Interim measures can be of immense importance to parties involved in investment arbitration proceedings. The time between the commencement of investment arbitration and the rendering of the final award can span a few years, and events occurring during this time could threaten the conduct of the proceedings and render the final award hollow. Interim measures may prove critical to preserving a party’s rights pending the final award. Securing interim measures in investment arbitration presents several particularities that arbitration practitioners have to familiarise themselves with.

Four key aspects of interim measures, which will be considered below, are: (1) jurisdiction to order such measures; (2) preconditions to their granting; (3) types of measures available; and (4) their effectiveness.

All the major institutional rules provide for the granting of interim relief. The rules surveyed here include rules commonly used in investment arbitration – ICSID, ICSID Additional Facility (ICSID AF), UNCITRAL (both 1976 and 2010) and SCC – as well as the ICC Arbitration Rules and the recently released SIAC Investment Rules.2

I Jurisdiction to Order Interim Measures

All of the UNCITRAL 1976,3 UNCITRAL 2010,4 ICC,5 SCC6 rules and the SIAC Investment Rules7 expressly condition the grant of interim relief on there being a request made by a party. Exceptionally, the ICSID and ICSID AF Rules allow a tribunal to recommend interim measures of its own initiative.8 The ICSID AF Rules additionally specify that the tribunal may recommend measures other than those requested.9

All sets of rules examined also provide that parties may apply to national courts for interim relief.10 However, the ICSID Rules additionally require that the parties must consent to recourse to national courts in order to be able to do so.11 This requirement of party consent was introduced in the 1984 amendments to the ICSID Rules12 to engineer compatibility between the interim measures regime and the exclusive jurisdiction that an ICSID tribunal enjoys over a dispute submitted to ICSID arbitration.13

More generally, the parties’ freedom to have recourse to domestic interim relief after the arbitration tribunal is constituted is often limited. The ICC Rules stipulate that this may only be done in ‘appropriate circumstances’, while the as yet untested SIAC Investment Rules require ‘exceptional circumstances’.14 Such circumstances would exist when the tribunal is not in a position to provide effective relief, for example, against third parties over which the tribunal has no jurisdiction.

Of all the arbitration rules examined, only the ICSID and ICSID AF Rules expressly require that the tribunal give each party an opportunity to be heard.15 The remaining rules surveyed are silent on the issue. However, ex parte relief is probably not available in investment arbitration as this could amount to a fundamental breach of procedural fairness (the requirement of audi alteram partem), leaving the award vulnerable to being set aside.

A different issue is whether tribunals have the power to issue orders maintaining the status quo pending a response from the party against whom the request for interim measures is submitted. The UNCITRAL Model Law expressly provides for such a possibility,16 which is not uncommon in investment arbitration practice, irrespective of the set of arbitration rules applicable.17 In the Von Pezold v. Zimbabwe case, the state ordered the claimants to allow an inspection of share registers of all companies linked to the ICSID proceedings, which was to take place two days later, and threatened criminal prosecution if the claimants refused to comply. Immediately upon receiving the state’s letter, the claimants filed a request for an order preventing such research. The president of the tribunal ordered, one day later and without inviting the state’s comments, the requested relief, 18 highlighting that he would ‘confer with [the other arbitrators] as soon as possible regarding the final determination of the Application, including the need, if any, for reconsideration of these instructions’.19

Another difference between the various sets of rules is the availability of emergency relief, or relief before the tribunal is constituted. Given the time-sensitive circumstances under which most interim relief is commonly requested, parties may require relief prior to the relatively lengthy process of constituting the tribunal. Only the ICC, SCC and SIAC Investment Rules allow for emergency relief.

As a matter of fact, there is some uncertainty as to whether emergency relief is available in treaty-based investment arbitration conducted under the ICC Rules. While the SIAC Investment Rules require the parties’ express consent before the emergency provisions apply,20 and the SCC rules do not impose any separate requirement of party consent, the ICC emergency arbitrator provisions require both parties to be signatories to the arbitration agreement.21 Certain commentators consider that this excludes treaty-based investment arbitration;22 given that the state’s offer to arbitrate is contained in the treaty and is accepted by the investor’s request for arbitration, there is no orthodox arbitration agreement. The issue has not yet arisen in practice.

Under the SCC and SIAC Investment Rules (but not the ICC Rules), emergency orders granted cease to be binding if the dispute is not referred to a tribunal within 90 days of their granting. This safeguards against abuse of the emergency process by a party that has no intention of commencing arbitral proceedings.

