'1. This Order is issued in response to a Request for interim measure submitted by Claimant ... (the "Request") in accordance with Article 23(1) of the ICC Rules of Arbitration (the "Rules") and seeking the suspension, until the ultimate determination of the dispute on the merits in the Final Award, of the effects of points 2 and 3 of the Partial Award rendered by this Arbitral Tribunal ..., i.e. the postponement of (i) the return of the Performance Security to Respondent, and (ii) the payment of the sum [established by the DAB] to Respondent.

Reference is made to the Partial Award for a complete statement of the relevant procedural and factual backgrounds and for the meaning of Capitalized words that are not defined herein.

.........

7. It is clear from the Partial Award that, while it was held that the Decisions of the DAB should be complied with by the Parties, this is subject to the Arbitrators retaining their "full power to open up, review and revise" such Decisions of the DAB and "the merits of the case being reserved". Thus, both [Claimant] returning to [Respondent] the Performance Security and the payment by [Claimant] to [Respondent] of the sum [established by the DAB] are provisional decisions, the effects of which may be reversed in a later award of the Arbitral Tribunal.

Article 23(1) of the Rules provides:

Unless the parties have otherwise agreed, as soon as the file has been transmitted to it, the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Tribunal considers appropriate.

Thus, the Arbitral Tribunal may order any interim or conservatory measure it deems appropriate, including in an order, giving reasons.

However, it is not clear that the type of relief sought in the Request is available at all under Article 23(1) of the Rules, to the extent that it would relate to a stay by an arbitral tribunal of the enforcement of an award issued by the same arbitral tribunal, even though the effects of such award may ultimately be reversed, again by the same tribunal. The Parties have not, in their discussion of the Request, examined the conditions that are generally set out for stay of enforcement in arbitral case law or on a comparative basis and, in any event, the authorities cited by Claimant regarding the preservation of the status quo have no relevance for the matter at hand. As rightly pointed out by Respondent, these authorities concern cases where the tribunal was asked to preserve evidence or to prevent an aggravation of the dispute (for instance the unjustified drawing-down of a bank guarantee). They do not address the issue whether compliance with a partial or interim award can qualify as an aggravation of the dispute, and the Arbitral Tribunal believes that it is doubtful whether the concept of an "aggravation of the dispute" could extend to carrying out an award.

The basis for the relief sought in the Request would be a balance of interests, in which the Arbitral Tribunal would find that Claimant would suffer a clear and unacceptable risk of not recovering any amounts paid out to Respondent in the event that Claimant were to prevail at the end of the proceedings. Indeed, Claimant submits that the return of the Performance Security and the payment of the amount [established by the DAB] may cause "severe, irreversible and unnecessary injury to Claimant", especially "in the context of the current economic crisis". It is noteworthy that Claimant stresses that, being a State, it is and will remain solvent until the final determination of the matter on the merits. Conversely, Respondent also argues that it is entitled to the return of the Performance Security and to the payment of [the amount established by the DAB], as was held in the Partial Award. In addition, Respondent would arguably incur at least equally severe and irreversible injury as that alleged by Claimant as a result of not obtaining performance of the Partial Award.

As noted by a recognized author: "(...) it is generally believed that 'arbitral tribunals should grant or deny interim measures on the basis of a comparative law approach'. According to this suggestion, arbitral tribunals should consider the following criteria: fumus boni iuris, periculum in mora, and proportionality" (Ali Yesilirmak, Provisional Measures in International Commercial Arbitration (2005), pp. 170-189, especially § 5-21). In order to rule on the Request, the Arbitral Tribunal has however focussed on one single issue, i.e. whether the relief sought is urgent in order to avoid serious and irreparable harm to Claimant (periculum in mora).

The test that the Arbitral Tribunal is applying requires that all three conditions (prima facie prospects of success on the merits; serious and irreparable harm; proportionality) are met. If one of the conditions is not fulfilled, the relief requested will be denied. Given that the Arbitral Tribunal considers that the condition of serious and irreparable harm is not met, it does not need to examine whether Claimant's case has a prima facie chance of success on the merits nor the test of proportionality.

The Arbitral Tribunal has examined whether it is established that the relief sought in the Request is urgent insofar as, in order to avoid serious and irreparable damage to the applicant's interests, it must be granted and produce its effects before a decision is reached on the merits of the matter (periculum in mora). In the instant matter, Claimant should therefore file compelling evidence that there is a strong likelihood that Claimant will not be able to obtain performance of an award that would order Respondent to pay it sums of a comparable or greater size as those at stake here, should such an award ultimately be made. In this respect, Claimant has not put forward any evidence at all that Respondent may not be able to repay such amounts, be it in the course of the proceedings leading to the Partial Award, with the Request or in its Reply. The hardship under which Claimant is at this time because of the worldwide economic crisis may explain the reasons while Claimant would prefer to avoid payment in the absolute, but they are not of a different nature as those experienced by any party which has to perform a judgment or an award. More importantly, it has no bearing as to the risk that recovery may ultimately be impossible which, again, should be the principal underlying reason for such relief.

Moreover, the mere fact of a worldwide economic crisis does not suffice in itself to render plausible, let alone to demonstrate the likelihood of, Respondent's becoming insolvent more than this risk exists for any other business entity. It cannot be assumed that just any business entity, not being a State, ("a foreign private limited liability company which may eventually become insolvent or lose (partially or totally) the arbitration on the merits and may not reimburse such payment") represents such a credit risk as to justify a temporary stay of enforcement of a money award pending further proceedings, especially where such an award was made pursuant to the contractual arrangements between the parties, such as in this matter. Again, the Tribunal was not presented with any evidence of a risk of Respondent's possible future insolvency, or of Respondent's economic situation in general.

Likewise, the fact that Claimant may have "to follow a burdensome and costly procedure in [Respondent's country] in order to obtain the recovery of the payment" is inherent to international business and cannot be seen as special circumstances giving rise to serious and irreparable damage.

Thus, Claimant failed to establish that the relief sought is urgent in order to avoid serious and irreparable damage to Claimant.

8. Under Article 23(1) of the Rules, the Arbitral Tribunal may further make the granting of any interim or conservatory measure it deems appropriate "subject to appropriate security being furnished by the requesting party''.

However, Claimant made no submission on the possibility of such security, nor did Respondent.

Against such a background, replacing Claimant's payment obligation under the Partial Award by the posting of a bank bond would (1) be in clear contradiction of the reasons and terms of the Partial Award and (2) be very different from what Claimant is asking. If the Arbitral Tribunal decided to subject the payment by Claimant to the provision of a bank guarantee by Respondent, this would also be different from the operative part of the Partial Award and from what Claimant is asking.

9. As a result, the Arbitral Tribunal finds that it is not presented with the legal and factual elements required for an order that the effects of points 2 and 3 of the Partial Award rendered by the Arbitral Tribunal … i.e. the postponement of (i) the return of the Performance Security to Respondent, and (ii) the payment of the sum [established by the DAB] to Respondent, be suspended and temporarily modified until a further decision from the Arbitral Tribunal, either in an Order or in an Award.

The Request is denied.

10. This Order is without prejudice to any other Order or to any Award that the Arbitral Tribunal may decide to adopt subsequently.'