A. Agreement that Other Remedies are Not Excluded

The first sentence of Article 26 of the Convention provides that the consent of the parties to arbitration "shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy." Since this provision permits the parties to "state otherwise," they may do so by means of a clause along the following lines.

Clause 12

The consent to the jurisdiction of the Centre recorded in citation of basic clause above shall not preclude either party hereto from resorting to the following alternative remedy: identification of other type of proceeding. While such other proceeding is pending, no arbitration proceeding pursuant to the Convention shall be instituted.

B. Requirement to Exhaust Local Remedies

The second sentence of Article 26 of the Convention permits a Contracting State to "require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention." If a State so requires, a clause along the following lines might be included in the consent agreement.

Clause 13

Before either party hereto institutes an arbitration proceeding under the Convention with respect to a particular dispute, that party must have taken all steps necessary to exhaust the [following] [administrative] [and] [judicial] remedies available under the laws of the Host State with respect to that dispute [list of required remedies], unless the other party hereto waives that requirement in writing.

C. Provisional Measures

Article 47 of the Convention provides that, except as the parties otherwise agree, a Tribunal may, if it considers the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party. Under Arbitration Rule 39(5) the parties may, if they have so provided in their consent agreement, also request a court or other authority to order provisional measures. If the parties wish thus to provide for the possibility of seeking court-ordered provisional measures, they may use a clause such as the following for the purpose.

Clause 14

Without prejudice to the power of the Arbitral Tribunal to recommend provisional measures, either party hereto may request any judicial or other authority to order any provisional or conservatory measure, including attachment, prior to the institution of the arbitration proceeding, or during the proceeding, for the preservation of its rights and interests.

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