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Kate Brown[1]
In international commercial arbitration, pre-award protective measures are essential to ensure the effectiveness of arbitral awards.[2] Such measures may be necessary to preserve the subject matter of the arbitration, to maintain the status quo during the arbitral proceedings, or to secure the eventual payment of an award.[3] Van den Berg explains that if no pre-award protective measures are available, ‘an award in favour of a creditor may turn out to be a Pyrrhic victory. At that time the debtor may well have “sheltered” his assets in another jurisdiction’.[4] Indeed, requests for such protective measures are becoming increasingly common.[5]
There are significant justifications for seeking protective measures from a court rather than from the arbitral tribunal itself. In an international arbitration, the arbitral tribunal’s power to provide interim relief is not always assured. Indeed, an arbitrator’s jurisdiction to award conservatory remedies must have its origin in the provisions of the arbitration agreement, or in the institutional rules governing the agreement.6 Additionally, at the preliminary stages of a dispute when provisional remedies are most often needed, the arbitrators will not have yet been appointed.[7] Moreover, even where an arbitral tribunal does have the power to grant provisional relief, this power is subject to the limitation that an order granted by an arbitrator cannot be enforced without judicial confirmation.[8] A party obtaining an order for relief directly from a court avoids the need for supplementary court proceedings for enforcement.[9] Finally, the power of an arbitrator, being contractual in nature, is not effective to enforce an interim order against third parties.[10] Therefore, where the assets in dispute are in the possession of a third party, an arbitral tribunal is ill-equipped to provide urgent relief.[11] For these reasons, where emergency interim measures are required, it can be more efficient to seek assistance from a court, subject to the precondition that the court has jurisdiction to grant such measures.
Although there is a strong tendency towards unification of the law governing international arbitration proceedings, the availability of court-ordered pre-award protective measures in international arbitration remains governed by the law of the place from which a measure is sought.[12] The United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (hereafter the UNCITRAL Model Law), which is designed to unify domestic rules regarding international commercial arbitration, has found acceptance in a large number of states.[13] However, when choosing a forum for the arbitration of future disputes, knowledge of which national court systems are prepared to grant pre-award protective measures is essential to ensure an effective and enforceable arbitral award. Thus, there is much to be gained from comparing the development of court powers in relation to arbitration in common law countries and the approach taken in civil law jurisdiction where courts derive their powers from enacted legal rules and not from case precedent.[14]
This paper compares the court-ordered pre-award protective measures available in the United States of America and France, each of which is a party to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York 1958 (hereafter the New York Convention). Of particular interest is the extent to which the common law and civil law structures of these two legal systems have affected the development of their respective arbitration doctrines.
The United States is generally perceived as adopting a progressive approach to international arbitration.[15] Interestingly, however, there is no provision in the United States Federal Arbitration Act 1925 (hereafter the Federal Arbitration Act) allowing provisional remedies to be granted by the courts when the parties have agreed to arbitration.[16] The absence of a federal statutory determination on the availability of court-ordered provisional remedies in aid of arbitration has led to an ad hoc, state-by-state development of this area of the law. Indeed, there is a general reluctance among the United States judiciary to interfere with an arbitration once it has been initiated.[17] Newman and Nelson comment that, ‘[t]o the extent that court remedies are available in support of arbitration, they are most often available before the arbitrators have been appointed, or after the making of the award’.[18] Courts will ordinarily not grant interim relief unless the arbitrators are unable to provide it.[19] Support for this approach is found in the extensive powers vested in arbitrators in the United States.[20] Consequently, the judicial treatment of arbitrable disputes in the United States can be categorised as non-interventionist.
The non-interventionist approach adopted by the United States courts has been criticised by some scholars. Schlosser argues that:
[t]o approach the issue in terms of ‘court interference’ is entirely inadequate …[on] the contrary, the courts may be very helpful to arbitrators and arbitrating parties by ‘interfering’ where such interference is animated by the desire to provide a reliable foundation for commencing arbitration and to arbitration procedures risking the loss of their reliable foundation or even deadlock. The courts should be encouraged to intervene in a timely fashion rather than be blamed for being too distrustful of arbitration.[21]
The New York Convention, to which the United States is a party,[22] is intended to ensure that a party may not breach its agreement to arbitrate a dispute by commencing parallel legal proceedings in the court system.23 Article 11(3) of the New York Convention provides that a court, when ‘seized’ of an action involving a written arbitration agreement, ‘shall, at the request of one of the parties, refer the parties to arbitration’.[24] In 1974, the Federal Appeals Court in Philadelphia ruled in McCreary Tire & Rubber Co v CEAT SpA (hereafter McCreary)[25] that the New York Convention’s requirement that a court ‘refer’ the parties to arbitration implied an absolute prohibition against judicial involvement, even for the limited purpose of granting preliminary relief.[26]
McCreary concerned a dispute between a United States corporation and an Italian company over the breach of a distribution agreement. The parties had agreed to arbitrate disputes in Brussels according to the Arbitration Rules of the International Chamber of Commerce. The Federal Court of Appeals in Philadelphia ruled that the agreement fell under the New York Convention, and that the court was consequently stripped of all jurisdiction other than the power to refer the parties to arbitration. The court described McCreary’s resort to litigation as:
…[a] violation of McCreary’s agreement to submit the underlying disputes to arbitration… This complaint does not seek to enforce an arbitration award by foreign attachment. It seeks to bypass the agreed upon method of settling disputes. Such a bypass is prohibited by the Convention…the Convention forbids the court from entering a suit that violates the agreement to arbitrate.[27]
According to the reasoning of the court, attachments cannot be granted in cases falling under the New York Convention, which requires courts to ‘refer’ the parties to arbitration. However, attachments are available in domestic arbitrations falling under the Federal Arbitration Act, which merely requires the courts to ‘stay’ proceedings pending arbitration. This decision has been criticised as taking the principles of the New York Convention so far as to become a hindrance rather than an aid to international arbitration. Redfern states:
It is undoubtedly too severe in its demarcation of the line between courts and arbitrators in its apparent concept that an international arbitration agreement acts as a warning notice to the courts: ‘this is private property—keep out’.[28]
Van den Berg is similarly critical of the court’s reasoning:
It is submitted that the McCreary decision is based on the wrong presumption that Article II(3) of the Convention completely divests the courts of the Contracting States of their jurisdiction. The effect of Article 11(3) is merely that the courts have no jurisdiction to hear the merits of a dispute […] No contrary inference can be drawn from the use of the word ‘refer’ in Article II(3) of the New York Convention rather than ‘stay the court action’. The word ‘refer’ is used for historical reasons and its technical procedural sense must be deemed as a court directive staying the court proceedings on the merits.29
This academic criticism was echoed by the California Federal District Court in Carolina Power & Light Co v Uranex (hereafter Uranex).[30] The Uranex case involved a contract between a North Carolina public utility and a French group that marketed uranium internationally. Following the dramatic rise in the price of uranium fuel in world markets, Uranex defaulted on its supply obligation. The utility commenced legal action in the San Francisco Federal District Court and obtained an ex parte attachment of a debt owed to Uranex by a San Francisco customer under a supply agreement. The parties had agreed that disputes would be settled by arbitration in New York. The utility invited the court to stay the action and maintain the attachment in order to protect any award it might receive in the New York arbitration, as Uranex had no other assets in the United States. Uranex moved to dismiss the complaint and quash the attachment, relying upon McCreary.
In Uranex, the court rejected the reasoning in McCreary as unpersuasive, suggesting that: The use of the general term ‘refer’ [in article 11 (3)] might reflect little more than the fact that the Convention must be applied in many very different legal systems, and possibly in circumstances when the use of the technical term ‘stay’ would not be a meaningful directive.
