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Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.15 The Question of Interim Measures

David D. Caron, Lee M. Caplan, Matti Pellonpää

From: The UNCITRAL Arbitration Rules: A Commentary (1st Edition)

David D. Caron, Matti Pellonpää, Lee M. Caplan

A newer edition of The UNCITRAL Arbitration Rules is available. Latest edition (2 ed.)
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Content type:
Book content
Product:
International Commercial Arbitration [ICMA]
Series:
Oxford Commentaries on International Law
Published in print:
23 March 2006
ISBN:
9780199297597

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

(p. 531) Chapter 15  The Question of Interim Measures

  1. 1  Introduction 531

  2. 2  Interim Measures–Article 26 532

    1. A  Text of the UNCITRAL Rule 533

    2. B  Commentary 533

      1. (1)  Conditions for the Ordering and Contents of Interim Measures–Article 26(1) 533

      2. (2)  The Form of a Decision on Interim Measures and the Costs of Such Measures–Article 26(2) 540

      3. (3)  Relations Between the Arbitral Tribunal and Municipal Courts in Question Concerning Interim Measures 543

    3. C  Extracts from the Practice of the Iran-US Claims Tribunal 546

      1. (1)  Tribunal Rule, Article 26(1) 546

      2. (2)  Tribunal Rules, Article 26(2) 558

      3. (3)  Tribunal Rules, Article 26(3) 560

1  Introduction

For a variety of reasons, considerable time may elapse between the commencement of arbitral (or judicial) proceedings and the final decision. As a result, a party may feel that the very rights it seeks to protect are threatened by the length of the process.

Accordingly, a party may institute “an action seeking the return of a valuable piece of property, which is stored under conditions that will have rendered the item worthless by the conclusion of the proceedings.”1 A number (p. 532) of legal systems, both national and international, provide remedies and practices for such purposes, sometimes referred to as interim measures, conservatory measures, provisional relief or preliminary injunctions. Requests for interim measures have been relatively frequent, for example, before the International Court of Justice.2

2  Interim Measures–Article 26

In the UNCITRAL Rules, “interim measures of protection” are dealt with in Article 26.3 Article 26(1) sets forth the basic rule; Article 26(2) deals with carrying out interim measures; and Article 26(3) addresses the respective roles of the arbitral tribunal and municipal courts in the consideration of such measures.4

(p. 533) Although the question of municipal court jurisdiction is touched upon in Article 26(3), it should be noted that mandatory norms of national law may provide that the power to order interim measures belongs exclusively to domestic courts, thereby precluding the arbitral tribunal from initiating such actions in the first place.5 In such cases, Articles 26(1) and (2) are, of course inapplicable.6 In accordance with Article 1 of the UNCITRAL Rules, the restrictions posed by domestic law are to be taken into account in the application of Articles 26(1) and (2).

A  Text of the UNCITRAL Rule7

Article 26 of the UNCITRAL Rule provides:

  1. 1.  At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject–matter of the dispute, including measures for the conservation of the goods forming the subject–matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.

  2. 2.  Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.

  3. 3.  A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

B  Commentary

(1)  Conditions for the ordering and contents of interim measures–Article 26(1)

(a)  Interim measures must be requested by a party

Article 26(1) provides that measures may be granted “[a]t the request of either party.” The travaux préparatoires indicate that a party request is a prerequisite to ordering interim measures.8 Thus, in arbitration under the (p. 534) UNCITRAL Rules, unlike certain other systems,9 a tribunal is not entitled to order interim measures on its own initiative.10 Although the paragraph does not preclude the admission of oral requests (made, for example, during a hearing),11 requests should, whenever possible, be in writing and should “set forth sufficient reasons to enable comments by the other party and deliberations by the tribunal.”12

(b)  Interim measures must be necessary in respect of the subject matter of the dispute

Interim measures should be “necessary in respect of the subject matter of the dispute.” The relationship between interim measures and the subject matter of the dispute is usually not problematic. Difficulties can arise, however, as was the case with the Iran-US Claims Tribunal. The majority of interim measures granted by the Tribunal sought to stay Iranian court proceedings which duplicated Tribunal proceedings.13 The difficulty may be illustrated by comparing two cases which, despite basic similarities, were decided differently. In both instances, the American claimant before the Tribunal requested an order staying Iranian court proceedings. In one case, RCA Globcom, an Iranian who was not a party to Tribunal proceedings initiated court proceedings in Iran against the claimant. In the other case, Tadjer–Cohen Associates, an Iranian, who was a respondent in Tribunal proceedings, initiated court proceedings against an American entity which was not formally a party before the Tribunal.

In the former case, the plaintiff in the Iranian proceedings was Iran Insurance Company from which the claimant, RCA Globcom, had taken out an insurance policy covering work performed under the contract at issue before the Tribunal. Despite this undeniable connection with the subject matter of the arbitration case, the Tribunal rejected the request for interim measures, finding that the two proceedings concerned different rights and obligations (p. 535) arising out of different contracts.14 On the other hand, in Tadjer–Cohen Associates, the similarity of the legal relationships involved in the two cases led the Tribunal to order the stay of the Iranian proceedings as an interim measure. The distinguishing feature in this case was that the American defendant in the Tehran court, TCSB, was also the real party in interest in the Tribunal case; Tadjer–Cohen Associates retained the status of claimant before the Tribunal merely on the basis of an assignment from TCSB.15 These cases demonstrate that whether an act is prejudicial to a right relating to the subject–matter of a dispute cannot be separated from consideration of whose rights and whose corresponding obligations are involved.16

Whether an arbitral tribunal must satisfy itself that it has jurisdiction over the subject matter of the dispute (and over the parties) before deciding to order interim measures is a question which has generated considerable legal writing and caused practical problems for various international courts and tribunals.17 On the one hand, a party may have legitimate objections to an arbitral tribunal's ordering interim measures against it if it is unclear whether the tribunal ultimately has jurisdiction to grant the relief sought. On the other hand, the very purpose of interim measures serving as a means of protection could be forfeited if such measures were postponed pending a full jurisdictional determination.

Various solutions have been suggested in theory and in practice. In recent years, both the ICJ18 and the Iran-US Claims Tribunal,19 the main forum for the application of UNCITRAL Rules to date, have adopted what is known as “the prima facie test.” This means that although the tribunal may not order (p. 536) interim measures in the absence of jurisdiction over the merits of the case, considerations of urgency dictate that a prima facie showing of jurisdiction is sufficient at the stage that interim measures are requested. The relationship between this test and that applied in the final jurisdictional determination has been described by an ICJ Judge as follows: “while in deciding whether it has jurisdiction on the merits, the Court gives the defendant the benefit of the doubt, in deciding whether it has jurisdiction to indicate provisional measures, the Court gives the applicant the benefit of the doubt.”20

A further condition listed in Article 26(1) is that the arbitral tribunal deem the requested interim measure “necessary.” Judgment on the need for interim measures thus falls within the discretion of the tribunal, but the Rules provide that interim measures should be necessary–not just “desirable” or “recommendable.” Both the purpose of Article 26(1) and the language employed therein suggest that necessity should be assessed against the basic function of interim measures, which is to preserve the rights of the arbitrating parties.21 These rights may be threatened by actions “capable of prejudicing the execution of any decision, which may be given by the tribunal.”22

These considerations give rise to the requirement, restated by the Iran-US Claims Tribunal in several cases, that interim measures can be sought only in order to prevent irreparable prejudice or harm to the rights of a party.23 As the concept of irreparable harm in this context is, however, quite clearly elusive and “broader than the Anglo–American law concept of irreparable (p. 537) injury,”24 it is preferable to avoid using this expression in connection with Article 26(1).25 If one must characterize the degree of harm, the terms “grave” or “substantive” might be more appropriate than “irreparable.”26 The Tribunal has employed such alternative characterizations in some cases which have come before it. Although the term “irreparable” harm is utilized, as has been done by the Iran-US Claims Tribunal, one should keep in mind that a literal interpretation has not been adopted.27

The Tribunal has not found the prejudice sufficient to merit the granting of interim measures where the other party has given an assurance not to proceed with the actions allegedly threatening to cause the alleged harm,28 or where the prejudice is not likely to occur in the foreseeable future.29

Although at the interim measures stage an arbitral tribunal should not be overly concerned with the merits of the case, a party whose case is clearly without merit should not be granted a request for interim measures. There can be no prejudice if there is little or no prospect that the alleged right threatened will be recognized as a right.30 Disputes arbitrated under the UNCITRAL Rules would not qualify for interim protection under Article (p. 538) 26, since an award of money damages can, at least in theory, rectify nearly all commercial losses.

