Provisional Measures

A provisional (interim/conservatory) measure is a temporary remedy granted under special circumstances.

The aim of provisional measures is to preserve¹ parties’ rights,² both substantive³ and procedural,⁴ pending the decision on the merits.⁵

The party soliciting provisional measures must specify the rights in dispute that the measure should preserve.⁶ Such rights must relate to the specific dispute in the arbitration, must exist at the time of the request, must not be hypothetical, nor to be created in the future.⁷ However, it is sufficient that rights to be preserved are asserted as theoretically existing rights (prima facie), as opposed to proven existing rights.⁸ Such rights include:⁹

1. restoring¹⁰ or maintaining the status quo (non-aggravation of the dispute);¹¹
2. preserving the integrity of the arbitral proceedings (including ensuring due process and equality of arms);¹²
3. protecting evidentiary rights;¹³
4. preserving the jurisdiction of the arbitral tribunal;¹⁴ or
5. preventing the frustration of the award.¹⁵

However, a request for provisional measures may not be requested as form of temporary stay of enforcement of the award.¹⁶ See further Stay of enforcement of ICSID awards; Stay of enforcement of non-ICSID awards.

Provisional measures can be granted at any time during the course of proceedings but before the issuance of the final award.¹⁷ Besides, granting interim measures is not prevented, per se, by the fact that judicial decisions intended to be suspended through interim measures were rendered before the initiation of the arbitration.¹⁸

The 1976 UNCITRAL Rules recognize that temporary restraining measures may be granted pending the resolution of a request for interim measures.¹⁹

International tribunals usually possess an express power contained in their constitutive instrument to grant provisional measures.²⁰ Some international investment agreements also confer such a power to tribunals.²¹

In the absence of an express statutory power to grant provisional measures, many tribunals have found that they had an inherent power to preserve the integrity of the arbitral process, including the power to grant interim relief.²²

Tribunals may grant provisional measures even when their jurisdiction is being contested. See Prima facie jurisdiction. However, tribunals are prevented from taking any steps until an arbitrator’s challenge has been decided.²³

Ad hoc committees also have the power to grant provisional measures in principle.²⁴

The ability to seek provisional measures from national courts in aid of arbitration, which is a common feature of commercial arbitration, is excluded from ICSID arbitration unless the parties have stipulated otherwise in their instrument of consent.²⁵ However, this does not apply to criminal proceedings,²⁶ or to settlement negotiations.²⁷

Provisional measures can be ordered following a party’s request, or on the arbitral tribunal’s initiative.²⁸

The majority of the arbitration rules applicable to investment disputes²⁹ provide that arbitral tribunals have wide powers in relation to ordering provisional measures.³⁰ Most of the arbitration rules do not contain a list of the measures that the tribunal can order. Only some rules mention a few indicative measures.³¹ Hence, the tribunal has the power to decide what type of measures are suitable, or even order different measures than the ones requested.³² 

Furthermore, it is within the tribunal’s discretion to suspend, terminate, and amend the measures granted,³³ upon prior notice or proprio motu.³⁴

In making such an order, the 2021 ICC and 2017 SCC Rules give the power to the tribunal to grant the provisional measures in the form of an award or an order.³⁵ See also Emergency arbitration.

Unlike UNCITRAL and other arbitration rules,³⁶ ICSID Arbitration Rules do not set out conditions for granting provisional measures. Five criteria are usually required to be met (see each specific Wiki Notes for further details and case law):

1. prima facie jurisdiction of the tribunal,³⁷ (unless it is the respondent State applying for interim measures)³⁸ which pertains to the absence of a manifest lack of jurisdiction;³⁹
2. prima facie case on the merits which requries to establish the prima facie existence of a right susceptible of protection⁴⁰ (fumus boni iuris⁴¹ - existence of the right aimed to be preserved⁴² or at least an apparent⁴³ or contingent right⁴⁴);
3. urgency,⁴⁵ i.e. irreparable harm which is neither remote nor speculative, but actual and imminent;⁴⁶ 
4. necessity⁴⁷ (including serious/substantial harm);⁴⁸ and
5. proportionality of the measures.⁴⁹

Some tribunals have also relied on the criterion of non-prejudgement of the dispute on the merits⁵⁰ (including seeking a remedy similar to the final relief).⁵¹

The burden of proof is usually borne by the party requesting the provisional measure.⁵² Rarely, the tribunal may consider that the burden would be on the head of the party that is in the best position to produce the evidence.⁵³

Besides, the applicant has to convince the tribunal that the particular circumstances of the case meet the required standard for awarding provisional measures. Provisional measures are an extraordinary remedy,⁵⁴ which are not granted lightly.⁵⁵ Indeed, the standard of proof is high in ISDS cases, particularly if the application relates to preventing a sovereign State from carrying out criminal proceedings.⁵⁶ However, the standard of proof is not as strict as for rendering a final decision.⁵⁷ Arbitral tribunals usually require the applicant to establish the requirements with sufficient likelihood, without, however, having to actually prove the facts underlying them.⁵⁸ 

Granting provisional measures is not risk-free for the applicant, as according to 2013 UNCITRAL, 2021 ICC and 2017 SCC Rules the applicant can be asked by the tribunal to provide appropriate security in connection with the measures granted,⁵⁹ or held liable for any costs and damages suffered by the other party as a consequence of those measures (e.g. under the 2013 UNCITRAL Rules).⁶⁰ The applicant for provisional measures may also have to bear the costs of its request.⁶¹

Examples of provisional measures granted by arbitral tribunals include:

1. obtaining⁶² or preserving⁶³ evidence;
2. securing compliance with a future award (including security for costs);⁶⁴
3. refraining from providing information to the media;⁶⁵
4. suspending,⁶⁶ adjourning⁶⁷ or terminating related/parallel proceedings⁶⁸ (criminal,⁶⁹ insolvency/bankruptcy,⁷⁰ enforcement⁷¹ or extradition,⁷² etc.);
5. preventing disclosure of confidential information;⁷³
6. performing a specific contractual obligation;⁷⁴
7. destroying intercepted communications;⁷⁵ and
8. implementing measures to protect the life and safety of the parties.⁷⁶

The constitutive instruments giving power to arbitral tribunals to order provisional measures do not always provide that such measures have mandatory force.

For instance, the ICSID Rules of Arbitration (2006) mention that provisional measures are “recommendations.” While some authors have argued that the term "recommend" should be properly understood as denoting a decision which is exhortatory rather than mandatory,⁷⁸ ICSID arbitral tribunals have largely⁷⁹ taken the view that such measures are nonetheless binding on the parties.⁸⁰ The measures will last only during the course of the proceedings, and as such they have no res judicata effect.⁸¹ 

Non-compliance with the provisional measures ordered can lead to the discontinuance of the proceedings⁸² and can constitute a factor that will be taken into account by the tribunal when issuing the final award.⁸³

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