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New Solutions for Interim Measures of protection in International commercial Arbitration: English, German and Hong Kong Law Compared Jan K. Schaefer( National University of Singapore) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in if, they may not copy, distribute or publish the work or part ofit, in any form, printed, electronic or otherwise, except for reasonable quoting cleary indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Abstract The new English, German and Hong Kong arbitration legislation has prepared the ground for shifting interim relief to the realm of arbitration. All legal frameworks now address the three main issues that call for solutions in the lex arbitri the relationship between the courts and arbitration, the arbitrator=s competence to grant interim relief and the enforcement of arbitrator-granted interim relief. Two different concepts can be identif ied underlying the new laws: on the one hand there is the court-subsid arity model of England and, on the other hand, the free-choice model of the Model Law which was adopted and refined by Germany and Hong Kong. England was the first country to adopt an elaborate court-subsid arity model; Germany the first country to provide for the enforcement of arbitrator-granted interim relief, even if the seat of arbitration is outside Germany. German law gives a unilateral answer to the question of cross-border enforcement of arbitrator-granted relief -a problem that has not yet received a solution in any international enforcement instrument. The New york Convention does not apply to interim relief. This article introduces the three main issues in a general manner, describes the new solutions of English, German and Hong Kong law in country reports and discusses the different solutions provided against this background on a comparative basis. The court-subsid iarity model will be criticized and the free-choice model recommended Keywords Arbitration Act 1996: Hong Kong Arbitration Ordinance, German Code of Civil Procedure: UNCITRAL Model Law; lex arbitri; interim measures of protection interim relief, provisional remedies; access to court; arbitrator=s competence to grant interim relief; enforcement of arbitrator-granted interim relief; cross-border enforcement; party autonomy; court-subsidiarity model; free-choice model mandatory provisions; arbitration rules >Referendar=(freiburg). Certificate in Comparative Law(School of Oriental and African Studies, London). Research Scholar(DAAD and Rotary )in Intemat ional Commercial Arbitration in Southeast Asia at the National University of Singapore. The author would like to thank Paramjit S Gill, Singapore for his valuable comments on the draft, whilst acknowledging that any errors or shortcomings remain wholly the authores

New Solutions for Interim Measures of Protection in International Commercial Arbitration: English, German and Hong Kong Law Compared Jan K. Schaefer (National University of Singapore)1 Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract The new English, German and Hong Kong arbitration legislation has prepared the ground for shifting interim relief to the realm of arbitration. All legal frameworks now address the three main issues that call for solutions in the lex arbitri: the relationship between the courts and arbitration, the arbitrator=s competence to grant interim relief and the enforcement of arbitrator-granted interim relief. Two different concepts can be identified underlying the new laws: on the one hand, there is the court-subsidiarity model of England and, on the other hand, the free-choice model of the Model Law, which was adopted and refined by Germany and Hong Kong. England was the first country to adopt an elaborate court-subsidiarity model; Germany the first country to provide for the enforcement of arbitrator-granted interim relief, even if the seat of arbitration is outside Germany. German law gives a unilateral answer to the question of cross-border enforcement of arbitrator-granted relief - a problem that has not yet received a solution in any international enforcement instrument. The New York Convention does not apply to interim relief. This article introduces the three main issues in a general manner, describes the new solutions of English, German and Hong Kong law in country reports and discusses the different solutions provided against this background on a comparative basis. The court-subsidiarity model will be criticized and the free-choice model recommended. Keywords Arbitration Act 1996; Hong Kong Arbitration Ordinance; German Code of Civil Procedure; UNCITRAL Model Law; lex arbitri; interim measures of protection; interim relief; provisional remedies; access to court; arbitrator=s competence to grant interim relief; enforcement of arbitrator-granted interim relief; cross-border enforcement; party autonomy; court-subsidiarity model; free-choice model; mandatory provisions; arbitration rules. 1 >Referendar= (Freiburg). Certificate in Comparative Law (School of Oriental and African Studies, London). Research Scholar (DAAD and Rotary) in International Commercial Arbitration in Southeast Asia at the National University of Singapore. The author would like to thank Paramjit S. Gill, Singapore for his valuable comments on the draft, whilst acknowledging that any errors or shortcomings remain wholly the author=s

5.3 The enforcement of arbitrator-granted interim relief 5. 4 On the restrictions of party=s choice as prescribed in the mandatory 6. Con provisions of the lex arbitri 1 Introduction The last few years have seen an increasing activity by legislators to improve the legal framework for arbitration both domestic and international. More than 30 countries all around the globe have reshaped their arbitration laws since the launch of the UNCITRAL Model Law on International Commercial Arbitration(henceforth Model Law)in 1985. And yet, there are many more to follow. among the latest legislations are English, German and hong Kong laws. The Arbitration Act 1996, applicable in England, Wales and Northern Ireland, came into force on 31 January 1997, the Arbitration Ord inance of Hong Kong as amended by the Arbitration( amendment) Ordinance 1996 on 27 June 1997 and the provisions on arbitration of the German Code of Civil Procedure on 1 January 1998. With regard to interim measures of protection they provide for solutions that go beyond any previous ones in sophistication and completeness The critical question with regard to interim relief in arbitration is: Who provides interim measures of protection? Shall it be the courts, the arbitrators or both? The answers given in national arbitration legislation and in arbitration rules have changed over the years. Some time ago it seemed to be a common understand ing that only courts provide any provisional relief. This was reflected in international instruments such as the >1961 European Convention on International Commercial Arbitratio Its article VI, paragraph 4 states that a request for interim measures to the courts is not a waiver of the arbitration agreement. Similar provisions are found in arbitration rules They ensure that a party can have recourse to the courts without fearing to chance the track of d ispute settlement by making the court application. No mention was made of an arbitrator=s competence to grant interim measures of protection. But a trend in favour of such an arbitrator=s competence emerged. It was first reflected in arbitration rules such as the >1976 UNcitraL Arbitration rules for International Commercial Arbitration=(henceforth UNCITRAL Rules), which provide for a choice of application. Article 26, paragraph 3 of the UNCITRAL Rules refers to court applications and deems them to be compatible with the arbitration agreement this reiterates the established view. But in paragraphs I and 2 of the article, the UNCITRAL Rules go further when making clear that arbitrators have contractual power to order certain kinds of interim measures such as the sale of perishable goods The arbitrators= order can be established in the form of an interim award under the rules. This prepared new ground and already addressed the three main issues that are at stake when interim measures of protection in arbitration are considered the relationship between court-ordered interim relief and arbitration, the competence of the arbitrator to order such measures and the enforcement of the arbitrators orders It is necessary to provide solutions for these issues in the lex arbitri as the national legislation plays the decisive part in making provisional remedies in the sphere of arbitration effective. It is the national legislator who provides for court assistance, a suitable legal framework with fall-back provisions and lays down the preconditions

