The Investment Treaty Arbitration Review: Provisional Measures
Provisional measures can be a decisive tool in protecting the rights of parties during pending investment treaty disputes. The number of requests for provisional measures has continued to increase proportionally to the development of treaty-based claims by investors against states.2 Provisional measures requests have not been brought solely by claimant-investors. Respondent-states, too, are requesting provisional measures with increasing frequency.3 The circumstances for requesting provisional relief are highly diverse, as are the types of provisional remedies ordered. This is because of the factual complexity that characterises investment disputes and the manifold types of state conduct that may be at issue in treaty-based arbitration.4
This chapter provides a brief overview of provisional measures in investment treaty arbitration. Following a proposed definition (Section II) and an examination of tribunals' powers to order provisional measures (Section III), this chapter will review the main types of measures ordered (Section IV), and discuss the requirements for ordering provisional measures (Section V) before setting out a proposed conclusion (Section VI).
Provisional measures5 seek to preserve the rights of litigants on a temporary basis while awaiting the final adjudication of a pending dispute. They are provisional in that they may be subject to modification or withdrawal, and they generally lapse upon the final adjudication of the dispute. Their intent is to protect, not to prejudge the merits of a case. Provisional relief can be declaratory or injunctive in nature; it is thus a powerful tool for tribunals to direct party conduct in the course of a dispute. By definition, requests for provisional measures relate to circumstances that cannot await the final adjudication of the main dispute, and thus require priority examination by the adjudicator.
Provisional measures are available in different forms under virtually all domestic legal orders and most international adjudicatory systems,6 and the principle underlying interim protection of rights has been considered to constitute a general principle of law within the meaning of Article 38(1)(c) of the ICJ Statute.7
Provisional measures are also available in arbitration. Today, the UNCITRAL Model Law on International Commercial Arbitration8 and most domestic arbitration laws contain provisions regulating interim relief, as do all modern arbitration rules.9
Whether designed for institutional or ad hoc arbitration, all modern arbitration rules may be chosen to govern investor–state arbitration10 if the parties so agree. The ICSID Convention and the ICSID Arbitration Rules11 are specific to investor–state arbitration. All of these rules display significant similarities, including the manner in which they regulate provisional measures.
The arbitration rules most commonly referred to in investment treaties are those set forth under the ICSID framework,12 followed by the UNCITRAL Arbitration Rules.13 Other institutional rules, such as the ICC Arbitration Rules,14 the SCC Arbitration Rules,15 and the LCIA Arbitration Rules16 are also referenced, albeit less frequently.17
One distinctive feature of provisional measures in the investor–state arbitration context is that they are subject to increased public scrutiny as they often relate to core sovereign conduct and are frequently published.
III THE POWER TO GRANT PROVISIONAL MEASURES IN INVESTMENT TREATY ARBITRATION
The power to order provisional measures has been widely considered as inherent to the adjudicatory function of international tribunals.18 In investment treaty arbitration, the powers to grant provisional relief are regulated by the applicable arbitration rules, subject to the terms of the arbitration agreement (i.e., the dispute resolution clause in the relevant investment treaty). For arbitrations outside the ICSID context, any mandatory requirements of the lex arbitri must also be taken into account.
The vast majority of investment treaties do not specifically regulate the organisation of the arbitral process or the granting of provisional measures.19 One notable exception is Article 1134 of the NAFTA,20 which provides that investment tribunals 'may not order attachment or enjoin the application of the measure' impugned in the main proceedings,21 thereby significantly limiting the scope of tribunals' powers. Certain subsequent treaties concluded by the contracting states to the NAFTA stipulate nearly identical restrictions.22
However, the relevant arbitration rules govern the arbitral process in detail, including the power to grant provisional measures. This section will examine the powers to grant provisional measures under the ICSID framework and the UNCITRAL Rules before briefly considering selected institutional rules.
i The ICSID framework
The ICSID Convention explicitly allows arbitral tribunals to 'recommend' provisional measures 'which should be taken to preserve the rights of either party,' unless the parties to the dispute have agreed otherwise (Article 47).23 ICSID Arbitration Rule 39 regulates provisional measures more specifically.24
Rule 39(1) provides that a request for provisional measures may be made at any time after the initiation of an ICSID arbitration. Such a request must specify the rights to be preserved, the measures requested and the circumstances that require such measures.
According to Rule 39(5), whenever a request for provisional measures is made before the constitution of the tribunal, the Secretary-General of ICSID will, on the application of either party, fix the time limits for the parties to submit observations on the request. This rule is intended to allow the request (and related observations) to be considered 'promptly' upon the constitution of the tribunal.
Rule 39(2) adds that requests for provisional measures shall be given priority consideration. This principle applies even in instances where the jurisdiction of the ICSID tribunal is contested,25 thereby recognising that provisional relief is intrinsically urgent.26
Rule 39(3) stipulates that ICSID tribunals may recommend provisional measures at their own initiative or recommend measures other than those specified in a party request, thus granting them flexibility.27 Rule 39(3) further provides that ICSID tribunals may modify or revoke their recommendations at any time.28 According to Rule 39(4), the tribunal must give each party an opportunity to present its observations prior to recommending, modifying or revoking provisional measures. According to the Notes to Rule 39 in its 1968 version, this requirement seeks to avoid 'surprises or unintentionally unfair dispositions'.29 Certain commentaries have interpreted this provision as excluding preliminary (or ex parte) measures.30 However, the practice of ICSID tribunals shows that tribunals have found it appropriate, in certain instances, to direct parties to refrain from a specific conduct in order to preserve the status quo while a request for provisional measures was pending.31
Last, Rule 39(6) excludes the resort to any judicial or other authority to order provisional measures 'prior to or after the institution of the proceeding,' save in cases where the parties have agreed to the contrary. This provision reverses the presumption of concurrent jurisdiction between arbitral tribunals and domestic courts over provisional measures requests.32 According to commentaries, this language reflects 'the consensus of national courts and publicists [that] parties to an ICSID arbitration agreement must bring to ICSID all their disputes (which are the subjects of such agreement) and thus forego submitting any claims to national courts'.33
According to the practice of ICSID tribunals, the difference between the terms 'recommend' and 'order' has been understood to be a primarily semantic one, which does not cast into doubt the authority of ICSID tribunals to order binding provisional measures.34
Neither the ICSID Convention nor the ICSID Arbitration Rules specify the types of rights that may benefit from provisional protection, or the requirements which must be fulfilled to justify a recommendation for provisional measures.35 According to the drafting history of the Convention, the absence of examples or criteria was deliberate—in recognition of the fact that provisional relief may be required in a variety of circumstances that are difficult to foresee.36 In practice, ICSID tribunals have interpreted these provisions as granting them broad discretion in ordering provisional measures.37 At the same time, ICSID tribunals have exercised a degree of self-restraint, emphasising 'the exceptional nature of relief granted before the parties have had the opportunity fully to present their respective cases',38 and concluding that 'the imposition of provisional measures is an extraordinary measure which should not be granted lightly'.39As regards the form of recommendations on provisional measures, these are generally adopted in the form of procedural orders or decisions.40
ii UNCITRAL Rules
Conceived for use in ad hoc arbitration, the UNCITRAL Arbitration Rules may (and are frequently chosen to) govern treaty-based arbitrations.41 To this date, the 1976 version of the Rules has been applied far more frequently in investment treaty arbitrations than the 2010 version42—this is because the 1976 UNCITRAL Rules govern disputes under investment treaties concluded before 15 August 201043 (i.e., the majority of investment treaties currently in force).44
Article 26(1) of the 1976 UNCITRAL Rules45 clearly recognises arbitral authority to grant provisional measures, subject to the mandatory rules of the arbitral seat.46 In contradistinction to the ICSID Arbitration Rules, Article 26(1) of the 1976 UNCITRAL Rules requires that provisional measures be requested by a party to the dispute, and excludes measures ordered at tribunals' initiative.47
Article 26(1) also provides that an arbitral tribunal 'may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods'. In practice, Article 26(1) has been understood as granting arbitral tribunals 'broad powers' to order interim relief.48 Indeed, the reference to the 'subject-matter of the dispute' and the ensuing enumeration of measures have been considered as constituting non-exhaustive examples of arbitral discretion.49
The broad scope of arbitral authority with respect to provisional measures is further confirmed by Article 26(2). Article 26(2)(second sentence) entitles arbitral tribunals to require security for the costs of a provisional measure ordered. Such security is intended to compensate the defendant in the event an interim measure that has been ordered proves at a subsequent stage to have been unwarranted (whether in light of additional information or resulting from the final adjudication of the parties' rights and obligations). This concept has also been referred to as 'security for damages';50 orders of security are at the arbitral tribunal's discretion.51
Article 26(2)(first sentence) provides that arbitral tribunals may choose the form in which interim measures are granted, including that of an interim award.52 In some cases, the view has been held that the form of an interim award would aid enforceability in domestic courts.53
Finally, under Article 26(3) of the 1976 UNCITRAL Rules, the parties remain at liberty to address requests for provisional measures to domestic courts, without such resort being construed as a waiver of the agreement to arbitrate. The permission of such 'concurrent jurisdiction'54 allows the powers of domestic courts and arbitral tribunals to complement each other—especially where the safeguarding of a party's rights is dependent upon the use of coercive jurisdiction, which arbitral tribunals lack.55
While the issue of preliminary (or ex parte) orders is not explicitly addressed in Article 26, arbitral practice under the 1976 UNCITRAL Rules suggests that temporary restraining measures may be obtained in exceptional circumstances where the urgency of a threat to the requesting party's rights 'outstrip[s] even the speed with which interim measures may be granted'.56 In such instances, tribunals constituted under the 1976 UNCITRAL Rules have considered it permissible to order temporary restraining measures pending the receipt of the observations from the party against whom provisional measures were sought.57
The 2010 UNCITRAL Rules were largely inspired by the revised wording of Article 17 of the 2006 UNCITRAL Model Law (which sought to clarify the scope of arbitral powers with respect to provisional measures). These Rules provide for significantly more detail than the 1976 version in their regulation of provisional measures while also introducing some deletions to the wording of the previous version.58 For instance – to highlight the most noteworthy modifications for the purpose of this chapter – in addition to including a definition of interim measures similar to the 2006 UNCITRAL Model Law, the 2010 UNCITRAL Rules no longer contain the reference to the 'subject-matter of the dispute'.59 This deletion reflects the previous understanding that the powers of arbitral tribunals are not limited to a specific type of measure.60 Instead, Article 26(2) (in sub-paragraphs (a)–(d)) now provides a non-exhaustive list of generically-phrased categories of measures that may be ordered. In practice, these categories frequently overlap. In addition, Article 26(3) of the 2010 UNCITRAL Rules specifies the conditions to be fulfilled for ordering provisional relief. As elaborated below,61 the manner in which these (and similar) requirements are interpreted and applied may vary quite considerably in practice.
Article 26(4) makes clear that the requirements for ordering provisional measures may be relaxed at the tribunal's discretion if the request for provisional relief concerns the preservation of evidence. Article 26(5) states that provisional measures may be modified, suspended or terminated either at a party's request or at its own initiative. Article 26(7) further provides that tribunals may require parties to notify any change in circumstances relating to an order for interim relief.
Article 26(6) deals with the possibility to require security for interim relief. In addition, Article 26(8) provides for the possibility of holding the requesting party liable for any costs and damages caused by a provisional measure that is later found should not have been granted.
Similar to Article 26(3) under the 1976 version of the UNCITRAL Rules, Article 26(9) of the 2010 version provides that requests for interim measures may be addressed to domestic courts.
