DR.

RAM MANHOAR LOHIA NATIONAL

UNIVERSITY, LUCKNOW
2020-25
Project

PUBLIC INTERNATIONAL LAW

1
SUBMITTED TO: SUBMITTED BY:
DR. ABDULLAH NASIR
ASST.PROFESSAR IVth SEMESTER
(PUBLIC INTERNATIONAL LAW) SECTION- A
200101044

ACKNOWLEDGMENT
I would like to express my special thanks of gratitude to my teacher Dr. Abdullah Nasir who
gave me the golden opportunity to do this wonderful project on the topic “Provisional Measures
in International Law, and its Importation in the Regime of International Investment
Arbitration”, he has been constantly supporting me, guiding me and helping me with all my
queries and difficulties regarding this project since its fledging stage. Without his help this
project would have been a Herculean task.

Through this topic I get the opportunity to do lots of research, this result in so much new
knowledge which would help me further for new projects.
I would also like to thank my friends and seniors who helped me a lot in finalizing this project
within the limited time frame and make this project even better.

I would like thank the librarians of Dr. Madhu Limaye library for helping me find the correct
resources for my research and for helping me enrich my knowledge.

I know that despite my sincerest efforts some discrepancies might have crept in, I hope and
believe that I would be pardoned for the same.

Thank You,

2
 TABLE OF CONTENTS

INTRODUCTION.......................................................................................................................................3

I. PROVISIONAL MEASURES IN INTERNATIONAL LAW.....................................................................4

II. PROVISIONAL MEASURES IN THE SPHERE OF INTERNATIONAL INVESTMENT ARBITRATION,

WITH SPECIAL REFERENCE TO ICSID TRIBUNALS...............................................................................8

III. THE REQUIREMENT OF PRIMA FACIE JURISDICTION.............................................................10

IV. THE REQUIREMENT OF URGENCY FOR GRANT OF PROVISIONAL MEASURES......................14

V. THE REQUIREMENT OF NECESSITY FOR GRANT OF PROVISIONAL MEASURES........................18

VI. AN ASSESSMENT OF PROPORTIONALITY: A NEW DEVELOPMENT UNDER THE ICSID

FRAMEWORK?.......................................................................................................................................24

CONCLUSION.........................................................................................................................................25

3
 INTRODUCTION

Provisional measures are interim measures intended to make “States act, or more usually refrain
from acting, in certain ways for a period of months, or possibly years, until the case is finally
disposed.”1 Since their inception, such measures’ sole purpose has been to better protect the
rights of the parties and facilitate the orderly conduct of judicial proceedings.2

This paper will analyze the jurisprudence regarding provisional measures developed by the
International Court of Justice and thereby trace the position of provisional measures in
International law. In doing so the authors will study in detail, the criteria and the requirements
for granting such measures in international law, which have been shaped by the practice of the
Court. Further, the authors will also examine the importation of the concept of provisional
measures into the evolving sphere of international arbitration. Focus will be provided in the
sphere of international investment arbitration due to its origins in public international law as
opposed to commercial arbitration which comes under the ambit of Conflict of Laws.

A vast majority of investor-state arbitrations are initiated on the basis of arbitration agreements,
which entail either a bilateral investment treaty (BIT) or a multilateral investment treaty (MIT),
such as the North American Free Trade Agreement (NAFTA). 3 These arbitrations are most often
governed by the Arbitration Rules of the International Centre for Settlement of Investment
Disputes (ICSID), or UNCITRAL or the rules of the Stockholm Chamber of Commerce (SCC)

1
J. G. Merills, Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice, 44,
No. 1, The International and Comparative Law Quarterly, 90-146 (1995).
2
SHABTAIROSENNE, PROVISIONAL MEASURES IN INTERNATIONAL LAW: THE INTERNATIONAL COURT OF JUSTICE
AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, (2005).

3
Gabrielle Kaufmann-Kohler & Michele Potesta, Interim Relief in Investment Arbitration, in ARBITRATION UNDER
INTERNATIONAL INVESTMENT AGREEMENTS – A GUIDE TO THE KEY ISSUES (2018).

4
or the International Chamber of Commerce (ICC).4 This paper will exclusively focus on
provisional measures in the context of proceedings governed by the ICSID Arbitration Rules,
since these are the arbitration rules which are most commonly used in the context of investor-
state disputes in international investment arbitration.

The authors will engage in a comparative analysis of the use of provisional measures by the
International Court of Justice and the ICSID Tribunals. In light of the above, this paper will be
divided into six parts. Part I will entail an analysis of provisional measures in international law
through the lens of the practice of the International Court of Justice. Part II will examine the
importation of this international law concept into the sphere of international investment
arbitration, specifically by ICSID tribunals. The rest of the paper will delve into a detailed
analysis of the requirements for granting provisional measures in international law and will
compare it with the practice of ICSID tribunals which have shaped these same criteria according
to their own specificities. In pursuance of this, Part III of the paper will discuss the requirement
of prima facie jurisdiction to hear a request for provisional measures. Part IV will discuss the test
of urgency. Part V will analyze the requirement of necessity and its link with irreparable harm,
and finally, Part VI will determine the emerging requirement of proportionality and its relevance.
At the end of this paper the authors will offer concluding remarks for the analyses they have
undertaken.

I. PROVISIONAL MEASURES IN INTERNATIONAL LAW.

Provisional Measures are interim measures of protection provided for under Article 41 of the
Statute of the International Court of Justice, inherited from its predecessor, the Permanent Court
of International Justice.5 These measures are deemed to be an essential instrument of any judicial
process as they are intended to preserve, the respective rights of the parties before the Court,
pending a final decision.6

4
Id.

5
United Nations, Statute of the International Court of Justice, 1946, Art. 41; League of Nations, Statute of the
Permanent Court of International Justice, 16 December 1920, Art 41.
6
Shigeru Oda, Provisional Measures: The Practice of the International Court of Justice, in FIFTY YEARS OF
THE INTERNATIONAL COURT OF JUSTICE (1996).

