Author

Dr Alia Algazzar

Consultant in International Law & Dispute Settlement, Docteur en Droit International - IHEID

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Urgency in Application for Provisional Measures

I. Definition

1.

Urgency is at the heart of any successful application for provisional measures both in investment and non-investment disputes. For instance, the requirement of urgency underlies any interim measures indicated by the International Court of Justice.1 Similarly, most investment tribunals consider urgency a vital criterion for granting provisional measures in investment disputes.2 However, unlike emergency arbitration where urgency is inherent in the proceedings,3 and as such it is explicitly mentioned in some of the arbitration rules containing provisions on emergency proceedings,4 none of the arbitration rules refer to the element of urgency as a requirement for the indication of provisional measures in ordinary proceedings.5

II. Procedural and substantive aspects

2.

The element of urgency reinforces other requirements for granting provisional measures, such as prima facie jurisdiction of the tribunal and a prima facie case of the merits. From the procedural perspective, urgency prioritizes requests for provisional measures so that it is it sufficient for a tribunal to be satisfied that it has prima facie jurisdiction in order to consider a party’s request.6 The existence of a situation of urgency further fortifies the grant of provisional measures based on a finding of a prima facie case on the merits.7

III. Burden of proof

3.

According to the well-established general principle of onus probandi incumbit actori, it is generally accepted that the party requesting the indication of provisional measures or the modification thereof assumes the burden of establishing the element of urgency in respect of its request,8 the standard of which some tribunals considered to be of a high threshold.9

IV. The test of urgency and its circumstantial nature

4.

Some tribunals consider a provisional measure to be urgent where an action prejudicial to the rights of either party is likely to be taken before a final decision is rendered.10 Other tribunals find that the urgency requirement is satisfied where a question cannot await the outcome of the award on the merits.11 In either case, the precise degree of urgency varies depending on the circumstances of each case.12

V. Elements considered in assessing the degree of urgency

5.

When assessing the required level of urgency, tribunals often consider two factors:

  1. The nature/type of the requested provisional measure, in particular the rights whose protection is targeted by such measure.13 Examples of measures that tribunals considered as urgent include those aiming to prevent the aggravation of the dispute,14 preserve the integrity of the arbitration process,15 or safeguard fundamental procedural rights.16
  2. The seriousness, imminence, and irreparability of the prejudice/harm that might ensue if the requested measure is not granted.17

VI. An overlap between urgency and necessity

6.

Urgency and necessity are generally accepted as two separate requirements for the indication of provisional measures.18 However, due their intrinsic link to the element of harm/prejudice, there is a considerable overlap in how tribunals articulate and apply these two notions.19

Bibliography

Schreuer, C.H., The ICSID Convention: A Commentary, 2001.

Benzing, M., Evidentiary issues, in Zimmermann, A., and Others (eds.), The Statute of the International Court of Justice - A Commentary, 3rd ed., 2019, pp. 1371-1414.

Oellers-Frahm, K. and Zimmermann, A., Article 41: Provisional Measures, in Zimmermann, A., and Others (eds.), The Statute of the International Court of Justice - A Commentary, 3rd ed., 2019, pp. 1135-1202.

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

Kaufmann-Kohler, G., and Others, 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, pp. 633-678.

Malintoppi, L., Provisional Measures in Measures in Recent ICSID Proceedings What Parties Requests and What Tribunals Order, in Binder, C., and Others (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, 2009, pp. 157-184.

Luttrel, S., ICSID Provisional Measures ‘In The Round’, Arbitration International, 2015, pp. 393-412.

Bismuth, R., Anatomy of the Law and Practice of Interim Protective Measures in International Investment Arbitration, Arbitration International, 2009, pp. 773-821.

Tanaka, Y., The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional Measures, in Del Vecchio, A., and Virzo, R. (eds.), Interpretations of the United Nations Convention on the Law of the Sea by International Courts and Tribunals, 2019, pp. 107-124.

Caron, D.D., Interim Measures of Protection: Theory and Practice in Light of the Iran United States Claims Tribunal, in Zeitschrift Für Ausländisches öffenliches Recht Und Völkerrechti, 1986, pp. 465-518.

Goldberg, D., and Others, 2019 Empirical Study: Provisional Measures in Investor State Arbitration, BIICL/White & Case, 2019.

Le Bars, B., Interim Measures in International Arbitration, E-Pública, 2019.

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