RIVISTA DELL'ARBITRATO ISSN 1122-0147

Anno XXIX Fasc. 1 - 2019

Valentina Capasso

ABOUT THE RELATIONSHIP

BETWEEN DISPUTE BOARD
AND EMERGENCY ARBITRATOR

Estratto
About the relationship between Dispute Board and
Emergency Arbitrator

VALENTINA CAPASSO

1. Introduction. — Together with the implementation of FIDIC forms

of contract, the use of Dispute Boards (DBs) in construction contracts is
spreading all over the world. When they work — as they usually do (1) — they
fulfil a role of dispute avoidance, thus allowing parties to settle their contrasts
even before they crystallize in a dispute.
Yet, this is not always the case: the Board may therefore be asked to issue
a formal recommendation or decision (depending on the DB model (2)), but,
since the outcome — whatever called — is not deemed to be an award, it
cannot be enforced as if it was. It has already been suggested that this kind of
problems, which obviously arise from the contractual nature of the DBs, may
contractually be fixed. More specifically, it seems possible for the parties to
give DB members — once failed their primary purpose of dispute avoidance
— the power to decide any dispute as arbitrators, because their familiarity
with the project and the matters at stake would allow them to settle the
dispute in a timely and cost-effective manner, with a plainly enforceable
decision (3).
By contrast, according to the wording of FIDIC contracts — the most
used standard forms in the field —, failing voluntary compliance, the winning
party has to start arbitral proceedings in order to have the dispute adjudicated
again, while trying — in the meanwhile — to have the decision provisionally

(1) According to the DRB Foundation database — available at http://www.drb.org/

publications-data/drb-database —, from 2001 to 2017, 2627 dispute were settled by the Boards
over 3249 heard (i.e. 85% of the total).
(2) This paper relates specifically to FIDIC DAABs, whose decisions are immediately
binding, but the DB’s outcome regime is not always the same. Generally speaking, when it is
called « decision », it is immediately binding, while a « recommendation » would become
binding only if not followed by a Notice of Dissatisfaction (NOD) in the prescribed delay. The
failure to issue a NOD with reference to a decision, by contrast, makes it (also) final.
(3) See CAPASSO V., Dispute Boards: what if they were multi-tiered arbitration?, in Riv. dir.
int. priv. proc., 2018, 712 ff.

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enforced by means of an interim award (4). But, apart from the fact that the
enforceability of these measures, in turn, is still controversial, it is well known
that setting up an arbitral tribunal may take a long time.
It is also common ground that, in order to face this problem in ordinary
international commercial arbitration, arbitral institutions have progressively
introduced some forms of emergency arbitrator (5).
The question thus arises as to whether the party wishing to enforce a DB
decision may refer the dispute to this « new player in the field » (6).

2. The FIDIC Red Book provisions. — If it can never be stressed

enough that the real purpose of (every kind of) DBs is dispute avoidance, it
seems possible to argue that, when asked to issue a decision, Board members
are not (supposed to be) arbitrators only because parties so stated: in fact,
Sub-Clause 21.4.3, according to which « [t]he DAAB proceeding shall not be
deemed to be an arbitration and the DAAB shall not act as arbitrator(s) »,
while seemingly addressing the nature of the proceedings and of the panellists,
cannot conceal the fact that the first are conducted as arbitral proceedings and
that the powers enjoyed by the latter are moulded on those of arbitrators (and
the extremely longer and more detailed rules dedicated to it in the new FIDIC
suite of contract make this self-evident).
In other words, the proviso seems nothing but a means to exclude that the
proceedings outcome could be treated as an award (i.e. that it could be
enforced as a State Court judgement). This conceptual mixture, after all, is the
natural consequence of the (almost worldwide spread) unitary conception of
arbitration, which leads to identify a bijective relationship between arbitration
and award, so that, failing one of the elements, the other one is ruled out as
well. Such a reasoning appears to be only implied in the Sub-Clause 21.4.3,
which is in any case clear enough to avoid any interpretive problems when it
comes to its practical application.
But, as it will be shown, the above-mentioned view could lead to the
paradoxical consequence to exclude the arbitral nature of the decision-maker
because of the unenforceability of its decision.

(4) See GOULD N., Enforcing A Dispute Board’s Decision: Issues And Considerations, in
Int. Construction L. Rev., 2012, 442 ff.; CHERN C., Chern On Dispute Boards. Practice and
Procedure3, New York, 2015, 407 ff.; CALABRESI C., Il Dispute Board nei contratti internazionali
d’appalto, in Dir. comm. int., 2009, 753 ff.
(5) Among others, by the International Chamber of Commerce, the London Court of
International Arbitration, the American Arbitration Association, the Chartered Institute of
Arbitrators, the French Association for Arbitration, the Hong Kong International Arbitration
Centre, the Swiss Chambers Arbitration Institution and the World Intellectual Property
Organization. For a larger list, see GIARETTA B., The practice of emergency arbitration, in Belgian
Rev. Arb., 2017, 84, note 2.
(6) PARAGUACUTO-MAHEO D. - LECUYER-THIEFFRY C., Emergency Arbitrator: A New
Player In The Field - The French Perspective, in Fordham International Law Journal, 2017, 749
ff.