Contrary to the 1976 version, Article 26 of the 2010 version no longer refers to the power to grant interim relief in the form of an award. However, certain commentaries consider that '[i]t continues to be generally accepted that the granting of interim measures can be made in the form of an award'.62
Whether and to what extent arbitral practice will differ under the 1976 and 2010 UNCITRAL Rules will depend on the manner in which arbitrators under the 1976 Rules apply their wide interpretive discretion. According to Professor David Caron, '[i]n all likelihood, the detail of the 2010 Rules will come to influence the way discretion is used under the 1976 Rules'.63
iii Other institutional arbitration rules
Treaty-based arbitrations also may be (and have been) governed by institutional rules that are used to administer wide varieties of cases. These include the ICC Rules, the SCC Rules, or the LCIA Rules, all of which provide for the possibility of interim relief. In addition, the Singapore International Arbitration Centre (SIAC) has issued a dedicated set of rules specifically applicable to investor–state disputes.64
For instance, similarly to the UNCITRAL Rules, Article 28 of the ICC Rules provides for broad arbitral powers with respect to provisional measures.65 Indeed, an ICC tribunal may, at the request of a party, order any 'interim or conservatory measure' it deems appropriate. The ICC Rules also explicitly reference tribunals' power to require 'appropriate security' from the requesting party, as well as their power to adopt provisional measures in the form of an order or an award (Article 28(1)). In the latter case, the award would be subject to the scrutiny review of the ICC Court.66 Similarly to the UNCITRAL Rules, the ICC Rules provide for the right of parties to resort to domestic courts for provisional relief under certain circumstances (Article 28(2)). While the ICC Rules do not explicitly address the possibility of urgent arbitral ex parte relief, requests to that effect are reported to have been granted on rare occasions with the aim of preserving the status quo for very brief periods.67
Furthermore, Article 29 of the ICC Rules provides for the possibility of emergency arbitration before the initiation of an arbitration (and the constitution of the tribunal) under a dedicated Annex V to the ICC Rules.68 However, based on the language in Article 29(5) of the ICC Rules,69 the ICC's emergency arbitrator rules have been understood to exclude treaty-based arbitration from their scope.70
The SCC Rules also provide for broad powers to order interim measures potentially subject to security, in the form of an order or award. The SCC Rules resemble the UNCITRAL and ICC Rules in many respects.71 The SCC Rules, do not explicitly contemplate preliminary ex parte orders, either. However, commentaries note that such orders have been issued in the practice of SCC tribunals in view of preserving a status quo during the determination of a request for interim measures.72
Similarly to the ICC Rules, the SCC Rules provide for emergency arbitration prior to the commencement of an arbitration or the constitution of an arbitral tribunal.73 SCC Emergency Arbitrators have the same powers as tribunals under the SCC Rules.74 Emergency decisions are binding upon the parties,75 but may be modified or revoked.76 They do not bind the tribunal constituted in the main proceedings.77 The SCC Emergency Arbitrator Rules may (and have been) invoked in treaty-based disputes.78
The LCIA Rules explicitly confer broad powers on arbitral tribunals which may order 'any relief which the Arbitral Tribunal would have power to grant in an award, including the payment of money or the disposition of property as between any parties'.79 They also otherwise regulate provisional measures in a considerable degree of detail. In addition, the LCIA Rules provide for an emergency arbitrator mechanism.80 The LCIA Rules have been used in investor–state cases, although only few cases are publicly available.81
IV RIGHTS ENTITLED TO PROTECTION AND TYPES OF PROVISIONAL MEASURES GRANTED
As seen in Section III, the rules most used in investment treaty arbitration do not specify the types of rights that are entitled to protection and the types of relief available.82 Their drafters have made it clear that the primary aims of provisional measures were to preserve the status quo between the parties pending a tribunal's final adjudication of the merits83 and to protect the effectiveness of future awards.84 As a corollary, it was widely agreed that provisional measures may also serve to prevent the aggravation of investment disputes.85
In investment treaty arbitration today, requests for provisional measures continue to be driven by parties' desire to protect the status quo, to prevent the aggravation of disputes, and to preserve the effectiveness of future awards. Requests for provisional measures may relate to substantive rights (such as contractual or property rights) that are the subject of the investment dispute or otherwise related thereto. They may also concern procedural rights that seek to protect the integrity of the dispute. Moreover, protection of status quo and non-aggravation of disputes have been regarded as 'self-standing' rights that may in and of themselves form the basis of an order for provisional measures.86
Today's practice confirms that requests for provisional measures need not be strictly limited to the subject matter in dispute.87 They may extend to general rights, including procedural rights, as stated above. However, at least in the context of ICSID arbitration, tribunals have held that the rights for which protection is sought must be delineated. As explained by the tribunal in Plama v. Bulgaria, Article 47 of the ICSID Convention and Arbitration Rule 39 cannot be read as encompassing 'all rights a party may have unconnected with the [applicable investment treaty] or vis-à-vis third parties'.88 While a limitation to 'rights in dispute' may be too narrow, the rights to be preserved must at least 'relat[e] to the dispute', that is, they 'must relate to the requesting party's ability to have its claims and requests for relief in the arbitration fairly considered and decided by the arbitral tribunal and for any arbitral decision which grants . . . the [final relief sought] to be effective and able to be carried out.'89
In practice, it may not be apparent how to distinguish the rights that should be considered as 'related to the dispute' and those that should not. Where a request for interim relief concerns a right that is the subject of the main dispute, the existence of a relationship is more readily established. Similarly, procedural conduct that threatens the integrity of the procedure would arguably qualify as relating to the requesting party's ability to have its claims fairly considered, hence necessarily relating to the dispute. By contrast, difficulties may emerge where requests for interim relief seek to protect against factual evolutions on the ground in the host state, and such difficulties may be amplified where the impugned acts have not been identified in the parties' substantive claims or requests for final relief.90
By the same token, it may be a delicate matter to identify the threshold of aggravation, which – if reached – will justify the issuance of a protective measure for a right that has been recognised in principle, but that could theoretically be considered as not strictly related to the merits of a dispute. As the tribunal in Nova Group v. Romania put it, 'the desire to avoid 'moving target' events . . . alone is not sufficient to justify the recommendation of measures to prevent any and all alteration of the status quo or any and all increase in injury to the investor'.91 According to that tribunal, '[t]he contrary proposition would mean that by the simple step of initiating an ICSID claim, an investor obtains a sweeping right to freeze all circumstances as they then exist (perhaps for a period of years), even where such an overall standstill is otherwise not required to preserve its rights to present its case and obtain meaningful relief.'92
These difficulties cannot be addressed in a principled manner, but will require a case-by-case determination when assessing whether provisional measures are necessary.93 The fact that such measures may require interfering with the exercise of respondent-states' sovereign core prerogatives underlines the need for a careful balancing of the interests involved.94
i Preservation of contractual and property rights that are at issue in the main dispute
In the context of commercial arbitration, parties frequently seek to preserve rights that are contested on their merits while awaiting final adjudication; for instance, by requesting provisional measures that coincide with the final relief sought, such as the right to the performance of a (contested) contractual obligation or the cessation of allegedly illegal conduct.95
In the context of treaty-based arbitration, requests for provisional measures that coincide with the final relief sought appear to be more controversial.96
This said, investment tribunals have affirmed the principle that a provisional measures order could require that 'a piece of property, the ownership of which is in dispute . . . not be sold or alienated before the final award of the arbitral tribunal'.97 As stated in Maffezini v. Spain, '[s]uch an order would preserve the status quo of the property, thus preserving the rights of the party in the property'.98
On this basis, tribunals have agreed to order the temporary performance of contractual obligations that are in dispute, provided of course that the criteria for ordering provisional measures were fulfilled – and notably, that the requesting party demonstrated the existence of a plausible legal right to the performance of the contract.99 In certain cases, tribunals also ordered respondent-states to refrain from enforcing contested obligations under such contracts in domestic courts.100 By contrast, the situation was analysed differently when the state had already terminated a disputed agreement. For instance, in Occidental Petroleum v. Ecuador, the natural resources concession agreement at issue had already been terminated by the state. The tribunal declined to order the provisional reinstatement of the agreement because this would have constituted specific performance, which 'must be deemed legally impossible . . . where a State has, in the exercise of its sovereign powers, put an end to a contract or license, or any other foreign investor's entitlement'.101 The tribunal's reasoning was based on the premise that provisional measures are 'not deemed to give to the party requesting them more rights than it ever possessed and has title to claim'.102
Investment tribunals have also accepted to enjoin respondent-states from adopting certain conduct affecting property rights. For instance, tribunals have granted requests for a stay for the payment of taxes (the international legality of which was disputed by the claimant-investor) where such payments would have endangered the economic operation of the investment.103
Similarly, tribunals have granted requests for injunctions to refrain from enforcing a decision cancelling corporate shares owned by an investor-claimant,104 to refrain from taking measures to restructure the management of a partially state-owned company,105 to lift the seizure of a vessel,106 or to suspend the execution of a domestic judgment that relates to rights that are the subject of an investment claim.107
These types of orders for specific performance have sought to preserve the status quo between the parties by protecting ongoing legal relationships between the parties or operating businesses, the economic existence of which may otherwise have been compromised during the resolution of the dispute. By their nature, such orders likely helped to prevent unnecessary exacerbation of the relevant disputes during their adjudication.
This said, investment tribunals have been more reserved when requests for provisional measures sought more than the preservation of an existing right. For instance, an ICSID tribunal has held that there was 'a distinction to be drawn between the protection of rights and the enforcement of rights'; it declined to order a measure that would have been equivalent to an order for specific performance under a series of contracts.108 Similarly, another ICSID tribunal held that requests for interim measures were 'not the appropriate vehicle for requesting relief on the merits', with respect to a request in which the claimant-investor had sought a 'permanent injunction' to restrain the respondent-state from criminally prosecuting a number of individuals including the claimant's funder, while at the same time demanding an order that the respondent-state pay damages for alleged moral and reputational injury.109 In any event, in these cases the requesting parties were found not to have established the substantive requirements for provisional relief.
ii Protection of other substantive rights relating to the investment dispute
Investment tribunals have also granted interim measures protecting substantive rights that are not directly the subject of an investment dispute, but are related thereto. For instance, one tribunal has ordered a respondent-state to ensure that a state-owned company refrain from cashing a warranty bond that the claimant-investor had issued in a related, previous arbitration.110 Other tribunals have granted requests asking that claimant-investors refrain from dissipating assets that could serve for the satisfaction of a future award outside a given jurisdiction.111
A significant number of requests for provisional measures have also been granted in relation to domestic proceedings conducted in parallel with an investment treaty arbitration; notably when such proceedings were found to endanger the status quo between the parties, aggravate the dispute or compromise the effectiveness of a future award.
For instance, in MINE v. Guinea, the claimant-investor was ordered to discontinue proceedings for interim relief in domestic courts.112
Likewise, investment tribunals have ordered the provisional suspension of parallel civil proceedings in local courts, arbitration fora,113 or bankruptcy proceedings114 when such proceedings related to the determination of issues that were under consideration by the tribunal, such as the validity of a claim against one of the parties.
In addition to the protection of the status quo and the non-aggravation of the dispute, investment tribunals have identified the protection of their jurisdiction as an additional right that deserved protection – either under Article 26 of the ICSID Convention115 or under Article 26(1) of the 1976 UNCITRAL Rules.116 In this regard, commentaries have asked to what extent 'ICSID tribunals limit the application of the rule of exclusivity under Article 26 to identical parallel proceedings and require triple identity under the rule of lis pendens (identity of parties, subject matter and relief sought)'.117 A survey of publicly available decisions suggests that the triple identity test has not been applied by ICSID tribunals that have accepted to suspend parallel proceedings that involved different legal persons than those party to the ICSID arbitration.118 At the same time, cases in which such requests for provisional measures enjoining parallel court actions were rejected involved proceedings in which the parties and the subject matter were not the same and were considered insufficiently related to the ICSID arbitration.119
Provisional protection has also been granted to protect the right of investors, their corporate officers or employees not to be harassed and not be subject to human rights violations; for instance, in the context of administrative or criminal investigations.120 In addition to qualifying as a potential factor of aggravation of the investment dispute,121 such acts may also directly affect the integrity of an investment arbitration.
iii Protection of the integrity of the arbitral proceedings
Provisional measures may serve to protect a broad spectrum of procedural rights. On one end of the spectrum, provisional measures have been sought with respect to criminal or administrative investigations, prosecutions and proceedings under the domestic law of respondent-states. In this regard, investment tribunals have noted that criminal proceedings cannot be considered of the same nature or subject matter as investment disputes and thus do not fall under the rule of Article 26 of the ICSID Convention.122 Tribunals have also been cautious to emphasise that they 'do . . . not question the sovereign right of a State to conduct criminal proceedings,'123 and that they would not interfere with the conduct of criminal investigations or criminal proceedings absent 'exceptional circumstances', which the requesting party must establish.124 In analysing such circumstances and the harm alleged by the requesting party, investment tribunals have applied a 'high threshold'.125 As noted by the tribunal in Churchill Mining, in the context of criminal investigations and prosecutions, an allegation that the status quo has been altered or that the dispute has been aggravated 'needs to be buttressed by concrete instances of intimidation or harassment'.126
In practice, provisional measures have been granted when it was established that there was a threat to the security of a claimant-investor,127 its corporate officers,128 employees129 or witnesses, or when criminal investigations were found to have been initiated to secure payments under a newly-enacted law.130 Provisional measures were also ordered where a criminal investigation was found to have a 'direct relationship' with an ICSID arbitration that could prevent the investor-claimant from accessing witness evidence.131
As regards the type of relief ordered, tribunals have in some instances recommended the full132 or partial133 stay of a criminal investigation. Other tribunals, while declining to order a stay, have recommended that respondent-states refrain from limiting the liberty of movement of an investor-claimant's officers.134 In addition, investment tribunals have ordered respondent-states to provisionally suspend the transmission of arrest warrants relating to the extradition of the investor-claimant's corporate officers.135 Likewise, tribunals have ordered the respondent-state to preserve the investor-claimants' access to counsel,136 and to provide copies of documents seized during criminal investigations.137 Tribunals have also ordered a respondent-state to provide information regarding the existence of investigations against the legal counsel of a claimant-investor by domestic judicial authorities.138 In some cases, tribunals that had declined to order a specific injunctive measure nevertheless accepted to issue general non-aggravation orders. Moreover, in Manolium v. Belarus, the tribunal ordered that 'if in doubt whether a specific action or conduct might result in the violation of the above order, both Parties are recommended to approach the Tribunal ex ante and request additional guidance'.139
Other tribunals have accepted to protect the confidentiality of certain documents relating to an arbitration by ordering, for instance, the provisional prohibition to communicate about a dispute in the media (whether addressed to the claimant-investor or the respondent-state140) or to keep specific documents confidential.141
At the other end of the spectrum of measures protecting procedural rights are orders to preserve documents, to prepare inventories of certain information,142 or to grant access to corporate records.143 As noted above,144 Article 26(2)(d) of the 2010 UNCITRAL Rules explicitly lists the preservation of 'evidence that may be relevant and material to the resolution of the dispute' as a right for which interim protection can be sought.
