The Investment Treaty Arbitration Review: Provisional Measures

i Introduction

Provisional measures can serve as a crucial tool in protecting the rights of a party during an investment treaty dispute. The number of requests for provisional measures continues to increase, as do treaty-based claims by investors against states in general.2 Provisional measures are not requested solely by claimant-investors. Respondent-states, too, are seeking 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 most investment disputes are factually complex and involve manifold types of state conduct.4

This chapter discusses provisional measures in investment treaty arbitration. Following a proposed definition (Section II) and an examination of tribunals' powers to order provisional measures (Section III), we 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).

ii Definition

Provisional measures5 seek to preserve the rights of litigants temporarily 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 settlement of the dispute. They seek to protect the adjudicator's ability to determine the merits of a case, not to prejudge them. Provisional relief can be declaratory or injunctive in nature. It is thus a powerful mechanism 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 settlement 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 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 Statute of the International Court of Justice.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 ICSID Arbitration Rules11 are specific to investor-state arbitration. All 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 Arbitration Rules of the International Chamber of Commerce (ICC) ,14 the Stockholm Chamber of Commerce (SCC)15 and the London Court of International Arbitration (LCIA)16 are also referenced, albeit less frequently.17

iii The power to grant provisional measures in investment treaty arbitration

The power to order provisional measures is 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 (in practice, 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 in general or the conditions for issuing provisional measures, in particular.19 Parties and tribunals must therefore turn to the applicable arbitration rules. Article 1134 of the North American Free Trade Agreement (NAFTA)20 sets forth one notable exception. This provision precluded investment tribunals from 'order[ing] attachment or enjoin[ing] the application of the measure' impugned in the main proceedings.21 This language significantly limited the scope of arbitral tribunals' powers.22

The section that follows examines 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 that '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' once the tribunal has been constituted.

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 It recognises that provisional relief is intrinsically urgent.26

Rule 39(3) provides that ICSID tribunals may recommend provisional measures at their own initiative and may recommend measures other than those specified in a party request. This rule grants tribunals additional 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 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 such a resort. 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

The practice of ICSID tribunals suggests that the difference between the terms 'recommend' and 'order' has been understood to be a primarily semantic one, and the authority of ICSID tribunals to order binding provisional measures is widely acknowledged.34

Neither the ICSID Convention nor the ICSID Arbitration Rules specify the types of rights that may benefit from provisional protection, or the requirements that 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 – to accommodate relief that may be required in a variety of (sometimes unforeseeable) circumstances.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 '[t]he 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 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 date, the 1976 version of the Rules has been applied far more frequently in investment treaty arbitrations than the 2010 version.42 This is because, absent an agreement by the parties to apply a different version, 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 tribunals' 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 interim relief must be requested by one of the parties to the dispute. UNCITRAL tribunals are not entitled to order interim relief on their own initiative.47 That said, once a party request has been made, an UNCITRAL 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

Article 26(2) further confirms the broad scope of arbitral authority to grant provisional measures. This provision (in its second sentence) entitles arbitral tribunals to require security for the costs of a provisional measure ordered. Such security is intended to preserve a basis to compensate a defendant in the event an interim measure subsequently proves 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 Some authors have held the view that the form of an interim award could facilitate the enforcement of interim measures 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 this being construed as a waiver of the agreement to arbitrate. 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 on the use of coercive jurisdiction, which arbitral tribunals lack.55

Although 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 receipt of 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). The 2010 UNCITRAL 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 a 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) to (d)) now provides a non-exhaustive list of generically phrased categories of measures that arbitral tribunals may order. 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. The manner in which these requirements are interpreted and applied may vary quite considerably in practice.61

Article 26(4) provides 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 damage 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 allows for interim measures to be addressed to domestic courts while the arbitration is pending.

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 it '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 the late 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 Rules of the ICC, the SCC and the LCIA, all of which provide for the possibility of interim relief. In addition, the Singapore International Arbitration Centre (SIAC) and the Vienna International Arbitration Centre (VIAC) have issued 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)). Although 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 2012 ICC Rules,69 the ICC's emergency arbitrator rules have been understood to exclude treaty-based arbitration from their scope.70 Article 29(6)(c) of the 2021 ICC Rules explicitly codifies this approach.

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 They do not explicitly contemplate preliminary ex parte orders either. However, commentaries note that such orders have been issued in the practice of SCC tribunals with the aim 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 on the parties75 but may be modified or revoked.76 They do not bind the tribunal constituted in the main proceedings.77 Unlike the ICC Rules, however, the SCC Emergency Arbitrator Rules can be applied in treaty-based disputes.78

The LCIA Rules confer broad powers on arbitral tribunals, allowing them to 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 These Rules have been used in treaty-based cases, although few 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

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 guarantee the integrity of the arbitral process. 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

Current 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, such as protection of the status quo or procedural integrity. However, ICSID tribunals have held that the rights for which protection is sought must be delineated in some manner. 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 overly narrow, the rights to be preserved must at least 'relat[e] to the dispute'. This means that such rights '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 are insufficiently related. Where a request for interim relief concerns a right that is the subject of the main dispute, the existence of a relationship between the two is more readily established. Similarly, procedural conduct that threatens the integrity of the arbitral proceedings could risk impeding the requesting party's ability to have its claims fairly considered. This conduct would necessarily relate to the dispute.

By contrast, difficulties may emerge where requests for interim relief seek to protect against host state conduct that was not previously 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 is 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 necessary93 and proportionate.94

i Preservation of contractual and property rights at issue in the main dispute

In the context of commercial arbitration, provisional measures requests often seek temporarily to preserve rights that are contested on their merits. For instance, a party could request provisional measures that coincide with the final relief sought, such as the right to the temporary performance of a (contested) contractual obligation or the temporary cessation of allegedly illegal conduct, until the dispute is finally resolved on its merits.95

In the context of treaty-based arbitration, the issuance of provisional measures that coincide with the final relief sought appears to be more controversial. As noted in Section III, certain investment treaties explicitly limit arbitral powers to issue interim measures which impede the application of state measures that are the subject of the main dispute.96

This said, investment tribunals have affirmed the principle that a provisional measures order could order for '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 recommend 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 probably 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 rights relating to the investment dispute

