1 Done at New York, June 10, 1958, 21 UST 2517, TIAS No. 6997, 330 UNTS 3. The purpose of the New York Convention is “to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n.15 (1974). In addition to the United States, as of Jan. 1, 1985, there were 67 parties to the New York Convention. Two of them, however, are constituent subdivisions of one of the parties, the USSR. See U.S. Dep’t of State, Treaties in Force 208 (1985). For a comprehensive overview of the Convention and the case law it has spawned, see generally A. Van Den Berg, The New York Arbitration Convention of 1958 (1981).

2 See, e.g., Art. 26 of the Arbitration Rules of the United Nations Commission on International Trade Law, UN Doc. A/31/17(1976) (UNCITRAL Rules); Rule 39 of the Rules of Procedure for Arbitration Proceedings of the International Centre for Settlement of Investment Disputes, Doc. ICSID/15 (1985) (ICSID Rules); Art. 34 of the Commercial Arbitration Rules of the American Arbitration Association (1984) (AAA Rules). The Rules of Arbitration of the International Chamber of Commerce, ICC Pub. No. 291 (reprinted 1981) (ICC Rules), make no such express provision, but an ICC tribunal has inherent authority to order provisional measures. Cf. Art. 8(5), ICC Rules.

3 Under the UNCITRAL Rules, the tribunal should be constituted within 90 days (if a sole arbitrator) or 120 days (if three arbitrators), assuming the parties have designated an appointing authority that acts within the time limits under the rules. See UNCITRAL Rules, supra note 2, Arts. 6 and 7. Under ICSID a tribunal should be constituted within 120 days. See ICSID Rules, supra note 2, Rules 1–4. In the first 11 ICSID arbitrations registered, however, the average time for constituting a tribunal was 8–9 months. See ICSID, Fifteenth Annual Report (1980–81). Unlike the UNCITRAL and ICSID Rules, the ICC Rules do not impose time limits on most of the steps in constituting a tribunal, but, according to the ICC Secretariat, barring exceptional circumstances, a tribunal is usually constituted within 3 months.

4 It is assumed throughout this article that the parties have not dealt with the issue of attachment in their arbitration agreement. The parties might agree, for example, that they will not have to post security in the event of a dispute.

5 See Becker, , Attachments in Aid of International Arbitration—the American Position, 1 Arb. Int’l 40 (1985)CrossRefGoogle Scholar; Note, An Argument for Pre-Award Attachment in International Arbitration under the New York Convention, 18 Cornell Int’l L.J. 99 (1985); Note, Pre-Award Attachment under the U.N. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 Va. J. Int’l L. 785(1981).

6 Pub. L. No. 91–368, §1, July 31, 1970, 84 Stat. 692 (codified at 9 U.S.C. §§201–208 (Supp. 1985)).

7 9 U.S.C. §201 (Supp. 1985).

8 9 U.S.C. §202 (Supp. 1985). For purposes of §202, “a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States.” Id.

9 Id.

10 The U.S. Congress enacted chapter 1 on July 30, 1947, §1, 61 Stat. 699 (codified at 9 U.S.C. §§1–14 (1984)). Chapter 1 applies to written arbitration agreements “in any maritime transaction or a contract evidencing a transaction involving commerce.” 9 U.S.C. §2 (1984).

11 9 U.S.C. §3 (1984).

12 9 U.S.C. §4 (1984).

13 9 U.S.C. §8(1984).

14 Id.

15 See, e.g., Reefer Express Lines Pty. v. Petmovar, S.A., 420 F.Supp. 16 (S.D.N.Y. 1976); Texas San Juan Oil Corp. v. An-Son Offshore Drilling Co., 194 F.Supp. 396 (S.D.N.Y. 1961); Instituto Cubano de Estabilizacion del Azucar v. T/V Firbranch, 130 F.Supp. 170 (S.D.N.Y. 1954); The Belize, 25 F.Supp. 663 (S.D.N.Y. 1938); and cases discussed in the text at notes 29–34 infra.

16 146 F.2d 381 (2d Cir. 1944) (Hand, J.). Accord Coastal States Trading, Inc. v. Zenith Navigation S.A., 446 F.Supp. 330 (S.D.N.Y. 1977).

17 146 F.2d at 384.

