ICSID and Court-Ordered Provisional Remedies: An Update

Abstract

In several lawsuits during the last few years, parties involved in pending arbitral proceedings before the International Centre for Settlement of Investment Disputes (‘ICSID’ or the ‘Centre’;)1 have applied to municipal courts for provision relief despite Article 26 of the ICSID Convention, which provides: ‘Consent of the parties to arbitration under the Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy.’ In an article that appeared in an earlier issue of this Journal,2 this writer noted with approval that these applications have by and large been rejected by national courts mindful of the Convention's exclusive remedy rule. A leading case discussed by this writer in support of the proposition that national court remedies are not available to ICSID parties was Atlantic Triton v. Guinea.3 In Atlantic Triton, shortly after ICSID proceedings were initiated the Norwegian claimant (Atlantic Triton) applied to a French court for an attachment of three vessels owned by the Republic of Guinea in order to secure a possible future ICSID award in its favour. After a lower court granted the requested attachment, the Court of Appeal of Rennes vacated on the ground that the grant of provisional relief by a national court is inconsistent with the above-cited language of Article 26 of the Convention.4 In concluding that the claimant was obliged to apply to the Centre for all interim relief, the Court of Appeal referred as well to Article 47 of the Convention, which authorises an ICSID tribunal, if it considers that the circumstances so require, to recommend provisional measures to preserve the rights of the parties.