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 From this point of view, the Italian distinction between arbitrato rituale
and irrituale seems to be preferred to the extent that it distinguishes the
private judge qualification from the legal regime of its decision. In this sense,
Sub-Clause 21.4.3 evidently reminds the domestic reader of the incipit of
article 808-ter, c.p.c., which states that « [t]he parties may, by express provision
in writing, establish that, by way of derogation from the provisions of Article
824-bis, the dispute is defined by the arbitrators by means of contractual
determination » (7).
In fact, once it is acknowledged that the « quid proprium of arbitration »
is that the third-party neutral is asked to « judge and decide the dispute » (8),
so that the real difference between arbitrato rituale and arbitrato irrituale lies
on the parties choice with reference to the enforceability (9) of the award, it
may be argued that a DAAB decision, just like an Italian lodo irrituale, has a
contractual nature; and, as any contract, it is exposed to the risk of infringe-
ment.
It is true that the lack of finality of DAAB outcome, unless accepted by
the parties — whether expressly or impliedly —, brings the consequence that
the underlying dispute could be re-heard afresh by the arbitral tribunal (albeit,
even in this case, arbitration is deemed to be an extrema ratio: indeed, after the
issue of a NOD under Sub-Clause 21.4.4, Sub-Clause 21.5 compels parties to
an amicable settlement attempt); but, apart from this, the DAAB decision
originates an additional and distinct cause of action for breach of contract.
As provided Sub-Clause 21.7, indeed, « [i]n the event that a Party fails to
comply with any decision of the DAAB, whether binding or final and binding,
then the other Party may, without prejudice to any other rights it may have,
refer the failure itself directly to arbitration under Sub-Clause 21.6 [Arbitra-
tion] in which case Sub-Clause 21.4 [Obtaining DAAB’s Decision] and
Sub-Clause [Amicable Settlement] shall not apply to this reference. The
arbitral tribunal (constituted under Sub-Clause 21.6 [Arbitration]) shall have
the power, by way of summary or other expedited procedure, to order,
whether by interim or provisional measure or an award (as may be appropriate
under applicable law or otherwise), the enforcement of the decision ».
It is apparent that, in this case, any attempt to deal with the issue in an
amicable manner is discarded: by issuing its decision, the Board has exhausted
its function — not once for all, since it will stand thorough the duration of the
works, but — with reference to that particular dispute, since the losing party
behaviour demonstrates that there will be no alternatives to the hard way. As
a consequence, the winning party may both start separate arbitration or ask
the same arbitral tribunal (in hypothesis, already) in charge of the main

(7) Free translation.

(8) PUNZI C., Disegno sistematico dell’arbitrato2, I, Padova, 2012, 217. Free translation.
(9) Ibid., 242 ff.

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dispute to settle the breach of contract too (as it happened in the Persero
case (10)); in any case, even with an interim award.
So, why not refer the dispute to an Emergency Arbitrator (EA)?

3. The ICC Emergency Arbitrator. — The problem is that, according to

Sub-Clause 21.6(a) FIDIC Red Book, « the Dispute shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce ».
This latter, as well known, since 2012 provides for EA, assisted by an opt-out
mechanism. The only exceptions are listed by article 29(6) ICC Arbitration
Rules, which states that « [t]he Emergency Arbitrator Provisions shall not
apply if:
a) the arbitration agreement under the Rules was concluded before
the date on which the Rules came into force;
b) the parties have agreed to opt out of the Emergency Arbitrator
Provisions; or
c) the parties have agreed to another pre-arbitral procedure that
provides for the granting of conservatory, interim or similar measures ».
While the first two exceptions are easy both to understand and to verify,
the third one gave rise to perplexities since the beginning, because « under
Article 1(5) EAR, the President of the Court will be required to evaluate
whether the requirement of Article 29(6)(c) is fulfilled for each specific
contract and it might not always be clear whether or not the parties have
agreed to a pre-arbitral procedure that provides for the granting of “conser-
vatory, interim or similar measures” » (11).
Now, it is understood that « [t]he underlying rationale of this exclusionary
rule is that, where the parties have agreed to some other kind of pre-arbitral
provisional relief mechanism, they do not want the EAP to apply in addition
thereto. It is therefore thought that implicitly the parties have opted-out the
EAP » (12). What is striking, however, is that the proviso has been adopted in
order to meet the needs of « [t]he representatives of users of the FIDIC
contracts », who « were concerned that these new provisions could undermine
the possibilities for interim and conservatory relief provided for in the FIDIC
contracts in cases of ICC arbitration » (13).
In fact, if the purpose to avoid parties application for EA before the
referral to the DAAB may be theoretically understandable, the wording of
article 29(6)(c) seems to prevent them to start EA proceedings even when the

(10) PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia)
[2014] SGHC 146, confirmed by the Court of Appeal: PT Perusahaan Gas Negara (Persero)
TBK v CRW Joint Operation (Indonesia) [2015] SGCA 30.
(11) VOSER N., Overview of the Most Important Changes in the Revised ICC Arbitration
Rules, in ASA Bull., 2011, 814.
(12) WEBSTER T.H. - BUHLER M., Handbook of ICC Arbitration: Commentary, Precedents,
Materials, 3rd Ed., London, 2014, § 29-142.
(13) VOSER N., supra note 11, 814.

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Board has already issued its decision, but this latter has not been complied
with. Indeed, according to Webster and Buhler, « [f]or the President to
exclude the application of the EAP, it would seem necessary that a DAB (14)
is already in place when an Application is filed under art.29. It is not
infrequent, that parties agree in their construction contracts upon standing
DABs, but then fail to appoint them. In such cases, it would not seem
appropriate to imply that the mere reference in the contract to a DAB is
meant to be an exclusion of the EAP under the 2012 » (15). In other words, the
only way for parties agreeing on a FIDIC form of contract to keep the chance
to start EA proceedings would be to repeal all the Sub-Clauses providing for
the DAAB (16), whether at the time of signing the contract or, later, by means
of their subsequent conduct (17).
This reasoning — albeit, after all, consistent with Sub-Clause 21.8, which
allows parties to refer disputes directly to arbitration when « there is no
DAAB in place » — seems likely to be tempered.
First of all, if it is the mere existence of a Board that bars the access to EA,
the same solution should be envisaged when the DAAB appointment has
expired (given that such an hypothesis is expressly equated to the failure to
appoint the panel by Sub-Clause 21.8). Hence, the Board decisions would
became enforceable by means of EA orders in every case of DAAB termi-
nation, as listed by Sub-Clause 21.1.
Secondly, the aforementioned Sub-Clause 21.7 shows that the authors of
FIDIC forms of contract were aware of the limitations brought by the choice
of excluding the arbitral nature (or just the name? (18)) of DAAB members
and proceedings. It could thus be argued that it is not (forms authors’ and)
parties’ intent, when choosing to establish a DAAB, to exclude EA as a means
to obtain the enforcement of a DAAB decision.
Thirdly, it is questionable that DAAB (when it fulfils its secondary role
of decision-maker) and EA are both intended to give their users the same
utility: if they can equally be defined as « pre-arbitral provisional [in the
meaning of interim] relief mechanism[s] », the urgency requirement seems to
only belong to the second. Indeed, even though in construction matters the
need for speed is implied (as it is demonstrated by the comparison between
the older FIDIC forms of contracts and the new ones, in which almost all

(14) The reference is to the previous name used by FIDIC contracts (Dispute Adjudi-
cation Board): the new edition, released at the end of 2017, renamed it Dispute Avoidance/
Adjudication Board, in order to stress its main role.
(15) WEBSTER T.H. - BUHLER M., supra note 12, § 29-148.
(16) Or, in alternative, to modify the reference to ICC Rules, in favour of a less restrictive
regulation.
(17) Sub-Clause 21.2 allows each party to react to the other party failure to cooperate by
asking « the appointing entity or official named in the Contract Data » to appoint the sole or the
remaining member(s). It could thus be inferred that, if the (supposed) diligent party fails to do
so, it impliedly will waive its right to have a DAAB in place.
(18) See retro, paragraph 2.