18 Id.

19 The Anaconda v. American Sugar Ref. Co., 322 U.S. 42 (1944). In The Anaconda the Supreme Court stated that a stay and referral to arbitration “does not oust the court’s jurisdiction of the action, though the parties have agreed to arbitrate. And, it would seem there is nothing to prevent the plaintiff from commencing the action by attachment if such procedure is available under the applicable law.” Id. at 44–45.

20 146 F.2d at 384.

21 339 F.2d 901 (2d Cir. 1965). This is the only reported U.S. case to have considered the issue.

22 Id. at 904.

23 501 F.2d 1032 (3d Cir. 1974).

24 Id. at 1038.

25 Section 8 provides that a court “shall retain jurisdiction to enter its decree upon the award”; under §3, a court retains jurisdiction by means of the stay procedure. Article II(3) of the New York Convention provides that a court “shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative, or incapable of being performed.” 9 U.S.C. §201 (Supp. 1985).

26 501 F.2d at 1038.

27 427 F.Supp. 2 (S.D.N.Y. 1975).

28 Id. at 4.

29 430 F.Supp. 88 (S.D.N.Y. 1977).

30 9 U.S.C. §208 (Supp. 1985).

31 430 F.Supp. at 92.

32 Id. at 92–93.

33 Id. at 91–92. The attachment in Andros was based upon Rule B(1) of the Supplemental Rules of Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure.

34 Construction Exporting Enters., UNECA v. Nikki Maritime Ltd., 558 F.Supp. 1372 (S.D.N.Y.), dismissed mem., 742 F.2d 1432 (2d Cir. 1983); Paramount Carriers Corp. v. Cook Indus., 465 F.Supp. 599 (S.D.N.Y. 1979); Atlas Chartering Servs. v. World Trade Group, 453 F.Supp. 861 (S.D.N.Y. 1978).

35 Implicitly, though, all four federal district courts in New York repudiated McCreary in determining that a maritime pre-award attachment did not conflict with the purposes of the Convention.

36 451 F.Supp. 1044 (N.D. Cal. 1977).

37 Id. at 1050.

38 Id. at 1052. Although Carolina Power was a commercial and not a maritime case, there is no logical reason to distinguish the two kinds of cases with respect to pre-award attachment. See Murray Oil, 146 F.2d at 384. If a §8 attachment does not conflict with the purposes of the Convention, similarly a §3 attachment also would not conflict.

39 451 F.Supp. at 1052 (citing Boys Mkts., Inc. v. Retail Clerks Union, 398 U.S. 235 (1970)). In that case, the Supreme Court held that the Norris-LaGuardia Act did not preclude a court, in referring parties to arbitration, from enjoining the defendant union from “strikes, lockouts, or other self-help measures. . . . [T]he unavailability of equitable relief in the arbitration context presents a serious impediment to the congressional policy favoring the voluntary establishment of a mechanism for the peaceful resolution of labor disputes. . . .” 398 U.S. at 249, 253.

40 451 F.Supp. at 1051.

41 457 F.Supp. 1013 (S.D.N.Y. 1978). Although the court held it had the “power to order provisional relief pending a foreign arbitration,” it stated it would not exercise that power if the attachment “seeks to engage the Court in the merits of the dispute, and further delays the resolution of the merits in the chosen arbitral forum.” Id. at 1014, 1015.

42 See also Cordoba Shipping Co. v. Maro Shipping Ltd., 494 F.Supp. 183, 188 (D. Conn. 1980) (dicta that pre-award attachment under the Convention “is inappropriate since arbitration under the Convention (rather than the [U.S. Arbitration] Act) divests the court of jurisdiction”).

43 636 F.2d 75 (4th Cir. 1981).

44 Id. at 77. The Fourth Circuit’s decision relied exclusively on the analysis in McCreary, and therefore is not discussed in more detail in this article.

45 57 N.Y.2d 408, 456 N.Y.S.2d 728 (1982). New York is the only state in the United States whose courts have considered pre-award attachment under the Convention. The U.S. case law regarding this issue is almost exclusively federal because the federal courts have subject matter jurisdiction over any “action or proceeding falling under the Convention . . . regardless of the amount in controversy” and because the Act provides for removal of such actions from the state to the federal courts. 9 U.S.C. §§203, 205 (Supp. 1985).