5
Effectively, the existence of recourse to interim measures provides a possibility of improving the
acceptability of the Court to the states.7 This is because, the major hesitation which states have to
submit to the jurisdiction of the Court concerns the length of time which elapses before a final
judgement is rendered. Interim relief through provisional measures, prior to a final decision,
therefore reduces this concern regarding the lengthiness of the adjudication process. 8 In light of
this, a request for provisional measures if given preference and the urgency which these
measures require is given due deference as is reflected in Article 74 of the Rules of Court, which
specifies a request for the indication of provisional measures by any party shall have priority
over all other cases.9In fact, if the Court is not in session when a request is made, it shall be
“convened forthwith for the purpose of proceeding to a decision on the request as a matter of
urgency”.10

Article 66(1) of the Rules of the Court state that a request for provisional measures can be made
at any time during the proceedings of the case in connection with which it is made. 11 Therefore,
the International Court of Justice does not have the power to issue provisional measures
independently, until the main action has been brought in accordance with Article 40 of the
Court’s Statue.12 This was even recognized by the PCIJ in the Case concerning the Legal Status
of the South-Eastern Territory of Greenland.13 However, apart from this sole requirement of the
institution of the proceedings being made, interim measures do indeed have an independent basis
in order to provide for an expeditious remedy in pursuance of its objective. 14 In fact, provisional

7
Peter J. Goldsworthy, Interim Measures of Protection in the International Court of Justice, 68, No.2, AJIL, 258-
277 (1974).
8
Leo Goss, The International Court of Justice: Consideration of Requirements for Enhancing its Role in the
International Legal Order, 65 AJIL 280 (1971).
9
Rules of the International Court of Justice, 1978, Art. 74.

10
Id.

11
Rules of the International Court of Justice, 1978, Art. 66(1).

12
Supra note 7.

13
Legal Status of South-Eastern Territory of Greenland (Nor. v. Den.), 1933 P.C.I.J. (ser. A/B) No. 55 (Order of
May 11).
14
Supra note 1.

6
measures are a part of the Court’s incidental jurisdiction and not substantive jurisdiction which
follows from articles 36(1) and 36(2). Therefore, for a court to exercise its power under Article
41, it need not satisfy the substantive jurisdictional requirements as that would frustrate the
preference given to such a request and enhance the damage that these very measures are
designed to protect against.15 It is therefore well established through the practice of the Court that
an order of interim measures can be made without first resolving contested issues of jurisdiction
and, it also follows from this that such consideration in no way prejudices its later decision on
jurisdictional questions.16 However, jurisdiction cannot be sidelined for the purposes of
adjudication upon a request for provisional measures and therefore, the Court must satisfy itself
with the bare necessity of a prima facie existence of jurisdiction.17

The objective of provisional measures is to safeguard the rights of the parties to the dispute, and
this is not limited merely to one party, which at the outset brings its request before the Court. 18 In
fact, it is perfectly permissible for both parties to a dispute to request for provisional measures. 19
This can either happen simultaneously, as was seen in the case of Frontier Dispute, or one as a
counter to the other, as was observed in the Genocide Convention case.20 Since it is well
accepted that the ultimate purpose of these measures is to Preserve the rights of the parties, the
Court must be wary of causing any prejudice to rights which are the subject of dispute in judicial
proceedings.21 Even in the case of Frontier Dispute, the Court remarked that it must be ensured
by the Court while making its decision that it does not pre-judge the merits of the case in any
way.22

15
Supra note 2.

16
Id.

17
J.A. Frowein, The International Court of justice, in, A HANDBOOK ON INTERNATIONAL ORGANIZATIONS, (1998).

18
Supra note 2.

19
Supra note 1.

20
Frontier Dispute (Burkina Faso v. Republic of Mali), Provisional Measures Order, [1986] ICJ Rep 3; Application
of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and Herzegovina v.
Yugoslavia) Order of the Court on Provisional Measures, [1993] ICJ Rep 3, 25.

21
Supra note 17.

22
Frontier Dispute (Burkina Faso v. Republic of Mali), Provisional Measures Order, [1986] ICJ Rep 3.

7
It is to be noted that the wordings of Article 41 only provide that the Court may ‘indicate’
provisional measures if it is satisfied.23 This by itself makes it difficult to understand the exact
nature of the force of a decision on provisional measures rendered by the Court, and therefore
has been subject to much debate. The weak connotations of the words ‘indicate’ and ‘suggested’
measures can easily be interpreted to indicate that provisional measures have no binding force in
the international framework.24 This view was supported by the Nicaragua case as well, wherein
it was observed that “it is incumbent on each party to take the Court’s indication seriously into
account, and not to direct its conduct solely by reference to what it believes to be its rights.” 25
However, the approach of the Court shifted considerably upon the decision in the La Grand
case.26 In this case, it was observed that, contextually, Article 41 was designed to prevent the
Court from being hindered in its functions and even the object and purpose of the Statute in
general, was to enable the court to fulfill its basic function of settlement of international disputes
through binding decisions.27Further, it was observed that even though the Court may not impose
sanctions on a State that has failed to comply with the ‘indicated’ provisional measures, it is not
a matter that can be deliberately overlooked by a party.28Therefore, in light of this, it was
conclusively interpreted that the power to indicate provisional measures necessarily required it to
have some legally binding effect .29 Subsequently in the jurisprudence of the Court, this view has
been followed.30

23
United Nations, Statute of the International Court of Justice, 1946, Art. 41.

24
Supra note 17.

25
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
[1986] ICJ Rep 14.

26
LaGrand (Germany v United States), Provisional Measures Order, [1999] ICJ Rep 9.

27
Xiaodong Yang, Thou Shalt Not Violate Provisional Measures, 60, No. 3, The Cambridge Law Journal, 441-446
(2001).
28
Supra note 2.