Investment tribunals have also granted interim measures to protect substantive rights relating to (rather than the subject of) the main dispute. 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.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 forums113 or bankruptcy proceedings114 when the proceedings concerned 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 ICSID tribunals have agreed to suspend parallel local proceedings that involved different legal persons from those who were parties to the ICSID arbitration.118 At the same time, certain ICSID tribunals have declined to enjoin parallel local court actions in which the parties and the legal basis of the action were not the same.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 also serve to protect a broad spectrum of procedural rights. At 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 the 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 during the pendency of the arbitration. 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 corporate officers or, during the determination of a provisional measures request, made a recommendation to the respondent-state not to proceed with the interrogation of an ICSID claimant.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 agreed 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 agreed 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 information142 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 that applications include 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 provisional measures in investment treaty arbitration has not generated much discussion.153 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. ICSID tribunals constituted based on contracts have equally relied on arbitral practice and rules of international law. In addition, contract-based ICSID tribunals have considered the governing law of the contract as 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 precluded SCC emergency arbitrators from exercising jurisdiction ratione voluntatis. According to publicly available rulings, SCC emergency arbitrators have answered this question in the negative, accepting – among other things – the requesting parties' arguments regarding the alleged futility of such negotiation requirements.162

Determinations of prima facie jurisdiction are only provisional in nature. 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 effects of which can be potentially intrusive, should not be granted when a claim is obviously devoid of merit.166 Indeed, rather than being protective, such measures would risk procuring unjustified advantages to the requesting party.167 Consequently, international tribunals appear to have agreed 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 have focused their analysis on the nature of the rights to be preserved172 and whether they constitute 'theoretically existing' rights (i.e., 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 the relief sought is 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 main 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 that it requires immediate action.184

iv Necessity of avoiding 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, 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 at the centre of the investor-claimant's investment. Having found that the injury alleged in the request for provisional measures (i.e., the potential bankruptcy of the 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 alleged injury be irremediable by an award of damages'.201 That tribunal 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 was likely to 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 refrain from moving 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 PNGSDP 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 enquiry 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 or proportionality

In assessing the urgency and necessity of a provisional measure, arbitral tribunals frequently analyse the proportionality between the rights the measure seeks to protect on the one hand, and the effects of that 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, the 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 that the requested measure inflicts on the requested party.212

Moreover, certain tribunals have ordered the requesting party to provide some sort of security. For instance, some tribunals that provisionally ordered states to continue performing a contract213 or to refrain from enforcing tax legislation214 have ordered the claimant-investor to provide security payments into escrow accounts to secure 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 provisional measures ruling.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 interference that 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

vi Conclusion

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. 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. Provisional measures are potentially intrusive instruments. Their use requires a strong demonstration of need under the circumstances of each case. These circumstances are often highly diverse, as are the types of rights at issue. The presence of sovereign states whose core prerogatives may be at issue has led some tribunals to apply a more stringent balancing analysis. 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.


Footnotes

1 Raëd Fathallah and Marina Weiss are partners 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), 1; Caline Mouawad and Elizabeth Silbert, 'A Guide to Interim Measures in Investor-State Arbitration', 29(3) Arbitration International (2013), 381.

3 See Goldberg, Kryvoi and Philippov, op. cit. note 2, above, 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 bilateral or multilateral treaties for the protection of investment or, as the case may be, the ICSID Convention or ICSID Additional Facility (as defined at note 11, below). 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 chapter, references to 'treaty-based tribunals' or 'investment tribunals' are used interchangeably.

5 Although the terms 'interim measures of protection', 'provisional orders', 'interim awards', 'conservatory measures' or 'preliminary injunctive measures' (UNCITRAL, Working Group on Arbitration, 32nd 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. See, also, Emmanuel Gaillard and John Savage, Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International, 1999), 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, 10; Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer Law International, 2005), 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), 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, as amended on 25 September 2020. By contrast, the World Trade Organization (WTO) dispute settlement system does not provide for the possibility of interim relief, while, however, demanding that parties accelerate consultations in cases of urgency, including those that concern perishable goods. See Annex 2 to the WTO Agreement – Understanding on rules and procedures governing the settlement of disputes, Article 4.9.

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, 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 date, legislation based on the UNCITRAL Model Law has been adopted in 118 jurisdictions. See https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration/status (last accessed 12 Apr. 2022).

9 This was not the case until quite 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 ed., Kluwer Law International, 2014), 2444 and 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 (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. The ICSID Convention, which counts 164 Member States (including 156 contracting states and eight signatory states, which have signed, but have not deposited ratification of the ICSID Convention) as of 14 March 2022, provides for an autonomous dispute settlement system that is 'seatless' and, thus, is subject neither to any domestic arbitration law nor to the supervision of domestic courts. At the time of writing, the Regulations and Rules for ICSID Convention Proceedings (including ICSID Arbitration Rules), and the Regulations and Rules for ICSID Additional Facility Proceedings, are undergoing revision. In June 2021, ICSID released its latest working paper with proposed amendments to its procedural rules for resolving international investment disputes. 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 and Alexis Nohen, 'Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey', OECD Working Papers on International Investment, 2012/02 (OECD Publishing, 2012), 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 III(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 International Chamber of Commerce (ICC) Rules of Arbitration (ICC Rules). The revised version of the ICC Rules entered into force on 1 January 2021 (2021 ICC Rules).

15 Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce of 2010, as revised in 2017 (SCC Rules).

16 London Court of International Arbitration, Arbitration Rules (LCIA Rules). The revised version of the LCIA Rules entered into force on 1 October 2020.

17 See Pohl, Mashigo and Nohen, op. cit. note 12, above, 20; Andrea Carlevaris and Joel Dahlquist Cullborg, 'Investment Treaty Arbitration at ICC', 1 ICC Dispute Resolution Bulletin (2017), 25; James Hope, 'Investor-State Arbitration Before the SCC', International Comparative Legal Guides: Investor-State Arbitration 2020 (2nd ed., Global Legal Group, 2019), 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 Feb. 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 Jun. 1985), para. 126. See, also, Collins, op. cit. note 7, above, 215.

19 See, e.g., Pohl, Mashigo and Nohen, op. cit. note 12, above, 31; Goldberg, Kryvoi and Philippov, op. cit. note 2, above, 4.