46 57 N.Y.2d at 414, 456 N.Y.S.2d at 730. See New York Convention, supra note 1, Art. VI (a court that has been petitioned to recognize and enforce a foreign arbitral award falling under the Convention “may . . . on the application of the party claiming enforcement of the award, order the other party to give suitable security”).

47 57 N.Y.2d at 416, 456 N.Y.S.2d at 732.

48 57 N.Y.2d at 414, 456 N.Y.S.2d at 731.

49 Id.

50 Id.

51 Id.

52 Id.

53 57 N.Y.2d at 415, 456 N.Y.S.2d at 731.

54 57 N.Y.2d at 416, 456 N.Y.S.2d at 731–32.

55 57 N.Y.2d at 416 (citing majority opinion, id. at 413), 456 N.Y.S.2d at 732.

56 57 N.Y.2d at 416–17, 456 N.Y.S.2d at 732.

57 57 N.Y.2d at 417, 456 N.Y.S.2d at 732.

58 501 F.2d at 1038.

59 Berg, Van den, Commentary Volume IX, 9 Y.B. Com. Arb. 365 (1984)Google Scholar.

60 See discussion in the text at note 81 infra.

61 A. van den Berg, supra note 1, at 131.

62 Id.

63 57 N.Y.2d at 416, 456 N.Y.S.2d at 732.

64 Id.

65 Id.

66 57 N.Y.2d at 415, 456 N.Y.S.2d at 732.

67 The Cooper majority cited one article estimating that losing parties voluntarily comply with “as high as 85%” of arbitral awards. 57 N.Y.2d at 414, 456 N.Y.S.2d at 731. Aside from the dubious precision of this “estimate,” a party should not have to run any risk concerning voluntary compliance.

68 Id.

69 Treaties in Force, supra note 1, at 208. For example, most states have declared that the Convention will apply only to awards made in the territory of another state party, and only to awards arising out of legal relationships that are considered to be commercial under the national law of such state.

70 Article V provides that a municipal court in a state party to the Convention may refuse to recognize and enforce a foreign arbitral award if the opposing party furnishes proof that: (1) the arbitration agreement was invalid; (2) the opposing party was not given proper notice of the arbitration proceedings or was otherwise unable to present its case; (3) the arbitral tribunal exceeded its powers; (4) the tribunal was improperly constituted; or (5) the award has not yet become binding on the parties or has been set aside. Recognition and enforcement may also be refused if the court finds that: (6) the subject matter of the dispute is not capable of settlement by arbitration under the law of that country; or (7) recognition or enforcement of the award would be contrary to the public policy of that forum. For a case discussing many of these grounds, see Parsons & Whittemore Overseas Co. v. Societe Generale de l’Industrie du Papier (RAKTA), 508 F.2d 969 (2d Cir. 1974).

71 57 N.Y.2d at 416, 456 N.Y.S.2d at 729.

72 Id.

73 Société Chérifienne des Pé troles v. Entreprise Nationale Sonatrach, Judgment of June 3, 1983, Cour de justice civile de Genève, 1983 La Semaine judiciaire 501, 505.

74 Furthermore, the municipal law in many states requires judicial oversight of the arbitral proceedings. See generally Delaume, , Court Intervention in Arbitral Proceedings, in Resolving Transnational Disputes Through International Arbitration 235 (T. Carbonneau ed. 1984)Google Scholar. Thus, for example, the courts in the United Kingdom have statutory authority to order discovery, and to grant a variety of provisional remedies. See discussion in the text at notes 86–88 infra.

75 See Cooper, 57 N.Y.2d at 416, 456 N.Y.S.2d at 732 (the New York Convention authorizes “judicial intervention after the arbitral award is rendered”). See also van den Berg, supra note 59, at 364 (no municipal court in any state party to the Convention “has doubted that an attachment in connection with the enforcement of an arbitral award, in order to secure payment under the award, is compatible with the Convention”).

76 146 F.2d at 384.

77 For example, Article VI(4) of the European Convention on International Commercial Arbitration provides: “A request for interim measures or measures of conservation addressed to a judicial authority shall not be deemed to be incompatible with the arbitration agreement, or regarded as a submission of the substance of the case to the court.” Done at Geneva, Apr. 21, 1961, 484 UNTS 364. Article 9 of the Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law on June 21, 1985, provides: “It is not incompatible with the arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.” 24 ILM 1302, 1304 (1985). Article 8(5) of the ICC Rules, supra note 2, provides:

Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures, and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator.