29
Supra note 26.

30
Supra note 17.

8
Having entertained nearly 50 requests for provisional measures since its inception, the practice of
the Court has evolved certain preconditions for granting a request for provisional measures. In
this regard, the Court must be satisfied that: (i) it has prima facie jurisdiction in respect of the
claim; (ii) the right in respect of which protection is sought bears a reasonable link to rights
claimed on the merits; (iii) the rights asserted on merits is ‘plausible’(iv) and finally, that there is
a risk of irreparable prejudice to the right which could materialize prior to final determination of
the dispute.31

II. PROVISIONAL MEASURES IN THE SPHERE OF INTERNATIONAL INVESTMENT

ARBITRATION, WITH SPECIAL REFERENCE TO ICSID TRIBUNALS.

The importance and prevalence of provisional measures is not just limited to the realm of public
international law. It has percolated beyond the regime of state-state disputes, into the new and
emerging realm of international arbitration which involves investor-state disputes.

The process of arbitration in the international sphere is accompanied by procedural safeguards

and opportunities for all parties to be heard, in pursuance of the principles of natural justice. 32Just
like in the sphere of public international law, these procedural protections can inevitably lead to
delay in the ultimate resolution of the parties’ dispute which has the possibility of irreparably
prejudicing the rights of a party.33In the regime of investment arbitration which involve long-
term assets, classic examples include “dissipation of assets, destruction of evidence, loss of
market value of property, disruption of a joint venture’s operations, destruction of an ongoing
business and disclosure or misuse of intellectual property.”34Damages of these kind can be
aggravated in such scenarios where one party deliberately seeks to create delays in the dispute
resolution procedure, in order to improve its “overall tactical or commercial position or exert

31
Supra note 2; Jadhav (India v. Pakistan) Provisional Measures [2017] ICJ GL No 168; C Miles, Provisional
Measures before International Courts and Tribunals (CUP 2017).
32
Gary B. Born, Provisional Relief in International Arbitration, in INTERNATIONAL COMMERCIAL ARBITRATION
(2014).
33
CHRISTOPH H. SCHREUER, THE ICSID CONVENTION: A COMMENTARY (2009); Id.

34
Supra note 32.

9
pressure on its adversary.”35 Therefore, the grant of interim relief through provisional measures
becomes all the more important at this juncture to preserve the rights of the parties.36

The power of an ICSID Tribunal to grant a request for provisional measures under the
investment arbitration framework is derived from Article 47 of the ICSID Convention and Rule
39 of the ICSID Rules and Regulations.37Provisional measures under ICSID Convention and
Rules have been modelled on Article 41 of the Statute of the Court.38Much like in the
international law sphere, initially, the legal authority of provisional measures were moot due to
the use of the term ‘Tribunal shall recommend’ being used in Article 47 of the ICSID
Convention. In fact, there was a reluctance in making provisional measures mandatorily binding
upon parties, as was reflected in the traveaux preparatoires of the Convention.39 However,
taking a cue from the jurisprudence of the Court, the Tribunals through their practice ensured
that provisional measures have binding effect on the parties.40 The Tribunal in Maffezini v. Spain
in this regard observed that the authority of a tribunal to recommend provisional measures was
“no less binding than that of a final award” and hence concluded that it deemed “the word
‘recommend’ to be of equivalent value to the word ‘order’.”41 Subsequently, this view was
unanimously upheld by numerous tribunals like Pey Casado v. Chile, Tokios Tokeles v. Ukraine
Occidental v. Ecuador, etc.42

35
Id.

36
Supra note 33.

37
Convention on Settlement of Investment Disputes between States and Nationals of other states, 1966, Article 47;
ICSID Convention Arbitration Rules, 2006, Rule 39.
38
HISTORY OF THE ICSID CONVENTION, DOCUMENTS CONCERNING THE FORMULATION OF THE CONVENTION ON
THE SETTLEMENT OF INTERNATIONAL INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER
STATES, Volume II-2 (1968), pp. 668, 813.
39
Supra note 33.

40
Id.

41
Maffezini v. Spain, ICSID Case No. ARB/97/7, Decision on Request for Provisional Measures (1999), ¶9.

42
Victor Pey Casado v. Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures (2001); TokiosTokeles
v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1 Claimant’s Request for Provisional Measures (2003);
Occidental Petroleum v. Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures (2007).

10
Much like in international law, the grant of provisional measures requires the satisfaction of the
preconditions of establishing prima facie jurisdiction and the tests of necessity urgency and
irreparable harm.43 However, despite their international law background, investment arbitration
tribunals have specifically mouldedprovisional measures to suit investor-state disputes and
therefore they have certain unique characteristics.44 The difference lies in the international
investment sphere, in requiring to demonstrate the existence of ‘rights susceptible of
protection.’45

Arbitration Rule 39(1) of the ICSID Rules and Regulations requires a party requesting
provisional measures to, inter alia, specify the right to be protected. 46 In light of this, the parties
requesting provisional measures before investment arbitration tribunals invoke a number of
different rights to be protected such as the right to non-aggravation of the dispute and
maintenance of status quo, the non-frustration of the eventual award and the rights in dispute. 47
Moreover, as was observed by the Biwater Gauff v. Tanzania Tribunal, the investment arbitration
sphere also provides equal protection to procedural rights along with rights substantive to the
dispute.48 Therefore, the procedural rights of the parties in the arbitration such as the
‘preservation and production of evidence’, the ‘exclusive nature of ICSID arbitration’ and the
‘confidentiality of proceedings’ are also frequently invoked rights which warrant protection by
the respective Tribunals. The protection of such procedural rights of confidentiality and evidence
are unique to the international arbitration sphere as they involve assets of individuals or legal
entities which a State has failed to protect.

43
Loretta Malintoppi, Provisional Measures in Recent ICSID Proceedings: What Parties Request and What
Tribunals Order, in INTERNATIONAL INVESTMENT LAW FOR THE 21ST CENTURY: ESSAYS IN
HONOUR OF CHRISTOPH SCHREUER (2009).
44
Gabrielle Kaufmann-Kohler & Michele Potesta, Interim Relief in Investment Arbitration, in ARBITRATION UNDER
INTERNATIONAL INVESTMENT AGREEMENTS – A GUIDE TO THE KEY ISSUES (2018).
45
Supra note 33; Supra note 43.