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delays have been halved), given the disruptive effect of any « ‘pay up or we’ll
stop work’ scenario » (19), the Board has always had and still have 84 days to
issue its decision.
At first sight, a similar length, coupled with the fact that Board members
are already fully informed of the developments of the project, seems odd,
especially if compared with the UK adjudicator (20), which, having never
known the parties and their project, has to reach its decision within 28
days (21). Yet, the proviso seems consistent with DBs philosophy: the DAAB
decision is expected to insert itself in a long-standing contractual relationship,
during which the (same) Board will be in place. The personal authority of its
members and their ability to persuade the parties to comply with the decision
are thus primordial for the mechanism’s success; and this, in turn, makes it
understandable that the verdict should not only be, but also appear to be
thoughtfully made. A smash-and-grab decision such as the one issued by the
EA would not fit with these purposes; vice versa, it is enough to enforce a
DAAB decision, since the failure to comply with it is a clue of the already
deteriorated relationship between the parties (and, maybe, between them —
or at least the losing one — and the panel).
Lastly, and more importantly, the whole problem could easily be over-
come by simply considering that, as the proceedings drawn by article 29 ICC
Arbitration Rules are nothing but a kind of arbitration and that Sub-Clause
21.6 makes clear that a referral to the DAAB is a condition precedent to
arbitration, there could never be overlap between the two mechanisms, which,
on the contrary, may perfectly follow one another.
The problem is that there is no agreement as to whether EA may be
qualified as an arbitrator.

4. The nature of the Emergency Arbitrator. — One of the reasons of such

a plurality of views lies on the differences among applicable rules.
In fact, conventional instruments and legislatures are of no help: as « [t]he
New York Convention and most national arbitration laws were drafted before
arbitral institutions started to incorporate emergency arbitrator provisions in
their rules » (22), it is almost useless to try and find any clue about its
qualification there; indeed, even when the law provides for a definition of
arbitrator, the lack of mention of the EA is not conclusive, due to the
chronological gap. So, apart from the few cases in which the Arbitration Act

(19) CHERN C., supra note 4, p. 28.

(20) Introduced by section 108 Housing Grant, Construction and Regeneration Act 1996
(HGCRA).
(21) Section 108(2)(c) HGCRA; anyway, section 108(2)(d) allows « the adjudicator to
extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute
was referred ».
(22) SANTENS A. - JUDRNA J., The State of Play of Enforcement of Emergency Arbitrator
Decisions, in Journal of Int. Arb., 2017, 9.

186
has recently been amended as to expressly include EA in the meaning of
« arbitrator » — as it is for art. 12(6) of the Singapore IAA —, any theoretical
construction may only be anchored on institutional rules.
Now, these latter regularly « use the word “arbitrator” in their emergency
arbitration nomenclature », and it has been suggested that such an adjustment
— albeit « not dispositive of the matter » — « may go a long way in persuading
courts that a decision of an emergency arbitrator is a decision of an “arbitra-
tor” » (23). This view, however, seems too optimistic: even if the Paris Court of
Appeal once (24) stated that the first EA (the pre-arbitral referee, introduced
by the ICC in 1990 (25)) is not an arbitrator because s/he is not called as such,
it seems unlikely that a similar over-formalistic approach would be adopted
worldwide.
As a consequence, the interpreter is naturally led to pay more attention
to « the relationship between the emergency arbitrator and the arbitral
tribunal » (26), as set up by institutional rules; but solutions are so diversified
that it seems impossible to draw any inference about the “real” nature of the
EA from them. For instance, according to art. 72(5) JCAA Comprehensive
Arbitration Rules 2015, « [t]he Emergency Measures shall be deemed to be
Interim Measures granted by the arbitral tribunal when it is constituted or
when a substitute arbitrator is confirmed or appointed by the JCAA », while
art. 2.8 HKIAC Administered Arbitration Rules 2018 expressly states that
« [r]eferences to the “arbitral tribunal” [...] does not include an emergency
arbitrator »; the opposite solution is retained by Rule 4(2) KLRCA Arbitra-
tion Rules 2013. These rules have to be accepted in single specific cases, to the
extent that they may be considered as the expression of parties will, but their
heterogeneity shows that the question remains unsettled, as it is apparent that
the proprium of the EA activity cannot vary depending on the applicable
rules.
ICC Rules are not as clear as the abovementioned provisions about the
EA qualification. Nevertheless, it has been stated that « [t]he Emergency
Arbitrator has all the attributes of an arbitrator and for all purposes should be
treated as such. The Emergency Arbitrator is not a mediator or settlement
facilitator, and although his mandate is similar, albeit narrower than that of a
dispute board adjudicator or of a pre-arbitral referee, he is neither an
adjudicator nor a referee, but an arbitrator with a very specific and limited
mandate. Unlike a normal arbitrator, the Emergency Arbitrator can only
provide temporary relief, but not decide the merits of the dispute » (27).

(23) Ibid., 12.

(24) App. Paris, 29 avril 2003, Société Nationale des Pétroles du Congo et République du
Congo c. Total Fina Elf E&P Congo, in this Review, 2003, 343 ff.
(25) See infra, in the main text.
(26) See GIARETTA B., supra note 3, 86-87, for more examples.
(27) WEBSTER T.H. - BUHLER M., supra note 12, § 29-22.