Moreover, prejudice does not warrant interim measures when the arbitral tribunal is capable of effectively rectifying the threatening damages. The Iran-US Claims Tribunal has held that an “injury that can be made whole by monetary relief does not constitute irreparable harm.”31 Crucial to the determination of whether the injury can be made whole is the likelihood of a monetary award being effective. This means that in international arbitration, interim measures are more likely to be needed to protect against threatening financial losses than they are in domestic judicial proceedings. For, “[i]n municipal legal orders, there ordinarily is a court that is readily available, that has jurisdiction and the ability to deliver an enforceable judgment. Most certainly this is not the case in international arbitration. Indeed, compensation in an international context is often uncertain”.32

Hence, potential pecuniary harm may necessitate interim measures where the arbitral tribunal has reason to believe that the damaged party would encounter difficulties in having a compensatory award enforced.33 Sometimes the disputed property is so unique in nature, or so difficult to replace, as to render the potential harm “irreparable” regardless of the availability of “effective” monetary compensation.34

In the context of the Iran-US Claims Tribunal cases concerning duplicative proceedings in Iran, it has been suggested that “[t]he loss of a treaty right to be free of litigation in another forum may itself be irreparable.”35 In ad hoc commercial arbitration an analogous situation is conceivable should one of the parties, notwithstanding the agreement to arbitrate, file a suit regarding (p. 539) the same subject–matter before a court. The other party may legitimately regard such an action as substantial harm, since the explicit choice of arbitration as the mode of dispute settlement indicates that ordinary court proceedings were thought to be against the basic interests of the parties.36

(c)  Which types of interim measures may be granted

According to Article 26(1), interim measures may include “measures for the conservation of the goods forming the subject–matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.” These are clearly intended only as examples, and not as limits on the arbitral tribunal's power to order any other measures “it deems necessary” in light of the particular circumstances.37 Accordingly, instead of ordering the goods to be deposited with a third party, the tribunal may order them transferred to a more appropriate storing facility38 or even take temporary control over them itself. The possibility of utilizing third party depositories is not restricted to “goods”; funds (represented, e.g. by a letter of credit) may be placed in escrow as an interim measure.39 Interim measures may be taken to maintain the status quo so as not to cause irreparable or substantial damage to one party.40 To this end, the tribunal may order any duplicative proceedings taken in another forum terminated or stayed until further notice.41 An order for the stay of a planned auction of irreplaceable items would be another example of such an action.42

In most cases, the Iran-US Claims Tribunal has granted orders requesting the stay of duplicative Iranian Court proceedings, a situation which would hardly be typical of ad hoc arbitrations.43 Other interim measures ordered by (p. 540) the Tribunal have included the stay of the sale of goods, or transfer of goods in possession of the claimant, and the stay of proceedings by the claimant before the ICC.44

As an arbitral tribunal's jurisdiction encompasses only the parties before it, interim measures may not be directed to non–parties.45 Thus the tribunal cannot order the attachment of properties which are in the direct possession of a third party.46 Such measures are likely to require the assistance of courts or other competent domestic authorities. Such assistance is often necessary in enforcing even those interim measures which are within the arbitral tribunal's jurisdiction.47 Since “[t]he taking of interim measures is without prejudice to the outcome of the case,”48 interim measures should not amount to the granting of the final relief sought.49

(2)  The form of a decision on interim measures and the costs of such measures–Article 26(2)

Interim measures ordered by an arbitral tribunal acting under the UNCITRAL Rules are binding on the parties, unless the tribunal in a particular case has decided to give only recommendations.50 The tribunal should see to it that its intentions are clearly stated: a purportedly binding interim measure (p. 541) should thus consist of an “order” rather than just a “request” addressed to the party in question.51 Possible restrictions, emanating from the law of the place of arbitration, on the arbitral tribunal's power to order binding interim measures, however, need to be taken into account.52

Separate from the binding nature of interim measures, however, is the issue of their enforceability. Although non–compliance with binding interim measures issued in accordance with Article 26(1) is a breach of the agreement to arbitrate, an arbitral tribunal normally has no means of enforcing them. This problem led the drafters of UNCITRAL Rules to insert in Article 26(2) a provision stating that “interim measures may be established in the form of an interim award.”53 Awards, including interim awards, are “final and binding” according to the UNCITRAL Rules.54 As such, they are generally enforceable before competent municipal courts (or other authorities),55 subject to the provisions of the applicable national arbitration law.56 It is therefore advisable that interim measures be ordered in the form of an interim award, as has been the general practice of the Iran-US Claims Tribunal.57

However, urgent matters may require that action be taken before the “final” interim measure can be issued in the form of an interim award. Although time is of the essence, all members of the arbitral panel may not be available to deliberate and sign an interim award quickly.58 In light of this problem, international courts and tribunals have developed the practice of allowing the chairman to direct the party against whom the interim measure (p. 542) is requested to refrain temporarily from any actions that might aggravate the situation pending the tribunal's decision.

Sometimes the need for temporary restraining orders may arise, not because one or two arbitrators are unavailable, but because the arbitral tribunal may not wish to make a final decision until the other party has commented on the request made by its opponent.59 In that case, temporary restraining measures may be ordered in an interim award, as illustrated by the practice of the Iran-US Claims Tribunal where both awards and orders have been utilized.60 Domestic enforcement mechanisms envisaged by Article 26(2) regarding interim awards are not likely to be available with respect to orders. The importance of this, however, should not be overestimated, as a temporary restraining measure is normally followed by a final, and usually enforceable, interim award concerning the request for interim measures.61 Enforceable or not, temporary restraining, measures create obligations for the parties.

A temporary restraint, provisional measure of the second order,62 generally is applicable on the same conditions as final interim measures. Given the exceptional urgency involved and the very provisional nature of the measures, however, the arbitral tribunal should be very sympathetic to the applicant in borderline cases in applying both the prima facie and grave/substantial damage (or “irreparable” harm) tests.63

In the practice of the Iran-US Claims Tribunal one finds, in addition to decisions on temporary restraining orders and interim measures in the narrow sense, orders reminding the party of the continuing existence of the decision on interim measures or temporary restraints.64 Such reminders may (p. 543) be the only means the arbitral tribunal has of ensuring compliance with its decisions.65

Before granting interim measures, the arbitral tribunal should provide the party against whom such measures are sought with an opportunity to comment.66 The UNCITRAL Rules, however, do not require that the tribunal grant a party's request for an oral hearing solely on the question of interim measures.67

It is possible that a decision to order interim measures will prove to be wrong in light of the final disposition of the rights and duties of the parties. In that case, the party subject to interim measures may have suffered, through no fault of its own, considerable inconvenience in the form of attendant costs. In order to avoid unjustly inflicting harm on the party subject to interim measures, the second sentence of Article 26(2) entitles the arbitral tribunal “to require security for the costs” caused by interim measures.68 Although not explicitly stated, it is clearly the party requesting interim measures that may be ordered to post a security.69 The final disposition of the costs question takes place in accordance with Article 38.70

(3)  Relations between the arbitral tribunal and municipal courts in question concerning interim measures

As mentioned in the Introduction to this Chapter, an arbitral tribunal may be precluded from granting interim measures by mandatory norms of local law which reserve such powers for the courts.71 In principle, though rarely in practice,72 a contrary approach is also possible, whereby the power to order (p. 544) interim measures is entrusted solely to the arbitral tribunal. Much more common, however, are municipal laws allowing concurrent jurisdiction between the arbitral tribunal and the municipal courts.73 A similar situation also exists where the domestic law reserves the power to order binding coercive measures to courts, but does not prohibit the arbitral tribunal to request, without any threat of coercion, the parties to comply with interim measures indicated by the tribunal.74 The interim measures powers of domestic courts thus may supplement those possessed by the arbitral tribunal.

The possibility of co–operation between municipal courts and the arbitral tribunal is envisaged in Article 26(3) which provides that “a request for interim measures addressed by one party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.”75

Where mandatory norms of the applicable national law preclude the arbitral tribunal from ordering interim measures, Article 26(3) guarantees that a party requesting a court to enact such measures does not thereby violate the arbitration agreement. Moreover, where the powers of the arbitral tribunal and courts to order interim measures may co–exist, Article 26(3) also recognizes that even where the arbitrators are competent to act, a party may legitimately “prefer to approach the court instead of addressing himself to the arbitral tribunal.”76 Such a choice may be preferable because under the applicable domestic law the arbitrators are not empowered to back their (p. 545) interim measures “with any threat of sanctions,”77 or because that law generally reserves “coercive” interim measures, such as attachment, to the competence of the courts.78 Indeed, the possibility of resorting to municipal courts is probably one of the main reasons that the number of interim measure requests addressed to arbitral tribunals appears to be relatively low.79 Finally, Article 26(3) allows the parties to approach courts both at the place of arbitration and elsewhere.