46
ICSID Convention Arbitration Rules, 2006, Rule 39(1).

47
Supra note 33.

48
Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 3 (2006).

11
 III. THE REQUIREMENT OF PRIMA FACIE JURISDICTION.

A request for provisional measures serves to institute proceedings which bear a reasonable nexus
to the proceedings on the merits and therefore, one may tend to wonder whether the jurisdiction
of the Court is a precondition for the grant of the said interim measures. 49Such a question is in
line with the general principle of burden of proof viz. actori incumbit probation, stating that a
party claiming an assertion must prove the same. 50 However, as aforementioned, by giving due
deference to the nature and urgency of provisional measures, it might be counter-productive to
require the satisfaction of jurisdiction at such an early stage as it would frustrate the very
objective of immediately preserving the rights of the parties.

This question regarding a jurisdictional link while determining the question of provisional
measures was encountered by the Court in the Anglo Iranian Oil Company case.51 Herein it was
observed that that the Court’s power to indicate provisional measures is drawn from the “special
provisions” of Article 41, of the Statute which is “entirely different” from the general rules laid
down in Article 36 of the same.52 The Court noted that it could not “be accepted a priori that a
claim based on such a complaint falls completely outside the scope of international
jurisdiction.”53 Therefore, the majority took the view that given that there is at least some
‘possibility’ that the complaint by the United Kingdom would fall within the jurisdiction of the
Court, an indication for the requested provisional measures may be provided.54

49
Supra note 6.

50
MOJTABAKAZAZI, BURDEN OF PROOF AND RELATED ISSUES: A STUDY ON EVIDENCE BEFORE INTERNATIONAL
TRIBUNALS, (1996).

51
Anglo Iranian Oil Company (United Kingdom v. Iran), Provisional Measures Order, [1951] ICJ Rep 89.

52
Id.; Peter J. Goldsworthy, Interim Measures of Protection in the International Court of Justice, 68, No.2, AJIL,
258-277 (1974).
53
Supra note 51.

54
Id.

12
This test of ‘possibility’ was subsequently developed in the Fisheries Jurisdiction case55 and the
Nuclear Tests case56, wherein it was stated that “the Court need not, before indicating provisional
measures finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought not
to indicate such measures unless the provisions invoked by the Applicant appeared, prima facie,
to afford a basis on which the jurisdiction of the Court might be founded.” 57 This test was
thereafter routinely upheld in subsequent cases like Aegean Sea Continental Shelf case,58Tehran
Hostages case,59Application of the Genocide Convention case60 and the like. This newly
developed prima facie test for jurisdiction was functionally qualified in Judge Higgins’ separate
opinion in the Oil Platforms case wherein it was stated that in order to accept the plausibility of
the Iran’s complaint, the Court must “accept pro tem the facts as alleged by Iran to be true and in
that light to interpret Articles 1, IV and X for jurisdictional purposes - that is to say, to see if on
the basis of Iran's claims of fact there could occur a violation of one or more of them.”61

In the sphere of investment arbitration, specifically in the context of ICSID tribunals, the prima
facie test has been imported from the jurisprudence of the Court. 62 Professor Schreuer himself
refers to the Case Concerning Pulp Mills on the River Uruguay, wherein it was held that “ in
dealing with a request for provisional measures the Court need not finally satisfy itself that it has
jurisdiction on the merits of the case but will not indicate such measures unless there is, prima
facie, a basis on which the jurisdiction of the Court might be established.”63 With regards to the

55
Fisheries Jurisdiction (United Kingdom v. Iceland), Order on Provisional Measures, [1972] ICJ Rep 12, 30.

56
Nuclear Tests (Australia v. France), Order on Provisional Measures, [1973] ICJ Rep, 99.

57
Id.

58
Aegean Sea Continental Shelf (Greece v. Turkey) Order on Interim Measures of Protection, [1976] ICJ Rep 3.

59
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Provisional Measures
Order, [1979], ICJ Rep 3.
60
Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia and
Herzegovina v. Yugoslavia) Order of the Court on Provisional Measures, [1993] ICJ Rep 3, 25.
61
Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection, Separate Opinion
Shahabuddeen,[1996] ICJ Rep 856.
62
Supra note 33.

63
Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Order on Provisional Measures, [2007]
ICJ, GL 135.

13
prima facie test for jurisdiction, the ICSID Convention has a special feature which is of
assistance. Art. 36(3) of the ICSID Convention provides that the Secretary-General of the Centre
shall register a request for arbitration unless and until he finds that the dispute is ‘manifestly
outside the jurisdiction of the Centre’.64 Therefore, distinct from other procedures involving
State-to-State dispute resolution cases brought before the Court, there is a preliminary
examination of jurisdiction before the tribunal is even constituted and the case is even heard. 65
This registration of request however in no way precludes an examination of jurisdiction by the
Tribunal, however, it may be indicative in order to determine prima facie jurisdiction.66

It is clear from ICSID Practice that a party may be exposed to a jurisdictional challenge despite
its request for provisional measures and even after the requested measures have been
recommended, a Tribunal may rule negatively in favor of its competence. 67 In fact, in the case of
Victor Pey Casado v. Chile, the Respondent state had requested for provisional measures against
the Claimant despite having raised jurisdictional questions before the Tribunal. 68 This conduct
was recognized by the tribunal as a natural exercise of its powers to recommend provisional
measures under Article 47 of the Convention and Arbitration Rule 39. 69 The Tribunal in Tokios
Tokeles v. Ukraine had reaffirmed that such a prima facie determination would in no way
prejudge the question of jurisdiction and that the latter would still remain an independent
determination that would have to be dealt with the tribunal once a decision on provisional
measures was taken.70The majority of the ICSID tribunals appear to rely now upon the prima
facie test in line with the jurisprudence of the International Court of Justice. 71 However, the
rigorousness with which the prima facie test is met depends from case to case. Recently in cases

64
Convention on Settlement of Investment Disputes between States and Nationals of other states, 1966, Art. 36 (3).

65
Supra note 33.

66
Id.

67
Supra note 3.

68
Victor Pey Casado v. Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures (2001)

69
Id.

70
TokiosTokeles v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1 Claimant’s Request for Provisional Measures
(2003).
71
Supra note 3.

