builders Inc. v. Iran, Case No. 395, Order (10 January 1985), reprinted
in 8 Iran-US CTR 3,4.
275 Article 15(2) provides that "at any stage of the proceedings each party is given a
full opportunity of presenting his case. "
276 See Chapter IV, supra note 261.
288
277
certain period of time The Iran-US Claims Tribunal
used a similar
.
vehicle for interim protection of rights in urgent
cases. The Tribunal
relied on temporary restraining measures.278 When a temporary
restraining measure or another ex parte measure is granted, the
respondent ought to be heard in a subsequent hearing.279 Some
commentators support the possibility of ex parte arbitral measures.
Berger, for instance, rightly states-
Granting the parties the firm right to be heard
would be hardly
reconcilable with the function of provisional relief which often
requires the surprise effect of ex-parte measures to be effective.
Also, the arbitrators can later amend or even withdraw their
decision at the request of the other party in a subsequent
he anng. 280
In sum, this author believes that arbitral tribunals should be given the
power to grant ex parte provisional measures. Although, such power

may be used scarcely in practice, it would provide a useful addition to
the armoury of the tribunal. So the right to be heard should not be
extended to provisional measures.
277 These rules mainly require that "in utmost urgency an order may be given upon the
presentation of a request provided that the other party shall be heard
subsequently. " See Rule 23 of the CCIG Arbitration Rules 1992. In addition,
Article R37 of the Court of Arbitration for Sport Arbitration Rules 1994 provides for
a very similar provision.
278 This practice seems to be accorded with the observation of a delegate, in the
drafting process of the UNCITRAL Arbitration Rules, "The parties should have a
right to be heard before the arbitrators take interim measures except in urgent
....
cases. " (Emphasis added. ) UN Doc A/CN. 9/97/Add. 3, Annex 1, reprinted in VI
UNCITRAL Yearbook 185.
279 For a detailed analysis of the Tribunal's practice concerning temporary measures,
see Chapter IV, supra Part 4.3.
280 Berger, International Economic Arbitration, 337. See also, e. g., Blessing,
Introduction, para. 879; Bucher / Tschanz, para. 175, and Wirth, 38. But see, e. g.,
Schwartz, Provisional Measures, 59; and Bernardini, 27. The last author suspects
the legal validity of the above solution. His suspicion relies on the argument that,
contrary to domestic court proceedings, there is no recourse against arbitrators'
issued on an ex parte basis. Bernardini, 27. However, this argument fails to
order
take into the fact that such an order could be amended or revoked by the
account
hearing both parties. See Jacques-Michel
same arbitrators following the of
Grossen, "Comment" in ICC (ed. ), Conservatory Measures, 115,116ý and
Blessing, Introduction, para. 866.
289
8.2 Observance of the Principle of Impartiality As
an Objection to
Arbitral Power to Grant Ex Parte Provisional Measures
Impartiality of the fact finder is a fundamental

principle of arbitration.
This principle would normally prevent an arbitral tribunal to
engage in
281
ex parte communications with arbitrating parties. It
is argued that
such prevention extends to the tribunal's ex parte contacts even for ex
282
parte provisional measures However, such restriction should, in this
.
author's view, be related to the merits of the case and interim protection
of rights should constitute an exception to the restriction. The principle
of fairness justifies the exception, e.g. the need to safeguard a party
right in cases of utmost urgency. In addition, in order to grant an ex
parte measure, the tribunal needs to be satisfied, among others, that
there is a grave danger, which would require the tribunal's immediate
interference. As a result of which, it would grant an ex parte measure
that would stand only for a limited period of time. The tribunal is aware
of the fact that it heard only the applicant but not the respondent and
that the respondent's side of story should and will need to be heard. In
sum, an ex parte communication with a party for granting a provisional
measure should not be considered as violation of the principle of
impartiality. Indeed, in such countries as Turkey, a judge adjudicating
the merits of a case is empowered to grant an ex parte provisional
measure and that would not be considered as a breach of his
impartiality.
In granting provisional measures, the tribunal should make sure that
any ex parte communication is recorded and communicated to the
respondent later prior to the inter partes hearing. The tribunal should
its for issuing the ex parte measure in the text
clearly indicate reasoning
It should also indicate that such measure stands for
of the measure.
281
See, e. g., Redfern / Hunter, para. 4-51.
290
until it is confirmed or revoked in an inter partes proceedings,
which will
take place upon the respondent's petition.
The right to a hearin g283should not, in principle,

extend to applications
284
for interim measures of protection However, arbitrators, where
.
286
necessary'285 can invite to
parties present their case oraIly.
282
Derains, 2.
283 See, e.g., Gaillard / Savage (ed.),
paras. 1296-1299.
284 Indeed, oral hearings
were held in four of the Iran-US Claims Tribunal's initial
twenty-nine cases on interim measures. Caron, Interim Measures, 500. In this
regard, see, e. g., Component Builders, Inc. v. Iran, Case No. 395, Order (19
February 1985) (unpublished) quoted in Interim and Interlocutory Award No.
ITM/ITL 51-395-3, reprinted in 8 Iran-US CTR 216,219 (holding that "neither the
Tribunal Rules nor the Tribunal practice requires that a Hearing be held on
...
requests for interim measures Further, Judge Mosk, in his concurring
opinion, argued-
[T]he rule [Article 15(2) of the Tribunal Rules], although somewhat ambiguous,
should not be read to provide a right to a hearing in connection with a request
for interim measures. The request for interim measures here is for the purpose
of preserving the rights of the Parties pending the Tribunal's award, and thus the
issue raised by the request is arguably a procedural matter. Moreover, the
purpose of the rule seems to be to guarantee a right to a hearing in connection
with a decision on the merits of the case.
Concurring Opinion of Richard M. Mosk of 21 October 1983 to Ford Aerospace v.
The Air Force of Iran, Case No. 159, Interim Award No. ITM 28-159-3 (20 October
1983), reprinted in 3 Iran-US CTR 384,387. Caron further adds,
It is Richard M. Mosk's substantive/procedural distinction that ultimately justifies
the conclusion that there is no right under the UNCITRAL Rules to a hearing in
the case of interim measures. A tribunal constantly makes decisions without
hearings. The vast majority of these decisions are merely procedural and,
although important, do not ordinarily dispose of the rights of the parties.
Although the procedural/substantive distinction is not always easy to make, it is
clear that if disposition of the rights of the parties is the test then interim
measures more properly are regarded as procedural. Indeed, the doctrines
relating to interim measures all aim at avoiding final adjudication of rights',
alleged rights are affected for at most a limited time, and provision for security
ameliorates even such temporary effects.
Caron, Interim Measures, 502. On the substantive/procedural nature of interim
measures see supra Chapter 11, note 91.11
285 On the exercise of the discretion to determine such necessity, Pe onp88 / Caron
state'.
As to decisions on interim measures (those which do not affect the final
disposition of the rights of the parties nor terminate the whole proceedings), the
decision whether or not to grant a requested hearing should be made in light of
the particular circumstances. Sometimes the urgency of the matter may not
allow a hearing; in other cases the very nature of the measure requested may
that oral hearing be heard. The principle of party autonomy
recommend
be requested by both parties. Even
suggests that a hearing granted whenever
by only one of the parties, the arbitral tribunal should keep in
where requested
that Article 15(2) spells out the principle of right to a hearing. Should a
mind
291
8.3 Certain Other Considerations
on Ex Parte Arbitral Measures
For the grant of an ex parte arbitral
measure, all requirements sought
for the grant of an inter partes measure
should be satisfied. In addition,
it is clear that the onus is on the applicant to
prove that the tribunal has
prima facie jurisdiction on the case, if the jurisdiction is
yet to be
established. It is further, imperative that the applicant should
submit
convincing evidence that would justify an ex parte measure. Moreover,
the claimant should act in good faith and disclose
all facts,
circumstances and documents that are known to it. The absence of the
respondent in the proceedings justifies the claimant's duty to act in
287
good faith
.
The fairness upon which the arbitral power to grant an ex parte

provisional measure or a temporary restraining order is based on also
requires taking certain measures for safeguarding the right of the
respondent. In other words, an ex parte measure itself protects the
right of the applicant if it is granted. However, since the respondent
was not heard in granting such measure, its rights too need to be
288 There
safeguarded . are many safeguarding measures that can be
taken 289 First, the grant of an ex parte measure should be subject to
.
appropriate security. In addition, such measure, as indicated above,
party request a hearing abusively, that party may be forced to bear the costs
resulting from an unnecessary hearing. (Citation omitted.)
PellonpýM / Caron, 39-40.
286
See, Caron, Interim Measures, 502
287 On such duty see also supra Chapter 111, Part 2.4.1. The breach of this duty may
result in damages for which the moving party may be held responsible. See also
id.
288 However, an arbitral tribunal ought to carefully consider whether a measure
requested is "so severe that the possible damage can hardly be covered by the
payment of any security by the applicant" or "the amendment or withdrawal of the
interim measure is not sufficient to restore the status quo ante." In such cases,
the tribunal should give the right to be heard to the other party. Berger,
International Economic Arbitration, 338. Further, the tribunal may consider, for the
protection of the respondent's rights, whether by granting an ex parte measure it
infringes this party's confidence to the arbitration and whether they may face with
its accusation of "trial by ambush". Id.
292
needs to be open for amendment
or withdrawal following the
respondent's subsequent hearing, which be done as soon as
290
should
possible It is submitted, in this
. regard, that ex parte measures
should be given in the form of an order whose
revision or amendment is
relatively easier than an award.
Even if ex parte arbitral provisional measures are not available, an

arbitral tribunal can still give priority to the request for
Interim measures
for safeguarding the petitioner's rights 291 This
. approach of giving
priority relies on the assumption that the resolution of a
request for a
provisional measure may require a speedy action 292
.
9 Costs Regarding Provisional Measure Proceedings
The costs associated with proceedings for provisional

measures may
be substantial despite the fact that such proceedings constitute only
a
part of arbitration proceedings.
On who would bear such costs, national laws and arbitration rules are,
with one exception, generally silent. Article 21(4) of the AAA-ICDR

(International) Arbitration Rules 2003 provides that "[t]he tribunal may in
289 For other safeguarding measures, see Castello, 9-10.

290 Berger, International Economic Arbitration, 337. It is noteworthy that it
would be a
prudent practice to indicate within the text of the measure granted, for the sake of
clarity and as an indication to the respondent, that the amendment or revocation of
the measure is reserved. This prudent practice could even be followed for the
measures granted in inter partes proceedings. It should also be noted that "under
extreme circumstances" an ex parte measure should not be permitted. That is
particularly where the security for costs would not cover the potential damage or
where the "subsequent amendment or withdrawal would not be sufficient to restore
the status quo. " Marchac, 131; and Berger, International Economic Arbitration,
338.
291 See Rule 39(2) of the ICSID Arbitration Rules.
292 Note C to the 1968 ICSID Arbitration Rules, reprinted in 1 ICSID Rep. 99. Based
on this assumption, in ICSID arbitration, "the president of the Tribunal may, if he
considers the request as urgent, propose a decision to be taken by
correspondence (Rule 16(2)), or even convene the Tribunal for a special session. "
Id. In compliance with the above. approach, the tribunal took its decision on a
provisional measure by correspondence in AGIP v. Congo. Award, (8 January
1988), reprinted in 4 ICSID Rep 311.
-)g-,
its discretion apportion costs associated
with applications for interim
relief in any interim award or in the final award. " The logic behind this
provision is clear. Subject to the tribunal's full discretion, the losing
party may have to bear the CoStS293 of provisional measure
294
proceedings This logic should, in this author's be
. view, supported.
This is mainly because liability as to costs
may be used as a deterrent
factor to avoid vexatious application S295 for
There are, indeed, a few cases supporting the 296
above logic For
.
instance, in ICC case 10062, the arbitral tribunal denied the
application
for a provisional measure. The tribunal expressly held that the
costs
are to bp born by the losing party in the provisional measure
proceedings.297 Similarly, another ICC tribunal expressly left the
298
burden of costs to the losing party in those proceedings
.
Likewise, in Behring International, Inc. v. Iranian Airforce, the

respondents claimed that property warehoused by the claimant needed
to move in a more modern air-conditioned and humidity-controlled
facility in order to avoid further deterioration. The respondents also
293 Where the applicable rule or law contains no restriction, the scope of costs should
include costs for proceedings, the arbitral tribunal, and party costs. However, such
rules as Article 26 of the UNCITRAL Arbitration Rules restrict the measure that
could be granted to "subject matter" in dispute. Thus, it is argued that, under these
Rules, the party's costs are not recoverable. See Baker / Davis, 143, and van Hof,
177. In this regard, see also UN Doc A.CN.9/SR 166,187. Nevertheless, Article
26 should be read as providing interim protection in regard of rights related to
subject matter in dispute. See supra Chapter 11,note 113. Accordingly, since the
costs are concerning interim protection is related to rights regarding subject-matter
in dispute, they should too be recoverable.
294 The apportionment of costs may be made in an interim (partial) or in final award. It
should be noted that the costs initially borne by the moving party in the provisional
measure proceedings. See, in this regard, Pellonp66 / Caron, 449; Baker / Davis,
143; and Caron, Interim Measures, 504.
295 These are the applications aimed, in part or in full, to disrupt or delay arbitrations.
296 However, it be noted that where there is no specific party agreement
should also
as to the costs of arbitral interim measures, it is arguable that the parties'
agreement about the costs of arbitration proceedings should be applicable, for
instance, each party bears its own costs or the costs follow the success. See, e.g.,
Redfern / Hunter, paras. 8-85 - 8-92.
297 ICC Final Award 10062 of 2000 (unpublished).
294
requested appointment of an expert in order for mainly inventorying
the
goods warehoused. The Tribunal granted both of the
measures. In
regard of the goods, as both parties agreed that there
was a necessity
to avoid deterioration, the Tribunal asked the
claimant if it could make
available a modern part of its warehouse for the storage of the
goods.
In its interim award,299with respect to the
costs of the measures
concerned, the Tribunal ruled-
The Tribunal orders that, in accordance
with Article 26, paragraph
2 and Article 41, paragraph 2, of the Tribunal Rules, [which
are
identical to the UNCITRAL Arbitration Rules] Respondents
shall
provide [a certain sum of money] toward the expenses the
... of
expert and costs associated with his work, including the leasing of
the full Behring warehouse, to be deposited within 30 days from
the date of this Decision (and prior to actual commencement
of
inventorying and the other tasks assigned specifically to the
expert). This amount shall be remitted to account number in
the name of the Secretary General of the Iran-United States ...
Claims Tribunal This account shall be administered by the
....
Secretary-General of the Tribunal, who shall consult with the
Tribunal.
The Tribunal further retains jurisdiction to request from arbitrating

parties such other amounts as may be required from time to time
in connection with the expert's work, or to decide any disputes
which may arise in connection with that work. The Tribunal shall

299 Case No. 382, Interim Award No. ITM 46-382-3 (22 February 1985),
reprinted in 8
Iran-US CTR 44-48. The Tribunal issued three different awards on this issue. It
should, in this regard, be noted that the costs may be contained in an interim or
partial award or may finally be distributed in a final award. That may be done, for
instance, in accordance with Article 38 of the UNCITRAL Arbitration Rules.
Pellonp, ýýj / Caron, 449- and Baker / Davis, 143. Further, this author is aware of an
unpublished case arbitýated under the UNCITRAL Arbitration Rules where the sole
arbitrator ruled that the losing party born the costs of provisional measure
proceedings, including costs of parties. It is interesting to note that the wining party
in the provisional measure proceedings failed to convince the arbitrator on the
merits of its case. See also The AAA Task Force on the International Rules,
"Commentary on the Proposed Revisions to the International Arbitration Rules",
ADR Currents, 6,7 (Winter 1996-97); and Final Report on Awards, para. 10
(recommending that "[o]rders in relation to costs, including any proposed
allocations of costs between the parties, should be left to the final award. ").
Indeed, experience demonstrates that costs regarding provisional measures are
generally distributed in the final award.
"95
later determine which party will bear the costs of the expert's
300
work .
The tribunals' power to apportion costs should, if not expressly given,

arise from arbitration agreement or the power to grant provisional
measures. 301
10 Damages As Compensation for Arbitral Provisional Measures