Another type of right for which protection has been sought by way of provisional measures applications includes is security for costs.145 ICSID tribunals have initially refused to consider that security for costs could be included among the rights to be protected under Article 47 of the ICSID Convention.146 This position subsequently evolved. While having noted that security for costs was not an ordinary measure contemplated under the ICSID Convention or the ICSID Arbitration Rules, subsequent ICSID tribunals have accepted that a recommendation of the same could be contemplated in the presence of extraordinary circumstances.147 A similar reasoning was adopted by tribunals constituted under the 1976 UNCITRAL Arbitration Rules.148 In the context of commercial arbitration, ICC tribunals, too, have recognised (and granted) requests for security for costs.149 The SCC Arbitration Rules explicitly permit applications for security for costs.150
Extraordinary circumstances have only been found in a few treaty-based cases so far. In one case, an impecunious ICSID claimant, who had a third-party funding arrangement in place, had failed to pay costs in a previous ICSID arbitration.151 In another case, an impecunious claimant-investor had entered into a third-party funding agreement that did not provide for the coverage of an adverse costs order.152
V REQUIREMENTS FOR GRANTING PROVISIONAL MEASURES
The question of the law governing orders of provisional measures has not been a topic of frequent discussion in investment treaty arbitration;153 it does not appear to have been a topic of controversy in practice either. In recent years, some treaty-based tribunals have relied on Article 17 of the 2006 UNCITRAL Model Law in their reasoning regarding provisional measures.154 The general tendency of treaty-based tribunals has been to apply principles of public international law and to seek guidance in international judicial and arbitral practice in exercising their powers and analysing the requirements for provisional measures. The same may be observed from ICSID tribunals constituted based on contracts; they relied on arbitral practice and rules of international law and considered the governing law of the contract among one of several 'factual and legal elements'.155
As noted above, the most relevant arbitration rules do not specify the substantive criteria for granting interim measures. In this regard, too, investment tribunals will be guided by international judicial and arbitral practice. The consensus is that a party requesting provisional measures needs to establish the prima facie jurisdiction of the tribunal and show that its claim is not manifestly without merit. Further, tribunals will require a demonstration of urgency and of necessity to prevent an imminent danger of serious prejudice. In addition, tribunals generally verify the proportionality of a requested measure.
i Prima facie jurisdiction
As explained above, tribunals will give priority consideration to a request for provisional measures because of the urgency inherent to such requests.156 For this reason, it is widely agreed that the granting of provisional measures does not need to await a tribunal's final determination on its jurisdiction (irrespective of whether or not such a determination has been requested as a preliminary matter).157 Thus, investment tribunals will conduct a preliminary inquiry as to whether the facts as alleged by the requesting party are, if true, capable of establishing jurisdiction.158 This inquiry has been characterised as 'usually not a complex task'.159 In ICSID arbitration, tribunals have held that the fact of ICSID having registered a request for arbitration pursuant to Article 36(3) of the ICSID Convention is not per se sufficient to establish prima facie jurisdiction.160 Rather, the relevant inquiry will be for the tribunal to verify the prima facie existence of personal, subject matter and temporal jurisdiction as well as consent (or jurisdiction ratione voluntatis).161
In the context of SCC Emergency Arbitrator proceedings, the question has arisen of whether the non-expiry of the 'cooling off' period (or negotiation period) under the applicable investment treaty deprived SCC Emergency Arbitrators from jurisdiction ratione voluntatis. According to publicly available rulings, SCC Emergency Arbitrators have answered this question in the negative, accepting – among others – the requesting parties' arguments regarding the alleged futility of such negotiation requirements.162
Determinations of prima facie jurisdiction are of provisional nature, only. In practice, the granting of provisional measures has not precluded tribunals from ultimately dismissing investor-claimants' claims for lack of jurisdiction.163
ii Underlying claim not manifestly unmeritorious
Under domestic legal systems, the showing of a 'probable, or prima facie, prospect of success on the merits' or at least 'a serious question to be tried' is a prerequisite for provisional measures.164 In the context of international arbitration, the existence of such a criterion has been subject to discussion, notably because such a requirement could potentially be seen as standing in tension with the cardinal principle that provisional measures must not prejudge the merits of the dispute.165 At the same time, it stands to reason that provisional measures, the impact of which can be disruptive and potentially intrusive, should not be granted where a claim is obviously devoid of merit.166 Indeed, rather than being protective, such measures would risk to procure unjustified advantages to the requesting party.167 Consequently, international tribunals appear to have accepted to conduct some degree of prima facie merits analysis.168 Article 26(3)(b) of the 2010 UNCITRAL Rules reflects this understanding.169
The International Court of Justice (ICJ), for instance, has adopted a 'plausibility of rights' test.170 ICSID tribunals have endorsed this standard, holding that the requesting party 'must prove that the rights invoked are plausible'.171 In applying this test, certain ICSID tribunals focused their analysis on the nature of the rights to be preserved,172 and whether they constitute 'theoretically existing' rights, meaning whether they are legally (as opposed to factually) possible.173
By the same token, tribunals in treaty-based arbitrations conducted under the 1976 UNCITRAL Rules have adopted a similar approach, holding that a tribunal requested to grant provisional measures must verify 'that the claims made are not, on their face, frivolous'.174
Thus, in practice, the degree of prima facie analysis of the underlying claim will depend on the nature of the right for which protection is sought and the type of relief requested. Investment tribunals' analysis may arguably be somewhat more stringent if what is sought is relief similar to the final relief requested.175 In any event, such determinations at the provisional measures stage will not bind tribunals with respect to their final findings in a subsequent award.
iii Urgency of the relief requested
The requirement of 'urgency' is largely considered to be subsumed in requests for provisional measures in investment treaty arbitration.176 This is because urgency is considered inherent to a request for provisional measures.177 By definition, urgency is the primary condition for obtaining emergency relief prior to the constitution of a tribunal.178
In practice, the test for finding urgency has been whether or not a requested measure could await the final adjudication of the underlying claim (as opposed to proving the need for immediate relief).179 Commentaries have qualified this standard as a 'low threshold to allow this requirement to be easily satisfied in practice,' especially where a provisional measure is found to be necessary.180 Thus, the test of urgency is frequently conflated with investment tribunals' analysis of the necessity of a provisional measure.181
Moreover, investment tribunals have acknowledged that the provisional protection of certain rights, such as the integrity of evidence in an arbitration182 or the protection of the exclusivity of ICSID jurisdiction are urgent 'by definition'.183
At the same time, the degree of urgency required may vary depending on the type of relief requested. For instance, in cases where a party seeks a temporary restraining order, the urgency of the threat must be such so as to require immediate action.184
iv Necessity to avoid the risk of serious harm to the requesting party
Provisional measures must also be proven to be necessary to avoid a risk of harm that could not be adequately repaired in the final award. This criterion has also been referred to as 'periculum in mora' (danger in delay).185 Indeed, it is the danger of injury that renders provisional protection necessary and urgent.
Similar to the requirement of urgency to which it is linked, the requirement of necessity to avoid the risk of harm is not explicitly mentioned in the prevalent rules. The ICSID Convention and the ICSID Arbitration Rules state that provisional measures may be recommended 'if the circumstances so require'.186 The 1976 UNCITRAL Rules as well as the ICC Rules and SCC Rules state that an interim measure must be 'necessary'187 or 'appropriate'.188 At the same time, the practice of tribunals constituted under these rules confirms that an order of provisional measures is predicated on showing a risk of serious harm to the requesting party.189
In investment treaty arbitration, tribunals also generally require a showing of necessity to prevent the risk of harm during the dispute.190 However, investment tribunals have adopted different approaches regarding the requisite threshold of harm required to order provisional measures.
In a number of earlier cases, investment tribunals have relied on the standard of 'irreparable prejudice' developed by the ICJ,191 interpreting this standard as requiring a threat of injury that could not 'readily be compensated by a monetary award'.192 In Plama v. Bulgaria, the tribunal noted that the final relief sought in the arbitration consisted of monetary damages (rather than restitution or specific performance) for alleged impediments of the operation of the going concern that was the subject of the investor-claimant's investment. Having found that the injury alleged in the request for provisional measures (i.e., the potential bankruptcy of said going concern) was capable of being repaired through monetary compensation, the tribunal held that the requirement of irreparable harm was not fulfilled (among other requirements).193
A similar standard has been applied by other tribunals in cases where claimant-investors sought provisional measures to protect the integrity of an arbitration,194 with tribunals reasoning that while the destruction of an investment could in theory be repaired by an award of monetary damages, an investor-claimant's ability to effectively participate in an arbitration – if proven on the facts – could not be so remedied.195
By contrast, in cases that concerned ongoing legal relationships between an investor-claimant and the respondent-state, or which related to businesses with operational activity, tribunals have approached the requirement of necessity differently.196
For instance, in City Oriente v. Ecuador, the tribunal noted that the right to be preserved was contractual performance.197 Having assured itself that 'neither Article 47 of the Convention nor Rule 39 of the Arbitration Rules require that provisional measures be ordered only as a means to prevent irreparable harm',198 the tribunal stated: '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 exceed greatly the damage caused to the party affected thereby'.199 The tribunal then confirmed that the balance of interests justified granting the relief requested by the claimant.200
Other investment tribunals in similar types of cases considered that the 'irreparable harm' test had to be understood flexibly, especially where the provisional (and final relief) requested concerned the preservation of an ongoing contractual relationship or a business. In Paushok v. Mongolia, an ad hoc arbitration brought under the 1976 UNCITRAL Rules, the tribunal considered that 'the concept of “irreparable prejudice” does not necessarily require that the injury complained of not be remediable by an award of damages.'201 It also found that 'the possibility of monetary compensation does not necessarily eliminate the possible need for interim measures'.202 Based on the facts before it, the tribunal considered that enforcement of the impugned windfall profit tax would likely lead to the insolvency of the claimant's business, which in its view warranted provisional measures (i.e., the suspension of tax collection).203 At the same time, the tribunal also ordered the claimant to both refrain from removing assets out of Mongolia and to make security payments into an escrow account.204 Other ICSID tribunals have followed a similar approach.205 In PNGSDP v. Papua New Guinea, the tribunal summarised the test as follows:
The degree of “gravity” or 'seriousness' of harm that is necessary for an order of provisional relief cannot be specified with precision, and depends in part on the circumstances of the case, the nature of the relief requested and the relative harm to be suffered by each party; suffice it to say that substantial, serious harm, even if not irreparable, is generally sufficient to satisfy this element of the standard for granting provisional measures.206
As regards the standard of proof, the tribunal noted that serious harm did not need to be proven with certainty. Rather, the requesting party had to establish a 'sufficient risk or threat that grave or serious harm will occur if provisional measures are not granted'.207
In cases relating to requests for the preservation or the production of evidence, some tribunals have applied a less stringent reading regarding necessity – holding that the standard was one of reasonableness,208 and finding requests for the preservation of documentary evidence necessary 'because of the potential need for the evidence in question'.209
In sum, a survey of relevant cases indicates that the standard of harm required to order provisional measures may depend on the circumstances of each case – notably the main issues of contention between the parties as well as the rights for which provisional protection is sought. This is a fact-specific inquiry in which tribunals must exercise their discretion. At the same time, in assessing necessity, tribunals frequently conduct a balancing analysis and are mindful to preserve a certain proportionality between the measures ordered and the potential effect on both parties' rights.210 Article 26 of the 2010 UNCITRAL Rules reflects this understanding.211
v Balance of harm/proportionality
In assessing the urgency and necessity of a provisional measure, arbitral tribunals frequently analyse the proportionality between the rights the requested measure seeks to protect on the one hand, and the impact of such measure on the requested party, often the respondent-state, on the other hand. Save for the 2010 UNCITRAL Arbitration Rules, the relevant arbitral rules do not mention this criterion explicitly. However, reference to the 'circumstances', such as under the ICSID framework, or the requirement that provisional measures be deemed 'appropriate', such as under the ICC Rules, LCIA Rules and the SCC Rules, imply that the interests of the adverse party need to be taken into account in assessing whether to grant a provisional measure.
When assessing the risk of harm from which the requesting party seeks protection, investment tribunals balance the injury from which the requested party would be preserved against the burden which the requested measure inflicts on the requested party.212
Moreover, certain tribunals which provisionally ordered states to continue performing a contract213 or refrain from enforcing tax legislation214 have ordered the investor to provide security payments into escrow accounts, to preserve the requested party's rights until final adjudication. Similarly, in a case where the state was ordered to provisionally suspend the operation of an arrest warrant, the investor was ordered to comply with a certain number of instructions set forth in the tribunal's decision.215
In addition, certain tribunals and commentaries have insisted on the specificities arising from the hybrid nature of investment treaty arbitration and the fact that these types of disputes involve sovereign state interests, holding that investment tribunals should be mindful not to 'unduly encroach on the State's sovereignty and activities serving public interests':
The fact that the Respondent is a State is relevant in this regard. Indeed, any party to an arbitration should adhere to some procedural duties, including to conduct itself in good faith; moreover, one can expect from a State to adhere in that very capacity, to at least the same principles and standards, in particular to desist from any conduct in this Arbitration that would be incompatible with the Parties' duty of good faith, to respect equality and not to aggravate the dispute. But this Tribunal must be mindful when issuing provisional measures not to unduly encroach on the State's sovereignty and activities serving public interests.216
Thus, depending on the nature of provisional relief requested and the degree of intrusiveness such relief might be found to have on the exercise of a state's functions, the burden of proving injury or a serious risk thereof may be a higher one.217
Investment tribunals constituted under the prevalent arbitration rules enjoy broad powers and a high degree of flexibility in ordering a panoply of different provisional measures which they may deem appropriate. Provisional measures may be necessary to protect and preserve the disputing parties' rights during the course of a (potentially lengthy) investment dispute, so that the ultimate effectiveness of an award is not compromised. However, provisional measures are not granted lightly. They are intrusive instruments, the use of which requires a strong demonstration of need under the circumstances of each case. Such circumstances are often highly diverse, as are the types of rights at issue. The presence of sovereign states adds an additional element of complexity, which requires careful balancing of party interests. The careful analysis displayed by investment tribunals in determining provisional measures is pivotal to ensuring the effectiveness of investment treaty arbitration as a means of peaceful dispute settlement.