However, as the interpretation of the New York Convention is a question of supreme federal law,[31] the holding by the Federal Court of Appeals in McCreary was important authority that was followed by the New York Court of Appeals in Cooper v Ateliers de la Motobecane (hereafter Cooper)[32]
In Cooper, the dispute concerned the valuation of shares in a New York corporation owned by the parties. It had been agreed that disputes over valuation would be resolved by arbitration in Switzerland. The plaintiff obtained an ex parte order of attachment of a debt owed by the New York Corporation to the defendant. In a four-to-three majority decision, the New York Court of Appeals vacated the order, ruling that pre-arbitration attachment is incompatible with the New York Convention.
The decision of the Cooper court has been widely condemned. Van den Berg particularly criticises the court’s argument that attachment is not necessary in the arbitration context, since voluntary compliance is the usual consequence of a proceeding:
This opinion is, with due respect, contrary to practice. Practice shows that by the time the award is rendered, the assets of the debtor may well have disappeared to some jurisdiction where the award cannot be enforced under the Convention or have been transferred to a third party.33
The Cooper court also maintained that the remedy of attachment and associated judicial proceedings inject uncertainty and foreign legal principles into the arbitration process, thereby defeating the purpose of the New York Convention. Furthermore, the court was persuaded that permitting pre-arbitration attachment of foreign property in New York would expose United States corporations to reciprocal abuse in foreign countries. Becker, however, observes that while the New York Convention undeniably accelerates the enforcement of awards in member countries, many states with commercial interests, such as Algeria, Argentina, Brazil, Canada, China, Saudi Arabia, Turkey and Venezuela, are not parties to the Convention. Consequently, Becker argues that foreign attachment in aid of arbitration remains essential to the effectiveness of any final arbitral award.[34] Moreover, although it is true that pre-arbitration attachment does involve the courts and foreign law in arbitration, this involvement is similarly necessary when a party seeks to obtain a stay of arbitration, an order to compel arbitration, or the confirmation of an award, according to the various judicial procedures and substantive laws of the member states. Thus, the inherent uncertainty that exists whenever foreign law is introduced into arbitration proceedings is not seriously compounded by the additional availability of attachment procedures.[35] The fact that the arbitration rules of UNCITRAL (Art 26(3)) and those of the International Chamber of Commerce (ICC) (Art 8(5)) expressly permit the parties to apply to the courts for interim or conservatory measures is compelling evidence that such measures are not deemed incompatible with international arbitration.
Despite the criticism of the McCreary and Cooper doctrine,[36] the availability of court-ordered pre-award protective measures, and particularly attachment, in the United States remains uncertain.[37] This uncertainty is due largely to the disparate approaches adopted by federal and state courts, and to the presence of significant differences between the decisions of different federal circuit courts.
In the United States, international arbitrations are governed by federal law.[38] The Federal Arbitration Act does not expressly authorise provisional remedies in aid
of non-maritime arbitrations.[39] However, in certain circumstances, United States courts are prepared to provide interim remedies in support of international arbitral proceedings. These remedies fall into two basic categories: (a) injunctions and similar equitable remedies which are intended to maintain the status quo until the dispute can be finally resolved; and (b) attachment and other remedies provided by state law involving the seizure of property to ensure that assets are available to satisfy any ultimate judgment.[40]
All federal district courts may order preliminary injunctions.[41] However, the requirements for a preliminary injunction to be ordered vary according to the federal circuit.[42] The majority of the federal court circuits have adopted the approach that a preliminary injunction may be granted in an international arbitration where the plaintiff satisfies the circuit’s normal preliminary injunction test.[43] This standard has been applied in the First,[44] Second,[45]
Third,[46] Seventh,[47] Eighth[48] and Ninth[49] Circuit Courts of Appeals. The most restrictive basis for a grant of provisional remedies pending an arbitration is that the parties must have expressly contracted to maintain the status quo during arbitration. This has been applied in the Fifth[50] and the Tenth[51] Circuits. By contrast, the Fourth Circuit has held that provisional remedies are appropriate if they are necessary to preserve the status quo,[52] whether or not the parties have expressly provided for such a remedy. This is to ensure that the arbitration is not a hollow formality.[53] While there are no cases holding that injunctions are not available in cases falling under the New York Convention, there has been some academic discussion regarding whether the reasoning in McCreary Tire & Rubber Co v CEAT SpA and Cooper v Ateliers de la Motobécane, SA, that judicial proceedings are inimical to the purposes of the Convention, could apply to all provisional remedies.[54]
State courts follow state law in determining whether to grant preliminary injunctions, even in cases falling under the New York Convention, in which federal law otherwise applies.[55] For example, the New York state courts have ruled that the fact that a dispute is subject to an arbitration agreement does not deprive the court of authority to grant preliminary injunctions in aid of arbitration. One New York court has ruled that the power of a court to enforce the arbitration agreement ‘includes the power to see that the arbitration is not rendered a nullity.’[56] Similarly, while recognising that pre-award attachments may not be available under the New York Convention, the New York District Court in Rogers, Burgun, Shahine & Deschler, Inc v Dongson Construction Co ordered a preliminary injunction despite the fact that the case fell within the scope of the New York Convention.[57] Consequently, whether a pre-award injunction is available from a United States state court in support of international arbitration proceedings will always turn upon the current status of the law of arbitration in that particular jurisdiction.
Under United States law, a federal court may only make an order for attachment where that remedy is provided for in the law of the state in which the court sits.[58] Although the principles upon which relief will be granted are broadly similar, the precise requirements for an order for attachment vary significantly from state to state, and remedy to remedy.59
The weight of federal authority now appears to support the granting of provisional remedies in aid of an arbitrable dispute. However, it must be noted that the following authorities relate to domestic arbitrations, and do not fall within the scope of the New York Convention. The First,[60] Second,[61] Third,[62] Fourth,[63] Fifth,[64] Seventh,[65] Ninth[66] and Tenth[67] Circuit Courts of Appeal have permitted the granting of provisional remedies notwithstanding the fact that an arbitration agreement existed between the parties. The Eighth Circuit issued conflicting opinions in 1984; one panel upheld a provisional remedy,[68] while another reversed an injunction[69] because it found it to be inconsistent with the purposes of the Federal Arbitration Act. The Eighth Circuit is yet to reconcile these conflicting judgments.
United States state courts are also divided on the issue of the availability of court-ordered interim measures in support of arbitration. Two states have adopted provisions that expressly address the question of the use of courtordered provisional remedies in support of international commercial arbitration.[70] However, the weight of state authority is against providing interim relief where a dispute is subject to an arbitration agreement.[71] This continuing uncertainty is one of the reasons offered by the American Bar Association Committee on State International Arbitration Statutes in support of the adoption of the UNCITRAL Model Law.[72] It has also stirred two United States Supreme Court judges to argue strongly that the Supreme Court should grant certiorari to a representative case to facilitate the resolution of this issue.[73] To date, however, neither the United States federal legislature, nor the United States Supreme Court, have taken the necessary steps to settle the question of the availability of court-granted interim measures in aid of international arbitration.
The controversy over the availability of pre-award protective measures in aid of international arbitrations in the United States remains unresolved. The disparate decisions of the United States federal and state courts, and the different approaches adopted by different circuits of the federal courts, have compounded the ambiguity in this area of the law. While there have been calls for a Supreme Court decision that will put an end to the present uncertainty,[74] such intervention is dependant upon the existence of a suitable case. As a more expedient solution, Meier proposes that the Federal Arbitration Act be amended to reverse the rule in McCreary and Cooper, and to ensure the availability of interim and conservatory measures from United States courts in aid of arbitration in both domestic cases and in cases falling under the New York Convention.[75]
Historically, France has been intricately involved in the promotion of dispute resolution through arbitration.[76] The home of a large number of arbitration institutions,[77] France is described as a hospitable jurisdiction for arbitration.[78]
Arbitral awards in France immediately acquire the force of res judicata.[79] With respect to interim or conservatory measures, France adopts a three-tiered strategy. The New Civil Procedure Code (hereafter NCPC) provides for court assistance in ensuring the viability of an arbitral tribunal in the initial stages of the proceeding.[80] State courts are also empowered to grant interim measures in order to guarantee that the final arbitral award can be enforced.[81] Furthermore, a party can apply to the court for the validation of interim orders given by the arbitral tribunal.[82] This combination of mechanisms has been described as an example of a proper connection between arbitration proceedings and state jurisdiction.[83] Although France has not adopted the UNCITRAL Model Law,[84] its legislative framework provides strong support for arbitration as a means of international dispute resolution.