Found to be Unjustified or Disobeyed
Where an arbitral provisional measure granted proves to be unjustified
or where it is disobeyed, the damages caused by such measure or

302
disobedience should, in principle, be recoverable For the purpose of
.
such recovery, such measure may, in principle, be
costs regarding
considered as part of damages. 303 The power to grant such damages,
if not expressly given, should arise from the broad interpretation of
arbitration agreement or may imply from the power to grant a
304
provisional measure .
Any such damages should be granted upon request and substantiated

by the moving party. Damages arising from disobedience of an arbitral
300 Behring International, Inc. v. Iranian Air Force, Case No 382, Interim Award No.
ITM 46-382-3 (22 February 1985), reprinted in 8 Iran-US CTR 47-48.
302 See Schwartz, Provisional Measures, 53. Any such recovery, particularly from a
court, is, apparently, subject to the permission under applicable law. The recovery
is available under laws of such countries as Australia (Bbsch (ed. ), 42-3), Austria
(id., 71-2), Belgium (id., 99), Brazil (id., 125-26), Canada, (id., 15), China (id., 170),
Denmark (id., 191-92), England (id., 222), Finland (id., 245-46), France (id., 271),
Germany (id., 298-99), Italy (id., 383), Korea (id., 399-400), Liechtenstein (id., 419-
20), Luxembourg, (id., 436), Mexico (id., 450), Morocco (id., 466), the Netherlands
(id., 499-500), Norway (id., 515), Panama (id., 532), Philippines (id., 556-57),
Scotland (id., 608), Sweden (id., 687), Switzerland (id., 719-20), and the U. S. (id.,
756-57). The scope and grant of compensation are naturally subject to
forth under the laws of each country concerned. If the damages
requirements set
from a court, arbitrators' decision on the merits is likely to be taken
are recovered
into account in determination of damages as it is the case in Denmark. See id.,
191. On the issue of damages, see also infra Chapter V, Part 1.2.
303 See Chapter IV, supra Part 9. Karrer indicates that whether costs are damages
Karrer, Less Theory, 103. See also, e. g., Redfern / Hunter, para. 7-
are not clear.
24.
'96
305
provisiona measure are examined elsewhere In assessing whether
.
the measure is unjustified, the tribunal should
use its discretion and
consider whether or not
9 there was, indeed, a real urgency,

the request for the measure was aimed at delaying
or obstructing
the arbitration proceedings, and
306
o the moving party claims were ultimately unsuccessful.
In the exercise of such discretion, arbitrating behaviour

parties'
throughout the arbitration should also be taken into account. The
damages are generally paid out from the security, if taken 307
.
Conclusion
The standards of procedure and principles for the grant of arbitral
provisional measures are very important. The importance is related to

the fact that the determination of such standards and principles assists
in efficacy of arbitration process by making it consistent and
308
predictable . The consistency and predictability makes arbitration
more effective dispute resolution mechanism.
Arbitration laws and rules are generally silent in respect of such
standards and principles. According to those laws and rules, arbitrators

are generally given broad discretion 309 They could either apply or
.
adopt the principles set out under the applicable law(s) (e. g. the law of
place of arbitration) or may take the guidance from arbitral case law in
establishing such standards and principles . 310 The former is hardly
305
See infra Chapter V, Part 1.2.
306
Schwartz, Provisional Measures, 53.
307 On the issue of security for damages, see this Chapter IV, supra Part 3.3.
308 See Chapter IV, supra note 1 and accompanying text.
297
ever done in practice whereas the latter is often observed. 311 In any
case, these standards and principles should be flexible to tailor-made
the appropriate measure in each case. Further, provisional nature of
such measure and specific needs of international commerce should,
inter alia, be taken into account. 312
This author suggests that the guidelines for the grant

of arbitral
provisional measures may derive from comparative analysis of
arbitration rules, arbitral case law, and scholarly opinions. This analysis
demonstrates that there is an emerging principles and standards
regarding transnational procedural rules on arbitral provisional

measures. 313 In this respect, it should be noted that although
arbitrators were very cautious about granting provisional measures until
the 1990s, the trend has been changin g. 314
This author suggests the following principles and standards for the
grant of arbitral provisional measures- It is the applicant who should

315
generally make a request for a measure . That is mainly because of
the principle of party autonomy. In rare cases, an arbitral tribunal may
too, in the absence of a request, grant such measure in order to avoid
aggravation of a dispute.
Such request should contain certain basic elements in order for

316
assisting the tribunal to render a decision The request should at
.
least include the relevant right whose protection is sought, kind of the
311
Id.
314 See Chapter IV, supra notes 14-15 and 17-24 and accompanying text.
315 On the initiation of proceedings for a provisional measure, see Chapter IV, supra
Part 1.1.
316
See Chapter IV, supra Part 1.2.
298
measure that is sought, and the circumstances that necessitate such
measure. The request may be made orally or in writing.
The request, as it is generally the case in practice, should be given

317
priority and handled in a short period of time
.
The requirements to grant a measure are not clearly defined under
arbitration rules or laws, although many of them leave the determination

318
of the requirements to the discretion of the tribunal The examination
.
of arbitration rules, laws, arbitral practice and scholarly opinions
demonstrates that there are positive and negative requirements. The
positive requirements are:
9 prima facie establishment of jurisdiction,
4o prima facie establishment of case,

o urgency,
* imminent danger, serious or substantial prejudice to the moving
party if the request for the measure is denied, and

lity. 319
0 proportiona
The negative requirements are-
the request should not necessitate examination of merits of the
9
case in question,
the tribunal may refrain from granting final relief in the form of a
0
provisional measure,
the request may be denied where the moving party does not
0
have clean hands,
9 the request may be denied where such measure is not capable
of being carried out;
317
See Chapter IV, supra Part 2.
318
319
299
* when the measure requested is not capable of preventing the
alleged harm; or
320
* the request must not be Moot.
The tribunal may seek the satisfaction of any or all of the above
requirements. The tribunal may further require from the applicant a
security for damages. 321 Alternatively, the tribunal may deny the
request upon receipt of an undertaking by the respondent that it will not
infringe the right whose protection was sought with the reque St. 322
Even if the tribunal refrains from granting the measure requested, it

may nevertheless expedite the proceeding to avoid any
in order
potential or actual prejudice to the rights of the applican t. 323 The
provisional nature of an interim measure justifies summary assessment

in regard of the asserted facts and rights. 324
An arbitral provisional measure traditionally takes the form of either an

325
order or an award . This measure may also be granted in the form of
decision, direction, request, proposal, recommendation, temporary
restraining order or else. The parties are at freedom to agree on the
form of a decision on such measure. In the absence of such
agreement, an arbitral tribunal generally has the discretion to determine

the most appropriate form. In such determination, the tribunal should
mainly take into account parties' will, potential savings of time and costs
for arbitrating parties, and effective and efficient conduct of
arbitration. 326 In any case, the tribunal ought to take into consideration
320
321
322
324
See Chapter IV, supra notes 65-67 and accompanying text.
325
300
327
mandatory provisions of lex arbitri. The form of "award" is chosen
where, among others, enforcement of the decision would be necessary.
In cases of urgency, the tribunal initially issues an ex parte order and
then, if necessary, incorporate it, into an award or a further order. The
ex parte order may take the form of a temporary restraining order. 328
Since the jurisdiction of an arbitral tribunal has a temporal element, the

tribunal could issue a provisional measure in a period between its
329
formation and its becoming functus OffiCio.
A provisional measure is aimed to have a provisional effect pending

final resolution of the case in dispute 330 Accordingly, it is bound to be
.
amended, revoked, or, otherwise, finalised in a final award. Such
measure, after its issuance, may be amended or revoked under
changed circumstances or in light of new facts or evidence.
Arbitration laws and, particularly, arbitration rules generally, in the
absence of party agreement, leave the discretion to determine types of

to an arbitral tribunal 331 The laws and rules generally
measures .
empower the tribunal to grant any and all types of provisional
measures. This power gives wide discretion to the tribunal. Such
discretion invites flexibility. The tribunal may generally grant any
measure available under lex arbitri, lex causae, and lex execution1s.
The tribunal may also grant the types of measures that are generally
granted in arbitration practice. To this end, it should be noted that the
tribunal is, in principle, not restricted with the types of measures
328
See Chapter IV, supra notes 156-161 and accompanying text.
329
330
331
301
available to a judge. Experience demonstrates that arbitral tribunals
generally granted on an interim basis*
measures for preservation of evidence,
injunctions,
security for payment,

security for costs, and
provisional payment.
Arbitral provisional measures are usually granted in inter partes

proceedings. However, where there is utmost urgency or where the
element of surprise is required, there is a need to have measures in ex

332
parte arbitration proceedings . Ex parte arbitral provisional measures
should be allowed in arbitration provided that certain safeguards are

ta ke n.
Costs regarding provisional measure proceedings should generally be

333
borne by the losing party The logic behind such trend is to deter or
.
punish any vexatious applications.
In cases where provisional measures granted prove to be unjustified or

disobeyed, damages caused by such measures or disobedience may,
334
in principle, be recoverable .
332 See Chapter IV, supra Part 8.

333 See Chapter IV, supra Part 9.
334 See Chapter IV, Part 10.
302
CHAPTER V
ENFORCEMENT OF ARBITRAL PROVISIONAL MEASURES
The weight and enforceability of a provisional measure differ depending
upon the issuing forum. Arbitral provisional measures are not self-
executing whereas judicial provisional measures are directly or through
execution offices enforceable at the state where they are ordered. '
Despite their non-coercive characteristic, arbitral provisional measures

traditionally have a certain weight. An arbitral tribunal, which is entrusted
by contracting parties with the power to resolve their disputes, has
persuasive powers over such parties. Due to such powers, the tribunal's
decision is often voluntarily complied with. 2 There may, however, be
occasions where those decisions are not abided. For such occasions, the
tribunal may have sanctions for the non-compliance. These sanctions are
mainly drawing adverse inferences and holding the recalcitrant party liable
for damages and costs. The weight and effect of these sanctions vary.
Each national statute provides for enforcement of decisions on provisional measures

of domestic judicial authorities. States back those decisions with coercive powers and
non-compliance with the decisions constitutes contempt to court. Such decisions,
however, is usually effective only within the borders of a state. In other words, they
generally have a territorial effect. A court order may have an extraterritorial effect
should the court be able to, under the competent law, threaten non-compliance of its
order with detention or a fine. In such countries as Switzerland (see Wirth, 39), the
U. S. (see, e. g., Gary Born, International Civil Litigation in United States Courts -
Commentary and Materials, 3rd ed. (The Hague / Boston. Kluwer 1996), 484-85), and
the UK (see e. g., id. ), such extraterritorial orders may be made. However, 'in such
cases, enforcement abroad "may be impossible. " Id., 935-36.
2 For instance, according to Aboul-Enein, all four of the measures granted in 2000 were
compiled with in arbitrations administered by the Cairo Regional Centre for
International Commercial Arbitration. Aboul-Enein, 81. Further, a survey done by the
AAA reflects that, in 90 % of the international and national cases (45 out of 50 cases
no,
Drawing adverse inferences concerning preservation
of evidence against
the recalcitrant party could provide full protection. However, the threat
of
holding such party liable for damages or costs may
not always be sufficient
for measures related to conduct of arbitration and
of relations between the
parties during arbitration proceedings. Further, where there is a threat of
dissipation of assets by one party, none of the above
sanctions would be
helpful to prevent the dissipation. Without assets against
which to enforce
the award rendered, being successful in arbitration is often meaningless.
Accordingly, the need for enforceability of arbitral provisional measures
differs depending upon the weight and effectiveness of the sanctions for
disobedience.
Due mainly to the varying weight and effectiveness of the sanctions for
non-compliance and to the varying need for enforceability, it is felt that the
issue of enforceability of arbitral provisional measures should be resolved
for making arbitration more effective. 3 There are several reasons
supporting enforceability of such measures-
surveyed), arbitrating parties comply with their tribunal's decision on interim relief.
Naimark / Keer, 26.
3 For a long time, the issue of enforcing arbitral provisional measures was not even
raised. There were some other important issues in promoting arbitration, e.g.,
enforcing arbitration agreements and awards, appointment of foreign arbitrators,
competence-competence, etc. For instance, on the problems of arbitration in the
1950s, see UN/ECE Doc Trade/WP1/12, paras. 41-42. These issues were resolved in
due course of time and arbitration developed to become, commencing from the
beginning of the 1980s and, particularly, with the boom of international trade in the
beginning of the 1990s after the collapse of the Eastern Block (or of the Berlin Wall),
the main dispute resolution mechanism of international commercial disputes. With
this development, attention is turned to resolving other issues or problems that would
assist promoting international commercial arbitration and would enhance its
effectiveness. See, e.g., UN Doc A/CN. 9/460; and LIN Doc A/54/17. The issue of
enforceability of arbitral provisional measures is thought to be one of those problems
that need to be tackled. But see Sanders, Quo Vadis, 417 (stating that it is possible to
live without making arbitral provisional measures enforceable. ).
304
The non-enforceability influences effectiveness of arbitral
provisional measures. That is simply because, the sanctions for
non-compliance with an arbitral provisional measure may not

always, and is potentially not sufficient to protect arbitrating parties'
rights on an interim basis. 4 That is also because parties are
reluctant to rely on the other parties' good will (voluntary
compliance) because of the concerns of predictability and hostility.
In other words, the traditional view that parties comply with the
decisions of arbitrators who are appointed by them does not find
general acceptance It Is not clear whether or not today
nowadays.
arbitrating parties have less goodwill 5 What is clear, however, is
.
that arbitrating parties want more predictability in regard of interim
protection of their rights.