Only the SCC provisions on emergency proceedings have been tested in investment arbitration, with emergency relief granted in three reported cases.23 Two questions of note were answered by the emergency arbitrators in these proceedings: (1) emergency relief could be granted even if the investment treaty had been concluded before the introduction of the SCC emergency provisions; 24 and (2) emergency relief could be granted notwithstanding the requirement of a cooling-off period in an investment treaty.25

II Preconditions for the Granting of Interim Measures

The preconditions for the granting of interim measures are generally not expressly set out in the applicable arbitration rules. Indeed, the ICC and SCC Rules contain no further indication than requiring that the arbitral tribunal grant only the measures it ‘deems appropriate’.26 For its part, Article 47 of the ICSID Convention merely states that ‘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,’27 and Article 39 of the ICSID Rules does not provide more details on the requirements that a request for interim measures must meet: ‘the request shall specify the rights to be preserved, the measures the recommendation of which is requested and the circumstances that require such measures.’28

Only the UNCITRAL Rules 2010 expressly set out the preconditions for the granting of interim measures, namely (1) the threat of a ‘harm not adequately reparable by an award of damages’ (necessity), (2) that ‘substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted’ (proportionality), and (3) a ‘reasonable possibility that the requesting party will succeed on the merits of the claim’ (prima facie claim on the merits).29 These preconditions are also included in Article 17 of the UNCITRAL Model Law.30

Commentators and investment arbitration jurisprudence refer to most (or all) of the following criteria for the granting of interim measures:

  • a prima facie jurisdiction;
  • b a prima facie claim on the merits;
  • c necessity;
  • d urgency; and
  • e proportionality.31
i Prima facie jurisdiction

Even though none of the rules examined provide for this precondition, tribunals often assess their prima facie jurisdiction before granting interim measures.32 The assessment is prima facie only, as requests for interim measures must be dealt with as a matter of priority. Arbitrators are required to simply satisfy themselves that they do not manifestly lack jurisdiction over the underlying claim.33 ICSID tribunals can rely on the Secretary General’s registration of a request for arbitration as a token of such prima facie jurisdiction, as he or she would not do so where the dispute falls manifestly outside ICSID jurisdiction.34

Accordingly, the granting of interim measures does not prejudge the tribunal’s ultimate jurisdiction over the dispute, or preclude a jurisdictional challenge.

ii Prima facie claim on the merits

Only the UNCITRAL Rules 2010 specifically require this precondition. However, it has also been applied in arbitrations under other sets of rules.35 It is not a stringent requirement, and the tribunal here needs only to assess a prima facie review of the merits36 to satisfy itself that the claims made are ‘not, on their face, frivolously or obviously outside the competence of the [t]ribunal’.37 We are not aware of any case in which the tribunal refused to award interim measures based on a lack of a prima facie claim on the merits.

iii Necessity

One of the main criteria that arbitrators have to assess before ordering interim measures is whether these measures are necessary to preserve the rights of one of the parties to the arbitration.38

Two standards on the requisite level of necessity have emerged in international arbitration practice. The higher standard is inspired by the International Court of Justice, which in LaGrand interpreted necessity as the prospect of irreparable harm.39 This standard was applied by the ICSID tribunal in Occidental v. Ecuador, which considered that a provisional measure is necessary where the actions of a party are ‘capable of causing or of threatening irreparable prejudice to the rights invoked’.40 The claimant in Occidental v. Ecuador requested provisional measures to compel Ecuador to fund and preserve a particular oil field. The tribunal refused to grant the requested provisional measures on the grounds that the relief sought was merely aimed at reducing the amount of damages incurred by the claimant. Since the alleged harm was compensable by monetary damages, provisional measures could not be granted.41 The tribunal in Quiborax v. Bolivia acknowledged the ICJ jurisprudence, and, by referring to Article 17A of the UNCITRAL Model Law (reproduced in the UNCITRAL Rules 2010),42 explained that irreparable harm is harm that cannot be repaid by the award of damages.43 This view was shared by the ICSID tribunal in Plama v. Bulgaria. The dispute involved the decision by a Bulgarian district court that had ordered that the company constituting the claimant’s investment in Bulgaria be declared bankrupt, and that its assets be sold and distributed to its creditors. The tribunal refused to order the discontinuance of the insolvency proceedings, as it considered that, regardless of the outcome of the Bulgarian proceedings, the claimant’s right to pursue its claim for damages in the ICSID arbitration and the tribunal’s ability to decide this claim remained unaffected.44

The lower standard requires merely that the applying party risk suffering significant harm should the provisional measures not be granted. In Perenco v. Ecuador, the tribunal considered that ‘where action by one party may cause loss to the other which may not be capable of being made good by an eventual award of damages, the test in [Article 47 of the ICSID Convention] is likely to be met. But the Article does not lay down a test of irreparable loss and the authorities do not warrant so narrow a construction.’45 The tribunal ordered that Ecuador refrain from collecting on certain taxes, because this would expose the claimant to imminent seizure of its assets in Ecuador and bring the claimant’s business in the country to an end.46

In City Oriente v. Ecuador, the tribunal noted that ‘it is not so essential that provisional measures be necessary to prevent irreparable harm, but that the harm spared the petitioner by such measures must be significant and that it exceeds greatly the damage caused to the party affected thereby.’47 Therefore, the City Oriente tribunal replaced the requirement of irreparable harm with a proportionality element.