5.3 The enforcement of arbitrator-granted interim relief 5.4 On the restrictions of party=s choice as prescribed in the mandatory provisions of the lex arbitri 6. Conclusion 1. Introduction The last few years have seen an increasing activity by legislators to improve the legal framework for arbitration, both domestic and international. More than 30 countries all around the globe have reshaped their arbitration laws since the launch of the UNCITRAL Model Law on International Commercial Arbitration (henceforth Model Law) in 1985. And yet, there are many more to follow. Among the latest legislations are English, German and Hong Kong laws. The Arbitration Act 1996, applicable in England, Wales and Northern Ireland, came into force on 31 January 1997, the Arbitration Ordinance of Hong Kong as amended by the Arbitration (Amendment) Ordinance 1996 on 27 June 1997 and the provisions on arbitration of the German Code of Civil Procedure on 1 January 1998. With regard to interim measures of protection they provide for solutions that go beyond any previous ones in sophistication and completeness. The critical question with regard to interim relief in arbitration is: Who provides interim measures of protection? Shall it be the courts, the arbitrators or both? The answers given in national arbitration legislation and in arbitration rules have changed over the years. Some time ago it seemed to be a common understanding that only courts provide any provisional relief. This was reflected in international instruments such as the >1961 European Convention on International Commercial Arbitration=. Its article VI, paragraph 4 states that a request for interim measures to the courts is not a waiver of the arbitration agreement. Similar provisions are found in arbitration rules. They ensure that a party can have recourse to the courts without fearing to chance the track of dispute settlement by making the court application. No mention was made of an arbitrator=s competence to grant interim measures of protection. But a trend in favour of such an arbitrator=s competence emerged. It was first reflected in arbitration rules such as the >1976 UNCITRAL Arbitration Rules for International Commercial Arbitration= (henceforth UNCITRAL Rules), which provide for a choice of application. Article 26, paragraph 3 of the UNCITRAL Rules refers to court applications and deems them to be compatible with the arbitration agreement. This reiterates the established view. But in paragraphs 1 and 2 of the article, the UNCITRAL Rules go further when making clear that arbitrators have contractual power to order certain kinds of interim measures such as the sale of perishable goods. The arbitrators= order can be established in the form of an interim award under the rules. This prepared new ground and already addressed the three main issues that are at stake when interim measures of protection in arbitration are considered: the relationship between court-ordered interim relief and arbitration, the competence of the arbitrator to order such measures and the enforcement of the arbitrator=s orders. It is necessary to provide solutions for these issues in the lex arbitri as the national legislation plays the decisive part in making provisional remedies in the sphere of arbitration effective. It is the national legislator who provides for court assistance, a suitable legal framework with fall-back provisions and lays down the preconditions

for the enforcement of arbitrator-granted interim measures of protection. Neither the oreign Arbitral Awards(henceforth New York Convention) nor any other or New york Convention of 10 June 1958 on the recognition and Enforcement international instrument deals with interim measures of protection granted by the arbitrator or their enforcement The key function of the lex arbitri with regard to interim measures of protection stimulates a comparison of legislations. A comparative synopsis of different national solutions can highlight their strengths and weaknesses. It can also further the d iscussion about the most suitable solution for international commercial arbitration As legislators are competing to provide the most favourable framework for international commercial arbitration B they either want to defend their position as an international arbitration venue(e.g. England and Hong Kong), establish their country as such a venue(e. g. Germany )or signal a positive investment climate(e.g. India) there is a real chance that inadequacies can and will be remedied in future legislation The arbitration laws of the three countries compared follow different approaches Each approach is worked out in a very elaborate and sophisticated manner. They represent alternative role models for future legislators English law, on the one hand, provides an approach that can be called a court- subsidiarity model. Provisional remedies should in the first place be applied for before the arbitrator. Court intervention is the last resort The court=s jurisdiction is restricted it depends on the arbitrator=s power to act effectively and is therefore subsid iary to it. This approach shifts interim measures as far as possible to the realm of arbitration The English legislator is the first one to adopt this model. Parties can only opt out of it if they do not empower the arbitrator to grant interim measures of protection. German law, on the other hand, follows the free-choice approach of the Model Law Arbitration parties are free to apply either to the court or to an arbitrator. Legislation provides for mechanisms that make arbitrator-granted relief as far as possible equally effective as court-ordered relief. It provides a real alternative for the parties. Hong Kong law adopted an approach that is in between the free-choice and the court- subsidiarity approaches. The key lies with the courts to determine with which model Hong Kong will align itself. Germany is the first country which provided for cross- border enforcement of arbitrator-granted interim relief in its national law. Under German law, arbitrator- granted interim relief can be enforced in Germany even if the seat of arbitration outside Germany. This is a progressive, unilateral step to solve the cross-border enforcement issue especially relevant with respect to international commercial arbitrations. If all countries follow this example, the need for an international instrument to provide a cross-border enforcement mechanism for interim measures of protection can be relieved against a background of a general discussion of the three main issues involve m This article presents the new laws, examines their differences and evaluates the 2. On the need for interim measures of protection in international commercial arbitration