In France, parties to disputes covered by an arbitration agreement may have recourse to state courts for provisional measures in aid of arbitration on the condition that such remedies do not prejudice the outcome of the arbitration on the merits.[85] The key provisions are contained in the NCPC.
Article 1458 of the NCPC states:
When a dispute, pending before an arbitration tribunal further to an arbitration agreement, is brought before a public court, the latter must declare itself without
jurisdiction.
If the matter has not yet been brought before the arbitration tribunal, the court must also declare itself without jurisdiction unless the arbitration agreement is plainly void.
Article 1458 of the NCPC has been interpreted as prohibiting a court from ruling on the merits of a dispute that is prima facie governed by an arbitration agreement.[86] Consequently, Art 1458 of the NCPC operates without prejudice to Arts 808, 809, 872 and 873 of the NCPC, which provide for pre-award court-ordered conservatory measures in aid of arbitration.[87]
Under the NCPC, obtaining interim or conservatory measures in an arbitrable dispute involves a two-step procedure. Initially, pursuant to Arts 808 and 872 NCPC, the party seeking an interim measure must demonstrate that an emergency situation exists, and that the relief sought is not seriously objectionable.[88] The respondent bears the onus of showing that a serious objection to the claim exists.[89] If the presence of a serious objection is established, the claimant must then satisfy the two-fold test contained in Arts 809 and 873 of the NCPC. First, the claimant must establish that the damage is imminent, or that a manifestly unlawful behaviour or activity is taking place. Secondly, the relief must be necessary to prevent the occurrence of the imminent damage or to stop the manifestly unlawful behaviour or activity.[90]
If these requirements are satisfied, the claimant may obtain provisional remedies from a state court.[91] The competent judicial authority is usually the President of the Tribunal de Grande Instance, or the President of the Commercial Court if the dispute is of a commercial nature. In an international arbitration involving foreign parties, the competent court is usually the court in the jurisdiction where the interim measure is to be ordered.[92] Only one member of the court hears the action and he or she rules in a special capacity (as juge des référés) reserved for the consideration of urgent matters.[93]
The powers of the President sitting en référé are limited only when, after the arbitral tribunal has been constituted, the relief sought may impinge upon the merits of the case.[94] It has been ruled that, once the arbitral tribunal has been formally constituted, the juge des référés loses his/her jurisdiction to grant an injunction to pay even the undisputed part of any monies claimed.[95] However, the French courts have broadly defined the phase of the arbitral tribunal’s constitution.[96] Accordingly, an arbitration tribunal has not been constituted until the last arbitrator has formally accepted his appointment.[97] The mere fact that an arbitrator has informally agreed to participate in the first oral hearing does not satisfy this criterion.98
Once the tests of emergency situation and no serious objection are satisfied, and the necessity of the relief to prevent the imminent damage is established, the court’s broad jurisdiction to order provisional measures in regular court cases is extended to international arbitration proceedings.[99] If the assets forming the subject matter of the dispute are located in France, the juge des référés has jurisdiction over the proceeding when a French national, or a person domiciled in France pursuant to the Brussels Convention of 1968, is either the plaintiff or the defendant. French courts do not generally have jurisdiction over a dispute involving only non-nationals. However, if the assets are located in France a juge des référés has jurisdiction to order interim remedies even where both parties are non-nationals, the law governing the contract is not French law and the seat of arbitration is outside of France.[100] This principle was enunciated by the Cour de Cassation as early as 1868:
While French courts are incompetent with respect to the subject matter of disputes arising between foreigners, on account of the fact that the latter assert or deny the existence of claims, French courts are competent to authorize and maintain, in the interest of foreigners and all other parties, such measures as may be considered purely conservatory and which do not affect or prejudice the merits and by reserving the merits, aim to prevent goods and monies from being misappropriated to the detriment of rightful claimants properly recognized as such by the laws and constitutions which govern them…that such measures taken within this limit and in the general interest of public peace and justice are part of people’s rights and are applicable regardless of nationality.[101]
The juge des référés is also competent when the two parties are not French nationals, but the interim remedies involve real estate located in France[102] or a plane that has landed in French territory.[103] In 1983, Evergreen (a US company) successfully seized, under Art R 123–9 of the Civil Aviation Code, an Air Algeria plane at Orly airport for overdue payment by the latter of a sum of US$329,644.[104] It must be noted, however, that French courts are never competent to order interim measures concerning real estate located abroad.[105]
Similarly, requests for attachments or interim measures to be ordered abroad fall outside the jurisdiction of French courts.[106]
Under French law, the available interim measures include: (a) attachments (saisies-conservatoires); (b) interlocutory payments; (c) judicially-granted guarantees (sûretés judiciaires) such as provisional judicial mortgages (hypothèques judiciaires provisoires) or judicial pledges (nantissements judiciaires); and (d) injunctions and temporary restraining orders (ordonnances de référé).[107] These provisional remedies are cumulative, and are available to both French and non-French petitioners.108
The conservatory attachment is an ex parte proceeding (an‘ordonnance sur requête’) that may be founded on a monetary claim against a debtor. An attachment results in the assets which are subject to the attachment order, whether they consist of chattels in the actual possession of the debtor, intangible property of the debtor detained by third parties, or cash in the bank, becoming untransferable by the debtor, subject to the effect of any intervening bankruptcy of the debtor. If these assets are held by a third party and not by the debtor, the third party becomes personally liable to the creditor if any attached monies or chattels are removed or are remitted to the debtor.[109] An attachment may be applied for in respect of foreign arbitral proceedings whether the proceedings have been concluded by the rendering of an award or are still pending.[110]
An attachment order may be defeated in two ways. First, the debtor may request the juge des référés to withdraw the ordinance. Such a withdrawal may be ordered where the requirement of urgency is not satisfied. Secondly, the debtor can file an appeal within a period of 15 days.[111] The debtor may also ask the juge sitting en référé for the withdrawal (mainlevée), or for the reduction (cautionnement) of the attachment by offering to deposit sufficient funds to guarantee the cause of the attachment with an escrow agent.[112]
Pursuant to Art 67 of the Law of July 9, 1991, the interlocutory payment of a debt will be granted where the President sitting en référé is satisfied that the petitioner has a prima facie serious claim against the debtor, and that some circumstances are threatening the recovery of the claim.[113] It has been argued that a ruling on the seriousness of the claim requires an examination of the merits of the dispute, and is therefore beyond the jurisdiction of the juge des référés.[114] However, the Cour de Cassation has ruled that the existence of an arbitration agreement does not affect the competence of the judge sitting en référé to grant an interim payment to a claimant where the defendant’s obligation is not seriously in dispute.[115] Consequently, although the President sitting en référé will be reluctant to make an order which results in the satisfaction of the principal amount of the claim, the judge has a discretion to order that the amount which is not seriously objectionable be paid forthright.[116] It should be noted that a request for interlocutory payment is not admissible once the arbitration proceeding is in progress.[117]
