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Conservatory and Provisional Measures in International Arbitration : The Role of State Courts

Author: Guy ROBIN

Type: Article

ref: 32008319-364

N0:3 of 2008

Pages: 319-364

In international arbitration, the arbitrator can order conservatory and provisional measures thus in concurrent jurisdiction with State Courts which are competent as well. The existence of an arbitration clause does not keep the parties from resorting to the State Court especially in urgent cases or in case the arbitral tribunal either is not constituted or cannot act efficiently.

On the contrary, in matter of enforcement of conservatory and provisional measures, the Courts have exclusive jurisdiction as they possess imperium by which they can constraint the reluctant party to apply the measure ordered by the arbitral tribunal.
Provisional and conservatory measures are various and have the purpose to preserve a situation in order to make possible the investigation on the merits of the award and later on the enforcement of the award.
Measures are generally taken by the Court of the place where such measures shall be carried out or implemented as in the case of attachments. Now, there is a real cooperation between arbitrators and Courts the latter acting as in assistance to arbitration.