for the enforcement of arbitrator-granted interim measures of protection. Neither the New York Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (henceforth New York Convention) nor any other international instrument deals with interim measures of protection granted by the arbitrator or their enforcement. The key function of the lex arbitri with regard to interim measures of protection stimulates a comparison of legislations. A comparative synopsis of different national solutions can highlight their strengths and weaknesses. It can also further the discussion about the most suitable solution for international commercial arbitration. As legislators are competing to provide the most favourable framework for international commercial arbitration B they either want to defend their position as an international arbitration venue (e.g. England and Hong Kong), establish their country as such a venue (e.g. Germany) or signal a positive investment climate (e.g. India) - there is a real chance that inadequacies can and will be remedied in future legislation. The arbitration laws of the three countries compared follow different approaches. Each approach is worked out in a very elaborate and sophisticated manner. They represent alternative role models for future legislators. English law, on the one hand, provides an approach that can be called a courtsubsidiarity model. Provisional remedies should in the first place be applied for before the arbitrator. Court intervention is the last resort. The court=s jurisdiction is restricted; it depends on the arbitrator=s power to act effectively and is therefore subsidiary to it. This approach shifts interim measures as far as possible to the realm of arbitration. The English legislator is the first one to adopt this model. Parties can only opt out of it if they do not empower the arbitrator to grant interim measures of protection. German law, on the other hand, follows the free-choice approach of the Model Law. Arbitration parties are free to apply either to the court or to an arbitrator. Legislation provides for mechanisms that make arbitrator-granted relief as far as possible equally effective as court-ordered relief. It provides a real alternative for the parties. Hong Kong law adopted an approach that is in between the free-choice and the courtsubsidiarity approaches. The key lies with the courts to determine with which model Hong Kong will align itself. Germany is the first country which provided for cross-border enforcement of arbitrator-granted interim relief in its national law. Under German law, arbitratorgranted interim relief can be enforced in Germany even if the seat of arbitration is outside Germany. This is a progressive, unilateral step to solve the cross-border enforcement issue especially relevant with respect to international commercial arbitrations. If all countries follow this example, the need for an international instrument to provide a cross-border enforcement mechanism for interim measures of protection can be relieved. This article presents the new laws, examines their differences and evaluates them against a background of a general discussion of the three main issues involved. 2. On the need for interim measures of protection in international commercial arbitration

Today, interim measures of protection form part of the regular litigation process Several reasons contribute to this. The main reason can be found in the long duration of court proceedings that call for interim solutions. But it is not only with litigation that the time span between the beginning of the d ispute and its resolution has increased in recent years; the same applies for international commercial arbitration According to Craig, Park and Paulsson(1990, pp 20-21), the average duration of International Chamber of Commerce (ICC)arbitrations is between one and two years The main reasons for the long duration of international commercial arbitrations lie in the special circumstances of the process. Among the special circumstances are the quently great geographical distances between the dramatis personae and the oord ination of the busy schedules of international arbitrators and party counsels. But the delay cannot only be attributed to inherent causes; it also finds its ground in the dilatory tactics applied by a party to which arbitration is not immune(Knoepfler, 1997 p 307). Thus, the need for interim solutions arises in arbitration as it does in commercial litigation Justice can only be done if efficient interim relief is available. Provisional remedies come under the principle that >justice is not to be evaded=(Andrews, 1994, p. 20) The means of recourse differ from country to country, but the system itself is regarded as >one of those general principles of law common to all legal systems=( Collins, 1994, p. 10). Interim relief, which has not received a legal definition, can be groupe as follows: To preserve the status quo in order to ensure enforcement, to shape the relationship between the parties during the process of dispute settlement and to preserve evidence(see Knoepfler and Schweizer, 1984, pp. 223-224, with reference German doctrine). It is hardly possible to make general remarks as to the kind of provisional remedies that is likely to be needed for what kind of legal relationships. It depends on the special circumstances of each individual case. Thus it is important to have the whole armoury of interim measures at hand once the need for them arises The impact of interim relief for the well-functioning of any method of adjud ication can be illustrated with regard to Mareva injunctions(after The Mareva). Mareva injunctions prevent the dissipation of assets. If such a mechanism would not be available for the time that passes until final ad judication takes place the winning party would only obtain a >Pyrrhic victory=(Van den Berg, 1981, p. 143) 3. The three main issues The three main issues are the relationship between court-ordered interim relief and arbitration, the competence of the arbitrator to order such measures and the enforcement of the arbitrator=s orders. The following expositio theoretical aspects of the three issues and discusses them broadly 3. 1 The relationship between court-ordered interim relief and arbitration 3.1.1 Underlying concepts Interim relief in arbitration is an interface between private dispute settlement and the court. It is one of these aspects of arbitration procedure that cannot escape court interference. The arbitrator has no power to enforce his orders. As the effectiveness of an interim measure of protection depends, in the end on its enforceability, court support may be needed. The critical question is how best to shift interim measures of protection with their need for enforcement sanctions to the realm of arbitration

