Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

Before the International Chamber of Commerce (ICC) adopted its pre-arbitral referee procedure in 1990,1 no institutional arbitration rules provided for provisional relief from an arbitrator or arbitral tribunal before the constitution of that tribunal. Instead, provisional relief was available only from domestic courts,2 involving all the complications and inefficiencies which recourse to such courts may entail.3 For example, domestic courts have not always been ready to issue the provisional relief that is necessary to aid arbitrators in rendering their awards on the merits and in preventing the parties from engaging in acts that potentially undermine the arbitral process and its outcome.4 Such problems in the relations between arbitral tribunals and domestic courts are particularly pressing if the respondent is a State or State entity and the courts competent to issue provisional relief are the respondent’s national courts.