A claimant seeking an order for interlocutory payment must first establish the existence of a debt within the meaning of Art 67 of the Law of July 9, 1991. This provision is still largely untested. However, the language ‘any creditor justifying that his claim seems in its principle to be well grounded’ which was used in Art 48 of the Code of Civil Procedure (hereafter CCP), the predecessor to Art 67 of the Law of July 9, 1991,[118] is again present in the new article. Buchman therefore suggests that the prior case law, which adopts a relatively liberal test when deciding to grant an interlocutory payment, is relevant to the interpretation of the new provision.[119] Under Art 48 of the CCP, the definition of a debt was very wide and could consist of a contractual debt or simply damages in tort. It was not necessary that the debt be liquidated, nor that the amount be due. Finally, the debt could be conditional or even eventual. 120
The second requirement for an order for interlocutory payment is that there are circumstances threatening the recovery of the debt; that there is some urgency. Although the condition of urgency is not always necessary in domestic arbitrations, commentators generally agree that such a condition is required in
the field of international arbitration.[121] Under the predecessor to Art 67 of the Law of July 9, 1991,[122] the existence of threatening circumstances was a matter for the discretion of the judge.[123] However, the test was satisfied where the debtor was likely to become bankrupt,[124] or where the prospects of future recovery of the claim were diminished by the amount of the claim and the debtor’s financial position.[125] Again, Buchman suggests that this approach is likely to be applied under the more recent provision.[126]
Finally, pursuant to Art 489 NCPC, the President sitting en référé has a discretion to make the enforcement of his order for interlocutory payment subject to the posting by the claimant of a security.[127]
This measure is available in any claim against the debtor that could form the basis of an attachment.[128] The result of the relief, if granted, is that even though the assets which are the subject of the order remain transferable by the debtor, the underlying assets of the judicially-granted guarantee, whether they consist of shares owned by the debtor or the debtor’s current business, may be levied by the claimant against any transferee. Again, this remedy is subject to any intervening bankruptcy of the debtor, which would transform the claimant into a privileged creditor if the guarantee has been properly registered. Such judicially-granted guaranties effectively prevent any transfer of the mortgaged or pledged asset without the amount of the registered mortgage or pledge being carved out of the proceeds of the transfer and placed in escrow.[129]
A provisional judicial mortgage or a judicial pledge may be sought in respect of pending or concluded international arbitral proceedings. Although it is not necessary for the petitioner to prove the existence of an emergency situation, a real and substantial threat over future collection of the debt must be established.[130]
Any civil or commercial claim may form the basis of an application for an injunction or temporary restraining order.[131] These interim remedies operate predominantly as safeguards, designed to preserve the status quo until the arbitral award on the merits is rendered. Under this head, the President sitting en référé may order that sums of money or shares of companies be put in escrow, or that a surveyor, accountant or other expert be appointed to gather evidence which will be used in an action on the merits.[132] The Cour de Cassation has ruled that ‘the existence of an arbitration clause will not prevent a judge sitting en référé from ordering, prior to the competent jurisdiction being seized of the matter, the legally permissible measures of instruction, if there exists a legitimate motive for preservation or for the establishment of evidence on which the outcome of the dispute might depend’.[133] Such measures can include expert reports or orders for the inspection of property.[134]
Injunctions and temporary restraining orders may be granted in international arbitrations, whether the proceedings have not yet started, are still pending, or have been concluded by the rendering of an award. Importantly, the mere fact of seeking an injunction or a temporary restraining order from a French court of summary jurisdiction before an arbitration is started is not considered a waiver by the claimant of its right to proceed with the arbitration. Nor does it deprive the arbitrators of their powers to render an award on the merits.[135]
In France, under the provisions of the NCPC, the President sitting en référé has jurisdiction to order a wide range of interim and conservatory measures in aid of international arbitrations. These powers, although extensive, are limited in two respects. The juge des référés may not issue interim measures once the arbitral tribunal has been officially convened. This restriction has little practical effect since it is during the period prior to the constitution of the tribunal that the parties are most likely to seek emergency measures.[136] Additionally, the juge des référés must not grant any measure, or make any ruling that may prejudice the merits of the dispute being arbitrated. These limitations aside, France’s reputation as a jurisdiction conducive to effective international arbitration has been reinforced by the continued legislative support of judicial intervention in aid of international arbitration.
Hulbert acknowledges that a measure of parochialism remains in the development of the law on the availability of interim conservatory measures from national courts in aid of international arbitration.[137] This is particularly apparent in the United States, where there is some residual doubt as to the compatibility of court-ordered interim remedies with Art II of the New York Convention. The absence of any US federal statute authorising provisional remedies in aid of non-maritime international arbitration has perpetuated a line of judicial authority which is inconsistent with the practice of most signatories to the New York Convention that have had occasion to address the issue.[138] Van den Berg notes that the uncertainty surrounding the availability of pre-award preventative measures, and the different standards required in different courts, undermines the general ‘pro-enforcement bias’ of the courts in the United States. He argues that this uncertainty may deter parties from agreeing to international arbitration.[139] In contrast, the expedited procedure available through the French juge des référés has been described as ‘the most innovative approach to the judicial support of arbitration’.[140] Under appropriate circumstances, this judicial intervention serves to encourage arbitration, particularly at the international level, by allowing the parties to take immediate measures necessary to ensure that the award will be enforceable once rendered.[141] These arguments suggest that strong legislative leadership is necessary to ensure a uniform and consistent approach to the availability of interim conservatory measures in international arbitration.[142] The codified civil law system, exemplified by the French référé-provision, is therefore better able to ensure that arbitration is an efficient and effective means of international dispute resolution.
American Bar Association Committee on State International Arbitration Statutes Report, 30 March 1990
Cal Code Civ Proc
Code of Civil Procedure (France)
Federal Arbitration Act (US) 1925
Fed R Civ P 64
Florida International Arbitration Act 1986
Law of January 25, 1985 (France)
Law of July 9, 1991 (France)
New Civil Procedure Code (NCPC)
NY Civ Prac Law 57205, 1985 Supplementary Practice Commentary (McKinney 1986 Supp)
NY Civ Prac Law, Art 62 (McKinney 1980)
New York’s Civ Prac L & R
UN Convention, Article 11 (3), reprinted following 9 USCA 5201
Carolina Power & Light Co v Uranex 451 F Supp 1044 at 1052 (ND Cal 1977)
Cooper v Ateliers de la Motobecane SA 57 NY 2d 408 at 415–16; 456 NYS 2d 728 at 731–32; 442 NE 2d 1239 (1982)
Drexel Burnham Lambert Inc v Ruesbsamen 139 AD 2d 323 at 531 NYS 2d 547
at 550–52 (1st Dept 1988)
Ferry-Morse Seed Co v Food Corn, Inc [1984] USCA8 252; 729 F 2d 589 at 592 (8th Cir 1984)
Friends for All Children, Inc v Lockheed Aircraft Corp 746 F 2d 70 at 72 (2d Cir
1979)
Guinness-Harp Corp v Jos Schiltz Brewing Co [1980] USCA2 66; 613 F 2d 468 at 472–73 (2d Cir 1980)
Hull Municipal Lighting Plant v Massachusetts Municipal Wholesales Elec Co
399 Mass 640; 560 NE 2d 140 (1987)
J Brooks Securities, Inc v Vanderbilt Securities, Inc 484 NYS 2d 472 at 474 (Sup Ct NY Co 1985)