It is also clear that the parties wish to avoid hostile tactics of the
opponent once the relationship with it becomes sour. Indeed, in

some cases, the parties do everything they can, including non-
complying with arbitral decisions and even challenging the
jurisdiction of arbitrators without justifiable grounds just to gain
tactical advantage over the opponent throughout the arbitration
(adjudication) process. 6
4 See Chapter V, infra Part 1.3. In this regard, it was stated that if a "temporary
equitable relief [a provisional relief] is to have any meaning, the relief must be
enforceable at the time it is granted, not after an arbitrator's final decision on the
merits. " See Pacific Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935
F2d. 1019,1023 (9th Cir. 1991). The Ninth Circuit further held that "[gliven the
potential importance of temporary equitable awards [on provisional relief] in making
the arbitration proceedings meaningful, court enforcement of them, when appropriate,
is not an 'undue intrusion upon the arbitral process, ' but essential to preserve the
integrity of that process. " Id. (Citation omitted. ).
5 See, e. g., Chapter V, supra note 2.
6 This is perhaps an unwelcome adoption of an American litigation tradition of hostility
to international commercial arbitration.
305
e Arbitrating parties are nowadays more concerned with the ease of
movement of assets from one country to another, generally to a
safe heaven The enforceability of arbitral provisional measures,
.7
particularly, their international enforceability, would, to a certain
extent, overcome a party concern of a Pyrrhic victory, i. e. becoming
successful in arbitration but finding no asset to enforce the award.
9 Nowadays arbitrating "parties have higher expectations of their
ability to enforce their rights. )8 The raise of this expectation9 may

be related to the predictability and speed required in international
commerce and to counselling provided by very able lawyerslo in the

resolution of international commercial disputes.
* Finally, a loss or damage that could be avoided with enforcement of
arbitral provisional measures should not be allowed to happen. " In

this regard, it is rightly
[a]rgued that resources would be used more efficiently if parties
were able to make their requests for interim measures directly to
the arbitral tribunal rather than to the court and if measures
would be enforceable by intervention of the court in an
expedited fashion. Such a possibility is said to be desirable, in
particular since the arbitral tribunal is already familiar with the
7 Indeed, for aiming to prevent the movement of assets to a safe heaven in international
litigation, the ILA Principles were introduced. See Introduction, note 13.
8 Doc A/C N.9MG. IIMP. 111, para. 7.
9UNThe commercial life is today more fragile and is open to crisis, as we have been
currently experiencing. In order to survive and to be a part of such commercial life,
speed and predictability are of the essence. Otherwise, businesses may take, in
some cases, a heavy burden that may cause its loss. Accordingly, it is tenable, under
such circumstances, why businessmen are generally eager in regard of the immediate
enforcement of their rights.
10 That is the involvement of lawyers who generally have offices in different countries
and familiar with all available tools for structuring a strategy for the resolution of a
dispute that is most suitable to their client's benefit.
11 UN Doc A/CN. 9ANG.IIMP. 108, para. 73, A "preventable loss or damage should not
be allowed to happen (e. if
g., a party refuses to take precautionary measures at the
or it fails to continue construction works while the dispute is being resolved). " Id.
site
306
.
case, is often technically appraised of the subject-matter and
may make a decision in a shorter time than the court. 12
Addressing the need for enforceability of arbitral provisional

measures,
laws of a number of states provide for enforcement of such measures.
Further, under some of these laws such measures are enforceable even if
the seat of arbitration is abroad. 13 Apparently, the approach of these laws
to the enforcement issue varies.
12 UN Doc A/CN. 9/WG. II/WP. 108,

para. 77. The reasons for making arbitral provisional
measures enforceable is closely related to and derived from the reasons for
empowering arbitrators to grant provisional measures. Perhaps, the most important
two of those reasons are avoiding (1) vagaries of various national laws and judicial
systems in respect of interim measures of protection, and (ii) abuse of requests for
interim measures of protection by preventing, to a great extent, forum shopping. See
UN Doc A/CN. 9ANG. IIANP. 108, para. 77. Also,
[o]btaining a court measure may be a lengthy process, in particular, because the
court may require arguments on the issue or because the court decision i's open to
appeal. Furthermore, the courts of the place of arbitration may not have effective
jurisdiction over the parties or the assets. Since arbitrations are often conducted in
a State that has little or nothing to do with the subject-matter in dispute, a court in
another State may have to be approached with a request to consider and issue a
measure. Moreover, the law in some jurisdictions may not offer parties the option
of requesting the court to issue interim measures of protection, on the ground that
the parties, by agreeing to arbitrate, are deemed to have excluded the courts from
intervening in the dispute; even if the courts would have the jurisdiction to order an
interim measure, a court may be reluctant to order it on the ground that it is more
appropriate for the arbitral tribunal to do so.
See UN Doc A/CN. 9MG. IIA/VP.108, para. 76. See alsn UN Doc A/CN. 9/460, para.
119. On those reasons for empowering arbitrators to grant provisional measures, see
generally supra Chapter I.1, Part 1.1.
13 Court decisions on provisional measures may have a cross-border or extra-territorial
effect through bilateral, regional or multilateral treaties or other instruments to that
effect. A court order may have an extraterritorial effect should the court be able to,
under the competent law, threaten non-compliance of its order with detention or a fine.
In countries such as England, Switzerland, and the U. S. extraterritorial orders may be
made. See Chapter V, supra note 1. There are a small number of bilateral treaties
dealing with the enforcement of those decisions. See Cremades, Exclusion, 108-109.
There is no multilateral treaty dealing with the enforcement issue. In this regard, it Is
noteworthy that the current draft of the Judgments Convention prepared by the Hague
Conference on Private International Law is not applicable to arbitration (Article 1(5)).
See Preliminary Doc No 8 (March 2003), Preliminary Result of the Work of the
informal Working Group on the Judgments Project available at <
ftp. hcch. net/doc/genaff pd08e. pdf> last visited at 28 October 2003. On a regional
-
level, for instance, neither the Conventions on the Enforcement of Judgments
Between the States of the Arab League (approved by the Council of the League of
307
Could arbitral provisional measures be enforceable through bilateral
or
multilateral treaties? There seems to be a few bilateral treaties enforcing
Arab States, Cairo, 14 September, 1952, entered into force 28 August 1953 published
in French in Recuell dAccords Interarabes 19 (Bureau des documentation Libanaises
et Arabes, Beyrouth 1966). For the English translation, see Saudi Arabia, Intl.
Handbook on Comm. Arb. (Suppl. 17 January 1994) Annex 111,17-4) nor the similar
conventions entered into in the Americas deal with such issue. See Treaty
Concerning the Union of South American States in Respect of Procedural Law signed
in Montevideo, 11 January 1889 published in 11 Register of Texts 5 (1973); and
Bustamante Code (Convention on Private International Law) signed at Havana, 20
February 1928 published in LNTS 246, no. 1950 (1929), and 11Register of Texts 18
(1973). It, however, seems that judicial provisional measures potentially have
extraterritorial effect within the European Union ("E. U. ") and the European Free Trade
Area ("E. F. T. A. ") countries under the Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters 1968 (done at Brussels
on 27 September 1968, OJ 1972 L 299,32; as amended. The Convention is
concluded between the E. U. member states. ), the Lugano Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters 1988, (done at
Lugano on 16 September 1988, reprinted in 28 ILM 620 (1989). This Convention is
concluded between the member states of the E. U. and the E. F.T. A. countries and iis a
parallel convention to the Brussels Convention. ), or the Council Regulation (EC) No
44/2001 of 22 December, 2000 on Jurisdiction and the Recognition and Enforcement
of Judgments in Civil and Commercial Matters (the "Regulation") (see OJ 2001 L 12,
1. ). The ECJ dealt with the issue of cross-border enforcement of a decision given in a
member state in Mietz. The dispute in this case arose from non-fulfilment of payment
obligations concerning a sale contract. One of the issues in question was whether
decision of a Dutch court on interim payment obtained in adversarial interim
proceedings (kort geding) is enforceable in Germany. The ECJ implied in Ml'etz that a
decision concerning provisional measures within the scope of the Convention may be
enforceable so long as the requirements set forth under the Brussels Convention's
enforcement regime is satisfied. See, e. g., Hans Hermann Mietz v. Intership Yatching
Sneek BV, Case C-99/96, (1999) ECR 1-2277,1-2318, paras. 54,56. See also, e. g.,
G. Maher / B. J. Rodger, "Provisional and Protective Remedies- The British
Experience of the Brussels Convention", 48 ICLQ 302,316-318 (1999); and Trevor C.
Hartley, "Interim Measures under the Brussels Jurisdiction and Judgments
Convention", 24 EL Rev 674,675 (1999). See also Denilauer v. Couchet, Case No.
125/79 (1980) ECR 1553, para. 17; Schlosser Report, 1979 OJ C59/71, para. 183',
Bernardini, 28; Maher / Rodger, 316-318; and Ali Yesilirmak, "Provisional Measures
under the Brussels Convention of 1968 and Arbitration", XX(4) BATIDER 215,226-
227. However, there needs to be a real connecting link between the subject matter of
the measure sought and the forum to which the request for the measure is made. See
Van Uden Maritime BV, Trading as Van Uden Africa Line v. Kommanditgesellschaft in
Firma Deco-Line and Another, Case C-391/95, (1998) ECR 1-7140. Where a measure
from forum, has the "real connecting link" then it is highly
need to be sought a which
likely that the measure is to be enforceable in such forum. Thus, there would be no
need for cross border enforcement.
308
14 None
arbitral provisional measures. of the multilateral conventions does
expressly provide for arbitral provisional measures' enforcement. Whether
or not such measures are enforceable under the New York Convention is
unclear. There are arguments both in favour and against the application of
the Convention's enforcement regime to provisional measures. 15 No firm
court precedent is yet to clarify the enforcement issue. The need for the
promotion and harmonisation of arbitral provisional measures' enforcement

is clear. In order to promote the enforcement of arbitral provisional
measures and harmonise the approaches of laws that deal with the issue
of enforcement, UNCITRAL is currently carrying out a study. 16
This Chapter examines sanctions for non-compliance, varying need for
enforceability, and enforcement of arbitral provisional measures.
1 Sanctions for Non-Compliance
Whilst the modern practice of arbitration was commencing in the beginning
of the last century, it was thought that arbitrating parties, generally, by
entrusting their disputes to arbitrators, comply with their decisions
Perhaps, the following belief arose from that thought: decisions

voluntarily.
on provisional measures (or on other issues) have
of arbitrators
traditionally their own weight and parties in practice are likely to voluntarily
those decisions. 17 Indeed, it was stated in the 1960s, for
abide with
instance, that an order on provisional measures would
frequently not require any enforcement on the ground that the party
for it is itself the one who has to carry out the order which,
applying
for its part, is required primarily for the purpose of removing any doubt
to take the measure of conservation is legally
that the party wishing
14
See Chapter V, infra Part 3.2.2.
15 1d.
16 See Chapter V, infra Part 3.3.
17 See, e. g., Bond in: ICC (ed. ), Conservatory Measures, 16.
309
.
entitled to do so. Nor must one forget that in [international
commercial] arbitrations which may be expected to form bulk of
...
those which these [international commercial arbitration] Rules apply a
large measure of voluntary submission under the arbitrators' rulings
may be 18
expected. (Citation ornitted. )
When the measure ordered is not complied with the issue of whether there
is a sanction for non-compliance becomes relevant. That is because
arbitrators lack imperium to coerce the recalcitrant party. 19 However, there
are other sanctions for non-compliance. These sanctions fall into two
categories. One of those is the possibility of drawing adverse inferences

by arbitrators if a provisional measure they were ordered is not complied
with .20 And the other one is that the recalcitrant party may be held liable
for damages. 21 In tribunal

costs and/or addition, an arbitral may impose
time limits for the compliance with its awards. 22 Such limits may have an
effect of psychological coercion. Moreover, the tribunal may even impose

a penalty for failure to comply with its decision if such penalty is permitted
under the law of the place of arbitration. 23
18 E. J. Cohn, "The Rules of Arbitration of the United Nations Economic Commission for
Europe", 16 ICLQ 946,966 (1967). Further, for instance, parties generally comply
with arbitral decisions on interim protection of rights. See Chapter V, supra note 2.
See also UN Doc. A/CN. 9/264, para. 5, extracts reprinted in Holtzmann / Neuhaus,
543.
20 In this regard, see, e. g., Article 19 of the Rules for International Arbitration 1994 of the
AIA; and Article 27(l) of the Arbitration Rules of the European Development Fund
(stating that if an award is not complied with the tribunal may take such failure into
See also UNCITRAL Doc A/CN. 9/264, para. 5; and Berger, International
account).
Economic Arbitration, 349.
21 See, e. g., U. N. Doc A/CN. 9/264, para. 5, extracts reprinted in Holtzmann / Neuhaus,
543; and Karrer, Less Theory, 103.
22 See Article 14(3) of the International Arbitration Rules 1996 of the Chamber of
National and International Arbitration of Milan-, and Article 19 of the Rules for
International Arbitration 1994 of the AIA.
23 Article 19 of the Rules for International Arbitration 1994 of the AIA. For more
information, see supra Chapter IV, Part 7.2.
310
This part examines, in detail, the issues of drawing adverse inferences
and
of holding the recalcitrant party liable for costs and/or damages
1.1 Adverse Inference
An arbitral tribunal may draw adverse inferences for not complying with its
ruling on preservation of evidence. 24 This is to say the tribunal, for

instance, considers that such evidence supports the case of the applicant
for it. The evidence ought to be in the recalcitrant parties' possession or,
at least, available to it.
Could the tribunal draw adverse inferences for non-compliance with any
other measure? The response should be negative. The tribunal could not
hold a party liable on the substance of the case in question just because
the party is uncooperative in regard of the tribunal's ruling on a provisional
measure. 25 This is because "[t]he obligation of an arbitral tribunal to act

fairly towards the parties extends even to parties that are 'difficu It' 26
.,,
However, one should keep in mind that arbitrators have a quite wide
leverage on adjudication of arbitration e. g., adjudging the evidence
submitted to them 27 It is, perhaps for this reason, argued that parties
.
24 Von Mehren states, in this regard, that a tribunal can "advise the parties that the
tribunal will draw whatever inferences it deems appropriate from a failure to comply
with an instruction to produce evidence. " Robert B. von Mehren, "Rules of Arbitral
Bodies Considered from a Practical Point of View", 9(3) J Int'l Arb 105,111 (1992).
See also, e. g., Bond in: ICC (ed. ), Conservatory Measures, 16. See also Article 9(4)-
(5) of the IBA Rules on the Taking of Evidence in International Commercial Arbitration.
25 See UN Doc. A/CN. 9AA/G.IIMP. 108, para. 76. See also UN Doc A/CN. 9/460, para.
119ý and Karrer, Less Theory, 103. The tribunal, for instance, cannot dismiss the
recalcitrant party's claim. Stalev, 110.
26
27 In this regard, see Ancel, 111 (arguing that an arbitral tribunal may take into account
in its final award the arbitrating party' good faith or failure in complying with its
decision on an interim measure).
311
generally refrain from "unnecessarily antagonising" their arbitrators.28 That
may be partly related to the fact that "parties are often concerned that
arbitrators will, at least subconsciously, have in mind the conduct of the
parties when deciding on the issues. 29
), In some cases, the conduct of the
parties may have a more direct effect. For instance, where there is an
issue of evaluation of evidence before an arbitral tribunal, it may take into
account the relevant party's previous behaviour e.g., whether or not such
party is trustworthy.
1.2 Damages and Costs
An arbitral tribunal may hold a "recalcitrant party liable for costs and
damages arising from [or related to] its non-com p lia nce" with the measure
it ordered. 30
The power to hold the recalcitrant party liable for costs and damages is
based on "a broad interpretation of the arbitration agreement itself since
the damages obligation arises in connection with the contract, more
precisely, in connection with the dispute resolution [clause] provided for in

the contract. 31
Y, It could also be argued that such power is implied "in the
28 Bond, 16. See also Schwartz, Provisional Measures, 59 (stating that [p]arties seeking
to appear before the arbitrators as good citizens who have been wronged by their
adversary would generally not wish to defy instructions given to them by those whom
they wished to convince of the justice of their claims. "); Redfern / Hunter, para. 7-23ý
and Born, International Arbitration, 972.
29 Bond in: ICC (ed. ), Conservatory Measures, 16. However, it is noteworthy that if the
applicable law, in an arbitration, leaves no room for an arbitrator's discretion and
"leads to a finding in favour of the party resisting the order [on a provisional measure],
the arbitrators will have no option but to apply it. " Jacques-Michel Grossen,
"Comment" in ICC (ed. ), Conservatory Measures, 115,116.
30 UN Doc A/CN. 9ANG. Il/WP. 108, para. 76. See also LIN Doc A/CN. 9/460, para. 119;
and UN Doc A /CN. 9/264, para. 5, extracts reprinted in Holtzmann / Neuhaus, 543,
and Stalev, 110.
31
312
power to issue interim measures. 1132This is because the security for costs
or damages aims to remedy possible damages that may arise from a
provisional measure granted. In this regard, there seems to be an intrinsic
link between the power to grant a provisional
measure and a security for
costs or damages. 33
The scope of costs would extend to those related to

Indeed, the scope would cover the expenses made due to
a party's
disruptivebehaviour that makes provisional measure proceedings lengthy
and/or expensive. 34
Multiple or punitive damages arising from disobedience with an arbitral
provisional measure can, in principle, be sought from an arbitral tribunal.