Article 26(3) of the UNCITRAL Rules, supra note 2, provides: “A request for interim measures addressed by one party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.” Article 47(a) of the AAA Rules, supra note 2, provides: “No judicial proceedings by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party’s right to arbitrate.”

But see ICSID Rules, supra note 2, which do not make similar provision. Indeed, in Guinea v. Atlantic Triton Co., reported in 24 ILM 340 (1985), the Court of Appeal of Rennes vacated an arrest of three ships on the ground that Article 26 of the ICSID Convention provides that arbitration shall be the exclusive remedy for parties to an ICSID arbitration agreement. The ICSID Convention, however, is unique in that Article 54(1) provides that “[e]ach Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” Unlike the New York Convention, which provides numerous grounds for refusing to enforce a foreign arbitral award (see note 70 supra), an ICSID award must be enforced by the courts in any contracting state.

78 See, e.g., Berg, van den, Commentary Volume VII, 7 Y.B. Com. Arb. 290, 299 (1982)Google Scholar:

As far as the judicial involvement is concerned, the [New York] Convention only precludes that a court will interfere with the merits of a dispute which is, or is to be referred to arbitration. It does not preclude a competent national judiciary from coming to the aid in arbitration by granting attachment. . . . See also International Commercial Arbitration: New York Convention, pt. I.B.I (G. Gaja ed. 1984); Delaume, G., Transnational Contracts: Applicable Law and Settlement of Disputes 79–87 (1975)Google Scholar.

79 Arbitration Act 1975 (Commencement) Order 1975, 1975 Stat. Inst., no. 1662. As of Jan. 1, 1985, the United Kingdom had extended the Convention to Gibraltar, Bermuda, Hong Kong, the Isle of Man and the Cayman Islands. Treaties in Force, supra note 1, at 208 n. 11.

80 Ch. 3, reprinted in 2 International Commercial Arbitration, Doc. VII.E.2, at 87 (1983).

81 Id. §1(1).

82 Id.

83 Id. §1(2).

84 Id. §1(4). For purposes of §1, a corporation is deemed a UK resident if it is incorporated in or if its “central management and control” is exercised in the United Kingdom. Id. § 1(b).

85 14 Geo. 6, ch. 27, reprinted in International Commercial Arbitration, supra note 80, Doc. VII.E.1, at 59.

86 Id. § 12(6). In addition, § 12(6) empowers the English courts to issue pre-award orders regarding the production and taking of evidence (§12(6)(b), (c) and (d)), and the detention, preservation, interim custody, or sale of goods or property that is the subject matter of the arbitration (§ 12(6)(e) and (g)). Id.

87 Bank Mellat v. Helliniki Techniki S.A., [1983] 3 W.L.R. 783, 789.

88 Id.

89 [1978] 1 Lloyd’s L.R. 545.

90 Id. at 556.

91 Id. at 558. Accord The Vasso, [1984] 1 Lloyd’s L.R. 235; The Tuyuti, [1984] 2 Lloyd’s L.R. 51.

92 A Mareva injunction is similar to a preliminary injunction in the United States.

The [Mareva] injunction takes the form of an order restraining the defendant, by himself his servants or agents, from selling, disposing of or otherwise dealing with such moneys or chattels or from removing them out of the jurisdiction, usually until further order. Its purpose is to ensure that, if the plaintiff succeeds in the action, there will be property of the defendant available here out of which the judgment which the plaintiff obtains in it can be satisfied.

The Rena K, [1978] 1 Lloyd’s L.R. at 561. As with a preliminary injunction in the United States (see, e.g., Rule 65 of the Federal Rules of Civil Procedure), the plaintiff must demonstrate a likelihood of success on the merits and the risk of dissipation of the defendant’s assets. For a detailed discussion of the law regarding Mareva injunctions, see The Niedersachsen, [1983] 2 Lloyd’s L.R. 600. See also Mareva Companía Naviera, S.A. v. International Bulk Carriers, Ltd., [1975] 2 Lloyd’s L.R. 509 (C.A.).

93 [1978] 1 Lloyd’s L.R. at 561.