Job Industries, Inc v Silex SpA 601 F Supp 971 (SDNY 1985)
Loeb and Loeb v Beverly Glen Music, Inc 166 Cal App 3d 1110 at 1117–18; 212 Ca Rptr 830 at 834–35 (2d Dist 1985)
Lease Plan Fleet Corp v Johnson Transp, Inc 76 Mise 2d 822; 324 NYS 2d 928 (1971)
Long Island RR Co v International Assn Of Machinists [1989] USCA2 335; 874 F 2d 901 at 910 (2d Cir 1989), cert denied, US; 107 LEd 831; 110 s Ct 836 (1990)
McCreary Tire & Rubber Co v CEAT SpA [1974] USCA3 389; 501 F 2d 1032 (3d Cir 1974)
Merrill Lynch, Pierce, Fenner & Smith, Inc v Bradley [1985] USCA4 433; 756 F 2d 1048 at 1053–54 (4th Cir 1985)
Merrill Lynch, Pierce, Fenner & Smith, Inc v Dutton [1988] USCA10 89; 844 F 2d 726 at 728 (10th Cir 1988)
Merrill Lynch, Pierce, Fenner & Smith, Inc v McCollum 666 SW 2d 604 at 608– 09 (Tex App 14th Dist 1984), cert denied; 467 US 1127 (1985)
Moses H Cone Memorial Hospital v Mercury Construction Corp 460 US 1 (1983)
Ortho Pharmaceutical Corp v Amgen, Inc [1989] USCA3 1003; 882 F 2d 806 at 811–13 (3d Cir 1989)
PMS Distributing Co v Huber & Suhner, AG [1988] USCA9 833; 854 F 2d 355 at 356–58 (9th Cir 1988)
RGI, Inc v Tucker & Assoc, Inc [1988] USCA5 1479; 858 F 2d 227 at 230 (5th Cir 1988)
Rogers, Burgun, Shahine & Deschler, Inc v Dongson Construction Co 598 F Supp 754 (SDNY 1984)
Roso-Lino Beverage Distrib, Inc v Coca-Cola Bottling Co of New York [1984] USCA2 1041; 749 F 2d 124 at 125 (2d Cir 1984)
Ruling of the Cour de Cassation, 21 June 1904, Dalloz, 1906 at 395; 3 July 1951, Dalloz, 1951 at 701
Ruling of the Cour de Cassation, 12 May 1931, Journal du Droit International, 1932 at 387; 27 May 1970, Bulletin Civil I at 176
Ruling of the Cour de Cassation, Commercial Chambers, 3 July 1951, Dalloz, 1951 at 701
Ruling of the Cour de Cassation (Com) Judgment, 24 March 1954 [1955] Rev Arb95
Ruling of the Cour d’Appel de Dijon, 21 December 1959, JCP 1960 11,11670
Ruling of the Cour de Cassation, Commercial Chambers, 4 November 1959, Gazette du Palais 1930. 1. 191
Ruling of the Cour de Cassation, Commercial Chambers, 14 November 1959, Gazette du Palais 1960. 1. 191
Ruling of the Cour de Cassation, 28 March 1962, Bulletin Civil IV at 247, Revue Critique de Droit International Privé, 1963 at 844
Ruling of the Cour d’Appel de Paris, 8 October 1964, Journal du Droit International 1965 at 901
Ruling of the Cour de Cassation, 22 March 1965, Sirey 1965, 1.175
Ruling of the Cour de Cassation, 9 December 1976, Dalloz, IR at 139
Ruling of the Cour de Cassation, 22 May 1979, Bulletin Civil IV, 171
Ruling of the Cour de Cassation, 7 June 1979 [1980] Rev Arb 78
Ruling of the Cour de Cassation, Civil Chambers, 9 June 1979 [1980] Rev Arb 78 (Courteault, Note)
Ruling of the Cour de Cassation, 2nd Civil Chambers, 13 February 1980, Bulletin Civil II at 24
Ruling of the Cour de Cassation, 9 July 1979 [1980] Rev Arb 78
Ruling of the Cour de Cassation, Commercial Chambers, 20 January 1981, Bulletin Civil IV at 30; and in Gazette du Palais 1981. 1. 332
Ruling of the Cour de Cassation, 30 April 1982, Bulletin Civil IV at 132
Ruling of the Cour de Cassation, of 20 December 1982, Bulletin Civil III at 195, No 260
Ruling of the Tribunal de Grande Instance d’Ivry sur Seine, 28 March 1983 and April 1983
Ruling of the Cour de Cassation, 2nd Civil Chambers, 18 June 1986 [1986] Rev Arb 565
Ruling of the Court of First Instance of Paris [1987] Rev Arb at 375
Ruling of the Cour de Cassation, 1st Civil Chambers, 4 November 1987, Bulletin Civil I at 204
Ruling of the Cour d’Appel de Paris, 14th Chambers B, 1 July 1988 [1989] Rev Arb 113
Sauer-Getribe KG v White Hydraulics, Inc [1983] USCA7 695; 715 F 2d 348 at 351–52 (7th Cir 1983)
Schwartz v Leibel 249 Cal App 2d 761; 57 Cal Rptr 831 at 833 (2d Dist 1967)
Shay v 746 Broadway Corp 409 NYS 2d 69 (Sup Ct TY Co 1978)
Teradyne, Inc v Mostek Corp [1986] USCA1 346; 797 F 2d 43 at 51 (1st Cir 1986)
United States v Jefferson County [1984] USCA11 77; 720 F 2d 1511 at 1519 (11th Cir 1983)
Washington Metro Area Transit Common v Holiday Tours, Inc [1977] USCADC 265; 559 F 2d 841 (DC Cir 1977)
Anderson, RK, ‘The United States of America’, in Bösch, A (ed), Provisional Remedies in International Commercial Arbitration—A Practitioner Handbook,
1994, Berlin: Walter de Gruyter & Co, 741
Becker, JD, ‘Attachments in aid of international arbitration—the American position’ (1985) 1(1) Arbitration International 40
Becker, JD, ‘The supervisory and adjunctive jurisdiction of American courts in arbitration cases’, in Lew, J (ed), Contemporary Problems in International Arbitration, Centre for Commercial Law Studies, 1986, University of London: Queen Mary College, 207
Borris, C, ‘Common law and civil law: fundamental differences and their impact on arbitration’ (1995) 4 Arbitration and Dispute Resolution Law Journal 92
Buchman, LB, ‘France’, in Bösch, A (ed), Provisional Remedies in International Commercial Arbitration—A Practitioner Handbook, 1994, Berlin: Walter de Gruyter & Co, 253
Burrows and Newman, ‘International litigation: attachment in aid of arbitration’ (1982) NYLJ 30 at 1, col 1
Hoellering, ‘International arbitration: interim relief in aid or arbitration’ (1984) 1 Wise Intl LJ 1–13
Hulbert, RW, ‘The role of the courts and problems related to the execution of conservatory and provisional measures: the American perspective’, in Conservatory and Provisional Measures in International Arbitration, 1993, Paris: ICC Publishing SA, 103
Kaplan, N (QC), ‘A case by case examination of whether national courts apply different standards when assisting arbitral proceedings and enforcing awards in international cases as contrasting with domestic disputes. Is there a worldwide trend towards supporting an international arbitration culture?’, in van den Berg, AJ, International Dispute Resolution: Towards an International Arbitration Culture, 1998, The Hague: International Council for Commercial Arbitration Congress, Kluwer Law International, Series No 8, 187
Kreindler, RH, ‘International arbitration and the US courts: recent developments in selected areas relevant to foreign parties’ (1998) 7 The Arbitration and Dispute Resolution Journal 199
Lew, J (Dr) ‘Improved enforcement of awards & settlements’, in Tackaberry, J (QC) (ed), International Commercial Arbitration For Today & Tomorrow, 1991, Euro Conferences Ltd, London: Printflow 89 Ltd, 179
Meier, CF, ‘Provisional judicial remedies in arbitration: the United States position’, in Shenton, DW and Kuhn, W (eds), Interim Court Remedies in Support of Arbitration: A Country by Country Analysis Based on Papers Presented by the Section on Business Law’s Committee on Procedure for Settling Disputes at the SBL Toronto Conference 1983, and Revised and Updated for This Publication, 1987, London: International Bar Association, 31
Newman, LW and Nelson, N, ‘Interim measures of protection’, in McClendon, SJ and Everard Goodman, RE (eds), International Commercial Arbitration in New York, 1986, New York: The World Arbitration Institute, 99
Parodi, PG, ‘Interim measures in respect to arbitration in the construction business’, in van den Berg, AJ, ‘I Preventing Delay and Disruption of Arbitration; II Effective Proceedings in Construction Cases’, International Council for Commercial Arbitration Congress, Series No 5, 1991, The Hague: Kluwer Law International, 485
Redfern, A, ‘Arbitration and the courts: interim measures of protection—is the tide about to turn?’ (1995) 30 Texas International Law Journal 1
Robert, J and Carbonneau, TE, The French Law of Arbitration, 1983, Parker School of Foreign and Comparative Law, Tulane University School of Law
Schlosser, P, ‘The competence of arbitrators and of courts’ (1992) 8 Arbitration International 2
Turck, NB, ‘Court support for arbitrators & arbitration’, in Tackaberry, J (QC), (ed), International Commercial Arbitration For Today & Tomorrow, 1991, Euro Conferences Ltd, London: Printflow 89 Ltd, 141
van den Berg, AJ, ‘Recent enforcement problems under the New York and ICSID conventions’ (1989) 5 Arbitration International 1 at 2
[1] Kate Brown graduated from law with a University Medal and first class honours from the University of Queensland in 2002. She represented the University of Queensland in Vienna at the Willem C. Vis International Commercial Arbitration Moot Competition in 2001 is currently a law graduate at Allens Arther Robinson, Sydney in their Litigation and Dispute Resolution Department. Her interest in international commercial arbitration prompted her to accept an internship at the International Chamber of Commerce Court of Arbitration from November to December 2002. This paper was the winning entry into the 2001–02 Allens Arthur Robinson Dispute Resolution Essay Competition run by the TC Beirne School of Law Moot Court Bench, University of Queensland.
