Request For Provisional Measures Research Articles

Provisional Measures Under ICSID Rules: The Power of Tribunals to Interfere with Domestic Criminal Proceedings

In several recent International International Centre for Settlement of Investment Disputes (ICSID) cases, investors accused the respondent state of unfairly using its criminal law enforcement powers to advance its position in the arbitration. If the investor turns to the tribunal to intervene by ordering provisional measures, the tribunal finds itself in the most uncomfortable position: at the heavily contested border between state sovereignty and the tribunal’s duty to safeguard the arbitration process. The latest decisions indicate that tribunals are prepared to step in and order the suspension of domestic criminal proceedings when presented with specific evidence of harassment or intimidation of claimants or witnesses. This article reviews these controversial cases, describes the situations in which a request for provisional measures can be successful, what exactly the investor is required to show, and how far tribunals have been willing to go. Provisional Measures, ICSID, Procedural Integrity, Equality of Arms, Criminal Proceedings, Criminal Investigation, Parallel Proceedings, Article 47, Sovereignty

Provisional Measures and the Link Requirement

Abstract In the context of requests for provisional measures, the link requirement has not attracted much scholarly attention and might be regarded as raising limited controversy. However, this article argues that the link is an unnecessary requirement for granting provisional measures by the International Court of Justice and the International Tribunal for the Law of the Sea. First, the function which the link purports to fulfil is already fulfilled by other requirements (i.e., prima facie jurisdiction, plausibility and real and imminent risk of irreparable prejudice). Second, if the link is understood as requiring provisional measures to be tailored to the rights of which protection is sought, the ICJ and ITLOS have the power to indicate measures different from those requested. One may suggest that the link therefore emerges as an unnecessary requirement which overburdens provisional measures proceedings.

The Jurisdiction to Prescribe 0Provisional Measures by the International Tribunal for the Law of the Sea: Evolving Jurisprudence and Aspects of the Implementation

This article aims to unveil various features of provisional measures, especially under the ITLOS jurisdiction. The jurisprudence of other international courts and tribunals are very essential to understand how ITLOS deals with a request for provisional measures. Therefore, comparing the jurisdiction and jurisprudence of the ITLOS with other courts and tribunals will help to reveal various aspects of the provisional measures.

Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Qatar v. United Arab Emirates): Request for the Indication of Provisional Measures (I.C.J.)

On July 23, 2018, the International Court of Justice (ICJ or Court) issued its Order on Qatar's request for provisional measures in the Qatar v. United Arab Emirates (UAE) case in which Qatar claims the UAE is responsible for violating the Convention on the Elimination of All Forms of Racial Discrimination (CERD or the Convention). The Court has previously ordered provisional measures under CERD in the context of the Ukraine v. Russia case and in the Georgia v. Russia proceedings. As is already apparent in the Order and the dissenting and separate opinions, the Qatar v. UAE case raises important issues pertaining to the interpretation of racial discrimination on the basis of “national origin” under Article 1(1) CERD as well as to the reading of the procedural conditions under Article 22 CERD.

ICSID provisional measures ‘in the round’

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)

Order on Request for Provisional Measures Issued by the President of the Appeals Arbitration Division of the Court of Arbitration for Sport

Order on Request for Provisional Measures Issued by the President of the Appeals Arbitration Division of the Court of Arbitration for Sport

Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when non-Compliance Is to Be Expected

The article builds upon research showing that compliance with Orders on Provisional Measures by the International Court of Justice in armed activities cases is significantly lower than with Judgments. I make the assumption that compliance is not expected by the requesting party in these situations, even though there are many such cases and even though they concern high-profile conflicts like the Georgia–Russia war of 2008. The purpose of international adjudication is therefore often something other than compliance. I suggest it is useful to examine these cases as a strategy of inflicting costs in an underlying bargaining situation. Requests for provisional measures are particularly useful from this perspective because the jurisdictional bar is low. This article examines how the rules governing provisional measures as they have developed in recent years in particular allow for such strategic usage and explores different ways requests for provisional measures can be used to inflict costs on an adversary. For instance, they create legal obligations between the parties, resulting in a new ‘shadow of the law’ in which they must bargain. They also allow one of the parties to briefly transform the non-zero-sum game of a bargaining situation to a zero-sum game it has good prospects of winning, thereby improving its relative bargaining power. Taking the focus away from compliance allows us to rethink the effectiveness of international adjudication and to consider the power of international institutions in a new light.