187
 The quoted definition can almost plainly be shared, but needs clarifica-
tions. Indeed, if any facilitative role of the EA is easy to discard, the reference
to the mandate of a DB member or a pre-arbitral referee confirms that — in
all cases — the activity carried out by the neutral third party is the same
(whatever its name or the legal regime of its verdict), even though its scope is
different: while the DAAB is a standing body that may hear any dispute
arising thorough the works, the pre-arbitral referee and the EA are one-shot
mechanisms; but only the latter is restricted to urgency. In addition, it should
be noted that the pre-arbitral referee may be seized irrespective to the fact
that the competent authority for the main dispute is a State Court or an
arbitral tribunal: to the contrary, as noted, FIDIC contracts always contain an
arbitration clause — so that DAAB is a necessary pre-condition to arbitration
— while ICC EA, being a part of the ICC Arbitration Rules, may only be
activated if parties have relied on them in their arbitration agreement.
As for the « very specific and limited mandate » of the EA, it could rise
some doubts in the view of the aforementioned traditional bijective relation-
ship between arbitrator and award: indeed, starting from the assumption that
arbitration — as an alternative to litigation — is to settle the whole dispute
once for all (i.e. with an award capable of being res judicata), a decision-maker
whose dictum cannot in iure end the dispute should not be called arbitrator.
And it should be all more true from an Italian point of view, since art. 818
c.p.c. prevent arbitrators to issue provisional measures.
Yet, it is exactly Italian doctrinal elaboration that might help to affirm the
opposite view.
The reference is to the perizia arbitrale (28), in which parties ask the third
neutral to settle a single issue (usually of fact, but not only) on which they
disagree, instead of the entire dispute. Notwithstanding the different opinion
until recently upheld by the jurisprudence (29), the more persuasive theory on
perizia arbitrale’s nature is the one claiming that it is nothing but an arbitra-
tion with a narrower object (30), since the evaluation made by the perito is not

(28) Similar, but not identical, to British valuation (appraisal in the US), French expertise-
arbitrage, German Schiedsgutachten, Dutch bindend advies and expert determination (so spread
that it cannot be said to belong to a sole Country), whose differences from arbitration are, in
turn, not so clear: see BORN G.B., International commercial arbitration2, Alphen aan den Rijn,
2014, 259 ff.; MARINELLI M., La natura dell’arbitrato irrituale. Profili comparatistici e processuali,
Torino, 2002, 38 ff.; BOVE M., La perizia arbitrale, Torino, 2001, 39 ff.
(29) Cass., Sez. III, 16 febbraio 2016, n. 2996, in Resp. civ. prev., 2016, 965.
(30) And even this distinction is likely to fade, once one considers that the arbitral
tribunal too may just be asked to decide on issues: see AULETTA F., Oggetti nuovi di arbitrato?
Prime note sopra un emergente « diritto processuale privato », in F. AULETTA - G.P. CALIFANO -
G. DELLA PIETRA - N. RASCIO (ed.) Sull’arbitrato. Studi offerti a Giovanni Verde, Napoli, 2010, 35
ff.; BOVE M., supra note 28, 177 ss.; LUISO F.P., L’oggetto del processo arbitrale, in this Review,
1996, 673 ff.

188
qualitatively, but just quantitatively different from the one made by an
arbitrator (31).
Inversing the reasoning, it can be said that the EA is a minor arbitrator
in which s/he is called to carry out an activity that is quantitatively corre-
sponding to the one made by an arbitrator (i.e. the both settle the whole
dispute put before them and are functi officio immediately thereafter), but
qualitatively different, since the syncopated rhythm of the proceedings is
deemed to be impliedly inapt to generate an unreviewable solution (32).
The above considerations confirm the suggestion that EA may be used as
a tool to enforce DAAB decision, as it falls into the definition of arbitrator for
the purposes of Sub-Clause 21.6.
But this is not the end of the story.

5. The nature of the Emergency Arbitrator decision. — Indeed, having

recourse to the EA only makes sense if its decisions are enforceable, but the
same initial remarks drawn for the nature of the decision-maker are to be
extended to the qualification of its dicta: EA is a creature of institutional
arbitration rules, which, because of their « contractual nature [...] cannot
provide for any coercive tools or enforcement mechanisms of EA decisions.
Moreover, there is no multilateral enforcement agreement covering court-
ordered, arbitral tribunal or EA-granted interim measures. Therefore the key
to recognition and enforcement of EA decisions involves examination of the
relevant local legislation in order to determine how it responds to, or can be
adapted to respond to, the introduction of EA » (33).
In truth, it has already been underlined that « on the international scene,
arbitral provisional or interim measures [...] are more and more equalised to
(final) awards, whether expressly or by way of ensuring their enforceability as
they were awards » (34); consequently, even when the national law does not

(31) BOVE M., supra note 28, passim.

(32) RUBINO-SAMMARTANO M., Il Référé pré-arbitral, in RUBINO-SAMMARTANO M. (ed.),
Arbitrato, ADR, conciliazione, Bologna, 2009, 552.
(33) HORODYSKI D. - KIERSKA M., Enforcement Of Emergency Arbitrators’ Decisions
Under Polish Law, in POLISH ACADEMY OF SCIENCES. INSTITUTE OF LAW STUDIES COMMITTEE ON
LEGAL SCIENCES, XXXVI Polish Yearbook Of International Law, Warsaw, 2017, 232.
(34) V. CAPASSO, Adjudication: may arbitration be only interim final?, in this Review,
2018, 610.
This is the case for the United Kingdom: s. 39(1) Arbitration Act; Spain: art. 23(2), Ley
60/2003, de 23 de diciembre, de Arbitraje; the Netherlands: art. 1051(3), Dutch Code of Civil
Procedure; Israel: art. 1, Arbitration Law, 5768-1968; British Columbia: art. 2(1) International
Commercial Arbitration Act, RSBC 1996; Ontario: art. 9 International Commercial Arbitration
Act, RSO 1990; Singapore: art. 12(6) Ch. 143A Singapore International Arbitration Act 1994
(as amended in 2012); Hong Kong: art. 22B(1) Amendment to Hong Kong Arbitration
Ordinance 2013 (but see, today, the consolidate version of February 1, 2018); Malaysia: art.
19(3) Arbitration Act 2005; Peru: art. 48(4) Arbitration Act Legislative Decree 1071, 2008;
Bolivia: art. 85 Ley n. 708 de Conciliación y Arbitraje, 25 de Junio, 2015; Hungary: art. 27(1)
2017. évi LX. törvény a választottbíráskodásról; United Arab Emirates: art. 39 Federal Law No.
6 of 2018 on Arbitration (the Arbitration Law).

