Vol. 3.2 October 1999

Sébastien Besson, Arbitrage international et mesures provisoires: Etude de droit comparé (Zürich: Schulthess Polygraphischer Verlag, 1998; Swiss Studies in International Law, Vol. 105) 422 pages, ISBN 3-7255-3585-X.

Sébastien Besson has written a remarkable book. His doctoral thesis, supervised by Professor Poudret of Lausanne University, deals in four chapters with interim relief in international arbitration, a topic that has attracted many authors in recent years. A comparative study of its quality and comprehensiveness as submitted by Besson was yet to come.

International commercial arbitration operates in a legal framework which has been in the process of internationalisation since the 1960s and which is determined by international conventions, national arbitration laws and rules based on party autonomy. In the past, arbitration laws used to be the remaining strongholds of national peculiarities in this framework. International instruments such as the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (henceforth: New York Convention of 1958) and arbitration rules such as those of the International Chamber of Commerce, had long been geared towards establishing an international standard. Today, arbitration laws are harmonised through aligning with the UNCITRAL Model Law on International Commercial Arbitration (henceforth: Model Law). In sharp contrast to the successful internationalisation of the legal framework for international arbitration, the national legal regimes for interim relief are still very disparate. Only recently, efforts have been undertaken to distill transnational rules for interim measures of protection.

As the internationalisation stages are different, attempts to incorporate a system of interim relief into the system of international arbitration are generally undertaken against the background of a specific national system of interim relief. Hence, there was for instance an extensive discussion in Germany on the question of interim relief in arbitration. Most arguments brought forward discussed technicalities of the German system of interim relief. The arguments were, therefore, not suitable for generalisation. But international commercial arbitration demands a search of solutions on the transnational plane. To achieve this end, a comparative study has great virtue. It can help to identify and transgress national peculiarities.

The countries chosen by Besson are Switzerland, France, Belgium, Italy, the Netherlands, Germany and England. Switzerland, France and England are three of the leading international arbitration venues. The Netherlands has a highly developed arbitration culture. Belgium, Italy and Germany are aspiring candidates in the international arbitration arena. All countries under consideration have seen ambitious arbitration law reform during the last two decades. Their arbitration law reforms stimulated the international competition for the most suitable arbitration law. The French and Belgian arbitration laws predate the launch of the Model Law in 1985. All other reforms have taken place thereafter. The Dutch and Swiss law reforms of 1986 and 1989 respectively did not align with the Model Law. All other countries took the Model Law into account, however, to differing extents.

Next to the seven arbitration laws and corresponding national systems of interim relief, Besson discusses the Model Law, international instruments, notably the New York Convention of 1958, and selected arbitration rules.

In his introduction, Besson maps out his research programme. The work concentrates on the three classical issues raised by interim relief in arbitration. They are: the jurisdiction of the judge and the arbitrator to grant interim measures of protection, the measures of protection available from the judge and the arbitrator and the execution of both judicial and arbitral interim measures of protection.

The first chapter offers an introduction to the two components of the topic: the notion of interim relief and international arbitration. It touches on the disparity between the national systems concerning interim relief. But even within the respective national systems, the field of interim relief is not clearly marked. There is, for instance, no legal definition of interim relief in any of the countries under consideration. Today, interim relief enjoys a prominent role in litigation; it has also had its inroads into international commercial arbitration. Besson highlights the importance of interim relief in the context of arbitration and discusses the different views on how to specify international arbitration. He then moves on to explore the coexistence of state and arbitral jurisdiction and its impact on the topic. As arbitral jurisdiction has limitations ratione materiae and ratione personae, it is necessary to realistically delimit the arbitrator's jurisdiction.

The second chapter is about the jurisdiction of the arbitrator and the judge, respectively, to entertain applications for interim relief. It is, telling by the number of pages afforded to it, the central chapter of the book. It has four subdivisions: the arbitrator's competence, the judge's competence, the relationship between the judge's competence and the arbitrator's competence and the conflict of competences or measures ordered.

Interim relief in arbitration is a rather modern phenomenon. It emerged with the rising prominence of interim relief. In the past, arbitration laws and rules were generally silent on the question of interim relief. Hence, the need arose to construct an arbitrator's competence to include interim relief in the realm of arbitration. Besson reviews the theories of implicit and inherent powers. Today, modern arbitration rules and laws address the topic of interim relief. Besson bases the arbitrator's competence to order interim relief on party autonomy. An interesting examination of the limitations to party autonomy as expressed in the national arbitration laws and the national and international enforcement regimes follows. After this more or less abstract introduction, Besson focuses on the national arbitration laws. On the one hand, there are the countries that provide for an arbitrator's competence: Switzerland in its legal regime for international arbitration, France, Belgium, the Netherlands and England. On the other hand, there are the countries that refuse to accept an arbitrator's competence: Italy, Switzerland in its legal regime for domestic arbitration and Germany prior to its law reform in 1998. Besson discusses in detail the different views taken in the legal literature and jurisprudence of the seven countries. Apart from the solutions of the national arbitration laws, Besson presents the solutions of some prominent arbitration rules such as those of the ICC, UNCITRAL and ICSID. Next, the question of interim measures granted as partial awards is tackled. In the past, arbitrators often had recourse to this form of award when they granted interim relief in order to meet enforcement preconditions. Finally, the limitations of the arbitrator's powers are pointed out again. Besson discusses the arbitrator's competence comprehensively. Today's general acceptance of an arbitrator's competence to order interim relief tells that the international arbitration community did some successful lobbying.