Today, interim measures of protection form part of the regular litigation process. Several reasons contribute to this. The main reason can be found in the long duration of court proceedings that call for interim solutions. But it is not only with litigation that the time span between the beginning of the dispute and its resolution has increased in recent years; the same applies for international commercial arbitration. According to Craig, Park and Paulsson (1990, pp. 20-21), the average duration of International Chamber of Commerce (ICC) arbitrations is between one and two years. The main reasons for the long duration of international commercial arbitrations lie in the special circumstances of the process. Among the special circumstances are the frequently great geographical distances between the dramatis personae and the coordination of the busy schedules of international arbitrators and party counsels. But the delay cannot only be attributed to inherent causes; it also finds its ground in the dilatory tactics applied by a party to which arbitration is not immune (Knoepfler, 1997, p. 307). Thus, the need for interim solutions arises in arbitration as it does in commercial litigation. Justice can only be done if efficient interim relief is available. Provisional remedies come under the principle that >justice is not to be evaded= (Andrews, 1994, p. 20). The means of recourse differ from country to country, but the system itself is regarded as >one of those general principles of law common to all legal systems= (Collins, 1994, p. 10). Interim relief, which has not received a legal definition, can be grouped as follows: To preserve the status quo in order to ensure enforcement, to shape the relationship between the parties during the process of dispute settlement and to preserve evidence (see Knoepfler and Schweizer, 1984, pp. 223-224, with reference to German doctrine). It is hardly possible to make general remarks as to the kind of provisional remedies that is likely to be needed for what kind of legal relationships. It depends on the special circumstances of each individual case. Thus it is important to have the whole armoury of interim measures at hand once the need for them arises. The impact of interim relief for the well-functioning of any method of adjudication can be illustrated with regard to Mareva injunctions (after The Mareva). Mareva injunctions prevent the dissipation of assets. If such a mechanism would not be available for the time that passes until final adjudication takes place, the winning party would only obtain a >Pyrrhic victory= (Van den Berg, 1981, p. 143). 3. The three main issues The three main issues are the relationship between court-ordered interim relief and arbitration, the competence of the arbitrator to order such measures and the enforcement of the arbitrator=s orders. The following exposition focuses on theoretical aspects of the three issues and discusses them broadly. 3.1 The relationship between court-ordered interim relief and arbitration 3.1.1 Underlying concepts Interim relief in arbitration is an interface between private dispute settlement and the court. It is one of these aspects of arbitration procedure that cannot escape court interference. The arbitrator has no power to enforce his orders. As the effectiveness of an interim measure of protection depends, in the end, on its enforceability, court support may be needed. The critical question is how best to shift interim measures of protection with their need for enforcement sanctions to the realm of arbitration

Theoretically, three basic possibilities can be identified. The first one is that granting interim measures is exclusively allocated to the court. The court would provide the same interim protection to arbitration parties as it does to litigation parties. The opposite extreme is that one shifts interim measures of protection exclusively to the sphere of arbitration and only leaves the enforcement of the arbitrator=s orders to the courts. This would mirror the regular arbitration process. The arbitrator decides the dispute in his award and the courts enforce that award The courts do not interfere with the decision of the arbitrator. finally there is the option of free access to both the court and the arbitrator for interim relief The latter two possibilities call for a legal infrastructure. It must be ensured that the arbitrator can effectively grant interim measures of protection. This requires that his competence is spelled out and that an enforcement mechanism is adopted that suits the special needs of interim measures of protection. The measures must be enforceable very speedily and, where necessary, on an ex parte basis to preserve the element of surprise Today, a small number of countries follow the first possibility when they rule out any arbitrator=s competence to grant interim measures of protection. Examples are Italy and Greece(Sanders, 1996, p. 113 ). The majority follow the last approach as suggested by the Model Law when they provide for court access and the arbitrator=s competence to order interim measures of protection. But only spelling out the arbitrator=s power is not enough to provide a real alternative: a suitable enforcement mechanism must accompany it. The Model Law did not provide a guideline for an enforcement mechanism. Most countries do not provide a truly suitable mechanism Germany and Hong Kong have implemented such a mechanism. No country has yet adopted the second possibility. The English court-subsidiarity model comes close to it in defining precond itions for court access. The arbitrator is the course of first resort the court is the course of last resort with regard to interim measures It is a concept favoured and coined by german authors as the court-subsidiarity model (see Schlosser, 1989, pp. 306-307). Nevertheless, the new German law follows the free-choice approach of the Model Law. But a subsid arity model is reflected in the approach the ICC fosters. Article 23(2)of the ICC Rules(in force as from 1 January 1998)states that an arbitration party can only in >appropriate circumstances= apply to the courts for interim measures of protection once the file has been transmitted to the arbitral tribunal. With the >appropriate= test, the ICC Rules set up a hurdle that needs to be taken before a party can obtain court protection. This mechanism mirrors what can be regarded as a policy of court subsidiarity. However, it should be noted that article 23 (2)ICC Rules is wider than its predecessor, article 8(5). Article 8(5) referred to >exceptional circumstanc 3.1.2 Access to the courts If the lex arbitri does not clearly state that a party can have recourse to the courts for orders of interim protection, a dispute may arise as to whether seeking such recourse to the courts constitutes a waiver of the arbitration agreement but it can also have as a consequence that the courts refuse to aid arbitration parties, as has been the case in New York. In the McCreary decision, the Third Circuit held that the New york

Theoretically, three basic possibilities can be identified. The first one is that granting interim measures is exclusively allocated to the court. The court would provide the same interim protection to arbitration parties as it does to litigation parties. The opposite extreme is that one shifts interim measures of protection exclusively to the sphere of arbitration and only leaves the enforcement of the arbitrator=s orders to the courts. This would mirror the regular arbitration process. The arbitrator decides the dispute in his award and the courts enforce that award. The courts do not interfere with the decision of the arbitrator. Finally, there is the option of free access to both the court and the arbitrator for interim relief. The latter two possibilities call for a legal infrastructure. It must be ensured that the arbitrator can effectively grant interim measures of protection. This requires that his competence is spelled out and that an enforcement mechanism is adopted that suits the special needs of interim measures of protection. The measures must be enforceable very speedily and, where necessary, on an ex parte basis to preserve the element of surprise. Today, a small number of countries follow the first possibility when they rule out any arbitrator=s competence to grant interim measures of protection. Examples are Italy and Greece (Sanders, 1996, p. 113). The majority follow the last approach as suggested by the Model Law when they provide for court access and the arbitrator=s competence to order interim measures of protection. But only spelling out the arbitrator=s power is not enough to provide a real alternative: a suitable enforcement mechanism must accompany it. The Model Law did not provide a guideline for an enforcement mechanism. Most countries do not provide a truly suitable mechanism. Germany and Hong Kong have implemented such a mechanism. No country has yet adopted the second possibility. The English court-subsidiarity model comes close to it in defining preconditions for court access. The arbitrator is the course of first resort; the court is the course of last resort with regard to interim measures. It is a concept favoured and coined by German authors as the court-subsidiarity model (see Schlosser, 1989, pp. 306-307). Nevertheless, the new German law follows the free-choice approach of the Model Law. But a subsidiarity model is reflected in the approach the ICC fosters. Article 23 (2) of the ICC Rules (in force as from 1 January 1998) states that an arbitration party can only in >appropriate circumstances= apply to the courts for interim measures of protection once the file has been transmitted to the arbitral tribunal. With the >appropriate= test, the ICC Rules set up a hurdle that needs to be taken before a party can obtain court protection. This mechanism mirrors what can be regarded as a policy of court subsidiarity. However, it should be noted that article 23 (2) ICC Rules is wider than its predecessor, article 8 (5). Article 8 (5) referred to >exceptional circumstances=. 3.1.2 Access to the courts If the lex arbitri does not clearly state that a party can have recourse to the courts for orders of interim protection, a dispute may arise as to whether seeking such recourse to the courts constitutes a waiver of the arbitration agreement. But it can also have as a consequence that the courts refuse to aid arbitration parties, as has been the case in New York. In the McCreary decision, the Third Circuit held that the New York