It is worth noting that the ICJ’s test in LaGrand was birthed in extreme circumstances, in which provisional measures were sought to stay the execution of a German national by the United States.48 It is difficult to think of a more acute situation of irreparable harm. Such situations are unlikely in investment arbitration, and it is questionable whether this high threshold is adequate in that specific field.49

iv Urgency

Although not expressly required by the arbitration rules surveyed, urgency has been referred to as ‘the most important (even a sine qua non) consideration for the granting of interim measures’,50 as provisional measures ‘will only be appropriate where a question cannot await the outcome of the award on the merits’.51 Thus, tribunals have regularly considered urgency as a requirement for the granting of interim measures.52

In practice, urgency appears to be the assessment of necessity in the prevailing circumstances.53 This was well articulated by the tribunal in Perenco v. Ecuador : ‘[p]rovisional measures may only be granted where they are urgent, because they cannot be necessary if, for the time being, there is no demonstrable need for them’.54

The degree of urgency required before provisional measures should be granted depends on the circumstances and nature of the measures sought.55 Typically, urgency is related to the prospect of potential harm being caused to the applying party before the final award is rendered by the tribunal.56 In any event, the applying party is obliged to demonstrate that the threat to its interests is imminent and likely to occur. Mere possibility or hypothetical harm are insufficient grounds for such measures.57

v Proportionality

It is generally admitted that ‘the risk of harm must be assessed with respect to the rights of either party.’58 Most of the institutional arbitration rules are silent on this requirement, except for Article 26 of the UNCITRAL Rules 2010, which expressly requires that the harm the applicant is likely to suffer ‘substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted’.59

This is akin to the common law doctrine of the ‘balance of convenience’, whereby a tribunal must compare the harm that would result to either party if it turned out at the stage of the final award that provisional measures were wrongly granted or withheld.60 Tribunals may consider proportionality either as a standalone requirement61 or, more commonly, as part of the requirement of necessity.62

Tribunals pay heightened attention to the requirement of proportionality when potential impingement on the sovereign powers of a state is at stake. This is particularly obvious in cases involving applications for the stay of domestic criminal proceedings to protect the arbitral process. As the tribunal in Hydro S.r.l v. Albania considered, ‘criminal law and procedure are a most obvious and undisputed part of a State’s sovereignty’ and, therefore, ‘any obstruction of the investigation or prosecution of conduct that is reasonably suspected to be criminal in nature should only be ordered where that is absolutely necessary’.63 The tribunal granted the measures sought, reasoning that the state’s threat to incarcerate the claimants would affect their ability to participate in the arbitration, while a stay of the criminal proceedings would merely postpone the state’s ability to bring those proceedings.64

III Types of Measures Granted by Investment Tribunals

There is generally no restriction on the types of interim relief available. Measures granted by tribunals are generally measures that:

  • a require the parties to cooperate in the proceedings or preserve evidence, or decide on confidentiality;
  • b preserve the status quo between the parties and avoid further aggravation of the dispute through unilateral action;
  • c prevent the parties from seeking relief through other remedies, for example, by staying parallel proceedings; or
  • d secure compliance with an eventual award, for example, by ordering security for costs.65

This chapter focuses on the latter three categories, and more specifically measures that (1) preserve the status quo and avoid further aggravation of the dispute, (2) order that parallel proceedings be stayed and (3) order security for costs.

i Measures to maintain the status quo and avoid further aggravation of the dispute

The principle that a dispute should not be aggravated is part of general international law.66 It was the basis upon which Article 47 of the ICSID Convention (which empowers the arbitral tribunal to grant interim relief) was drafted,67 and has been expressly acknowledged as a general obligation incumbent on disputing parties by several ICSID tribunals.68

As a matter of fact, the preservation of the status quo or the non-aggravation of the dispute, rather than being considered as a type of interim measure, may be considered as a criterion for granting interim measures, which applies to several types of measures. In practice, the preservation of the status quo or the non-aggravation of the dispute has been used as a ground for a very wide range of applications for relief, such as ordering the stay of proceedings in domestic courts,69 preventing the respondent from publicising criminal investigations,70 or preserving disputed contractual rights.71

