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Provisional Measures

I. Definition

1.

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

A. Parties' rights to be preserved by provisional measures

2.

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

3.

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
4.

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.

B. Timing

5.

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

6.

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

II. Power of arbitral tribunals to grant provisional measures

7.

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

8.

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

9.

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

10.

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

11.

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

III. Scope of provisional measures

12.

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

13.

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 

14.

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

15.

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.

IV. Conditions for granting interim measures

16.

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
17.

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

V. Burden and standard of proof

A. Burden of proof

18.

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

B. Standard of proof

19.

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 

20.

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

VI. Types of provisional measures

21.

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

VII. Binding character and enforcement

22.

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

23.

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 

24.

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

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.

Brown, C., A Common Law of International Adjudication, Oxford University Press, 2007, Chapter 4.

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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