Enforcement of Provisional Measures Rendered Under Article 47 of The ICSID Convention : A State's Prerogative?

During arbitration proceedings protection of parties' rights is essential and for that purpose tribunals often refer to interim protection. The authority of arbitral tribunals to grant interim provisional measures can be considered as a well-recognized feature of international arbitration. Those measures may be granted by arbitral tribunals as a matter of urgency in order to maintain a certain status quo and to protect the rights and interests of the parties to the arbitral proceedings pending resolution of their dispute.Investment arbitration is no stranger to the phenomenon of provisional measures either. However, the importance of provisional measures for investment arbitration is difficult to overestimate while both investors and states want greater certainty on how tribunals approach their requests regarding non-aggravation of dispute, stay of local proceedings, preservation of investment, stay of criminal investigations, security for costs, and other provisional measures. ICSID tribunals have also seen a surge in parties’ requests for provisional, interim, or conservative measures in recent years. In fact, ICSID tribunals have far considered interim relief of several kinds, ranging from discovery requests, which have been granted, to a request for the recommendation that a party should refrain from resorting to the press, which has been denied.However, an interesting fact is that according to an empirical study the likelihood of granting or partially granting provisional measures under the ICSID Convention and Arbitration Rules is significantly lower in comparison to the non-ICSID investment arbitration, for example under the UNCITRAL Rules. Moreover, the binding effect and efficiency of provisional measures rendered under the ICSID Convention and Arbitration Rules are still hotly debated both through case law and also among the scholars of the international legal community