[2] Burrows and Newman (1982); Newman and Nelson (1986), p 99.
[3] Hoellering (1984).
[4] Van den Berg (1989), p 16.
[5] Parodi (1991), p 486.
[6] Buchman (1994), p 257. This issue is not, however, within the scope of this paper.
[7] Meier (1987), p 34.
[8] Buchman (1994), p 257.
[9] Shenton (1987), p 34,
[10] Buchman (1994), p 257.
[11] Buchman (1994), p 257.
[12] Kreindler (1998), p 209. See also Parodi (1991), p 486.
[13] See Borris (1995), pp 102–03.
[14] In the continental legal tradition courts derive their powers from enacted legal rules. Hence it seems that the issue of how courts should deal with arbitration must be approached separately for any given legal system.’ Schlosser (1992), p 189.
[15] Lew (1991), p 179.
[16] An exception exists in the case of maritime arbitration. See Section 8 of the Federal Arbitration Act. See also Kreindler (1998), p 211.
[17] Moses H Cone Memorial Hospital v Mercury Construction Corp 460 US 1 (1983). Court interference in this process is disfavoured. See McCreary Tire & Rubber Co v CEAT SpA [1974] USCA3 389; 501 F 2d 1032 (3d Cir 1974).
[2] . See Becker (1986), p 207.
[18] Newman and Nelson (1986), p 99.
[19] See NY Civ Prac Law, Art 62 (McKinney 1980).
[20] Newman and Nelson (1986), p 99.
[21] Schlosser (1992), p 191.
[22] The United States acceded to the New York Convention in 1958 and implemented the New York Convention in its municipal law in 1970 by adding a new Chapter 2 to the Federal Arbitration Act.
[23] Kaplan (1998), p 187.
[24] UN Convention, Art II(3), reprinted following 9 USCA 5201.
[25] [1974] USCA3 389; 501 F 2d 1032 (3rd Cir 1974).
[26] See Becker (1986), p 208.
[27] McCreary Tire and Rubber Co v Ceat SpA [1974] USCA3 389; 501 F 2d 1032 (3d Cir 1974) at 1038.
[28] Redfern (1995).
[29] Van den Berg (1989), pp 15–17. See also Kaplan (1998), pp 203–04. See Also Turck (1991), p 141.
[30] 451 F Supp (ND CaT 1977).
[31] Becker (1986), p 207.
[32] 57 NY 2d 408 (1982).
[33] Van den Berg (1989), p 15.
[34] Becker (1985), p 40.
[35] Becker (1985), p 40.
[36] Van den Berg (1989), pp 15–17.
[37] Kreindler (1998), p 211.
[38] See the United States Federal Arbitration Act 1925 (hereafter the Federal Arbitration Act). See also Meier (1987), p 41.
[39] Federal Arbitration Act, s 8 provides that if the basis of jurisdiction is a claim, ‘otherwise justiciable in admiralty,’ the claimant may begin his proceeding…by libel and seizure of the vessel or other property …and the court shall then have jurisdiction to direct the parties to direct the parties to proceed with the arbitration…’.
[40] Anderson (1994), p 743; Newman and Nelson (1986), p 101.
[41] Fed R Civ, p 65.
[42] See, eg, Friends for All Children, Inc, v Lockheed Aircraft Corp 746 F 2d 70 at 72 (2d Cir 1979) (the plaintiff must show that, on balance, the consideration of four factors—plaintiff’s potential irreparable injury, plaintiff’s likelihood of success on the merits, the balance of hardship between the plaintiff and the defendant, and the public interest—favours granting an injunction); Long Island RR Co v International Assn Of Machinists [1989] USCA2 335; 874 F 2d 901 at 910 (2d Cir 1989), cert denied, US; 107 LEd 831; 110 S Ct 836 (1990) (the plaintiff must show (a) irreparable harm and (b) either
(1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly in towards the party requesting the preliminary relief). In making the determination of irreparable harm, both harm to the parties and to the public may be considered; United States v Jefferson County [1984] USCA11 77; 720 F 2d 1511 at 1519 (11th Cir 1983) (the plaintiff must demonstrate (1) a substantial likelihood of success on the merits (2) that he will suffer irreparable harm unless the injunction issues (3) that the threatened injury outweighs whatever damage the injunction will cause the other party and (4) that the injunction will not be contrary to the public interest). See Anderson (1994), p 749.
[43] In general, a preliminary injunction may be obtained from a Federal Court where: (1) plaintiff will stiffer immediate and irreparable harm; (2) plaintiff is likely to prevail at trial; (3) the balance of hardships is in plaintiff’s favour; and (4) the public interest will be served by the grant of the requested injunction. See, eg, Washington Metro Area Transit Comm’n v Holiday Tours, Inc [1977] USCADC 265; 559 F 2d 841 (DC Cir 1977); Friends for All Children, Inc v Lockheed Aircraft Corp 746 F 2d 70 at 72 (2d Cir 1979); Long Island RR Co v International Assn of Machinists [1989] USCA2 335; 874 F 2d 901 at 910 (2d Cir 1989), cert denied, US; 107 LEd 831; 110 S Ct 836(1990); United States v Jefferson County [1984] USCA11 77; 720 F 2d 1511 at 1519 (11th Cir 1983); Sauer-Getribe KG v White Hydraulics, Inc [1983] USCA7 695; 715 F 2d 348 at 351– 52 (7th Cir 1983).
[44] Teradyne, Inc v Mostek Corp [1986] USCA1 346; 797 F 2d 43 at 51 (1st Cir 1986).
[45] Roso-U.no Beverage Distrib, Inc v Coca-Cola Bottling Co of New York [1984] USCA2 1041; 749 F 2d 124 at 125 (2d Cir 1984).
[46] Ortho Pharmaceutical Corp v Amgen, Inc [1989] USCA3 1003; 882 F 2d 806 at 811–13 (3d Cir 1989).
[47] Sauer-Getribe KG v White Hydraulics, Inc [1983] USCA7 695; 715 F 2d 348 at 351–52 (7th Cir 1983).
[48] Ferry-Morse Seed Co v Food Corn, Inc [1984] USCA8 252; 729 F 2d 589 at 592 (8th Cir 1984).
[49] PMS Distributing Co v Huber & Suhner, AG [1988] USCA9 833; 854 F 2d 355 at 356–58 (9th Cir 1988).
[50] RGI, Inc v Tucker & Assoc, Inc [1988] USCA5 1479; 858 F 2d 227 at 230 (5th Cir 1988).
[51] Merrill Lynch, Pierce, Fenner & Smith, Inc v Dutton [1988] USCA10 89; 844 F 2d 726 at 728 (10th Cir 1988).
[52] Merrill Lynch, Pierce, Fenner & Smith, Inc v Bradley [1985] USCA4 433; 756 F 2d 1048 at 1053–54 (4th Cir 1985).