Article 26(3) provides only that the “request” to a court for interim measures does not breach the arbitration agreement. In other words, “a party does not,” because of such a request, “lose the right to demand arbitration and does not become subject to suit for breach of its agreement to arbitrate.”80 Article 26(3) does not thereby prescribe that interim measures ordered by a court necessarily prevail over conflicting measures deemed appropriate by the tribunal. Such prevalence can hardly be denied orders issued by a court of the place of arbitration, but where “the court involved is of a state other than the place of arbitration…then the tribunal quite likely is not subordinated to that court by municipal law and, therefore, is not constrained from considering contrary interim measures.”81 This conclusion seems to be shared by the Iran-US Claims Tribunal in the Behring case, insofar as the Tribunal, in one of its own interim measure awards, acknowledged that a US court may order “interim measures not in conflict with this Award.”82

Article 9 of the UNCITRAL Model Law contains a provision similar to Article 26(3) of the UNCITRAL Rules.83 The major change is that the Model Law not only provides that interim measures may be requested from a court but explicitly states that a court may also grant such a request. “This change presumably was felt necessary because the Model Law, unlike a set of rules, is addressed to courts as well as to parties and arbitral tribunals.”84

(p. 546) C  Extracts from the Practice of the Iran-US Claims Tribunal

(1)  Tribunal Rules, Article 26(1)

It appears from the copy of the summons received by Ford Aerospace, that the claim filed against it by the Government of Iran before the General Court of Tehran, is identical to the counterclaim previously filed with the Tribunal in this case.

However, it is provided in paragraph 2 of Article VII of the Claims Settlement Declaration that “claims referred to the Arbitral Tribunal shall, as of the date of filing of such claims with the Tribunal, be considered excluded from the jurisdiction of the Courts of Iran, or of the United States, or any other court. The subject matter of the Counterclaim is thus excluded from the jurisdiction of the Courts of Iran from the date the Counterclaim was filed with this Tribunal unless and until this Tribunal decides that is has no jurisdiction over it.

Accordingly, the request for a stay of proceedings in Iran must be granted as an interim measure, even though this Tribunal has not yet decided whether it has jurisdiction, in this case.

For the foregoing reasons,

The Tribunal Awards as follows:

The Government of the Islamic Republic of Iran is requested to seek a stay of the proceedings before the General Court of Tehran, pending termination of the proceedings before the Iran-United States Claims Tribunal.

Ford Aerospace and Communications Corp. and The Government of Iran, et al., Award No. ITM 16–93–2 (27 Apr 1983), reprinted in 2 Iran-US CTR 281, 282 (1983–I).

As to the contention that the Tribunal does not have power to grant the interim relief sought by Rockwell, the Tribunal notes that the Full Tribunal concluded in its interim Award No. ITM 13–388–FT in the Case E–Systems, Inc. and The Government of the Islamic Republic of Iran, Case No. 388, that the Algiers Declarations leave the Government of Iran free in principle to initiate claims before Iranian Courts even where the claim would have been admissible as a counter–claim before the Tribunal. However, in that Interim Award it is also stated that the tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the parties and to ensure its jurisdiction and authority are made fully effective. It is also stated that any award to be rendered in the case by the Tribunal, which was established by inter–governmental (p. 547) agreement, will prevail over any decision inconsistent with it rendered by Iranian or United States courts.

The consistent practice of the Tribunal indicates that this inherent power is in no way restricted by the language in Article 26 of the Tribunal Rules. Further, the Government of Iran and the Government of the United States have agreed in the Algiers Declarations to confer upon this Tribunal jurisdiction over certain claims. It follows that both governments are under an international obligation to comply with any decisions rendered by the Tribunal pursuant to this agreement.

For the foregoing reasons,

The Tribunal requests the Government of the Islamic Republic of Iran to take all appropriate measures to ensure that the proceedings before the Public Court of Tehran be stayed, pending determination of the proceedings in the present case before the Iran-United States Claims Tribunal.

Rockwell International Systems, Inc. and The Islamic Republic of Iran, Ministry of Defence, Award No. ITM 20–430–1 (6 Jun 1983) at 4–5, reprinted in 2 Iran-US CTR 369, 371 (1983–I).

It follows from the Interim Award by the Full Tribunal in the Case E–Systems, Inc. and The Government of the Islamic Republic et al., Case No. 388, Award No. ITM 13–388–FT, that the Tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that the Tribunal's jurisdiction and authority are made fully effective. In order to achieve this end the Tribunal has the power in its discretion to order a Party to stay proceedings before a domestic court, if such proceedings may lead to decisions that are inconsistent with decisions made in proceedings before the Tribunal.

However, in the instant case the proceedings before the domestic court concerns a dispute arising out of a separate contract, and it involves a Party which is not a Party in the case before the tribunal. The alleged interrelationship between the two cases is not quite clear. Therefore, quite apart from the questions as to whether the Tribunal has power to request the Government of Iran to vacate the judgment entered in the Tehran Court and whether there would be any point in ordering the Government to stay the proceedings in a case which appears to be closed, in the exercise of its discretion the Tribunal does not find sufficient reasons to grant the present request.

RCA Global Communications Disc, Inc. and The Islamic Republic of Iran, Award No. ITM 30–160–1 (31 Oct 1983) at 5, reprinted in 4 Iran-US CTR 9, 11–12 (1983–III).

(p. 548)

On 28 November 1983, Respondent Iran Aircraft Industries requested that the Tribunal issue an interim order prohibiting the sale of “its property with AVCO Corporation”.

In its submission of 30 December 1983, the Claimant asserts that no sale of any of the goods in question is planned to take place before 1 January 1985. Relying on this assertion, the Tribunal need not now take a decision with regard to the request for interim measures of protection.

The Tribunal notes that this decision does not prevent the Party which has made the request from making a fresh request in the same case on new facts.

Avco Corporation and Iran Aircraft Industries, Case No. 261, Chamber Three, Order of 27 Jan 1984.

Within the framework of Claims Nos. A–4 and A–15 (III) filed with the Tribunal by the Government of the Islamic Republic of Iran against the Government of the United States of America, seeking the restitution to the Claimant of immovable and movable properties of the Iranian Embassy and Consulates located in the United States, and damages for an alleged breach by the Respondent of its obligations in this respect under the Declaration of the Government of the Democratic and Popular Republic of Algeria of 19 January 1981, the Claimant submitted on 20 December 1983 a Request for an interim measure to prevent the Government of the United States of America from auctioning the movable properties of the Iranian Embassy and Consulates in the United States and to cancel any transaction entered into pursuant to such auctions.

In an Order filed on 18 January 1984, Chamber Two of the Tribunal, which had been appointed to deal with this request by Presidential Order No. 17 of 5 January 1984, held that the circumstances as presented to the Tribunal at the time were not such as to require the exercise of its power to order the requested interim measure of protection, as these circumstances did not appear to create a risk of an irreparable prejudice, not capable of reparation by the payment of damages. In this Order it was further noted that this decision did not prevent the Party which had made the request from making a fresh request based on new facts.

The Tribunal holds that the circumstances, as they are now presented to it, are such as to require the exercise of the Tribunal's power to order an interim measure of protection, pending the decision of the Full Tribunal in cases A–4 and A–15.

(p. 549)

The Tribunal urgently requests the Government of the United States of America to take all necessary and appropriate measures to prevent the sale of Iran's diplomatic and consular properties in the United States which possess important historical, cultural, or other unique features, and which, by their nature, are irreplaceable.

The Islamic Republic of Iran and The United States of America, Case Nos. A/4 and A/15, Award No. ITL 33–A–4/A–15(III)–2 (1 Feb 1984) at 2, 5, reprinted in 5 Iran-US CTR 131, 133 (1984–I).

In an appropriate case, an international tribunal will grant interim measures of protection before determining its jurisdiction over the merits of the claim, provided that it is satisfied that there is, at least, a prima facie showing that it has jurisdiction over the substantive claim. This test was most recently applied by the International Court of Justice in its Order of 10 May 1984 in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, I.C.J. Reports 1984, 169, 179. The Court stated, at paragraph 24 of the Order:

[O]n a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, or, as the case may be, that an objection taken to jurisdiction is well–founded, yet it ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded.

Without prejudice to the final determination of the jurisdictional issue, the Tribunal is not at present satisfied that it appears, prima facie, that there exists a basis on which it can exercise jurisdiction over the present claim.