The second subdivision of chapter 2 addresses briefly the judge's competence to order interim relief in the context of an arbitration. It especially focuses on some spectacular American cases in which the court held that Article 2 (3) of the New York Convention of 1958 excludes recourse of arbitration parties to state courts for interim relief. This is, however, even within the United States a minority view. In general, an arbitration agreement does not affect the court's competence to order interim relief. Besson further deals with the issue of opting out of court interim relief. This is generally not possible. In ICSID arbitration, however, parties can only apply to the arbitral tribunal for interim relief.

The third subdivision deals with the relationship of court and arbitral interim relief according to arbitration laws and rules. The relationship can be described by two models: the Free-Choice Model and the Court-Subsidiarity Model. According to the former model, arbitration parties are free to apply to court or to the arbitral tribunal for interim relief. The latter model sets certain limitations to the parties' choice. An arbitration party should, in the first place, approach the arbitrator for interim relief and only in the second place, especially if the arbitrator cannot order efficient interim relief, go to court. Besson argues in favour of the Court-Subsidiarity Model as realised in the English Arbitration Act of 1996. His detailed country reports lay out the national differences. Especially the French legal literature is rich in differentiation - a differentiation largely determined by the French system of interim relief.

The last subdivision is about conflict situations, either with regard to competence or interim measures of protection granted by court and arbitrator. So far, jurisprudence on this question is non-existent. But with the growing demand for interim relief in the context of arbitration, conflict situations are likely to arise in the future. Besson offers valuable thoughts on how to approach possible conflicts.

The third chapter deals with the kind of interim measures available from court and arbitrator. It is the shortest chapter of the book, though it touches on a very important issue. Interim relief available from court differs from country to country. As mentioned, the arbitrator's competence to order interim measures of protection is a rather new competence. Hence, a common understanding of the crucial question of what kind of interim remedies an arbitrator can order has not yet evolved. Besson begins his analysis with the question of the applicable law. In his view, the arbitrator should be free to choose either from the interim measures of protection available under the procedural law governing the arbitration, i.e. the national civil procedural law corresponding with the lex arbitri, or from the national civil procedural law corresponding with the lex causae. He then very briefly outlines the contents of the measures and touches upon the question of an undertaking as to damages. Besson does, however, not discuss the controversial question of ex parte arbitral interim measures of protection. It will be interesting to see whether and how the current attempts to distill transnational rules for interim relief will be adopted by international arbitral tribunals.

The fourth and last chapter deals with enforcement issues, both with regard to enforcing interim measures granted by an arbitrator and by a judge. Besson further differentiates between national and cross-border enforcement.

As the arbitrator lacks enforcement power, the state courts need to step in to lend the arbitrator their enforcement power. Besson differentiates two general models of support: the Dutch and the Swiss models. According to the Dutch model, an arbitrator's interim measure of protection is regarded as an award to which the regular award-enforcement procedure is applicable. The Swiss model provides for a special enforcement mechanism separate from the one regularly applicable to awards. The elaborate new German enforcement mechanism is presented en détail, as are the English and Swiss approaches. Informal means of ensuring compliance with an arbitrator's order are mentioned before Besson turns to the cross-border enforcement of an arbitrator's interim measure of protection. This is one of the most important questions in the international context. As an arbitral tribunal will frequently have its seat in a neutral forum, where the parties will most likely have neither substantial assets nor their production plants, an interim measure of protection is deemed to take effect in one of the home countries of the parties. From the perspective of the home country, the arbitrator's order is a foreign order if the seat of arbitration is abroad. Besson examines the enforcement possibilities according to the New York Convention of 1958, other international instruments and national law. In great detail, he summarises the international discussion on the application of the New York Convention of 1958 on interim measures of protection and adds a personal analysis. His conclusion is d'accord with the prevailing opinion: The Convention does not apply to interim measures of protection unless they can validly be granted in the form of a final partial award. Besson argues in favour of a unilateral enforcement of foreign arbitral interim measures of protection under Swiss law.

The second subdivision of the fourth chapter addresses the question of the enforcement of interim measures of protection granted by state courts. In the cross-border context, the chapter notably discusses the interesting question whether the Brussels and Lugano Conventions should be applicable for judicial interim measures of protection granted in the context of an arbitration. Besson argues in favour of application. The reservation that the Conventions do not apply to arbitration should not be construed to exclude the cross-border enforcement of judicial interim relief granted in the context of an arbitration.

In this review, it was only possible to outline the structure of Besson's well-researched and well-written book. It is impressively rich in detail and very precise, and constitutes a comprehensive study of a topic that encompasses a multitude of aspects. The book is apt to enlighten the ongoing international discussion on interim relief in arbitration from a broad comparative legal perspective and will be useful to the practitioner looking for information on the seven countries under consideration. Hence, it can only be hoped that it will find many readers.

Jan K. Schaefer, LLM (Research) (NUS), Cert. Comp. Law (SOAS)

To Issue Archives Search Comments Help EJCL home