This large scope of measures that fall under the preservation of the status quo and non-aggravation of the dispute contradicts the application of the high threshold for the necessity criterion. If the arbitral tribunal applies the irreparable harm standard (i.e., if interim measures can only be granted to prevent harm that cannot be repaired with an award for monetary damages), then by definition, interim measures seeking simply to preserve the status quo or to prevent the aggravation of the dispute should be precluded. It has, therefore, been noted that:

[the irreparable harm] approach reduces the effectiveness of the rule of non-aggravation since one party may actually exacerbate the dispute by increasing the damages inflicted to the other party provided that remedies to compensate such injuries are available in a later stage of the proceedings. To some extent, the rule loses its preventive nature under this criterion.72

ii Measures to stay parallel proceedings

Many international tribunals have granted interim measures directed at the conduct of domestic courts.73 The most controversial variety of such measures consists in injunctions against the state’s conduct of criminal proceedings against the claimant.

States’ power to prosecute has regrettably been used against claimants in retaliation for the commencement of arbitral proceedings, resulting in applications to the arbitral tribunal for injunctive relief. On the other hand, tribunals are reluctant to infringe on a core aspect of state sovereign power: the national judge’s ability to initiate criminal proceedings.74 Relief will only be granted where there is a clear abuse of the criminal process, for example, where the criminal proceedings were politically motivated, initiated as a ‘defence strategy’ to the arbitration,75 or as a means of compelling the claimant to comply with alleged obligations that are disputed in the arbitration.76

iii Measures ordering security for costs

The SCC Arbitration Rules explicitly provide for the possibility for tribunals to order security for costs.77 Security for costs can also be considered as provided for under Article 26(2)(c) of the UNCITRAL Rules 2010, which refers to measures that ‘provide a means of preserving assets out of which a subsequent award may be satisfied’.78

Although investment arbitration tribunals have generally acknowledged their power to grant security for costs, even under other sets of rules,79 they are very reluctant to grant such measures. Tribunals have referred to various reasons for their refusals, including that it would be improper to prejudge the claimant’s case,80 or because there is no imminent harm at stake.81

Tribunals have stated that security for costs might be ordered in the most extreme cases, such as where essential interests of either party stand in danger of irreparable damage,82 or where abuse or serious misconduct is apparent.83 Financial difficulties and third-party funding do not constitute in themselves exceptional circumstances justifying the granting of security for costs.84 Neither would the fact that the claimant investor is a ‘shell company’ without assets of its own, as special purpose or joint venture vehicles are common in investment making.85

The tribunal in RSM Production Corporation v. Santa Lucia ordered the claimant to provide security for the respondent’s costs, as it was satisfied that such exceptional circumstances were met, highlighting that ‘the difference between the present proceeding and previous ICSID arbitrations in which the request for security for costs was in every case denied, is that in this case the circumstances which were brought forward in other proceedings occur cumulatively.’86 According to the tribunal, there was a material risk of non-compliance with a cost award given the claimant’s non-compliance with cost awards in previous proceedings that it had initiated,87 combined with a serious lack of financial assets given that the claimant’s claim was financed by a third party.

IV The Effectiveness and Enforcement of Interim Measures

The ICSID Rules state that a tribunal may ‘recommend’ interim measures.88 The ICC and SIAC Investment Rules use the more imperative term ‘order’,89 while the remaining rules surveyed use more neutral terms such as ‘grant’ or ‘take’.90 Notwithstanding the difference in terminology, interim measures ordered in investment arbitration are considered as binding on the parties.91

On the other hand, tribunals lack the coercive power of state courts, and have limited ability to compel enforcement of the interim relief granted. The tribunal’s own coercive powers extend only to costs sanctions, and the drawing of adverse inferences against a party on matters of evidence. For example, the claimant in MINE v. Guinea92 was slow to withdraw parallel proceedings in Belgium and Switzerland that conflicted with the ICSID tribunal’s exclusive jurisdiction, and was ordered to pay the respondent’s costs for those proceedings. Another example is the adverse inference drawn by the tribunal in AGIP v. Congo against the respondent for failing to cooperate with orders to preserve evidence.93

There are examples of respondent states pre-empting orders for provisional measures, by voluntarily undertaking to preserve certain rights for the claimant. For example, the government in Vacuum Salt v. Ghana undertook that it would not deny the claimant access to certain records requested. The tribunal considered that this satisfied the claimant’s concerns expressed in its request for provisional measures, and did not see the need to order relief.94 Another example is found in Italba v. Uruguay, where the claimant sought to restrain Uruguay’s criminal investigations against two of the claimant’s witnesses. The government of Uruguay undertook that these investigations would not impede the witnesses’ ability to participate in the claimant’s case and freely offer their testimony. The tribunal was persuaded by these undertakings, inter alia, and declined to restrain the investigations.95

On the other hand, and more particularly where anti-enforcement or anti-suit injunctions regarding proceedings against the claiming investor are concerned, there is an understandable difficulty with enforcing the interim measures, given that a state’s sovereign rights are implicated. Reportedly, out of 10 orders granted by ICSID tribunals between 2000 and 2010 for relief suspending domestic litigation, only two were complied with.96

If measures of enforcement are required, the requesting party must resign itself to turn to national courts for assistance. This can be a complicated exercise given that international conventions, in particular the New York Convention,97 and domestic rules typically only provide for the enforcement of awards and not orders.