189
specifically take into consideration the EA’s decisions — as the Acts of
Singapore and Bolivia do (35) —, these latter may be equated to provisional or
interim awards, so that their enforcement by analogy (36) should not pose any
major problems with respect to such legal systems.
Moreover, and even apart from these Countries, the recognition of the
decision at stake under the New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of 1958 can be claimed on the basis
of two data, one of textual and one of substantial matrix.
The first, almost obvious, is that article V(1)(e) New York Convention
only requires, for the purpose of recognition, that the award is « binding », and
not also « final ». Of course, it may be objected that the terminological choice
was due to the desire to avoid the inconvenience of the so-called « double-
exequatur » (37), required by many State Courts under the Geneva Conven-
tion on the Execution of Foreign Arbitral Awards of 1927; but « the failure to
approve, at the time of negotiation, the proposal to resort to an autonomous
notion of mandatory award, based on the distinction between ordinary and
extraordinary means of appeal » (38) seems enough to exclude that the award
should be considered « binding » only when all internal remedies are ex-
hausted (39).

See also DONOVAN D.F., The Scope and Enforceability of Provisional Measures in Inter-
national Commercial Arbitration: A Survey of Jurisdictions, the Work Of UNCITRAL, and
Proposals for Moving Forward, in VAN DEN BERG A.J. (ed.), International Commercial Arbitra-
tion: Important Contemporary Questions, ICC Congress Series No. 11, Kluwer Law Interna-
tional 2003, 133 ff.
(35) For Singapore, see supra note 34; for Bolivia, see articles 67 ff. Ley n. 708 de
Conciliación y Arbitraje, 25 de Junio, 2015.
(36) WELSER I., Fast Track Proceedings, Expedited Procedure and Emergency Arbitrator
- Pros and Cons, in GESSEL-KALINOWSKA VEL KALISZ B. (ed.), The Challenges and the Future of
Commercial and Investment Arbitration, Warsaw 2015, 221; HORODYSKI D. - KIERSKA M.,
Enforcement of emergency arbitrators’ decisions - legal problems and global trends, in Kwartal-
nik ADR, 2016, 35.
(37) That is, the granting of leave for enforcement by both the Court of the State of the
seat, and that of the Country in which the award should have been executed. See VAN DEN BERG
A.J., The New York Convention of 1958: An Overview, in GAILLARD E. - DI PIETRO D. (ed.),
Enforcement of Arbitration Agreements and International Arbitral Awards: The New York
Convention in Practice, Cameron May, 2008, p. 61; EL-HAKIM J., Should the Key Terms Award,
Commercial and Binding be Defined in the New York Convention?, in Journal Of International
Arbitration, 1989, 167. The same is reminded by the Belgian Court of Cassation: Cass., 1ère Ch.,
5 juin 1998, Compagnie Inter-Arabe de Garantie des Investisseents c/ Banque Arabe et Interna-
tionale d’Investissement, in this Review, 1998, 748 ss., critically annotated by PETTINATO C.,
Ancora sulla « obbligatorietà » del lodo straniero secondo la Convenzione di New York del 1958.
(38) PETTINATO C., Sulla « obbligatorietà » del lodo straniero secondo la Convenzione di
New York del 1958, in this Review, 1998, 314, main text and note 19. Free translation.
(39) In this sense, see PETTINATO C., supra note 37, 760; ID., supra note 38, 307 ss.; MO J.S.,
Interpretation and Application of the New York Convention in China, in G. BERMANN (ed.),
Recognition and Enforcement of Foreign Arbitral Awards, Springer International Publishing,
New York, 2017, 187; PEREZ L. - RODRIGUEZ F., United States: The Rise of the Emergency
Arbitrator, in Global Arb. Rev., 2015, on www.globalarbitrationreview.com; PUNZI C., Disegno
sistematico dell’arbitrato2, II, Padova, 2012, 807-808; BORN G.B., supra note 28, 3618. Contra
KROLL S., The Non-Enforceability of Decisions Rendered in Summary Arbitral Proceedings

190
 In fact, during the drafting works, various options were analysed (e.g. an
award not subject to any « means of recourse involving a short time limit » or
at any « appeal with suspensive effect »; or an « operative », « enforceable » o
« ready for enforcement » award). Eventually, « the word "final" was avoided
[...] and replaced by the word “binding” which was vague enough for reaching
an agreement » (40), so that any construction seems to be permitted. Never-
theless, an indirect and a fortiori confirmation of the claimed solution may be
inferred from the fact that « the Convention does nothing to prevent Con-
tracting States from recognizing foreign awards, including awards that have
been annulled in the arbitral seat » (41).
The above remarks already undermine one of the main arguments against
the extension of the recognition regime to the EA’s decision; but, for those
who consider the wording of article V, n. 1, lett. e) non-conclusive, so that they
deem that enforcement may only be granted to final awards, it remains to
investigate the concrete meaning of « finality ».
As it has been noted, in fact, « the enforceability of an award generally
depends on the nature of the award. It will be enforceable, regardless of
whether it is interim or partial, if the award constitutes the arbitral tribunal’s
final decision on the issues decided » (42). It is not by chance that, for example,
the Queensland Supreme Court assesses finality by checking « whether the
arbitral tribunal’s order is only provisional in that it can be varied or changed
by the same body in a later decision » (43); French jurisprudence, for its part,
has long affirmed that the finality test lies on the ability of the decision to
resolve the dispute — as submitted to the tribunal — definitively, in whole or
in part (44).
In the light of these definitions, the EA’s decision is « final »: borrowing
from Carlevaris’ comment to the Paris Court of Appeal on the pre-arbitral
referee (which, as noted, is the ancestor of the EA), « unlike the measures
taken by the arbitrators in the context of ordinary arbitration proceedings, the
order in question puts an end to the procedure in which it is issued »: « the
tribunal called upon to rule on the merits is » in both cases « different » from
the author of the order. This latter, indeed, « once the order issued, is
automatically deprived of the power to revoke or modify it [...]: this circum-

Pursuant to the NAI Rules Under the New-York Convention, in Am. Rev. Int’l Arb., 2012, 95-96;
SANDERS P., La Convention, in UNION INTERNATIONALE DES AVOCATS, Arbitrage International
Commercial, II, La Haye, 1960, 318.
(40) EL-HAKIM J., supra note 37, 168.
(41) BORN G.B., supra note 28, 3638; see also, more recently, MEINERI P., Il riconosci-
mento dei lodi annullati: l’emergere di un giudizio di compatibilità tra l’ordinamento nazionale
e la sentenza estera di vacatur, in this Review, 2017, 407 ff.
(42) CHOI J., Interpretation and Application of the New York Convention in the Republic
of Korea, in BERMANN G. (ed.), supra note 39, 620.
(43) Resort Condominiums v Bolwell (1993) 118 ALR 655. Emphasis added.
(44) App. Paris, 25 mars 1994, Sté Sardisud c/Sté Technip, in Rev. arb., 1994, 391 ff.
Emphasis added.