1 Raëd Fathallah is a partner and Marina Weiss is a counsel at Bredin Prat.
2 See, e.g., David Goldberg, Yarik Kryvoi, Ivan Philippov, Empirical Study: Provisional measures in Investor-State Arbitration (BIICL/White & Case, 2019) (Goldberg/Kryvoi/Philippov), 1; Caline Mouawad & Elizabeth Silbert, 'A Guide to Interim Measures in Investor-State Arbitration', 29(3) Arbitration International, 2013, 381–434 (Mouawad/Silbert), 381.
3 See, Goldberg/Kryvoi/Philippov, 6.
4 For the avoidance of doubt, the terms 'treaty-based arbitration' and 'treaty-based tribunals' refer to disputes initiated and arbitral tribunals constituted based on bi- or multilateral treaties for the protection of investment and/or, as the case may be, the ICSID Convention or ICSID Additional Facility (as defined at footnote 11). They also include cases initiated under the ICSID Convention or ICSID Additional Facility that are based on contracts or state investment legislation. For the purpose of this study, references to 'treaty-based tribunals' or 'investment tribunals' are used interchangeably.
5 While the terms '“interim measures of protection”, “provisional orders”, “interim awards”, “conservatory measures” or “preliminary injunctive measures”' (UNCITRAL, Working Group on Arbitration, Thirty-second session, 20–31 March 2000, Report of the Secretary General, UN Doc A/CN.9/WG.II/WP.108, para. 63) are sometimes used interchangeably in practice, their respective meaning is not necessarily equivalent. For instance, a 'conservative measure' generally relates to the preservation of an asset. Id. See also, Emmanuel Gaillard & John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration, Kluwer Law International, 1999, 709–734 (Fouchard/Gaillard), 709–710; Stephen R Bond, 'The Nature of Conservatory and Provisional Measures', Special Supplement 1993: Conservatory and Provisional Measures in International Arbitration (ICC 1993) 8–20 (Bond), 8, 10; Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International 2005) (Yesilirmak), 8–9; Régis Bismuth, 'Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration, 26(6) Journal of International Arbitration, 2009, 773–821, 775.
6 See, e.g., Statute of the International Court of Justice (ICJ Statute), Article 41 and ICJ Rules, Articles 73–78; European Court of Human Rights, Rules of Court, Rule 39; United Nations Convention on the Law of the Sea of 10 December 1982, Article 290; Rules of the International Tribunal of the Law of the Sea, Article 89. By contrast, the WTO dispute settlement system does not provide for the possibility of interim relief, while, however, demanding that parties accelerate consultations in cases of urgency concerning perishable goods. See, Annex 2 to the WTO Agreement – Understanding on rules and procedures governing the settlement of disputes.
7 Lawrence Collins, 'Provisional and Protective Measures in International Litigation', 234 Recueil des Cours–Collected Courses of The Hague Academy of International Law (1992) 9 (Collins), 214.
8 United Nations Commission on International Trade Law (UNCITRAL), Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 (UNCITRAL Model Law), Article 17. To this date, legislation based on the UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 has been adopted in 116 jurisdictions. See, https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration/status (last accessed 30 April 2020).
9 This was not the case until rather recently. Until the mid-1990s, most institutional arbitration rules did not specifically provide for arbitral authority to order interim relief. See, e.g., Gary B Born, International Commercial Arbitration (2nd edn, Kluwer Law International, 2014) (Born 2014), 2444 and id. 2461.
10 In investment treaty arbitration, the terms of the relevant arbitration agreement, i.e., the terms of host states' consent, are generally set forth in the relevant bilateral investment treaty (BIT), multilateral investment treaty (MIT) or free trade agreement with provisions relating to the protection of investments (FTA). By contrast, the consent to arbitrate, and the terms of the arbitration agreement, may also be stipulated in a contract between an investor and a state or provided for under host state legislation. Such provisions, too, may address the issue of provisional measures.
11 i.e., the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (the ICSID Convention) and the Rules of Procedure for Arbitration Proceedings under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 18 March 1965 (ICSID Arbitration Rules), administered by the International Centre for Settlement of Investment Disputes (ICSID). The ICSID Convention, which counts 163 Member States on the date of publication of this chapter, provides for an autonomous dispute settlement system that is 'seatless' and is thus subject neither to any domestic arbitration law, nor to the supervision of domestic courts. As at the date of the preparation of this chapter, the ICSID Arbitration Rules are in the process of undergoing revision.
On 27 September 1978, the ICSID Additional Facility was created for arbitration or conciliation of investment disputes between a state and a foreign national, one of which is not an ICSID Member State or a national of an ICSID Member State (Additional Facility and ICSID Additional Facility Rules). In contradistinction to arbitration under the ICSID Convention, arbitration under the ICSID Additional Facility Rules will take place pursuant to a domestic arbitration law, subject to the supervisory powers of the courts of the seat of the arbitration.
12 Joachim Pohl, Kekeletso Mashigo, Alexis Nohen, 'Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey', OECD Working Papers on International Investment, 2012/02, OECD Publishing, 2012, (Pohl/Mashigo/Nohen), 8, 20.
13 The Arbitration Rules of the United Nations Commission on International Trade Law adopted by the General Assembly on 15 December 1976 (1976 UNCITRAL Rules or 1976 version), as well as the versions amended in 2010 (2010 UNCITRAL Rules or 2010 version) and 2013. Further to Article II(2) of the Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran on 19 January 1981, the Iran United States Claims Tribunal conducted its proceedings based on the 1976 UNCITRAL Rules as modified by the Tribunal and, where applicable, the relevant parties.
14 The International Chamber of Commerce (ICC) Rules of Arbitration of 2017 (the ICC Rules).
15 The Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) of 2010, as revised in 2017 (the SCC Rules).
16 The London Court of International Arbitration (LCIA) Arbitration Rules (LCIA Rules).
17 See, Pohl/Mashigo/Nohen (footnote 12), 20; Andrea Carlevaris, Joel Dahlquist Cullborg, 'Investment Treaty Arbitration at ICC', 1 ICC Dispute Resolution Bulletin (2017), 25–50 (Carlevaris/Dahlquist), 25; James Hope, 'Investor-State Arbitration Before the SCC', International Comparative Legal Guides: Investor-State Arbitration 2020 (2nd edn, Global Legal Group, 2019), 14–18, 14.
18 See, e.g., E-Systems, Inc. v. The Government of the Islamic Republic of Iran, Bank Melli Iran, IUSCT Case No. 388, Interim Award (Award No. ITM 13-388-FT), 4 February 1983 (E-Systems v. Iran), para. 33 (holding that '[t]his Tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective.'); Behring International, Inc. v. Islamic Republic of Iran Air Force, Iran Aircraft Industries and others, IUSCT Case No. 382, Interim and Interlocutory Award (Award No. ITM/ITL 52-382-3), 21 June 1985, para. 126. See also, Collins (footnote 7), 215.
19 See, e.g., Pohl/Mashigo/Nohen (footnote 12), 31; Goldberg/Kryvoi/Philippov (footnote 2), 4.
20 The North American Free Trade Agreement of 17 December 1992 (NAFTA). See, id., Article 1134. According to commentators, the initial negotiating text for this provision did not allow arbitral tribunals to order provisional measures. See, Meg Kinnear, Andrea Kay Bjorklund, John B. Hannaford, Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11, Supplement No. 1 (Kluwer Law International 2006), 1134-1.
21 NAFTA, Article 1134 reads in full: 'A Tribunal may order an interim measure of protection to preserve the rights of a disputing party, or to ensure that the Tribunal's jurisdiction is made fully effective, including an order to preserve evidence in the possession or control of a disputing party or to protect the Tribunal's jurisdiction. A Tribunal may not order attachment or enjoin the application of the measure alleged to constitute a breach referred to in Article 1116 or 1117. For purposes of this paragraph, an order includes a recommendation.'
22 See, e.g., the Canada–Ukraine BIT (1994), Article XIII(8); the Mexico–Bolivia FTA (1994), Article 15-34; the United States–Georgia BIT (1994), Article IX(3)(b); the Dominican Republic–Central America Free Trade Agreement, Article 10.20(8). See also, US Model BIT (2012), Article 28(8); the EU–Canada Comprehensive Economic and Trade Agreement (CETA), Article 8.34.
23 Article 47 of the ICSID Convention provides: '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.' According to Prof. Schreuer, this provision was directly inspired by Article 41 of the ICJ Statute. See, Christoph H Schreuer with Loretta Malintoppi, August Reinisch, Anthony Sinclair, The ICSID Convention: A Commentary (Cambridge University Press; 2nd edn, 2009) (Schreuer), Article 47, 758–759, para. 1.
24 ICSID Arbitration Rule 39 provides:
- 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.
- The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1).
- 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.
- The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.
- 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.
- 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.
See also, Article 46 of the ICSID Additional Facility Arbitration Rules. Contrary to arbitration under the ICSID Convention and the ICSID Arbitration Rules, proceedings under the ICSID Additional Facility Rules will be subject to the mandatory rules of the law of the seat of the arbitration. See, ICSID Additional Facility Arbitration Rule 1.
25 Schreuer (footnote 23), Article 47, 771, para. 46.
26 Schreuer (footnote 23), Article 47, 769 para. 37. See also, e.g., Víctor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures, 25 September 2001 (Pey Casado v. Chile), para. 5.
27 Schreuer (footnote 23), Article 47, 763 para. 13; Loretta Malintoppi, 'Provisional Measures in Recent ICSID Proceedings: What Parties Request and What Tribunals Order', International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, Oxford University Press, 2009, 157–184 (Malintoppi), 160.
28 Schreuer (footnote 23), Article 47, 774–775 paras 58–59 (noting also that '[i]f the circumstances requiring provisional measures no longer exist, the tribunal is under an obligation to revoke them.'). id. 775, para. 58.
29 Notes to the ICSID Arbitration Rules, Rule 39, Note E, 1 ICSID Reports (1993) 63–118, 99–100.
30 See, Born 2014 (footnote 9), 2508–2509; Anthony Sinclair, Odysseas Repousis, 'An Overview of Provisional Measures in ICSID Proceedings', 32(2) ICSID Review (2017) 431–446, 437. See also, Schreuer (footnote 23), Article 47, 762–763 para. 12.
31 See, Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15 and Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. 10/25, Directions concerning Claimants' Application for Provisional Measures of 12 June 2012, 13 June 2012 (Pezold v. Zimbabwe, Directions), paras 7–8. See also, Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009 (Perenco v. Ecuador), para. 28, para. 64 and paras 65–67 (regarding letters from the arbitral tribunal requesting, before having received observations from the respondent, that the parties 'refrain from initiating or continuing any action or adopting any measure which may, directly or indirectly, modify the status quo between the parties [as to the contract between them]'); City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador) (I), ICSID Case No. ARB/06/21, Decision on Provisional Measures, 19 November 2007 (City Oriente v. Ecuador, 2007), para.. 13; Sam Lutrell, 'ICSID provisional measures 'in the round'', 31(3) Arbitration International (2015), 393–412 (Lutrell), 407; Brigitte Stern, 'Interim/Provisional Measures', Building International Investment Law–The First 50 Years of ICSID (M. Kinnear et al. (eds.) Kluwer Law International, 2015), 627–640 (Stern), 628.
32 See, e.g., Malintoppi (footnote 27), 160; Andrea Carlevaris, 'Preliminary Matters: Objections, Bi-furcation, Request for Provisional Measures', Litigating International Investment Disputes: A Practitioner's Guide (Ch. Giorgetti (ed.), Brill Nijhoff, 2014), 173–205, 196.
33 Charles N. Brower, Ronald E.M. Goodman, 'Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings', 6(2) ICSID Review—Foreign Investment Law Journal (1991), 431–461 (Brower/Goodman), 436. See also, Schreuer (footnote 23), Article 47, 761 paras 8–10. Brower and Goodman further note, with reference to Article 26 of the ICSID Convention, that '[s]everal jurisdictions and a number of publicists have insisted further that the ICSID system dictates jurisdictional exclusivity so complete (even without the addition of Rule 39(5)) that it prohibits even applications to national courts for conservatory measures'. Brower/Goodman, 436.
34 See, e.g., Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Procedural Order No. 2, 28 October 1999 (Maffezini v. Spain), para. 9; Pey Casado v. Chile (footnote 26), paras 17–26; Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures), 1 July 2003, para. 4; Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador (II), ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007 (Occidental Petroleum v. Ecuador), para. 58. See also, Schreuer (footnote 23), Article 47, 764–765 paras 15–22; Francisco Orrego Vicuña, 'The Evolving Nature of Provisional Measures', Liber Amicorum Bernardo Cremades (M.A. Fernandez-Ballesteros, D. Arias (eds.), La Ley, 2010), 939–954 (Orrego Vicuña) 953. Moreover, commentaries agree that ICSID tribunals have the power to draw adverse inferences if their decisions on provisional measures are not respected. See, e.g., Pierre A. Karrer, 'Interim Measures Issued by Arbitral Tribunals and the Courts: Less Theory, Please', International Arbitration and National Courts: The Never Ending Story, 10 ICCA Congress Series (A. J. Van den Berg (ed.), ICCA & Kluwer Law International, 2001) 97–110.
35 The language of Article 47 of the ICSID Convention and Rule 39 of the ICSID Arbitration Rules merely refer to the respective rights of the parties.
36 See, Schreuer (footnote 23), Article 47, 778, para. 72.
37 See, Pey Casado v. Chile (footnote 26), para.15; Saipem S.p.A. v. the People's Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007 (Saipem v. Bangladesh), para. 175. See also, Dan Sarooshi, 'Provisional Measures and Investment Treaty Arbitration', 29(3) Arbitration International (2013), 361–380 (Sarooshi), 370.