14
like Italba v. Uruguay, and Churchill Mining v. Indonesia, the tribunals have sought to satisfy
themselves that the jurisdictional requirements under Article 25 of the ICSID Convention, i.e.
jurisdiction rationaemateriae, rationae personae and rationaevoluntatis are prima facie met in
the given cases.72

IV. THE REQUIREMENT OF URGENCY FOR GRANT OF PROVISIONAL MEASURES.

The ICJ’s perspective regarding the requirement of urgency

In addition to the prima facie jurisdiction of the Court, plausibility of the rights and existence of
a link between the rights and object sought by the parties, it is also pertinent to establish that the
situation requires urgency.73The party should establish that the matter is urgent and measures
need to be taken albeit the Court is yet to hear about the actual merits of the case. Article 41 of
the ICJ statute did not specifically embodied the requirement to prove urgency. But the
jurisprudence of Provisional Measures and latent meaning of the words used in the statute have
made the requirement of urgency as a mandatory threshold for provisional measure.74The Courts
have considered the requirement of urgency at length. The requirement for urgency is fulfilled
when there is a risk which is so imminent that action prejudicial to the rights of either party
might be taken before the Court has rendered its final award in the respective cases. 75Further, the
courts have emphasized on the harm which become imminent if the sought provisional measures
are not granted.76Several other courts have taken the stance that the urgency can be best

72
Italba Corporation v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9, Decision on Claimant’s
Application for Provisional Measures and Temporary Relief (2017); Churchill Mining v. Indonesia, ICSID Case No.
ARB/12/14 and 12/40, Procedural Order 3 (2013).
73
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Provisional Measures, [2008] ICJ Rep 353; Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Provisional Measures, [2009] ICJ Rep 114.
74
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, [2006] ICJ Rep 113.

75
Passage through the Great Belt (Finland v. Denmark), Provisional Measures, [1991] ICJ Rep 12; Certain Criminal
Proceedings in France (Republic of the Congo v. France), Provisional Measure, [2003] ICJ Rep 102.
76
Tafsir Malick Ndiaye, Provisional Measures before the International Tribunal for the Law of the Sea, CURRENT
MARINE ENVIRONMENTAL ISSUES AND THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE
SEA, (2001).

15
described as the situations that are ‘unstable and could rapidly change’.77 Thus the evolving
nature of urgency is such that either party cannot wait the final outcome of the decision.

The urgency of the situation has been analyzed by the Courts on a case-by-case basis, and by
depending on the factual matrix of the case. The courts have relied on the traditional approach by
equating the requirement of urgency to ‘time constraint’ i.e. a need for a measure in a very short
period of time.78

The concept of time constraint can be understood from cases of ICJ. In Paraguay v. USA, a
Paraguayan national named Mr. Angel Francisco was sentenced to death in Virginia on 14 th April
1998.79 In the same month on 3rd April 1998, Paraguay filed a case in the Court against USA on
the ground that Mr. Angel was not given any consular access after his arrest and when his
criminal proceedings were pending. Paraguay also argued that under article 41 of the ICJ statute,
their case should be heard on an urgent basis as the risk involved in it was imminent. The
provisional measures were necessary as the said execution would render the disposition of the
award futile. The Court while elaborating on the harm inflicted on Paraguay granted provisional
measures and stated that “the carrying out of such an execution would render it impossible for
the Court to order the relief that Paraguay seeks [on the merits] and thus cause irreparable harm
to the rights it claims.”80

On the other hand, in the Case Concerning Construction of a Road in Costa Rica along the San
Juan River, the Court was of the view that Nicaragua failed to show that the risk involved was
imminent in nature. Therefore, the provisional measure sought was not granted.81

77
Supra note 73.

78
Id.

79
Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, [1998]
ICJ Rep 248.
80
Id.

81
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures,
[2013] ICJ Rep 354.

16
Thus, urgency means that the request to preserve rights through provisional measures must be
rapidly and appropriately dealt with. In the same vein, urgency is an essential threshold without
which the sought measures cannot be recommended within the meaning of the Convention.82

The urgency requirement under the ICSID Framework

Article 47 of the ICSID Convention does not prescribe the degree of urgency required to grant
provisional measures. The investment arbitration tribunal’s decision has embodied the
philosophy of the ICJ judgment in determining the threshold for urgency. The tribunal has said
that the requirement of urgency depends on the facts and circumstances. 83It also added that the
urgency requirement depended on the type and kind of measure requested by the parties. 84The
tribunal have granted the said provisional measures when a party has proved that there was a
need to obtain the said measures at a particular point of time before the final pronouncement of
the award.85The tribunals have also explored the nature aspect of the measures sought by the
parties. The tribunal in City Oriente, while adjudicating on the issue of provisional measures,
elaborately dealt with the nature of the issues involved and made the following observation
regarding urgency:

“In the Tribunal’s opinion, the passing of the provisional measures is indeed urgent, precisely to
keep the enforced collection or termination proceedings from being started, as this operates as a
pressuring mechanism, aggravates and extends the dispute and, by itself, impairs the rights
which Claimant seeks to protect through this arbitration. Furthermore, where, as is the case
here, the issue is to protect the jurisdictional powers of the Tribunal and the integrity of the
arbitration and the final award, and then the urgency requirement is met by the very nature of
the issue.”86

82
Supra note 76.

83
Biwater Gauff v. Tanzania, ICSID Case No. ARB/05/22, Procedural Order No.3 (2006).

84
Id.

85
Id.

86
City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador) (I),ICSID
Case No. ARB/06/21, Decision on provisional measure (2008).

