The International Centre for the Settlement of Investment Disputes (ICSID) Convention allows parties to an ICSID arbitration to request provisional measures from arbitral tribunals. Provisional measures are frequently requested in the course of arbitrations, and the ICSID has compiled a comprehensive table with past requests for provisional measures, showing when requests for provisional measures in ICSID investment arbitration were granted and when they were rejected.
According to Article 47 of the ICSID Convention, arbitral tribunals are vested with the power to grant “any” provisional measures which they deem necessary.
“Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.”
Any such order that a tribunal makes is considered binding, despite the use of the word “recommend” in the text of the Convention.[1]
In addition, Rule 39 of the ICSID Arbitration Rules lays out the procedure for granting provisional measures in ICSID investment arbitration. An application to a tribunal must include the rights the party is seeking to preserve, the types of measures requested and the circumstances that make them necessary.
“(1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures.
(2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1).
(3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.
(4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.
(5) If a party makes a request pursuant to paragraph (1) before the constitution of the Tribunal, the Secretary-General shall, on the application of either party, fix time limits for the parties to present observations on the request, so that the request and observations may be considered by the Tribunal promptly upon its constitution.
(6) Nothing in this Rule shall prevent the parties, provided that they have so stipulated in the agreement recording their consent, from requesting any judicial or other authority to order provisional measures, prior to or after the institution of the proceeding, for the preservation of their respective rights and interests.”
ICSID tribunals have accepted that, in order to be able to grant provisional measures pursuant to Article 47 and Rule 39, they must be satisfied that they have prima facie jurisdiction to hear the case. This assessment will not, however, prejudice their findings on jurisdiction in later stages of the dispute.
Furthermore, the threshold for granting provisional measures of any kind is usually high and tribunals are guided by the principles of urgency and necessity in their assessment of whether the circumstances warrant the requested protection to prevent irreparable harm to the rights of the party.
Provisional measures may take any form that the parties request or the tribunals consider appropriate. Among others, these may be measures that ensure the preservation of evidence, or provide for security for costs.
A controversial category of provisional measures includes measures ordering States to halt judicial proceedings against the investors in their jurisdiction. Such orders not only limit a State’s legitimate exercise of sovereignty, but at the same time arguably constitute an affront to the separation of powers, since they may involve an interference by the executive into judicial matters. In fact, a recent ICSID tribunal, when requested to order the cessation of criminal investigations in the Respondent State, declared that it lacked the ability to make such an order, considering that no convincing evidence of bad faith on the part of the Respondent State had been presented.[2] This decision is reproduced below.
Despite the high threshold required, provisional measures in ICSID investment arbitrations are an important tool for both investors and Respondent States, as they can guarantee both parties’ cooperation during the arbitration, safeguard the parties’ interests and help to ensure compliance with an eventual award.
- Anastasia Choromidou, Aceris Law
[1] Emilio Agustin Maffezini v The Kingdom of Spain, Procedural Order No 2, 28 October 1999, para. 9, available at https://www.italaw.com/sites/default/files/case-documents/ita0477.pdf.
[2] Italba Corporation v Oriental Republic of Uruguay, Decision on Claiamant’s Application for Provisional Measures and Temporary Relief, 15 February 2017, para. 116, available at http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C5306/DC9973_En.pdf.