The authority of arbitral tribunals to grant interim or provisional measures in international investment arbitration is today uncontested and represents current practice[1]. This “inherent power”[2] of arbitral tribunals is encompassed in multiple investment arbitration instruments, such as Article 47 of the ICSID Convention, Article 39 of the ICSID Arbitration Rules, Article 26 of the UNCITRAL Arbitration Rules and Article 1134 of the North American Free Trade Agreement.

This article, however, does not deal with the legal framework of the tribunals’ ability to order provisional measures or with conditions to be met in order to grant different sorts of provisional measures. It addresses the specific issue of their compliance by the parties.

Provisional measures in international investment arbitration are binding on Parties

To avoid a Pyrrhic victory character of provisional measures issued by arbitral tribunals, it is logical that they shall be obligatory to parties.  Although this conclusion results from the wording of non-ICSID arbitral rules[3], it is not self-imposing for provisional measures granted by ICSID arbitral tribunals since the above-referenced Article 47 of the ICSID Convention states that tribunals have the power to only “recommend” such measures.

However, ICSID tribunals have interpreted this term in the same vein as the term “order”. As stated in Maffezini case “while there is a semantic difference between the word ‘recommend’ as used in Rule 39 and the word ‘order’ as used elsewhere in the Rules to describe the Tribunal’s ability to require a party to take a certain action, the difference is more apparent than real. It should be noted that the Spanish text of that Rule uses also the word ‘dictación’. The Tribunal does not believe that the parties to the Convention meant to create a substantial difference in the effect of these two words. The Tribunal’s authority to rule on provisional measures is no less binding than that of a final award. Accordingly, for the purposes of this Order, the Tribunal deems the word ‘recommend’ to be of equivalent value as the word ‘order.”[4]

Provisional measures in international investment arbitration are not self-executing

Notwithstanding their binding force, it should be noted that provisional measures are not self-executing. This is due to the fact that arbitral tribunals do not dispose of imperium, i.e., coercive power, which distinguished them from their state judges.[5] In other words, their enforcement depends on parties’ good will.

Absent such good will, the purpose of provisional measures could thus be annihilated, if the parties decide not to execute them spontaneously.

Powers of arbitral tribunals to make parties comply with provisional measures in international investment arbitration

Arbitral tribunals dispose, however, of several procedural tools allowing them to force the parties to comply with provisional measures in international investment arbitration. These tools vary depending on the measure ordered.

Among basic tools, we can cite:

• Adverse inferences

This tool is used by arbitral tribunals to reprehend parties’ non-cooperative behavior during the document production phase of arbitral proceedings[6].

• Additional damages

Should the non-respect of provisional measures lead to aggravation of harm, arbitral tribunals may allocate additional damages. For example, in the Chevron Case, the tribunal invited the recalcitrant State “to show cause (…) why the Respondent should not now compensate the First Claimant for any harm caused by the Respondent’s violations of the First and Second Interim Awards.”[7]

Zuzana Vysúdilová, Aceris Law SARL

[1] See P.D. FRIEDLAND, Provisional Measures and ICSID Arbitration, Arbitration International, Vol. 2, 1986, pp. 335-357; R. BISMUTH, Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration, Journal of International Arbitration 26(6), 2009, pp. 773-821; L. BENTO, “Chapter 13: Mapping the Genetic Code of Provisional Measures: Characteristics and Recent Developments”, in C. Baltag, ICSID Convention after 50 Years: Unsettled Issues, Kluwer Law International, 2016, pp. 363-384; A. ANTONIETTI, G. KAUFMANN-KOHLER, “Interim relief in International Investment Agreements”, in K. Yannaca-Small (Ed.), Arbitration under International Investment Agreements: An analysis of the Key Procedural, Jurisdictional and Substantive Issues, Oxford University Press 2010, pp. 507-550; P. KARRER, Interim Measures Issued by Arbitral Tribunals and the Courts: Less Theory, Please, International Arbitration and National Courts, ICCA Congress Series n°10, 2010; D. SAROOSHI, Provisional Measures and Investment Treaty Arbitration, Arbitration International, Vol. 29, N° 3, 2013, pp. 361-379.

[2] A. YESILIMAK, Provisional Measures in International Commercial Arbitration, 2005, pp. 55-57.

[3] For UNCITRAL Arbitration Rules, see Chevron Corporation & Texaco Petroleum Company v. Ecuador, PCA Case No. 2009-23, Fourth Interim Award on Interim Measures, 7 February 2013, paras. 77-82.

[4]Emilio Maffezini v. Spain, ICSID Case n° ARB/97/7, Decision on Provisional Measures, 28 October 1999, para. 9. See also Tokios Tokelés v. Ukraine, ICSID Case. No. ARB/02/18, Procedural order No. 1, 1 July 2003, para. 3; City Oriente Ltd. v. Republic of Ecuador and Empresa Estatal Petroleos del Ecuador (Petroecuador), ICSID Case No. ARB/06/21, Decision on Provisional Measures, November 19, 2007, para. 52.

[5] See Ch. JARROSSON, “Réflexions sur l’imperium’, in Etudes offertes à Pierre Bellet, Litec, pp. 245-279.

[6] See J. K. SHARPE, Drawing Adverse Inferences from the Non-Production of Evidence, 22 Arbitration International, 2006, pp. 549-570.

[7] Chevron Corporation & Texaco Petroleum Company v. Ecuador, PCA Case No. 2009-23, Fourth Interim Award on Interim Measures, 7 February 2013, para. 81.