I. An ongoing discussion

The question of whether procedural orders adopted by international arbitral tribunals and international courts are binding on the parties to proceedings before them has been the subject of a discussion, which as time passes becomes more intense. The purpose of this article is to examine the issue in the light of the ICSID Convention and related practices. The experience available in other courts and tribunals will also be discussed to the extent that it provides a relevant background.

It should first be noted that the discussion relates mostly to the adoption of provisional or interim measures of protection of the rights of the parties, but does not refer to a number of other procedural orders adopted by courts and tribunals for the orderly development of the proceedings before them. The latter include, for example, questions such as time limits for the presentation of pleadings and arguments, arrangements for the taking of evidence or suspension of the proceeding on the merits while jurisdictional objections are decided. This is well reflected, for example, in Rule 19 of ICSID's Arbitration Rules, which provides that the Tribunal shall make the orders required for the conduct of the proceeding. As Hambro put it in respect of the International Court of Justice, "[i]t would hardly occur to any serious student of international adjudication to claim that the orders made by the Court or its President in this field were not binding on the Parties." 1 Should these orders be disregarded, the tribunal will have at hand the very powerful sanction of moving ahead only with the arguments or views of the complying party and ultimately of entering a judgement in default. 2

II. The Permanent Court of International Justice: restraint, development and interpretation

It is a well-known fact that Article 47 of the ICSID Convention is modelled on Article 41, paragraph 1, of the Statute of the International Court of Justice, 3 which in turn is identical to Article 41 of the Statute of the Permanent Court of International Justice (PCIJ). The drafting history of these provisions and the interpretation and practice related thereto are therefore most relevant to understanding their scope and the evolution that has taken place in their respect. [Page39:]

The first draft leading to the Statute of the PCIJ had envisaged that the Court could "order" adequate protective measures, but this clearly binding language was changed ultimately to give the Court the power to "indicate" appropriate provisional measures. 4 This last approach had been used by the Bryan treaties before the First World War, which in essence had provided for Commissions of Investigation and Conciliation. In spite of the differences between conciliation and judicial or arbitral settlement of a dispute, it was generally thought best to keep with a language that seemed at the time to be more in line with the sovereign rights of States. 5 For the same reason a reference to measures "suggested" was kept in paragraph 2 of Article 41 of the Statute. Efforts directed at substituting the term "prescribe" for "indicate" in the context of the revision of the Rules of the PCIJ did not succeed either. 6

Notwithstanding the restraint exercised at the time of the preparation of the Statute, other important developments were already evidencing that the last word on the matter had not been said. A first and most significant such development was the 1928 General Act for the Pacific Settlement of Disputes, which in Article 33 referred to the power of both arbitral tribunals and the PCIJ to indicate provisional measures that were made expressly binding on the parties to the dispute. Moreover, provisional measures of Conciliation Commissions were separated from the above and made subject only to recommendations to the parties. It should not pass unnoticed that the General Act is still in force for a good number of States and could eventually be a source of obligation for the parties as far as the adoption of provisional measures is concerned. 7A second development of interest is that the PCIJ itself linked in its case law the adoption of provisional measures with the general principle governing international tribunals and reflected in many conventions to the effect that States are under an obligation to abstain from any measure capable of affecting the execution of the decision to be given and, in general, not to allow any step which might aggravate or extend the dispute. 8Even though the Court in the Free Zones case9declared that orders have no binding force, it has been rightly clarified that in context that statement bore no relation to the question of compliance by the parties but only to the need to intimate through an order the likely outcome of the Court's opinion before the judgement had been rendered. 10

While the opinion of authors on the scope of Article 41 of the Statute of the PCIJ was quite naturally divided, 11 it should be noted that a number of them came out in support of the binding character of provisional measures. 12 Judge Hudson's opinion is an interesting case in point since after having been reluctant to admit the binding nature of such measures, he came later to the conclusion that the term "indicate" was "not less definite than the term order would have been, and it would seem to have the same effect." 13

The experience of the PCIJ on the matter suggests that there were three main elements that need to be considered in the future application of the provision of Article 41. First, practice, interpretation and opinion could prompt a development that was not originally envisaged by the drafters and that might even appear to depart from their intentions. Second, the discussion about the binding effect of provisional measures related less to the nature of the measures themselves than to the separate question of their enforcement. And third, the matter was inextricably linked to general principles of international law governing both the attitudes of States submitting a dispute to judicial or arbitral resolution and the essence of the institutional effectiveness of the judicial system. [Page40:]

III. Changing tides at the International Court of Justice

In the early years of the International Court of Justice it appeared that there was an overwhelming case against accepting the binding nature of interim measures. 14 With few exceptions, 15 writers seemed also to support this opinion16 and the very case law of the ICJ did not offer at first much hope. In fact, in the Anglo Iranian Oil Co. (Interim Protection) case, 17 the powers of the Court were strongly objected to and although the matter reached the Security Council, no conclusive determinations were made, as at the end the Court declined its jurisdiction.

