Provisional Measures in ICSID Arbitration Proceedings: Between the Current Legal Framework and the Proposed Reform

Abstract

Provisional measures have an enormous importance in the context of investment arbitration given the continuous recourse to interim protection by disputing parties. While the letter of Article 47 ICSID Convention and Arbitration Rule No. 39 is silent on the necessary requirements for the adoption of provisional measures and on the legal nature of provisional orders, ICSID tribunals have adopted a significant number of decisions which seems to clarify the effective limits of ICSID arbitral tribunals’ precautionary powers and a plain influence of the International Court of Justice’s jurisprudence on provisional protection of rights. This chapter therefore addresses procedural and substantial issues regarding the adoption of provisional measures by ICSID arbitrators, also identifying typical interim orders—through the analysis of the arbitral practice—and the possible consequence in case of non-compliance by the opposing party. Lastly, in consideration of the ongoing amendment process of the ICSID Rules, this chapter proposes a scrutiny of the anticipated reform of ICSID rules on provisional measures.