No sooner had John Beechey been elected to the presidency of the ICC International Court of Arbitration than he was hailed as one who would lead the Court 'with efficiency and vision'.2 His tenure as President of the ICC Court bore witness to these prescient words. John notably presided over the introduction of innovative, revised Arbitration Rules in 2012 with the aim to ( in his own words ( 'promote efficiency in the arbitral process ... consistent with the overriding objective of doing justice between the parties'.3 His many actions as President reinforced his twin goals of efficiency and justice.

It is a privilege to contribute to this book in his honour. I write about provisional measures, a topic on which John has previously written.4 First, the article addresses the availability of provisional measures in international arbitration and the prevailing international standards that apply. Second, the article considers the reticence that tribunals sometimes show in ordering provisional measures. Finally, the article borrows John's stated objectives of promoting efficiency and doing justice between the parties to advocate greater use of provisional measures by tribunals to promote efficient and just resolution of international arbitral disputes.

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Availability of provisional measures as a remedy

Provisional measures encompass a broad set of interim remedies at a tribunal's disposal to maintain the status quo ante. They are primarily aimed at the preservation of the parties' rights and ensuring that the award will be effective when rendered.

It is generally undisputed that tribunals have the power to grant provisional measures. The prevailing procedural rules of arbitral institutions and the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) plainly authorize tribunals to grant provisional or interim measures, whichever terminology is used. Moreover, the scope of provisional measures available to a tribunal is unfettered given the broad discretionary terms adopted in commonly-used rules.5

For example, Article 26 of the UNCITRAL Arbitration Rules provides simply that '[t]he arbitral tribunal may, at the request of a party, grant interim measures', and then proceeds to define such measures and set forth standards for tribunals in ordering them. Similarly, Article 28 of the ICC Arbitration Rules provides that '[u]nless 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'. Rule 39 of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) provides that '[a]t any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal' (§ 1) without limitation on other provisional measures that it may recommend 'on its own initiative' (§ 3). The absence of uniformity in the language used suggests some degree of difference between the types of measures that may be granted and the conditions, if any, under which they may be granted depending on the applicable rules. The provision in the ICC Arbitration Rules also serves as a reminder that parties are free to vary procedures concerning provisional measures.

The UNCITRAL Model Law on International Commercial Arbitration was amended in 2006 to include a thorough Chapter IV A on interim measures and preliminary orders. It not only authorizes tribunals to order such measures (Art. 17), but it provides procedures, standards and enforcement mechanisms (Arts. 17A(17J). Accordingly, there is no doubt concerning the power of tribunals to grant provisional or interim measures as a matter of principle.

At one point in the 1990s, the question whether or not provisional measures in certain types of proceedings were binding was unsettled. The uncertainty arose out of the language used in Article 41(1) of the Statute of the International Court of Justice (ICJ), which provides that '[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to [Page355:] be taken to preserve the respective rights of either party'. The choice of 'indicate' led a majority to view such provisional measures of the ICJ as non-binding. Likewise, the use of 'recommended' in the ICSID Convention could be interpreted as non-binding,6 but its application by tribunals was not consistent.7

In 2001, the judgment of the ICJ in LaGrand resolved the question by holding that provisional measures are binding under the correct interpretation of Article 41 of the Statute of the ICJ.8 Since the relevant provision in the ICSID Convention drew inspiration from Article 41 of Statute of the ICJ,9 the LaGrand decision influenced the practice of ICSID tribunals in their treatment of provisional measures as binding. In recent years, the focus has thus shifted from the character of provisional measures to the standards that a tribunal ought to apply.