191
stance stresses the stability of the provision and therefore its relatively “final”
character » (45).
Indeed, it does not even seem necessary to move so far in time and space
to reach this conclusion: since 1936, Calamandrei had underlined how, in some
cases, « the provisional measure is issued through a dedicated special process,
separate and independent of the main controversy, with respect to which the
provisional measure is final » (46); and he came to this consideration without
passing through the necessity of a possible tranchant character with respect to
the merits of the dispute. Quite the opposite, and consistently with his own
view of the precautionary action as mere action (47), he concluded that « even
the provisional measures, when the application is not declared inadmissible
for reasons pertaining to the procedural relationship, decide the merit (i.e. the
well-founded of the provisional action), like the measures, which in opposition
to the precautions are called final, decide the merit of the action concerning the
main dispute » (48).
From this point of view, it can then be affirmed that the EA’s decision is
not « less final » than an award that can still be challenged. And the recogni-
sability of this latter under the New York Convention is beyond question.

6. The state of the jurisprudence. — Any theoretical construction of this

kind, however, cannot overlook a review of State Courts jurisprudence on the
issue at stake.
With the caveat that the question is still debatable, because only few
judgements are available so far (presumably because of the high spontaneous
compliance rate to the EA decisions, coupled with a still moderate use of the
mechanism (49)), it seems possible to see a recent trend in favour of their
enforcement.
That was not the case in the earliest judgement: as noted, the Paris Court
of Appeal rejected both the arbitral nature of the pre-arbitral referee and the
qualification as award of its order. The latter conclusion is consistent with

(45) CARLEVARIS A., Tutela cautelare « pre-arbitrale »: natura del procedimento e della
decisione, in this Review, 2003, 281 (free translation); similarly, RUBINO-SAMMARTANO M.,
International Arbitration Law and Practice3, Huntington, New York, 2014, 1132.
(46) CALAMANDREI P., Introduzione allo studio sistematico dei provvedimenti cautelari,
Padova, 1936, 23. Free translation.
(47) Calamandrei, indeed, albeit preferring to focus on the study of the « decision in
itself », since « every classification of actions [...] as any classification of processes [...] actually
results in a classification of the various types of decisions » (ibid., p.4), shows in many occasions
its adhesion to the qualification of the precautionary action provided by CHIOVENDA G.,
Istituzioni di diritto processuale civile, I, Napoli, 1957 (2° rist.), 236. Free translation.
(48) CALAMANDREI P., supra note 46, 23-24. Free translation.
(49) The 2015 International Arbitration Survey conducted by Queen Mary University —
available at www.arbitration.qmul.ac.uk — shows that 46% of respondents would rather seize
State Courts than emergency arbitrators in order to obtain provisional relief, mainly (79%)
because of enforceability concerns.

192
French jurisprudence (50) and can be accepted in the light of each State
sovereignty to allow enforcement of arbitral decisions upon conditions; in
addition, it suggests that — unless a revirement occurs — the EA decision
would not be held enforceable in France (51).
However, the theoretical authority of the French judgement is under-
mined by the arguments on which the Court relied to qualify the decision-
maker. Having already thoroughly criticised the judgement (52), suffice here to
mention that one of the reason of the purported contractual nature of the
mechanism was derived from article 6.6 PAR Rules, which states that « [t]he
parties agree to carry out the Referee’s Order without delay »; but this
wording seems non-conclusive, as it can be inferred by considering the
evolution of EA Rules. Indeed, « the newly-introduced art. 29(2) 2nd sentence
also expressly states that the “parties undertake to comply with any order
made by the emergency arbitrator”. No similar provision was included in art.
28(1) regarding a Tribunal’s order granting provisional relief. In fact, it was
only in the process of drafting the provisions of the Emergency Arbitrator,
and in particular the 2nd sentence art. 29(2), that the Drafting Sub-Committee
realised that such general statement should now be made for any procedural
order by a Tribunal. The Drafting Sub-Committee wanted to avoid the risk of
an a contrario argument being made by the Parties » (53). It is thus suggested
that the proviso is only aimed to (try to) address the problem of orders
enforceability (whoever their author), but tells nothing about the parties
interpretation of the role of the decision-maker.
Anyway, what is more interesting is that the practical consequence of the
French judgement was the rejection of the claim to vacate the order; and the
same result was reached in the US case Chinmax v Alere (54), in which the
District Court of California rejected the annulment claim because (the deci-
sion was held not final, and therefore) it was for the arbitral tribunal to decide
whether to confirm or not the order of the EA. The feeling that the underlying

(50) App. Paris, 1er juillet 1999, Brasoil, in Rev. arb., 1999, 834 ff.; but see also App. Paris,
7 octobre 2004, Otor, in Rev. arb., 2005, 737 ff, for a different solution. See, lastly, CAICEDO
DEMOULIN J.J., L’exécution et le contrôle judiciaire des décisions prises par les arbitres d’urgence,
in Rev. arb., 2017, 457 ff.
(51) PARAGUACUTO-MAHEO D. - LECUYER-THIEFFRY C., supra note 6, 763 ff.
(52) CAPASSO V., Referee vs Emergency Arbitrator: chi è il vero arbitro?, in this Review,
2018, 21 ff.; among other scholars who criticise the decision, see CARLEVARIS A., supra note 45,
259 ff.; MOURRE A., Référé pré-arbitral de la CCI: to be or not to be a judge..., in Gaz. Pal., 2003,
149, 5 ff.; LOQUIN E., De la nature juridique du référé pré-arbitral de la CCI, in RTD Com., 2003,
482 ff.; CLAY T., La première application du référé pré-arbitral de la CCI, in Rec. Dalloz, 2003,
2478 ff.; LECUYER-THIEFFRY C., First Court Ruling on the ICC Pre-Arbrital Referee Procedure, in
Journal of Int. Arb., 2003, 599 ff.
(53) WEBSTER T.H. -BUHLER M., supra note 12, § 22-76. Emphasis added.
(54) Chinmax Medical Systems Inc. v. Alere San Diego Inc., 2011 S.D. Ca., 2011 WL
2135350. See SANTENS A. - JUDRNA J., supra note 22, 4; CAVALIEROS P. - KIM J.H.J., Emergency
Arbitrators Versus the Courts: From Concurrent Jurisdiction to Practical Considerations, in
Journal of Int. Arb., 2018, 290.