The “ARA Libertad”

On December 15, 2012, the International Tribunal for the Law of the Sea (Tribunal or ITLOS) ordered Ghana to resupply and, upon payment of security, to refuel and release the Argentine naval frigate ARA Libertad, which was being held by authorities in the Ghanaian port of Tema. The Tribunal ordered release of the vessel in response to Argentina’s request for provisional measures under Article 290(5) of the United Nations Convention on the Law of the Sea (Convention or UNCLOS). The Tribunal accepted Argentina’s prima facie showing that the Libertad, a tall, three-masted sailing ship commissioned in the Argentine Navy being used as a training vessel for officer cadets, qualifies as a “warship” under Article 29 of UNCLOS, and was therefore entitled to immunity and release to avoid irreparable harm to Argentina pending the final outcome of the case (paras. 93–95).

Dispute between Finland and Denmark on Shipping through the Great Belt

In May 1991, Finland filed an application with the International Court of Justice (ICJ) to institute proceedings against Denmark in regards to a planned fixed link across the Great Belt. Finland claimed that the construction of a bridge across the Great Belt would deny access to the North Sea from the Baltic Sea for vessels taller than 65 m. Denmark, however, claimed that vessels taller than 65 m could pass through the Sound instead of the Great Belt. Finland countered that because the depth of the Sound was half the depth of the Great Belt, the Sound could not be a suitable alternative route. In addition, Finland requested of the ICJ that provisional measures be taken, but Denmark opposed this request. In 1991, the ICJ rejected Finland’s request for provisional measures and strongly urged the parties to reach a settlement themselves through negotiations. In September 1992, the prime ministers of Denmark and Finland reached a settlement. Denmark agreed to pay Finland US$15 million; and in return, Finland withdrew the case from the International Court of Justice. This paper describes the arguments and proceedings in this international dispute, discusses the case, and draws lessons learned.

ATA Construction, Industrial and Trading Company v. The Hashemite Kingdom of Jordan Decision on Interpretation and on the Request for Provisional Measures

ATA Construction, Industrial and Trading Company v. The Hashemite Kingdom of Jordan Decision on Interpretation and on the Request for Provisional Measures

The Decision of the International Court of Justice in the Case Concerning Legality of Use of Force (Serbia and Montenegro v. Canada)

SummaryIn the spring of 1999, the NATO allies conducted a bombing campaign against the Federal Republic of Yugoslavia for several weeks. The campaign was a response to the failure of negotiations at Rambouillet, France, relating to a situation in Kosovo that United Nations agencies had characterized as a “humanitarian crisis.” In late April, only a few days after filing an Optional Clause declaration under the Statute of the International Court of Justice accepting the compulsory jurisdiction of the court subject to reservations, Yugoslavia initiated proceedings in the court against ten NATO allies, including Canada. The application was accompanied by a request for the indication of “provisional measures” pursuant to the statute, enjoining the NATO allies from continuing the use of force against Yugoslavia. Yugoslavia relied upon its new declaration and upon the compromissary clause of the Genocide Convention as grounds of jurisdiction. In June 1999, the court refused the request for provisional measures on the ground that it lacked prima facie jurisdiction. Canada and other remaining respondents filed preliminary objections on jurisdiction and admissibility. The objections on jurisdiction were based on the grounds that had been advanced at the provisional measures stage and largely endorsed by the court: first, that Yugoslavia was not then a member of the United Nations and was therefore not entitled to make an Optional Clause declaration; second, that the declaration was limited to future disputes; and, third, that the subject matter of the dispute was not covered by the Genocide Convention, which could therefore not be invoked to establish jurisdiction.Following oral hearings in April 2004, the court ruled in a judgment of 15 December 2004 that it lacked jurisdiction. The ruling was based exclusively on the fact that Yugoslavia lacked United Nations membership and standing in the court in 1999. The judgment concludes that the exception in Article 35(2) of the statute relating to “treaties in force” does not entitle a non-member of the United Nations to appear before the court in a matter related to the Genocide Convention, which the Court interprets as applying only to treaties in existence before 1945. This reasoning came as a surprise, since the court had assiduously avoided the issue of UN membership both in its provisional measures ruling and in its decisions in closely related proceedings taken by Bosnia and Croatia against Yugoslavia pursuant to the Genocide Convention. It remains to be seen how the judgment will be reconciled with rulings already made on jurisdiction in the proceedings taken by Bosnia, where jurisdiction has already been confirmed and where hearings on the merits are scheduled for 2006.