This is, however, subject to the scope of arbitration agreement and law
governing arbitration or arbitration agreement. 35
The amount of costs and damages that a party held liable could be
deducted from the security for damages or from the security for costs as
the case may be, if these securities were taken. 36
Varying Need for Enforceability
Despite the availability of the above sanctions for non-compliance, there
may still be cases where a party disregarding the sanctions may refuse to
32
Id.
33 See supra Chapter IV, Parts 3.3 and 7.4.
34 See Karrer, Less Theory, 103. See also supra Chapter IV, Part 10.
35 Lew / Mistelis / Krbll, para. 24-75, Redfern / Hunter, para. 8-13. See also, e.g., E.
Allan Farnsworth, "Punitive Damages in Arbitration", 7(1) Arb Int'l 3 (1991)1 M. Scott
Donahey, "Punitive Damages in International Commercial Arbitration", 10(3) J Int'l Arb
67 (1993); and Karen J. Tolson, "Conflicts Presented by Arbitral Awards of Punitive
Damages", 4(3) Arb Int'l 255 (1988). The enforceability of any arbitral decision on
punitive damages is subject to the law of place of enforcement.
iii
comply with a provisional measure issued by its arbitral tribunal. 37
Perhaps, one obvious example is the case
of dissipation of assets. If a
party is to dissipate all of its assets then it may have no fear of being
unsuccessful in the arbitration or of the threat of being held liable for costs
or damages. Another example is where a party, by non-complying, e. g.,
aggravating the dispute or cease to carrying out with the construction or
selling the goods in dispute may put a heavy burden on the other party
who may need to cave in or suffer heavily due to such burden prior to the
arbitrators' resolution. In those cases, the enforceability of arbitral
provisional measures becomes necessity for effective protection of rights
or in other words, effective resolution of the dispute.
However, the need for enforceability is not the same for all types of arbitral
interim measures. 38 The need is absolute for measures aimed to facilitate

later enforcement of an award (those measures that are aimed at
preventing dissipation of assets). That is because if "a party is determined

to attempt to thwart the enforcement of the award, the arbitral tribunal or
the interested party may have no effective means to avoid the negative
consequences of a party's failure to abide by the interim measure. " 39 In

fact, today, dissipation of assets is a lot easier: "twinkling of a telex" was
enough to dissipate assets ten years ago a click of a mouse from

'40
anywhere in the world is sufficient today. An award would be meaningless
it
if is not satisfied due to dissipation of losing party's assets to jurisdiction,
a safe heaven, where the award's enforcement is impossible.
36 See UN Doc A/CN. 9/264, para. 5.

37 UN Doc A/CN. 9/460, para. 118.
38 See, generally, UN Doc A/CN. 9ANG. Il/WP. 108, paras. 78-80.
39 Id., para. 79.
314
Further, there may also be a need for enforcing measures
related to
conduct of arbitration and to relations between arbitrating parties after a
dispute has arisen. The threat of possible liability for costs or damages
may assist with the compliance under which a party does not voluntarily
41
abide with the measure ordered. However, again there may be
circumstances where those sanctions might not be sufficient for the
protection of a party right. This is where, for instance, the loss of one party
is so grave that it may put that party in financial difficulty. In other words,
"the failure to comply with the measure may have severe and irreparable
consequences, and it might be regarded as being in the interest of an

orderly administration of justice to enforce an arbitral interim
...
measure. 42
In contrast, the degree of the necessity for enforcement of the measures

for protection of evidence may perhaps be less than the degree of
necessity for the other measures. This is because where an arbitrating
party
fails to comply with one of those measures, the arbitral tribunal may
"draw adverse inferences" from the failure and make the award on the
basis of information and evidence before it. In addition or
alternatively, the arbitral tribunal may take the party's failure to
comply with the measure into account in its final decision on costs of
the proceedings. Thus, with respect to these kinds of measures, the
arbitral tribunal may have considerable leverage over the parties,
the for court intervention. 43
which may reduce need
40 Deutsche Schachtbau-und Tiefbohr GmbH v. Ras Al Khaimah National Oil Co. and
Shell Petroleum Co. Ltd [1987] 2 All ER 769,772.
41 UN Doc A/CN. 9ANG. IIANP. 108, paras. 78-80.
42 Id.
43
Id., para. 78.
315
It is felt that the arbitrators' lack of coercive powers M44

causes a proble
and this problem may result in infringement of arbitrating parties' rights and
thus it may ultimately hamper the effectiveness of international
45
arbitratio n. The problem may, consequently, have adverse effect on the
future of international commercial arbitration.
In order to rectify the adverse effects of the above problem and foster
international commercial arbitration by making it more effective, laws of a
number of states offer various solutions, which, one way or other, make
decisions of arbitrators on provisional measures enforceable, generally,
through national courts. 46 In this regard, it is noteworthy that there is no
harmonised solution to the problem of arbitrators' lack of coercive powers.
The enforcement of arbitral provisional measures is allowed for either

domestic measures (the measures that are issued and enforced at the seat
of arbitration )47 or, under laws of a few states foreign measures (the
'48
measures that are to be enforced in a country other than the seat). In
44 In fact, the need for enforceability of arbitral provisional measures is emphasized by

several commentators. See, e. g., Otto Sandrock (see Blessing, Introduction, para.
876); Lord Mustill, 120; von Mehren, 122; and Wagoner, 68-73. Further, such need is
in the highest where "the losing party in arbitration has little to gain by obeying the
arbitration award and continuing its relationship with the prevailing party. " Hoellering,
Interim Relief, 4.
45 In this regard, it is noteworthy that coercive powers are generally not a problem in
litigation the sole competitor of arbitration for resolving international disputes and there
are efforts to resolve the problem of enforcing judicial interim measures abroad. See
Chapter V, supra note 13 and accompanying text.
46 It is noteworthy that laws of many states still do not deal with enforceability of arbitral
provisional measures. It Is also noteworthy that parties cannot confer on, by
agreement, their arbitrators with coercive powers as such powers are exclusive to
sovereign and are not delegated to private individuals. See, e. g., Jarvin, Exclusion,
180; Gaillard / Savage (ed. ), para. 1323ý and Cremades, The Need, 226.
16
addition, some bilateral treaties envisage enforcement of arbitral
provisional measures. Further, since the issue of arbitral provisional
measures' enforceability is not widely recognised and no harmonised

approach is taken in countries that recognise and regulate the issue,
UNCITRAL is currently undertaking and well-advanced on a study on the
issue for a harmonised and widely-accepted solution. 49
This Part examines enforcement of provisional measures at the seat of
arbitration and abroad. It also deals with UNCITRAL's harmonisation
efforts.
3.1 Enforcement at the Seat of Arbitration
Like any other decision of an arbitral tribunal, a decision on provisional
measures is expected to be 50
complied with . If a party does not abide with
the measure granted, the assistance of a competent court may, if possible,
be sought.
Laws of a number of states provide for enforcement of the arbitral

decisions on provisional measures where the seat of arbitration is within
these states. Accordingly, these decisions could be enforced through the
assistance of judicial authorities at the seat. National laws envisage four
main approaches for providing this assistance.
* The first approach is direct enforcement of an arbitral provisional
measure as if it were a court decision
* The second approach is national courts' executory assistance in
regard of the enforcement of such measures.

50 See Chapter V, supra note 2.
317
9 The third approach is recasting the decision
of arbitrators, as the
case may be, to transpose the arbitral decision into the legal system
of the state in question.
Finally, under the fourth approach, a court orders, by taking into
consideration the arbitral provisional measure, an interim measure

of protection of its own.
This Part examines these four approaches.
3.1.1 First Approach: Direct Enforcement of Arbitral Provisional

Measure as if It Were a Decision of a Court
The Ecuadorian Law on Arbitration and Mediation 1997 uniquely provides

that interim measures are directly enforceable without the need for court
intervention if parties so provide in their arbitration agreement. 51
This approach eliminates the time that would be spent were a court review
required for providing executory assistance to an arbitral decision on

interim protection of rights. The approach reflects utmost trust to arbitrator
as it equates an arbitral decision to a judgment. This author believes that

this approach reflects ultimate goal for arbitration world to reach as a
solution for resolving the issue of enforcement of arbitral provisional
measures. However, the pitfall of this approach is that there are no
safeguards if anything went wrong in arbitration. This is particularly

important in arbitration as there is no appeal against an arbitral decision
51 Article 9(3). This Article provides-

If the parties so provide in the arbitration agreement, the arbitrators may request
the assistance of public and judicial officers, the police and administrative
authorities if necessary to carry out the interim measures, without the need of
resorting to the court of the place where the property is located or the measures
are to be carried out.
318
although the decision may be reviewed under changed circumstances. 52
So for instance, if, for some reason, due process is not observed, there
would be no way of remedying this irregularity. This is, in practice,

unacceptable to international community and to business persons. Even
the enforcement of arbitral awards is subject to certain safeguards. These
safeguards are expressed, for instance, under Article V of the New York
Convention and Article 34-36 of the Model Law. The lack of safeguards
protecting the interest of state and business persons makes this approach
unacceptable.
3.1.2 Second Approach: Executory Assistance from National

Judicial Authorities
Under this approach, the judicial authorities are given executory assistance
for enforcement of arbitral decisions on provisional measures. In other
words, the arbitral decisions (usually orders) are enforced through judicial
authorities at the seat without any further (or at least with limited)
examination. Alternatively, the decisions are enforced as if they were
arbitral awards. This is to say that orders are effectively equated to
award S.53
Prior to examining the examples regarding this approach, it is useful to
note the UNCITRAL Secretariat's approach initially taken during the
preparation process of the Model Law in 1985. The Secretariat proposed

the following in regard of enforcement of arbitral interim
language
measures in the last sentence of Article XIV (Article 17 in the final text)-
" See supra Chapter IV, Part 6.

53 Sanders, Quo Vadis, 272.
319
If enforcement of any such interim
measure becomes necessary, the
arbitral tribunal may request [a competent court] to render
executory assistance. 54 ...
In the Fourth Working Group that discussed the issue

of enforceability a
divergent views were expressed but the above provision
was not adopted
since it dealt in an incomplete manner with a question of national
procedural law and court competence and was unlikely to be
accepted by many States. 55
The Working Group further noted that the avoidance of the adoption
should not be read as a preclusion of such executory assistance in

those cases where a State was prepared to render such assistance
56
under its procedural law.
There are several examples to the executory assistance from courts:

(i) Article 36 of the Bolivian Law on Arbitration & Conciliation
1997 states:
For the enforcement of interim measures, the production of
evidence or compliance with mandatory measures, the
arbitral tribunal or any of the parties may request the
assistance of the competent judicial authority of the place
where the measure or course of action mandated by the
arbitral tribunal is to take place.
(ii) Section 1297(92) of the Californian CCP provides:

Any party to an arbitration may request from the superior
...
court enforcement of an award of an arbitral tribunal to take
any interim measures of protection .... Enforcement shall be
granted pursuant to the law applicable to the granting of the
type of interim relief requested.
54 UN Doc A/CN. 9/WG. IIMP. 40, Article XIV of the Second Draft (Article 17 in the final
text).
55 UN Doc A/CN. 9/245,
para. 72.
56 Id.
320
(iii) In accordance with Article 24
of the Egyptian Arbitration Law,
where an arbitrator's order on interim or conservatory
measure is
not complied with, the applicant for the measure has the
right to
apply to the president of the court for an execution order. 57
(iv) In accordance with Article 22(2)

of the Arbitration Law of
Guatemala 1995, arbitral interim measures
could be enforceable
by a court.
(v) The English AA 1996 provides for enforcement of

cc
peremptory orders" on interim measures of arbitrators upon
request from either the arbitrators or from any of the parties. 58
For the enforcement of such order, a party needs to exhaust any
available arbitral process concerning the failure to comply with

the order 59 Another condition is attached to the enforcement.
.
The enforcing court needs to be satisfied that the order is not
complied with within the period of time as prescribed in the

arbitral decision, failing such prescription, within a reasonable
60
time.
57
A similar provision is contained under Article 24(2) of the Law of Arbitration on Civil
58
and Commercial Matters of Oman.
Section 42. A peremptory order (concerning interim protection) may be given where
arbitrating parties agreed to empower their arbitrators with powers to grant interim
measures and where, upon the grant of an interim measure, such measure is not
complied with. See Sections 41(l) and (5), and 42(2)(c) of the EAA 1996. The
definition of the term "peremptory order" provided for in Section 82 of the Act- a
.peremptory order' means an order made under Section 41(5) or made in exercise of
any corresponding power conferred by the parties. " Article 42 is not mandatory- the
parties can opt out from it. The decision on enforcement is open to appeal with the
59
court's leave. Section 42(5).
Section 42(3).
321
(vi) Section 2GG of the Hong Kong AO
reads:
An award, order or direction made
or given in or in relation to
arbitration proceedings by an arbitral tribunal is enforceable in
the same way as a judgment, order
or direction of the Court
that has the same effect, but only with the leave the Court
of
or a judge of the Court. If that leave is given, the Court or
judge may enter judgment in terms
of the award, order or
direction.
(vii) The Act on International Commercial Arbitration 1999

of Greece permits the enforcement of arbl*tral orders on interim
measures. 61 If there is a previous application to a court for a
similar measure, the enforcement of the arbitral order is not
authorised.
(Viii) Under the General Law of Arbitration 1995 of Peru, an

arbitral tribunal may request, for the enforcement of its ruling
62
concerning interim measures,
the assistance of the court of the place where the assets are
located or of the place where the measures are to be
adopted. The court shall proceed with the enforcement on
the merits of a certified copy of the arbitration agreement
and the arbitral ruling, without permitting any recourse or
challenge whatsoever. 63
(ix)According to Section 2712.14(B) of the Ohio International

Commercial AA,
[a]ny party to an arbitration may request the court of
...
common pleas to enforce an award of an arbitral tribunal
....
60
Section 42(4). It is noteworthy that the decision of the court as regards the
enforcement of a peremptory order could be appealed with the leave of the court. See
Section 42(5).
61
Article 17(2).
62
Interim measures that may be ordered are generally related to securing assets in
dispute.
63
Article 81(2).
322
which award orders a party to take any interim
measure of
protection. Enforcement shall be granted pursuant to the law
applicable to the granting of the type of interim measure
of
protection requested. (Emphasis added. )
(x) Under Article 24(4) of the Decree Law No. 5 1999

of
Panama, the carrying out of arbitral
provisional or protective
measures may be assisted by a judge. The judge shall carry out
the measure within ten business days from the request.
(xi) In accordance with the Singapore International AM 994,64

[a]II orders or directions made or given by an arbitral tribunal
in the course of an arbitration shall, by leave of the High
Court or a Judge thereof, be enforceable in the same
manner
as if they were orders made by a court and, where leave is so
given, judgment may be entered in terms of the order or
direction. (Emphasis added. )
(Xii) The Sri Lanka AA 1995 provides that arbitrators'

orders on interim measures may be enforced, upon a party
request, by the court. 65
(Xiii) Under the Switzerland PIL, unless otherwise agreed, 66

arbitratorS67 may seek assistance of a court for enforcement of
64
Section 12(5).
65
Article 13.
66
Through an agreement, the parties may too seek assistance of a court for the
67
enforcement of an arbitral interim measure. See Bucher / Tschanz, para. 172.
The benefit of taking the approach of empowering only arbitrators to seek
enforcement of an arbitral provisional measures is perhaps ensuring that all arbitral
recourse for making compliance with the measure is taken; thereby avoiding any bad-
faith applications to a court for the enforcement. The down side of the approach is
making arbitrators to pursue the enforcement proceedings before the court (e. g.,
preparing and making application to the relevant court, paying court charges, etc. ),
which could be better done by a party representative. In order to avoid a bad-faithed
application to a court for enforcement, taking into consideration the down side, a party
representative may be empowered to make the application but he could act only
_i' __
68
their decisions Such assistance may be required where an
.
arbitral order on provisional or protective measure is not
voluntarily complied with 69 The court or arbitral tribunal may
.
make granting of the measure subject to providing appropriate
security. 70
(Xiv) Under Section 2 of Article 249-9 of the Act Relating to