In this regard, in Chevron v. Ecuador, the tribunal re-issued interim measures previously granted in procedural order in the form of an interim award,98 stating that such an award was ‘immediately final and binding’ upon the parties. The relevant interim measures sought to preclude the state from enforcing an anticipated judgment issued by an Ecuadorian court against the claimants.

However, naming an interim measures order as an ‘award’ is unlikely to resolve all enforceability issues. A key characteristic of an award is that it finally resolves a substantive issue between the parties and not just a procedural matter. Interim measures are employed precisely to secure the applying party’s rights prior to the final resolution of the dispute on its merits, and are subject to review and reversal.99 There is a practice among certain national jurisdictions to refuse to enforce interim orders as awards under the New York Convention 1958, no matter their title.100

On the other hand, jurisdictions that have adopted Articles 17H and 17I of the UNCITRAL Model Law 1985 with the amendments of 2006, specifically provide that interim measures issued by an arbitral tribunal are binding and shall be enforced by a competent national court subject to specified grounds for refusing such enforcement.101

V Conclusion

As was exposed in the paragraphs above, it is generally accepted today that international investment tribunals have the power to take a wide array of interim measures. The jurisdiction of tribunals (or of national courts, pending arbitration proceedings) is not subject to particular controversies. However, there are several issues relating to the legal framework of interim measures in investment arbitration that are not yet crystallised: the conditions for their granting, the meaning of the necessity requirement and their enforcement by the national judge. It is to be hoped that the future will bring the desired harmonisation, limiting guerrilla tactics in arbitration proceedings and enhancing the rule of law.

1 Benoit Le Bars is managing partner and Athina Fouchard Papaefstratiou is counsel at Lazareff Le Bars.

2 ICSID Rule 39(1); ICSID AF Rules, Article 46(1); 1976 UNCITRAL Rules, Article 26(1); 2010 UNCITRAL Rules, Article 26(1); SCC Rules, Article 37(1); ICC Rules, Article 28(1); SIAC Investment Rules, Article 27.1.g.

3 1976 UNCITRAL Rules, Article 26(1).

4 2010 UNCITRAL Rules, Article 26(1).

5 Article 28(1).

6 Article 37(1).

7 SIAC Investment Rules, Article 27.1.

8 ICSID Convention, Article 47 and ICSID Rule 39(3); ICSID AF Rules, Article 46(2).

9 ICSID AF Rules, Article 46(2). See also Christoph H Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2nd Ed, 2009), page 763 for examples of cases in which ICSID tribunals departed from the requests in recommending provisional measures.

10 ICSID Rule 39(6); ICSID AF Rules, Article 46(4); 1976 UNCITRAL Rules, Article 26(3); 2010 UNCITRAL Rules, Article 26(9); ICC Rules, Article 28(2); SCC Rules, Article 37(5); SIAC Investment Rules, Article 27.2.

11 ICSID Rule 39(6).

12 Chiara Giorgetti (ed.), Litigating International Investment Disputes: A Practitioner’s Guide (Koninklijke Brill, 2014), pages 196–198.

13 ICSID Convention, Article 26.

14 ICC Rules, Article 28(2); SIAC Investment Rules, Article 27.2.

15 ICSID Rule 39(4); ICSID AF Rules, Article 46(3). Christoph H Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2nd Ed, 2009), pages 762–763.

16 UNCITRAL Model Law, Article 17B(2).

17 For ICC practice, see Jason Fry, Simon Greenberg, Francesca Mazza, The Secretariat’s Guide to ICC Arbitration (ICC, 2012), page 291, paragraphs 3–1040.

18 Bernhard von Pezold and Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Directions Concerning Claimants’ Application for Provisional Measures, 12 June 2012.

19 Ibid., paragraph 2.

20 SIAC Investment Rules, Article 27.4.

21 ICC Rules, Article 29(5).

22 Chiara Giorgetti ed, Litigating International Investment Disputes: A Practitioner’s Guide (Koninklijke Brill, 2014), pages 203–205.

23 Koh Swee Yen, ‘The Use of Emergency Arbitrators in Investment Treaty Arbitration’ (2016) 31(3) ICSID Rev 534, page 536; according to the latest available official statistics, 14 emergency proceedings have been commenced under the SCC Rules. See Arbitration Institute of the Stockholm Chamber of Commerce, ‘Statistics’: www.sccinstitute.com/statistics (last accessed on 2 March 2017).

