Originially from: World Arbitration and Mediation Review (WAMR)

Examination of ICC’S New
Pre-Arbitral Refereee Procedure
By Christine Lécuyer-Thieffry, Thieffry &Associés,New York, Avocat au
Barreau de Paris, Member of the AAA Panel of Arbitrators
Effective January 1, 1990, the Pre-arbitral Referee Procedure
(hereinafter also referred to as “the Rules”) of the International Chamber
of Commerce (“ICC”) provides new rules for quickly obtaining
provisional relief in disputes arising out of a long-term contractual
relationship. The Rules say that they “are designed to meet a specific
need; that of having recourse at very short notice to a third party—the
‘Referee’—who is empowered to order provisional measures needed as a
matter of urgency.”
The Rules were developed over a 10-year period to answer the needs of
the practice. The Pre-arbitral Referee is intended to deal with issues raised
during the course of the performance of the contract, more particularly
long-term construction contracts. The parties may disagree on the meaning
of contractual stipulations that could include questions such as whether the
work conforms to the contractual specifications or whether it has to be
partially redone; whether substitute materials should be used; whether an
interim payment ought to be made; or whether a guarantee should be paid
or returned.
A national court would lack neutrality and, in some countries, would
refuse or be reluctant to grant provisional relief, especially where the
contract contains an arbitration clause. The arbitrators themselves (even if
empowered to do so) would not be able to act within the required time.
Thus, the parties would turn to the Pre-arbitral Referee.
However, to prevent the use of the procedure for dilatory purposes, the
Rules provide that the competent jurisdiction ultimately hearing the merits
of the case— which, according to Article 1.1, may be either an arbitral
tribunal or a national court—may determine whether the party “who
requested the Referee to issue an order the carrying out of which caused
damage to another party is liable to such other party.”
The Powers of the Referee
The Pre-arbitral Referee is modeled after the French juge des referes.
Although, under French procedural law, decisions usually are rendered by
a tribunal, some decisions can be made by a sole judge. Such is the case
with orders granted by the juge des referes.
Traditionally, in all cases of emergency, the juge des referes has
jurisdiction to order any measure deemed appropriate. He may also order
conservatory measures, or measures of restoration that are required either
to prevent immediate damage or to stop an obviously illicit wrongdoing,