Arbitration and Conciliation of International Commercial Disputes
of Texas:
A party to an arbitration may request from the district court
...
enforcement of an order of an arbitral tribunal granting an
interim measure of protection Enforcement shall be
....
granted as provided by the law applicable to the type of
interim relief requested. (Emphasis added. )
where he is permitted by the arbitrators. In this regard, it should be noted that

whether a party, in the absence of such permission, may apply for the enforcement is
questionable. See Tijana Kojovic, "Court Enforcement of Arbitral Decisions on
Provisional Relief - How Final is Provisional? ", 18(5) J Int'l Arb 511,514 (2001).
68
Article 183(2). It is noteworthy that the parties could launch an appeal against a
court's enforcement order. Bucher / Tschanz, para. 176. On how a Swiss court would
apply this provision, Blessing state that the competent Swiss court "neither make a de
novo examination, nor simply affix a rubber-stamp on the Tribunal's order [on a
provisional measure] in the sense of exequatur. " He states that "the court will adopt a
middle-way and, in essence check on a prima facie basis, whether certain formal
prerequisites had been met and whether, on the merits, the urgency and/or the
exposure to irreparable harm or damages is sufficiently explained, and whether the
measures ordered by the Arbitral Tribunal are also available under the state court's
own domestic procedural law. " Blessing, Introduction, para. 862. The court shall only
enforce the measures available under Swiss law and it shall otherwise deny the
enforcement. It is argued that the court can transpose the arbitral measure into an
appropriate court order available under Swiss law. See, e. g., Wirth, 40. But see
Olivier Merkt, Les Mesures Provisoires en Droit Intemational Prive (Zurich- Schulthess
1993), 194-95.
69 If the
The tribunal need not have to await a party's non-compliance. circumstances of
the case or the conduct of a party demonstrates the party's unwillingness to abide with
the decision, the tribunal should apply directly to a court to prevent evasion from the
measure. Bucher / Tschanz, para. 172.
70
Article 183(3).
324
(XV) Article 62 of the Tunisian Arbitration Code 1993
provides:
If a party does not comply with
an arbitral order than the
tribunal may require the assistance of the
court.
(Xvi) In accordance Article 28 Law on

with of the
Commercial Arbitration 1998 of Venezuela:
The arbitral tribunal, or any of the parties with the approval of
the arbitral tribunal may request the assistance of the
competent court of first instance for the enforcement of the
...
required interim measures. The court shall entertain the
remiest within the scope of its jurisdiction and in accordance
with the applicable rules.
(Xvii) Under Article 17(3) of the AA 1996 of Zimbabwe, the
arbitral tribunal or a party with the approval of the tribunal may

request "executory assistance" of a court for the enforcement of
interim measures of protection.
Laws of some states extend the regime for enforcement of arbitral awards
to the enforcement of arbitral decisions on provisional measures. The
7 72 73
examples to those states are Australia, ' Bermuda British Columbia,
,
75
France '74 Ireland, Malta '76 New Zealand '77 Ontario '78 and Scotland
'79and
71 Article 23 of the International AA 1974 of Australia, as amended. In accordance with
this Article, the enforcement regime envisaged by the Act is also applicable to arbitral
orders for providing a security in relation to the measure ordered. Article 23 Is
applicable only where parties opt for it. See Article 22. This Article too provides that
the enforcement regime envisaged by the Act is also applicable to arbitral orders for
providing a security in relation to the measure ordered.
72 Article 26 of the Bermuda International Conciliation and AA 1993.
73 Section 2 of the International Commercial AA. The Act makes it possible to render
and interim award on preservation of property.
74 Pluyette, 88 (indicating that an arbitral decision granted in the form of "an interim
award or even a non-final one" may be enforced. ). Similarly, it is argued that awards
on provisional measures are enforceable in Belgium. Herman Verbist, "Reform of the
Belgian Arbitration Law (The Law of 19 May 1998)", 7 RDAI/IBLJ 842,848 (1998).
75 Sec. 14(3) of the Irish AA 1998.
325
U. S. 80
the Similarly, under the Dutch Arbitration Act 1986,
arbitrating
parties may empower their arbitral tribunal or only its chairman to grant
provisional measures in summary arbitral proceedings The decision
.81
given in summary arbitral proceedings is considered an arbitral award and
enforced according ly. 82
This approach reflects practically the most acceptable solution to the issue
of enforcement of an arbitral provisional measure. Since the enforcement

is permitted with the assistance of a court with certain safeguards, there is
a possibility that the court can remedy any irregularity e. g., due process is
not observed. The safeguards are clear for those laws that extend the
regime for enforcement of an arbitral awards to arbitral provisional
measures. The clearance of safeguards makes the process more
predictable. The predictability makes arbitration more effective. The pitfall
of this approach is the time spent for courts for giving permission for
enforcement of an arbitral decision.
76
Article 62 of the Malta AA 1996. The Act allows the enforcement of both interim
77
measures and orders granting security concerning such measures.
Section 17(2) of the First Schedule to the New Zealand AA 1996.
78
Section 9 of the International Commercial AA. The Act treats orders on interim
79
measures as if they were arbitral awards.
Article 17(2) of Schedule 7 to the Law Reform (Miscellaneous Provisions) (Scotland)
Act 1990.
80
Although, the U. S. Federal AA (see 9 USC 1 (1925)) is silent on the issue, several
courts have enforced arbitral provisional measures. See Sperry Int'l Trade, Inc. v.
Israel, 689 F. 2d 301 (2d Cir. 1982); Island Creek Coal Sales Co. v. Gainsville, 729
F.2d 1046 (6 th Cir. 1984); Meta IIgese IIschaft AG v. MN Capitan Constante, 790 F.2d
280 (2d Cir. 1986); Southern Seas Navigation Ltd v. Petroleos Mexicanos of Mexico
City, 606 F. Supp 692 (S. D. N.Y. 1985); and Puerto Rico Maritime Shipping Auth. V.
Star Lines Ltd, 454 F. Supp. 368,375 (S. D. N. Y. 1978). On some of those cases, see
Chapter V, infra note 108. See also Holtzmann / Donovan, 37 (indicating that an
interim award on a provisional measure should be enforced in the U. S. just like any
81
other arbitral award. ).
Article 1051(l).
82
Article 1051(3). The decision not given in summary proceedings are not considered
awards. Thus they are not enforceable by a court. See C. C. A. Voskuil, "Provisional
326
This second approach, in this author's opinion, is the
right way forward for
international commercial and it is in line with the enforcement
arbitration
regime created by the New York Convention, which system has worldwide
acceptance. It should be recalled that the enforcement
of a final award
needs to be done through courts in order for them to assess, either ipso
iure or, upon a party request, that the tribunal has
observed some basic
safeguards. 83 Similar safeguards should be observed for enforcement
of
arbitral provisional measures. In establishment of the safeguards, the
characteristics of arbitral provisional measures should be taken into
account. 84
3.1.3 Third Approach: Transposition of Arbitral Order Into Court

Order
This approach requires "exequatur or transposition of the arbitral tribunal's
measure into a measure that could have been issued by a court and will be
treated accordingly by the state court system. ,85 In accordance with Article
1041(2) of the German CCP, upon a party request, the court may permit
enforcement of an order on an arbitral provisional measure 86 The pre-
.
requisite for the enforcement is, as indicated in the same Section, that no
Measures in Arbitration", in: C. C.A. Voskuil (ed. ) Hague-Zagreb- Gent Essays on the
Law of International Trade (1988), 108,124.
83 These safeguards are set out, for instance, in Articles 34-36 of the Model Law and
Article V of the New York Convention.
84 See supra Introduction, notes 19-34 and accompanying text. On the principles in
establishing such safeguards, see Chapter V, infra notes 132-142 and accompanying
text.
86 This permissive language gives German courts the discretion to deny applications
where the measure applied is not enforceable in its form under German law. See
Friedrich Niggemann, "The New German Arbitration Law", 6 RDAI/IBLJ 656 (1998),
and Schaefer, Part 4.2.2.3. It should be noted that Article 1063(2) of the German
CCP allows enforcement of ex parte arbitral provisional measures.
3`7
87
prior application to a court for the same measure is made The court is
.
empowered to recast the order concerning the measure for the aim of
enforcement. 88 In addition, the court may, again upon a party request,
repeal or amend the order. 89 If the measure ordered and then enforced is
"unjustified from the outset, the damages incurred as a result of the
enforcement may be recovered through arbitration or court proceedings-90
This approach complements the second approach. It enhances court

assistance to the enforcement of arbitral measures. It has the same pitfall
as the second approach. Further, by allowing the recast of an arbitral
decision to make it enforceable, it opens the way for further court review of
such decision. As a result some safeguards should be taken to avoid court

review of the substance of the arbitral measure ordered.
3.1.4 Fourth Approach: Enforcing Separate Court Order Based on

Arbitral Provisional Measure
Under this approach, a court issues its own, separate order, which is
inspired from, or which takes as conclusive the measure of an arbitral
tribunal. 91 Laws of Kenya, New Zealand, North Carolina, and Oregon are
some examples to this approach:
(i) Article 7(2) of the Arbitration Act 1995 of Kenya states:

If an arbitral tribunal has already ruled on an interim measure
the court treat it as conclusive for the purpose of application
[for an interim measure].
87 The other unwritten pre-conditions are whether or not the arbitration agreement is
is "wholly " Schaefer, Part 4.2.2.3.
valid and the order misbalanced.
88 Article 1041(2).
89 Article 1041(3).
90 Article 1041(4). In accordance with the same Article, damages incurred in cases
for suspension of the enforcement may also be recovered.
where a security provided
n -)
-328
(ii) Article 9(3) of the New Zealand AA
provides:
Where a party applies to a court for
an interim injunction or
other interim order and an arbitral tribunal has already ruled
on any matter relevant to the application, the court shall treat
the ruling or any findings of fact made in the course of the
ruling as conclusive for the purposes of application.
(iii) Under Section 1-567(39) of the North Carolina International

Commercial AA,
(b) a party to an arbitration may request from the

... ...
superior court enforcement of an order of an arbitral tribunal
granting interim measures
....
(d) In considering the enforcement of interim measure, the

...
court shall give preclusive effect to any finding of fact of the
arbitral tribunal in the proceeding, including the probable
validity of the claim that is the subject of the interim
...
measures granted.
(e) Where the arbitral tribunal has not ruled on an objection to

its jurisdiction, the court shall not grant preclusive effect to the
tribunal's findings until the court has made an independent
finding as to the jurisdiction of the arbitral tribunal. If the court
rules that the arbitral tribunal did not have jurisdiction, the
application for interim relief or the enforcement of interim
measures shall be denied. Such a ruling by the court that the
arbitral tribunal lacks jurisdiction is not binding on the arbitral
tribunal or subsequent judicial proceedings.
(1v)In accordance with Section 36.470(2) of the Oregon

International Commercial Arbitration and Conciliation Act, 92
92 Sec. 19.08.03 of the Florida International AA provides for a somewhat similar

provision. Under this Section, the tribunal itself, or a party with its permission to seek
the assistance of "a state court, tribunal or other governmental authority" for securing
the objectives intended in the arbitral interim measure.
3-9
.
[a]ny party to an arbitration may the circuit court to
... request
take any interim measure of protection of
an arbitral tribunal
Enforcement shall be granted pursuant to the law
applicable to the granting of the type of interim relief
requested.
This fourth approach reflects the least trust of all approaches to

arbitrators
for interim protection of rights. This approach is also cumbersome
and, in
this author's view, less favourable of all. This is mainly because this
approach requires double proceedings for obtaining a provisional measure;
one before the tribunal, and then one before a court. Since the time is
often the essence for interim protection of rights, this approach should
have the least preference.
3.2 Enforcement Abroad
Due to the progress of "internationalisation" since the beginning of the last

decade, "the problem has emerged of enforcing interim measures
...
overseas outside the seat of arbitration. ,93 Indeed, it Is vitally important
and necessary that an arbitral provisional measure is enforceable in a
place other than the seat of arbitration. That is because the seat (or the
place) of arbitration often has nothing to do with the parties or the dispute
in question. 94 Indeed, arbitrations are generally held in, albeit carefully
considered and chosen by arbitrating parties, a convenient place that is

often neutral to the parties and subject matter of underlying legal
relationsh ip. 95 For instance, in international arbitration, often, parties have
no assets at the seat of arbitration, the construction contract involves work

in a place other than the seat, or the distribution agreement has no
connection with the seat. As a result, an arbitral provisional measure
93 Veeder, The View, 207.

94 See, e. g., Bond, 14.
95
Lalive, 23-33.
1ý0
should be enforceable outside the seat of arbitration. The enforcement
outside the seat may be sought either under national law of a foreign state,
or in accordance with a treaty. These two possibilities will be examined
below.
3.2.1 Enforcement Through National Laws
Arbitral provisional measures may be enforced abroad where the law of the
forum of enforcement allows their enforcement. In other words, courts of
the enforcement forum lend their assistance
to arbitrators seated in a
foreign state. Laws of a few states e. g., Australia, 96 Hong Kong, 97 and
Switzerland 98 permit the enforcement of arbitral provisional measures
issued abroad. 99
3.2.2 Enforcement Through Treaties
An international treaty may permit enforcement of an arbitral provisional
measure rendered by an arbitral tribunal whose seat is outside the place

where the enforcement is sought. There are, indeed, a small number of
bilateral treaties permitting enforcement of arbitral provisional measures. 100
In contrast, there is no multilateral treaty under which the possibility of
96 See Articles 22 and 23 of the International AA 1974 of Australia, as amended.

97 Section 2GG of the Hong Kong AO. See also Robert Morgan, "Enforcement of
Chinese Arbitral Awards Complete Once More - But with a Difference", 30 HKLJ 375,
379(2000).
98 Karrer, Less Theory, 108. However, there are conflicting views as to whether or not
arbitral decisions concerning provisional measures are enforceable in Switzerland.
See Kojovic, 516.
99 For instance, Article 42 of the EAA, which provides for enforcement of arbitral
peremptory orders is not applicable where the seat of arbitration is outside England,
Wales or Northern Ireland. See Section 2(2) of the AA. See also Bocotra
Construction Pte Ltd v. Attorney-General of Singapore [1995] 2 SLR 523.
'00 See, e. g., SLsbastian Besson, Arbitrage Internatlonal et Measures Provisoires - Etude
de Drolt Compar6 (Zurich: Schulthess 1998), 351-352. It is also interesting to note
that arbitral provisional measures are made enforceable through an annex to a
tripartite treaty (between Azerbaijan, Georgia, and Turkey). Article 18(11) of the Host
fin
33
international/transnational/cross-border
enforcementof arbitral provisional
measures is expressly dealt with. To this end, it should be noted that
neither the text of the New York Convention nor the preparatorymaterials
on it do explicitly deal with the Convention'sapplicationto enforcementof
those measures. It is only an educated guess that the drafters of the
Convention did not consider, nor was it in their mandate, to create a
mechanism under which arbitral provisional measures might too be
101
enforceable. Further, it is noteworthy that there are only a few and
contrastingcourt decisionson the issue of whether an interim measureof
protectionis enforceable under the Convention. The contradictionexists
as to the views of commentators.
The Supreme Court of Queensland denied the enforcement under the New
York Convention of an provisional measure in Resort
arbitral
Condominiums International Inc. v. (1) Ray Bolwell and (2) Resort
Condominiums (Australasia) Pty. Ltd.102 In this case, parties enter into a
licence agreement relating to time-sharing business in Australia, Fiji, New
Zealand, and Tahiti. ' 03 The agreement made a reference to arbitration
under the AAA Arbitration Rules in Indianapolis, U.S. Disputes on several

issues arose between the parties. Resort Condominiums International
("RCI") made a request for injunctive relief in Indiana State Court and filed
a request for arbitration. The Court's temporary restraining order
Government Agreement published in the Turkish Official Gazette, 10 September

2000, No. 24166(bis).
... The concept of arbitral provisional measures was not considered an important issue in
the 1950s and not even in the 1970s, See supra Introduction,note 54.
102Excerpts published in XX YCA 628-650 (1995) (Supreme Court of Queensland, 29'h
October, 1993). See also Pryles, 385-394.
103This business "operates principally by way of exchange whereby a person agrees to
utilise the time sharing facilities of a resident in another country, who in turn has the
reciprocal right to utilise the time sharing facilities of the first person in that person's
country." XX YCA 629.
332
requested the respondents to supply and provide access to certain
information. Resort Condominiums Australasia ("RCI Aust. ")
removed the
case to the federal district court and moved to vacate the order. A few
months later, the district court granted, upon a request, a preliminary
injunction enjoining the respondents from, inter alia, "directly or indirectly
operating or entering into an agreement with any exchange entity other
than RCI 13and from, in broad terms breaching the licence agreement.
Within two days, the sole arbitrator, after her appointment, granted an
order broadening the terms of that injunction. 104 The order was tagged as
"interim arbitratic, i order and award" for, probably, facilitating enforcement
in either form. The Supreme Court of Queensland denied the enforcement

of the arbitrator's decision on several grounds. The Supreme Court took
the view that an award on an interim measure needs to deal with one or
more of the differences or disputes referred to arbitration. 105
In addition, according to the Queensland Court, an arbitral decision needs

to be a final and binding award for its enforcement under the New York
Convention. The Court held that the determination of the arbitrator of its
decision as an "award" does not make such decision an award within the
meaning of the Convention. The Court based its finding on the

determination that the arbitrator's injunction is of "an interlocutory and
procedural nature and in no way purport to finally resolve the disputes

