Originally from Leading Arbitrators' Guide to International Arbitration - 2nd Edition

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I. INTRODUCTION

There has been an explosive growth in the number of international arbitrations over the past twenty or thirty years. In the mid-1980s, a little over 50 states had acceded to the New York Convention. That number has now almost tripled to 140. In the mid-1980s, the UNCITRAL Model Law was just coming off the production line. It has now been adopted by over 50 states and used as a bench-mark for new laws on arbitration in many other states. No statistics are available for the intensely private ad hoc arbitrations, but experience suggests that they are increasing; and the picture is the same with institutional arbitrations. In the mid-1980s, the International Chamber of Commerce in Paris (“the ICC”) registered approximately 250 new cases each year. That figure has now more than doubled; and other arbitral institutions report similar, or even greater, increases in numbers, including the International Centre for Dispute Resolution and, of course, the International Centre for the Settlement of Investment Disputes (“ICSID”), which has been woken like a sleeping beauty by the princely kiss of investor/state disputes.

International arbitration, in short, has become established worldwide as the pre-eminent method of resolving international financial and commercial disputes. But this astonishing growth has come at a price. This “system of justice born of merchants” has become increasingly more sophisticated and in consequence, more expensive. Arbitrators have now achieved the status of international decisionmakers. They are expected to exercise similar powers to those exercised by national judges in courts of law; and these include the power to determine their own jurisdiction, the power to order disclosure of documents, the power to order the attendance of witnesses and – the subject of this Chapter – the power to issue interim measures of protection.

Such measures go by different names. In the English version of the ICC rules, they are known as “Conservatory and Interim measures”. In the French version of these rules, they are known as “Mésures Provisoires ou Conservatoires”, whilst in the Swiss law governing international arbitration they are referred to as “Provisional or Protective measures.” In the UNCITRAL Model Law (“the Model Law”), they are known as “Interim Measures of Protection”, whilst in the revised Model Law, to which reference is made later, they are known as “Interim Measures and Preliminary Orders”. Whatever they may be called, interim measures are intended to be temporary in nature. They are not meant to represent a final decision on the dispute between the parties. They are also intended to be protective in nature, generally operating as holding orders pending the outcome of the arbitral proceedings.