Time to Evaluate the Standards for Issuance of Interim Measures of Protection in International Investment Arbitration

Abstract

The pressure on international arbitral tribunals to decide on requests for interim measures in high stakes international arbitration is likely to grow rapidly as the global economy continues to weaken and the number of investment disputes, both before the International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc tribunal proceedings under United Nations Commission on International Trade Law (UNCITRAL) Rules, increases. Although the individual decisions of the tribunals are not binding on one another, it is generally accepted that from these decisions there is the development of a special jurisprudence in investment arbitration. The danger inherent in this situation is that all decisions of all tribunals ‘have in principle equal status as concerns the potential for normative influence’. This influence will only increase as more awards are available for review. Recently, in Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company, Claimants v. Government of Mongolia (‘Paushok v. Mongolia’), a 2008 ad hoc investment arbitration conducted under UNCITRAL Rules, the tribunal entered an interim award without reference to any specific authority but nonetheless applied a list of criteria taken from international investment arbitration jurisprudence as a guide to its decision-making. Using Paushok v. Mongolia as a framework, the authors have critically evaluated tribunals’ reliance on what they deem ‘leading authority’ and the reasoning process used. From this analysis, the authors propose standards for tribunals to consider in the application for issuance of interim measures in international investment arbitration under both ICSID and UNCITRAL Rules and discuss how each factor should be analysed, as well as the quantum of proof required for each. At a minimum, the authors hope that their proposed standards provoke discussion on whether there is in actuality a set of internationally recognised standards to be met before a tribunal will issue an order in support of interim measures, and if so what should provide the basis for that standard.