38 PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea, ICSID Case No. ARB/13/33, Decision on the Claimant's Request for Provisional Measures, 21 January 2015 (PNGSDP v. Papua New Guinea), para. 103. See also, Obrascon Huarte Lain S.A., Rizzani de Eccher S.p.A. and Trevi S.p.A. v. State of Kuwait, ICSID Case No. ARB/17/8, Decision on Provisional Measures, 23 November 2017, para. 99.
39 Maffezini v. Spain (footnote 34), para. 10. See also, e.g., Saipem v. Bangladesh (footnote 37), para. 175.
40 'Provisional measures should be distinguished clearly from awards. The provisions of Articles 48–55 of the Convention do not apply to provisional measures.' Schreuer (footnote 23), Article 47, 759–760, para. 4.
41 See, footnote 12.
42 For a recent case in which the 2010 UNCITRAL Arbitration Rules were applied, see, OOO Manolium Processing v. the Republic of Belarus, PCA Case No. 2018-06, Decision on Claimant's Interim Measures Request, 7 December 2018 (Manolium v. Belarus).
43 See, 2010 UNCITRAL Rules, Article 1(2). See also, 2013 UNCITRAL Rules, Article 1(2).
44 See, e.g., United Nations Conference on Trade and Development (UNCTAD), 'Fact Sheet on Investor-State Dispute Settlement Cases in 2018', IIA Issues Note 2 (2019) (UNCTAD/DIAE/PCB/INF/2019/4), 29 May 2019, 2.
45 1976 UNCITRAL Rules, Article 26 reads in full:
- At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.
- Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.
- A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
46 1976 UNCITRAL Rules, Article 1(2).
47 David Caron, Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary, Oxford University Press, 2nd edn, 2013, (Caron/Caplan), 516–517.
48 Gary B. Born, International Arbitration: Law and Practice, Kluwer Law International, 2nd edn, 2015, 209–226 (Born 2015), 212. See also, Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures, 2 September 2008 (Paushok v. Mongolia), para. 36.
49 Caron/Caplan (footnote 47), 517–518; Sophie Nappert, Commentary on the UNCITRAL Arbitration Rules 2010: A Practitioner's Guide (Juris, 2012) (Nappert), 100. See also, Born 2014 (footnote 9), 2450 and Luis Enrique Graham, Interim Measures: Ongoing Regulation and Practices (A View from the UNCITRAL Arbitration Regime)', A. Van den Berg, ed., 50 Years of the New York Convention: ICCA International Arbitration Conference (ICCA & Kluwer Law International, 2009), 539–563 (Graham), 541–542 (commenting on the identical language under the previous version of the UNCITRAL Model Law).
50 See, Yesilirmak (footnote 5), 188–189, paras 5–47.
51 Caron/Caplan (footnote 47), 527; Jan Paulsson, Georgios Petrochilos, UNCITRAL Arbitration, Kluwer Law International, 2016, (Paulsson/Petrochilos), 206, para. 39.
52 Caron/Caplan (footnote 47), 524–525; Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador (II), PCA Case No. 2009-23, First Interim Award on Interim Measures, 25 January 2012 (Chevron v. Ecuador), Operative part, para. 1.
53 See also, Born 2014 (footnote 9), 2506–2507 (commenting on the identical language under the previous version of the UNCITRAL Model Law).
54 Fouchard/Gaillard, 711–718. See also, Pieter Sanders, 'Commentary On UNCITRAL Arbitration Rules', P. Sanders ed., II Yearbook Commercial Arbitration (ICCA & Kluwer Law International, 1977), 172–224, 196–197; Thomas H. Webster, Handbook of UNCITRAL Arbitration, 2nd edn, Sweet & Maxwell, 2015, (Webster), 352, 26-19–26.21.
55 For further discussion, see, e.g., Caron/Caplan (footnote 47), 529–530.
56 Igor Boyko v. Ukraine, PCA Case No. 2017-32, Procedural Order No. 3 on Claimant's Application for Emergency Relief, 3 December 2017 (Boyko v. Ukraine), para. 2.3.
57 Rockwell International Systems v. The Islamic Republic of Iran, Iran-United States Claims Tribunal, Interim Award No. 17-430-1, 1 June 1986 (Rockwell v. Iran); Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Temporary Restraining Order, 23 March 2008, quoted in Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures, 2 September 2008 (Paushok v. Mongolia, TRO), para. 16; Boyko v. Ukraine (footnote 56), para. 2.4. See also, David Caron, 'Interim Measures of Protection: Theory and Practice in Light of the Iran-United States Claims Tribunal', 46 Zeitschrift für ausländisches und öffentliches Recht (1986), 465–518 (Caron 1986), 482–483; Caron/Caplan (footnote 47), 530–531; Stern (footnote 31), 628. For further discussion regarding arbitral ex parte interim relief, see, Born 2014 (footnote 9), 2509–2511; Jeff Waincymer, Procedure and Evidence in International Arbitration, Kluwer Law International, 2012, 628; Graham (footnote 49), 544–546 (discussing the various positions held during the revision of the UNCITRAL Model Law); James Castello, 'Arbitral Ex Parte Interim Relief: The View in Favor', 58(3) Dispute Resolution Journal (2003), 60–66, 60; Hans van Houtte, 'Ten Reasons Against a Proposal for Ex Parte Interim Measures of Protection in Arbitration', 20(1) Arbitration International (2004), 85–96.
58 For a discussion of the differences between Article 26 of the 1976 and 2010 UNCITRAL Arbitration Rules, see, e.g., Georgios Petrochilos, 'Interim Measures under the Revised UNCITRAL Arbitration Rules', 28(4) ASA Bulletin (2010) (Petrochilos), 878–890; James Castello, 'UNCITRAL Arbitration Rules, Section III, Article 26 [Interim measures]', Concise International Arbitration, L. Mistelis (ed.), 2nd edn, Kluwer Law International, 2015, 231–237; Caron/Caplan (footnote 47), 532; Nappert (footnote 49), 95–102; Peter Binder, Analytical Commentary to the UNCITRAL Arbitration Rules (Sweet & Maxwell, 2013), 242–258; Webster (footnote 54), 348–377.
59 Article 26 of the 2010 UNCITRAL Rules provides:
- The arbitral tribunal may, at the request of a party, grant interim measures.
- An interim measure is any temporary measure by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party, for example and without limitation, to:
- Maintain or restore the status quo pending determination of the dispute;
- Take action that would prevent, or refrain from taking action that is likely to cause, (i) current or imminent harm or (ii) prejudice to the arbitral process itself;
- Provide a means of preserving assets out of which a subsequent award may be satisfied; or
- Preserve evidence that may be relevant and material to the resolution of the dispute.
- The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that:
- Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted; and
- There is a reasonable possibility that the requesting party will succeed on the merits of the claim. The determination on this possibility shall not affect the discretion of the arbitral tribunal in making any subsequent determination.
- With regard to a request for an interim measure under paragraph 2 (d), the requirements in paragraphs 3 (a) and (b) shall apply only to the extent the arbitral tribunal considers appropriate.
- The arbitral tribunal may modify, suspend or terminate an interim measure it has granted, upon application of any party or, in exceptional circumstances and upon prior notice to the parties, on the arbitral tribunal's own initiative.
- The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
- The arbitral tribunal may require any party promptly to disclose any material change in the circumstances on the basis of which the interim measure was requested or granted.
- The party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that, in the circumstances then prevailing, the measure should not have been granted. The arbitral tribunal may award such costs and damages at any point during the proceedings.
- A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
60 See, e.g., Caron/Caplan (footnote 47), 517.
61 See, Section V.
62 See, e.g., Caron/Caplan (footnote 47), 525. As regards the possibility of obtaining preliminary orders under the 2010 UNCITRAL Rules, commentaries are of the view that such ex parte relief may remain available in limited circumstances. See, Petrochilos (footnote 58), 887–888; Paulsson/Petrochilos (footnote 51), 206–207, paras 42–46.
63 Caron/Caplan (footnote 47), 532.
64 Specifically, the 'Investment Arbitration Rules of the Singapore International Arbitration Centre' apply to disputes 'involving a State, State-controlled entity or intergovernmental organization, whether arising out of a contract, treaty, statute or other instrument'. Investment Arbitration Rules of the Singapore International Arbitration, Introduction, (i). These Rules also provide for the possibility to seek interim and emergency interim relief. See, id., Rule 27.
65 Article 28 of the ICC Rules provides:
- Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the arbitral tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The arbitral tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an award, as the arbitral tribunal considers appropriate.
- Before the file is transmitted to the arbitral tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an arbitral tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitral tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the arbitral tribunal thereof.
66 See, ICC Rules, Article 34; Jason Fry, Simon Greenberg, Francesca Mazza, The Secretariat's Guide to ICC Arbitration 75 (ICC Publications, 2012) (Fry/Greenberg/Mazza), para. 3-1041.
67 See, Fry/Greenberg/Mazza (footnote 66), para. 3-1040.
68 ICC Rules, Article 29 and Appendix V, the ICC Emergency Arbitrator Rules.
69 Article 29(5) provides that the ICC Emergency Arbitrator Rules 'shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories'.
70 See, ICC Commission, Emergency Arbitrator Proceedings, Report of the ICC Commission on Arbitration and ADR Task Force on Emergency Arbitrator Proceedings (2019), 7–8, paras 49 and 39; ICC Commission, Report on States, State Entities and ICC Arbitration (2005), 6. See also, Carlevaris/Dahlquist (footnote 17), 29. Contra, Philippe Pinsolle, 'A Call to Open the ICC Emergency Arbitrator Procedure to Investment Treaty Cases', International Arbitration under Review, Essays in Honour of John Beechey (A Carlevaris, L Lévy, A Mourre & EA Schwartz (eds.), ICC Publications, 2005), 307.
71 Article 37 of the SCC Rules provides:
- The Arbitral Tribunal may, at the request of a party, grant any interim measures it deems appropriate.
- The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security in connection with the measure.
- An interim measure shall take the form of an order or an award.
- Provisions with respect to interim measures requested before arbitration has commenced, or before a case has been referred to an Arbitral Tribunal, are set out in Appendix II.
- A request for interim measures made by a party to a judicial authority is not incompatible with the arbitration agreement or with these Rules.
See also, SCC Rules, Article 23(1). For more detailed comments on the SCC Rules, see, Jakob Ragnwaldh, Fredrik Andersson, Celeste E. Salinas Quero, 'Chapter 5: The Proceedings Before the Arbitral Tribunal', A Guide to the SCC Arbitration Rules, Kluwer Law International 2019) (Ragnwaldh, Andersson, Quero), 73–130.
72 Ragnwaldh, Andersson, Quero (footnote 71), 118. Contra: Anja Havedal Ipp, SCC Practice Note, Emergency Arbitrator Decisions Rendered 2015-2016 (2017) (Havedal/Ipp)), 3.
73 SCC Rules, Appendix II (the SCC Emergency Arbitrator Rules). The SCC Emergency Arbitrator Rules apply to SCC arbitrations commenced after 1 January 2010 absent an explicit exclusion by the parties to a dispute, or in cases where there is a manifest lack of jurisdiction. See, Havedal/Ipp (footnote 72), 4; SCC Rules, Appendix II, Article 4(2). See also, Charles Brower and Ariel Meyerstein, 'The Power and Effectiveness of Pre-Arbitral Provisional Relief: The SCC Emergency Arbitrator in Investor-State Disputes', Kaj Hober et al. (eds) Between East and West: Essays in Honour of Ulf Franke (Juris, 2010), 63–79, 68.
74 SCC Rules, Appendix II, Article 1(2); Havedal/Ipp (footnote 72), 2. The Emergency Arbitrator is appointed within 24 hours of the receipt of an application for emergency relief, and in principle renders its ruling in the form of an emergency decision within five days after receipt of the request, after having given the parties the possibility to present their observations. SCC Rules, Appendix II, Article 8(1).
75 SCC Rules, Appendix II, Article 9(1).
76 SCC Rules, Appendix II, Article 9(2).
77 SCC Rules, Appendix II, Article 9(5). In any event, they cease to be binding if no arbitration is instituted within 30 days after the emergency decision is rendered, or if no tribunal is constituted within 90 days thereafter. SCC Rules, Appendix II, Article 9(4)(iii)-(iv).
78 See, Goldberg/Kryvoi/Philippov (footnote 2), 9; Havedal/Ipp (footnote 72), 4. As of today, the SCC Emergency Arbitrator Rules have been invoked in at least eight instances since 2015.
79 LCIA Rules, Article 25(1). Article 251) reads in full:
25.1 The Arbitral Tribunal shall have the power upon the application of any party, after giving all other parties a reasonable opportunity to respond to such application and upon such terms as the Arbitral Tribunal considers appropriate in the circumstances:
- to order any respondent party to a claim or cross-claim to provide security for all or part of the amount in dispute, by way of deposit or bank guarantee or in any other manner;
- to order the preservation, storage, sale or other disposal of any documents, goods, samples, property, site or thing under the control of any party and relating to the subject-matter of the arbitration; and
- to order on a provisional basis, subject to a final decision in an award, any relief which the Arbitral Tribunal would have power to grant in an award, including the payment of money or the disposition of property as between any parties.
Such terms may include the provision by the applicant party of a cross-indemnity, secured in such manner as the Arbitral Tribunal considers appropriate, for any costs or losses incurred by the respondent party in complying with the Arbitral Tribunal's order. Any amount payable under such cross-indemnity and any consequential relief may be decided by the Arbitral Tribunal by one or more awards in the arbitration.
