Author: Hans Smit*
Description: On January 1, 1990, the ICC Rules for a Pre-arbitral Referee Procedure (the “Rules”) entered into effect. They regulate the granting of provisional relief by a “Referee” prior to the time an arbitral tribunal or competent court is seized with the case in which permanent relief is sought. The Rules introduce a novelty in international arbitration. Before their adoption, none of the rules of the leading international arbitration institutions provided a special procedure for the granting of provisional relief by an arbitral tribunal. To the extent that provisional relief was available in arbitration, it was granted by the arbitral tribunal that was properly seized to grant final relief. Some of these rules provide that the arbitral agreement shall not affect the availability of provisional relief in the ordinary courts. Others also provide that an application for provisional relief submitted to a court shall not be construed as a waiver of the right to arbitrate.
The ICC Rules for a Pre-arbitral Referee Procedure are new in that they introduce a special procedure for submitting claims for provisional relief to an arbitrator (“Referee”) that may be used regardless of whether final relief is sought in arbitration or in the ordinary courts. In the past, depending on the applicable rules, an arbitral tribunal could grant provisional relief only after it had been properly constituted. Before that time, provisional relief, if available at all, could be obtained only from the courts.
*Fuld Professor of Law and Director, Parker School of Foreign and Comparative Law, Columbia University. The views expressed in this article are the personal views of the author; they are not necessarily those of the Parker School or the Editors of this Review.