However, as with its predecessor, the situation would not remain unchanged. First, the case law of the Court has made a substantive contribution to the clarification of the scope of provisional measures in several aspects, including the question of their binding nature. 18 In the Military and Paramilitary Activities in and against Nicaragua (Provisional Measures) case, the Court held that when it finds that provisional measures should be taken "it is incumbent on each party to take the Court's indications seriously into account, and not to direct its conduct solely by reference to what it believes to be its rights." 19 This important statement, later referred to in the Application of the Genocide Convention (Provisional Measures) case, 20 while stopping short of saying that provisional measures are binding, 21 quite clearly conveys the thought that compliance with such measures is not a matter within the discretion of each party. In the same spirit, the Court has clearly warned in another case that its judgements should not be pre-empted by any unilateral action by a party. 22 The power and duty of the Court to indicate provisional measures "as may conduce to the due administration of justice" 23 have also been affirmed by the Court, thus again providing a link with the principle of institutional and judicial effectiveness and with the concept of the inherent authority of a tribunal to adopt binding provisional orders. 24

A second important evidence of the evolving attitude of the ICJ in this matter is found in the opinions of some distinguished judges. Indeed, the separate opinions of judges Shahabuddeen, Weeramantry and Ajibola in the Application of the Genocide Convention case25 offer a most illuminating guide to the state of the question before the Court. Among other elements to be noted, there is Judge Shabuddeen's distinction to the effect that even if provisional measures were considered not legally binding, the [Page41:] measures are in any event a judicial finding about what is required to protect the rights of the parties pendente lite; non-compliance with such measures would amount to an inconsistency which, although not subject to being penalized by the Court, would be taken into account for other purposes. 26 Also to be noted is the distinction between the binding nature of provisional orders and their enforceability offered by the three Judges mentioned. 27

A third confirmation can be found in the opinion of distinguished writers. In addition to the views of Hudson and Hambro mentioned above, those of Jessup28 and Fitzmaurice, 29 both of whom also sat in the ICJ, have supported directly or indirectly the binding nature of orders on provisional measures. The interesting debate held by the Institut de Droit International in 1951-1952 is also significant in this respect since Rolin proposed an amendment to the Statute of the ICJ to make clear that provisional measures were binding, not so much because of the scope of Article 41 of the Statute, but because Article 94 of the Charter referred to recourse to the Security Council only in respect of judgements. 30 H. Lauterpacht supported this amendment but with a different rationale, which is important to note: "It is not necessarily inconsistent with the effectiveness of the administration of international justice that the Court should have no power to decree, with binding effect, provisional measures to be taken by the parties. But I believe that it is not part of the function of the Court to recommend measures which the parties are free to accept or to reject." 31

The questions relating to Article 94 of the United Nations Charter concern an issue of enforceability, but do not affect the question of the binding nature of provisional measures. On the contrary, it has not passed unnoticed that while paragraph 1 of that Article commits every member of the organization to comply with the decision of the ICJ in any case to which it is a party, it is only paragraph 2 that restricts recourse to the Security Council in respect of the non-performance of judgements. 32 The interpretation of decisions to include orders has quite naturally followed. 33 In any event, notice of orders on provisional measures is always given to the Security Council, under provisions of both the Statute and the Rules of the Court. 34 When provisional measures are indicated by the Court in respect of matters before the Security Council this body may adopt a resolution concerning compliance with such order, as it has done in the U.S. Diplomatic and Consular Staff in Tehran case35 and in the Application of the Genocide Convention case. 36 It follows that compliance with orders of this kind is not left to the discretion of the parties. Even if the matter were not before the Security Council it can be included in its agenda, as evidenced by the AngloIranian Oil Co. case.

In the light of these developments, Rosenne has concluded that while the Court may not impose sanctions on a State that has failed to comply with interim measures, 37 this is not a matter that can "be disregarded by a party simply because it does not come within the scope of Article 59 [of the Statute]." 38

As a result of this evolution it would come as no surprise that in the Case concerning the Vienna Convention on Consular Relations, the ICJ called on a party "to take all measures at its disposal" to prevent the execution of a Paraguayan national pending the final decision of the Court in the proceedings, as well as to inform the Court of all the measures taken in implementation of the order. 39 The binding nature of this order was quite evident, and the ensuing problems relating to its implementation by the U.S. government and the judiciary made it still clearer. 40 The practice concerning the [Page42:] international law of human rights also is indicative of the trend to order binding provisional measures even when the governing conventions do not mention such a possibility, or when so allowing to adopt a broad interpretation of in respect of the scope of such measures. 41

The rationale behind the judicial policy of the ICJ in the matter of provisional measures is, like with the PCIJ, important to keep in mind. Again here, there is a basic distinction between the question of the binding nature of orders per se and the separate question of their enforceability. But, above all, there is also the issue of the general principles of international law governing the attitude of the parties submitting a case to settlement, particularly the obligation of abstaining from measures capable of frustrating the very purpose of the exercise. As rightly put by Hambro, in applying Article 41 the Court "does only in effect give life and blood to a rule that already exists in principle...[b]ut if the application by the Court of a generally accepted principle should have no more force than a mere recommendation, it would, in effect, add very little to the law as it existed before the Statute was elaborated. Such an interpretation would, it is submitted, run counter to the principle of effectiveness in international law." 42

IV. Judicial effectiveness in the Iran-United States Claims Tribunal and other recent experiences

The Iran-United States Claims Tribunal is empowered to take interim measures, not under its constitutive instruments, but under Article 26 of the UNCITRAL Arbitration Rules which were selected by the Claims Settlement Declaration for the conduct of its business. 43 Although the binding character of interim measures given by this Tribunal is beyond doubt, 44 it is interesting to note that in its first order for interim measures it relied not on Article 26, but on its "inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective." 45 The principle of judicial effectiveness is here again stated in full strength. This means in fact that interim measures can be adopted either under Article 26 when the rights of the parties are at issue, or under the doctrine of inherent powers under international law, particularly when questions of judicial effectiveness are involved. This opens the possibility for inherent powers to operate even in the absence of an enabling provision for the adoption of interim measures.