193
reason of both the aforementioned judgement was to compel parties to
honour their undertakings seems confirmed by Born, who notes that the
District Court rationale should only be applied for annulment claims, and not
for enforcement proceedings (55).
Indeed, in almost all the other cases, the claimant — who was seeking
enforcement — ended up to be the winning party: in both the US cases Blue
Cross v. Medimpact (56) and Draeger Safety v. New Horizon (57) the Courts
found the EA decision final enough to be enforced; in Vodacom v. Na-
menco (58) the Commercial Court in Kinshasa granted exequatur to an ICC
EA by relying on local laws which prevents the State Courts to review the
merits of foreign decisions; in JKX v. Ukraine (59) the District Court in Kiev
assumed (without further considerations) that the EA’s decision was enforce-
able under the New York Convention.
Lastly, in Yahoo! v. Microsoft (60), the Court not only rejected Yahoo!
annulment claim, but — instead of leaving the arbitral tribunal to deal with it
— confirmed the award, because « if an arbitral award of equitable relief
based upon a finding of irreparable harm is to have any meaning at all, the
parties must be capable of enforcing or vacating it at the time it is made » (61).

7. The Gerald Metals case. — In addition to the above, there is another

case which seems to have slipped through the mesh of the scholars (62), maybe
because it does not deal with the enforcement of an EA decision, but with the
denial to grant access to it: the Gerald Metals case.
For the sake of a better comprehension of the judgement, however, it
seems useful to briefly remind the evolution of British Courts’ approach to the
power of arbitration to grant interim relief.

(55) BORN G.B., supra note 28, 2523, note 521.

(56) Blue Cross Blue Shield of Michigan v. Medimpact Healthcare Systems, 2010 E.D.
Mich., 2010 WL 2595340. See SANTENS A. - JUDRNA J., supra note 22, 3.
(57) Draeger Safety Diagnostics v. New Horizon Interlock, 2011 E.D. Mich., 2011 WL
653651. See SANTENS A. - JUDRNA J., supra note 22, 3.
(58) Vodacom Int’l Ltd. v. Namenco Energy Ltd., Kinshasa [TC], Order No. 123/2014 of
28 Mar. 2014. See SANTENS A. - JUDRNA J., supra note 22, 5-6.
(59) JKX Oil & Gas PLC and Poltava Gas B.V. v. Ukraine, Pechersk District Court, 9
June 2015, concerning investor-state arbitration. See SANTENS A. - JUDRNA J., supra note 22, 6-8;
CAICEDO DEMOULIN J.J., supra note 50, 458 ff.; CAVALIEROS P. - KIM J.H.J., supra note 54, 305,
who also report (304-306) some facts of Griffin Group v. Poland, SCC Case No. EA 2014/183
and Puma Energy Holdings (Luxembourg) SARL v. Republic of Benin, SCC Case No. EA
2017/092, which are nonetheless irrelevant for present purposes.
(60) Yahoo v. Microsoft, 983 F. Supp. 2d 310 (S.D.N.Y. 2013), in Dir. comm. int., 2014,
481 ss., annotated by SANTACROCE F., Efficacia ed eseguibilità delle decisioni dell’emergency
arbitrator negli Stati Uniti. See also SANTENS A. - JUDRNA J., supra note 22, 3-4; CAICEDO
DEMOULIN J.J., supra note 50, 469-470; CAVALIEROS P. - KIM J.H.J., supra note 54, 290.
(61) Yahoo v. Microsoft, supra note 60, 319.
(62) With the exception of CAVALIEROS P. - KIM J.H.J., supra note 54, 286, who mention
the judgement, but only stress its negative meaning. See infra, in the main text, for further
considerations.

194
 According to section 14 Arbitration Act 1950, « [u]nless a contrary inten-
tion is expressed therein, every arbitration agreement shall, where such a pro-
vision is applicable to the reference, be deemed to contain a provision that the
arbitrator or umpire may, if he thinks fit, make an interim award, and any ref-
erence in this Part of this Act to an award includes a reference to an interim
award ». The proviso, at first reading, seemed to express a broad favour towards
the arbitral tribunal power to grant interim remedies; the Courts, however,
showed a contrary opinion since the Kostas Melas case (63), in which the Com-
mercial Court — albeit, eventually, affirming the measure ordered by the ar-
bitrators — inaugurated a narrow interpretation of section 14.
In particular, starting from the assumption that « the jurisdiction of the
arbitrator was to decide the dispute finally and that there was no inherent
power to award sums on account », unless this power had been expressly
attributed to the decision-maker by the parties, the Court constructed the
expression « interim award » as referring to awards that « finally determine the
claim or part of it and [that] state which part » (in other words, to partial
awards); but it restricted the concept to « indisputable claims and sums due »
and, in so doing, it totally neglected the term « interim », which qualified the
award as « temporary, provisional ». And those characteristics certainly do not
belong to a partial award (64).
This situation may evoke the so-called lodo semplificato referred to in
article 37(2) CONSOB Resolution no. 18275 of 18 July 2012 up to very recent
times (65). The wording of the article seemed to exclude the need of a full
ascertainment of the an, because it limited the arbitration’s scope to the
assessment of the facts alleged by the referring party; the postponement of the
analysis of the respondent defense to a subsequent arbitration or litigation
seemed, therefore, to confirm the conclusion that the award was similar to a
condanna con riserva ex article 278(1) c.p.c. (66).
The same reasoning, however, cannot be extended to the Kostas Melas
case: the Commercial Court statement according to which awarded sums must
have been « indisputable » leaved no room for doubt about the need for a full
and exhaustive assessment of the merits of the case. Moreover, the polysemy
of the term « indisputable » could have led to an even more restrictive
interpretation, i.e. that the interim award would have been possible only with

(63) SL Sethia Liners Ltd v Naviagro Maritime CO (The) [1981] 1 Lloyd’s Rep 18.
(64) For broader remarks on qualification issues, see CARLEVARIS C., La qualificazione
delle decisioni arbitrali, in this Review, 2002, 498-499.
(65) Starting from January 9, 2017 — as provided by article 1(47), l. n. 208 of December
28, 2015 — the CONSOB Camera di Conciliazione e Arbitrato has ceased its activity, having
been substituted by the Arbitro per le Controversie Finanziarie (ACF).
(66) In this sense, BERGAMINI L., I nuovi strumenti stragiudiziali di soluzione delle
controversie in materia bancaria e finanziaria, in GABRIELLI E. - LENER R. (ed.), I contratti del
mercato finanziario, Torino, 2011, 500-501, with reference to the (identical) text of article 33(2),
Regolamento di attuazione del decreto legislativo 8 ottobre 2007, n. 179, concernente la Camera
di conciliazione e di arbitrato presso la Consob e le relative procedure.