20 The North American Free Trade Agreement of 17 December 1992 (NAFTA). NAFTA was replaced by the US–Mexico–Canada Agreement (USMCA) as of 1 July 2020. Unlike NAFTA, investor-state arbitration is limited to the United States and Mexico. 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 N Kinnear, Andrea Kay Bjorklund and 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.' In December 2018, the United States, Mexico and Canada entered into a new multilateral investment agreement – the United States-Mexico-Canada Agreement (USMCA), which replaced NAFTA as of 1 July 2020. The USMCA does not affect pending NAFTA arbitration proceedings. For more detailed comments on the USMCA, see Daniel Garcia-Barragan, Alexandra Mitretodis and Andrew Tuck, 'The New NAFTA: Scaled-Back Arbitration in the USMCA', Journal of International Arbitration 36, No. 6 (2019); Graham Coop and Gunjan Sharma, Chapter IV: 'Investment Arbitration, Procedural Innovations to ISDS in Recent Trade and Investment Treaties: A Comparison of the USMCA and CETA' in Christian Klausegger, Peter Klein, et al., Austrian Yearbook on International Arbitration (2019), 467–92; Kiran N Gore and Charles H Camp, Chapter 6: 'The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform' in Alan M Anderson and Ben Beaumont, The Investor-State Dispute Settlement System: Reform, Replace or Status Quo? (Kluwer Law International, 2020), 119–36.

22 Certain subsequent investment treaties concluded by the contracting states to NAFTA stipulate nearly identical restrictions. See, e.g., Canada–Ukraine BIT (1994), Article XIII(8); Mexico–Bolivia FTA (1994), Article 15-34; United States–Georgia BIT (1994), Article IX(3)(b); Dominican Republic–Central America FTA, Article 10.20(8). See, also, US Model BIT (2012), Article 28(8); EU–Canada Comprehensive Economic and Trade Agreement (CETA), Article 8.34.

23 ICSID Convention, Article 47 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 ed., 2009) (Schreuer), Article 47, 759, para. 1.

24 ICSID Arbitration Rules, Rule 39 provides:

  1. (1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures.
  2. (2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1).
  3. (3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.
  4. (4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.
  5. (5) If a party makes a request pursuant to paragraph (1) before the constitution of the Tribunal, the Secretary-General shall, on the application of either party, fix time limits for the parties to present observations on the request, so that the request and observations may be considered by the Tribunal promptly upon its constitution.
  6. (6) Nothing in this Rule shall prevent the parties, provided that they have so stipulated in the agreement recording their consent, from requesting any judicial or other authority to order provisional measures, prior to or after the institution of the proceedings, for the preservation of their respective rights and interests.

See, also, ICSID Additional Facility Arbitration Rules, Article 46. Contrary to arbitration under the ICSID Convention and the ICSID Arbitration Rules, proceedings under the ICSID Additional Facility Rules are subject to the mandatory rules of the law of the seat of the arbitration. See ICSID Additional Facility Arbitration Rules, Rule 1.

25 Schreuer, op. cit. note 23, above, Article 47, 771, para. 46.

26 Schreuer, op. cit. note 23, above, 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 Sep. 2001) (Pey Casado v. Chile), para. 5.

27 Schreuer, op. cit. note 23, above, 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), 160.

28 Schreuer, op. cit. note 23, above, Article 47, 774–75, 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.'). ibid., 775, para. 58.

29 Notes to the ICSID Arbitration Rules, Rule 39, Note E, 1 ICSID Reports (1993), 99–100.

30 See Born, op. cit. note 9, above, 2508–09; Anthony Sinclair and Odysseas Repousis, 'An Overview of Provisional Measures in ICSID Proceedings', 32(2) ICSID Review (2017) 431–46, 437. See, also, Schreuer, op. cit. note 23, above, Article 47, 762–63, 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 Jun. 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), paras. 28, 64–67 (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 Nov. 2007) (City Oriente v. Ecuador, 2007), para. 13; Sam Lutrell, 'ICSID provisional measures “in the round”', 31(3) Arbitration International (2015), 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), 628.

32 See, e.g., Malintoppi, op. cit. note 27, above, 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), 196.

33 Charles N Brower and Ronald EM Goodman, 'Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings', 6(2) ICSID Review – Foreign Investment Law Journal (1991), 436. See, also, Schreuer, op. cit. note 23, above, Article 47, 761, paras. 8–10. Brower and Goodman further note (at 436), with reference to Article 26 of the ICSID Convention: 'Several 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.'

34 See, e.g., Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Procedural Order No. 2 (28 Oct. 1999) (Maffezini v. Spain), para. 9; Pey Casado v. Chile, op. cit. note 26, above, paras. 17–26; Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures) (1 Jul. 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 Aug. 2007) (Occidental Petroleum v. Ecuador), para. 58. See, also, Schreuer, op. cit. note 23, above, Article 47, 764–65, paras. 15–22; Francisco Orrego Vicuña, 'The Evolving Nature of Provisional Measures', Liber Amicorum Bernardo Cremades (MA Fernandez-Ballesteros, D Arias (eds), La Ley, 2010), 953.

35 The language of Article 47 of the ICSID Convention and Rule 39 of the ICSID Arbitration Rules merely refers to the respective rights of the parties.

36 See Schreuer, op. cit. note 23, above, Article 47, 778, para. 72.

37 See Pey Casado v. Chile, op. cit. note 26, above, 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 Mar. 2007) (Saipem v. Bangladesh), para. 175. See, also, Dan Sarooshi, 'Provisional Measures and Investment Treaty Arbitration', 29(3) Arbitration International (2013), 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 Jan. 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 Nov. 2017), para. 99.

39 Maffezini v. Spain, op. cit. note 34, above, para. 10. See also, e.g., Saipem v. Bangladesh, op. cit. note 37, above, 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, op. cit. note 23, above, Article 47, 759, para. 4.

41 See note 13, above.

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 Dec. 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), 3.

  1. 45 1976 UNCITRAL Rules, Article 26 reads in full:
  2. 1. 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.
  3. 2. 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.
  4. 3. 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 and Lee Caplan, The UNCITRAL Arbitration Rules: A Commentary (Oxford University Press, 2nd edn, 2013), 516–17.

48 Gary B Born, International Arbitration: Law and Practice (Kluwer Law International, 2nd ed., 2015), 212 (Born 2015). See also, Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures (2 Sep. 2008) (Paushok v. Mongolia), para. 36.

