Author

Ms Mihaela Apostol

Lawyer International Dispute Resolution - Independent

Provisional Measures

I. Definition and scope

1.

A provisional (interim/conservatory) measure is a temporary remedy granted under special circumstances. It can be granted anytime during the course of proceedings but before the issuance of the final award.

2.

The scope of provisional measures is to preserve parties’ rights, both substantive1 and procedural, including:2 (i) restoring3 or maintaining the status quo (non-aggravation of the dispute);4 (ii) preserving the integrity of the arbitral proceedings (including ensuring due process and equality of arms);5 (iii) protecting evidentiary rights;6 (iv) preserving the jurisdiction of the arbitral tribunal;7 or (vi) preventing the frustration of the award.9 

II. Legal framework and powers of the tribunal

3.

The authority to order provisional measures derives from the applicable investment agreement,10 governing procedural rules,11 or from tribunal’s inherent power to preserve the integrity of the arbitral process.12

4.

Provisional measures can be ordered following a party’s request, or on the tribunal’s initiative.13

5.

The majority of the arbitration rules applicable to investment disputes (under 2006 ICSID, 2013 UNCITRAL, 2017 ICC, and 2017 SCC Rules) provide that tribunals have wide powers in relation to ordering provisional measures.15 Most of the arbitration rules do not contain a list of the measures that the tribunal can order, only the UNCITRAL Rules mention a few indicative criteria.16 Hence, the tribunal has the power to decide what type of measures are suitable, or even order different measures than the ones requested.17 Furthermore, it is within the tribunal’s discretion to suspend, terminate, and amend the measures granted,18 upon prior notice or proprio motu.19

6.

In making such an order, the 2017 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.20

III. Conditions for granting interim measures

7.

Based on prior decisions, a party seeking provisional measures has to meet certain standards. These include:

  1. prima facie jurisdiction of the tribunal;21 22
  2. prima facie case on the merits / prima facie existence of a right susceptible of protection23 (fumus boni iuris24 - existence of the right aimed to be preserved25 or at least an apparent26 or contingent right27);
  3. urgency28; and
  4. necessity29 (including serious/substantial harm).30 
8.

Other factors that might be taken into account by the tribunal are:

  1. proportionality of the measures;31 and
  2. non-prejudgement of the dispute on the merits32 (including seeking a remedy similar to the final relief).33

IV. Burden of proof and conditions imposed on the applicant

9.

The burden of proof is on the applicant 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,34 which are not granted lightly.35 Indeed, the standard of proof is high, particularly if the application relates to preventing a sovereign State from carrying out criminal proceedings.36 

10.

Granting provisional measures is not risk-free for the applicant, as according to 2013 UNCITRAL, 2017 ICC and 2017 SCC Rules the applicant can be asked by the tribunal to provide appropriate security in connection with the measures granted,37 or held liable for any costs and damages suffered by the other party as a consequence of those measures under the 2013 UNCITRAL Rules.38

V. Types of measures

11.

Examples of provisional measures include:

  1. obtaining39 or preserving40 evidence;
  2. securing compliance with a future award;41
  3. refraining from providing information to the media;42
  4. suspending,43 adjourning44 or terminating related/parallel proceedings45 (criminal,46 insolvency/bankruptcy,47 enforcement48 or extradition,49 etc.);
  5. preventing disclosure of confidential information;50
  6. performing a specific contractual obligation;51
  7. destroying intercepted communications;52 and
  8. implementing measures to protect the life and safety of the parties.53 

VI. Enforcement

12.

