230 / 522
However, it should also be emphasized that the enforceability
under New York Convention is controversial, both amongst commen-
tators, as well as amongst state courts. For instance, there is a “prag-
matic approach” taken by some courts in the United States, based on
the fact that these measures are severable from the merits, and require
affirmative action, and they would become a moot exercise of the arbi-
trators’ powers, if they were not enforced
4
.
On the other hand, the qualification of the measures ordered by
arbitrators may not be “an award,” but “an order”; however, the quali-
fication of the measure ordered should not be determinative of its
enforceability, and state courts are not bound by this characterization
5
.
Lack of Multilateral Treaties
It should be emphasized that there is no multilateral treaty that
specifically regulates the enforcement of arbitrator-granted interim and
conservatory measures. This means that the matter would be governed
by bilateral treaties, if any, as well as national laws regulating the
enforcement of such measures.
It is reported that there are bilateral treaties which permit the
enforcement of provisional measures
6
.
Possibility of Enforcement pursuant to National Laws
National laws of some states regulate court intervention for the
enforcement of interim and conservatory measures ordered by arbitra-
tors, when the seat of arbitration is within these states
7
. This interven-
tion may be in the form of direct enforcement, or some executory assis-
tance from the national courts. On the other hand, enforcement may be
necessary outside of the seat of arbitration, as well. Considering the
fact that the seats of arbitration are chosen from amongst the venues
that are neutral to both parties, the decision will require enforcement
outside the seat of the arbitration.
214
NEWSLETTER 2015
4
Yeşilırmak,
p. 335, 338.
5
Secretariat’s Guide
, p. 291.
6
It is reported that the arbitral provisional measures are made enforceable through an annex to a
tripartite treaty between Azerbaijan, Georgia and Turkey. Please see
Yeşilırmak
, p. 331.
7
For detailed information about these states, please see
Yeşilırmak
, p. 317-330.