chapter 6

Preliminary Matters: Objections, Bi-furcation,

Request for Provisional Measures

Andrea Carlevaris

1 Introduction

This chapter deals with preliminary matters that arbitral tribunals and arbitral
institutions may have to decide at an early stage of the proceedings.
These preliminary matters include jurisdictional and other objections, early
disposal of manifestly unmeritorious claims and requests for conservatory and
provisional measures. These matters are obviously not exclusive to investor-
state disputes, as they are also very common in commercial arbitration pro-
ceedings. However, they present specific characteristics that justify a separate
analysis in the context of investment arbitrations.
Investor-state disputes may be resolved by arbitration under the ICSID
Convention and the ICSID Arbitration Rules, under the ICSID Additional
Facility Rules, in ad hoc proceedings that are frequently under the UNCITRAL
Rules,1 or under other institutional rules.
This chapter examines the abovementioned preliminary issues in the con-
text of international investment arbitration comparing the applicable rules
and the relevant practices in different fora. For this purpose, in addition to
the ICSID Convention and Arbitration Rules and the UNCITRAL Rules, this
chapter also considers the Additional Facility Rules of ICSID, the Arbitration
Rules of the International Chamber of Commerce (“ICC”) and the Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”).

1 For a 2008 survey showing that 80 of the cumulative 290 investment treaty disputes (exclud-
ing those exclusively based on investment contracts) were resolved using the UNCITRAL
Rules, see UNCTAD, Latest Developments in Investor-State Dispute Settlement, IIA Monitor
No. 1, at 1, n. 1 (2008), UNCTAD/WEB/ITE/IIA/2008/3. For the overall numbers of ICSID and
non-ICSID investment arbitrations in the period 1987–2013 (showing that, of the 57 new arbi-
trations filed in 2013, 31 were filed under the ICSID and Additional Facility Rules, 20 under
the UNCITRAL Rules and three under the SCC Rules), see UNCTAD, Latest Developments in
Investor-State Dispute Settlement, IIA Issues Note No. 1, at 2, April 2014; see also Christopher
Dugan, Don Wallace, Noah Rubins & Borzu Sabahi, Investor-State Arbitration 77 (Oxford
University Press, 2008).

© koninklijke brill nv, leiden, ���4 | doi 10.1163/9789004276574_007

174 Carlevaris

Preliminary objections, requests for dismissal of manifestly unmeritorious

claims and requests for provisional measures are very different in nature and
effects. However, they share the procedural aim of avoiding a successful party
bearing the negative consequences of the duration of the proceedings. Specific
procedural tools allow the swift determination of these issues. In the case
of preliminary objections and objections to unmeritorious claims, the appli-
cable procedural mechanisms aim primarily at protecting the respondent’s
interest in avoiding the costs and the time involved in allowing the case to
proceed in the absence of some of the necessary jurisdictional requirements
or other bases.2 Though this aspect is not exclusive to investment arbitration,
it is particularly relevant in this context, due to the states’ expectation to avoid
having to defend claims that should not have been brought in the first place,
not least for the effect of unfounded claims on the state’s reputation.3 On
the other hand, the regime of interim measures focuses on the claimant’s (or
counterclaimant’s) interest in avoiding that the duration of the proceedings
renders the final award meaningless.
This chapter examines first the screening role of the arbitral institutions
with respect to jurisdictional objections (2). It then deals with the determi-
nation by arbitral tribunals of jurisdictional and other preliminary objections
(3), focusing in particular on the bifurcation of the proceedings (4). The early

2 See Aïssatou Diop, Objection under Rules 41(5) of the ICSID Arbitration Rules, 25 ICSID
Review—Foreign Investment L.J. 319 (2010) (referring to Art. 36(3) of the ICSID
Convention and Rule 41(5) of the ICSID Arbitration Rules) (on which see below, Sections 2
and 5 respectively). “One important similarity is that the purpose of Article 36(3) is to avoid
the unnecessary deployment of financial and other resources by parties in cases where a
significant flaw that is evident from the initial stage would make it impossible for a case to
move forward [. . .] Likewise, dismissal of a claim for want of legal merit under Rule 41(5) may
save the parties tremendous resources.”
3 See UNCTAD, Investor-State Dispute Settlement and Impact on Investment Rulemaking, in IIA
Monitor, 2007, available at: http://unctad.org/en/Docs/iteiia20037_en.pdf, p. 82: “The sig-
nificant increase in investment disputes over the last decade has given rise to the concern
that investors may abuse the system. Investors may be eager to claim as many violations of
the applicable IIA [International Investment Agreement] as possible in order to increase
their chances of success. This may take a heavy toll in terms of time, effort, fees and other
costs, not only for the parties to the dispute, but also for the arbitral tribunal. It is within
this context that several countries have advocated a procedure to avoid “frivolous claims” in
investment-related disputes, namely claims that evidently lack a sound legal basis.” See also
Thomas H. Webster, Efficiency in Investment Arbitration: Recent Decisions on Preliminary and
Costs Issues, Arbitration Int’l 471 (2009) (“The basic point is that governments and institu-
tions expect to see some effort to avoid having to deal with claims (or at least the merits of
claims) that should never have been brought in the first place.”).