The request of the Respondent for an Order granting interim measures of protection is denied.

Bendone–Derossi International and The Islamic Republic of Iran, Award No. ITM 40–375–1 (7 Jun 1984) at 3–4, 6, reprinted in 6 Iran-US CTR 130, 131–132, 133 (1984–II).

NIOC requests the Tribunal to issue an Order requiring the Government of the United States of America and Atlantic Richfield to take all appropriate measures to ensure that the latter accepts the applicability of the Algiers Declarations, and to withdraw the writs of attachment (p. 550) obtained in the United States Courts, or, in the alternative, an order requiring Atlantic Richfield to withdraw Case No. 396 from the Tribunal.

In its Comments filed on 15 February 1985, the Government of the United States of America asserted that since it was not a party to Case No. 396, no relief could be sought against it.

Atlantic Richfield also filed Comments on 15 February 1985, in which it contended that there was no necessary contradiction in its respective arguments before the New York Court and the Tribunal because the legal basis on which the attachment had been obtained, that of beneficial ownership of the money in the account, did not depend on whether LAPCO was deemed to be an entity controlled by Iran. Nor was there any inconsistency present in the different claim it had made before the Tribunal for breaches of international law. Atlantic Richfield further argued that as long as the New York Court proceedings remained suspended and the account blocked, there was no prejudice to either party and no risk of inconsistent rulings.

The Tribunal holds that, as to the claim for interim relief against the Government of the United States of America, it cannot grant the relief sought because the Government of the United States of America is not a party to Case No. 396. The Tribunal notes, however, that the subject–matter of the present request is before the Full Tribunal as part of Case A–15, and the present decision in no way prejudices the eventual outcome of that Case.

As to the relief sought against Atlantic Richfield, the Tribunal does not consider that there exists any threat of grave or irreparable damage to NIOC, or to the Tribunal's jurisdiction, such as to justify the granting of interim measures. On the contrary, the preservation of the status quo appears to be assured by the continued blocking of the LAPCO account and the suspension of the New York Court proceedings pending the Tribunal's determination of the present case.

Atlantic Richfield admits that it is “true that [it] has resisted transfer of the funds in the LAPCO bank account to Iran on the ground that LAPCO was not an entity controlled by Iran for purposes of the transfer order.” While this may indicate the existence of a contradiction between the position taken by Atlantic Richfield respectively as Claimant in the present case and as Plaintiff in the New York court proceedings, this is not per se relevant to the question of whether the grant of interim relief is appropriate. Nor is it necessary for the Tribunal to make any decision on this point at the present stage of the proceedings. It is rather an issue to be considered by the Tribunal as part of the merits of Case No. 396.

For the foregoing reasons,

(p. 551)

The request of the Respondent NIOC for interim relief against Atlantic Richfield and the Government of the United States of America is denied.

Atlantic Richfield Company and The Islamic Republic of Iran, Award No. ITM 50–396–1 (8 May 1985) at 4–6, reprinted in 8 Iran-US CTR 179, 181–182 (1985–I).

One requirement for the issuance of interim measures is that there be, at least prima facie, a basis on which the jurisdiction of the Tribunal might be founded.

The Full Tribunal has ruled that the Tribunal has “an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective,” E–Systems, Inc. and The Islamic Republic of Iran, Interim Award No. 13–388–FT (4 February 1983) at 10, 2 Iran-U.S. C.T.R. 51, 57. It has exercised such power to require a stay to Tehran court proceedings pending completion of Tribunal action where “it is obvious that the claim initiated before the Iran Court had been admissible as a counter–claim before the Tribunal”, even though no counter–claim had been asserted. E–Systems at 7, 2 Iran-U.S. C.T.R. at 55. Moreover, the Full Tribunal has ruled “that once a counter–claim has been initiated before the Tribunal, such claim is excluded from the jurisdiction of any court”. E–Systems at 9, 2 Iran-U.S. C.T.R. at 5, relying on Article VII(2) of the Claims Settlement Declaration.

Examination of the suit filed by Bank Maskan and of Claim 1 and 2 filed by Claimants before this Tribunal also makes clear that both actions seek to adjudicate the same issues. Claimants allege that they have satisfactorily performed under the Contract and under Claim 1 seek monies due and payable by the terms of the Contract and by Claim 2 seek monies allegedly owing as a result of Bank Maskan's failure to fulfill its duties under the Contract. Bank Maskan on the other hand alleges that Claimants' performance was unsatisfactory and seeks the refund of advance payments, damages “representing costs for repairing defects in the grading of terrace floors, roof facades, etc.,” and damages “representing costs of repainting”. Indeed, Bank Maskan's Statement of Defence, in responding to Claims 1 and 2, repeatedly supports its pleas with reference to the law suit in Tehran (see Bank Maskan Statement of Defence at 68, 69, 71, 72 and 74).

The Tribunal therefore concludes, as the Full Tribunal did in E–Systems, that in order “to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made effective,” (p. 552) it is appropriate that interim measures requiring a stay of the proceedings in the Public Court of Tehran be issued in this case. As the Tribunal noted in Aeronutronics Overseas Services, Inc. and The Islamic Republic of Iran et al., Interim Award No. 47–158–1 (14 March 1985) at 5, Respondent Iran “has…assumed an international obligation to take whatever steps may be necessary to comply with” this Interim Award.

Component Builders, Inc. and The Islamic Republic of Iran, Award No. ITM/ITL 51–395–3 (27 May 1985) at 6, 12–13, 14–15, reprinted in 8 Iran-US CTR 216, 220, 225–26 (1985–I).

In support of their request for an Interim Award ordering, inter alia, Claimant to release their property from its New Jersey warehouse. Respondents contend that they will suffer irreparable injury if such relief is not granted. Respondents allege as follows:

Respondents' properties are stored under conditions wholly unsuited to the maintenance and preservation of the delicate electronic equipment, computers and aircraft spare parts…worth scores of millions of dollars. The properties are deteriorating rapidly, and the damages incurred by Respondents are irreparable, since some of the properties are irreplaceable. In addition, there are now strong indications that some items of properties are missing from Claimant's warehouse. It is manifest now that the only reason Claimant seeks to retain custody of the properties is to use that custody as a leverage to extract from Respondents a total relinquishment of their counter–claims for losses incurred as a result of Claimant's negligence and wilful breach of its duties as a warehouseman.

Applying these standards, the Tribunal determines that the conservation of both the goods and the rights of the Parties requires that the Respondents' property be transferred to an alternate location. Accordingly, we grant the request for interim measures, subject to the conditions set forth below.

The Tribunal first finds that Respondents' property must be removed from its present location in the annex portion of Claimant's Edison, New Jersey warehouse facility in order to prevent unnecessary damage and/or deterioration. The conditions under which the goods are presently stored are inadequate to conserve and protect them and irreparable prejudice to Respondent's asserted rights may result if they are not transferred to a more appropriate facility.42 The Tribunal made this finding in its Interim Award of 22 February 1985 and reaffirms that conclusion.

(p. 553)

A definition of “irreparable prejudice” is elusive; however, the concept of irreparable prejudice in international law arguably is broader than the Anglo–American law concept of irreparable injury. While the latter formulation requires a showing that the injury complained of is not remediable by an award of damages (i.e., where there is no certain pecuniary standard for the measure of damages, 43 C.J.S. Injunctions § 23), the former does not necessarily so require.

Behring International, Inc. and Islamic Republic Iranian Air Force, Award No. ITM/ITL 52–382–3 (21 Jun 1985) at 49–50, 53–54, reprinted in 8 Iran-US CTR 238, 273, 275–76 (1985–I).

  1. 1.  On 19 January 1982, the Government of the United States of America filed the present claim on behalf and for the benefit of the Claimant, Tadjer–Cohen Associates, Incorporated (“TCA”). The Claim names as the Respondent the Islamic Republic of Iran (“Iran”), including Bank Rahni Iran (“Bank Rahni”) and seeks damages of US $200,222 plus interest for the alleged breach of two contracts entered into between TCSB Incorporated (“TCSB”) and Bank Rahni. The contracts relate to the provision of engineering consultancy services for a project for the manufacture and erection of five hundred prefabricated housing units.

  2. 9.  It is evident from the documents in this case that the proceedings before the Public Court of Tehran involve the same contract and work that comprise the subject matter of the claim TCSB assigned to TCA and which is currently before the Tribunal. A decision made in the proceedings before the Public Court of Tehran may lead to decisions that are inconsistent with decisions made in the proceedings before the Tribunal. See RCA Globcom Communications and The Islamic Republic of Iran, Interim Award No. ITM 30–160–1 at 5 (31 October 1983).