The obligation to comply with such orders, 46 and the view that a judgement issued by a domestic court in disregard of an order to stay proceedings is "without legal effect," have also been clearly stated. 47 However, again in the experience of the Claims Tribunal the separate difficulties associated with enforceability and the application of sanctions have been acknowledged. 48[Page43:]

The ICC 1998 Arbitration Rules also allow for the adoption of binding interim or conservatory measures, by means either of an order or of an Award as the Tribunal considers appropriate. 49 However, under these Rules, like in the 1985 UNCITRAL Model Law on International Commercial Arbitration, the parties can agree otherwise. 50

It is also interesting to note that under the Law of the Sea Convention, the International Tribunal for the Law of the Sea or an arbitral tribunal may "prescribe" any provisional measures considered appropriate. 51 The first decisions adopted by the International Tribunal concerned the prompt release of a vessel and provisional measures in the M/V Saiga case, in which it was prescribed that Guinea "shall refrain from taking or enforcing any judicial or administrative measure" against the vessel in question. 52

V. ICSID's drafting history: necessary distinctions

Against the foregoing background it is possible to review the meaning of Article 47 of the ICSID Convention. The origin of this Article is similar to that of Article 41 of the Statute of the PCIJ, as an early draft directed at granting the Tribunal the power to "prescribe" provisional measures53 was not accepted and only the power to "recommend" was retained. 54 This is indeed the equivalent of the substitution of "indicate" for "order" in the experience of the world courts. Related proposals concerning the duty of States to enforce provisional measures and envisaging sanctions for non-compliance were unsuccessful. 55

Because of the voting record on these proposals, 56 the general trend of opinion is that there was a conscious decision not to grant the Tribunal the power to order binding provisional measures. 57 However, again in this case there is a need to make some distinctions which are supported by the record and that could eventually lead to a different conclusion.

First, the record shows that the discussion on the choice of the term "recommend" as opposed to "prescribe" was not so much related to the nature of the measures themselves as to the separate issue of having interim awards enforced by national courts.58 It follows that, as in the background examined above, it is appropriate to make the distinction between the question of the binding nature of the measures adopted and that of their enforceability. The problems relating to the latter need not necessarily affect the former.

A second distinction of significance relates to the relevant principles of international law governing the conduct of judicial or arbitral proceedings. A number of proposals made to the effect that provisional measures could be adopted to prevent the frustration of the award and that the parties should refrain from aggravating or extending the dispute, 59 evidence that the same principles that were present in the case law of the courts examined above have been considered in the context of the ICSID Convention's drafting history. The fact that these proposals were not retained by the Convention does not mean that those principles can be disregarded. In fact, they are still very much available and can be applied even in the absence of any specific language in the Convention. Language to this effect is recalled in the notes to the 1968 ICSID Arbitration Rules. 60 The doctrine of inherent powers for ensuring judicial authority and effectiveness is also relevant here. [Page44:]

In the light of these principles it is appropriate to keep in mind the distinction made by H. Lauterpacht in respect of the ICJ. 61 One thing is that a court or tribunal might not have at all the power to adopt provisional measures, but quite another thing is that it shall have only the power to recommend measures that will be left to the goodwill of the parties. While the first aspect might not derogate from the judicial function, the second would not be compatible with such function.

VI. The legal effect of "recommendations" by ICSID Tribunals in the light of their case law

It is also important to ask, following Judge Hudson, whether there is really a difference between the legal effects deriving from the powers to recommend or to prescribe, to indicate or to order. It should first be noted that even for those writers who tend to see in the expression "recommend" a somewhat lesser power of the Tribunal, the lack of binding force does not deprive the measures of all legal relevance since an obligation to abide by them might derive from the general principles of international law. 62

The case law of ICSID Tribunals appears to be evolving from a very cautious attitude observed at first to a more forthcoming type of orders on provisional measures. Indeed, while in Holiday Inns v. Morocco the measures recommended were of a general nature, they included a specific reference to the fact that "the Parties are under an obligation to abstain from all measures likely to prevent definitely the execution of their obligations," followed by an invitation to "abstain from any measure incompatible with the upholding of the Contract." 63 The concern about effectiveness and its implications for the attitude of the parties is once more evident. 64 In AGIP v. Congo the measures ordered in respect of keeping records, informing the Tribunal and eventually producing such documents were conceived in a more forceful language borrowed from the request of the claimant. 65 Non-compliance with these measures is again a question separate from their binding nature. Lastly, in MINE v. Guinea the language used for the recommendation is indeed mandatory since the claimant is directed to "immediately withdraw and permanently discontinue" all pending litigation in national courts, as well as not to seek new provisional remedy in such courts. 66