49 Caron and Caplan, op. cit. note 47, above, 517–18; Sophie Nappert, Commentary on the UNCITRAL Arbitration Rules 2010: A Practitioner's Guide (Juris, 2012), 100. See, also, Born, op. cit. note 9, above, 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 and Kluwer Law International, 2009), 541–42 (commenting on the identical language under the previous version of the UNCITRAL Model Law).

50 See Yesilirmak, op. cit. note 5, above, 188–89, paras. 5–46.

51 Caron and Caplan, op. cit. note 47, above, 527; Jan Paulsson and Georgios Petrochilos, UNCITRAL Arbitration (Kluwer Law International, 2017), 221.

52 Caron and Caplan, op. cit. note 47, above, 524–25; Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador (II), PCA Case No. 2009-23, First Interim Award on Interim Measures (25 Jan. 2012) (Chevron v. Ecuador), Operative part, para. 1.

53 See, also, Born, op. cit. note 9, above, 2506–07 (commenting on the identical language under the previous version of the UNCITRAL Model Law.

54 Gaillard and Savage, op. cit. note 5, above, 711–18. See, also, Pieter Sanders, 'Commentary on UNCITRAL Arbitration Rules' (P. Sanders ed.) II Yearbook Commercial Arbitration (ICCA and Kluwer Law International, 1977), 196–197; Thomas H Webster, Handbook of UNCITRAL Arbitration (2nd ed., Sweet & Maxwell, 2015), 352, 26.19–26.21.

55 For further discussion, see, e.g., Caron and Caplan, op. cit. note 47, above, 529–30.

56 Igor Boyko v. Ukraine, PCA Case No. 2017-32, Procedural Order No. 3 on Claimant's Application for Emergency Relief (3 Dec. 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 (5 May 1983) (Rockwell v. Iran), para. 5; Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Temporary Restraining Order (23 Mar. 2008), quoted in Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v. The Government of Mongolia, UNCITRAL, Order on Interim Measures (2 Sep. 2008) (Paushok v. Mongolia, TRO), para. 16; Boyko v. Ukraine, op. cit. note 56, above, 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), 482–83 (Caron 1986); Caron and Caplan, op. cit. note 47, 530–31; Stern, op. cit. note 31, above, 628. For further discussion regarding arbitral ex parte interim relief, see Born, op. cit. note 9, above, 2509–11; Jeff Waincymer, Procedure and Evidence in International Arbitration (Kluwer Law International, 2012), 628; Graham, op. cit. note 49, above, 544–46 (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), 85–95.

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), 878–90; James Castello, 'UNCITRAL Arbitration Rules, Section III, Article 26 [Interim measures]', Concise International Arbitration (L Mistelis (ed.), 2nd ed,, Kluwer Law International, 2015), 231–37; Caron and Caplan, op. cit. note 47, above, 532; Nappert, op. cit. note 49, above, 95–102; Peter Binder, Analytical Commentary to the UNCITRAL Arbitration Rules (Sweet & Maxwell, 2013), 242–58; Webster, op. cit. note 54, above, 348–77.

59 2010 UNCITRAL Rules, Article 26 provides:

  1. 1. The arbitral tribunal may, at the request of a party, grant interim measures.
  2. 2. 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:
    1. (a) Maintain or restore the status quo pending determination of the dispute;
    2. (b) 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;
    3. (c) Provide a means of preserving assets out of which a subsequent award may be satisfied; or
    4. (d) Preserve evidence that may be relevant and material to the resolution of the dispute.
  3. 3. The party requesting an interim measure under paragraphs 2 (a) to (c) shall satisfy the arbitral tribunal that:
    1. (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; and
    2. (b) 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.
  4. 4. 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.
  5. 5. 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.
  6. 6. The arbitral tribunal may require the party requesting an interim measure to provide appropriate security in connection with the measure.
  7. 7. 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.
  8. 8. 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.
  9. 9. 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 and Caplan, op. cit. note 47, above, 517.

61 See Section V.

62 See, e.g., Caron and Caplan, op. cit. note 47, above, 525. As regards the possibility of obtaining ex parte relief under the 2010 UNCITRAL Rules, commentaries are of the view that such relief may remain available in limited circumstances. See Petrochilos, op. cit. note 58, above, 887–88; Paulsson and Petrochilos, op. cit. note 51, above, 227–28.

63 Caron and Caplan, op. cit. note 47, above, 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 (1 Jan. 2017), Introduction, (i). These Rules also provide for the possibility to seek interim and emergency interim relief. See, ibid., Rule 27. In 2021, the Vienna International Arbitration Centre (VIAC) also adopted a specific set of rules to govern investment arbitration and investment mediation (the VIAC Rules of Investment Arbitration and Mediation 2021).

65 Article 28 of the ICC Rules provides:

  1. 1) 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.
  2. 2) 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 and Francesca Mazza, The Secretariat's Guide to ICC Arbitration 75 (ICC Publications, 2012), para. 3-1041.

67 See Fry, Greenberg and Mazza, op. cit. note 66, above, 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 and Dahlquist, op. cit. note 17, above, 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 and E A Schwartz (eds), ICC Publications, 2005), 307.

71 Article 37 of the SCC Rules provides:

  1. (1) The Arbitral Tribunal may, at the request of a party, grant any interim measures it deems appropriate.
  2. (2) The Arbitral Tribunal may order the party requesting an interim measure to provide appropriate security in connection with the measure.
  3. (3) An interim measure shall take the form of an order or an award.
  4. (4) 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.
  5. (5) 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 and Celeste E Salinas Quero, 'The Proceedings Before the Arbitral Tribunal', A Guide to the SCC Arbitration Rules (Kluwer Law International,2019, Chapter 5), 73–130.

72 Ragnwaldh, Andersson and Quero, op. cit. note 71, above, 119. Contra: Anja Havedal Ipp, SCC Practice Note, Emergency Arbitrator Decisions Rendered 2015–2016 (2017), 3.

73 SCC Rules, Appendix II (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, op. cit. note 72, above, 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 Hobér, et al. (eds) Between East and West: Essays in Honour of Ulf Franke (Juris, 2010), 68.

74 SCC Rules, Appendix II, Article 1(2); Havedal Ipp, op. cit. note 72, above, 2. The emergency arbitrator is appointed within 24 hours of receipt of an application for emergency relief, and in principle renders its ruling in the form of an emergency decision within five days of 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 ibid., Article 9(2).