...
referred by RCI for decision or to finally resolve the legal rights of the
parties. "' 06 The Court added that such injunction is "provisional only and
liable to be rescinded, suspended, varied or reopened by the tribunal which
104
Pryles, 387-390.
105 XX YCA 640. In this regard, the Court held that the arbitral decision is not even an
is an interlocutory decision on a procedural point. To this end, the Court
award as It
Three Valleys Water Committee Binnie and Partners, (1990) 52 BLR 42,
referred to v.
52.
pronounced them 007 In
.... sum, according to the Court, the arbitrator's
description of her decision as "award" does
not make it an award within the
scope of the Convention provided that the decision finally
resolves the
parties' legal rights. 108 The Queensland's Court further indicated that
a
decision that could be enforceable under Articles 8(1)
and (2) of the
Queensland AA (Articles 1(1) and (3) of the Convention)
needs to be "final
and binding )) on the parties. Although, according to the Court, an
interlocutory order, in one sense, is binding
until it is varied or discharged,
such an order that may be rescinded, suspended, varied or reopened by
the tribunal was not final and binding on the arbitrating parties. 109 Thus,
the Court refused the enforcement of the arbitral decision.
In contrast, some U.S. courts held that an award on provisional measures

is, under certain circumstances, enforceable under the New York
Convention. For instance, in Sperry International Trade, Inc. v.
Government of Israel, 110 a contract requiring Sperry to design and
construct a communication system for the Israeli Air Force. Under the
contract, Sperry caused Citibank N.A. to open an irrevocable letter of credit
in favour of Israel, which could be called upon Israel's certification that
Sperry is in breach of the contract. Sperry initiated arbitration proceedings
claiming breach of the contract and eventually requested from the

arbitrators to enjoin Israel from calling the letter of credit. The arbitrators
ordered, in an "award, " that the proceeds of the letter of credit was to be
106
XX YCA 630.
107
XX YCA 630.
108 XX YCA 641. The Court based its decision on Articles l(l), 1(3), V(1)(c), V(1)(e), and
VI of the Convention. XX YCA 636-640. The Court did not examine whether an
interim award is enforceable under the New York Convention. It observed that "[1]t
would appear to be unduly restrictive if the expression 'arbitral award' in the
Convention was construed as excluding a valid interim award. " XX YCA 641.
109
XX YCA 642.
110 532 F. Supp. 901 (S. D. N.Y. ), aff'd., 689 F. 2d 301 (2 Cir. 1982).
34
held jointly by Israel and Sperry in an escrow account pending a decision
on the merits. Israel argued that the award is not final and, therefore,
could not be enforced. The court rejected this argument holding that the
award was severable from the merits and because, by its nature, it
required "affirmative action," the award would be rendered a meaningless

of the arbitrators' powers if it were not enforced."' Accordingly,
exercise
the court confirmed the award.
532 F. Supp. 909. See also Ministry of Finance and Planning v. Onyx Development
Corp., 1989 U.S. Dist. Lexis 11995 (S.D.N.Y. 1989) (confirming a partial/final award
on provisional measures. ); (1) Publicis Communication and (2) Publicis S. A. v. True
North Communications, Inc., 206 F.3d 725 (7th Cir. 2000) (ruling that the arbitral
provisional measure in the form of an 'order' on turning over tax records is final as it
finally resolves a separable issue from the substance of the case in question.) The
Publicis court also cited several cases and ruled that arbitration between the parties
"is controlled by the New York Convention, not the Federal AA. But the New York
Convention supplements the Federal AA, and the logic of decisions applied to the
latter may guide the interpretation of the former." 206 F.3d 729. Indeed, there are
several cases that are considered under the Federal AA and that are in line with the
rationale of Sperry and Publicis cases. In those cases, courts went "beyond a
document's heading and delve into its substance and impact to determine whether the
decision is final." Id., 729. The resemblance of the Publicis court's approach with the
Brasoif decision is noteworthy. See Braspetro Oil Services Company v. The
Management and Implementation Authority of the Great Man-Made River Project
extracts from the French original published in XXIVa YCA 296 (1999) (1 July 1999,
Court of Appeal, Paris) (holding that the arbitral tribunal's qualification of its decision
as "award" does not make the decision an award). In this regard, see also Southern
Seas Navigation Limited of Monrovia v. Petroleos,Mexicanos of Mexico City, 606 F.
Supp. 692 (SDNY 1985) (holding that an interim award on an interim measure *is,an
end in itself, for its very purpose is to clarify the parties' rights in the 'interim' period
pending a final decision on the merits. The only meaningful point at which such an
award may be enforced is when it is made, rather than after the arbitrators have
completely concluded consideration of all the parties' claims. "); Island Creek Coal
Sales Co. v. City of Gainsville, Florida, 729 F.2d 1046,1049 (6h Cir. 1984), cert.
denied, 474 U.S. 948,106 S. Ct. 346,88 L. Ed.2d 293 ("ruling that interim award on
an interim measure "disposes of one self-contained issue, namely, whether [a party) is
required to perform the contract during the pendency of the arbitration proceedings.
The issue is a separate, discrete, independent, severable issue."); Pacific
Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019 (9", Cir.
1991) (holding that "temporary equitable orders calculated to preserve assets or
to
performance needed make a potential final award meaningful are final orders
... Casualty Co.,
and Yasuda Fire & Marine Ins. Co. of Europe, Ltd. v. Continental
37 F.3d 345 (7th Cir. 1994) (confirming an interim order directing Yasuda to post an
interim letter of credit in the certain amount.).
335
Some commentators argue that a decision
on a provisional measure is not
enforceable under the New York Convention. These commentators
indicate that such decision should not/cannot be issued in the form of an
interim/partial award. That is generally because, in their
view, such
decision is, unlike an award, not final but to 112
subject review or revocation.
Some other commentators take the view to
contrary. These commentators
rightly argue that an award is enforceable under the Convention so long as
it is "an enforceable award in the jurisdiction in it is "' 13 The
which granted.
112 See, e. g., Bucher / Tschanz,

para. 176; and Karrer, Less Theory, 109 (collectively
arguing that interim measures cannot be issued in a form of an award); Berger,
International Economic Arbitration, 345; Craig / Park / Paulsson, ICC Arbitration 2000,
466; and Pryles, 394 (arguing that enforcement of provisional
measures is probably
not envisaged by the drafters of the Convention and that since an interim award is
interlocutory in nature and thus could not be final and binding, it falls outside the
scope of the Convention. ). Jarvin, too, seems to follow this view as he thinks that the
New York Convention is only applicable to "final awards". Jarvin, Alternative
Solutions, 403. See also UN Doc A/CN. 9/WG. II/WP. 108, n. 12. para. 83 (14 January
2000).
113 These derive from Article
arguments V(I)(e) of the Convention, which provides that the
recognition and enforcement of an award may be refused where "[tlhe award has not
yet become binding on the parties or has been set aside in which, or under the law of
which, that award was made." See Gurry, 4. See also Albert J. van den Berg, The
New York Arbitration Convention of 1958 - Towards a Uniform Judicial Interpretation
(Kluwer 1981), 337-346 ("New York Convention"); Albert J. van den Berg, "The 1958
New York Arbitration Convention Revisited" ("Revisited") in- Pierre A. Karrer (ed.),
Arbitral Tribunals or State Courts: Who Must Defer to Whom?, ASA Special Series
No. 15 (Basel 2001), 125,141 ("Arbitral Tribunals"); WIPO Document ARB/AC/111/96/3,
para. 10, Holtzmann, Remarks, 205; von Mehren, 361-62; Bernardini, 28. Gerold
Herrmann, "Does the World Need Additional Uniform Legislation on Arbitration?",
15(3) Arb Int'l 211,230 (1999) (indicating that "an interim measure is not only 'binding'
(on the parties) but also 'final' in the sense of 'definite' according to its terms, which
typically include a time limitation or a revision possibility."); Veeder, The View, 210
(arguing that the New York Convention "could allow" the enforcement of provisional
measures. "); Holtzmann / Donovan, 37 (indicating that an an award on arbitral
provisional measures is enforceable in a court just like any other arbitral award.);
Schwartz, Discussion, 215 (indicating, in criticising Queensland Supreme Court's
decision, that an award on provisional measure should have been enforceable under
the New York Convention "even though by its nature an interim award is not final.")-,
Walter G. Semple, "The UNCITRAL Model Law and Provisional Measures in
International Commercial Arbitration", 3 ADRLJ 269,271 (1994) (stating that the New
York Convention applies to all types of awards, including interim awards)- and
ýhould
Marchac (stating that a provisional measures rendered in the form of an award
normally be enforceable). Gurry seems to agree with the Schwartz's analysis. Id. In
this respect, it is submitted that interim measures could be granted in a form of
3')6
law of such jurisdiction may require that a decision is to be final
and
binding to be considered as an award. ' 14 Accordingly,
although the New
York Convention expressly refrained from using the term "final" for
awards'
enforceability, ' 15an award on a provisional measure may be required to be
"final and binding" for the enforcement under the Convention-' 16
Alternatively, as the Queensland Court did, a court might
misread the New
York Convention by requiring that the award should not only be binding but
also be final. In such cases, an award needs to satisfy two criteria: it

needs to be both final and binding. ' 17
As regards the "binding )7 nature of an interim or partial award on a
provisional measure under Article V(1)(e) of the New York Convention, an

award (or an order) on an interim measure is "contractually binding upon
parties" either because they explicitly accepted the binding nature of the
summary awards that could also be enforceable under the Convention. Karrer, Less
Theory, 99-100. Interim measures could be issued in the form of summary
provisional awards in such countries as England (Section 39), France (see Karrer,
Less Theory, 100), and the Netherlands (Article 1051).
114 Laws of a number of states expressly contain a provision on finality of an award. See,
e. g., Article 1703 of the Belgium Judicial Code; Article 1476 of the France CCP; Article
1055 of the German CCP; and Article 1059 of the Netherlands A.A.
115 See, e. g., van den Berg, New York Convention, 333-337.
116 See Blessing, Introduction, para. 874 (arguing that where the test for the enforceability
under the Convention is its finality in a strict sense (with res judicata effect) then this
test would not meet for interim awards on provisional measures).
117 It is noteworthy that an award on provisional measures should be considered within
the scope of differences or disputes referred to arbitration. The Queensland Supreme
Court's decision that an interim award should deal with one or more of the issues
originally referred to arbitration i's wrong. See van den Berg, Revisited, 143. That is
simply because an interim award aims to deal with interim protection of rights whose
final protection is sought in arbitration. Hence, such issues could not be considered
out of the scope of differences originally referred to arbitration. Also, such late issues
regarding interim measures should be considered as sub-disputes attached to original
disputes or differences. This argument was raised in Resort CondomIniums but
denied by the Court. See XX YCA 636.
3)
118
award or because the authority to grant such measure is vested with the
arbitral tribunal. 119
As to the finality of an award on a provisional measure, an interim award or
a partial award, in order to be final, needs to dispose of an issue in dispute.

To this end, it is arguable that an interim award is final in respect of the
issues it deals with so long as these issues are separable from the
remaining issues. 120 The prevailing view in U.S. practice supports that
argument. 121 It is rightly submitted that the "pragmatic approach" taken by
118 See, e. g., Article 28(6)

of the ICC Arbitration Rules 1998- and Article 32(l)-(2) of the
UNCITRAL Arbitration Rules. Indeed, the award shoulý be considered binding so
long as parties agreed in advance to accept it as binding. Derains, Refere Arbitral,
189. Further, van den Berg states'.
An award will be enforced in accordance with its terms. If one of the terms is that
the order contained in the award is for a limited period of time, the enforcement will
correspondingly cover that period of time. If the interim [or partial] award is
subsequently rescinded, suspended or varied by an arbitral tribunal, that will as a
rule be laid down in a subsequent interim [or partial] award which can also be
enforced.
Van den Berg, Revisited, 143. He further argues that to be on the safe side,
arbitrating parties may agree that interim or partial awards are binding as a number of
courts interpreting the New York Convention accepts that the parties can agree on
when an arbitral award becomes binding. On examples of such decisions, see id.,
note 36. Such agreement could be done in the arbitration clause itself. Alternatively
and perhaps more conveniently, a stipulation to that effect could be made in
arbitration rules. See id. But see Berger, International Economic Arbitration, 345
(arguing that an award containing an interim measure is not binding under Article
V(1)(e) of the New York Convention because it can be amended or revoked. ). In
addition, it is noteworthy that on the issue of when an award becomes binding, the
Model Law does not contain any clarification. Nor are the preparatory materials
helpful. See, e. g., UN Doc A/40/17, paras. 256-258, reprinted in Holtzmann
Neuhaus, 864-65.
119 Blessing, Introduction, para. 869. See also id., para. 874.
120 See cases cited in Chapter V, supra note 108. In this regard, it is noteworthy that
according to some authors, finality is not a characteristic of an award. See, e. g.,
Gaillard / Savage (eds. ), para. 1316; Schwartz, Provisional Measures, 63, Albert Jan
van den Berg, "The Application of the New York Convention by the Courts" lný van den
Berg (ed. ), Improving the Efficiency, 25,29. It is further noteworthy that according to
Derains, a decision of an arbitral referee is final in the context of "the appropriateness
to take interim measures at a certain moment on the basis of a prima facie appraisal
of a factual situation. " Derains, Refere Arbitral, 189.
12' The tendency of U. S. courts is that "Interim awards are enforceable so long as they
issues that from the that remain to be decided. " Van
relate to are separable issues
3,38
some U. S. courts should preferably be followed in interpretation of the New
York Convention. 122 It is also this author's
view that such pragmatic
approach should be taken. Such interpretation is, in this author's view, in
line with the overall object and purpose of the Convention:
enhancing
effectiveness of arbitration through facilitating international enforcement of
arbitral decisions. The above views, however, neither are free from
criticism nor have wide acceptance. 123
3.3 UNCITRAL's Endeavours
The enforceability of provisional at the place of arbitration or

measures
abroad is, despite the growing trend, still sporadic and not harmonised. 124
Indeed, only a few national laws clearly provide for, in a disharmonised
manner, enforcement of an arbitral provisional measure regardless of

where the measure was rendered. The disharmony and lack of regulation
attracted UNCITRAL's attention, which caused a study resulting in the

recommendation to consider whether any work on the enforcement issue is
"desirable and feasible. " 125
den Berg, Revisited, 141; and Robert B. von Mehren, "The Enforcement of Arbitral
Awards under the Conventions and United States Law", 9 Yale Journal of World
Public Order 343,361-63 (1983). For the decisions of U. S. courts, see Chapter V,
supra note 112.
122 See,
e. g., Van den Berg, Revisited, 141.
123 Indeed, it is suggested that "it would not be prudent to rely on the enforceability by
national courts of such decisions [on provisional measures] as awards. " Craig / Park
Paulsson, ICC Arbitration 2000,466.
124 See, e. g., V. V. Veeder, "Provisional and Conservatory Measures" ("Provisional
Measures") in- Enforcing Arbitration Awards under the New York Convention -
Experience and Prospects (New York: United Nations 1999), 21 ("Enforcing
Arbitration Awards"); Lebedev, 23; and Herrmann, 230. Apparently, the Model Law
Itwould have greatly contributed to harmonisation" if it would have contained a
provision providing the possibility of the issuing interim measures 'in the form of interim
awards. See Sanders, Quo Vadis, 275-76.
125 UN Doc A/CN. 9/460. The problem of non-enforceability of arbitral interim measures
was raised in different platforms by various arbitration specialists. See, e. g., Enforcing
Arbitration Awards; Sandrock, (proposing that a new subsection should be inserted
into Article 35 of the Model Law permitting acceptance of arbitral decisions given
ý 11
9
-3-3
The UNCITRAL Secretariat has prepared several proposals regarding the
measures. 126 The main criterion in

enforcement of arbitral provisional
drafting those proposals was a degree of discretion that would be given to
the enforcing court. It should, however, be noted that a few proposals
were prepared by taking Article 36 of the Model Law' 27 on enforcement of

awards into account with adaptation of specific features of provisional
measures as compared to final award S.128 The wisdom of following that
Article is clear. Article 36 and the model created by the New York
Convention have been successfully tested for enforcement of arbitral
awards. It was also decided that the enforcement of provisional measures
should take the form of a provision added to the Model Law (an
amendment to the Model Law) rather than a protocol to the New York
Convention.129
Adopting variety of principles, there are several proposals before the