The practice relating to the implementation of provisional measures is also significant to establish their legal effects. As noted above, during the discussions on the preparation of the Convention there was much concern about involving domestic courts in the enforcement of provisional measures, since it was feared that this could collide with national and constitutional law. 67 It was precisely this concern that led to opting for the term "recommend." However, as argued by Broches, "if an arbitral tribunal has been empowered by the parties to review the legality of an action under international law then it should have the right to prescribe provisional measures and require the State's compliance with those measures." 68

Domestic courts do not appear to share the same concern. In MINE v. Guinea, for example, the Court of First Instance of Geneva, as well as the Supervisory Authority, relied to a meaningful extent on the Tribunal's recommendation directing the[Page45:] discontinuance of proceedings to grant the lifting of attachments. 69 The Supervisory Authority even referred to the fact that the Arbitral Tribunal "did not authorize" recourse to such measures and that its decision recommended to MINE "that it should withdraw" such litigation, thereby using mandatory expressions interchangeably with the meaning of the recommendation. 70 In Atlantic Triton v. Guinea the Court of Appeals of Rennes did not even wait to have the Arbitral Tribunal's recommendation and vacated the attachments based on the sole fact of the request for provisional measures before the ICSID Tribunal, and the latter then considered the request moot. 71 While it is true that these decisions were given in the more complex context of ICSID's exclusive jurisdiction under Article 26, 72 it is nonetheless interesting to note that if this line is pursued by domestic courts in the light of a mere recommendation, there is every more reason that this will be the case if the order is interpreted as binding.

A third important test for establishing the legal effect of provisional measures under ICSID relates to the consequences that non-compliance might entail. While a proposal for fixing penalties was also rejected during the negotiations by a "nearly unanimous vote", 73 there was support for the idea that damages should be awarded in case of non-compliance, even on the part of delegations that would only accept non-binding measures. 74 A proposal to the effect that the Tribunal should take into account in its award a failure to comply with provisional measures was also rejected, 75 but a statement by the Chairman clarifying that this would be naturally done in any event was unopposed and later retained in Note B to Arbitration Rule 39 of 1968. 76 This is also the understanding of various commentators of the ICSID Convention. 77

Again the case law of ICSID evidences that in fact this element is taken into account by Tribunals. The respective tribunals apparently warned as much in Holiday Inns v. Morocco, 78 and it was definitely done in the assessing of damages in both AGIP v. Congo and MINE v. Guinea. 79 In this last case the order on provisional measures itself contained a clear warning that the Tribunal would take into account in its award the effects of any "non-compliance" by MINE with its recommendations. 80

One other element of legal logic tends to support the actual binding nature of provisional measures under ICSID arbitration. Because such measures are provisional and temporary, they are by definition subject to be modified or revoked by the Tribunal. 81 If the order modifying or revoking earlier measures could be disregarded by the parties or even by a court on the view that they are mere non-binding recommendations, the measures originally adopted and eventually enforced would be left in place for an undefined period of time. This result would defy all logic and might give place to serious injury, particularly in the context of conservatory measures.

The conclusion that follows from the above considerations is that the legal effects of measures recommended are really not different from those of measures prescribed. This conclusion will need of course to be verified on a case-by-case basis since it will in essence depend on the intention of the Tribunal when ordering the measures and the circumstances of the case. There are situations, for example, where a moral commitment will suffice to ensure the result pursued, 82 as illustrated in Fedax N. V. v. Venezuela, where the Tribunal disposed of the question of publicity, not by means of a provisional measure, but by calling on the parties not to aggravate the dispute and [Page46:] recording their commitment to this end in the minutes of the pertinent meeting. 83 In Vacuum Salt Products Limited v. Ghana the Tribunal adopted a decision recording a voluntary undertaking by Ghana in lieu of a provisional measure, which was accepted by the requesting party. 84 Should these commitments not have been complied with there was always the possibility to revert to a provisional measure.

VII. The legal effect of ICSID's provisional measures and the role of domestic courts

The long and most interesting debate on the question of the exclusive jurisdiction of ICSID's Tribunals under Article 26 of the Convention and the rule of judicial abstention that ensues for domestic courts is beyond the scope of this contribution. 85 However, some aspects of the matter are also relevant for the determination of the legal effect of provisional measures adopted by ICSID's tribunals.

A first element of significance is that, as stated in Holiday Inns v. Morocco, in principle international proceedings have primacy over purely internal proceedings. 86 This approach also includes proceedings directed to enforcing non-ICSID awards in domestic courts when such an attempt collides with an arbitration being conducted under the ICSID Convention, as evidenced in MINE v. Guinea. As discussed above, with few exceptions87 domestic courts have been generally sympathetic to the recognition of the exclusivity of ICSID proceedings, even when requested to enjoin the parties from instituting or pursuing such proceedings. 88 The original cautious approach of the Tribunal in Holiday Inns v. Morocco, which did not direct the Government to withdraw the request for provisional measures before its courts but simply called on the need to abstain from measures incompatible with the upholding of the contract, gave way to the forceful order examined in MINE v. Guinea.

The important point to retain, however, is that all such steps assume that the parties will eventually be able to obtain from the ICSID Tribunal a provisional measure of equivalent effect to that which they could obtain from a domestic court. Otherwise, the discussion would involve not only a choice of forum but also a qualitatively different kind of provisional measure, which could have binding effect if ordered by a domestic court but only a recommendatory nature if ordered by an ICSID Tribunal. If this were the case, it would not be appropriate to claim exclusive "jurisdiction" for ICSID since there would be no exercise of jurisdiction at all. This argument has of course not passed unnoticed to those opposing ICSID's exclusive jurisdiction. 89 Moreover, such a conclusion would provide strong incentives for parties to apply for provisional measures before domestic courts. The whole argument that provisional measures adopted under Article 47 are a "remedy" which is also governed by the exclusive jurisdiction of Article 26, 90 implies that such measures will have a binding legal effect when this is intended by the Tribunal.

