Provisional measures are a temporary remedy granted by courts and tribunals in exceptional circumstances. Provisional measures aim to preserve the respective rights of the parties pending the decision of the court or tribunal.[1] While it is generally accepted that provisional measures can be granted in international arbitration, as before the ICJ, the circumstances under which the party seeking the preliminary measure must prove to the tribunal or court may differ depending on the applicable procedural rules.
Rules Governing Preliminary Measures
The granting of provisional measures is generally accepted as a power of arbitral tribunals. The Swiss Private International Law stipulates that:
Unless the parties have agreed otherwise, the arbitral tribunal may, at the request of a party, order interim measures or conservatory measures.[2]
Similarly, the provisions of the Austrian Code of Civil Procedure relevant to international arbitration provide that:
Unless otherwise agreed by the parties, the arbitral tribunal may, upon request of a party and after hearing the other party, order against the other party such interim or protective measures it deems necessary in respect of the subject-matter in dispute if the enforcement of the claim were otherwise frustrated or significantly impeded, or there were a risk of irreparable harm. The arbitral tribunal may request any party to provide appropriate security in connection with such measure.[3]
The provisions of the Swedish Arbitration Act also recognize an arbitral tribunal’s power to grant provisional measures:
Unless the parties have agreed otherwise, the arbitrators may, at the request of a party, decide that, during the proceedings, the opposing party must undertake a certain interim measure to secure the claim which is to be adjudicated by the arbitrators. The arbitrators may prescribe that the party requesting the interim measure must provide reasonable security for the damage which may be incurred by the opposing party as a result of the interim measure.[4]
This position can also be found in procedural rules, including the LCIA Arbitration Rules 2000,[5] and the 2018 DIS Arbitration Rules, which stipulate that:
Unless the parties have agreed otherwise, the arbitral tribunal may, at the request of a party, order interim or conservatory measures, and may amend, suspend or revoke any such measure. The arbitral tribunal shall transmit the request to the other party for comments. The arbitral tribunal may request any party to provide appropriate security in connection with such measures.[6]
National procedural laws and institutional rules generally accept the arbitral tribunals’ power to grant provisional measures. However, while these provisions grant the tribunals’ power to order provisional measures, they do not specify in what circumstances such measures should be ordered. This can be inferred from international jurisprudence, in particular, the jurisprudence of the International Court of Justice (ICJ).
ICJ Jurisprudence on Provisional Measures
The ICJ’s right to order provisional measures is explicitly recognized by Article 41 of the ICJ Statute.[7] This reads:
Although Article 41 does not specify the required exceptional circumstances, the Court, interpreting the provisions of Article 41 of the Statute, has established the following requirements:
- Prima facie jurisdiction over the merits. The Court has stated that it is prohibited from granting preliminary measures unless “the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded”.[8]
- Plausibility of rights. The Court has stated that the right which the applicant wishes to preserve must be a “right[] which [is] the subject of dispute in judicial proceedings”.[9]
- Risk of irreparable prejudice and urgency. The Court has indicated that provisional measures are “only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before the final decision is given”.[10]
South Africa v. Israel
The ICJ has recently applied these requirements in South Africa v. Israel. In its analysis of prima facie jurisdiction, the ICJ confirmed that it may indicate provisional measures only if it finds prima facie jurisdiction. South Africa argued that the foundation of the ICJ’s jurisdiction lies in Article IX of the Genocide Convention, which makes the Court’s jurisdiction conditional on the existence of a dispute relating to the interpretation, application, or fulfillment of the Convention.[11] The Court found the existence of a dispute in the fact that South Africa issued public statements expressing its view on Israel’s actions, including its violation of the Genocide Convention, which Israel contested.[12]
The ICJ also analyzed the plausibility of the rights South Africa wants to preserve. As the jurisdiction of the Court is based on the Genocide Convention, the ICJ recalled that under Article I of the Convention, all States have undertaken to prevent and punish the crime of genocide. The Court recognized the correlation between the rights of members of groups protected under the Convention, the obligations incumbent on the State parties, and the right of any State party to seek compliance with the Convention by another State party. In reliance on information from UN agencies, as well as Israeli officials, the Court concluded that “at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.”[13]
Regarding the risk of irreparable prejudice and urgency, the ICJ considered that the civilian population in the Gaza Strip remains highly vulnerable and recalled that Israel’s actions have resulted in tens of thousands of deaths and injuries. Moreover, the Court noted that the President of Israel announced that the war would take many more long months. Thus, the ICJ considered that there was urgency, in the sense that there was an actual and imminent risk that irreparable prejudice would be caused before its final decision.[14] Thus, the Court indicated many, but not all, of the preliminary measures sought by South Africa.[15]
Summary
Although the right for a tribunal or court to grant provisional measures is universally recognized, its requirements are not universally applied. The ICJ’s jurisprudence has established that an applicant needs to demonstrate prima facie jurisdiction, the plausibility of its rights, and a risk of irreparable prejudice and urgency for the Court to indicate preliminary measures, as underscored in the Court’s order in South Africa v. Israel.
[1] Finland v. Denmark, ICJ, Order of 29 July 1991, para. 16.
[2] Swiss Federal Act on Private International Law, Article 183(1).
[3] Austrian Code of Civil Procedure, Section 593(1).
[4] Swedish Arbitration Act, Section 25.
[5] LCIA Arbitration Rules, Article 25.
[6] DIS Arbitration Rules, Article25.1
[7] ICJ Statute, Article 41.
[8] Finland v. Denmark, ICJ, Order of 29 July 1991, para. 14.
[9] Finland v. Denmark, ICJ, Order of 29 July 1991, para. 16.
[10] Finland v. Denmark, ICJ, Order of 29 July 1991, para. 23.
[11] South Africa v. Israel, ICJ, Order of 26 January 2024, para. 19.
[12] South Africa v. Israel, ICJ, Order of 26 January 2024, paras. 26-29.
[13] South Africa v. Israel, ICJ, Order of 26 January 2024, paras 37-55.
[14] South Africa v. Israel, ICJ, Order of 26 January 2024, paras. 65-74.
[15] South Africa v. Israel, ICJ, Order of 26 January 2024, para. 86.