77 ibid., Article 9(5). In any event, they cease to be binding if no arbitration is instituted within 30 days of the emergency decision being rendered, or if no tribunal is constituted within 90 days thereafter. ibid., Article 9(4), paras. (iii)–(iv).

78 See Goldberg, Kryvoi and Philippov, op. cit. note 2, above, 9; Havedal Ipp, op. cit. note 72, above, 4. To date, the SCC Emergency Arbitrator Rules have been invoked in at least eight instances since 2015.

79 LCIA Rules, Article 25(1). Article 25 reads in full:

  1. 25.1The 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:
    1. (i)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;
    2. (ii)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
    3. (iii)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.
  2. Suchterms 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.
  3. 25.2The 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.
    1. 25.3The 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:
      1. (i)before the formation of the Arbitral Tribunal; and
      2. (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.
  4. 25.4By 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 Jan. 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 note 24, above). 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 note 45, above). 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 notes 65 and 71, above). By contrast, Article 26(2) of the 2010 UNCITRAL Rules, which has only been rarely used in treaty-based arbitration, lists four broad, non-exhaustive categories of rights that may be protected provisionally (see note 59, above).

83 See Schreuer, op. cit. note 23, above, 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 Oct. 1963), COM/AF/WH/EU/AS/1, 29–30, para. 5 in II(1) History of the ICSID Convention, 216 ('unless 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), 36th 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, para. 14.

84 id. See, also, Schreuer, op. cit. note 23, above, 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. Now, 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, op. cit. note 7, above, 215. See, also, Paul D Friedland, 'Provisional Measures and ICSID Arbitration', 2 Arbitration International 335 (1986), 336.

85 Notes to the ICSID Arbitration Rules, Rule 39, Note A, 1 ICSID Reports (1993) 99–100; Schreuer, op. cit. note 23, above, Article 47, 793–96, paras. 135–51. See, also, for a discussion of these three aims in a general context, Bond, op. cit. note 5, above, 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 Feb. 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 Jun. 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 Mar. 2006) (Biwater Gauff v. Tanzania), para. 71; Stern, op. cit. note 31, above, 629–30. 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 Dec. 2019), para. 50.

87 In earlier years, ICSID tribunals endorsed a stricter approach, requiring that a request for provisional measures relate 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 Dec. 1983), para. 3; Maffezini v. Spain, op. cit. note 34, above, paras. 24–25. This restrictive approach has not been confirmed in the practice of ICSID tribunals. See Gabrielle Kaufmann-Kohler, Aurélia Antonietti and Michele Potestà, 'Interim Relief in Investment Treaty Arbitration', Arbitration Under International Investment Agreements, A Guide to the Key Issues (K Yannaca-Small (ed.), 2nd ed., Oxford University Press, 2018), 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 id. 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 Dec. 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, op. cit. note 88, above, para. 40.

91 Nova Group v. Romania, op. cit. note 88, above, para. 236.

92 id.

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 Mar. 2010) (CEMEX v. Venezuela), paras. 60–61.

94 Stern, op. cit. note 31, above, 631.

95 See, e.g., Born, op. cit. note 9, above, 2477–78.

96 See, e.g., NAFTA, Article 1134. 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), 112–13. See, also, Pope & Talbot v. Government of Canada, UNCITRAL, Ruling on Claimant's Motion for Interim Measures (1 Jan. 2000), para. 1.

97 Maffezini v. Spain, op. cit. note 34, above, para. 14. See, also, Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Decision on Provisional Measures (6 Apr. 2007) (Phoenix v. Czech Republic), para. 34.

98 Maffezini v. Spain, op. cit. note 34, above, para. 14.

99 See City Oriente v. 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, op. cit. note 86, above, para. 71; Perenco v. Ecuador, op. cit. note 31, above, para. 48. See, also, Holiday Inns S.A. and others v. Morocco, ICSID Case No. ARB/72/1, Decision on Provisional Measures (2 Jul. 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) 123–62 (Holiday Inns v. Morocco), 658 ('the Parties are under an obligation to abstain from all measures likely to prevent definitely the execution of their obligations').

100 Perenco v. Ecuador, op. cit. note 31, above, paras. 61–63.

101 Occidental Petroleum v. Ecuador, op. cit. note 34, above, para. 79. See, also, ibid., paras. 75–86; BP Exploration Company (Libya) Limited v. Government of the Libyan Arab Republic, Award (Merits) (10 Oct. 1973) (BP Exploration Company v. Libya), para. 200; Perenco v. Ecuador, op. cit. note 31, above, para. 48; Stern, op. cit. note 31, above, 637; Hela Schwarz GmbH v. People's Republic of China, ICSID Case No. ARB/17/19, Procedural Order No. 2 (10 Aug. 2018), 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 v. Czech Republic, op. cit. note 97, above, 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'.

103 See Paushok v. Mongolia, op. cit. note 48, above, Operative part, paras. 1, 4 (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 (14 Jan. 2015), Operative part, para. 1; 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 Sep. 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 Dec. 2013), para. 102 (referencing previous decisions regarding injunctions regarding the lifting of garnishment); Stern, op. cit. note 31, above, 631. See, also, Perenco v. Ecuador, op. cit. note 31, above, paras. 56–63.

104 See Kompozit LLC v. Republic of Moldova, SCC Case No. 2016/95, Emergency Award on Interim Measures (14 Jun. 2016) (Kompozit v. Moldova Emergency Award), para. 92. 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 Dec. 2012), para. 154 (regarding the refusal to grant a mining lease).

105 See PNGSDP v. Papua New Guinea, op. cit. note 38, above, 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 Feb. 2013), para. 187, reproduced in Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/13/1, Award (22 Aug. 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 Nov. 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 Aug. 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 Jul. 2011), paras. 23, 30; Chevron v. Ecuador, op. cit. note 52, above, 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 Jun. 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 Dec. 1999), paras. 13, 16. At the same time, the tribunal in this 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, ibid., 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 Apr. 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 Feb. 1985) (Behring International v. Iran), 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, ibid., para. 3.