94 Id.

95 Id. See The Tuyuti, where the court, though not confronted with the issue, stated that the decision in The Rena K was “well founded.” [1984] 2 Lloyd’s L.R. at 63. See also Astro Exito Navegacion S.A. v. Chase Manhattan Bank N.A., [1983] 3 W.L.R. 130, 139 (H.L.) (it was undisputed that the court had power under § 12(6) to make an order in aid of the sellers’ claim for specific performance in an arbitration). Cf. Bank Mellat v. Helliniki Techniki S.A., [1983] 3 W.L.R. 783, where the court declined to exercise its authority under §12(6)(a) of the 1950 Arbitration Act to order defendant to provide security for plaintiff’s costs and legal fees in an ICC arbitration (as opposed to securing the amount in dispute). Because the ICC Rules required the parties to make a deposit to cover the costs of the arbitration, the court concluded: “An order for security for costs against the defendants would have the effect of compelling them to make a double deposit of this sum, first to the I.C.C., and secondly, by way of security in favour of the plaintiffs.” [1983] 3 W.L.R. at 793.

96 [1984] 2 Lloyd’s L.R. at 56.

97 In 1982 Parliament enacted the Civil Jurisdiction and Judgments Act 1982, ch. 27. Section 26 of that Act empowers the English courts to order an arrested ship to be retained as security for satisfaction of an arbitral award, or to order that a stay and referral to arbitration be conditional on the provision of equivalent security. Although the Act has not entered into force in its entirety, §26 entered into force on Nov. 1, 1984. Civil Jurisdiction and Judgments Act 1982 (Commencement No. 1) Order 1984, 1984 Stat. Inst., No. 1553.

98 9 U.S.C. §8 (1984).

99 Mr. Justice Brandon discussed the Convention only in passing, and not in the context of the court’s power to grant a pre-award injunction. [1978] 1 Lloyd’s L.R. at 552.

100 Bank Mellat, [1983] 3 W.L.R. at 789. Thus, for example, while the English courts actively assist in the production and taking of evidence during the arbitration (see notes 86–88 supra and accompanying text), the U.S. courts generally will not grant such requests, at least regarding the merits of the dispute. See, e.g., Lummus Co. v. Commonwealth Oil Ref. Co., 273 F.2d 613 (1st Cir. 1959); Mississippi Power Co. v. Peabody Coal Co., 69 F.R.D. 558 (S.D. Miss. 1976); Penn Tanker Co. of Del. v. C.H.Z. Rolimpex, Warszawa, 199 F.Supp. 716 (S.D.N.Y. 1961). But see International Ass’n of Heat & Frost Insulators v. Leona Lee Corp., 434 F.2d 192 (5th Cir. 1970) (discovery on the merits allowed before arbitral tribunal constituted if it would not delay arbitral proceedings); Bigge Crane & Rigging Co. v. Docutel Corp., 371 F.Supp. 240 (E.D.N.Y. 1973). Discovery is available in U.S. courts regarding the issue of arbitrability. See International Union of Elec, Radio & Mach. Workers v. Westinghouse Elec. Corp., 48 F.R.D. 298 (S.D.N.Y. 1969). It is available on the merits if there are exceptional circumstances. See, e.g., Bergen Shipping Co. v. Japan Marine Servs., 386 F.Supp. 430 (S.D.N.Y. 1974) (alien crew that plaintiff sought to depose was about to leave the United States); Ferro Union Corp. v. SS Ionic Coast, 43 F.R.D. 11 (S.D. Tex. 1967) (damaged ship that plaintiff wanted to inspect about to leave port).

101 1959 Journal Officiel de la République Franaise [J.O.J 8726.

102 See Const, art. 55 (Fr.).

103 1980 J.O. 1238 (effective Oct. 1, 1980).

104 1981 J.O. 1380 (effective May 14, 1981).

105 Nouveau Code De Procédure Civile [N. C. pr. Civ.], Art. 1492.

106 N. C. pr. civ., tit. IV. Titles 1 to 4 incorporate the decree on domestic arbitration. Titles 5 and 6 incorporate the decree on international arbitration.

107 Report of the Keeper of the Seals, Ministry of Justice, to the Prime Minister on the draft of the decree instituting the provisions of Parts III and IV of the New Code of Civil Procedure, republished in J.-L. Delvolvé, Arbitration in France, App. II, at 94 (Eng. ed. 1982).