25.2 The Arbitral Tribunal shall have the power upon the application of a party, after giving all other parties a reasonable opportunity to respond to such application, to order any claiming or cross-claiming party to provide or procure security for Legal Costs and Arbitration Costs by way of deposit or bank guarantee or in any other manner and upon such terms as the Arbitral Tribunal considers appropriate in the circumstances. Such terms may include the provision by that other party of a cross-indemnity, itself secured in such manner as the Arbitral Tribunal considers appropriate, for any costs and losses incurred by such claimant or cross-claimant in complying with the Arbitral Tribunal's order. Any amount payable under such cross-indemnity and any consequential relief may be decided by the Arbitral Tribunal by one or more awards in the arbitration. In the event that a claiming or cross-claiming party does not comply with any order to provide security, the Arbitral Tribunal may stay that party's claims or cross-claims or dismiss them by an award.
25.3 The power of the Arbitral Tribunal under Article 25.1 shall not prejudice any party's right to apply to a state court or other legal authority for interim or conservatory measures to similar effect: (i) before the formation of the Arbitral Tribunal; and (ii) after the formation of the Arbitral Tribunal, in exceptional cases and with the Arbitral Tribunal's authorisation, until the final award. After the Commencement Date, any application and any order for such measures before the formation of the Arbitral Tribunal shall be communicated promptly in writing by the applicant party to the Registrar; after its formation, also to the Arbitral Tribunal; and in both cases also to all other parties.
25.4 By agreeing to arbitration under the Arbitration Agreement, the parties shall be taken to have agreed not to apply to any state court or other legal authority for any order for security for Legal Costs or Arbitration Costs.
80 LCIA Rules, Article 9B.
81 In addition, the LCIA has administered treaty-based arbitrations conducted under the 1976 UNCITRAL Rules. See, e.g., EnCana Corporation v. Republic of Ecuador, LCIA Case No. UN3481, UNCITRAL, Interim Award – Request for Interim Measures of Protection, 31 January 2004.
82 ICSID Arbitration Rule 39(1) refers to the possibility for a party to request a recommendation of provisional measures for 'the preservation of [a party's] rights'. See, footnote 23. Article 26(1) of the 1976 UNCITRAL Rules provides for the power of an arbitral tribunal to 'take any interim measures it deems necessary in respect of the subject-matter of the dispute[.]' See, footnote 45. The ICC Rules and SCC Rules do not contain any qualifying or illustrative language and merely refer to interim (or conservatory measures) that the arbitral tribunal deems appropriate. See, footnotes 65 and 71. By contrast, Article 26(2) of the 2010 UNCITRAL Rules, which as of today has only been rarely used in treaty-based arbitration, lists four broad, non-exhaustive categories of rights that may be protected provisionally. See, footnote 59.
83 See, Schreuer (footnote 23), Article 47, 778 para. 73 citing International Bank for Reconstruction and Development, Preliminary Draft of a Convention on the Settlement of Investment Disputes between States and Nationals of other States, Working Paper for Consultative Meetings of Legal Experts designated by Governments, 15 October 1963, COM/AF/WH/EU/AS/1, 29–30, para. 5 in II(1) History of the ICSID Convention, 216 ('[U]nless the parties specifically precluded from doing so, the Tribunal would have the power to prescribe provisional measures designed to preserve the status quo between the parties pending its final decision on the merits.'). See also, UNCITRAL, Working Group II (Arbitration and Conciliation), Thirty-sixth session, 4–8 March 2002, Settlement of commercial disputes, Preparation of uniform provisions on interim measures of protection, Note by the Secretariat, A/CN.9/WG.II/WP.119, 5–6, para. 14.
84 Id. See also, Schreuer (footnote 23), Article 47, 778 para. 74 citing I History of the ICSID Convention, 206. As further noted by commentaries, '[t]his is a constant theme in international practice. As early as 1907, the Convention for the establishment of a Central American Court of Justice gave the court power (Article 18) to “fix the situation in which the contending parties must remain, to the end that the difficulty shall not be aggravated and that things shall be conserved in status quo pending a final decision”. In municipal tribunals, the maintenance or restoration of the status quo is also the primary purpose of interim measures, and it has been seen in Chapter I that the preservation of the peace was also a purpose of the injunction in civil law. Today the overriding reason for such measures is to ensure that the final judgment of the court will not be prejudiced by the actions of the parties.' Collins (footnote 7), 215. See also, Paul D Friedland, 'Provisional Measures and ICSID Arbitration', 2 Arbitration International 335 (1986) (Friedland), 336.
85 Notes to the ICSID Arbitration Rules, Rule 39, Note A, 1 ICSID Reports (1993) 63–118, 99–100; Schreuer (footnote 23), Article 47, 793–796 paras 135–151. See also, for a discussion of these three aims in a general context, Bond (footnote 4), 10.
86 Quiborax S.A. and Non-Metallic Minerals S.A. v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010 (Quiborax v. Bolivia), para. 117; 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 (Burlington v. Ecuador), para. 60; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 1, 31 March 2006 (Biwater Gauff v. Tanzania), para. 71; Stern (footnote 31), 629.
87 In earlier years, ICSID tribunals endorsed a stricter approach, requiring that a request for provisional measures rate to facts in dispute. See, Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on Request for Provisional Measures, 9 December 1983 (Amco v. Indonesia), para. 3; Maffezini (footnote 34), paras 24–25. This restrictive approach has not been confirmed in the practice of ICSID tribunals. See, Gabrielle Kaufmann-Kohler, Aurélia Antonietti, Michele Potestà, 'Interim Relief in Investment Treaty Arbitration', Arbitration Under International Investment Agreements, A Guide to the Key Issues (K. Yannaca-Small (ed.), 2nd edn, Oxford University Press, 2018) (Kaufmann-Kohler/Antonietti/Potestà), 639, paras 24.22–24.23.
88 See, Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Order on Provisional Measures, 6 September 2005 (Plama v. Bulgaria), para. 40. See also, Nova Group Investments, B.V. v. Romania, ICSID Case No. ARB/16/19, Procedural Order No. 7 Concerning the Claimant's Request for Provisional Measures, 29 March 2017 (Nova Group v. Romania), para. 236.
In the context of the 1976 UNCITRAL Rules, and arguably even under the ICC Rules and SCC Rules, which have a broader wording ('any rights'), difficulties could arise with respect to defining the contours of the status quo, for which provisional protection is sought.
89 ibid. See also, Churchill Mining and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/40 and 12/14, Procedural Order No. 14 (Provisional Measures), 22 December 2014 (Churchill Mining v. Indonesia), para. 72, noting that a 'particularly high threshold must be overcome' when such unfolding events concern criminal investigations and prosecutions. See also Section IV.iii.
90 See, Plama v. Bulgaria (footnote 88), para. 40.
91 Nova Group v. Romania (footnote 88), para. 236.
93 What is apparent, however, is that the analysis of the rights to be protected in such instances cannot be divorced from the analysis of substantive harm, which constitutes one of the requirements for awarding interim relief (see Section V). See also, CEMEX Caracas Investments B.V. and CEMEX Caracas II Investments B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/08/15, Decision on the Claimants' Request for Provisional Measures, 3 March 2010 (CEMEX v. Venezuela), paras 60–61.
94 Stern (footnote 31), 631.
95 See, e.g., Born 2014 (footnote 9), 2477–2478.
96 As noted at Section III, certain investment treaties explicitly limit arbitral powers with respect to provisional measures, for instance by prohibiting tribunals from ordering attachment or enjoining the application of state measures that are contested on the merits in the main proceedings. See, e.g., Article 1134 of the NAFTA. As noted by one commentator, this limitation in Article 1134 NAFTA is consistent with the limitation in Article 1135 NAFTA, which limits the type of relief available on the merits and excludes specific performance other than restitution if chosen by the respondent party. See, Cameron A. Miles, Provisional Measures before International Courts and Tribunals, Cambridge University Press, 2017, 112–113. See also, Pope & Talbot v. Government of Canada, UNCITRAL, Ruling on Claimant's Motion for Interim Measures, 1 January 2000, 1.
97 Maffezini v. Spain (footnote 34), para. 14. See also, Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Decision on Provisional Measures, 6 April 2007 (Phoenix v. Czech Republic), para. 34.
98 Maffezini v. Spain (footnote 34), para. 14.
99 See, City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador) [I], ICSID Case No. ARB/06/21, Decision on Revocation of Provisional Measures and Other Procedural Matters, 13 May 2008 (City Oriente v. Ecuador, 2008), para. 45; Burlington v. Ecuador (footnote 86), para. 71; Perenco v. Ecuador (footnote 31), para. 48. See also, Holiday Inns S.A. and others v. Morocco, ICSID Case No. ARB/72/1, Decision on Provisional Measures, 2 July 1972, excerpts published in Pierre Lalive, 'The First World Bank Arbitration (Holiday Inns v. Morocco) – Some Legal Problems', 51 British Yearbook of International Law (1980) 123–162 (Holiday Inns v. Morocco), 136 ('the parties are under an obligation to abstain from all measures likely to prevent definitely the execution of their obligations').
100 Perenco v. Ecuador (footnote 31), paras 61–63.
101 Occidental Petroleum v. Ecuador (footnote 34), para. 79. See also, id., paras 75–86; BP Exploration Company (Libya) Limited v. Government of the Libyan Arab Republic, Award (Merits), 10 October 1973 (BP Exploration Company v. Libya), para. 200; Perenco v. Ecuador (footnote 31), para. 48; Stern (footnote 31), 637; Hela Schwarz GmbH v. People's Republic of China, ICSID Case No. ARB/17/19, para. 113 ('A recommendation of provisional measures cannot be used as a basis to restore the Claimant to the status quo ante, before the building that were the subject of the PM Request were demolished.').
102 Phoenix (footnote 97), para. 37, holding also that '[i]n other words, provisional measures are deemed to maintain the status quo, not to improve the situation of the Claimant before the rendering of the Tribunal's award.' ibid.
103 See, Paushok v. Mongolia (footnote 48), Operative part, para. 1 (ordering the respondent-state to suspend the payment, by the claimant-investor, of a tax on gold mining operations until the final determination of the dispute, subject to the posting of security by the claimant-investor); JKX Oil & Gas plc, Poltava Gas B.V. and Poltava Petroleum Company v. Ukraine, SCC Case EA/2015/002, Emergency Award, 24 February 2016; Lao Holdings N.V. v. Lao People's Democratic Republic (I), ICSID Case No. ARB(AF)/12/6, Decision on Claimant's Amended Application for Provisional Measures, 17 September 2013 (Lao Holdings v. Laos, 2013), para. 30; Ioan Micula, Viorel Micula and others v. Romania (I), ICSID Case No. ARB/05/20, Final Award, 11 December 2013, para. 102 (referencing previous decisions regarding injunctions regarding the lifting of garnishment); Stern (footnote 31), 631. See also, Perenco v. Ecuador (footnote 31), paras 56–63.
104 See, Kompozit LLC v. Republic of Moldova, SCC Case No. 2016/95, Emergency Award on Interim Measures, 14 June 2016 (Kompozit v. Moldova, SCC Emergency Arbitrator Award). See also, Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1, Decision on Claimant's Request for Provisional Measures, 13 December 2012 (Tethyan Copper v. Pakistan), para. 137 (regarding the refusal to grant a mining lease).
105 See, PNGSDP v. Papua New Guinea (footnote 38), para. 171.
106 Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/13/1, Decision on Provisional Measures, 8 February 2013, para. 187, reproduced in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/13/1, Award, 22 August 2017, para. 26.
107 See, e.g., Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, Procedural Order No. 1, 29 November 2004, para. 78, quoted in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, 27 August 2009, para. 487; International Quantum Resources Limited, Frontier S.P.R.L. and Compagnie Minière de Sakania S.P.R.L. v. Democratic Republic of Congo, ICSID Case No. ARB/10/21, Procedural Order No. 1, 1 July 2011, paras 23, 30; Chevron v. Ecuador (footnote 52), Operative part; Puma Energy Holdings (Luxembourg) S.A.R.L. v. The Republic of Benin, SCC Case No. SCC EA 2017/092, Emergency Award, 8 June 2017.
108 Tanzania Electric Supply Company Limited v. Independent Power Tanzania Limited, ICSID Case No. ARB/98/8, Decision on the Respondent's Request for Provisional Measures, 20 December 1999, paras 13, 16. At the same time, the tribunal in that case noted that the requesting party had neither established that its contractual rights risked being eroded in the absence of the requested relief, nor shown that there was urgency. See, id., paras 14–17.
109 Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. Argentine Republic, ICSID Case No. ARB/09/1, Decision on Provisional Measures, 8 April 2016, paras 167, 169. See also, Behring International, Inc. v. Islamic Republic of Iran Air Force, Iran Aircraft Industries and others, IUSCT Case No. 382, Interim Award (Award No. ITM 46-382-3), 22 February 1985 (Behring International v. Iran), a case in which the Iran–US Claims Tribunal refused to order interim relief that would be tantamount to the final relief requested by way of a counter-claim, and which would have consisted in the transfer to the respondent party of possession of warehoused goods before finally ruling on its jurisdiction over such a claim. See, id., para. 3.
110 Saipem v. Bangladesh (footnote 37), para. 183.
111 See, Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration & Production Company Limited (Bapex), and Bangladesh Oil Gas and Mineral Corporation (Petrobangla), ICSID Case Nos. ARB/10/11 and ARB/10/18, Procedural Order No. 5 (Preservation of Status Quo Until the Hearing on Provisional Measures), 6 March 2014 (Niko Resources v. Bapex and Petrobangla), para. 12(c); Paushok v. Mongolia (footnote 48), Operative part.
