The Continuing Controversy over Provisional Measures in International Disputes

Abstract

I. Of Practice and Principle The dramatic events in the recent case of Motorola Credit Corporation v. Uzan et al 1 demonstrate the global potency of provisional measures in modern international litigation. Following a multi-billion dollar default on its loans to a Turkish mobile telephone operator, Motorola brought a complaint of fraud against its Turkish partner’s owners to the Southern District of New York. It then pursued an application for a freezing injunction in support of the New York proceedings in England. Its coup de grâce was to seek enforcement of that order in Switzerland, a strategy which has now received the blessing of the Swiss Federal Supreme Court. The experience of this case could be multiplied many times from the law reports in both public and private international litigation. Very often the availability of provisional measures is of huge practical importance to the parties, and may be decisive of the outcome of the case. This is not only true of the large multi-jurisdictional commercial and fraud cases typified by the Motorola litigation. In international tribunals, too, the interim measures jurisdiction may overshadow the settlement of disputes on the merits, as the initial experience of the International Tribunal for the Law of the Sea demonstrates. It is doubtless true, as Jiménez de Aréchaga held in the Aegean Sea Continental Shelf case in the International Court of Justice, that the interim protection of rights is a general principle of law recognized by civilised nations:2