108 See note 77 supra.

109 Article 48 of the old Code of Civil Procedure (which article was not abrogated by the new code) provides:

In case of urgency and if the recovery of the claim seems to be in danger, the President of the tribunal de grande instance or the juge d’instance for the domicile of the debtor or for the areas where the goods to be seized are situated, may authorize any claimant whose claim appears well founded to seize for conservation, chattels belonging to his debtor.

The attachment is an ex parte proceeding (ordonnance sur requête), in contrast to a proceeding en référé where both parties are heard. See note 112 infra.

110 Judgment of Apr. 21, 1982, Cour d’appel de Paris, 110 Journal de Droit International 145 (1983).

111 Judgment of Mar. 14, 1984, Cass. civ. Ire, 1984 Juris-Classeur périodique [J.C.P.] II, at 20,205 (lr arrêt), 23 ILM 1063 (1984).

112 See Société d’Exploitation du Cinema Rex v. Société Rex, Judgment of June 7, 1979, Cass. civ. 3e, 1979 Bull. Civ. III, at 93 (“the existence of a compromissory clause does not, in case of urgency duly established, deprive the jurisdiction of courts en référé from exercising their powers”).

The ordonnance de référé is a provisional order rendered at the request of one party, the other party present or having been summoned, in cases where the law confers upon a judge who has not been empowered to hear the main issue, the power to render immediately the necessary orders.

N. C. pr. civ., Art. 484. The procedures for obtaining such an order are set forth in Articles 482–492 of the New Code of Civil Procedure. The same orders that can be issued by a court sitting en référé can be issued in an ex parte proceeding (ordonnance sur requête) if exigent circumstances exist. See, e.g., N. C. PR. civ., Arts. 812 and 875.

113 N. C. Pr. Civ., Art. 145.

114 Id., Art. 809 (Tribunal de grande instance); Art. 849 (Tribunal d’instance); Art. 873 (Tribunal de commerce).

115 Id., Art. 809 (Tribunal de grande instance); Art. 849 (Tribunal d’instance); Art. 873 (Tribunal de commerce).

116 Judgment of Dec. 20, 1982, Cass. civ. 3e, 1983 Bulletin des arrêts de la Cour de cassation, Troisième section civile 195.

117 Id. See Lejars v. Helezen, Judgment of July 3, 1951, Cass, comm., 1951 Dalloz, Jurisprudence [D. Jur.] 701 (where the Court of Cassation affirmed an order appointing an expert to inspect a delivery of beans even though the contract of sale contained an arbitration clause: “Such an arbitration clause did not deprive . . . the president of the commercial court en référé, presented with a case of urgency . . . [from issuing an order] of a purely conservatory nature. . . .”); Georges Bernard v. Société General Mercantile Co., Judgment of June 21, 1904, Cass, req., 1906 Périodique et critique I, at 395 (although a contract for the sale of corn provided for arbitration, the court nevertheless issued an order appointing an expert to inspect the allegedly damaged goods). See also Compagnie d’assurances La Vigilance v. Dumas, Judgment of Dec. 4, 1953, Cass. civ. 2e, 1954 D. Jur. 108 (Court of Cassation reversed a decision of the Court of Appeal of Bourges that it lacked jurisdiction to appoint an escrow agent because of an arbitration agreement between the parties).

118 Judgment of July 9, 1979, Cass. civ. 3e, 1980 Revue D’Arbitrage 78.

119 Id. But see République Islamique d’Iran v. Commissariat à l’Energie Atomique, Judgment of Mar. 14, 1984, Cass. civ. Ire, 1984 J.C.P. II, at 20,205 (2e arrêt), a companion case to the EURODIF case discussed above, where Iran filed a petition for an interlocutory payment by the French Atomic Energy Commission (CEA) and France. Both the lower court and the Court of Appeal of Paris denied the petition on the ground that both the loan agreement between the CEA and Iran and the guaranty by the French Government were governmental agreements and hence outside the jurisdiction of the courts. The Court of Cassation affirmed the decision, but on completely different grounds. While recognizing that a court may order interim and conservatory measures even though the parties have agreed to arbitration, the Court held that an order of interlocutory payment after an arbitral proceeding has commenced could not be properly characterized as an interim or conservatory measure. Such an order would touch on the merits of the case, which the arbitral tribunal alone was competent to decide.

120 Buhart, , Attachments and Other Interim Court Remedies in Support of Arbitration, Int’l Bus. Law., March 1984 Google Scholar, at 107, 110.