One preliminary issue concerns the source - international or national - of the applicable standards. In a case where national arbitration laws apply, typically such laws 'do not address the standards that arbitrators apply in considering whether to order provisional measures'10 with the exception of UNICTRAL Model Law countries that have incorporated the 2006 amendments setting out the 'conditions for granting interim measures' (Art. 17A).11

In any case, the practice of tribunals shows that '[m]ost arbitral awards and orders concerning provisional measures look to international standards, expressed in earlier awards and commentary, rather than to national court provisions'.12 This practice accords with the notion that the system of international arbitration is generally distinct from national courts and, as demonstrated below, international law heavily influenced the development of standards employed by tribunals today. For this reason, the standards applied by national courts at the seat of the arbitration are irrelevant in an international arbitration located there.

Prevailing international standards, which derived from ICJ jurisprudence, require that a party seeking provisional relief establish: (1) prima facie jurisdiction; (2) prima facie establishment of the right to the relief sought; (3) urgency; (4) imminent danger of serious prejudice [Page356:] (necessity); and (5) proportionality.13 Before turning to each of these elements, an appropriate starting point is to consider the international law principle of non-aggravation of a dispute, which fairly represents the root of the specific standards that have been developed by tribunals.

Principle of non-aggravation of a dispute in international law

At its essence, the principle of non-aggravation of a dispute seeks to preserve the respective rights of the parties to a dispute until a final decision has been rendered. This forms the express premise to the ICJ's power to grant provisional measures under Article 41 of the Statute of the ICJ. Its effect, according to the ICJ, is a recognized principle of international law that 'the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute'.14 Based on this principle, the ICJ has routinely made non-aggravation orders when granting provisional measures. In recent years, cases have tested the question of whether non-aggravation orders are simply ancillary to provisional measures or an independent right entitled to protection, but the general consensus at the ICJ appears to regard non-aggravation orders as ancillary.15

The influence of the principle of non-aggravation of a dispute on international arbitration tribunals is evident. It can be found in the travaux préparatoires to the ICSID Convention and the commentary to the 1968 edition of the ICSID Arbitration Rules, which recognized that 'once a dispute is submitted to arbitration the parties should not take steps that might aggravate or extend their dispute or prejudice the execution of the award' (Rule 39, Note A). ICSID jurisprudence [Page357:] is also replete with affirmations of this principle.16 Consequently, the standards commonly employed by international tribunals today ( which will be addressed below ( should be understood in the light of this core principle.

Prima facie jurisdiction

It is well established that arbitral tribunals may order provisional measures so long as 'there is at least a prima facie basis upon which ... jurisdiction' to determine the merits 'might be established'.17 The fact that only a prima facie showing is required is important. As explained by the ICJ, the applicant 'need not satisfy ... in a definitive manner that [the tribunal] has jurisdiction as regards the merits of the case'.18

Prima facie establishment of the right of relief sought

A similarly deferential standard applies to a showing on the merits. In determining whether a party seeking provisional measures has established a right to the relief sought, a tribunal 'need not go beyond whether a reasonable case has been made which, if the facts alleged are proven, might possibly lead the Tribunal to the conclusion that an award could be made in favor of [the requesting party]'.19 Some rights, such as the integrity of the proceedings, and in particular access to and the integrity of the evidence,20 more readily meet the threshold. In Quiborax, the tribunal ordered measures requiring Ecuador to suspend criminal proceedings even against the claimants' potential witnesses in order to mitigate their reduced willingness to cooperate in ICSID proceedings.21 The right to specific performance presents greater difficulty, but the claimant in Burlington obtained [Page358:] provisional measures even with respect to a claimed right of specific performance of a contract. The tribunal in that case held that 'at first sight at least, a right to specific performance appears to exist' and noted that other factual and legal elements supported the possibility of specific performance.22 The question whether specific performance is impossible or disproportionate was left to be properly dealt with at the merits stage.23 Accordingly, the claimant satisfied the prima facie showing on the merits.