  3. 10.  The Tribunal is satisfied that there is at least A prima facie showing that it has jurisdiction over the substantive claim pending before it. Such preliminary determination is, however, without prejudice to the Tribunal's final decision on jurisdiction, including any issues relating to the assignment from TCSB to TCA or the forum selection clauses.

  4. 11.  The Tribunal ruled in E–Systems, Inc. and The Islamic Republic of Iran, Interim Award No. ITM 13–388–FT at 10 (4 February 1983)(p. 554) that “[t]his Tribunal has an inherent power to issue such Orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective.”

  5. 12.  The Tribunal notes the Respondent's submissions on the requirements of the Civil Procedure Code of Iran. The Government of the Islamic Republic of Iran and the Government of the United States of America, however, having agreed in the Algiers Declarations to confer upon this Tribunal jurisdiction over certain claims, are under an international obligation to comply with any decisions rendered by the Tribunal. See Aeronutronics Overseas Services, Inc. and The Islamic Republic of Iran, Interim Award No. ITM 47–158–1 at 5 (14 March 1985).

  6. 13.  The Tribunal therefore concludes that the proceedings in the Public Court of Tehran in so far as they relate to TCJSB should be stayed pending termination of the proceedings before the Tribunal.

INTERIM AWARD

For the foregoing reasons,

THE TRIBUNAL AWARDS AS FOLLOWS:

The Tribunal requests the Government of the Islamic Republic of Iran to take all appropriate measures to ensure that the proceedings before the Public Court of Tehran in so far as they relate to T.C.S.B. Incorporated be stayed pending the termination of the proceedings before the Tribunal.

The United States of America on behalf and for the benefit of Tadjer–Cohen Associates Incorporated and The Islamic Republic of Iran, Award No. ITM 50–12118–3 (11 Nov 1985), reprinted in 9 Iran-US CTR 302, 304–05 (1985–II).

  1. 6.  The Tribunal has before it two related requests for interim measures of protection. The first is that the Tribunal order Panacaviar to withdraw the action it commenced in the courts of Basel prior to the commencement of the present proceedings, in connection with the same contract. The second, more specific, request is that the Tribunal order Panacaviar to obtain a stay of a “hearing” scheduled to take place in the same legal action in the Basel Court of Appeal on 5 December 1986.

  2. 13.  Article 26, paragraph 1, of the Tribunal Rules of Procedure empowers the Tribunal, at the request of either Party, to “take any (p. 555) interim measures it deems necessary in respect of the subject–matter of the dispute…” Apart from so protecting the physical subject–matter of a case before it, or the rights of the respective parties where appropriate, the Tribunal has also exercised its inherent power to protect its own jurisdiction in cases where the risk of inconsistent decisions in parallel and duplicative proceedings instituted in other fora have rendered this necessary. See, e.g. E–Systems, Inc. and The Islamic Republic of Iran, Award No. ITM 13–388–FT (4 February 1983).

  3. 14.  The Tribunal must determine whether interim measures of the type requested are necessary and appropriate for either of the above reasons in the present Case. It does so on the basis of the Parties' own descriptions of the course and present status of the Basel proceedings, as the only document before the Tribunal in relation to those proceedings is Panacaviar's “Writ” and “Cause of Plaint” filed in 1980 contained in the Respondents' Rejoinder filed on 28 November 1986.

  4. 16.  In deciding whether there are grounds for granting interim relief, the Tribunal can only rely on Panacaviar's more detailed characterization of the nature of the Swiss proceedings, which neither Respondent has challenged. The Tribunal is thus prepared to accept, for the sole purpose of deciding the application for interim relief, that the damage claim filed by Panacaviar in Basel was a necessary ancillary proceeding to its application for an attachment of the bank guarantee. Though that suit is founded on the same allegations of breach of contract that form part of the claim before this Tribunal, the Tribunal accepts the Claimants' statement that it is not Panacaviar's intention “to obtain a judgment from another court on the merits of the issues before this Tribunal.” Thus, the Tribunal does not find sufficient grounds on the basis of the information presently before it to support the conclusion that the existence of such a suit, commenced before the Statement of Claim was filed in the present Case, and apparently with a view to achieving an entirely different result, constitutes a violation of Article VII, paragraph 2, of the Claims Settlement Declaration so as to justify the grant of interim relief at this time. Should the Respondents later become aware of circumstances which indicate that the Claimants intend to use the Basel proceedings to obtain and enforce a judgment on the merits of the issues before this Tribunal in a manner inconsistent with the limited objective described by them in the present Case, it is open to the Respondents to apply to this Tribunal for interim measures of protection against such actions.

    5. (p. 556)

  5. 17.  As to the attachment of the BNP bank guarantee obtained by Panacaviar in Basel, the Tribunal considers that its effect is to preserve the status quo as between the parties to the present Case rather than to jeopardize the position of either vis a vis the Tribunal. Such an attachment means, in effect, that Shilat will, for the present, be unable to obtain the proceeds of its demand under the letter of guarantee issued by Bank Etebarate Iran-a demand the legality of which is currently in issue in the proceedings in the Tribunal. That issue can and will be resolved by the Tribunal in due course when it pronounces upon the merits of the respective claim and counter–claim in its final Award.

  6. 18.  Thus, the Tribunal can see no risk of grave or irreparable harm resulting to either Party, or to the jurisdiction of this tribunal, which would justify the granting of either of the measures currently sought by Shilat or Iran.

Paul Donin de Rosiere, Panacaviar, SA and The Islamic Republic of Iran, Award No. ITM 64–498–1 (4 Dec 1986), reprinted in 13 Iran-US CTR 193, 194, 196–98 (1986–IV).

  1. 20.  As to the substance of Iran's Request, the Tribunal notes that, under Tribunal precedent, interim relief can be granted only if it is necessary to protect a party from irreparable harm or to avoid prejudice to the jurisdiction of the Tribunal. See Boeing Co., et al., and Government of the Islamic Republic of Iran, Award No. ITM 34–222–1, at 4 (17 Feb. 1984), reprinted in 5 Iran-U.S. C.T.R. 152, 154 (“Boeing”). The Tribunal has determined that this standard also applies in government–to–government cases. See Islamic Republic of Iran and United States of America, Decision No. DEC 85–B1–FT (18 May 1989), reprinted in 22 Iran-U.S. C.T.R. 105, 108 (“Case No. B1”).

  2. 21.  The Tribunal is not satisfied that Iran has discharged its burden of showing that it risks irreparable harm if its Request is not granted. Should the Tribunal eventually determine in Case No. A24 that the United States has not complied with its obligations under the Algiers Declarations by allowing the Foremost/OPIC lawsuit to proceed in the United States, the Tribunal can compensate Iran for any damages that the Tribunal finds Iran has sustained by awarding an adequate monetary relief. The Tribunal has previously held that “injury that can be made whole by monetary relief does not constitute irreparable harm.” Case No. B1, para 11, supra, 22 Iran-U.S. (p. 557) C.T.R. at 109 (citing Boeing, supra). Although Iran refers to “Foremost's vexatious tactics,” supra, para 9, and alleges that in the proceedings before U.S. courts, it has failed to demonstrate how this would lead to infliction of irreparable harm on Iran.

  3. 22.  The issue as to whether there exists a threat to the Tribunal's jurisdiction requires a more intricate analysis. According to Iran's Statement of Claim in Case No. A24, Iran seeks, inter alia, a declaratory judgment holding the United States liable for a breach of the Algiers Declaration by allowing the Foremost/OPIC lawsuit to proceed in the United States; an order directing the United States to terminate the Foremost/OPIC lawsuit; and damages to compensate Iran for any losses it may have incurred, as a result of the United States' breach. Therefore, the Tribunal must determine whether the Tribunal's jurisdiction to arbitrate Iran's claim is prejudiced if its Request is not granted.

  4. 23.  In this connection, there are two possibilities. Either the Foremost/OPIC lawsuit in the United States will be decided before the Tribunal issues its decision in Cases Nos. A15(IV) and A24, or Foremost/OPIC lawsuit will not have been decided when the Tribunal issues its decision in Cases Nos. A15 (IV) and A24. The Tribunal finds that in either event, it will be in a position to render an affective decision upon Iran's claim and, consequently, that there exists no threat to the Tribunal's jurisdiction.