24 Griffin Group v. Poland, see Koh Swee Yen, ‘The Use of Emergency Arbitrators in Investment Treaty Arbitration’ (2016) 31(3) ICSID Rev 534, pages 543–545; Luke E Peterson, ‘Investigation: New Details Emerge About Use of Emergency Arbitrators in Investment Treaty Cases’, IA Reporter (8 October 2015); www.iareporter.com/articles/investigation-new-details-emerge-about-use-of-emergency-arbitrators-in-investment-treaty-cases/ (last accessed on 27 February 2017).

25 TSIKinvest LLC v. The Republic of Moldova, SCC Emergency Arbitration No. EA(2014/053), Emergency Decision on Interim Measures, 29 April 2014, paragraph 66.

26 ICC Rules, Article 28; SCC Rules, Article 37.

27 ICSID Convention, Article 47.

28 ICSID Rule 39(1).

29 2010 UNCITRAL Rules, Article 26.3.

30 UNCITRAL Model Law, Article 17.

31 Régis Bismuth, ‘Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration’ (2009) 26(6) J. Int’l Arb. 773, pages 814–819; Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 507, at pages 528–544; Sam Luttrel, ‘ICSID Provisional Measures “In The Round”’ (2015) 31(3) Arb. Int’l 393, pages 398–410. See also Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter, Redfern and Hunter on International Arbitration (OUP, 2015), paragraphs 5–32, where the authors consider that only necessity and urgency are inherent preconditions to the granting of interim measures.

32 Régis Bismuth, ‘Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration’ (2009) 26(6) J. Int’l Arb. 773, page 812; Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 507, at page 531.

33 Régis Bismuth, ‘Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration’ (2009) 26(6) J. Int’l Arb. 773, page 812; Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 507, at page 532; Occidental Petroleum Corporation v. the Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraph 55.

34 Christoph H Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2nd edition, 2009), page 772, paragraph 48.

35 TSIKinvest LLC v. The Republic of Moldova, SCC Emergency Arbitration No. EA(2014/053), Emergency Decision on Interim Measures, 29 April 2014, paragraphs 62–65.

36 Caline Mouawad & Elizabeth Silbert, ‘A Guide To Interim Measures in Investor-State Arbitration’ (2013) 29(3) Arb. Int’l 381, page 399.

37 Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures, 2 September 2008, paragraph 55.

38 As formulated in ICSID Rule 39.

39 La Grand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, paragraph 23.

40 Occidental Petroleum Corporation v. the Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraph 59. See also Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 3, 18 January 2005, paragraph 8.

41 Occidental Petroleum Corporation v. the Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraphs 26, 59 and 98.

42 Article 26(3)(a).

43 Quiborax SA and others v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, paragraph 156.

44 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Order, 6 September 2005, paragraphs 3(b) and 46.

45 Perenco v. The Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009, paragraph 43.

46 Ibid., paragraphs 43, 46 and 79.

47 City Oriente Limited v. The Republic of Ecuador and Empresa Estatal Petroleos Del Ecuador, ICSID Case No. ARB/06/21, Decision on Revocation of Provisional Measures and Other Procedural Matters, 13 May 2008, paragraph 72.

48 La Grand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ Reports 1999, page 9, paragraph 23. See also Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures Order, 9 April 1988, page 13, paragraphs 35–37.

49 Dan Sarooshi, ‘Provisional Measures and Investment Treaty Arbitration’ (2013) 29(3) Arb. Int’l 361,
pages 372–376.

50 Sam Luttrel, ‘ICSID Provisional Measures “In The Round”’ (2015) 31(3) Arb. Int’l 393, page 406. See also Régis Bismuth, ‘Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration’ (2009) 26(6) J. Int’l Arb. 773, page 817.

51 Christoph H Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2nd edition, 2009), page 775, paragraph 63, quoted with approval in Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1, 31 March 2006, paragraph 68.

52 Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures, 2 September 2008, paragraph 45; EnCana Corporation v. Republic of Ecuador, LCIA Case No. UN3481, UNCITRAL, Interim Award, Request for Interim Measures of Protection, 31 January 2004, paragraph 13.

53 Caline Mouawad and Elizabeth Silbert, ‘A Guide To Interim Measures in Investor-State Arbitration’ (2013) 29(3) Arb. Int’l 381, page 388.

54 Perenco v. The Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009, paragraph 43.

55 Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1, 31 March 2006, paragraph 76.

56 Azurix Corp v. The Argentine Republic, ICSID Case No. ARB/01/12, Decision on Provisional Measures, 6 August 2003, paragraph 33.