110 Saipem v. Bangladesh, op. cit. note 37, above, 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 Mar. 2014) (Niko Resources v. Bapex and Petrobangla), para. 12(c); Paushok v. Mongolia, op. cit. note 48, above, 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 Dec. 1985), discussed in Maritime International Nominees Establishment (MINE) v. Republic of Guinea, ICSID Case No. ARB/84/4, Award (6 Jan. 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 Dec. 1984), reproduced in Atlantic Triton Company Limited v. People's Revolutionary Republic of Guinea, ICSID Case No. ARB/84/1, Award (21 Apr. 1986) (Atlantic Triton v. Guinea), para. 13 (denying request); Holiday Inns v. Morocco, op. cit. note 99, above, 658 (granting request only with respect to non-escalation of dispute); Friedland, op. cit. note 84, above, 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 Oct. 2002) (SGS v. Pakistan), para. 54; Zhinvali Development Ltd. v. Republic of Georgia, Decision on Provisional Measures (24 Jan. 2002), quoted in Zhinvali Development Ltd. v. Republic of Georgia, ICSID Case No. ARB/00/1, Award (24 Jan. 2003) (Zhinvali v. Georgia), para. 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 Dec. 2009) (Millicom v. Senegal), paras. 47, 52; Perenco v. Ecuador, op. cit. note 31, above, paras. 56–63, 79. See, also, E-Systems v. Iran, op. cit. note 18, above, para. 34 and Rockwell v. Iran, op. cit. note 57, above, paras. 5–6.

114 See Ceskoslovenska Obchodni Banka, a.s. v. The Slovak Republic, ICSID Case No. ARB/97/4, Procedural Order No. 4 (11 Jan. 1999) and Procedural Order No. 5 (1 Mar. 2000).

115 SGS v. Pakistan, op. cit. note 113, above, para. 44; Zhinvali v. Georgia, op. cit. note 113, above, para. 44; Millicom v. Senegal, op. cit. note 113, above, paras. 44–45; Perenco v. Ecuador, op. cit. note 31, above, paras. 56–63.

116 E-Systems v. Iran, op. cit. note 18, above, paras. 5–6 and Rockwell v. Iran, op. cit. note 57, above, para. 5.

117 Kaufmann-Kohler, Antonietti and Potestà, op. cit. note 87, above, 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 'applies only to civil proceedings having the same parties and same subject matter as the arbitral proceeding').

118 See, e.g., Zhinvali v. Georgia, op. cit. note 113, above; Millicom v. Senegal, op. cit. note 113, above. See, also, Pey Casado v. Chile, op. cit. note 26, above, paras. 40–41.

119 See, e.g., Plama v. Bulgaria, op. cit. note 88, above, para. 44.

120 See, e.g., Boyko v. Ukraine, op. cit. note 56, above.

121 Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures) (1 Jul. 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 Mar. 2016) (Hydro v. Albania), para. 3.23; Churchill Mining v. Indonesia, op. cit. note 89, above, paras. 85–87; Quiborax v. Bolivia, op. cit. note 86, above, paras. 128–31.

123 Quiborax v. Bolivia, op. cit. note 86, above, 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 Sep. 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 Jun. 2015) (Eurogas v. Slovakia), para. 77; Churchill Mining v. Indonesia, op. cit. note 89, above, 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 Feb. 2017) (Italba v. Uruguay), para. 116. Rand Investments Ltd., William Archibald Rand, Kathleen Elizabeth Rand, Allison Ruth Rand, Robert Harry Leander Rand and Sembi Investment Limited v. Republic of Serbia, ICSID Case No. ARB/18/8, Procedural Order No. 9 (New Evidence, Assistance and Provisional Measures) (12 Mar. 2021), para. 91.

124 See, e.g., Eurogas v. Slovakia, op. cit. note 123, above, para. 77; Italba v. Uruguay, op. cit. note 123, above, para. 116. Gerald International Limited v. Republic of Sierra Leone, ICSID Case No. ARB/19/31, Procedural Order No. 2 (Decision on the Claimant's Request for Provisional Measures) (28 Jul. 2020) (Gerald International v. Sierra Leone), paras. 151, 158.

125 Hydro v. Albania, op. cit. note 122, above, para. 3.12; 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 Apr. 2013), paras. 60–62. 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 Dec. 2019), para. 51. See, also, Sergei Viktorovich Pugachev v. The Russian Federation, Interim Award (7 Jul. 2017) (Pugachev v. Russia), para. 214; Gerald International v. Sierra Leone, op. cit. note 124, above, paras. 147–49.

126 Churchill Mining v. Indonesia, op. cit. note 89, above, para. 72. See, also, e.g., Italba v. Uruguay, op. cit. note 123, above, para. 116.

127 Hydro v. Albania, op. cit. note 122, above, para. 3.20; Boyko v. Ukraine, op. cit. note 56, above, para. 3.1.

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 Feb. 2011) (Convial Callao v. Peru), para. 124.

129 See, e.g., Lao Holdings v. Laos, 2014, op. cit. note 117, above, para. 75.

130 See City Oriente v. Ecuador, 2007, op. cit. note 31, above, paras. 61–66.

131 Quiborax v. Bolivia, op. cit. note 86, above, para. 124.

132 City Oriente v. Ecuador, 2007, op. cit. note 31, above, Operative part.

133 Quiborax v. Bolivia, op. cit. note 86, above, Decision; Lao Holdings v. Laos, 2014, op. cit. note 117, above, para. 30.

134 Convial Callao v. Peru, op. cit. note 128, above, para. 124; Georg Gavrilovic and Gavrilovic d.o.o. v. Republic of Croatia, ICSID Case No. ARB/12/39, Decision on the Claimants' Urgent Application for Provisional Measures (19 Mar. 2015) (Gavrilovic v. Croatia), para. 19.

135 Nova Group v. Romania, op. cit. note 88, above, para. 365; Pugachev v. Russia, op. cit. note 125, above, para. 430.

136 Mohammed Munshi v. Mongolia, SCC Case No. 2018/007, Award on Emergency Measures (5 Feb. 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 Jul. 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 Mar. 2011), quoted in Hassan Awdi, Enterprise Business Consultants, Inc. and Alfa El Corporation v. Romania, ICSID Case No. ARB/10/13, Award (2 Mar. 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 Dec. 2019), para. 73.

139 Manolium v. Belarus, op. cit. note 42, above, para. 176.

140 See, e.g., Pugachev v. Russia, op. cit. note 125, above, 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 Aug. 2018), para. 77.

141 Ipek Investment Limited v. Republic of Turkey, ICSID Case No. ARB/18/18, Procedural Order No. 13 on Confidentiality (13 Mar. 2020), para. 21.