On the other hand, the tribunal in Occidental rejected the request for provisional measures because the tribunal believed that, because of the special sovereign interest in controlling its natural resources, the tribunal would not have the authority to order specific performance of a Participation Contract that had been terminated by the State. Therefore, it held that the claimants failed to establish a 'strongly arguable case' to specific performance of the contract and rejected certain provisional measures that would have been relevant only to such specific performance.24

While the standards of the ICJ and the UNCITRAL Model Law are formulated differently, it is clear that the international standards impose less onerous standards than national courts, which often require a likelihood of success or a 'real prospect' of success.25 In Construction of a Road, the ICJ stated 'the Court may exercise this power [to indicate provisional measures] only if it is satisfied that the rights asserted by a party are at least plausible'. 26 The standard under the UNCITRAL Model Law appears to require only a bit more: 'a reasonable possibility that the requesting party will succeed on the merits of the claim'.27 Both standards thus fall well below a fifty per cent chance of success. These standards permit a tribunal to order provisional measures without appearing to pre-judge the eventual merits of the claim.

Circumstances of urgency, necessity and proportionality of measures

The final three elements describe the circumstances in which provisional measures are warranted - where the situation is urgent and the requested relief is necessary28 ( and the constraints of proportionality on the requested measures.29

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A situation is urgent when 'action prejudicial to the rights of either party is likely to be taken before the Court has given its final decision'.30 The standard thus evokes the long-standing principle that a party should not aggravate the dispute while it is pending. A number of tribunals have held that the assessment of taxes gave rise to the requisite degree of urgency, even where collection of those taxes may not have been imminent. In Paushok,31 for example, the tribunal found that the real likelihood of impending bankruptcy of the investment, given its inability to make immediate payment out of its own resources or using viable alternative sources of debt or equity, met this standard.32

In City Oriente, the tribunal held that there was sufficient urgency even where it was unlikely that the claimant would have to pay to the tax at issue for a year or more.33 While the impairment of the claimant's rights was relevant, the tribunal emphasized the objective of preventing 'the enforced collection or termination proceedings ... 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'.34 The presence of aggravation (and its objectionable nature) likely persuaded the tribunal that 'the urgency requirement is met by the very own nature of the issue'.35 This approach was affirmed by the tribunal in Burlington, in which measures 'intended to protect against the aggravation of dispute during the proceedings' fulfilled the urgency requirement 'by definition'.36

The requirement of necessity looks at the character of the injury or harm. The ICJ has consistently considered this requirement to entail irreparable prejudice or harm that is not adequately compensated for by damages.37 Article 17A of the UNCITRAL Model Law requires 'harm not adequately reparable by an award of damages'. Tribunals have again often understood this requirement in light of the principle of non-aggravation. For example, the tribunal in Burlington accepted that the risk of 'destruction of an ongoing investment and of its revenue-producing potential' satisfied the irreparable harm requirement.38 Indeed, the 'flexible meaning' of this requirement could be seen in Paushok, in which the tribunal opined that irreparable harm does not require a showing that the injury complained of is not remediable by damages.39 What is required is a showing of 'grave, substantial, or serious injury'. This formulation is generally accepted in international [Page360:] arbitration.40 The tribunal in Perenco subscribed to this 'substantial prejudice' standard and held that the risk of the claimant's business being 'crippled, if not destroyed' constituted sufficient irreparable harm.41

Finally, the proportionality element requires a tribunal 'to weigh the balance of inconvenience in the imposition of interim measures upon the parties'.42 Typically, a tribunal will assess whether the harm likely to result if the provisional measures are not ordered 'substantially outweighs the harm that is likely to result to the party against whom the measure is directed'.43 Irreparable harm to the party against whom the provisional measures are directed would weigh against their being granted by the tribunal.44

Reluctance to use provisional measures

This article has recognized various cases in which tribunals have exercised their discretion to grant provisional measures. However, as a general observation, tribunals often shy away from awarding provisional measures. Provisional measures are granted infrequently and characterized as 'extraordinary measures which should not be recommended lightly'.45

The requirements attaching to a grant of provisional measures include a prima facie basis that jurisdiction might be established and prima facie establishment of the right to relief. Some tribunals fear that, despite the prima facie nature of these requirements, granting provisional measures may be seen as prejudging a case on jurisdiction and the merits. Provisional measures applications are presented in the early stages of the proceedings, and the available evidence is far less than will eventually be heard on the merits. Because arbitrators seek to minimize the risk of any attack on the eventual award under the New York Convention, they often prefer to err on the side of caution.

