State Responsibility and Compliance with Provisional Measures under ICSID

Abstract

Abstract Article 47 of the ICSID Convention, grants tribunals authority to “recommend” provisional measures. However, ICSID tribunals have concluded that the word ‘recommend’ is imperative and that ‘recommendations’ for provisional measures are binding. Yet no plausible reason has ever been advanced to justify treating the word ‘recommend’ as the equivalent of ‘order’. An application of Articles 31-33 of the Vienna Convention on the Law of Treaties does not support such a result, and analogies with the practice of the International Court of Justice and the US-Iran Claims Tribunal ignore critical wording differences. The Articles on State Responsibility provide important guidance on why States do in fact have an obligation to comply with provisional measures granted by an ICSID tribunal even though they are only in the form of a recommendation. An internationally wrongful act is a ‘violation by a State of any obligation’. An obligation on participants in international arbitration not to aggravate the dispute is an obligation recognized by international courts and tribunals and equally applicable to investment arbitration. Thus, if failure to comply with provisional measures recommended by an ICSID tribunal amounts to an aggravation of the dispute, then the State concerned has committed an internationally wrongful act for which it is responsible.