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A central tenet of any interim measures analysis conducted before international courts and tribunals is necessity, i.e., whether the actions of a party “are capable of causing or of threating irreparable prejudice to the rights invoked”.1
The International Court of Justice (ICJ) has adopted a relatively high threshold in its jurisprudence for determining whether it is “necessary” in a particular case to grant a request for provisional measures.2 The approach of the ICJ is that there must be “irreparable” harm or prejudice that will be caused to the rights of the parties, before the Court will decide that a provisional measure is “necessary”.3
Aegean Sea Continental Shelf (Greece v. Turkey), Order – Request for Indication of Interim Measures of Protection, 11 September 1976, para. 25; Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland), Order – Provisional Measures, 17 August 1972, para. 21; Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Order – Request for the indication of interim measures of protection, 17 August 1972, para. 22; Nuclear Tests (Australia v France), Order – Request for the indication of interim measures of protection, fixing of time-limits: Memorial and Counter-Memorial, 22 June 1973, para. 20; Nuclear Tests (New Zealand v France), ICJ Reports 1973, Order of 22 June 1973, para. 21.
II. The standard
Certain investment tribunals have applied an “irreparable harm” standard, in line with the approach developed by the ICJ.4 However, the application of an “irreparable harm” standard in the context of investment arbitration has been perceived as problematic. The overwhelming majority of claimants do not request restitution as a primary remedy but only compensation. As such, the application of such standard would make difficult a claim of interim protection for rights arising from the subject matter of the claim. Indeed, any further breach of those rights would ipso facto invite additional damages and thus not be “irreparable”.
Possibly for this reason, investment tribunals have recently appeared to step away from the narrow standard of irreparability, preferring instead a standard of “significant” harm.5 On this standard, if a party would suffer substantial prejudice absent interim measures, then the interim measures are “necessary” and the substantial harm requirement is satisfied.6 Other tribunals have concluded that the standards of “irreparable” and “significant harm” are functionally equivalent.7
The requirement of “irreparable” or “significant” harm may be abandoned in extreme cases, namely where (a) the investment in question remains a going concern despite the allegedly wrongful intervention of the State, and (b) on the basis of that continued intervention, there is a substantial risk that the investment will be destroyed or dissipated in its entirety.8
In any event, substantial harm may exist even if the party would still have recourse to a claim for damages.9 As the Paushok tribunal recognized, “the possibility of monetary compensation does not necessarily eliminate the possible need for interim measures”.10 Similarly in Behring v. Iran, the Iran-U.S. Claims Tribunal noted that the scope of harm that satisfies the necessity test “arguably is broader than the Anglo-American law concept of irreparable injury,” which “requires a showing that the injury complained of is not remediable by an award of damages”.11
City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador) (I), ICSID Case No. ARB/06/21, Decision on Revocation of Provisional Measures and Other Procedural Matters, 13 May 2008, para. 70; Perenco Ecuador Ltd v. Republic of Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009, para. 43.
Paushok v. Mongolia, Order on Interim Measures, 2 September 2008, para. 69; United Utilities (Tallinn) B.V. and Aktsiaselts Tallinna Vesi v. Republic of Estonia, ICSID Case No. ARB/14/24, Decision on Respondent Application for Provisional Measures, 12 May 2016, para. 101; Gabriel Resources Ltd. and Gabriel Resources (Jersey) v. Romania, ICSID Case No. ARB/15/31, Decision on Claimants Second Request for Provisional Measures, 22 November 2016, para. 72.
CEMEX v. Venezuela, ICSID Case No. ARB/08/15, Decision on Claimant’s Request for Provisional Measures, 3 March 2010, paras. 45-46; PNG Sustainable Development Program Ltd v. Independent State of Papua New Guinea, ICSID Case No. ARB/13/33, Decision on Claimant’s Request for Provisional Measures, 21 January 2015, para. 109; Hydro S.r.l. and Others v. Republic of Albania, ICSID Case No. ARB/15/28, Order on Provisional Measures, 3 March 2016, para. 3.13.
Ioan Micula, Viorel Micula and others v. Romania (I), ICSID Case No. ARB/05/20, Decision on Provisional Measures, 2 March 2011, para. 68; Perenco Ecuador Ltd v. Republic of Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Provisional Measures, 8 May 2009, para. 46; CEMEX v. Venezuela, ICSID Case No. ARB/08/15, Decision on Claimant’s Request for Provisional Measures, 3 March 2010, para. 54.
III. The standard as applied to the interim protection of procedural rights
As discussed above, tribunals have confirmed that harm is “irreparable” where it cannot be remedied by an award of damages.12 Investment tribunals have repeatedly confirmed that where the procedural integrity of the arbitral proceedings is threatened,13 or the status quo between the parties risks being altered by the aggravation or extension of the dispute,14 the existence of such harm is axiomatic.
Biwater v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3 (Provisional Measures), 29 September 2006, para. 135; City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador) (I), ICSID Case No. ARB/06/21, Decision on Provisional Measures, 19 November 2007, para. 55; Burlington Resources, Inc. v Republic of Ecuador, ICSID Case No. ARB/08/5, Procedural Order No. 1 on Burlington Oriente’s Request for Provisional Measures, 29 June 2009, para. 60; Millicom International Operations B.V. and Sentel GSM S.A. v Republic of Senegal, ICSID Case No. ARB/08/20, Decision on the Application for Provisional Measures, 9 December 2009, para. 45.
IV. An overlap between necessity and urgency
Urgency and necessity are generally accepted as two separate requirements for the grant of provisional measures.16 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.17