UNCITRAL's Working Group, which is studying provisional measures in
arbitration.' 30 In analysing these proposals, this author recommends the
following set of principles that, in his view, should be considered in
preparing a draft for the recognition and enforcement of arbitral provisional
measures.
under Article 17 as an "award" (see Blessing, para. 876,282); Lord Mustill in: ICC
(ed.), Conservatory Measures, 120.
126For the current proposals,see LIN Doc A/CN.9/524.
127Which is almost identical to Article V of the New York Convention.
128UN Doc A/CN.9/485, para. 80.
129 LIN Doc A/CN. 9ANG.IIMP. 108, para. 81.
130 See LIN Doc A/CN. 9/524.
340
The harmonisation may be achieved if the
proposal takes the form
of an additional protocol to the New York Convention 131 A Model
.
Law provision is likely to fail the desired harmonisation
as it is very
difficult to reach any agreement
on the issue interim protection of
132
rights among states.
. Pro-enforcement bias should be contained

whatever form is chosen.
There needs to be some safeguards
protecting the interests of the
enforcing state and arbitrating parties. In this regard, the standards
set out in Article V of the New York Convention or Articles 34-35 of
the Model Law may provide guidance 133as they constitute tested
and accepted standards for enforcing awards.
9 However, the above standards should be modified to

reflect the
characteristics of interim protection of rights. This is to say.
The validity of arbitration agreement should not be fully
examined. The test for an arbitral tribunal to grant a measure

134
is generally the prima facie existing for jurisdiction. A
court's review of the jurisdiction should not be more
extensive.
131 See, e. g., Lew / Mistelis / KrOll,

para. 23-95-ýhe
Veeder, Provisional Measures, 21-23,
and William Wang, "International Arbitration: Need for Uniform Interim Measures
of Relief", 28 Brook J Int'l L 1059 (2003). But see, e. g., Pieter Sanders, "The Making
of the Convention" in- Enforcing Arbitral Awards, 3,4; and Albert Jan van den Berg,
"Striving for Uniform Interpretation" in- Enforcing Arbitral Awards, 41,43.
132 This can be observed from the work of the Hague Conference. The current draft of
the Convention fails to deal with cross border enforcement of arbitral provisional
measures. See Preliminary Doc No 8 (March 2003), Preliminary Result of the Work of
the Informal Working Group on the Judgments ProJect available at <
ftp. hcch. net/doc/genaff pd08e. pdf> last visited at 28 October 2003.
133 As this is the case under-
current proposals to the Working Party. See UN Doc
A/CN. 9/524.
134 See supra Chapter IV, Part 3.1.1.
)41
A party should, unless otherwise
agreed, be given notice of
the appointment of an arbitrator.
Due process should be observed either at the time the
measure is granted or, for ex parte measures, subsequent to

the issuance of it.
The underlying dispute in question should be arbitrable in the
state of enforcement.
A state court will obviously enforce a measure that is
compatible with the laws of such state. In case of

incompatibility, the court should reformulate the measure,
without touching its substance, and enforce it. Otherwise, it

should refuse the enforcement. This is a natural extension of
pro-enforcement bias.
o The enforcement of a measure may be refused where it is
against the public policy of the state.
o Parties should not have obligation to request permission from

their arbitral tribunal for enforcement of a measure. 135
The measure enforced may be subject to the tribunal's later

136
modification or revocation.
The enforcement of the measure should extend to both
arbitral orders and awards. As provisional measures are

the form of an order, 137the enforcement
generally granted in
should naturally be extended to this form. Further, the form
of an award is preferred for facilitating enforcement of an
135 But see UN Doc A/CN. 9/524, paras. 25-27.

136 See supra Chapter IV, Part 6.
')4
--'
arbitral decisions, such decisions should too be enforceable.
In each case, the enforceability should be
subject to the
tribunal's decision in favour of non-enforcement. In such
case, the decision on interim protection should be granted in
the form of, for instance, a recommendation.
Ex parte measures should, in principle, be enforceable. 138

The court should not have the power to review the
appropriateness of the ex parte measure but make sure that

at some point either prior to or following the enforcement of
such measure, the principle of due process is observed.
An arbitral provisional measure should be given priority over
a judicial provisional measure. This is due to the principle of
party autonomy. 139
A court should not request any security for enforcement of an
arbitral decision. This issue should be left with the tribunal
granted the measure. This is again for the principle of party
autonomy.
o Enforcement of an arbitral measure should be allowed
regardless of the place of arbitration as the place of
arbitration is generally chosen as a neutral and/or
place. 140
geographically convenient
It should be kept in mind that any mistake made by the
tribunal in exercising its powers to grant a provisional
measure can be and should be corrected by it. If necessary,
138 There are conflicting views as to enforcement of such measures. Derains, Ex Parte
Relief, 3, and Castello, 15-24.
343
damages may be granted in favour
of the party against which
a measure was enforced. 141
Emergency arbitral provisional measures too be

should
enforceable. 142
Conclusion
Arbitral provisional measures are, unlike judicial provisional measures, not
self-executing. However, such arbitral measures traditionally have a

certain weight. 143 An arbitral tribunal has some persuasive powers over
arbitrating parties. Thus, as a result, the tribunal's decision on interim
protection of rights is often complied with. 144 There may, however, be
occasions where that decision is not abided. For such occasions, the
arbitral tribunal mainly have two sanctions for disobedience. The tribunal
may draw adverse inference from the disobedience. 145 Such inferences
may only be drawn where the tribunal's decision on preservation of
evidence is disobeyed. For no other provisional measure, an adverse
inference should be drawn. However, arbitrating parties should refrain
from 'unnecessarily antagonising' their tribunal, which has a quite wide
leverage in arbitration process e. g., adjudging evidence. In addition, the
recalcitrant party may be held liable for costs and/or damages related to its
non-compliance. 146 The power to hold the recalcitrant party liable for costs
and damages generally derive from a broad interpretation of the arbitration
agreement. Further, the tribunal may impose time limits for compliance,
141
See supra Chapter IV, Part 10.
142
On these measures, see generally supra Chapter 111.
143
See Chapter V, supra Part 1.
144 1
d.
145
See Chapter V, supra Parts 1.1
146
See Chapter V, supra Part 1.2.
344
which has psychological coercion. 147 Moreover, the tribunal may, if
permitted, impose a penalty for failure to comply with its decision. 148
The weight and effectiveness of the above sanctions differ. Thus, the need
for enforceability of an arbitral provisional measure is critical but varies. 149
The need is absolute for measures aimed to facilitate later enforcement of
awards. Further, there may also be a need for enforcement of measures

related to conduct of arbitration and to relations between arbitrating parties
after a dispute arisen. However, the need for enforcement of measures
related to preservation of evidence is almost none. This is because

drawing adverse inference for preservation of evidence against a
recalcitrant party could provide for full protection. This is to say drawing
adverse inferences from the failure and making the award on the basis of
information and evidence before the tribunal.
Due to the above need, it is generally felt that an arbitral tribunal's lack of
power to enforce its decision on provisional measures causes a problem.

This problem may result in infringement of parties' rights and it may
hamper effectiveness of arbitration.
In order to make arbitration more effective, a number of legislatures offer
various solutions to the problem of an arbitral provisional measure's

enforceability by, one way or another, lending coercive powers to an
arbitral tribunal. 150 Laws of some states provide for enforcement of arbitral
provisional measures where the tribunal has its seat in that state whereas
147
See Chapter V, supra Part 1
148 1d.
149
150
345
laws of a small number of states envisage enforcement
of such measures
regardless of the seat of arbitration.
On the enforcement of arbitral provisional measures at the seat of

arbitration, the approach of national laws varies: 151
Under the first approach, an arbitral provisional measure is directly
enforceable as if it is a decision of the court.

According to the second approach, a national court lends its
executory assistance for the enforcement of an arbitral provisional
measure. Under this approach, a court enforces, upon request of
either an arbitral tribunal or a party, an arbitral provisional measure

without any further (or at least limited) examination. Further, a court
assistance may take the form of enforcing a decision on an arbitral
provisional measure by equating and then enforcing such measure
as if it were an arbitral award.
In accordance with the third approach, an arbitral decision, in certain
cases, is transposed into a court order where the original decision
cannot be enforced as it stands.
Under the fourth approach, a court issues, basing its decision on an
arbitral provisional measure, a separate order for interim protection

of rights.
Out of which, the combined reading of the second and third approaches
should be most preferable. Under these approaches, there is a pro-
enforcement bias and court assistance for enforcement is given but some
safeguards are taken for protecting the interests of the state and arbitrating
parties. The first approach has no such safeguards whereas the fourth
151
See Chapter V, supra Part 3.1.
346
approach requires a second court proceeding to give executory assistance
to an arbitral provisional measure.
The jurisdictions adopting any of the above approaches generally deal with
enforcement at the seat of arbitration. However, the seat of arbitration is
generally chosen as a geographically convenient and neutral place. The
seat often has nothing to do with the parties or the dispute in question.
Accordingly, cross border enforcement of an arbitral provisional measure
has utmost significance. The cross border enforcement may be permitted
under a national law or an international treaty. ' 52 Laws of a few states
allow enforcement of a provisional measure rendered by an arbitral tribunal
whose seat is in a foreign state.153 Further, there are a few bilateral
treaties, but no multilateral treaty, that enable cross-border enforcement of
an arbitral provisional measure. 154
Whether or not the New York Convention allows enforcement of an arbitral
provisional measure is not clear. The text and preparatory materials on the
Convention are silent on that issue. In addition, both courts and
commentators have divergent views. The Convention requires that, inter
alia, an award is to be binding for its enforcement in accordance with

Article V(1)(e) under the law of the state where the award was rendered.
That should be sufficient for the enforcement of an award on provisional
measure. However, an arbitral decision may, under one interpretation, be

required to be final or not subject to revision or revocation under the New
York Convention. Further, the finality of an award may be required under
the law where it was rendered. In such cases, for its enforcement under
152SeeChapterV, supraPart 3.2.

153See ChapterV, supra Part 3.2.1.
154See Chapter V, supra Part 3.2.2.
347
the Convention, an award is required to be binding and final. Arbitrating
parties either explicitly accepted binding nature of the award or the binding
nature arises from the fact that the authority to grant provisional measures
is vested with the tribunal. As to the finality, it should be
accepted that an
interim award on provisional measures is fi in regard of the II
deals with so long as the issues separable from the other issues in dispute.
This interpretation is in line with the purpose and objective of the
Convention: enhancing arbitration's effectiveness. However, the above
views have no wide acceptance.
Having noted the lack of uniformity in regard of enforcing arbitral
provisional measures, UNCITRAL is currently studying the enforcement

issue. 155 In this author's view, the enforcement issue may be resolved and
harmonisation may be achieved where an additional protocol to the New
York Convention is adopted 156 Further, pro-enforcement bias should be
.
contained whatever form is chosen for adoption. However, certain
safeguards should be taken for the enforcement for protecting the interests
of a state and of arbitrating parties. 157 In establishing these safeguards,
Article V of the New York Convention and Articles 34-36 of the Model Law
may provide guidance. Nonetheless, the characteristics of provisional
measures should be considered. 158
l 55 See Chapter V, supra Part 3.3.

156 See Chapter V, supra note 129 and accompanying text.
157 See Chapter V, supra note 132 and accompanying text.
158 See Chapter V, supra notes 134-142 and accompanying text.
348
CONCLUSION
In order to enhance the effectiveness of arbitration, to meet the

expectations of business persons, and, ultimately, to ensure the success of
arbitration, the problems and uncertainties regarding the interim protection
of rights' should be resolved. This is because, generally, interim protection
is
of rights in arbitration as important as their final protection.2
The identification )f the above problems and uncertainties as well as their

suggested solutions and clarifications affected by business needS3are set
out below:
Forum to Request Provisional Measures: Arbitrators or Courts
The main problem concerning interim protection is which forum to apply to

for a provisional measure when a need arises.
Provisional measures should be sought from arbitrators or any other party-

determined authority. Several reasons support this 4
proposition. The
jurisdiction of an arbitral tribunal in regard of interim protection almost
always derives from arbitration rules5 by reference to such rules in

clauses or agreements. 6 National arbitration laws (lex arbitri)
arbitration
For this concept and its definition, see generally supra Introduction, notes 12-18 and
accompanying text. On the characteristics and types of provisional measures in
arbitration, see id., notes 19-34,45-56 and accompanyingtext,
See supra Introduction, notes 57-76 and accompanyingtext.
Like the effect of business needs that had shaped the evolution of interim protectionof
rights throughout the last century. See supra Chapter 1.
On the evolution of arbitral jurisdiction to grant provisional measures under various
arbitration rules, see supra Chapter 1,Part 1.
See supra Chapter 11,Part 1.2,
349
also may provide for default powers for interim protection On rare
.7
occasions, where none of the above deals with arbitral interim protection,
then the power to issue arbitral provisional measures
may derive from
inherent or implicit powers of the tribunal or its power to
conduct arbitration
proceedings. 8 The tribunal should comply with contractual9 or legal'o
restrictions and prohibitions as to its jurisdiction to grant provisional
measures.
In spite of the fact that an arbitral tribunal is the natural forum to seek
interim protection of rights, the exercise of arbitral jurisdiction is, in some
cases, impossible or ineffective. This relates to the nature and operation of

arbitration. There are three salient problems, and certain other
shortcomings, surrounding an arbitral tribunal's jurisdiction to grant
provisional measures. " Due to these problems and shortcomings, to
enhance the efficiency of arbitration and for better distribution of justice,
the concept of concurrent jurisdiction of arbitrators and of courts should, in
12
principle, be accepted. The concept of concurrent jurisdiction regulates
and sheds light on the grey area, sometimes considered to be a "no man's
land": the area of interaction between arbitral and judicial jurisdictions for
A logical conclusion that stems from the concept of concurrent jurisdiction

the the principle of compatability. 13 This principle has two
is acceptance of
facets:

'o See supra Chapter 11,Part 1.4.
12
See supra Chapter 11,Part 4.
13
See supra Chapter 11,Part 4.
-3-50
a request for a provisional measure is not a waiver of the right to
arbitrate; and
the existence of the arbitration agreement does not
prevent a court
from issuing an interim measure. 14
Convenience and efficiency require, in this author's view, the grant of