In my view, this caution is misplaced. Because the prima facie standard for granting provisional relief is so much lower than the 'more likely than not' standard to be applied on the merits - only plausibility or a reasonable possibility of success is needed ( it cannot reasonably be argued that ordering such relief constitutes a prejudgment of the merits after all the evidence is heard. I am not aware of any awards that have set aside or refused enforcement because an order of provisional measures caused the tribunal no longer to be independent or impartial or otherwise constituted a ground for vacatur or non-enforcement under national law or the New York Convention.

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Provisional measures promote efficiency and justice between the parties

Because the standards for granting provisional measures do not impinge on the tribunal's eventual ability to decide the case on the merits, tribunals should make more effective use of them. Properly used, such measures can promote efficiency in the arbitral process and do not reduce the ability to do justice between the parties.

The core principle of non-aggravation reflects this opportunity. If a tribunal can maintain the status quo, it can often reduce the number and complexity of issues to be decided at the merits stage. Preventing a party from taking an action that may violate the relevant contract or treaty can potentially avoid a protracted and complicated quantum phase of arbitral proceedings. If the threatened action is eventually found to be illegal, but a provisional measures order has stopped it from occurring, the parties no longer need to submit evidence, usually including expert reports, on the damage caused by that action, and of course the tribunal would no longer need to consider and to draft an award about such damages. This is the very purpose of the non-aggravation principle: by preventing an action that aggravates the dispute, the tribunal simplifies the proceedings.

In such circumstances, a proper provisional measures order can also provide better justice for the parties. Calculations of damages, no matter how detailed or based on evidence of the parties' actual operations, are necessarily estimates. Arbitrators must choose between conflicting evidence. Often they need to make projections about operations in the future, including complex forecasts of uncertain events, pricing, capacity and other issues. By preventing the infringing action in the first place, these uncertainties are removed. The claiming party does not receive an estimate of the value of future performance but relies on the actual performance instead.

Tribunals can effectively control the risk involved in such orders - that on the merits the challenged and enjoined action may not violate the relevant contract or treaty - in their consideration of one of the essential elements. Tribunals must evaluate the requirement of proportionality of the requested relief by balancing each party's harm. Tribunals also have the power to impose measures directed at the requesting party, such as security for costs.46 The flexibility of arbitral procedures also permits a tribunal to revisit any provisional measures ordered - or indeed denied - at a later stage.

Moreover, like a well-planned preliminary question that may resolve an important issue in a separate, early phase, a proper provisional measure may assist the parties in better understanding the probabilities of success or failure in the case - even given the lower prima facie threshold that must be met. A hearing on provisional measures can [Page362:] present important evidence; witnesses' credibility and ability to testify convincingly may be tested; arbitrators' questions may reveal issues or concerns the parties may not have considered. Thus, a provisional measures order may promote efficiency in the same manner as other procedures that have gained popularity over time, such as bifurcation or phasing of issues and resort to emergency arbitrators, by facilitating settlement discussions and bringing proceedings to an early end.

In sum, proper consideration of provisional measures can increase efficiency and better achieve the objective of doing justice between the parties. Tribunals have an almost unfettered ability, assuming the standards for relief are met, to craft measures that are appropriate for the case and the parties and that, most importantly, will prevent the aggravation of the dispute.



1
Co-Chair, International Dispute Resolution Group of Debevoise & Plimpton LLP; President, International Bar Association; dwrivkin@debevoise.com.The author gratefully acknowledges the assistance of Fiona Poon of Debevoise & Plimpton in preparing this article.