57 Occidental Petroleum Corp and Occidental Exploration & Production Co v. Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraph 89.

58 Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 541.

59 2010 UNCITRAL Rules, Article 26.3(a).

60 Sam Luttrel, ‘ICSID Provisional Measures “In The Round”’ (2015) 31(3) Arb. Int’l 393, pages 407–408; Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 541.

61 Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures, 2 September 2008, paragraph 79; Occidental Petroleum Corp and Occidental Exploration & Production Co v. Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraph 93.

62 City Oriente Limited v. The Republic of Ecuador and Empresa Estatal Petroleos Del Ecuador, ICSID Case No. ARB/06/21, Decision on Revocation of Provisional Measures and Other Procedural Matters, 13 May 2008, paragraph 72; Burlington Resources Inc v. Republic of Ecuador, ICSID Case No. ARB/08/5, Procedural Order No. 1, 29 June 2009, paragraphs 81 and 82.

63 Hydro S.r.l. and others v. Republic of Albania, ICSID Case No. ARB/15/28, Order on Provisional Measures, 3 March 2016, paragraph 3.16.

64 Ibid., paragraphs 3.14, 3.16. See also Quiborax v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, paragraphs 164–165.

65 Christoph H Schreuer, The ICSID Convention: A Commentary (Cambridge University Press, 2nd edition, 2009), page 780.

66 Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Interim Measures of Protection, 5 December 1939, PCIJ Rep Series A/B No. 79, page 199, cited in Burlington Resources Inc v. Republic of Ecuador, ICSID Case No. ARB/08/5, Procedural Order No. 1 on Burlington Oriente’s Request for Provisional Measures, 29 June 2009, paragraph 62, and in Caratube International Oil Company LLP v. The Republic of Kazakhstan, ICSID Case No. ARB/08/12, Decision Regarding Claimant’s Application for Provisional Measures, 31 July 2009, paragraph 127. See also, Frontier Dispute Between Burkina Faso & Mali, Order on Provisional Measures of 10 January 1986, [1986] ICJ Rep 3, page 11 (ICJ), and Nuclear Tests (Australia v. France), [1973] ICJ Rep 99, pages 104 and 106 (ICJ).

67 Note A to ICSID Rule 39 in its 1968 version, 1 ICSID Rep 99.

68 It was acknowledged for the first time in Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on Request for Provisional Measures, 9 December 183, page 412. See also, Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures, 25 September 2001, paragraph 67; Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1 Claimant’s Request for Provisional Measures, 1 July 2003, paragraph 7.

69 Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1, Claimant’s Request for Provisional Measures, 1 July 2003.

70 Teinver SA v. Argentina, ICSID Case No. ARB/09/1, Decision on Provisional Measures, 8 April 2016.

71 Perenco v. The Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009.

72 Federico Campolieti, ‘The Rule of Non-Aggravation of the Dispute in ICSID Arbitration Practice’ (2015) 30(1) ICSID Rev 217, page 222.

73 Caline Mouawad and Elizabeth Silbert, ‘A Guide To Interim Measures in Investor-State Arbitration’ (2013) 29(3) Arb. Int’l 381, page 402.

74 The issue was raised in Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1 Claimant’s Request for Provisional Measures, 1 July 2003. See also Quiborax v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, paragraphs 120 and 123; Caratube International Oil Company LLP v. The Republic of Kazakhstan, ICSID Case No. ARB/08/12, Decision Regarding Claimant’s Application for Provisional Measures, 31 July 2009, paragraph 137.

75 Quiborax v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, paragraph 122; Teinver SA v. Argentina, ICSID Case No. ARB/09/1, Decision on Provisional Measures, 8 April 2016, paragraph 190.

76 City Oriente Ltd v. Republic of Ecuador and Petroecuador, ICSID Case No. ARB/06/21, Decision on Provisional Measures, 19 November 2007, paragraph 62.

77 SCC Rules, Article 38.

78 2010 UNCITRAL Rules, Article 26(2)(c). See also Gabrielle Kaufmann-Kohler and Aurélia Antonietti, ‘Interim Relief in International Investment Agreements’, in Katia Yannaca-Small (ed), Arbitration Under International Investment Agreement: A Guide to the Key Issues (OUP, 2010), page 507, at p. 528.

79 Libananco Holdings Co Limited v. Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, paragraph 57; Commerce Group Corp & San Sebastian Gold Mines Inc v. Republic of El Salvador, ICSID Case No. ARB/09/17, Decision on El Salvador’s Application for Security for Costs, 20 September 2012, paragraph 45; Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures, 25 September 2001, paragraph 82.

80 Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. 97/7, Decision on Provisional Measures (Procedural Order No. 2), 28 October 1999, paragraphs 20–21.