[53] Merrill Lynch, Pierce, Fenner & Smith, Inc v Bradley [1985] USCA4 433; 756 F 2d 1048 at 1053–54 (4th Cir 1985).
[54] Newman and Nelson (1986), p 102.
[55] Newman and Nelson (1986), p 103.
[56] J Brooks Securities, Inc v Vanderbilt Securities, Inc, 484 NYS 2d 472 at 474 (Sup Ct NY Co 1985). See also Shay v 746 Broadway Corp 409 NYS 2d 69 (Sup Ct NY Co 1978).
[57] 598 F Supp 754 (SDNY 1984). See Meier (1987), p 46.
[58] Fed R Civ, p 64. states: ‘At the commencement of and during the course of an action, all remedies providing for seizures of person or property for the purposes of securing satisfaction of the judgement ultimately to be entered in the action are available in the circumstances and in the manner provided by the law of the state in which the district court is held, existing at the time the remedy is sought, subject to the following qualifications: (1) any existing statute of the United States governs the extent to which it is applicable; (2) the action in which any of the foregoing remedies is used shall be commenced and prosecuted or, if removed from a state court, shall be prosecuted after removal, pursuant to these rules. The remedies thus available include arrest, attachment, garnishment, replevin, sequestration and other corresponding or equivalent remedies, however designated and regardless of whether by state procedure the remedy is ancillary to the action or must be obtained by an independent action.’
59 New York’s Civ Prac L & R, s 6201 allows an order of attachment where: (1) the defendant is a non-domiciliary residing ouside the state, or is a foreign corporation not qualified to do business in the state (this includes corporations registered in other states of the United States); or (2) the defendant resides or is domiciled in the state and cannot be personally served despite diligent efforts to do so; or (3) the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgement that might be rendered in the plaintiff’s favour, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts: or (4) the cause of action is based on a judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, or on a judgment which qualifies for recognition under the provisions of article 53. The attachment or injunction will be awarded to ensure that the arbitration award will not be rendered ineffectual by sinister manoeuvres on the part of the respondent. See NY Civ Prac Law 57205, 1985 Supplementary Practice Commentary (McKinney 1986 Supp). The plaintiff must also usually show that they have a likelihood of success on the merits of the claim. (NY Civ Prac Law 56201 (McKinney 1980).) See Meier (1987), p 46. In Georgia, attachments may issue when the debtor: (1) Resides outside of the state; (2) Moves or is about to move his domicile outside the limits of the county; (3) Absconds; (4) Conceals himself;
(5) Resists legal arrest: or (6) Is causing his property to be removed beyond the limits of the state (Ga Code section 18–3–1).
Illinois law provides several additional grounds for attachment. Section 4–101 provides: ‘In any court having competent jurisdiction, a creditor having a money claim, whether liquidated or unliquidated, and whether sounding in contract or in tort, may have an attachment against the property of his or her debtor, or that of one or more of several debtors, either at the time of commencement of the action or thereafter, when the claim exceeds $20, in any one of the following cases: (1) Where the debtor is not a resident of this State; (2) When the debtor conceals himself or herself or stands in defiance of an officer, so that process cannot be served upon him or her; (3) Where the debtor has departed from this State with the intention of having his or her effects removed from this State; (4) Where the debtor is about to depart from this State with the intention of having his or her effects removed from this State;
(5) Where the debtor is about to remove his or her property from this State to the injury of such creditor;
(6) Where the debtor has, within two years preceding the filing of the affidavit, fraudulently conveyed or assigned his or her effects, or a part thereof, so as to hinder or delay his or her creditors; (7) Where the debtor has, within two years prior to the filing of such affidavit, fraudulently concealed or disposed of his or her property so as to hinder or delay his or her creditors; (8) Where the debtor is about to conceal, assign, or otherwise dispose of his or her property or effects so as to hinder or delay his or her creditors; (9) Where the debt sued for was fraudulently contracted on the part of the debtor. The statements of the debtor, his or her agent or attorney, which constitute the fraud, shall have been reduced to writing, and his or her signature attached thereto, by himself or herself, agent or attorney.’
[60] Teradyne, Inc v Mostek Corp [1986] USCA1 346; 797 F 2d 43 at 51 (1st Cir 1986).
[61] Guinness-Harp Corp v Jos Schiltz Brewing Co [1980] USCA2 66; 613 F 2d 468 at 472–73 (2d Cir 1980); Roso-Lino Beverage Distrib, Inc v Coca-Cola Bottling Co of New York [1984] USCA2 1041; 749 F 2d 124 at 125 (2d Cir 1984).
[62] Ortho Pharmaceutical Corp v Amgen, Inc [1989] USCA3 1003; 882 F 2d 806 at 811–13 (3d Cir 1989).
[63] Merrill Lynch, Pierce, Fenner & Smith, Inc v Bradley [1985] USCA4 433; 756 F 2d 1048 at 1053–54 (4th Cir 1985).
[64] RGI, Inc v Tucker & Assoc, Inc [1988] USCA5 1479; 858 F 2d 227 at 230 (5th Cir 1988).
[65] Sauer-Getribe KG v White Hydraulics, Inc [1983] USCA7 695; 715 F 2d 348 at 351–52 (7th Cir 1983).
[66] PMS Distributing Co v Huber & Suhner, AG [1988] USCA9 833; 854 F 2d 355 at 356–58 (9th Cir 1988).
[67] Merrill Lynch, Pierce, Fenner & Smith, Inc v Dutton [1988] USCA10 89; 844 F 2d 726 at 728 (10th Cir 1988).
[68] Ferry-Morse Seed Co v Food Corn, Inc [1984] USCA8 252; 729 F 2d 589, at 592 (8th Cir 1984).
[69] Merrill Lynch, Pierce, Fenner & Smith, Inc v Hovey [1984] USCA8 82; 726 F 2d 1286 at 1292 (8th Cir 1984).
[70] See Cal Code Civ Proc, ss 1297.91–95; Florida International Arbitration Act 1986, ss 684.16, 684.23.
[71] Drexel Burnham Lambert Inc. v Ruesbsamen, 139 AD 2d 323, at 531 NYS 2d 547 at 550–52 (1 st Dept. 1988) (provisional remedies are inconsistent with the New York Convention); Cooper v Ateliers de la Motobecane SA 57 NY 2d 408, at 415–16, 456 NYS 2d 728, at 731–32, 442 NE2d 1239 (1982); Merrill Lynch, Pierce, Fenner & Smith, Inc v McCollum 666 SW 2d 604 at 608– 09 (Tex. App, 14th Dist, 1984) (Federal Arbitration Act requires the Court to refer parties to arbitration and prohibits provisional remedies by the Court), cert denied 467 US 1127 (1985); Job Industries, Inc v Silex SpA 601 F Supp 971 (SDNY 1985) (the court cited Cooper as authority for the proposition that ‘[g]enerally, with the exception of maritime cases, provisional remedies such as attachments or compulsory bonds are not available in arbitration.’). Contrast Hull Municipal Lighting Plant v Massachusetts Municipal Wholesales Elec Co 399 Mass. 640, 560 NE 2d 140 (1987) (an injunction does not interfere with arbitration); Loeb and Loeb v Beverly Glen Music, Inc 166 Cal App 3d 1110 at 1117–18; 212 Ca Rptr 830 at 834–35 (2d Dist 1985) (an attachment ordered by court does not interfere with arbitration); Lease Plan Fleet Corp v Johnson Transp, Inc 76 Misc 2d 822; 324 NY S. d 928 (1971) (an arbitration clause does not preclude replevin); Schwartz v Leibel 249 Cal App 2d 761; 57 Cal Rptr 831 at 833 (2d Dist 1967) (seeking provisional remedy from court is not inconsistent with an arbitration agreement).
[72] ABA Committee on State International Arbitration Statutes Report, March 30, 1990.