Convention >forbids the courts of a contracting state from entertaining a suit which violates an agreement to arbitrate. Thus the contention that arbitration is merely another method of trial, to which state provisional remedies should equally apply, is unavailable [.]=. The reasoning of McCreary is, however, not followed by all American courts. In Carolina Power& Light Company v. Uranex it was held: >There is no indication in either the text or the apparent policies of the [New York Convention that resort to prejud gment attachment was to be precluded[. = As the Supreme Court had not yet an opportunity to rule on the question, American jurisprudence differs on the availability of interim measures of protection from the courts(see Born, 1994, pp. 772-773). A provision provid ing for both access to courts and the compatibility of court-ordered interim relief with arbitration is essential to do justice to the arbitration parties= cause and to prevent uncertainty If an arbitrator could equally efficiently order all measures of interim relief that the court provides, there would hardly arise any need and be any justification for court applications by arbitration parties. But as the arbitrator=s jurisdiction is limited, the court=s assistance is needed The first limitation of the arbitrator=s jurisdiction inherent in the arbitral process The arbitrator derives his power from the arbitratio agreement. The arbitration agreement is a contract that only binds the parties who entered into it. It has no effect on third parties. A Mareva injunction ordered by an arbitrator could thus only bind the arbitration parties, not their banks where the assets are held. Secondly, an arbitrator lacks any enforcement power. As a consequence, the Mareva injunction ordered by him would not be fortified with the threat of contempt of court, but would only have contractual effect between the parties. Taking these two limitations into account, it becomes evident how important access to the courts is fo certain kinds of interim relief in arbitration. Even if enforcement of arbitrator-granted interim relief is provided for, there will always be one step added to the procedure if enforcement is at stake. A court needs to step in to grant permission to enforce the arbitrator-granted order. This causes delay But it is not only the need for efficiency and speed that demands access to the courts for arbitration parties, it is also administrative peculiarities of arbitration. There is no permanent arbitral tribunal to which international commercial arbitrations are submitted. a tribunal has to be established for each requested arbitration This takes time. As long as the file has not been transferred to the arb itrator, there is no one available to grant interim measures of protection. Litigation practice shows that interim measures of protection are regularly in the highest demand before the case proceeds to trial. This observation is equally valid for arbitration. The greatest need for provisional remedies arises at a point when the tribunal has not yet been established. Arbitral institutions try to remedy this problem. An attempt undertaken by the International Chamber of Commerce in 1990 with its >Pre-Arbitral Referee Procedure= is, however, not successful (Schwartz, 1993, p. 64). Other institutions such as the World Intellectual Property Organization(WIPO)with its progressive draft >WIPO Emergency Relief Rules= look for alternatives. The London Court of International Arbitration (LCia)dropped its proposal in 1997 The above shows how essential court involvement is under certain circumstances but there are also voices against it. For instance, Boesch(1989, p. 8 )warns vehemently about the risks plication for interim relief to the courts can carry for arbitration

Convention >forbids the courts of a contracting state from entertaining a suit which violates an agreement to arbitrate. Thus the contention that arbitration is merely another method of trial, to which state provisional remedies should equally apply, is unavailable [. . .]=. The reasoning of McCreary is, however, not followed by all American courts. In Carolina Power & Light Company v. Uranex it was held: >There is no indication in either the text or the apparent policies of the [New York] Convention that resort to prejudgment attachment was to be precluded [. . .].= As the Supreme Court had not yet an opportunity to rule on the question, American jurisprudence differs on the availability of interim measures of protection from the courts (see Born, 1994, pp. 772-773). A provision providing for both access to courts and the compatibility of court-ordered interim relief with arbitration is essential to do justice to the arbitration parties= cause and to prevent uncertainty. If an arbitrator could equally efficiently order all measures of interim relief that the court provides, there would hardly arise any need and be any justification for court applications by arbitration parties. But as the arbitrator=s jurisdiction is limited, the court=s assistance is needed. The first limitation of the arbitrator=s jurisdiction is inherent in the arbitral process. The arbitrator derives his power from the arbitration agreement. The arbitration agreement is a contract that only binds the parties who entered into it. It has no effect on third parties. A Mareva injunction ordered by an arbitrator could thus only bind the arbitration parties, not their banks where the assets are held. Secondly, an arbitrator lacks any enforcement power. As a consequence, the Mareva injunction ordered by him would not be fortified with the threat of contempt of court, but would only have contractual effect between the parties. Taking these two limitations into account, it becomes evident how important access to the courts is for certain kinds of interim relief in arbitration. Even if enforcement of arbitrator-granted interim relief is provided for, there will always be one step added to the procedure if enforcement is at stake. A court needs to step in to grant permission to enforce the arbitrator-granted order. This causes delay. But it is not only the need for efficiency and speed that demands access to the courts for arbitration parties, it is also administrative peculiarities of arbitration. There is no permanent arbitral tribunal to which international commercial arbitrations are submitted. A tribunal has to be established for each requested arbitration. This takes time. As long as the file has not been transferred to the arbitrator, there is no one available to grant interim measures of protection. Litigation practice shows that interim measures of protection are regularly in the highest demand before the case proceeds to trial. This observation is equally valid for arbitration. The greatest need for provisional remedies arises at a point when the tribunal has not yet been established. Arbitral institutions try to remedy this problem. An attempt undertaken by the International Chamber of Commerce in 1990 with its >Pre-Arbitral Referee Procedure= is, however, not successful (Schwartz, 1993, p. 64). Other institutions such as the World Intellectual Property Organization (WIPO) with its progressive draft >WIPO Emergency Relief Rules= look for alternatives. The London Court of International Arbitration (LCIA) dropped its proposal in 1997. The above shows how essential court involvement is under certain circumstances. But there are also voices against it. For instance, Boesch (1989, p. 8) warns vehemently about the risks an application for interim relief to the courts can carry for arbitration

