International Investment Law and Arbitration Commentary, Awards and other Materials

CHAPTER OUTLINE

This chapter discusses interim, provisional or conservatory measures which may be sought by the claimant in order to preserve the status quo pending the dispute's resolution. Such relief may be sought from the tribunal, from national courts or both. Section 1 explains some of the special considerations which may apply in the case of an interim measure against a sovereign State or other investment dispute party which exercises sovereign powers. Should a tribunal order a sovereign State to halt criminal proceedings against the investor, for example? Should a tribunal order a sovereign not to move its money from a bank account in a certain location to another place, indeed more broadly from disposing or dealing in any way with those assets? This section describes the power of ICSID and other tribunals to grant – or in the curious language of the ICSID Convention, ‘recommend’ – such provisional measures. Section 2 uses a well-known English case to illustrate recourse to a national court where an ICSID arbitration is already underway. It draws the reader's mind to the potential role of national courts, albeit using as its example an instance of national deference to the exclusive authority of an ICSID tribunal. Section 3 in turn discusses potential limits, be they legal or simply practical to the types of measures which a tribunal might order. It discusses, in particular, the power of the tribunal to require security for costs (i.e. to assure the respondent that its legal costs will be met in the event that it prevails over the claimant), as well as a well-known line of awards concerning the circumstances in which a tribunal will seek to halt criminal proceedings against the claimant, at least while the arbitration is still in progress. Section 4 compares the test adopted by an ICSID tribunal to that of a well-known tribunal applying the UNCITRAL Arbitration Rules in evaluating requests for interim relief. Together, they offer the reader a sense of some key factors which will matter to tribunals. Perhaps there is already a good degree of consistency in the ICSID jurisprudence, without denying that tribunals will differ in their approach as an increasingly mature body of jurisprudence and opinion continues to develop.

INTRODUCTION

Interim, provisional or conservatory measures are sought, typically, to preserve the position of the parties pending the resolution of the dispute or prevent harm to arbitration of the dispute.