15
provisional measures in aid of foreign arbitration. This Is because the
seat of arbitration is generally chosen as a geographically convenient and
neutral place. As a result, a provisional measure granted at the seat of
arbitration is often meaningless. It should however be noted that not all
national laws adopt assistance to foreign arbitration for interim protection of
rights. Further, in case the assistance is given, the foreign court should,
provided that it has jurisdiction, ask itself whether it is the most appropriate
/ convenient forum to grant the measure sought. If it decides that it is, then
it will, in principle, apply the standards available under the forum where the
court is located to decide whether it should grant such measure.
In determining the degree of court involvement in the arbitral process
under the concurrent jurisdiction concept, party autonomy should be taken

into account. 16 However, such autonomy should not extend to total
autonomy. This is to ensure that arbitration is effective. This is also to
preserve the effective and good administration of justice, which reconciles

the tension between court involvement in arbitration and parties' will to
keep courts out of the arbitration process. This reconciliation results in the
satisfaction of the needs of international commerce. balancing security with

flexibility in arbitration by preventing abuse of the court's involvement. The

"' See supra Chapter 11,Part 4.3.
351
reconciliation requires the cooperation of arbitrators and of courts. Such
cooperation must be coordinated. Most national laws and arbitration rules
are silent on the method of coordination. Examination of the remaining
(few) national laws and arbitration rules demonstrates that there
are two
methods of coordination:
the freedom of choice approach; and
the restricted -access approach.
Under the freedom of choice approach, parties are free to choose the
forum to seek interim protection of rights regardless of the stage of
arbitration. 17 Such freedom is, however, an open invitation for abuse and
against the principle of party autonomy. Thus, the freedom of choice

approach should not be adopted.
Under the restricted -access approach, the principles of complementarity
and subsidiarity are accepted. 18 At the stage prior to the formation of an

arbitral tribunal, the role of the courts is complementary to arbitral
jurisdiction for interim protection of rights. After that stage, the role is
subsidiary. The court should only act where the tribunal or another party-
determined authority is unable to act or where its action would be
ineffective.
The principles of complementarity and subsidiarity are also accepted by a

of arbitration rules. 19 The ICC Arbitration Rules is a
small number
prominent example. Under the ICC Arbitration Rules, court assistance is
permitted at the pre-formation stage. Following the formation of an arbitral

19 See supra Chapter 11,Part 4.4.2.2.
352
tribunal, the Rules indicate that the tribunal should have priority In regard of
interim protection of rights and that courts should assist an arbitration
where the circumstances are appropriate. The circumstances are

appropriate, under the ICC arbitral practice, where:
9 there is urgency for Interim protection of rights;

9 the tribunal's power is limited; or
* the tribunal is paralysed or otherwise unable to act.
The contractual restriction or exclusion of a court's jurisdiction in arbitration
rules, e. g. the ICC Arbitration Rules, is subject to applicable laws. 20 The

restriction envisaged under such rules as the ICC Arbitration Rules should,
in this author's view, be permitted as it does not constitute denial of justice
since effective interim protection of rights would, under the contractual

restriction approach, always be available .21 Total contractual exclusion
should, in this author's view, also be permitted due to the principle of party
autonomy, although one should keep in mind that some national laws
would not permit such exclusion. 22
This author suggests that the restricted -access approach should be

it
accepted as preserves the principle of party autonomy in arbitration and
permits court assistance to arbitration where it is necessary. Thus, the
court assistance to arbitration, under this approach, enhances the
effectiveness of arbitration and facilitates better distribution of justice.
'o See supra Chapter 11,Part 4.4.4.

21 Id.
22 1d.
5
Emerqency Provisional Measures: Complementary Mechanisms
Another problem is how court involvement prior to the appointment of
arbitrators is restricted, as there are certain objections to such involvement

at this stage. 23 These objections are:
court involvement prior to the appointment of arbitrators undermines

both the parties' choice of forum for the resolution of disputes as
well as the neutrality of that forum;

9 such involvement is an open invitation for abuse-,
e court involvement may infringe the principle of confidentiality in
arbitration;
ea request to a court may, on rare occasions, be considered a waiver
of the right to arbitrate; and
* court assistance may not always be available.
The involvement of courts may, to a certain extent, be avoided through the
use of complementary mechanisms. Such mechanisms envisage the grant

of emergency provisional measures by a neutral / party-determined
authority at the pre-formation stage.
The need for complementary mechanisms is not new. Indeed, the 1915
iSM. 24
Plan provided for such a mechan Nowadays, business persons may
25
create their own complementary mechanisms . Arbitration institutions
also provide for such mechanisms. Some of the institutions empower their
head or organ to grant emergency measures. 26 Some other institutions,
e. g. the ICC, the ECA, the NAI, and the AAA propose certain emergency
23 See supra Chapter 111, notes 10-18 and accompanying text.

24 See supra Chapter 111, Part 1.
25 See supra Chapter III, notes 24-27 and accompanying text.
26 See supra Chapter 111, Part 1.
354
arbitral provisional measure procedures. 27 These procedures aim to
provide effective mechanisms for obtaining emergency arbitral relief.
These mechanisms are not exclusive: they do
not fully obviate judicial
assistance. In shaping the above procedures, three main principles are
taken into account:
e the need to create a speedy mechanism;

9 the principle of party autonomy; and
9 the principle of due process.
A decision of an emergency arbitrator has certain weight and there are

28
some remedies available against the recalcitrant party..
* an emergency measure has, by contract, binding effect;
9 such measure has also the backing of the relevant arbitration
institution-,
e damages may be ordered in case of failure with the measure; and
* such measure is potentially enforceable at the place where it is

rendered and under the New York Convention.
In this regard, it should be noted that the availability of slich prof.-edures
potentially has a deterrent effect on vexatious requests to a court for

interim protection and on forum shopping.
The emergency measure procedures facilitate the effectiveness of

arbitration by remedying one of the salient problems regarding arbitral
jurisdiction to grant provisional measures. There is a growing recognition
27 See supra Chapter 111,

Part 2.
28 See supra Chapter 111,
Part 2.13.
35-
and use of such procedures 29 This author predicts that these procedures
.
will be widely used in the next ten to twenty years.
Arbitral Provisional Measures
The establishment of standards or procedures and principles for the grant
of arbitral provisional measures constitutes another problem / uncertainty

issue. The establishment of such standards and principles enhances the
efficacy of arbitration by it
making consistent and predictable. 30
Arbitral tribunals are generally given broad powers in regard of the above
standards and procedures under most national laws and arbitration rules. 31
Tribunals rarely turn to applicable laws for the establishment of such
standards and principles. Experience demonstrates that arbitral case law
often provides guidance to the tribunals in this regard, notwithstanding that

in each case they probably consider all applicable laws and scholarly
opinions in order to grant the i.

most appropriate measure, e. one that suits
the characteristics of the case at hand. 32 The arbitral practice also
demonstrates that there are emerging transnational standards and
33
principles on arbitral interim protection.
This author suggests the following standards or procedures and principles,
where arbitrators are given wide discretion to establish them, for the grant
of arbitral provisional measures, which standards and procedures, in his
belief, are of transnational character and which are subject to parties'
agreement to contrary:
29 See supra Chapter 111,Part 3.

30 See supra Chapter IV, note 1.
31 See supra Chapter IV, note 2 and accompanying text.
32 See supra Chapter IV, notes 9-11 and accompanying text.
33 See supra Chapter IV, notes 12-15 and accompanying text.
356
Due mainly to the principle of party autonomy, a provisional measure
should be given upon request by 34

a party. The request and response to it
should, at least, contain certain main elements; namely,
9 the relevant rights which are sought to be protected,

e kind of measure that is sought; and
the circumstances that necessitate such measure. 35
9
Arbitral tribunals should give priority to such request and handle it in a

36
Of tirylu.
short period
Tribunals should, in principle, consider the negative

positive and
below for 37 The
requirements set out granting provisional measures.
positive requirements are:
e prima facie establishment of jurisdiction;
* prima facie establishment of case;

o urgency-,
o imminent danger, serious or substantial prejudice, and
0 proportionality.
The negative requirements are:

the request should not necessitate examination of the merits of the
*
case in question;
the tribunal may refrain from granting the final relief in the form of an
0
interim relief,
34
See supra Chapter IV, Part 1.1.
35
See supra Chapter IV, Part 1.2.
36
31
357
e the request may be denied where the moving party does not have
clean hands,
o the request may be denied where the measure requested is

incapable of being carried out;
e the request may be denied where the measure is incapable of

preventing the alleged harm; or
a the request may be denied where the request is moot.
Tribunals may further require security for damages and for costs.
Alternatively, they may deny the request where there is an undertaking
from the adverse party that it would not infringe upon the right sought to be
protected.
In any case, even if the tribunals refrain from granting the measure sought,
they may, nevertheless, expedite the arbitration proceedings in order to
avoid any potential or actual prejudice towards the rights of the moving
party.
An arbitral provisional measure may be granted in the form of an order,
award, decision, direction, request, proposal, recommendation, or

temporary restraining order. 38 In determining the form of a decision, the
tribunal should mainly take into account parties' will, potential time saved,
the cost and effective conduct of arbitration, and mandatory provisions of
the applicable laws.
358
An arbitral tribunal could order a measure upon
its formation until it
39
becomes functus OffiCio .
Due to its interim nature, a provisional measure, whatever its form is,
may
be amended or revoked under changed circumstances or in light of new
40
facts or evidence.
On the types of arbitral provisional measures, arbitral tribunals are
generally given broad powers. 41 In exercising these broad powers, this

author suggests that the tribunals should be able to grant:
measures for preservation of evidence;
injunctions,
security for payment;
security for costs; and
provisional payment.
Arbitral provisional measures are usually granted in Inter partes

proceedings. In urgent cases, where it is permitted under applicable rules
and laws, tribunals should be able to grant ex parte provisional measures

provided that the right to respond is subsequently given to the adverse
party. 42
As to who bears costs of arbitral provisional measure proceedings, this

43
author suggests that the losing party should be liable for such CoStS.

359
Where an arbitral provisional measure is disobeyed or proves to be
unjustified, damages arising from such disobedience or lack of justification
should be recoverable. 44
The last issue is the how effective arbitral

provisional measures are and
how their effectiveness can be enhanced.
Although an arbitral provisional measure is not self-executing, has

it certain
45
weight, and is thus often compiled with. There may, however, be
occasions where the provisional measure granted is disobeyed. For such
occasions, an arbitral tribunal has certain sanctions:
* it may draw adverse inference from the disobedience regarding
measures related to the preservation of evidence-,

e the recalcitrant party may be held liable for costs and/or damages
related to disobedience;
e the tribunal may impose time limits for compliance, which has a
psychological effect; and
e the tribunal, if permitted, may impose a penalty for failure to comply
with its decision.
The weight and effectiveness of the above sanctions differ. Thus, the need
for enforceability of an arbitral provisional measure varies. 46 The need is
firm for measures aimed to facilitate later enforcement of awards. There
may, in many instances, be a need for enforcement of measures related to

the conduct of arbitration and relations between arbitrating parties.
44
45
See supra Chapter V, Part 1.
46
360
However, the need is practically nonexistent, or very limited, for measures
relating to the preservation of evidence. This is because drawing adverse

inference generally satisfies such need.
Due to the need for enforceability, it is generally felt that the lack of power
to enforce an arbitral provisional measure causes a problem. This problem
may result in infringement of par-ties' rights and it may thus hamper

effectiveness of arbitration.
In order to make arbitration more effective, legislatures in 34 jurisdictions
offer various solutions to the problem of enforceability. This is done by,

one way or another, lending state courts' executory assistance to
47
arbitration. Laws of many states permit enforcement of arbitral
provisional measures where the seat of arbitration is in that state. The
approach of such national laws differs:

e an arbitral provisional measure is directly enforceable as if it is a
court decision;
0a court lends its executory assistance to arbitrators,
0a court transposes an arbitral decision into a court order where the

former one cannot be enforced in its original form; and
0a court issues a provisional measure basing its order on the arbitral

decision.
Of these approaches, the combined reading of the second and third should
be preferred. Under these approaches, there is a pro-enforcement bias.
Court assistance for enforcement is given, but some safeguards are taken
to protect the interests of the state and the arbitrating parties. The first
47
361
approach has no such safeguards; whereas the fourth approach requires
additional court proceedings to give executory assistance for the
enforcement of an arbitral provisional measure.
Laws of a few states deal with enforcement of an arbitral provisional
measure given by an arbitral tribunal whose seat is in a foreign state. 48

The court assistance to foreign arbitration is tenable and desirable as the
seat of arbitration is generally chosen, as a geographically convenient and

neutral place, and often has nothing to do with the parties, the dispute and
the underlying contract. A few bilateral treaties, but no multilateral treaty,
49
deal with cross-border enforcement of arbitral provisional measures
.
Whether or not the New York Convention permits enforcement of an
arbitral provisional measure is questionable. This author believes that the
enforcement of such measure should be permitted so long as the measure

is binding under the law of the state where the award was rendered.
In this author's view, the enforcement issue may be resolved and

harmonisation may be achieved if an additional protocol to the New York
Convention dealing with this issue is adopted. In any case, a court's
executory assistance should be given to arbitral provisional measures
where certain safeguards are taken to protect the interests of the state and
In these safeguards, Article V of the
of the arbitrating parties. establishing
New York Convention and Articles 34-36 of the Model Law may provide
Nonetheless, in determining the safeguards, the features of
guidance.
provisional measures should be taking into account.
48 See supra Chapter V, Part 3.2.1.

49 See supra Chapter V, Part 3.2.2.
362
The above proposed solutions to the problems and uncertainties
surrounding provisional measures in arbitration, in this author's view,
satisfy, to a great extent, the business needs. The adoption of those
solutions will enhance the effectiveness of arbitration by providing better

interim protection of rights. It will also assist in better fulfilling the function
of arbitration as a dispute resolution mechanism independent and distinct

from litigation.
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Provisional measures in international commerical arbitration.

For additional information about this publication click this link.

He further wishes to express his gratitude to all those whose support

The author wishes to express his deepest indebtedness to his

CHAPTER V Enforcement of Arbitral Provisional Measures 303

Institutions and Organisations

AAA American Arbitration Association

AMERICAN ARBITRATION ASSOCIATION

GERMAN-BELGIAN MIXED ARBITRATION TRIBUNAL

GERMAN-POLISH MIXED ARBITRATION TRIBUNAL

INTERNATIONAL CHAMBER OF COMMERCE

IRAN-US CLAIMS TRIBUNAL

PERMANENT COURT OF ARBITRATION

SOCIETY OF MARITIME ARBITRATORS

EUROPEAN COURT OF JUSTICE

Braspetro Oil Services Company v. The Management and

PERMANENT COURT OF INTERNATIONAL JUSTICE

In a perfect world, contracting parties perform all their obligations

In many disputes, depending on the type of contract, arbitration is

choose to arbitrate convinced that arbitration is better suited for resolution

Arbitration, like litigation, takes time.2 For instance, a typical International

Undoubtedly, international commercial arbitration4 is very effective in

3 W. Laurence Craig / William W. Park / Jan Paulsson, International Chamber of

experts in a special commemorative New York Convention Day held on 10

arbitration. 8 The study aims "for improvement of arbitration laws, rules,

Aims of the Thesis

This thesis aims to demonstrate that arbitration should, in principle, be the

solutions to those problems and uncertainties. Solutions will be offered for

evolution of provisional measures in arbitration. It further analyses and

compares theory, law, and practice. All major arbitration conventions,

Although "[t]he interim protection of rights is no doubt one of those general

See Introduction, infra notes 72-76 and accompanying text.

which complements the final relief.

The first characteristic is that applications for a provisional measure

The second characteristic is that a remedy should be temporary /

arbitral tribunal's final adjudication of the dispute. "25

20 See Introduction, infra note 45 and accompanying text.

relief or the legal protection sought as the interim relief aims to

The fourth characteristic is derivative of the second. Interim relief should

nature of the protection dictates that an interim measure could be

The seventh characteristic is that, under certain a circumstances,

on the measure should be given following the previous ex parte decision. 32

The eighth characteristic is that unlike judicial interim measures, arbitral

provisional measures are not themselves self-executing. This is because

not one of the characteristics of arbitral provisional measures.

parties "holding, for example, money or other assets of the party

30 See, e. g., Bond, 18.

and referred to as, for instance, provisional and protective measures,

are, on one hand, references to the nature of these measures. 40 On the

34 UN Doc A/CN. 9/468, paras. 64 and 70. In addition,

It should be noted that, the terms "provisional measures" and "protective

a decision-maker, or arbitrator, on an interim relief request, the term

Types of Provisional Measures

measures, e. g., disposing of property, ordering production of documents, ordering

measures related to the conduct of arbitration and "relations between the

payment, may be added to those categories.

Measures Related to Preservation of Evidence

A need to preserve evidence might arise prior to its presentation or

collection at an advanced stage of arbitral proceedings. Evidence might

regularly available to arbitral tribunals in respect of production or collection