V. CASES BEFORE THE COURT

1. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro).The Republic of Bosnia and Herzegovina instituted proceedings against Yugoslavia on 20 March 1993 alleging violations of the 1949 Genocide Convention and requesting an indication of provisional measures which was made in an order of 8 April 1993.1This was reaffirmed in an order of 13 September 1993,2following a second request for provisional measures made by Bosnia and Herzegovina on 27 July 1993 and a request made by Yugoslavia on 10 August 1993.3By an order of 16 April 19934the following time limits were set for the filing of the written pleadings: Bosnia and Herzegovina, memorial, 15 October 1993; Yugoslavia, counter-memorial, 15 April 1994. By an order of 7 October 19935these were extended to: Bosnia and Herzegovina, memorial, 15 April 1994; Yugoslavia, counter-memorial, 15 April 1995 and, by order of 21 March 1995,6the date for the submission of the Yugoslavian counter-memorial was again extended to 30 June 1995. On 26 June 1995 Yugoslavia submitted preliminary objections which were rejected by the Court in its order of 11 July 1996.7By an order of 23 July 19968the time limit for filing the Yugoslav counter-memorial was fixed as 23 July 1997. The counter-memorial was filed on 22 July 1997 and contained counterclaims against Bosnia and Herzegovina and, in an order of 17 December 1997,9the Court held them to be admissible and that they formed a part of the current proceedings. These counter-claims were subsequently withdrawn at the request of Bosnia and Herzegovina, this being noted by the Court in its order of 10 September 2001.10The order of 17 December 199711set the following time limits for the written pleadings on the merits: Bosnia and Herzegovina, reply, 23 January,1998; Yugoslavia, rejoinder, 23 July 1998. By an order of 22 January 199812these were extended to: Bosnia and Herzegovina, reply, 23 April 1998; Yugoslavia, rejoinder, 22 January 1999. By an order of 11 December 199813the time limit for the submission of the Yugoslav rejoinder was further extended, to 22 February 1999.

The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua

A majority of the contentious cases brought to the International Court of Justice in recent years have involved questions of the legality of the use of force. This is a dramatic change in the subject matter of the Court's cases; Is it a dangerous development for the Court? In the Nicaragua case the USA argued strongly that such disputes were non-justiciable, but the Court summarily rejected its arguments. The first part of this article considers how far defendant states have subsequently challenged admissibility and jurisdiction in cases involving the use of force. Despite the rejection of the US arguments in the Nicaragua case, several states have reverted to these; this article considers whether their use by states which are not members of the Security Council may be more acceptable than by the USA. The second part of this article focuses on provisional measures. It discusses whether the significant increase in the number of requests for provisional measures shows the emergence of a special regime in cases involving the use of force, and examines the divisions within the Court as to whether there should be a modification of the normal requirements for an indication of provisional measures. It concludes by considering the view the Court has taken of its role as the principal judicial organ of the UN and of its relationship to the Security Council in cases involving the use of force.

An Overview of International Fisheries Disputes and the International Tribunal for the Law of the Sea

SummaryAlthough there have been few international adjudications dealing directly with fishing disputes in the past, all but one of the cases before ITLOS have been fisheries cases. This article first reviews the different ways in which a fisheries dispute can get before ITLOS and considers the disputes that have been on the docket of ITLOS so far. These have resulted in five decisions on requests for prompt release, two decisions on request for provisional measures, but only one decision on the merits of a dispute. The conclusion is that ITLOS has played a useful role in fisheries dispute settlement particularly when contrasted with the history of international dispute settlement for fisheries disputes.