There are indeed risks involved, especially if the application to the court is regarded as a dilatory tactic, a way to get access to a biased forum or as a means to put pressure on the other party. Threatening to go to a public court with a dispute that should be solved confidentially can do this but such threats come from a party that does not ac in good faith. This kind of behaviour should not be taken as a reason to bar a good faith party from access to the most efficient remedy, especially if efficiency is decisive to secure assets without which the whole process of dispute settlement is rendered superfluous. Arbitration is there to serve the rights of the parties and is not an end in itself that needs to be protected at the expense of the bona fide party against attacks from the mala fide party. There are other means to prevent such attacks, for instance by stipulating that provisional remedies from courts in certain countries-the courts of which are deemed to be biased or bribable b are unavailable. Whether the courts will recognize such an opting-out of court protection is, however, doubtful English courts do(section 44, subsection 1 of the Arbitration Act 1996), German ones do not(LG Frankfurt). Further, it could be stipulated contractually that a party needs the arbitrator=s permission to apply to the courts. This can be regarded as a means to filter mala fide applications. But it could give rise to dispute concerning the stipulation and thereby hamper the whole process. The task to dismiss prima fa dilatory or tactical applications is best entrusted to experienced judges without imposing restraints on court access by the parties. The relationship between courts and arbitration should be one of mutual trust, respect and support. Modern trend is gradually moving in this direction. A centralization of arbitration matters at one court preferably a hierarchically higher one -would serve this goal 3.2 The arbitrator=s competence to order interim measures of protection The lex arbitri should also provide for the arbitrators competence to order interim measures of protection. It is not only necessary to ind icate that the state recognizes such a power, which is not yet the case in all countries, such as in Italy(article 818 Code of Civil Procedure), but it is also helpful to give the arbitrator explicit assurance of his power. This will especially be the case in institutional arbitrations because the contractual power conferred to them in the arbitration rules(e.g. article 23, paragraph I of the 1998 ICC Rules or rule 25(g) and rule 25 of the 1997 Arbitration Rules of the Singapore International Arbitration Centre-SIAC) is backed up in the lex arbitri of the seat of arbitration then there is no risk involved that the award will be set aside or will not be enforced on the ground that the >arbitral procedure[. was not in accordance with the law of the country where the arbitration took place=(article V paragraph 1(d)of the New York Convention for non-enforcement ground; compare article 34, paragraph 2(a)(iv) of the UNCITRAL Model Law for setting aside ground ) Arbitrators who are reluctant to grant provisional remed ies might find relief in such an assurance 3.3 The enforcement of arbitrator-granted remedies An arbitrator has no imperium, >the right [. to enforce the laws=(Black, 1891, p 594). Thus the state needs to step in with its enforcement machinery to lend the arbitrators= order the necessary authority to ensure compliance. Whether the enforcement machinery will be invoked is a different matter. Indeed Craig, Park and Paulsson point out that >parties do not ord inarily flout procedural orders made by

There are indeed risks involved, especially if the application to the court is regarded as a dilatory tactic, a way to get access to a biased forum or as a means to put pressure on the other party. Threatening to go to a public court with a dispute that should be solved confidentially can do this. But such threats come from a party that does not act in good faith. This kind of behaviour should not be taken as a reason to bar a goodfaith party from access to the most efficient remedy, especially if efficiency is decisive to secure assets without which the whole process of dispute settlement is rendered superfluous. Arbitration is there to serve the rights of the parties and is not an end in itself that needs to be protected at the expense of the bona fide party against attacks from the mala fide party. There are other means to prevent such attacks, for instance by stipulating that provisional remedies from courts in certain countries - the courts of which are deemed to be biased or bribable B are unavailable. Whether the courts will recognize such an opting-out of court protection is, however, doubtful: English courts do (section 44, subsection 1 of the Arbitration Act 1996), German ones do not (LG Frankfurt). Further, it could be stipulated contractually that a party needs the arbitrator=s permission to apply to the courts. This can be regarded as a means to filter mala fide applications. But it could give rise to dispute concerning the stipulation and thereby hamper the whole process. The task to dismiss prima facie dilatory or tactical applications is best entrusted to experienced judges without imposing restraints on court access by the parties. The relationship between courts and arbitration should be one of mutual trust, respect and support. Modern trend is gradually moving in this direction. A centralization of arbitration matters at one court - preferably a hierarchically higher one - would serve this goal. 3.2 The arbitrator=s competence to order interim measures of protection The lex arbitri should also provide for the arbitrator=s competence to order interim measures of protection. It is not only necessary to indicate that the state recognizes such a power, which is not yet the case in all countries, such as in Italy (article 818 Code of Civil Procedure), but it is also helpful to give the arbitrator explicit assurance of his power. This will especially be the case in institutional arbitrations because the contractual power conferred to them in the arbitration rules (e.g. article 23, paragraph 1 of the 1998 ICC Rules or rule 25 (g) and rule 25 (j) of the 1997 Arbitration Rules of the Singapore International Arbitration Centre - SIAC) is backed up in the lex arbitri of the seat of arbitration. Then there is no risk involved that the award will be set aside or will not be enforced on the ground that the >arbitral procedure [. . .] was not in accordance with the law of the country where the arbitration took place= (article V, paragraph 1 (d) of the New York Convention for non-enforcement ground; compare article 34, paragraph 2 (a) (iv) of the UNCITRAL Model Law for setting aside ground). Arbitrators who are reluctant to grant provisional remedies might find relief in such an assurance. 3.3 The enforcement of arbitrator-granted remedies An arbitrator has no imperium, >the right [. . .] to enforce the laws= (Black, 1891, p. 594). Thus the state needs to step in with its enforcement machinery to lend the arbitrators= order the necessary authority to ensure compliance. Whether the enforcement machinery will be invoked is a different matter. Indeed Craig, Park and Paulsson point out that >parties do not ordinarily flout procedural orders made by