142 Biwater Gauff v. Tanzania, op. cit. note 86, above, para. 98.

143 AGIP S.p.A. v. People's Republic of the Congo, ICSID Case No. ARB/77/1, Award (30 Nov. 1979), para. 42. See, also, Vacuum Salt Products Ltd. v. Republic of Ghana, ICSID Case No. ARB/92/1, Award (16 Feb. 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 note 59, above.

145 For further commentary on this issue, see, e.g., Pierre A Karrer and 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), 339–53; Lars A Markert, 'Security for Costs Applications in Investment Arbitrations Involving Insolvent Investors', 11(2) Contemporary Asia Arbitration Journal (2018), 217–49; Sam Luttrell, 'Observations on the Proposed New ICSID Regime for Security for Costs', 36(3) Journal of International Arbitration (2019), 385–400; Martina Polasek and Celeste E Salinas Quero, '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, Chapter 21), 387–417; Alexander Karl, '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, Chapter V), 563–92.

146 Maffezini v. Spain, op. cit. note 34, above, paras 15–25.

147 Pey Casado v. Chile, op. cit. note 26, paras 86–9. 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 Sep. 2012), para. 45; Eurogas v. Slovakia, op. cit. note 123, above, 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 Aug. 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 Oct. 2010), para. 5.17; Libananco Holdings Co. Limited v. Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues (23 Jun. 2008), para. 57. As regards ICSID's tribunals' power to order pre-judgment security, see Atlantic Triton v. Guinea, op. cit. note 112, above; Friedland, op. cit. note 84, above, 347–48.

148 See, e.g., Manuel García et al. v. Bolivarian Republic of Venezuela, PCA Case No. 2016-08, Procedural Order No. 9 (20 Jun. 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 Jan. 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 Mar. 2013), para. 6.

149 X v. Y and Z, ICC Case, Procedural Order (3 Aug. 2012), quoted 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, op. cit. note 147, above, paras. 86–87.

152 García Armas v. Venezuela, op. cit. note 148, above, para. 261.

153 Similar observations have been made in the context of commercial arbitration. See, e.g., Born, op. cit. note 9, above, 2464–66; 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, op. cit. note 48, above, para. 69. See, also, Stern, op. cit. note 31, above, 437; TSIKinvest LLC v. The Republic of Moldova, SCC Emergency Arbitration No. EA 2014/053, Emergency Award (29 Apr. 2014) (TSIKinvest v. Moldova, SCC Emergency Award), para. 63; Kompozit v. Moldova, SCC Emergency Award, op. cit. note 104, above, paras. 64–65.

155 See, Burlington v. Ecuador, op. cit. note 86, above, paras. 3, 70–71.

156 Schreuer, op. cit. note 23, above, 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), ICJ Rep. (1984), 169. See, also, e.g., Schreuer, op. cit. note 23, above, 771, para. 46; Kaufmann-Kohler, Antonietti and Potestà, op. cit. note 87, above, 659, para. 24.96; Brower and Goodman, op. cit. note 33, above, 451–56.

158 See, e.g., Pey Casado v. Chile, op. cit. note 26, above, paras. 11–13; Quiborax v. Bolivia, op. cit. note 86, above, paras. 109–12; García Armas v. Venezuela, op. cit. note 148, above, paras. 200–07; Gerald International v. Sierra Leone, op. cit. note 124, above, paras. 162–73.

159 Stern, op. cit. note 31, above, 629.

160 See, e.g., Millicom v. Senegal, op. cit. note 113, above, para. 43; Perenco v. Ecuador, op. cit. note 31, above, para. 39; PNGSDP v. Papua New Guinea, op. cit. note 38, above, para. 119. See, also, Miles, op. cit. note 96, above, 159.

161 Miles, op. cit. note 96, above, citing Quiborax v. Bolivia, op. cit. note 86, above, paras. 109–12.

162 TSIKinvest v. Moldova, SCC Emergency Award, op. cit. note 154, above, para. 66; Kompozit v. Moldova, SCC Emergency Award, op. cit. note 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, op. cit. note 7, above, 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'. See, also, e.g., Kaufmann-Kohler, Antonietti and Potestà, op. cit. note 87, above, 661, para. 24.105.

165 See, e.g., Julian Lew, Loukas A Mistelis, Stephan Kröll, Comparative International Commercial Arbitration (Kluwer Law International, 2003), 604, paras. 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 Mar. 2016), para. 69.

166 See Collins, op. cit. note 7, above, 226; Born, op. cit. note 9, above, 2478–80.

167 Born, op. cit. note 9, above, 2480.

168 See, e.g., Caron 1986, op. cit. note 57, above, 490–91; Born, op. cit. note 9, above, 2479.

169 See note 59, above.

170 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Order – Request for the indication of provisional measures (28 May 2009), ICJ 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 Dec. 2013), para. 15.

171 City Oriente v. Ecuador, 2008, op. cit. note 99, above, 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, op. cit. note 103, above, 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 Mar. 2015), para. 16; Millicom v. Senegal, op. cit. note 113, above, para. 42; PNGSDP v. Papua New Guinea, op. cit. note 38, above, para. 120; Stern, op. cit. note 31, above, 628–29, 634. See, also, Miles, op. cit. note 96, above, 206–08.

172 See, Occidental Petroleum v. Ecuador, op. cit. note 34, above, para. 61. See, also, Quiborax v. Bolivia, op. cit. note 86, above, paras 114–15.

173 Occidental Petroleum v. Ecuador, op. cit. note 34, above, paras. 63–64, citing Pey Casado v. Chile, op. cit. note 26, above, para. 46. See, also, BP Exploration Company v. Libya, op. cit. note 101, above, para. 200.

174 Paushok v. Mongolia, op. cit. note 48, above, para. 55. See, also, García Armas, op. cit. note 148, above, para. 202; Pugachev v. Russia, op. cit. note 125, above, para. 310.

175 See, also, Born, op. cit. note 9, above, 2479.

176 See, e.g., Occidental Petroleum v. Ecuador, op. cit. note 34, above, 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, op. cit. note 23, above, Article 47, 775, para. 63 citing SID/LC/ SR/16 (30 Dec. 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, op. cit. note 58, above, 882; Yesilirmak, op. cit. note 5, above, 178.

178 Havedal Ipp, op. cit. note 72, above, 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, op. cit. note 86, above, para. 76; Quiborax v. Bolivia, op. cit. note 86, above, para. 150; PNGSDP v. Papua New Guinea, op. cit. note 38, above, para. 116.