17
Further, the Burlington tribunal emphasized on the need to protect the aggravation of the dispute
during the pendency of the proceedings to meet the degree set by urgency. 87At times, the
tribunals have made it clear that the burden of showing the urgency should be demonstrated by
the requesting party. The tribunal in Tanzania Electric v. ITPL denied the request for provisional
measure because the requesting party failed to establish an urgent for the relief sought. 88 The
tribunal has also discarded the possibility of future harm and equated it with hypothetical harm
which demands no urgency for the relief sought.89But, the tribunal has recognized the need to
grant provisional measure where the threat was not in the vicinity of the foreseeable future but
the threat was real and apparent. The tribunal distinguished between the real and hypothetical
harm while granting the relief for future events. In Tallinn v Estonia, the Claimants were
engaged in publishing arbitration submissions, case materials and other documents which was
inflicting harm to the Respondent’s side. The Respondent requested the tribunal to grant them
provisional measures against any future publication of the documents which had wider
repercussions on the Respondent. The Tribunal granted the provisional measures partially stating
that “Urgency is not restricted to “matters which will happen in the immediately foreseeable
future. Urgency is to be assessed according to the circumstances, which include the requested
measures; and the requirement may be satisfied on a showing that the requested measures are
necessary at a certain point in time before the award is issued.” Thus, the urgency of the relief
requested should be real, apparent and tangible.

Distinction between ICJ and ICSID jurisprudence with regards to urgency

The ICJ Courts have recognized the need to prove imminence in order to meet the threshold for
urgency.90The imminent requirement to prove harm caused to the parties uplifts the threshold to
prove urgency. Whereas, the tribunal has categorically departed from the said requirement and
constrained itself in ‘time constraint’. Albeit, the tribunal in Azurix v Argentina associated the

87
Burlington Resources Inc. v. Ecuador, ICSID Case No. ARB/08/5, Procedural order No. 1 on Burlington
Oriente’s Request for Provisional Measures (2009).
88
Tanzania Electric v. IPTL, I CSID Case No. ARB/98/8, Decision on Provisional Measures, (1999); Tanzania
Electric v. IPTL, ICSID Case No. ARB/98/8, Award (2001).
89
Occidental Petroleum Corporation v. Ecuador, ICSID Case No. ARB/06/11, Award (2012).

90
Supra note 75.

18
urgency requirement with the notion of imminence of the damage but a scholar has discarded the
said approach and tribunals have followed the other approach to prove urgency. The Azurix
tribunal related the urgency with the imminent possibility wherein the rights of the party are
prejudiced before the final award of the tribunal. 91 But Professor Schreuer has observed that the
association of urgency with imminent danger was defeated in the trauvaux preparatories of the
ICSID Convention.92 He specifically stated that the criteria to determine the urgency is whether a
question cannot await the outcome of the award.93 Thus, the tribunal has shunned away from the
requirement of imminent danger and the notion of urgency, hence, is somewhere tied with the
protection of non-aggravation of the dispute in ICSID cases.94

V. THE REQUIREMENT OF NECESSITY FOR GRANT OF PROVISIONAL MEASURES.

The test for necessity and the standard of ‘irreparable harm’ developed by the ICJ

It is an implied and established principle in the ICJ jurisprudence where the requirement of
necessity is clubbed under the requirement to show the irreparable harm to the party. The Court
seeks to ascertain whether there is a risk of irreparable prejudice. If the irreparable prejudice is
caused to the rights of the party which are subject to judicial proceedings, then the Court has
granted provisional measure.95 The interpretation of term ‘irreparability’ has seen major changes
in the International law jurisprudence.

The earlier notion of irreparability was the test of “absolute irreparability” which was once
advocated by President Huber in the case of Sino-Belgium treaty.96President Huber explained the
term stating that the very purpose of granting interim protection was to protect certain rights in
question which “could not be made good simply by the payment of an indemnity or by

91
Azurix Corp. v. Republic, ICSID Case No. ARB/01/12, Decision on provisional measures (2006).

92
Supra note 33.

93
Id.

94
Supra note 87.

95
Supra note 73.

96
Sino-Belgian Treaty case, PCIJ Series A, No. 8, 7.

19
compensation or restitution in some other material form.” 97This was a strict application of the
term ‘irreparability’. This test does not incorporate the substantial prejudice caused to the
effectivity of the final award given by the Court. Such a strict application would mean that such
measures should not be granted at all, “except when it is shown with substantial credibility that
the magnitude of the prejudice in a given case would exceed the respondent’s resources available
for reparation or would cause a total collapse and disappearance of the actual beneficiary of the
prospective reparation.”98 Therefore, this test has been abandoned nowadays by the Courts.99

The recent judgments have interpreted the term ‘irreparability’ differently from the President’s
Huber interpretation.100 Irreparability has been defined as the impossibility of the full execution
of the final judgment given by the Court.101The Court is more concerned towards the effects of
the final judgment.102 This means that even if the infringement of the rights can be alleviated by
the pecuniary damages/compensation/other monetary damages, the Court can still grant
provisional measures if the actions of one party have the potential of causing prejudice to the full
execution of the final judgment.103In simpler words, the provisional measure can be granted if it
becomes impossible to restore the status quo ante once the court has settled dispute between the
concerned parties.104 The ICJ in Aegean Continental shelf held that indication of provisional
measure is necessary where the actions of the parties is capable of causing serious prejudice

97
Id.

98
Bernhard Kempen and Zen He, “The Practice of the International Court of Justice on Provisional Measures: The
Recent Development” page 921.
99
Id.

100
Id.

101
Anglo-Iranian Oil Company case (United Kingdom v. Iran), provisional measures order, [1952] ICJ Rep 93; Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), [1996] ICJ Rep 23.
102
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro), [2006] ICJ Rep 595.
103
The Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.A.) provisional measures order,
[2008] ICJ Rep 15.
104
Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures order, [2016] ICJ Rep
163; Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia),
Provisional Measures, [2014] ICJ.