81 Burimi SRL and Eagle Games SHA v. Republic of Albania, ICSID Case No. ARB/11/18, Procedural Order No. 2 on Provisional Measures Concerning Seucirty for Costs, 3 May 2012, paragraph 35; Guaracachi America Inc and Rurelec PLC v. Plurinational State of Bolivia, PCA Case No. 2011-17, Procedural Order No. 14, 11 March 2013, paragraph 6; South American Silver Limited v. Plurinational State of Bolivia, PCA Case No. 2013-15, Procedural Order No. 10, 11 January 2016, paragraph 50.

82 Libananco Holdings Co Limited v. Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, paragraph 57.

83 Commerce Group Corp & San Sebastian Gold Mines Inc v. Republic of El Salvador, ICSID Case No. ARB/09/17, Decision on El Salvador’s Application for Security for Costs, 20 September 2012, paragraph 45.

84 EuroGas Inc and Belmont Resources Inc v. Slovak Republic, ICSID Case No. ARB/14/14, Procedural Order No. 3, Decision on the Parties’ Request for Provisional Measures, 23 June 2015, paragraph 123.

85 Libananco Holdings Co Limited v. Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, paragraphs 58–59.

86 RSM Production Corporation v. Saint Lucia, ICSID Case No. ARB/12/10, Decision on Saint Lucia’s Request for Security for Costs, 13 August 2014, paragraph 86.

87 See RSM Production Corporation v. Grenada, ICSID Case No. ARB/05/14, Order of the Committee Discontinuing the Proceeding and Decision on Costs, 28 April 2011; Rachel S Grynberg, Stephen M Grynberg, Miriam Z Grynberg and RSM Production Corporation v. Grenada, ICSID Case No. ARB/10/6, Award, 10 December 2010.

88 ICSID Rule 47.

89 ICC Rules, Article 28(1); SIAC Investment Rules, Article 27.1.

90 1976 UNCITRAL Rules, Article 26(1); 2010 UNCITRAL Rules, Article 26(1); SCC Rules, Article 37(1).

91 Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Provisional Measures (Procedural Order No. 2), 28 October 1999, paragraph 9; Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures, 25 September 2001, paragraphs 17–26; Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1 Claimant’s Request for Provisional Measures, 1 July 2003, paragraph 4; Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007, paragraph 58. See also Caline Mouawad and Elizabeth Silbert, ‘A Guide To Interim Measures in Investor-State Arbitration’ (2013) 29(3) Arb. Int’l 381, pages 381 to 416.

92 Maritime International Nominees Establishment v. Guinea (1988) 4 ICSID Rep 3, pages 69 and 77.

93 AGIP SpA v. People’s Republic of the Congo (1979) 1 ICSID Reports 306, page 317.

94 Vacuum Salt Products Ltd v. Republic of Ghana, ICSID Case No. ARB/92/1, Award, 16 February 1994, paragraph 16.

95 Italba Corporation v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9, Decision on Claimant’s Application for Provisional Measures and Temporary Relief, 15 February 2017, paragraphs 119–120.

96 Michael D Goldhaber, ‘The Rise of Arbitral Power over Domestic Courts’ (2013) 1(2) SJCL 373, page 402, referring to Rodrigo Gil, ‘ICSID Provisional Measures to Enjoin Parallel Domestic Litigation’ (2009) 3 World Arb & Mediation Rev 535, pages 553–564.

97 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958.

98 Chevron Corporation and Texaco Petroleum Corporation v. The Republic of Ecuador, UNCITRAL, PCA Case No. 2009-23, First Interim Award on Interim Measures, 25 January 2012, pages 16–17.

99 For a discussion on the distinction between an order and an award in the context of interim measures, see Caline Mouawad and Elizabeth Silbert, ‘A Guide To Interim Measures in Investor-State Arbitration’ (2013) 29(3) Arb. Int’l 381, pages 417–419.

100 See, e.g., Cour de Cassation, 1st Civil Chamber, 12 October 2011, No. 09-72.439, Groupe Antoine Tabet v. Congo (2012) Rev arb 86, note by François-Xavier Train. On the other hand, there are examples of national courts enforcing interim awards under the New York Convention 1958, e.g., on 24 February 2016, the Supreme Court of Ukraine reportedly admitted the possibility to enforce under the New York Convention 1958 an emergency arbitrator decision ordering the state to provisionally apply a former tax rate to the investor’s company. See Sebastian Perry, ‘Ukrainian Court Told to Reconsider Emergency Award’, GAR (29 April 2016); http://globalarbitrationreview.com/article/1036292/ukrainian-court-told-to-reconsider-emergency-award (last accessed on 28 February 2017).

101 At the time of writing, 25 jurisdictions have adopted these dispositions. See UNCITRAL, ‘Status UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006’; www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html (last accessed on 28 February 2017).