Although, the ICSID Rules of Arbitration (2006) mention that provisional measures are “recommendations”, arbitral decisions have clarified that such measures are nonetheless binding on the parties.54 Non-compliance with the provisional measures ordered can lead to the discontinuance of the proceedings55 and can constitute a factor that will be taken into account by the tribunal when issuing the final award.56

Bibliography

Bento, L., Chapter Mapping the Genetic Code of Provisional Measures: Characteristics and Recent Developments, in Baltag, C. (ed.), ICSID Convention after 50 Years: Unsettled Issues, 2016;

Brower, Ch.N. and Goodman, R.E.M., Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings, ICSID Review-Foreign Investment Law Journal, 1991, pp. 431-461;

Caron, D.D. and Caplan, L.M., The UNCITRAL Arbitration Rules: A Commentary, 2nd ed., 2013;

Coleman, M. and Innes, T., Provisional Measures During Suspension of ICSID Proceedings, ICSID Review, 2015, pp. 713-728

Commission, J. and Moloo, R., Procedural Issues in International Investment Arbitration, 2018;

Dautaj, Y. and Gustafsson, B., Provisional Measures in Investor-State Arbitration: States Playing Games in Local Courts by Invoking the Trump Card (Police Powers), University of Bologna Law Review, 2019, pp. 27-71;

Delaume, G.R., ICSID Tribunals and Provisional Measures - A Review of the Cases, ICSID Review - Foreign Investment Law Journal, 1986, pp. 392-395;

Dolzer, R. and Schreuer, C., Principles of International Investment Law, 2nd ed., 2012;

Finizio, S.P., Shenkman, E.G., and Mortenson J.D., Recent Developments in Investor-State Arbitration: Effective Use of Provisional Measures, The European Arbitration Review, 2007, pp 15-17;

Friedland, P., Commentary: ICSID Tribunals and Injunctions by State Courts, Arbitration International, 2014, pp. 323-326;

Gazzini, T. and Kolb, R., Provisional Measures in ICSID Arbitration from “Wonderland’s Jurisprudence” to Informal Modification of Treaties, The Law & Practice of International Courts and Tribunals, 2017, pp. 159-184;

Kaufmann-Kohler, G., Antonietti, A. and Potestà, M., Part V - Remedies and Costs, Interim Relief in Investment Treaty Arbitration, in Yannaca-Small, K. (ed.), Arbitration Under International Investment Agreements: A Guide to the Key Issues, 2nd ed., 2018;

Lenci, F., Provisional Measures in International Investment Arbitration, Ph.D. Thesis, University of Milan, 2014;

Luttrell, S., ICSID Provisional Measures ‘in the Round’, Arbitration International, 2015;

Malintoppi, L., Provisional Measures in Recent ICSID Proceedings: What Parties Request and What Tribunals Order, in Binder, C., Kriebaum, U., Reinisch, A., and Wittich, S. (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, 2009;

Matthews, J. and Steward, K., Time to Evaluate the Standards for Issuance of Interim Measures of Protection in International Investment Arbitration, Arbitration International, 2009, pp. 529-552;

Milles, C.A., Provisional Measures before International Courts and Tribunals, 2017;

Moloo, R., Arbitrators Granting Antisuit Orders:- When Should They and on What Authority, Journal of International Arbitration, 2009, pp. 675-700;

Parra, A.R., The Practices and Experience of ICSID, in Conservatory and Provisional Measures in International Arbitration, ICC Publication No. 519, 1993;

Rubins, S., Chapter VII Special Procedures: Applications and Motions, in Sabahi, B., Rubins, N. and Wallace, D. (eds.), Investor-State Arbitration, 2nd ed., 2019;

Schreuer, C., Commentary on the ICSID Convention, ICSID Review - Foreign Investment Law Journal, 1999;

Sheppard, A., Chapter - 23 The Jurisdictional Threshold of a Prima-Facie Case, in Muchlinski, P., Ortino, F. and Schreuer, C. (eds.), The Oxford Handbook of International Investment Law, 2008;

Sinclair, A. and Repousis, O.G., An Overview of Provisional Measures in ICSID Proceedings, ICSID Review, 2017, pp. 431-446;

Sinclair, A.C. and Triantafilou, E.E., Specific Performance Under Commercial Contracts with Sovereign States, Journal of International Arbitration, 2017, pp. 747-774.

Titi, C., Res Iudicata and Interlocutory Decisions under the ICSID Convention: Antinomies over the Power of Tribunals to Review, ICSID Review-Foreign Investment Law Journal, 2018, pp. 358-379;

UNCTAD, UNCTAD Series on Issues in International Investment Agreements II, 2014.

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