Because of the difficult implications of this debate, Arbitration Rule 39 of 1984 added a new paragraph to the effect that the parties may request provisional measures from any judicial or other authority "provided that they have so stipulated in the agreement recording their consent." 91 While under Article 47 the parties may also enter into different agreements in respect of provisional measures, this might be of limited effect [Page47:] in some circumstances. For example, if the parties agree that the measures shall be binding, this indeed will provide a helpful clarification in this respect, but does not affect the binding force that provisional measures would have in any event, even in the absence of an express clause. The same may be said of an agreement that would exclude provisional measures altogether, as this would not affect the kind of measure that the Tribunal may believe necessary to adopt for the purpose of judicial authority under the doctrine of its inherent powers.

It should also be noted that thus far the question of the relationship between ICSID and domestic courts in respect of provisional measures has been addressed from the point of view of avoiding negative interferences with the jurisdiction of a Tribunal under the Convention. However, there is also a positive side to this relationship. True as it is that Article 54 of the Convention on the recognition and enforcement of awards does not extend to provisional measures, 92 this is only so from the point of view of ensuring an automatic enforcement of such awards, but nothing seems to prevent that a request for the enforcement of provisional measures adopted by an ICSID Tribunal be addressed either by the Tribunal or a party to a domestic court, including the courts and other entities of third States. 93 The situation here is different from the concern discussed above at the time of negotiations since then it involved the question of extending automatic enforcement also to provisional measures. The court might not be under an obligation to enforce such measures, even if they are regarded as binding, but can consider doing so in any event. To some extent this was the case of the action by the Swiss and other courts mentioned above.

While the question of whether exclusive jurisdiction under ICSID is absolute, and hence could prevent any recourse to domestic courts aside from enforcement of awards, has been posed, this would clearly be an exaggeration. 94 The rule of exclusivity must be understood within the purview of avoiding interferences with ICSID's Tribunals, but should not prevent action before or by domestic courts which is conducive to the implementation of the decisions of those very tribunals.

However difficult the enforcement of provisional measures might be, the situation is not worse than that affecting a number of other tribunals established under international law, and in the light of the above considerations may be considered even much better. Be that as it may, it in no way affects the binding nature of the provisional measures per se.

VIII. The nature of ICSID's arbitration system

ICSID has been aptly described as a "quasi-public arbitration" system, 95 and this special nature explains many of the differences with other arbitral or judicial mechanisms for the settlement of disputes. If it is looked upon purely from the point of view of commercial arbitration it is difficult to explain its self-contained character, particularly since most arbitration mechanisms allow for an ample participation by domestic courts in the adoption of provisional measures. 96 Such an approach is even true in one arbitration system directed exclusively to settle disputes between States, as well as in other arrangements under the Permanent Court of Arbitration. 97 Conversely, if the ICSID system is looked upon purely from the perspective of traditional dispute [Page48:] settlement under international law, it will become apparent that it does not fully share those characteristics and features.

It is this hybrid character that determines the true nature and scope of the system. On the one hand, this is a "fully administered type of arbitration as opposed to a semi administered arbitration," 98 which is more attached to conventional international law than to domestic law, having become "delocalised and denationalised." 99 But on the other hand it relies to a meaningful extent on the interaction with national law and the role of courts.

Because its purpose is to satisfy the interests of both States and investors, including the primary need to avoid the intervention of diplomatic protection and other forms of interference and undue pressure that have been so troublesome in the past, it should not become either a traditional dispute settlement mechanism under international law or a standard commercial system of arbitration. This balance ultimately justifies the conclusion that ICSID's provisional measures should be not more and not less, binding than those in any other major system of international arbitration or dispute settlement, public or private.

1
Edvard Hambro: "The binding character of the provisional measures of protection indicated by the International Court of Justice," in W. Schätzel & H.-J. Schlochauer, Rechtsfragen der Internationalen Organization, 1956, pp. 152-71, at 169.

2
Ibid., at p. 170.

3
L. Collins: "Provisional and Protective Measures in International Litigation," Recueil des Cours de l'Académie de Droit International, Vol. 234, 1992, p. 9, at 99.

4
Henri A. Rolin: "Force obligatoire des ordonnances de la Cour permanente de Justice internationale en matière de mesures conservatrices," Mélanges offerts à Ernest Mahaim, 1935, Vol. 2, pp. 28182.

5
For the point of view in this respect of the Registrar of the Court, A. Hammarskjöld, see Rolin, supra, note 4, at 291.

6
Rolin, supra, note 4, at 291.

7
Ibid., at 288-289; Hambro, supra, note 1, at 166-67.

8
Electricity Company of Sofia and Bulgaria, PCIJ, Series A/B, No. 79, p. 199, and comments by Judge Weeramantry in his Separate Opinion in the Application of the Genocide Convention (Provisional Measures) case, ICJ, 1993, p. 370, at 377.