  5. 26.  Finally, the Tribunal also notes that an order granting Iran's Request would not operate so as to maintain the status quo pending the Tribunal's decision in Case No. A24, as alleged by Iran. Quite the contrary, the interim measures sought by Iran would not operate so as to maintain the status quo in the continuing proceedings before the District Court–but would modify that “status quo” by suspending those proceedings. Consequently, should the Tribunal grant Iran's Request, it would, in effect, make an interim judgment in favor of Iran on the merits. Absent compelling reasons for doing so, such as the protection of the Tribunal's jurisdiction or a risk of irreparable damage, Iran's Request cannot be granted. See Behring International, Inc. and Islamic Republic of Iran, et al., Award No. ITM 46–382–3 (22 Feb. 1985), reprinted in 8 Iran-U.S. C.T.R. 44 (dismissing the Respondents' request for interim relief because it would have been “tantamount to awarding Respondents the final relief sought in their counter–claim.”)

(p. 558) The Islamic Republic of Iran and The United States of America, Decision No. DEC 116–A15(IV) & A24–FT (18 May 1993), reprinted in 29 Iran-US CTR 214, 218, 220 (1993).

(2)  Tribunal Rules, Article 26(2)

In a Motion filed with the Tribunal on 6 May 1983 the Claimants have requested the Tribunal to direct the Government of Iran to stay further proceedings regarding a claim filed with the Public Court of Tehran by Iran Insurance Company against RCA Global Communications, Inc. and RCA Global Communications Disc., Inc.

RCA Global Communications, Inc. has been requested to appear before the Public Court of Tehran on 8 June 1983.

In its Order of 12 May 1983 the Tribunal has requested the Respondents to file a Reply to the Claimant's Motion by 23 May 1983, addressing in particular the question as to whether the litigation before the Public Court of Tehran involves any issue that can lead to decisions by the Tribunal inconsistent with decisions by the Public Court of Tehran.

Following a request for an extension submitted by the Deputy Agent of the Islamic Republic of Iran on 23 May 1983, the Tribunal has granted an extension to file said Reply by 1 August 1983.

However, in view of the Claimants' statement that RCA Global Communications, Inc., has been ordered to appear before the Public Court of Tehran on 8 June 1983 and the Tribunal's inherent power to issue orders to conserve the respective rights of the Parties and to ensure that its jurisdiction and authority are made fully effective, the Tribunal finds it appropriate immediately to request the Government of Iran to move for a stay of the proceedings before the Public Court of Tehran until such time that the Tribunal can make a decision on the Claimants' request based on the views of both Parties.

For these reasons, the Tribunal requests the Government of the Islamic Republic of Iran to take all appropriate measures to ensure that the proceedings before the Public Court of Tehran be stayed until 15 August 1983.

RCA Global Communications, Inc. and The Islamic Republic of Iran, Case No. 160, Chamber One, Order of 2 Jun 1983, reprinted in 3 Iran-US CTR 8 (1983–II).

  1. 1.  Reconsidering the requests made by Claimant in its “Motion to Require Respondent to comply with Interim Award or in the alternative for Sanctions”, the Tribunal holds that such measures as (p. 559) requested under paragraphs A, B, C and D, on page 4 of this Motion are not provided for under the Tribunal Rules.

Questech, Inc. and The Ministry of National Defence of the Islamic Republic of Iran, Case No. 59, Chamber One, Order of 2 Mar 1984.

  1. 4.  The Tribunal decides that certain interim measures requested by Respondents nonetheless are appropriate at this time to preserve the rights of the Parties pending the Tribunal's final determination concerning its jurisdiction. In this respect, the Tribunal notes in particular that the parties agree that the facility in which the goods are currently stored is inadequate to preserve and protect the goods and the Tribunal deems their removal to a more modern air–conditioned and humidity–controlled facility to be essential to conserve the goods. Accordingly:

    1. (d)  The Tribunal orders that, in accordance with Article 26, paragraph 2 and Article 41, paragraph 2, of the Tribunal Rules, Respondents shall provide an additional $70,000 (for a total deposit outstanding of $100,000) toward the expenses of the expert and costs associated with his work, including the leasing of the full Behring warehouse, to be deposited within 30 days from the date of this Decision (and prior to the actual commencement of inventorying and the other tasks assigned specifically to the expert). This amount shall be remitted to account number 24.58.28.583 (Dollar Account) at Pierson, Heldring and Pierson, Korte Vijverberg 2, 2513 AB The Hague, in the name of the Secretary–General of the Iran-United States Claims Tribunal (Account No. II). The account shall be administered by the Secretary–General of the Tribunal, who shall consult with the Tribunal.

      The Tribunal further retains jurisdiction to request from arbitrating parties such other amounts as may be required from time to time in connection with the expert's work, or to decide any disputes which may arise in connection with that work. The Tribunal shall later determine which party will ultimately bear the cost of the expert's work.

Behring International, Inc. and Islamic Republic Iranian Air Force, Award No. ITM 46–382–3 (22 Feb 1985) at 4–6, reprinted in 8 Iran-US CTR 44, 46, 47–48 (1985–I). (p. 560)

Reference is made to the letter of the Agent of the United States submitted on 28 July 1986, and entitled “Notice to Tribunal of receipt of New Summons to Appear before the Tehran Public Court on August 27, 1986.”

Attached to this submission is a copy of a transmittal letter directed to T.S.C.B. Inc. from the Embassy of the Democratic and Popular Republic of Algeria, Interests Section of the Islamic Republic of Iran together with a copy of “Summons No. 1227/61” directing T.C.S.B. to appear before Tehran's Public Court No. 26 on August 27, 1986 for proceedings concerning the “Claim of Bank Maskan.”

The Tribunal notes that the Interim Award No. ITM 56–12118–3 filed on 11 November 1985 remains in force. Therefore it continues to be incumbent on “the Government of the Islamic Republic of Iran to take all appropriate measures to ensure that the proceedings before the Public Court of Tehran in so far as they relate to T.C.S.B. Incorporated be stayed pending the termination of the proceedings before the Tribunal.”

The United States of America, on behalf and for the benefit of Tadjer–Cohen Associates, Inc. and The Islamic Republic of Iran, Case No. 12118, Chamber Three, Order of 4 Aug 1986.

(3)  Tribunal Rules, Article 26(3)

Nonetheless, the Tribunal may allow for a court of the United States, if and to the extent it deems it appropriate, to take interim measures not in conflict with this Award to safeguard such security interest and stay its order transferring the goods to afford Claimant an opportunity to petition a court of competent jurisdiction for such provisional relief and to implement any order issued by such court. See Article 26(3) of Tribunal Rules. Such cooperation between this international Tribunal and the municipal courts of one of the States Parties to the Algiers Accords is made necessary by the operation of the peculiar jurisdictional provisions of the Accords upon the even more peculiar facts and circumstances of this case. Simply stated, our jurisdiction does not encompass the entirety of the transaction in which the Parties are involved, yet those aspects within our jurisdiction cannot be adjudicated without potentially prejudicing the rights of the Parties in related disputes outside our jurisdiction.

Behring International Inc. and Islamic Republic Iranian Air Force, Award No. ITM/ITL 52–382–3 (21 Jun 1985) at 60 (footnotes omitted), reprinted in 8 Iran-US CTR 238, 280 (1985–I).

Footnotes:

1  D Caron, “Interim Measures of Protection: Theory and Practice in Light of the Iran-United States Claims Tribunal,” (1986) 46 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 465, 466 (hereinafter “Caron I”). An updated version of the article is found in D Caron, The Iran-United States Claims Tribunal and The International Arbitral Process 207–83 (unpublished dissertation, Leiden 1990) (hereinafter “Caron II”). Much of the present section is based on these papers. Further on the interim measures practice of the Iran-US Claims Tribunal, see S Baker & M Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992) 133–43; C Brower, “The Iran-United States Claims Tribunal,” (1990—V) 224 Recueil des Cours 123, 174–82; J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991) 175–91.

2  Decisions on such requests were rendered in Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), Provisional Measures, Order of 3 Mar 1999, ICJ Reports (reprinted in (2001) 40 ILM 1069 (provisional measures ordered)); Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 Jul 1991, 1991 ICJ Reports 12 (reprinted in (1992) 31 ILM 107) (request denied); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Provisional Measures, Order of 8 April 1993, 1993 ICJ Reports 3 (reprinted in (1993) 32 ILM 888) (provisional measures ordered)). On interim measures before the ICJ in general, see J Sztucki, Interim Measures in the Hague Court (1983).

3  For discussion as to whether the power of a tribunal to order interim measures could, even apart from specific provisions, be said to derive from a tribunal's inherent competence to regulate matters of its incidental jurisdiction or from general principles of law, see VS Mani, International Adjudication. Procedural Aspects (1980) 286–87; J Elkind, Interim Protection: A Functional Approach (1981) 23–25. The Iran-US Claims Tribunal has on several occasions referred to its “inherent power” to order interim measures. See Rockwell International Systems; RCA Global Communications, reprinted below, section C(1). The necessity of relying on these inherent powers is questionable in view of the explicit provisions of Article 26. See Caron I above, n 1, at 473–80.