112 In that case, the claimant-investor had sought to provisionally enforce an arbitral award rendered between the parties in a previous arbitration relating to the same facts as those disputed before the ICSID tribunal. See, Maritime International Nominees Establishment (MINE) v. Republic of Guinea, ICSID Case No. ARB/84/4, Decision on Provisional Measures, 4 December 1985, discussed in Maritime International Nominees Establishment (MINE) v. Republic of Guinea, ICSID Case No. ARB/84/4, Award, 6 January 1988, para. 40. See also, Atlantic Triton Company Limited v. People's Revolutionary Republic of Guinea, ICSID Case No. ARB/84/1, Decision on Provisional Measures, 19 December 1984, reproduced in Atlantic Triton Company Limited v. People's Revolutionary Republic of Guinea, ICSID Case No. ARB/84/1, Award, 21 April 1986 (Atlantic Triton v. Guinea), para. 13 (denying request); Holiday Inns v. Morocco (footnote 99), 136 (granting request only with respect to non-escalation of dispute); Friedland (footnote 84), 346.
113 See, e.g., SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/01/13, Procedural Order No. 2 (Provisional Measures), 16 October 2002 (SGS v. Pakistan), para. 47; Zhinvali Development Ltd. v. Republic of Georgia, Decision on Provisional Measures, 24 January 2002, quoted in Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award, 24 January 2003 (Zhinvali v. Georgia), paras 44–45; Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal, ICSID Case No. ARB/08/20, Decision on the Application for Provisional Measures, 9 December 2009 (Millicom v. Senegal), para. 47; Perenco v. Ecuador (footnote 31), paras 56–63. See also, E-Systems v. Iran (footnote 18) and Rockwell v. Iran (footnote 57), para. 5.
114 See, Ceskoslovenska Obchodni Banka, a.s. v. The Slovak Republic, ICSID Case No. ARB/97/4, Procedural Order No. 4, 11 January 1999 and Procedural Order No. 5, 1 March 2000 (CSOB v. Slovakia).
115 SGS v. Pakistan (footnote 113), para. 44; Zhinvali v. Georgia (footnote 113), para. 44; Millicom v. Senegal (footnote 113), paras 44–45; Perenco v. Ecuador (footnote 31), paras 56–63.
116 E-Systems v. Iran (footnote 18) and Rockwell v. Iran (footnote 57), para. 5.
117 Kauffmann-Kohler/Antonietti/Potestà (footnote 87), 654, para. 24.78. In this regard, see, Lao Holdings N.V. v. Lao People's Democratic Republic (I), ICSID Case No. ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order, 30 May 2014 (Lao Holdings v. Laos, 2014), para. 21 (holding that the rule under Article 26 of the ICSID Convention only 'applies only to civil proceedings having the same parties and same subject matter as the arbitral proceeding').
118 See, e.g., Zhinvali v. Georgia (footnote 113); Millicom v. Senegal (footnote 113).
119 See, e.g., Pey Casado (footnote 26), paras 40–41; Plama v. Bulgaria (footnote 88), para. 44.
120 See, e.g., Boyko v. Ukraine (footnote 56).
121 Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures), 1 July 2003, para. 7.
122 Hydro S.r.l and others v. Republic of Albania, ICSID Case No. ARB/15/28, Order on Provisional Measures, 3 March 2016 (Hydro v. Albania), para. 3.23; Churchill Mining v. Indonesia (footnote 89), paras 85–87; Quiborax v. Bolivia (footnote 81), paras 128–131.
123 Quiborax v. Bolivia (footnote 86), para. 164. See also, Abaclat and others (formerly Giovanna A. Beccara and others) v. Argentine Republic, ICSID Case No. ARB/07/5, Procedural Order No. 13, 27 September 2012, para. 39; 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 (Eurogas v. Slovakia), para. 77; Churchill Mining v. Indonesia (footnote 89), para. 72; 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 (Italba v. Uruguay), para. 116.
124 See, e.g., Eurogas v. Slovakia (footnote 123), para. 77; Italba v. Uruguay (footnote 123), para. 116.
125 Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15 and Border Timbers Limited, Border Timbers International (Private) Limited, and Hangani Development Co. (Private) Limited v. Republic of Zimbabwe, ICSID Case No. 10/25, Procedural Order No. 5, 3 April 2013, paras 60–62. See also, Sergei Viktorovich Pugachev v. The Russian Federation, Interim Award, 7 July 2017 (Pugachev v. Russia), para. 214.
126 Churchill Mining v. Indonesia (footnote 89), para. 72. See also, e.g., Italba v. Uruguay (footnote 123), para. 116.
127 Hydro v. Albania (footnote 122), para. 3.20; Boyko v. Ukraine (footnote 57), para. 2.4.
128 Convial Callao S.A. and CCI – Compañía de Concesiones de Infraestructura S.A. v. Republic of Peru, ICSID Case No. ARB/10/2, Decision on Provisional Measures, 22 February 2011 (Convial Callao v. Peru), para. 129.
129 See, e.g., Lao Holdings v. Laos, 2014(footnote 117), para. 75.
130 See, City Oriente v. Ecuador, 2007 (footnote 31), paras 61–66.
131 Quiborax v. Bolivia (footnote 86), para. 136.
132 City Oriente v. Ecuador, 2007(footnote 31), Operative part.
133 Quiborax v. Bolivia (footnote 86), Decision; Lao Holdings v. Laos, 2014 (footnote 117), para. 30.
134 Convial Callao v. Peru (footnote 128), para. 129.
135 Nova v. Romania (footnote 88), para. 42; Pugachev v. Russia (footnote 125), Decision.
136 Mohammed Munshi v. Mongolia, SCC Case No. 2018/007, Award on Emergency Measures, 5 February 2018, para. 63.
137 Caratube International Oil Company LLP v. Republic of Kazakhstan (I), ICSID Case No. ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures, 31 July 2009, Decisions, para. 1(3). See also, Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania, ICSID Case No. ARB/10/13, Procedural Order No. 1, 29 March 2011, quoted in Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania, ICSID Case No. ARB/10/13, Award, 2 March 2015, para. 22.
138 Alicia Grace and others v. United Mexican States, ICSID Case No. UNCT/18/4, Procedural Order No. 6 Decision on the Claimants' Application for Interim Measures, 19 December 2019, para. 73.
139 Manolium v. Belarus (footnote 42), para. 176.
140 See, e.g., Pugachev v. Russia (footnote 125), para. 430; EDF (Services) Limited v. Republic of Romania, ICSID Case No. ARB/05/13, Procedural Order No. 2, 30 May 2008, para. 54(2); United Utilities (Tallinn) B.V. and Aktsiaselts Tallinna Vesi v. Republic of Estonia, ICSID Case No. ARB/14/24, Decision on Respondent's Application for Provisional Measures, 12 May 2016, para. 114; Gramercy Funds Management LLC, and Gramercy Peru Holdings LLC v. The Republic of Peru, ICSID Case No. UNCT/18/2, Procedural Order No. 5, 29 August 2018, para. 79.
141 Ipek Investment Limited v. Republic of Turkey, ICSID Case No. ARB/18/18, Procedural Order No. 13 on Confidentiality, 13 March 2020, para. 21.
142 Biwater Gauff v. Tanzania (footnote 86), para. 98;
143 AGIP S.p.A. v. People's Republic of the Congo, ICSID Case No. ARB/77/1, Award, 30 November 1979, para. 42. See also, Vacuum Salt Products Ltd. v. Republic of Ghana, ICSID Case No. ARB/92/1, Award, 16 February 1994, para. 16 (reporting that the respondent undertook to provide access to certain corporate documents following a request for provisional measures relating to the same.
144 See footnote 59.
145 For further commentary on this issue, see, e.g., Pierre A Karrer, Marcus Desax, 'Security for Costs in International Arbitration – Why, when, and what if ...', Law of International Business and Dispute Settlement in the 21st Century, Liber Amicorum Karl-Heinz Böckstiegel (R Briner et al. (eds), C Heymanns, 2002) 339–353; Lars A Markert, 'Security for Costs Applications in Investment Arbitrations Involving Insolvent Investors' 11(2) Contemporary Asia Arbitration Journal (2018) 217–249; Sam Luttrell, 'Observations on the Proposed New ICSID Regime for Security for Costs', 36(3) Journal of International Arbitration (2019) 385–400; Martina Polasek, Celeste E Salinas Quero, 'Chapter 21: Security for Costs: Overview of ICSID Case Law', Finances in International Arbitration: Liber Amicorum Patricia Shaughnessy (Sh Tung, F Fortese et al. (eds.), Kluwer Law International, 2019) 387–417; Alexander Karl, 'Chapter V: Investment Arbitration, Security for Costs as a Default in Investment Arbitration: A Workable Protection for States when Third-Party Funders are involved?', 2020 Austrian Yearbook on International Arbitration (Christian Klausegger, Peter Klein, et al. (eds), Manz'sche Verlags- und Universitätsbuchhandlung, 2020) 563–592.
146 Maffezini v. Spain (footnote 34), paras 15–25.
147 Pey Casado (footnote 26), paras 86–89. See also, 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, para. 45; Eurogas v. Slovakia (footnote 123), para. 121; RSM Production Corporation v. Saint Lucia, ICSID Case No. ARB/12/10, Decision on the Respondent's Request for Security for Costs, 13 August 2014 (RSM v. Saint Lucia), para. 48; Rachel S Grynberg, Stephen M Grynberg, Miriam Z Grynberg and RSM Production Corporation v. Grenada, ICSID Case No. ARB/10/6, Decision on Respondent's Application for Security for Costs, 14 October 2010, para. 5.17; Libananco Holdings Co. Limited v. Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, June 23, 2008, para. 57. As regards ICSID's tribunals' power to order pre-judgment security, see, Atlantic Triton v. Guinea (footnote 112); Friedland (footnote 84), para. 348.
148 See, e.g., Manuel García et al. v. Bolivarian Republic of Venezuela, PCA Case No. 2016-08, Procedural Order No. 9, 20 June 2018 (García Armas v. Venezuela), para. 189; South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15, PCA Case No. 2013-15, Procedural Order No. 10, 11 January 2016, paras 50–52; Guaracachi America, Inc. and Rurelec plc v. The Plurinational State of Bolivia, PCA Case No. 2011-17, Procedural Order No. 14, 11 March 2013, para. 6.
149 X v. Y and Z, ICC Case, Procedural Order, 3 August 2012, excerpted in Philippe Pinsolle, 'Third Party Funding and Security for Costs', Cahiers de l'arbitrage/Paris Journal of International Arbitration (2013), 399–409.
150 SCC Arbitration Rules, Article 38.
151 RSM v. Saint Lucia (footnote 147), paras 86–87.
152 García Armas v. Venezuela (footnote 148), para. 261.
153 Similar observations have been made in the context of commercial arbitration. See, e.g., Born 2014 (footnote 9), 2464–1466; Christopher Boog, 'The Laws Governing Interim Measures in International Arbitration', Conflict of Laws in International Arbitration (F. Ferrari, S. Kröll (eds.), Juris, 2010), 409, 427.
154 See, Paushok v. Mongolia (footnote 48), paras 69. See also, Stern (footnote 31), 437; TSIKinvest LLC v. the Republic of Moldova, SCC Emergency Arbitration No. EA 2014/053, Emergency Award (TSIKinvest v. Moldova, SCC Emergency Award), 29 April 2014, para. 63; Kompozit v. Moldova, SCC Emergency Award (footnote 104), paras 64–65.
155 See, Burlington v. Ecuador (footnote 99), para. 3, paras 70–71.
156 Schreuer (footnote 23), 771, para. 46.
157 See, e.g., Military and Paramilitary Activies in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order, 10 May 1984, I.C.J. Rep. (1984), 169. See also, e.g., Schreuer (footnote 23), 771, para. 46; Kaufmann-Kohler/Antonietti/Potestà (footnote 87), 659, para. 24.96; Brower/Goodman (footnote 33), 451–456.
158 See, e.g., Pey Casado v. Chile (footnote 26), paras 11–13; Quiborax v. Bolivia (footnote 86), paras 109–112 and García Armas v. Venezuela, paras 200–207.
159 Stern (footnote 31), 629.
160 See, e.g., Millicom v. Senegal (footnote 113), para. 43; Perenco v. Ecuador (footnote 31), para. 39; PNGSDP v. Papua New Guinea (footnote 38), para. 119.
161 Id., citing, Quiborax v. Bolivia (footnote 86), paras 109–112.
162 TSIKInvest v. Moldova, SCC Emergency Award (footnote 154), para. 59; Kompozit v. Moldova, SCC Emergency Award (footnote 104), paras 54–56; Evrobalt LLC and Kompozit LLC v. Moldova, SCC Case No. EA 2016/082, Award on Emergency Measures, 30 May 2016, paras 22–23.
163 See, e.g., PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea, ICSID Case No. ARB/13/33, Award, 5 May 2015, para. 417.
164 Collins (footnote 7), 224, identifying the test of 'a serious question to be tried' as 'the current English text' and distinguishing it from the 'more stringent test in civil law countries that there must be a probable, or prima facie, prospect of success on the merits'. ibid. See also, e.g., Kaufmann-Kohler/Antonietti/Potestà (footnote 87), 661, paras 24.105.
165 See, e.g., Julian Lew, Loukas A Mistelis, Stephan Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003) 604, para. 23–62. See also, Merck Sharpe & Dohme (I.A.) LLC v. The Republic of Ecuador, PCA Case No. 2012-10, First Decision on Interim Measures, 7 March 2016, para. 69.