arbitrators under contractually granted powers=(1990, pp 145-146). But as the inclusion of >ord inarily= implies, there are situations in which enforcement is necessary to ensure compliance. In order to be a real alternative to court-ordered interim relief. the orders of the arbitrators must be fortified with a real threat of enforcement. To achieve this end, state support is needed Cross-border enforcement of arbitrator-granted interim relief is an important aspect of the enforcement issue with regard to international commercial arbitration. In the absence of an international regime for cross-border enforcement, a unilateral approach can be seen as a way to solve the problem. The New york Convention is silent on the question of interim measures of protection and their cross-border enforcement(Van den Berg, 1981, p. 144). The Supreme Court of Queensland(see Sanders, 1996, p 115)rejected an attempt to enforce an interim award under the New York Convention in 1993. Berger(1993, p. 345 with further reference)outlines the convincing arguments against the enforcement of interim measures of protection under the New York Convention. In a cross-border context. arbitrator-granted interim relief could become even more efficient than court -ordered relief if at least a unilateral enforcement regime is in place. The importance of cross-border enforcement will be illustrated below with regard to interim measures preventing the dissipation of assets An arbitration will often take place in a third, >neutral= country. This is a place where substantive assets of the parties are most likely not held. If an arbitrator orders interim relief, it is(with the exception of German law)-at best-only enforceable at the seat of arbitration. The effect of the provisional remed ies is therefore rather limited. It will not reach assets in the home countries of the parties. If a court at the seat of arbitration grants an interim order, it can only prevent the dissipation of assets out of its jurisdiction In the absence of a bilateral or multilateral enforcement agreement covering court ordered or arbitrator-granted interim relief, the jurisdictional limitations force an arbitration party to apply to courts in the country or even countries where the assets are held. This is the reason why it is so important to provide for court access even if the seat of arbitration is outside the country where the order is sought. Article 1(2)of the model law caters for this need. If interim relief in arbitration would be cross- border enforceable, one order would be sufficient and no need would arise to apply to several courts for an order under probably different regimes of interim relief. Only enforcement proceedings in different countries would be needed It is unlikely that a country enforces interim relief granted by a court of a foreign country without an agreement providing for reciprocity. To expect a global multilateral enforcement agreement for court-ordered interim relief is illusionary. To establish an international regime for the cross-border enforcement of arbitrator granted interim relief will be difficult to achieve. a possibility would be to amend the New York Convention. In the meantime, unilateral solutions could provide for cross border effectiveness in the sense that countries render their mechanisms for enforcing arbitrator-granted interim relief not only applicable if they are chosen as arbitration venue but also in the case that the seat of arbitration is somewhere outside the country This would reflect the legislator=s commitment to the cause of arbitration as a whole 4. Country reports

arbitrators under contractually granted powers= (1990, pp. 145-146). But as the inclusion of >ordinarily= implies, there are situations in which enforcement is necessary to ensure compliance. In order to be a real alternative to court-ordered interim relief, the orders of the arbitrators must be fortified with a real threat of enforcement. To achieve this end, state support is needed. Cross-border enforcement of arbitrator-granted interim relief is an important aspect of the enforcement issue with regard to international commercial arbitration. In the absence of an international regime for cross-border enforcement, a unilateral approach can be seen as a way to solve the problem. The New York Convention is silent on the question of interim measures of protection and their cross-border enforcement (Van den Berg, 1981, p. 144). The Supreme Court of Queensland (see Sanders, 1996, p. 115) rejected an attempt to enforce an interim award under the New York Convention in 1993. Berger (1993, p. 345 with further reference) outlines the convincing arguments against the enforcement of interim measures of protection under the New York Convention. In a cross-border context, arbitrator-granted interim relief could become even more efficient than court-ordered relief if at least a unilateral enforcement regime is in place. The importance of cross-border enforcement will be illustrated below with regard to interim measures preventing the dissipation of assets. An arbitration will often take place in a third, >neutral= country. This is a place where substantive assets of the parties are most likely not held. If an arbitrator orders interim relief, it is (with the exception of German law) - at best - only enforceable at the seat of arbitration. The effect of the provisional remedies is therefore rather limited. It will not reach assets in the home countries of the parties. If a court at the seat of arbitration grants an interim order, it can only prevent the dissipation of assets out of its jurisdiction. In the absence of a bilateral or multilateral enforcement agreement covering courtordered or arbitrator-granted interim relief, the jurisdictional limitations force an arbitration party to apply to courts in the country or even countries where the assets are held. This is the reason why it is so important to provide for court access even if the seat of arbitration is outside the country where the order is sought. Article 1(2) of the Model Law caters for this need. If interim relief in arbitration would be crossborder enforceable, one order would be sufficient and no need would arise to apply to several courts for an order under probably different regimes of interim relief. Only enforcement proceedings in different countries would be needed. It is unlikely that a country enforces interim relief granted by a court of a foreign country without an agreement providing for reciprocity. To expect a global, multilateral enforcement agreement for court-ordered interim relief is illusionary. To establish an international regime for the cross-border enforcement of arbitratorgranted interim relief will be difficult to achieve. A possibility would be to amend the New York Convention. In the meantime, unilateral solutions could provide for crossborder effectiveness in the sense that countries render their mechanisms for enforcing arbitrator-granted interim relief not only applicable if they are chosen as arbitration venue but also in the case that the seat of arbitration is somewhere outside the country. This would reflect the legislator=s commitment to the cause of arbitration as a whole. 4. Country reports

