ICSID provisional measures ‘in the round’

Abstract

Provisional measures are an increasingly important device in international arbitration, particularly where the stakes are high and the proceedings inevitably long. But, for the most part, the conditions that must be satisfied before they will be granted remain a matter for the parties to argue, and the tribunal to determine. This is especially so in the case of proceedings at the International Centre for Settlement of Investment Disputes (ICSID), where the relevant posited law is open textured and the tribunal’s discretion is broad. This makes the task of advising on, preparing and responding to provisional measures requests more difficult. Based on published decisions, this article seeks to provide a practical explanation of the five requirements that are most often applied by ICSID tribunals to decide requests for provisional measures. The conclusion reached is that, although urgency and necessity are probably the most important factors, few arbitrators follow a ‘checklist’ approach. Instead, most arbitrators evaluate all five of the main conditions ‘in the round’, meaning they assess the strengths and weaknesses of the request overall, guided by their own preferences and experiences. (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965), art 47ICSID Rules of Procedure for Arbitration Proceedings (2006), Rule 39 Caratube International Oil Company LLP v Republic of Kazakhstan , ICSID Case No. ARB/08/12, Decision Regarding Claimant's Application for Provisional Measures (2009) Victor Pey Casado v Republic of Chile , ICSID Case No. ARB/98/2, Decision on Provisional Measures (2001) RSM Production Corporation v Saint Lucia , ICSID Case No. ARB/12/10, Decision on Saint Lucia's request for security costs, IIC 655 (2014) Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan , ICSID Case No ARB/12/1, Decision on Claimant's Request for Provisional Measures (2012) Plama Consortium Ltd v Republic of Bulgaria , ICSID Case No. ARB/03/24, Order of the Tribunal on the Claimant's Request for Urgent Provisional Measures, IIC 190 (2005) Churchill Mining plc v Republic of Indonesia , ICSID Case No ARB/12/14, Procedural Order 3 (Provisional Measures) (2013) Perenco Ecuador Ltd v Republic of Ecuador & Empresa Estatal Petroleos del Ecuador , ICSID Case No. ARB/08/6, Decision on Request for Provisional Measures (2009) Bernhard von Pezold and ors v Zimbabwe , ICSID Case Nos. ARB/10/15, ARB/10/25, Directions concerning claimants' application for provisional measures, IIC 549 (2012) Quiborax SA and ors v Bolivia , ICSID Case No. ARB/06/2, Decision on Provisional Measures, IIC 422 (2010)