4  In the UNCITRAL Model Law, interim measures are dealt with in Articles 9 and 17. The latter corresponds in essence to paragraphs 1 and 2 of Article 26 of the UNCITRAL Rules. See H Holtzmann & J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (1989) 530–33. Article 17 of the Model Law reads as follows: “Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject–matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.” See also below n 81 on Article 9. A summary of UNCITRAL's recent efforts to revise Article 17 of the Model Law can be found in the Report of the Working Group on Arbitration and Conciliation on the Work of its Forty–Second Session, UNCITRAL, 38th Session, UN Doc A/CN.9/573 (2005).

5  See below, section B(3).

6  See Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 176.

7  Article 26 was adopted by the Iran-US Claims Tribunal without modification.

8  Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 176 (“Under paragraph 1, the arbitrators have discretion to take such measures, but only if requested by one or both parties.”). See also Report of the UNCITRAL Commission on International Trade Law, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 164 (1975), reprinted in (1975) VI UNCITRAL Ybk 24, 40.

9  See Caron I above, n 1, at 481.

10  But see Rockwell International Systems, reprinted below, section C(1), according to which the “inherent power [to order interim measures] is in no way restricted by the language in Article 26…” See also above, n 3.

11  In Caron I above, n 1, at 480, n 45 recounts an instance in which an oral request was initially accepted by the Iran-US Claims Tribunal.

12  Ibid at 480 (footnote omitted). For further discussion on the procedure in granting interim measures, see below, section (2) on Article 26(2).

13  See Article VII(3) of the Claims Settlement Declaration: “Claims referred to the arbitration tribunal shall, as of the date of filing of such claims with the Tribunal, be considered excluded from the jurisdiction of the courts of Iran, or of the United States, or of any other court.”

14  See RCA Global Communications, reprinted below, section C(1) and Caron I above, n 1, at 485–86. See also S Baker & M Davis above, n 1, at 138 (discussing a case where the claimant's request for an interim measure was rejected on the ground that the allegedly parallel proceedings in Iran were of a criminal law nature).

15  See The United States of America on behalf and for the benefit of Tadjer–Cohen Associates, reprinted below, section C(1). See also Caron I above, n 1, at 486.

16  Caron I above, n 1, at 486–87.

17  See generally, J Elkind, above, n 3, at 167–97; K Oellers–Frahm, Die einstweilige Anordnung in der internationalen Gerichtsbarkeit (1975) 59, 81. VS Mani above, n 3, at 298–304; J Sztucki above, n 2, at 15–18, 221–60.

18  See Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Order of 10 May 1984, 1984 ICJ Reports 169, 179. This decision has apparently served as an important precedent for the Iran-US Claims Tribunal. See J van Hof above, n 1, at 189. See cases cited below in n 19. See also, e.g. Application of the Convention on the Prevention and Punishment of the Crime of Genocide above, n 2, para 14.

19  See Iran and The United States (Cases A/15 & A/24); Bendone–Derossi International; Component Builders; Tadjer–Cohen Associates, reprinted below, section C(1). For more examples and further discussion on the Tribunal's practice, see Caron I above, n 1, at 488–90.

20  Military and Paramilitary Activities in and Against Nicaragua, Order of 10 May 1984, Dissenting Opinion of Judge Schwebel, 1984 ICJ Reports 190, 207. Judge Schwebel, despite his dissent, agreed on the prima facie test. See Caron I above, n 1, at 489, n 82. However, with respect to interim measures, the jurisdictional issue is not likely to be as important for ad hoc arbitration, which typically deals with tailor—made arbitration clauses or agreements, as for the World Court or for a large treaty–based claims settlement process.

21  See J Elkind, above, n 3, at 209. In several cases the Iran-US Claims Tribunal has assessed its interim measure power to serve the additional purpose of ensuring “that this Tribunal's jurisdiction and authority are made fully effective.” See RCA Global Communications; Paul Donin de Rosiere, Panacaviar, reprinted below, section C(1). The Tribunal has referred to the need to protect its own jurisdiction in cases concerning duplicative proceedings in other fora, particularly before Iranian courts. Regardless of whether this kind of function (protection of the Tribunal's jurisdiction) can be read into Article 26, reference to it in most cases appears redundant “inasmuch as conservation of the rights of the parties also protects the jurisdiction of the tribunal…” Caron I above, n 1, at 495. In any case, the protection of the tribunal's jurisdiction per se would not appear as important in ad hoc arbitration as in the claims settlement process before the Iran-US Claims Tribunal. See Caron I above, n 1, at 474–75.

22  JL Simpson and H Fox, International Arbitration: Law and Practice (1959) 162. See also Caron I above, n 1, at 499.

23  See, e.g. the Behring case, as well as Case Nos. A/4 and A/15, reprinted below, section C(1).

24  Behring International, reprinted below, section C(1). See also S Baker & M Davis above, n 1, at 139–40 (“In Anglo–American Practice, the threatened harm would have to be ‘irreparable’ to sustain preliminary injunction. The US definition of ‘irreparable harm’ is a harm that cannot readily be compensated by an award of damages. If this standard were strictly applied, most commercial disputes arbitrated under the UNCITRAL Rules would not qualify for interim protection under Article 26, since an award of money damages can, at least in theory, rectify nearly all commercial losses.”).

25  See Caron I above, n 1, at 491–97.

26  Ibid at 491.

27  See Iran and The United States of America (A/15 & A/24), reprinted below, section C(1). One of the reasons for the employment of the term “irreparable” may lie in the fact that it belongs to the vocabulary of other international tribunals. This is the case with the supervisory organs of the European Convention on Human Rights. See R St J Macdonald, “Interim Measures in International Law, with Special Reference to the European System for the Protection of Human Rights,” (1992) 52 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 703, 733–35.

28  See Avco Corporation, reprinted below, section C(1). Van Hof points out that “[t]his sign of trust may be due to the special nature of the Tribunal; the Tribunal has a powerful guarantee—the existence of the Security Account—that a Claimant will abide by its instructions.” “Otherwise,” the author continues, “relying on a mere assurance might be less appropriate.” J van Hof above, n 1, at 191.

29  See Atlantic Richfield and The Islamic Republic of Iran, Award No. ITM 50–396–1 (8 May 1985), reprinted in 8 Iran-US CTR 179 (1985–I). Here the lack of urgency was evident, and the Tribunal concluded that it did “not consider that there exists any threat of grave or irreparable damage….” Ibid at 182. Thus although the “urgency” criterion is sometimes regarded as a separate requirement, it “is best viewed as a part of prejudice, inasmuch as a substantial prejudice may exist only when the threatening act is likely to occur in the immediately foreseeable future.” Caron I, above, n 1, at 197.

30  See ibid at 490–91.

31  See Iran and The United States of America (A/15 & A/24), para 21, reprinted below, section C(1).

32  Caron I, above, n 1, at 493 (footnote omitted).

33  Therefore in the Iran-US Claims Tribunal monetary damage may mean “irreparable” harm more easily to Iranian than to American parties, since only the latter benefit from the automatic enforcement mechanism provided by the Security Account. In inter–state cases, such as Iran and The United States of America (A/15 & A/24), reprinted below, section C(1), one may consider, however, on reasonable grounds that the possibility of monetary damage precludes the possibility of irreparable harm.

34  See the Iranian contentions, apparently accepted by the Iran-US Claims Tribunal in Behring International, reprinted below, section C(1). See also Case Nos. A/4 and A/15, reprinted below, section C(1).

35  Boeing Company and The Islamic Republic of Iran, Award No. ITM 38–222–1 (25 May 1984), reprinted in 6 Iran-US CTR 43 (1984–II), Concurring Opinion of Howard M Holtzmann, ibid 47 at 51. As to the “treaty right” in question, see Article VII (3) of the Claims Settlement Declaration, quoted in n 12 above.

36  See Caron I above, n 1, at 496. See also S Baker & M Davis above, n 1, at 136. In practice, it is likely to be more effective to make a jurisdictional objection based on the arbitration agreement before the court than to ask the arbitral tribunal to grant an interim measure.