9
Free Zones of Upper Savoy and the District of Gex, PCIJ, Series A, No. 22, p. 13, and comments by Weeramantry, supra, note 8, at p. 383.

10
Shabtai Rosenne, Law and Practice of the International Court, 1997, at p. 1622.

11
For the opinion that interim measures do not have a binding effect see, for example, Dumbauld: Interim Measures of Protection in International Controversies, 1932, at 168, as commented on by Peter J. Goldsworhty: "Interim Measures of Protection in the International Court of Justice," American Journal of International Law, Vol. 68, 1974, pp. 258-77, at 274.

12
See generally Rolin, supra, note 4.

13
Manley O. Hudson: The Permanent Court of International Justice, 19201942, 1943, at 425-427, as cited by Hambro, supra, note 1, at 154. See also the discussion of this view in Weeramantry, supra, note 8, at pp. 38688.

14
See generally the discussion by Hambro, supra, note 1, at p. 164.

15
Hambro, supra note 1; Hudson, supra, note 13.

16
A. Hammerskjöld: "Quelques aspects de la question des mesures conservatoires en droit international positif," ZAORV, Vol. 5, 1935, p. 5, as cited by Hambro, supra, note 1, at 164, with reference to the PCIJ. For similar opinions in respect of the ICJ see Collins, supra, note 3, Chapter XIV.

17
Anglo Iranian Oil Co. (Interim Protection), ICJ, 1951, p. 89.

18
See generally Rosenne, supra note 10. See also Goldsworthy, supra, note 11; Maurice Mendelson: "Interim measures of protection and the use of force by States," in A. Cassese (ed.): The current legal regulation of the use of force, 1986, p. 337; Maurice Mendelson: "Interim measures of protection in cases of contested jurisdiction," British Year Book of International Law, 19721973, p. 259; J. G. Merrills: "Interim measures of protection in the recent jurisprudence of the International Court of Justice," International and Comparative Law Quarterly, Vol. 44, 1995, p. 90; W. A. Thirlway: "The indication of provisional measures by the International Court of Justice," in Rudolf Bernhardt (ed.): Interim measures indicated by international courts, 1994, 1-26; Shigeru Oda: "Provisional measures: the practice of the International Court of Justice," in Fifty Years of the International Court of Justice, 1996, pp. 541-56; Eelco Szabo: "Provisional measures in the World Court: binding or bound to be ineffective?," Leiden Journal of International Law, Vol. 10, 1997, pp. 475-89.

19
Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1986, p. 144, para. 289.

20
Application of the Genocide Convention, supra, note 8, para. 58.

21
Ibid., Separate Opinion of Judge Shahabuddeen, p. 353, at 365.

22
Aegean Sea Continental Shelf, ICJ Reports 1976, p. 9, para. 25, and comments by Weeramantry, supra, note 8, at p. 377.

23
Frontier Dispute (Burkina Faso/Mali), ICJ Reports 1986, p. 9, para. 19.

24
Weeramantry, supra, note 8, at p. 376.

25
Application of the Genocide Convention, supra, note 8. See the Separate Opinion of Judge Shahabuddeen, supra, note 21; Separate Opinion of Judge Weeramantry, supra, note 8; and Separate Opinion of Judge Ajibola, at page 390.

26
Shahabuddeen, supra, note 21, at pp. 367-68.

27
Ibid., at 366; Weeramantry, supra, note 8, at 374; Ajibola, supra, note 25, at p. 400.

28
Philip C. Jessup: "Foreword" to Jerome B. Elkind: Interim Protection: A Functional Approach, 1981, at XIII, as cited by Weeramantry, supra, note 8, at p. 386.

29
Sir G. Fitzmaurice: The Law and Procedure of the International Court of Justice, Vol. II, 1986, at 548, as cited by Weeramantry, supra, note 8, at p. 386.

30
Rolin, in Annuaire de l'Institut de Droit International, Vol. 45, I, 1954, at 487, as cited by Shahabuddeen, supra, note 21, at p. 366.

31
Sir H. Lauterpacht, in Annuaire de l'Institut de Droit International, Vol. 45, II, 1954, at 535-36, as cited by Shahabuddeen, supra, note 21, at p. 366.

32
Hambro, supra, note 1, at 168; Ajibola, supra, note 25, at pp. 401-03.

33
Weeramantry, supra, note 8, at p. 383.

34
Rosenne, supra, note 10, at p. 1459.

35
U. S. Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p. 21, para. 40, and comments by Rosenne, supra, note 10, at p. 1460.

36
Security Council Resolution 819 (1993), as discussed by Rosenne, supra, note 10, at p. 1460.

37
For a discussion of Rosenne's views see Goldsworthy, supra, note 11, at p. 274.

38
Rosenne, supra, note 10, at p. 1622.

39
Case Concerning the Vienna Convention on Consular Relations, Order on Provisional Measures, ICJ, 9 April 1998.

40
See the United States Supreme Court Decision in Breard v. Greene, April 1998, International Legal Materials, Vol. 37, 1998, at 826. See also the Resolution of the Hispanic-Luso-American and Philippine Institute of International Law on "The binding nature and effectiveness of provisional measures adopted by the International Court of Justice: discussion in the light of the Breard case between the Republic of Paraguay and the United States," Manila, 7-12 September 1998, Commission IV, at p. 14.