20
against the rights invoked by the party seeking the same. 105Thus, provisional measures can be
granted if the potential damage caused to the party would be irreparable.106

In Armed Activities (DRC v. Uganda), the court took the recent interpretation of the term
‘irreparability’.107 The Court opined that the human resources, assets, other resources present
inside the area of conflict are extremely vulnerable and there is sufficient risk the rights
emanating from the use of these resources may suffer an irreparable prejudice even if the final
judgment is given in the favour of party claiming provisional measure.108 Further, the court went
on to say that right to sovereignty and territorial integrity will get affected if the provisional
measure would not be granted on time. 109 Therefore, the Courts have also incorporated the
integrity of a state’s assets and natural resources, vulnerability of which has the potential to cause
irreparable prejudice.110111

Further, in Avena, Mexico filed a request for provisional measures for the protection of its citizen
who were sentenced to death in USA.112 Mexico argued that its nationals were denied consular
access and in the backdrop the dates of execution of those individuals were fixed. The Court
granted provisional measures to ensure that the executions of them should not be done before the
final judgment. Thus, the Court held that “their execution would cause irreparable prejudice to
anyrights that may subsequently be adjudged by the Court to belong toMexico.”113

The test of necessity from under the ICSID framework

105
Supra note 58.

106
Supra note 2.

107
Armed Activities (DRC v. Uganda), Provisional Measures, [2000] ICJ Rep 111.

108
Id.

109
Id.

110
Supra note 20.

111
Supra note 73.

112
Supra note 103.

113
Id.

21
The preparatory works to the Convention did not any indication of the circumstances requiring
the need to grant provisional measures.114 From the discussions and debates, it was fairly clear
thatsuch measures would only be used in situations of absolute necessity. 115 But the principle of
necessity has grown from the ICSID cases. The established ICSID regime has directly equated
the necessity of provisional measure to the ‘irreparable harm’ caused to the requested party. 116
The tribunals under ICSID Convention have followed the test applied by the ICJ in order to find
the threshold of ‘irreparable harm’.117 In the Occidental tribunal quoted the ICJ jurisprudence of
the Aegean Continental Shelf case and stated that “a provisional measure is necessary where the
actions of a party ‘are capable of causing or of threatening irreparable prejudice to the rights
invoked.”118To substantiate further, the tribunals have qualified ‘irreparable harm’ as those harm
which cannot be compensated by subsequent payment of damages as awarded by the tribunal. 119
The tribunals added that irreparable harm would make the enforcement of an award more
difficult/impossible, if the award is given in favorable to the requesting party on the merits.120

Furthermore, the tribunal has rejected the request for provisional measure stating that mitigation
n of damages is not the sole criteria and principle objective to grant the relief sought by the
requesting party.121Had this been the reasoning associated with the provisional measure, the
granting of provisional measures would have seen necessary in almost every case.122 In the view
of the Tribunal the harm in such case “is only more damages, and this is the harm of a type
which can be compensated by monetary compensation, so there is neither necessity nor urgency

114
Supra 33.

115
Id.

116
Supra 48; Supra 33.

117
Tokios Tokelės v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No.3 (2005); Phoenix Action Ltd. v.
Czech Republic, ICSID Case No. ARB/06/5, Order, (2007).
118
Supra 42.

119
Plama Consortium Limited v. Bulgaria, ICSID Case No. ARB/03/24, Order (2005).

120
Id.

121
Supra 89.

122
Id.

22
to grant a provisional measure to prevent such harm.”123 Recently, Cemex tribunal confirmed
this approach stating that when the harm can be compensated through monetary award then that
particular harm will not meet the threshold for irreparable harm.124 In this case, the Claimants
were seeking relief for provisional measures. The Claimants argued that the seizure carried out
by the Respondent State led to an additional loss of $50 million which is not claimed in the
merits of the case. The Claimant argued that such seizure would lead to irreparable harm caused
to them. The tribunal while rejecting the claim by the Claimants strengthen the notion that such
circumstances only pointed towards the financial loss which can be readily compensated through
award. Such situation was neither necessary nor urgent for provisional measures.125

The tribunal has also been prone to judicial innovation thus adding several new approaches
which has found relevance in the ICSID jurisprudence. The Quiborax tribunal found that actions
which have the capability to causing loss in the integrity of the ICSID proceedings would qualify
as an irreparable harm.126 The Nova tribunal took the slightly lower threshold for irreparable
harm and stated that the standard of irreparable harm can be lowered when the requesting party is
seeking specific performance or any other form of equitable relief. 127 The Tallin tribunal was
entrusted with the task of granting provisional measure in the context of the media campaign
waged by the Claimant.128The tribunal analyzed the likelihood of the harm caused to the
Respondent. The tribunal observed that waging a media war against the Respondent would
inevitably harm the right of non-aggravation of dispute.129 The actions by the Claimants will have

123
City Oriente Ltd v. Ecuador, ICSID Case No. ARB/06/21, Decision on revocation of provisional measures
(2008).
124
CEMEX Caracas Investments B.V. and CEMEX Caracas II Investments B.V. v. Bolivarian Republic of
Venezuela, ICSID Case No. ARB/08/15, Decision on the Claimants' Request for Provisional Measures (2010).
125
Id.

126
Quiborax S.A., Non Metallic Minerals S.A. and Allan FoskKaplún v. Plurinational State ofBolivia, ICSID Case
No. ARB/06/2, Decision on Provisional Measures (2010).
127
Nova Group Investments v. Romania, ICSID Case No. ARB/16/19, Procedural Order No. 7 (2017).

128
United Utilities (Tallin) v. Estonia, ICSID Case No. ARB/14/24, Decision on Respondent’s Application for
Provisional Measures (2006).
129
Id.