180 Sarooshi, op. cit. note 37, above, 366. See, also, Mouawad and Silbert, op. cit. note 2, above, 388–89.

181 See, e.g., Sarooshi, op. cit. note 37, above, 366–67; Petrochilos, op. cit. note 58, above, 882.

182 Quiborax v. Bolivia, op. cit. note 86, above, para. 153.

183 City Oriente v. Ecuador, 2007, op. cit. note 31, above, para. 69; Brower and Goodman, op. cit. note 33, above, para. 461.

184 See, e.g., Paushok v. Mongolia, TRO, op. cit. note 57, above, para. 16; Boyko v. Ukraine, op. cit. note 56, above, para. 2.4; Pezold v. Zimbabwe Directions, op. cit. note 31, above, paras. 7–8; Gavrilovic v. Croatia, op. cit. note 134, above (ruling on the claimants' urgent application, to protect the integrity of the arbitration, the tribunal ordered that the respondent be restrained from interrogating one of the claimants, Mr Gavrilovic, until the tribunal rules on the claimants' request for provisional measures).

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), 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, op. cit. note 31, above, 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 Apr. 1964) Fifth Session (18 Dec. 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 Jul. 1964), Fourth Session (30 Apr. 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, op. cit. note 23, above, Article 47, 775, para. 63.

187 1976 UNCITRAL Rules, Article 26(1). See note 45, above.

188 See ICC Rules, Article 28(1) (footnote 65) and SCC Rules, Article 37(1) (footnote 71).

189 See, e.g., Caron 1986, op. cit. note 57, above, 494; Petrochilos, op. cit. note 58, above, 882; Born, op. cit. note 9, above, 2442 et seq. See also, 2006 UNCITRAL Model Law, Article 17.

190 See Goldberg, Kryvoi and Philippov, op. cit. note 2, above, 18–19.

191 See, e.g., Nuclear Tests (Australia v. France), Interim Protection, Order, 22 June 1973, ICJ 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, ICJ Rep. (1979), 19, para. 36; Passage through the Great Belt (Finland v. Denmark), Order – Request for the Indication of Provisional Measures (29 Jul. 1991), ICJ 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, ICJ 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 Apr. 1998), ICJ Rep. (1998), 248, para. 36.

192 Occidental Petroleum v. Ecuador, op. cit. note 34, above, 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 Oct. 1997), para. 8.

193 Plama v. Bulgaria, op. cit. note 88, above, paras. 46–47.

194 See, e.g., Quiborax v. Bolivia, op. cit. note 86, above, paras. 156–57; Balkan Energy (Ghana) Limited v. Republic of Ghana, PCA Case No. 2010-07, Interim Award (22 Dec. 2010), para. 188; Pugachev v. Russia, op. cit. note 125, above, para. 240. See, also, Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (Provisional Measures) (1 Jul. 2003), para. 8; Phoenix v. Czech Republic, op. cit. note 97, above, para. 33.

195 Hydro v. Albania, op. cit. note 122, above, para. 3.34; Quiborax v. Bolivia, op. cit. note 86, above, paras. 156–57; Nova Group v. Romania, op. cit. note 88, above,

196 These cases are also discussed in Section IV.i.

197 City Oriente v. Ecuador, 2008, op. cit. note 99, above, paras. 86–87.

198 ibid., para. 70. See, also, Perenco v. Ecuador, op. cit. note 31, above, 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, op. cit. note 99, above, para. 72, referring to Article 17A(1)(c) of the 2006 UNCITRAL Model Law and Occidental Petroleum v. Ecuador (op. cit. note 34, above), para. 93, in support.

200 City Oriente v. Ecuador, 2008, op. cit. note 99, above, para. 73.

201 Paushok v. Mongolia, op. cit. note 48, above, para. 68.

202 id.; see, also, ibid., paras. 67–69. The tribunal based its finding on three sources. First, it cited a decision by the Iran-US Claims Tribunal, Behring International v. Iran, op. cit. note 109, above, 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 ICJ Rep. (1951), 89, 94 and Fisheries Jurisdiction Case (UK v. Iceland), Interim Protection Order of 17 August 1972, ICJ Rep. (1972), 12, 13. Second, the Paushok tribunal relied on a commentary on Article 26, 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, 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 ibid., para. 77.

204 ibid., Operative part.

205 See, e.g., Burlington v. Ecuador, op. cit. note 86, above, paras. 78–82, 87. See, also, CEMEX v. Venezuela, op. cit. note 93, above, 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: '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, op. cit. note 38, above, para. 109. See, also, Kompozit v. Moldova, SCC Emergency Award, op. cit. note 104, above, paras 88–89; TSIKinvest v. Moldova, SCC Emergency Award, op. cit. note 154), para. 64. See, also, Gerald International v. Sierra Leone, op. cit. note 124, above, para. 176.

207 PNGSDP v. Papua New Guinea, op. cit. note 38, above, para. 111. See, also, Nova Group v. Romania, op. cit. note 88, above, para. 240.

208 See Railroad Development Corporation (RDC) v. Republic of Guatemala, ICSID Case No. ARB/07/23, Decision on Provisional Measures (15 Oct. 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, op. cit. note 86, above, para. 86.

210 See, also, Orrego Vicuña, op. cit. note 34, above, 949; Caron 1986, op. cit. note 57, above, 493–97.

211 Article 26(3)(a), 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, op. cit. note 34, above, para. 93; City Oriente v. Ecuador, 2008, op. cit. note 99, above, para. 73; Paushok v. Mongolia, op. cit. note 48, above, paras. 79–91; Burlington v. Ecuador, op. cit. note 86, above, paras. 78–82, 87; PNGSDP v. Papua New Guinea, op. cit. note 38, above, paras 116–17, 135.

213 Burlington v. Ecuador, op. cit. note 86, above, para. 87; Paushok v. Mongolia, op. cit. note 48, above, Operative part.

214 Paushok v. Mongolia, op. cit. note 48, above, Operative part.

215 Nova Group v. Romania, op. cit. note 88, above, 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 Dec. 2014), para. 121. See, also, Stern, op. cit. note 31, above, 631.

217 Born, op. cit. note 48, above, para. 19. See, also, PNGSDP v. Papua New Guinea, op. cit. note 38, above, para. 113.

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