41
See generally A. A. Cançado Trindade: "Co-existence and co-ordination of mechanisms of international protection of human rights," Recueil des Cours de l'Académie de Droit International, Vol. 202, 1987-II, p. 13. With respect to the scope, legal effect and language interpretation concerning interim measures in the Inter-American Court of Human Rights, see the interesting discussion by Thomas Buergenthal: "Interim Measures in the Inter-American Court of Human Rights," in Bernhardt, supra, note 18, pp.69-94. Shahabuddeen, supra, note 21; Separate Opinion of Judge Weeramantry, supra, note 8; and Separate Opinion of Judge Ajibola, at page 390.

42
Hambro, supra, note 1, at p. 167.

43
For a discussion of the Algiers Declaration and the Claims Settlement Declaration in respect of interim measures, see George H. Aldrich: The Jurisprudence of the Iran-United States Claims Tribunal, 1996, at 137, and Charles N. Brower and Jason D. Brueschke: The Iran-United States Claims Tribunal, 1998, pp. 216-41.

44
See, for example, the following cases: E-Systems Inc. v. The Islamic Republic of Iran et al. Interim Award of 4 February 1983, 2 IranU.S.C.T.R., 51; Rockwell International Systems Inc. v. The Government of the Islamic Republic of Iran et al., Interim Award of 6 June 1983, 2 IranU.S.C.T.R., 369; RCA Global Communications Disc, Inc. et al. v. The Islamic Republic of Iran et al., Interim Award of 31 October 1983, 4 Iran-U.S.C.T.R., 5, 7, all as discussed in Aldrich, supra, note 43, pp. 13739.

45
E-Systems and Rockwell cases, supra note 44, as discussed in Aldrich, supra, note 43, at p. 138.

46
See, for example, Ford Aerospace and Communications Corp. et al. v. The Air Force of the Islamic Republic of Iran et al. Interim Award of 4 June 1984, 6 Iran-U.S.C.T.R., 104, as discussed in Aldrich, supra, note 43, at p. 140.

47
Touche Ross and Co. v. The Islamic Republic of Iran, Award of 30 October 1985, 9 Iran-U.S.C.T.R., 284, 294, as discussed in Aldrich, supra, note 43, at p. 140.

48
Charles N. Brower: "The Iran-United States Claims Tribunal," Recueil des Cours de l'Académie de Droit International, Vol. 224, 1990, at p. 182; and see also Brower and Brueschke, supra, note 43.

49
ICC Arbitration Rules 1998, Article 23.

50
UNCITRAL Model Law on International Commercial Arbitration, 1985, Article 17. See also generally Walter G. Semple: "The UNCITRAL Model Law and provisional measures in international commercial arbitration," The Arbitration and Dispute Resolution Law Journal, 1994, pp. 269-89.

51
United Nations Convention on the Law of the Sea, 1982, Article 290, par. 1. See generally Rudiger Wolfrum: "Provisional measures of the International Tribunal for the Law of the Sea", Indian Journal of International Law, Vol. 37, 1997, pp. 420-34.

52
The M/V "Saiga," Saint Vincent and the Grenadines v. Guinea, Case No. 1, International Tribunal for the Law of the Sea, 4 December 1997. See also the comment on this case by Bernard H. Oxman, American Journal of International Law, Vol. 92, 1998, pp. 278-82.

53
ICSID: History of the Convention, Vol. II, 1968, at p. 206.

54
Ibid., at p. 814 et seq.

55
Charles N. Brower and Ronald E. M. Goodman: "Provisional measures and the protection of ICSID jurisdictional exclusivity against municipal proceedings," ICSID Review-Foreign Investment Law Journal, (FILJ), Vol. 6, 1991, p. 431, at 440-41. See also Christoph Schreurer: "Commentary on the ICSID Convention: Article 47," forthcoming in ICSID Review-FILJ, para. 24.

56
Schreurer, supra note 55, para. 22, with reference to the replacement of "prescribe" by "recommend" by a large majority.

57
Ibid., para. 23.

58
Paul D. Friedland: "ICSID and Court-Ordered Provisional Remedies: An Update," Arbitration International, Vol. 4, 1988, p. 161, at 163.

59
Brower and Goodman, supra, note 55, at p. 441.

60
See Note A to Arbitration Rule 39 of 1968, ICSID Reports, Vol. 1, 1993, p. 99. Inherent powers of ICSID Tribunals in respect of procedural rules are also discussed in Introductory Note D to the 1968 Arbitration Rules.

61
See supra, note 31.

62
Schreurer, supra, note 55, para. 23.

63
Holiday Inns v. Morocco, ICSID Case No. ARB/72/1, as commented by P. Lalive: "The First 'World Bank' Arbitration (Holiday Inns v. Morocco)-Some Legal Problems," British Year Book of International Law, Vol. 51, 1980, p. 123, at 136 et seq. See generally Georges R. Delaume: "ICSID Tribunals and Provisional Measures-A review of the cases," ICSID Review-FILJ, Vol. 1, 1986, 392.

64
See also AMCO v. Indonesia, ICSID Reports, Vol. 1, 1993, p. 410, at 412.

65
AGIP S. p. A. v. Government of the People's Republic of the Congo, ICSID Reports, Vol. 1, 1993, p. 306.

66
MINE v. Guinea, Decision of 4 December 1985, as cited in Paul D. Friedland: "Provisional Measures and ICSID Arbitration," Arbitration International, Vol. 2, 1986, p. 335, at 346.