166 See, Collins (footnote 7), 226; Born 2014 (footnote 9), 2478–2480.
167 Born 2014 (footnote 9), 2480.
168 See, e.g., Caron 1986 (footnote 57), 490–491; Born 2014 (footnote 9), 2479.
169 See, footnote 58.
170 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Order – Request for the indication of provisional measures, 28 May 2009, I.C.J. Rep. 2009, para. 57; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Order – Request by Nicaragua for the Indication of Provisional Measures, 13 December 2013, para. 15.
171 City Oriente v. Ecuador, 2008 (footnote 99), para. 20 ('the party requesting the measure need only prove that its claim has the appearance of good right, fumus boni iuris, or, in other words, the petitioner must prove that the rights invoked are plausible. Accordingly, the Tribunal's decision is merely provisional and is subject to revocation at any time; moreover, the passing of such measures does not at all impact the decision on the merits to be eventually rendered once the proceedings have been fully substantiated'). See also, Lao Holdings v. Laos, 2013 (footnote 103), para. 15; Lao Holdings N.V. v. Lao People's Democratic Republic (I), ICSID Case No. ARB(AF)/12/6, Decision on Claimant's Second Application for Provisional Measures, 18 March 2015 (Lao Holdings v. Laos, 2015), para. 16; Millicom v. Senegal (footnote 113), para. 42; PNGSDP v. Papua New Guinea (footnote 38), para. 120; Stern (footnote 31), 628–629, 634.
172 See, Occidental Petroleum v. Ecuador (footnote 34), para. 61. See also, Quiborax v. Bolivia (footnote 86), paras 114–115.
173 Occidental Petroleum v. Ecuador (footnote 34), paras 63–64, citing Pey Casado v. Chile (footnote 26), para. 46. See also, BP Exploration Company v. Libya) (footnote 101), para. 200.
174 Paushok v. Mongolia (footnote 48), para. 55. See also, Garcia Armas (footnote 148), para. 202; Pugachev v. Russia (footnote 125), para. 310.
175 See also, Born 2014 (footnote 9), 2479.
176 See, e.g., Occidental Petroleum v. Ecuador (footnote 34), para. 61. Interestingly, the preparatory works of the ICSID Convention indicate that the suggestion to include a reference to 'urgency' in the text of the ICSID Convention was unavailing. See Schreuer (footnote 23), Article 47, 775 para. 63 citing SID/LC/SR/16 (30 December 1964), Summary Proceedings of the Legal Committee Meeting, 4 in II(2) History of the ICSID Convention, 815. Indeed, the term 'urgency' is not explicitly mentioned in the above-cited arbitration rules. See Section II.
177 See, e.g., Petrochilos (footnote 58), 882; Yesilirmak (footnote 5), 178.
178 Havedal/Ipp (footnote 72), 3; ICC Commission, Emergency Arbitrator Proceedings, Report of the ICC Commission on Arbitration and ADR Task Force on Emergency Arbitrator Proceedings (2019), 5.
179 See, e.g., Biwater Gauff v. Tanzania (footnote 86), para. 76; Quiborax v. Bolivia (footnote 86), para. 15; PNGSDP v. Papua New Guinea (footnote 38), para. 116.
180 Sarooshi (footnote 37), 366. See also, Mouawad/Silbert (footnote 2), 388–389.
181 See, e.g., Sarooshi (footnote 37), 366; Petrochilos (footnote 58), 882.
182 Quiborax v. Bolivia (footnote 86), para. 153.
183 City Oriente v. Ecuador, 2007 (footnote 31), para. 63; Brower/Goodman (footnote 33), para. 461.
184 See, e.g., Paushok v. Mongolia, TRO (footnote 57), para. 16; Boyko v. Ukraine (footnote 56), para. 2.4; Pezold v. Zimbabwe (footnote 31), paras 7–8.
185 See, e.g., Pierre A. Karrer, 'Interim Measures Issued by Arbitral Tribunals and the Courts: Less Theory, Please', A.J Van den Berg (ed.), International Arbitration and National Courts: The Never Ending Story, 10 ICCA Congress Series (ICCA & Kluwer Law International, 2001) 97–110 (Karrer), 104; ICC Commission, Emergency Arbitrator Proceedings, Report of the ICC Commission on Arbitration and ADR Task Force on Emergency Arbitrator Proceedings (2019), 25, para. 157. See also, Lutrell (footnote 31), 406.
186 See, Article 47 of the ICSID Convention and Arbitration Rule 39(1) (footnotes 23 and 24). See also, Article 41(1) of the ICJ Statute, which provides: '1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party'. At the same time, the preparatory works to the ICSID Convention suggest that provisional measures were understood to require 'compelling reasons' or have to be 'absolutely necessary'. See, Settlement of Investment Disputes, Consultative Meeting of Legal Experts, Summary Record of Proceedings, Z10 (30 April 1964) Fifth Session, 18 December 1963, 32 in II(1) History of the ICSID Convention, 270 (referring to the need for provisional measures to be justified by 'compelling reasons'). See also, Settlement of Investment Disputes, Consultative Meeting of Legal Experts, Summary Record of Proceedings, Z10 (20 July 1964), Fourth Session, 30 April 1964, 64 in II(1) History of the ICSID Convention, 523 (quoting a delegate who noted that 'thought that provisional measures ought not to be prescribed unless absolutely necessary in the circumstances, and that if pecuniary compensation would be adequate in lieu of some preliminary measure, then no preliminary measure ought to be prescribed.'), referenced in Schreuer (footnote 23), Article 47, 775 para. 63.
187 Article 26(1) of the 1976 UNCITRAL Rules. See, footnote 45.
188 See, Article 28(1) of the ICC Rules (footnote 65) and Article 37(1) of the SCC Rules (footnote 71).
189 See, e.g., Caron 1986 (footnote 57), 494; Petrochilos (footnote 58), 882; Born 2014 (footnote 9), 2442 et seq. See also, 2006 UNCITRAL Model Law, Article 17.
190 See, Goldberg/Kryvoi/Philippov (footnote 2), 18–19.
191 See, e.g., Nuclear Tests (Australia v. France), Interim Protection, Order, 22 June 1973, I.C.J. Rep. (1973), 99, para. 20; United States Diplomatic and Consular Staff in Tehran, Provisional Measures (United States of America v. Iran), Order of 15 December 1979, I.C.J. Rep. (1979), 19, para. 36; Passage through the Great Belt (Finland v. Denmark), Order – Request for the Indication of Provisional Measures, 29 July 1991, I.C.J. Rep. (1991), 12, para. 16; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, I.C.J. Rep. (1993), 19, para. 34; Vienna Convention on Consular Relations (Paraguay v. United States of America), Order – Request for the Indication of Provisional Measures, 9 April 1998, I.C.J. Rep. (1998), 248 para. 36.
192 Occidental Petroleum v. Ecuador (footnote 34), para. 92. Interestingly, the tribunal also introduced a balancing test, holding that 'provisional measures may not be awarded for the protection of the rights of one party where such provisional measures would cause irreparable harm to the rights of the other party, in this case, the rights of a sovereign State'. ibid., para. 93.
A previous tribunal tasked to adjudicate a request for provisional measures under Article 1134 NAFTA, rejected a request for provisional measures on the grounds that the requesting party had failed to prove that 'its rights have suffered prejudice, let alone serious or irreversible damage' after having announced that the requested measures must be 'urgently required in order to protect [the applicant's] rights from an injury that cannot be made good by the subsequent payment of damages'. See, Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Decision on a Request by the Respondent for an Order Prohibiting the Claimant from Revealing Information, 27 October 1997, para. 8.
193 Plama v. Bulgaria (footnote 88), paras 46–47.
194 See, e.g., Quiborax v. Bolivia (footnote 86), paras 156–157; Balkan Energy (Ghana) Limited v. Republic of Ghana, PCA Case No. 2010-07, Interim Award, 22 December 2010, para. 188; Pugachev v. Russia (footnote 125), para. 240. See also, Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures), 1 July 2003, para. 8; Phoenix (footnote 97), para. 33.
195 Hydro v. Albania (footnote 122), para. 3.34; Quiborax v. Bolivia (footnote 86), paras 156–157; Nova Group v. Romania (footnote 88), para. 240.
196 These cases are also discussed in Section IV.i.
197 City Oriente v. Ecuador, 2008 (footnote 99), paras 86–87
198 City Oriente v. Ecuador, 2008 (footnote 99), para. 70. See also, Perenco v. Ecuador (footnote 31), para. 83; Burimi SRL and Eagle Games SHA v. Republic of Albania, ICSID Case No. ARB/11/18, Procedural Order No. 2 (Provisional Measures Concerning Security for Costs), 3 May 2012, para. 35.
199 City Oriente v. Ecuador, 2008 (footnote 99), para. 72, referring to Article 17 A(1)(c) of the 2006 UNCITRAL Model Law and Occidental Petroleum v. Ecuador, para. 93, in support.
200 City Oriente v. Ecuador, 2008 (footnote 93), para. 73.
201 Paushok v. Mongolia (footnote 48), para. 68.
202 Paushok v. Mongolia (footnote 48), para. 68. See also, id., paras 67–69. The tribunal based its finding on three sources. First, it cited a decision by the Iran-U.S. Claims Tribunal, Behring International v. Iran (footnote 109), which considered that international law, including orders by the ICJ, supported a less stringent reading of the 'irreparable prejudice' test ('A definition of “irreparable prejudice” is elusive; however, the concept of irreparable prejudice in international law arguably is broader than the Anglo-American law concept of irreparable injury. While the latter formulation requires a showing that the injury complained of is not remediable by an award of damages (i.e., where there is no certain pecuniary standard for the measure of damages, 43 C.J.S. Injunctions para. 23), the former does not necessarily so require.' Id., para. 128, citing Anglo-Iranian Oil Co. Case (UK v. Iran), Interim Protection Order of 5 July 1951 I.C.J. Rep. (1951), 89, 94 and Fisheries Jurisdiction Case (UK v. Iceland), Interim Protection Order of 17 August 1972, I.C.J. Rep. (1972), 12, 13. Second, the Paushok tribunal relied on a commentary on Article 26 of the 1976 UNCITRAL Rules to the effect that the necessity requirement is 'satisfied if the delay in the adjudication of the main claim caused by the arbitral proceedings would lead to a “substantial” (but not necessarily “irreparable” as known in common law doctrine) prejudice for the requesting party.' (Paushok v. Mongolia, para. 68). Last, the Paushok tribunal noted that Article 17A of the 2006 UNCITRAL Model Law 'does not require the requesting party to demonstrate irreparable harm but merely that “(h)arm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted”.' (Paushok v. Mongolia, para. 69).
203 Paushok v. Mongolia (footnote 48), para. 77.
204 id., Operative part.
205 See, e.g., Burlington v. Ecuador (footnote 99), paras 78–82, 87. See also, CEMEX v. Venezuela (footnote 93), paras 47 and 55, which, after finding that the ICJ had in the past accepted to recommend provisional measures although the alleged injury could have been repaired by monetary compensation, noted that 'ICSID Tribunals, when considering government actions which may well prove to have infringed a right and caused harm, make a distinction between: (a) situations where the alleged prejudice can be readily compensated by awarding damages; (b) and those where there is a serious risk of destruction of a going concern that constitutes the investment. In the first category of cases, provisional measures were denied because of the absence of an “irreparable harm”. In the second category of cases they were granted, the tribunals using other standards — although they could have based their decision on the fact that, the destruction of the ongoing concern that constituted the investment, would have created an “irreparable harm”.'
206 PNGSDP v. Papua New Guinea (footnote 38), para. 109. See also, Kompozit v. Moldova, SCC Emergency Award (footnote 104), paras 88–89; TSIKInvest v. Moldova, SCC Emergency Award (footnote 154), para. 64.
207 PNGSDP v. Papua New Guinea (footnote 38), para. 111. See also, Nova Group v. Romania (footnote 88), para. 240.
208 See, Railroad Development Corporation (RDC) v. Republic of Guatemala, ICSID Case No. ARB/07/23, Decision on Provisional Measures, 15 October 2008, para. 34 ('Since no qualifications to the power of an ICSID tribunal to recommend provisional measures found their way in the text of the ICSID Convention, the standard to be applied is one of reasonableness, after consideration of all the circumstances of the request and after taking into account the rights to be protected and their susceptibility to irreversible damage should the tribunal fail to issue a recommendation.').
209 Biwater Gauff v. Tanzania (footnote 86), para. 86.
210 See also, Orrego Vicuña (footnote 34), 949; Caron 1986 (footnote 57), 493–497.
211 Article 26(3)(a) of the 2010 UNCITRAL Rules reads in full: 'The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that: (a) Harm not adequately reparable by an award of damages is likely to result if the measure is not ordered, and such harm substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the measure is granted[.]' Also note that the sub-category of rights listed as Article 26(2)(d) (i.e., the preservation of documents, is not included among the rights to which the requirements for provisional measures listed in Article 26(3) apply).
212 See, e.g., Occidental Petroleum v. Ecuador (footnote 34), para. 93; City Oriente v. Ecuador, 2008 (footnote 99), para. 73; Paushok v. Mongolia (footnote 48), para. 77; Burlington v. Ecuador (footnote 99), paras 78–82, 87; PNGSDP v. Papua New Guinea (footnote 38), para. 109.
213 Burlington v. Ecuador (footnote 99), para. 87; Paushok v. Mongolia (footnote 48), Operative part.
214 Paushok v. Mongolia (footnote 48), Operative part.
215 Nova Group v. Romania (footnote 88), Operative part.
216 Caratube International Oil Company LLP & Mr. Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No. ARB/13/13, Decision on the Claimants' Request for Provisional Measures, 4 December 2014, para. 121. See also, Stern (footnote 31), 631.
217 Born 2015 (footnote 48), para. 19. See also, PNGSDP v. Papua New Guinea (footnote 38), para. 113.