195
reference to uncontroversial facts: in the Kostas Melas case, indeed, the Court,
having established the obligation, for the arbitrator, to take into account, in its
decision, also the defendant’s set-off, confirmed the award, considering that
100,000 pounds were « the minimum the owners were entitled to receive »
(i.e., the amount that would have been recognized even if the whole sum of the
set-off had been deducted).
Because of this jurisprudence, the party seeking interim relief could only
seize the State Courts, whose consequently increased interference was
strongly criticized (67). Perhaps in response to the criticisms, Courts inversed
the trend, thus falling into the opposite excess: the vulnus to the interim
protection almost became a total denial (68). Since the 1990s, in fact, the
Official Referees Court (then become the Technology and Construction
Court) has shown a growing reluctance to grant provisional measures when an
arbitration agreement was in place (69), motivating its refusal by the will to
respect (or, maybe, to sanction?) the dispute resolution mechanism chosen by
the parties.
Apparently, the judgment of the Commercial Court in Gerald Metals SA
v Timis (70) seems to fall under this trend, since Leggatt J dismissed GM the
claimant application for interim relief because he could have applied for
expedite proceedings or for the appointment of an emergency arbitrator
under articles 9A or 9B LCIA Rules (which he did, but without success). The
judgment contains interesting statements about the urgency test (71), the
analysis of which is, however, beyond the scope of this paper.
What is of interest here, by contrast, is the reasoning concerning the
extent of the supporting role of the Courts with respect to provisional
measures in arbitration.
Leggatt J underlined that, while section 44(3) AA 1996 provides that « [i]f
the case is one of urgency, the court may, on the application of a party or
proposed party to the arbitral proceedings, make such orders as it thinks
necessary for the purpose of preserving evidence or assets », section 44(5)
stresses that « the court shall act only if or to the extent that the arbitral
tribunal, and any arbitral or other institution or person vested by the parties
with power in that regard, has no power or is unable for the time being to act
effectively ». Having reviewed the relevant provisions of the LCIA Arbitra-

(67) ØYRE T., The Power of an Arbitrator to Grant Interim Relief under the Arbitration
Act 1996, in Arbitration, 117-118.
(68) Ibid, 119.
(69) In Derek Crouch Construction Ltd v Nonhem Regional Health Authority [1984] QB
644, the High Court denied the leave to appeal against the Official Referees Court refusal of an
interim measure requested by two of the three parties in arbitration because, although the
claimants might well « first decide to abandon this system and litigate instead, then decide to
revert to arbitration », the third litigant was still entitled « to insist upon arbitration and to be
protected from having its rights adversely affected by litigation, to which it has never agreed ».
(70) Gerald Metals SA v Timis [2016] EWHC 2327 (Ch).
(71) Relying on Starlight Shipping v Tai Ping Insurance [2008] 1 Lloyd’s Rep 230.

196
tion Rules, he then rejected GM lawyer suggestion that « there is a further gap
in the LCIA rules which exists in cases which are not emergencies or of such
exceptional urgency as to justify the expedited formation of the tribunal but
which are nevertheless cases of urgency within the meaning of section 44(3) of
the Arbitration Act » (72).
Instead, by agreeing with the defendant counsel, he stated that « it would
be uncommercial and unreasonable to interpret the LCIA rules as creating
such a gap », since their « obvious purpose [...] is to reduce the need to invoke
the assistance of the court in cases of urgency by enabling an arbitral tribunal
to act quickly in an appropriate case ». As a consequence of the upheld
« functional interpretation of Articles 9A and 9B », Court’s intervention
should only be granted when « effective relief could not otherwise be granted
within the relevant timescale [...] Accordingly, it is only in cases where those
powers, as well as the powers of a tribunal constituted in the ordinary way, are
inadequate, or where the practical ability is lacking to exercise those powers,
that the court may act under section 44 » (73).
Some commentators inferred from the decision that « a party seeking
interim relief would have no choice but to apply first to the institution for an
emergency arbitrator, and if the institution or the emergency arbitrator
refuses such an application, the courts will be unlikely to grant the same
relief » and that, as a consequence, « parties that wish to preserve access to the
English courts for urgent interim relief may be advised to opt out of emer-
gency arbitrator provisions » (74). This may be true, but the last quoted
statements of the judgement seem to justify other considerations. Indeed, they
appear to enlighten the interpreter about the Court position with respect to
EA decisions: in fact, whatever the motive behind its refusal (whether a real
self-restraint or just the will to ensure that parties pay the consequence of their
choice), it seems unlikely that the Court would have referred to an « effective
relief » available in (expedite or) emergency arbitration, had it not been keen
to enforce the decision granting it.

8. Conclusions. — As already stressed, such few judgements are not

enough to drive to an indisputable and general conclusion; notwithstanding
this, it seems significant that Courts from different corners of the world have
already relied on a variety of arguments — some of which, admittedly,
unconventional — in order to grant that the parties choice to refer ex ante
interim relief claims to a private judge would be respected.
The main conceptual problem seems to lie on the very longevity of
arbitration, whose notion has not been kept updated: it was born and is still

(72) Gerald Metals SA v Timis at [6].

(73) Ibid. at [7-8].
(74) CAVALIEROS P. - KIM J.H.J., supra note 54, 286.

197
considered as an alternative to State process in the meaning of full proceed-
ings leading to res iudicata. Yet, State Court’s jurisdiction construction has
evolved, and it is time for arbitration to do the same.
The safer way to reach this result would be to amend the New York
Convention as to expressly take into consideration the recognition of provi-
sional measures issued by (tout court as well as emergency) arbitrators (75); but
this would take time.
But, since parties seeking interim relief cannot wait, it is — once again (76)
— for Courts to fill the gap.

(75) Seemingly in this sense, HORODYSKI D. - KIERSKA M., supra note 33, 244.
(76) Suffice here to mention the référé, introduced by French Courts and only provided
for by the legislator years later: see SILVESTRI C., Il référé nell’esperienza giuridica francese,
Torino, 2005; JOMMI A., Il référé provision, Torino, 2005; D’AMICO J.V., Autonomia ed effetti del
provvedimento cautelare anticipatorio. Profili di comparazione italo-francese, ESI, 2018.

198