37  See P Sanders, “Commentary on UNCITRAL Arbitration Rules,” (1977) II YCA 196; Caron I above, n 1, at 499. Thus, the contention put forward in certain dissenting opinions of Iranian judges of the Iran-US Claims Tribunal that Article 26 authorizes only the ordering of interim measures for the conservation of goods is ill–conceived. See, e.g. Award No. 29–160–1 (31 Oct 1983), Dissenting Opinion of Mahmoud Kashani (31 Jan 1984), reprinted in 5 Iran-US CTR 121, 128 (1984–I). For a general discussion of the different types of interim measures, see E Gaillard & J Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (1999) 721–34.

38  As was the case in Behring International, reprinted below, section C(1).

39  See N McDonnell, “The Availability of Provisional Relief in International Commercial Arbitration,” (1983–84) 22 Columbia Journal of Transnational Law 273, 283 n 56.

40  See Caron I above, n 1, at 497 (discussing the Atlantic Richfield case).

41  See, e.g. Ford Aerospace, reprinted below, section C(1).

42  See Case Nos. A/4 and A/15, reprinted below, section C(1).

43  See J van Hof above, n 1, at 182–85; Caron II, above, n 1, at 208–09 and Table I and II at 279–82.

44  See Table II, referred to above in n 43. See also S Baker & M Davis above, n 1, at 134–35; C Brower above, n 1, at 178–80; J van Hof above, n 1, at 178–89.

45  See Atlantic Richfield, reprinted below, section C(1). See also A Redfern & M Hunter, Law and Practice of International Commercial Arbitration (3rd edn, 1999) 347.

46  See N McDonnell above, n 39, at 276.

47  See Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 176. See also the discussion concerning paragraphs 2 and 3 of Article 26, below.

48  P Sanders above, n 37, at 196.

49  For discussion, in the light of Behring International, reprinted below, section C, concerning borderline problems in the present regard, see Caron I above, n 1, at 487–88. See also Iran and The United States of America (A/15 & A/24), para 26, reprinted below, section C(1). See generally K Oellers–Frahm above, n 17, at 86–90.

50  See Caron I above, n 1, at 508–09. It has been possible to question the binding nature of the interim measures called for by the ICJ largely because of the wording of the relevant rules: the ICJ is empowered to “indicate” such measures. See, e.g. J Elkind above, n 3, at 153–66; K Oellers–Frahm above, n 17, at 107–11. However, in the LaGrand case (Germany v. United States, Judgment of 27 Jun 2001, 2001 ICJ Reports 466, reprinted in (2001) 40 ILM 1060), the ICJ confirmed the binding nature of the interim measures it ordered pursuant to Article 41 of the ICJ Statute. In Mamatkulov and Askarov v. Turkey, the European Court of Human Rights, reversing previous case–law, held that by not complying with interim measures “indicated” in accordance with Article 39 of the Rules of Court, the respondent State breached Article 34 of the Convention, which requires that the Contracting States refrain from measures hindering in any way the “the effective exercise” of the right of individual petition. Judgment of 4 February 2005, forthcoming in Reports 2005.

51  See Caron I above, n 1, at 509.

52  See below, section (3).

53  “In order to facilitate the enforcement of interim measures taken by the arbitrators pursuant to paragraph 1 of this article, paragraph 2 authorizes the arbitrators to establish these measures in the form of interim awards.” Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 176.

54  Article 32(2). See discussion of Article 32(2) in Chapter 22 below.

55  See Caron I above, n 1, at 510–12. The other side of the coin is that interim awards (unlike orders) cannot be revoked. The problem is only apparent, however, as “the substantive effect of an interim award may be canceled by rendering of a further interim award superseding the earlier interim relief.” Ibid at 515.

56  It is matter of debate whether interim awards are enforceable under the New York Convention. According to UNCITRAL, “[t]he prevailing view, confirmed…by case law in some States, appears to be that the Convention does not apply to interim awards.” Possible Future Work in the Area of International Commercial Arbitration, UNCITRAL, 32nd Session, UN Doc A/CN.9/460 (1999), para 121, reprinted in (1999) XXX UNCITRAL Ybk 395, 410.

57  Again, municipal law considerations may speak for another result. See below, n 72 (on Finnish law).

58  According to Article 32(4), an award shall be signed by all the arbitrators. See discussion of Article 32(2) in Chapter 22, below.

59  See Caron I above, n 1, at 482–83.

60  For an example of a temporary restraining measure, see the Order filed in RCA Global Communications, reprinted below, section C(2). See also the cases mentioned by Caron I above, n 1, at 483 n 52. In addition to interim awards and orders, interim measures have occasionally been dealt with in decisions, as well as, along with other issues, in interlocutory, partial and final awards. See C Brower above, n 1, at 175.

61  Even interim awards in the form of temporary restraining measures may be difficult to enforce. If, as is likely to be the case, the reason for the tentative nature of the interim award is that the other party's views have not yet been received, a domestic court or other enforcement agency might refuse to cooperate on the ground that the principle of audiatur et altera pars has not been respected. See also Caron I above, n 1, at 510 (“The key practical issue with enforceability of awards of interim measures…is whether the court from which enforcement is sought regards the award as final or interlocutory, the latter generally not being enforceable.”).

62  J Sztucki above, n 2, at 161.

63  See Caron I above, n 1, at 484.

64  See, e.g. Tadjer–Cohen Associates, reprinted below, section C(2). In the practice of the Tribunal, the number of orders relating to interim measures seems at least double the number of awards. See Caron II, above, n 1, at 208.

65  See Questech, reprinted below, section C(2). In this case, the sanction required (but not imposed) included “taking claimant's facts as established, refusing to allow respondent to oppose the Statement of Claim or introduce evidence, striking the counter–claim or entering a default judgment.” Caron I above, n 1, at 511.

66  In cases of extreme urgency a “temporary restraint order,” however, may be issued without hearing the other party.

67  See Article 15(2) above, Chapter 2 and Caron I above, n 1, at 500–02.

68  In general, see Caron I above, n 1, at 502–04. See also S Baker & M Davis above, n 1, at 143.

69  See Behring International, reprinted below, section C(2)

70  Ibid.

71  For this reason the compatibility of Article 26 with German law has been doubted. See M Aden, Internationale Handelsschiedsgerichtsbarkeit (1988) 54, 213.

72  But note that some US courts have interpreted the New York Convention to preclude courts from ordering attachments. See S Jarvin, “Is Exclusion of Concurrent Courts' Jurisdiction over Conservatory Measures to be Introduced by a Revision of the Convention?” (1989) 6(1) JIA 171, 173–77.

73  This, for example, is the case under the new Swiss Law on arbitration. It empowers the tribunal to order provisional or conservatory measures, but “[i]f the party so ordered does not comply voluntarily, the arbitral tribunal may request the assistance of the court” (Article 183 of the Swiss Private International Law Act). See M Blessing, “The New International Arbitration Law in Switzerland,” (1988) 5(2) JIA 9, 49–50. See alsoE Gaillard & J Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (1999) 711 (“The various sources of arbitration law–statute, institutional rules, international conventions and arbitral awards–reveal a growing acceptance of the principle that courts and arbitral tribunals have concurrent powers to order provisional and protective measures.”). On national approaches, see N McDonnell above, n 39, at 275–77. Further on the question in general, see also G de Leval, “Le juge et l'arbitre: les mesures provisoires,” (1993) LXX Revue de Droit international et de Droit comparé 7.

74  This is the case in Finland. The Rules of the Arbitration Institute of the Central Chamber of Commerce contain a provision on the arbitral tribunal's power to indicate interim measures, but the law does not allow the arbitrators to impose a penalty for failure to comply or give enforceable orders. See T Esko, “The Arbitral Proceedings,” in M Savola (ed), Law and Practice of Arbitration in Finland (2004) 43–44. See also Behring International, reprinted below, section C(3).

75  Corresponding provisions are to be found in some other arbitration rules too. See S Jarvin above, n 72, at 172–73.

76  P Sanders above, n 37, at 197.

77  As, for example, is the case in Sweden. Stockholm Chamber of Commerce, Arbitration in Sweden (1984) 100 (“[I]t is only when application of security measures abroad becomes necessary that an order by the arbitrators may be more useful than a court order…”).

78  See N McDonnell above, n 39, at 175–76. See also, above, n 74 (on Finnish law).

79  See Caron I above, n 1, at 467; P Sanders above, n 37, at 196.

80  Caron I above, n 1, at 507.

81  Ibid.

82  Reprinted below, section C(3). For further discussion, see Caron I above, n 1, at 504–08. See also J van Hof above, n 1, at 189.

83  According to Article 9, “[i]t is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.”

84  H Holtzmann & J Neuhaus above, n 4, at 332.

[Footnote] 42.  Irreparable prejudice has long been recognized as a basis for ordering provisional relief in international law.