[73] Merrill Lynch, Pierce, Fenner & Smith, Inc v McCollum [1985] USSC 37; 469 US 1127 (1985). The majority of justices disagreed and the issue remains unsolved.
[74] Van den Berg (1989), pp 15–17.
[75] ‘Such an amendment would remove that perceived compulsion by providing that “nothing in the Convention…shall affect the power of a district court of the United States or of a State court to grant the provisional remedies of attachment, preliminary injunction, or other provisional remedies, however designated, under the circumstances and in the manner provided by law’”: Meier: (1987), p 43.
[76] See Buchman (1994), p 254.
[77] The International Court of Arbitration of the International Chamber of Commerce; The Chambre Arbitrale de Paris, sponsored by the Paris Chamber of Commerce—deals predominantly with commodities arbitration; The Association Française d’Arbitrage, sponsored by the Paris Bar; The Chambre Arbitrale des Cafés et Poivres du Havre and thé Chambre Arbitrale de l’Association Française du Commerce des Cacaos, respectively sponsored by the French Coffee and Cocoa Trade Associations; The Chambre Arbitrale Maritime de Paris (Chamber of Maritime Arbitration of Paris)—dealing with maritime arbitration; The Association Cinétographique Professionelle de Conciliation et d’Arbitrage (ACPCA)—dealing with motion picture arbitration; The Comité d’Arbitrage des Travaux Publics—dealing with construction arbitration; The Chambre Arbitrale Interprofessionelle, sponsored by the employers union (CNPF); The Association pour le Règlement des Conflits par l’Arbitrage et la Mediation (ARCAM); The Centre d’Arbitrage pour les Enterprises.
[78] Buchman (1994), p 254.
[79] New Civil Procedure Code (NCPC), Art 1476.
[80] Robert and Carbonneau (1983), para 2.05. See in particular Articles 1444, 1454, 1456, 1457 and 1463 of the NCPC, which provide, for example, for court intervention to assist in the appointment or replacement of arbitrators, or the imposition or extension of a deadline for the rendering of an award.
[81] Parodi (1991), p 489.
[82] NCPC, Art 489.
[83] Parodi (1991), p 489.
[84] Buchman (1994), pp 255–56.
[85] See Buchman (1994), p 258.
[86] The Eurodif decision of the Cour de Cassation (20 March 1989). See Kreindler (1998), p 211.
[87] See Buchman (1994), p 258. See also Buhart in Shenton and Kuhn (1987), p 164.
[88] Buchman (1994), p 262.
[89] Cour de Cassation, 1st Civil Chambers, of 4 November 1987’ Bulletin Civil I at 204. Buchman (1994), p 263.
[90] Buchman (1994), p 263.
[91] Cassation, 21 June 1904, Dalloz 1906 at 395; July 3, 1951 Dalloz 1951 at 701. Where a case of urgency is duly established, existence of an arbitration clause may not prevent a judge en référé from exercising his powers of jurisdiction,’ (Cassation, 7 June 1979 [1980] Rev Arb 78); Cassation, 3rd Civil Chambers, 7 June 1979 and 9 July 1979 [1980] Rev Art 78 and 1st Civil Chambers, 20 March 1989, Bulletin Civil I at 84.
[92] Cassation, 9 December 1976, Dalloz, IR at 139. See Buhart in Shenton and Kuhn, (1987), p 163.
[93] The right of a party to an arbitration to have recourse to the juge des référés for an action within his jurisdiction has never been challenged. See Cassation (Com) Judgment of March 24, 1954 [1955] Rev Arb 95; Cassation (Com) Judgment of 14 November 1959, 1 GAZ PAL 191 (1960); Cassation (Civ), Judgment of 9 June 1979, [1980] Rev Arb 78 (Courteault, Note). See also Robert and Carbonneau (1983), para 2.05. See also Parodi (1991), p 489.
[94] Buchman gives as an example the situation where the claimant seeks an order of partial payment of the monies principally claimed in the dispute. See Buchman, (1994), p 262.
[95] Cassation, 2nd Civil Chambers of 18 June 1986 [1986] Rev Arb 565.
[96] Schlosser (1992), p 198.
[97] Cour d’Appel de Paris, 14th Chambers B, 1 July 1988 [1989] Rev Arb 113. See Buchman (1994), p 259.
[98] Cour de Premier Instance de Paris [1987] Rev Arb 373 375. See also Schlosser (1992), p 198.
[99] Buhart (1987), p 163.
[100] Parodi (1991), p 489.
[101] Cour d’Appel de Paris, 8 October 1964, Journal du Droit International 1965 at 901.
[102] Cassation, 22 March 1965.
[103] Tribunal Instance d’Ivry sur Seine, 28 March 1983 and April 1983.
[104] Tribunal Instance d’Ivry sur Seine, 28 March 1983 and April 1983.
[105] Cassation, 28 March 1962, Bulletin Civil 1962, IV at 247, Revue critique de droit international privé, 1963, p 844. This is the case even where a French national is involved.
[106] Cassation, 12 May 1931, Journal du Droit International, 1932 at 387; 27 May 1970, Bulletin Civil I, No 176.
[107] Buchman (1994), p 256.
[106] Cassation, 12 May 1931, Journal du Droit International, 1932 at 387; 27 May 1970, Bulletin Civil I, No 176.
[108] See Buchman (1994), p 256.
[109] Buchman (1994), p 261.
[110] Buchman (1994), p 260.
[111] NCPC, Art 50, para l.
[112] Buhart in Shenton and Kuhn (1987), p 174.
[113] Buchman (1994), p 261.
[114] 3 July 1979, JCP 1980 11 19389.
[115] Cassation, 9 July 1979 [1980] Rev Arb 78.
[116] Cassation. Commercial Chambers, of 20 January 1981, Bulletin Civil IV at 30; and in Gazette du Palais 1981. 1. 332.
[117] Cassation, in its judgment of 14 March 1984 [1985] Rev Arb 69.
[118] Article 48 of the Code of Civil Procedure (no longer in force since it was cancelled by the Law of July 9, 1991).
[119] Buchman (1994), p 261.
[120] Cour d’Appel de Dijon, 21 December 1959, JCP 1960 11 11670. In case of a ‘saisie-arrêt’ the debt must be certain. But for a ‘saisie conservatoire’ the only requirement is that the debt is prima facie founded in law. See Buhart in Shenton and Kuhn (1987), p 173.
[121] La coopération du président du Tribunal de Grande Instance à l’arbitrage [1985] Rev Arb 5.
[122] Article 48 of the Code of Civil Procedure (no longer in force since it was cancelled by the Law of July 9,1991).
[123] Cassation, 30 April 1982, Bulletin Civil IV at 132.
[124] Cassation, 22 May 1979, Bulletin Civil IV at 171.
[125] Cassation, 2nd Civil Chambers, 13 February 1980, in Bulletin Civil 11 at 24.
[126] Buchman (1994), p 261.
[127] Buchman (1994), p 266.
[128] Buchman (1994), p 261.
[129] Buchman (1994), p 262.
[130] Buchman (1994), p 262.
[131] Buchman (1994), p 262.
[132] Buchman (1994), p 263.
[133] Cassation, 20 December 1982, Bulletin Civil III at 195 No 260.
[134] Buhart in Shenton and Kuhn (1987), p 170.
[135] Cassation, Commercial Chambers, 3 July 1951, Dalloz, 1951 at 701: and Commercial Chambers, 4 November 1959, in Gazette du Palais 1930. 1. 191.
[136] Kreindler (1998), p 211.
[137] Hulbert (1993), p 103.
[138] ‘The advisability and availability of provisional remedies in the arbitration process’ (1984) 39 The Record 625 at 633.
[139] Van den Berg (1989), pp 15–17.
[140] Schlosser (1992), p 190.
[141] Buhart in Shenton and Kuhn (1987), p 175.
[142] In fact, the UNCITRAL Model Law was drafted specifically with a view to promoting uniformity in domestic law on international commercial arbitration.
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