The 2000 Judicial Activity of the International Court of Justice

The International Court of Justice bom opened and closed the year 2000 with an unprecedented docket of twenty-four cases; during the year, one case was concluded by ajudgment, and a new one was filed.1 Most of the Court's cases, however, were still in “midstream,” with the parties still exchanging written pleadings. The Court held oral proceedings during 2000 in just five cases: final hearings on the merits in two, hearings on jurisdiction leading to ajudgment in a third, and two requests for provisional measures, one granted and the other not. The year was marked by other events of interest, including some that signal important changes in the Court's procedures.

II. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda): Provisional Measures

It might be thought an unusual or peculiar feature of international relations that, on occasion, States engaged in an armed conflict decide to appeal to international law and institutions for the provision of immediate judicial remedies.2 Yet, within the short space of 14 months, the International Court of Justice has twice found itself on the receiving end of such requests: in the first of these cases, the Federal Republic of Yugoslavia (FRY) filed an application on 29 April 1999 against 10 Member States of NATO for using armed force against the FRY in March 1999. At the same time, the FRY made a request for provisional measures, in which it asked the Court to indicate that the States involved “cease immediately [their] acts of use of force” and “refrain from any act of threat or use of force” against the FRY.3 In June 1999 the Court dismissed this request.4

The Lockerbie case continues

THE background to the Cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Jurisdiction and Admissibility) 1998 I.C.J. Rep. is well known; in 1988 Pan Am Flight 103 was blown up over Scotland and 270 people were killed. The USA and the UK accused two Libyans of the bombing and sought their extradition. Libya argued on the basis of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation that it was not bound to extradite its own nationals but could try them in its own courts, if appropriate. Libya took the cases to the International Court of Justice. It failed in its requests for provisional measures (see Lowe, (1992) 51 C.L.J. 408), but continued with its claims that the USA and the UK should respect its rights under the Montreal Convention and not put pressure on it to surrender the accused. The respondents made preliminary objections to the jurisdiction of the Court and to the admissibility of the application.

The International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea is one of the “compulsory procedures entailing binding decisions” provided for in Article 287 of the Convention. The Tribunal is established by Annex VI to the Convention which is its Statute. Within the Tribunal is established the Seabed Disputes Chamber which has jurisdiction to deal with respect to deep-sea mining activities covered by Part XI of the Convention.The Tribunal performs three different but closely related functions. The first is to offer a forum of choice for states parties to the Convention to settle disputes concerning the interpretation or application of the provisions of the Convention. The second function is to provide a special, and largely mandatory, procedure for dealing with disputes in connection with the interpretation and application of the provisions of Part XI of the Convention. This is the function of the Seabed Disputes Chamber. The Chamber also has competence to give advisory opinions on legal questions arising within the scope of the activities of the Assembly and Council of the International Seabed Authority. Thirdly, the Tribunal serves as a residual and compulsory mechanism for the settlement of certain disputes identified by the Convention as requiring expeditious decision, such as applications for the prompt release of arrested vessels and crew or requests for the prescription of provisional measures pending final decisions in cases. The Tribunal may also deal with disputes arising under other maritime agreements, if the agreements so provide.The Tribunal commenced operations in October 1996. It has completed organizational work for its administrative judicial functions. It has adopted its Rules, the Resolution on the Internal Judicial Procedure and Guidelines to assist parties appearing before it. It has also established special Chambers. The Tribunal has already dealt with one application for the prompt release of a vessel and crew arrested in a foreign port and one request for provisional measures. Proceedings are in progress on the merits of the first case submitted to it.

International Centre for Settlement of Investment Disputes Arbitral Tribunal: Decision on Request for Provisional Measures in Arbitration between AMCO Asia Corporation et al. and Indonesia

International Centre for Settlement of Investment Disputes Arbitral Tribunal: Decision on Request for Provisional Measures in Arbitration between AMCO Asia Corporation et al. and Indonesia