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 yorkTheoretically, 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