229 / 522
proceeding to obtain such measures. The Emergency Arbitrator Rules
that are adopted by the 2012 ICC Rules of Arbitration are an example
for such fast-track proceedings.
In most cases, the parties will most likely follow arbitrators’ orders
as they relate to interim measures, since the arbitrators may look upon
the parties unfavorably if they were not to do so, during the course of
the ongoing proceedings. On the other hand, there may be cases in
which the non-complying party may disburse the assets, or may aggra-
vate the dispute, in order to place a heavier burden on the other party,
or may render the arbitration proceedings ineffectual. In such cases,
the enforceability becomes necessary for effective protection of rights
1
.
Enforcement pursuant to New York Convention
The decisions made by arbitrators that order interim or conserva-
tory measures may be subject to enforcement requests pursuant to the
NewYork Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (“New York Convention”). At this point, it should be
emphasized that the text of the NewYork Convention does not address
the issue of its application to interim and conservatory measures that
are ordered by arbitrators, and it is reported that the interim measures,
even in the form of awards, are not usually enforceable under the New
York Convention
2
.
The New York Convention, under Article 5/1/e, sets forth that the
request for recognition or enforcement of the award may be refused if
the award is not binding on the parties. The fact that the interim or con-
servatory measures ordered by arbitrators may be amended or rescind-
ed by the arbitrators
3
may pose an obstacle for enforcement under the
New York Convention.
ARBITRATION LAW
213
1
Ali Yeşilırmak
, Provisional Measures in International Commercial Arbitration (Dissertation
submitted to Queen Mary College, University of London, for the degree of doctor of philoso-
phy), London 2003, p. 314 (“
Yeşilırmak
”).
2
Jason Fry, Simon Greenberg, Francesca Mazza
, The Secretariat’s Guide to ICC Arbitration,
ICC Publication 729 (Paris 2012), p. 291 (“
Secretariat’s Guide
”).
3
For instance, pursuant to Art. 29/3 of the ICC Arbitration Rules, the Arbitral Tribunal may mod-
ify, terminate or annul the order or any modification thereto made by the emergency arbitrator.
Additionally, pursuant to Art. 6/8 of Appendix V of ICC Arbitration Rules, upon a reasoned
request by a party made prior to the transmission of the file to the arbitral tribunal, pursuant to
Art.16 of the Rules, the emergency arbitrator may modify, terminate or annul the Order.