23
further repercussions of harming the procedural integrity thus meeting the threshold of the
provisional measure.130

Distinction between ICJ and ICSID jurisprudence with regards to irreparable harm

The very nature of the ICJ as Courts and ICSID tribunals as investment arbitration tribunals
marks the fundamental difference in the threshold of irreparable harm used by them. While, the
ICJ Court hear the matter about human rights violation, boundary disputes, territorial
sovereignty, integrity of state et al, the investment arbitration is only restricted to the dispute
related to investments and certain rights of the investor. Thus, the threshold of ICJ judgment
regarding irreparable harm is higher as compared to the threshold set by the ICSID tribunals. The
ICJ judgment has incorporated the rights of the property and life other than the subject matter of
the dispute in the main claim as one of the compelling factors to grant provisional measure. 131
Thus the prejudice to life on the disputed territory has justified the provisional measure.132

In Maritime Boundary between Cameroon and Nigeria, the Court while delineating the rights of
the parties concluded that the killings of persons in the event concerning the dispute have caused
irreparable damage to the party.133 Persons living in the disputed area as a consequence of the
ongoing dispute are exposed to the risk of causing irreparable damage. 134 The Judge Oda in his
declaration pointed out that albeit loss of life in the disputed area was not within the scope of the
rights claimed by the parties, loss of life would still be enough to grant provisional measure
based on the irreparable harm.135 Thus in the jurisprudence of ICJ, infringements of human rights
become main focal point to invoke provisional measures.136

130
Id.

131
Supra note 98.

132
Supra note 98.

133
Supra note 101.

134
Id.

135
Declaration of Judge Oda in the case Land and Maritime Boundary between Cameroon and Nigeria, [1996] ICJ
Rep 27.
136
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),
Preliminary Objections, Judgment, [2016] ICJ Rep 3.

24
The jurisprudence of ICSID tribunal completely revolve around the investment related issues or
restrictions in the ongoing state of affairs. Further, the Nova tribunal stated that where the
procedural integrity is at the stake, it is sufficient for the party to show the ‘material risk’ of harm
caused to the party if the requested provisional measures are not granted. 137 The ICSID tribunal
also agreed to the proposition that where loss can be compensated through awards then
provisional measure would not be granted.138 But the ICJ courts are focused more towards the
effectivity of their judgment rather than the compensation principle as has been developed in the
ICSID cases.

VI. AN ASSESSMENT OF PROPORTIONALITY: A NEW DEVELOPMENT UNDER THE

ICSID FRAMEWORK?

The ICSID tribunals have sporadically used the balance of convenience as one of the criteria to
grant the provisional measure. Albeit, the proportionality requirement has become one of the
requirements for seeking provisional measure but it has not been discussed in every ICSID cases
unlike aforementioned criteria.

The test of proportionality is also known as balance of convenience test under ICSID framework.
This test assesses the hardship which will be inflicted upon one of the party of the dispute if the
provisional measures sought are granted to the party requesting the same as against a situation
wherein provisional measures are not granted.139 The ICSID tribunals have stated that the risk of
harm should assess interest of the parties and each other’s interest need to be weighed against
each other before granting provisional measures. 140Thus, balance of convenience shifts if the
harm suffered by one party significantly outweighs the harm suffered by the other party. 141 The
tribunal has also tried to protect the ongoing investment made by the investor while granting

137
Supra note 129.

138
Supra note 121.

139
Supra note 128.

140
Supra note 42.

141
HOWARD HOWARD M. HOLTZMANN ET AL., A GUIDE TO THE 2006 AMENDMENTS TO THE UNCITRAL MODEL
LAW ON INTERNATIONAL COMMERCIAL ARBITRATION: LEGISLATIVE HISTORY AND COMMENTARY 434 (2005).

25
provisional measure to the host state.142 Hence, the ICSID tribunal has come to the conclusion
that ‘adequately structured’ provisional measures should be granted which would serve the
interest of both the parties.143

CONCLUSION

Through the course of this paper it has been observed that both International Courts as well as
Investment Tribunals have recognized the importance of preservation of rights of the parties
when the merits of the case are pending before the Courts. This embodies the principle of the
equality of states and embarks upon to grant equality to parties from the perspective of
procedural and substantive rights.

The urgency of a situation demanding provisional measures is met once the case cannot await the
final adjudication on merits. In the same vein, the Courts have endeavored to define the
irreparable prejudice caused to the parties. Irreparable harm is that harm which cannot be
compensated by subsequent payment of damages as awarded by the Courts. Further, a balance of
convenience standard, although sparingly applied by courts and tribunals, is used to weigh the
hardships caused to both the concerned parties if the provisional measures were to be granted.

All these factors together have helped in fleshing out an international law perspective on
situations demanding the grant of provisional measures. In the sphere of international law, the
most recent situation wherein provisional measures were demanded were in the case of
Kulbhushan Jadhav.144This case had uncanny similarities with previous cases such as Breard,145
La Grand146 and Avena147 which all dealt with the scheduled execution of a foreign national by
the host state. Justice Bhandari in his separate opinion in this case clearly delineated the
requirement of provisional measures and ultimately granted provisional measure in favour of

142
Perenco Ecuador Ltd v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID
Case No. ARB/08/6, Decision on Provisional Measures (2009).
143
Supra note 87.

144
Jadhav (India v. Pakistan) Provisional Measures [2017] ICJ GL No 168.

145
Supra note 79.

146
LaGrand (Germany v. United States of America), Provisional Measures, [1999] ICJ Rep 9.

147
Supra note 103.

26
India. He consolidated and clearly spelt out a four-prong test, based upon the previous practice of
the Court, in order to grant provisional measures. Therefore, a clear case for provisional
measures in consonance with Article 41 of the Court’s statute was established on the basis of the
requirements of prima facie jurisdiction over the merits, plausibility of the rights, irreparable
prejudice and the link between the measures sought and the rights claimed. At present Mr.
Jadhav, in pursuance of the order, has been granted consular access and assistance from his home
state.

Thus, the authors note through their analysis, the role of provisional measures in preserving the
sanctity of judicial proceedings and prevent the denial of justice. Provisional measures not only
play an important part in maintaining rights of states in the international sphere but also the
rights of individual investors or companies who have spare safeguards over their property in an
alien country. Therefore, provisional measures are indeed an important tool in order to preserve
the rights of a party and bestow faith in international judicial proceedings.

27