67
Schreurer, supra, note 55, para. 25.

68
As cited by Brower and Goodman, supra, note 55, at p. 441.

69
Décision du Tribunal de première instance de Genève, 13 March 1986, ICSID Review-FILJ, Vol. 1, 1986, p. 383; Autorité de Surveillance des offices de poursuite pour dettes et de faillite, Genève, Décision du 7 Octobre 1986, ICSID Review-FILJ, Vol. 2, 1987, p. 170. See generally Bertrand P. Marchais: "Mesures provisoires et autonomie du système d'arbitrage CIRDI," Droit et Pratique du Commerce International, Vol. 14, 1988, p. 275, at 284-86; Ibid.: "ICSID Tribunals and Provisional Measures-Introductory note to Decisions of the Tribunals of Antwerp and Geneva in MINE v. Guinea," ICSID Review-FILJ, Vol. 1, 1986, p. 372.

70
Autorité de Surveillance, Décision cit., supra, note 69, as cited by Schreurer, supra, note 55, para. 28.

71
Atlantic Triton Co. Ltd. v. People's Republic of Guinea, Award of April 21, 1986, ICSID Reports, Vol. 3, 1995, p. 13; the Decision of the Cour d'appel de Rennes of October 26, 1984, is reproduced at p. 4.

72
Christoph Schreurer: "Commentary on the ICSID Convention: Article 26," ICSID Review-FILJ, Vol. 12, 1997, p. 151, at pp. 183-92.

73
Schreurer, supra, note 55, para. 24.

74
Ibid., para. 24.

75
Ibid., para 31.

76
See Note B to Arbitration Rule 39 of 1968, ICSID Reports, Vol. 1, 1993, p. 99.

77
For references to the literature see Antonio R. Parra: "The Powers of the Arbitrator and the Experience of the Arbitral Institutions: the Practices and Experience of the ICSID in Conservatory and Provisional Measures in International Arbitration," ICC Publication No. 519, 1993, p. 37, at p. 41.

78
Lalive, supra, note 63, at p. 137.

79
AGIP v. Congo, supra note 65; MINE v. Guinea, supra, note 66.

80
Parra, supra, note 77, at p. 43.

81
See, for example, Arbitration Rule 39 (4), 1984.

82
For the morally binding nature of interim measures recommended under ICSID, see Caron: "Interim measures of protection: Iran-U. S. Claims Tribunal," ZAORV, Vol. 46, 1986, p. 466, at 478.

83
Fedax N. V. v. Venezuela, Award of March 9, 1998, Unreported.

84
Vacuum Salt Product Ltd. v. Government of the Republic of Ghana, Award of February 16, 1994, ICSID Review-FILJ, Vol. 9, 1994, p. 72.

85
See G. R. Delaume: "ICSID Arbitration and the Courts," American Journal of International Law, Vol. 77, 1983, p. 784; E. Gaillard: Note, Journal du Droit International, Vol. 112, 1985, p. 934; Ibid.: Note, Journal du Droit International, Vol. 114, 1987, p. 127; B. Audit: Note, Revue Critique de Droit International Privé, Vol. 76, 1987, p. 762; Friedland, supra, note 58, 66; Marchais, supra, note 69, with particular reference to the interesting distinction made by Gaillard as to different kind of provisional measures and the respective role of domestic courts and arbitral tribunals, at pp. 298-99; Parra, supra, note 77. See also generally International Chamber of Commerce, International Court of Arbitration: "Conservatory and Provisional Measures in international arbitration," IX Joint ICC/AAA/ICSID Colloquium on International Arbitration, Paris, November 6, 1992, 1994; Claude Goldman: "Mesures provisoires et arbitrage international," Revue de Droit des Affaires internationales, 1993, pp. 326; and the Resolution adopted by the International Law Association on provisional and conservatory measures in private international litigation, Helsinki Conference, 1996, and comments by Catherine Kessedjian: "Mesures provisoires et conservatoires a propos d'une resolution adptée par l'Association de Droit International," Journal du Droit International, Vol. 124, 1997, p. 103.

86
Lalive, supra, note 63, at p. 160.

87
Atlantic Triton Co. Ltd. v. People's Republic of Guinea, Décision de la Cour de Cassation de France, November 18, 1986, ICSID Review-FILJ, Vol. 2, 1987, p. 182.

88
Attorney General of New Zealand v. Mobil Oil New Zealand Ltd. et al., 1987, ICSID Review-FILJ, Vol. 2, 1987, at p. 495.

89
See, for example, Gaillard and Audit, as cited supra, note 85.

90
Parra, supra, note 77, at 43, with reference to the view of the tribunal in MINE v. Guinea.

91
Arbitration Rule 39 (5), as introduced on 26 September 1984.

92
Schreurer, supra, note 55, para. 4, 54.

93
Ibid., para. 54.

94
Marchais, supra, note 69, at pp. 30001.

95
Friedland, supra, note 58, at p. 165.

96
Ibid., at p. 164.

97
Permanent Court of Arbitration, Optional Rules for arbitrating disputes between two States, 1992, Article 26 (3).

98
Case cit., supra, note 88, at p. 505.

99
Ibid., with reference to Redfern and Hunter: Law and Practice of International Commercial Arbitration, 1986, at p. 32.