4.1 England 4.1.Ⅰ Background England is an established international arbitration venue. for both institutional and ad hoc arbitrations. The London court of international arbitration is one of the busiest arbitration institutions in the world. It plays in the league of the market leader, the Paris-based International Chamber of Commerce. the American arbitration Association(AAA)and the traditional arbitration centres in Vienna, Stockholm and urIc Prior to the new single Arbitration Act 1996, the English legal framework fo international commercial arbitration comprised not only three different Acts (Arbitration Acts 1950, 1975 and 1979)but also a voluminous body of case law. The diversity of sources made access to the law equally difficult for non-specialists as foreigners. It therefore ill suited international commercial arbitration with its need for a transparent legal regime. But it was not only the law=s presentation which did not keep pace with modern trends, also substantive matters called for reform to defend England=s market share in the arbitration business The Model Law set new standards when it was ad opted by UNCITRAL and recommended by the General assembly of the United Nations in 1985. It gave impetus to a >Departmental Advisory Committee=(DAC), chaired by Mustill LJ(as he then was ). The task of the Committee was to advise on the adoption of the Model Law in England. The committee rejected adoption on several grounds, among them being the Committee=s finding that the Model Law differed >from established principles of English law=(see Merkin, 1996, p. 2, for quotation from the 1989 DAC Report). Even though the committee rejected adoption of the Model Law, it urged for new legislation and recommended features thereof. One of the features was the restatement of the principles of English arbitration law. But >consideration should also be given that the new statute] should, so far as possible, have the same structure and language as the Model Law, so as to enhance its accessibility to those who are familiar with the Model Law=(see DAC Report, 1996, No. 2 for quotation of paragraph 108(7)of the 1989 DAC Report). The first bill published in 1994 continued to reject adoption of the Model Law, as did the second bill prepared by the DAC in 1995-chaired by Saville L.J. -which followed the abandonment of the 1994 draft The 1995 draft led with mod ifications to the enactment of the arbitration Act 1996. The >DAC Report on the Arbitration Bill= of February 1996 contains a comprehensive commentary on the provisions and points out that >very close regard was paid to the Model Law, and [ that] it will be seen that both the structure and the content of[... the final draft owe much to this model=(DAC Report, 1996, No 4) The Arbitration Act 1996 came into force on 31 January 1997(The Arbitration Act 1996(Commencement No. 1)Order 1996) The new Arbitration Act 1996 was praised in the House of lords and in the House of Commons(see Miller, 1996, p. 252 and p 256)and has been welcomed >as it introduces a new arbitration regime which is clear and workable= (Slaughter and May

4.1 England 4.1.1 Background England is an established international arbitration venue, for both institutional and ad hoc arbitrations. The London Court of International Arbitration is one of the busiest arbitration institutions in the world. It plays in the league of the market leader, the Paris-based International Chamber of Commerce, the American Arbitration Association (AAA) and the traditional arbitration centres in Vienna, Stockholm and Zurich. Prior to the new single Arbitration Act 1996, the English legal framework for international commercial arbitration comprised not only three different Acts (Arbitration Acts 1950, 1975 and 1979) but also a voluminous body of case law. The diversity of sources made access to the law equally difficult for non-specialists as foreigners. It therefore ill suited international commercial arbitration with its need for a transparent legal regime. But it was not only the law=s presentation which did not keep pace with modern trends, also substantive matters called for reform to defend England=s market share in the arbitration business. The Model Law set new standards when it was adopted by UNCITRAL and recommended by the General Assembly of the United Nations in 1985. It gave impetus to a >Departmental Advisory Committee= (DAC), chaired by Mustill L.J. (as he then was). The task of the Committee was to advise on the adoption of the Model Law in England. The committee rejected adoption on several grounds, among them being the Committee=s finding that the Model Law differed >from established principles of English law= (see Merkin, 1996, p. 2, for quotation from the 1989 DAC Report). Even though the committee rejected adoption of the Model Law, it urged for new legislation and recommended features thereof. One of the features was the restatement of the principles of English arbitration law. But >consideration should also be given [that the new statute] should, so far as possible, have the same structure and language as the Model Law, so as to enhance its accessibility to those who are familiar with the Model Law= (see DAC Report, 1996, No. 2 for quotation of paragraph 108 (7) of the 1989 DAC Report). The first bill published in 1994 continued to reject adoption of the Model Law, as did the second bill prepared by the DAC in 1995 - chaired by Saville L.J. - which followed the abandonment of the 1994 draft. The 1995 draft led, with modifications, to the enactment of the Arbitration Act 1996. The >DAC Report on the Arbitration Bill= of February 1996 contains a comprehensive commentary on the provisions and points out that >very close regard was paid to the Model Law, and [that] it will be seen that both the structure and the content of [. . .] the final draft owe much to this model= (DAC Report, 1996, No. 4). The Arbitration Act 1996 came into force on 31 January 1997 (The Arbitration Act 1996 (Commencement No. 1) Order 1996). The new Arbitration Act 1996 was praised in the House of Lords and in the House of Commons (see Miller, 1996, p. 252 and p. 256) and has been welcomed >as it introduces a new arbitration regime which is clear and workable= (Slaughter and May

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