2
Global Arbitration Review, 'John Beechey elected ICC chair', 13 June 2008, http://globalarbitrationreview.com/news/article/14604/john-beechey-elected-icc-chair/.


3
ICC, 'ICC launches new rules of arbitration', 12 Sept. 2011, http://www.iccwbo.org/News/Articles/2011/ICC-launches-new-rules-of-arbitration/.


4
J. Beechey & G. Kenny 'How to Control the Impact of Time Running between the Occurrence of the Damage and its Full Compensation: Complementary and Alternative Remedies in Interim Relief Proceedings' in F. De Ly & L. Lévy, eds., Interest, Auxiliary and Alternative Remedies in International Arbitration, ICC Institute of World Business Law, Dossier V (2008) 91.


5
National arbitration laws may also apply.


6
C.H. Schreuer et al., The ICSID Convention: A Commentary (Cambridge University Press, 2001) at 757, 758.


7
See e.g. Maffezini v. Spain, ICSID Case No. ARB/97/7, Procedural Order No. 2 (28 Oct. 1999), § 9; Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Procedural Order No. 1 (1 July 2003), § 4.


8
LaGrand Case (Germany v. U.S.), Judgment of 27 June 2001, ICJ Reports 2001, 466, §§ 99(109.


9
Pey Casado & President Allende Found. v. Chile, ICSID Case No. ARB/98/2, Decision on Provisional Measures (25 Sept. 2001), § 17.


10
G.B. Born, International Arbitration: Law and Practice (Kluwer, 2012) at 207.


11
UNCITRAL Model Law (2006), Art. 17A.


12
G.B. Born, International Commercial Arbitration, 2d ed. (Kluwer, 2014) at 2465. See also A. Yesilirmak, Provisional Measures in International Commercial Arbitration (Kluwer, 2005) at 172, 173.


13
See e.g. Paushok et. al. v. The Government of Mongolia, UNCITRAL, Order on Interim Measures (2 Sept. 2008) (Paushok), § 45; Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan, ICSID Case No. ARB/12/1, Decision on Provisional Measures (13 Dec. 2012), § 118; EnCana Corporation v. Republic of Ecuador, LCIA Case No. UN3481, Interim Award (13 Jan. 2004), § 13.


14
The Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Interim Measures of Protection, Order (5 Dec. 1939), PCIJ, Series A/B, Fascicule No. 79 at 199.


15
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Order (23 Jan. 2007), ICJ Reports 2007, 3, § 49.


16
Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on Request for Provisional Measures (9 Dec. 1983), § 412; Occidental Petroleum Corp., Occidental Exploration & Production Co. v. Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures (17 Aug. 2007) (Occidental), § 96; City Oriente Limited v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador, ICSID Case No. ARB/06/21, Decision on Provisional Measures (19 Nov. 2007) (City Oriente), § 55; Burlington Resources, Inc. v. Republic of Ecuador (formerly Burlington Resources Inc., and others v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador), ICSID Case No. ARB/08/5, Procedural Order No. 1 on Provisional Measures (29 June 2009) (Burlington), §§ 61-68; Quiborax S.A., Non Metallic Minerals S.A. & Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures (26 Feb. 2010) (Quiborax), §§ 134-137.


17
Perenco Ecuador Ltd. v. Republic of Ecuador, ICSID Case No. ARB/08/6, Decision on Provisional Measures (8 May 2009) (Perenco), § 39. See also Quiborax, § 108; Burlington, § 49.


18
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 Mar. 2011 (Construction of a Road), ICJ Reports 2011, 398 at 402.


19
Paushok, § 56.


20
See e.g. Biwater Gauff (Tanzania Ltd. v. United Republic of Tanzania, ICSID Case No. ARB 05/22, Procedural Order No. 1 (31 Mar. 2006) (Biwater Gauff); Quiborax.


21
Quiborax, §§ 143-148.


22
Burlington, § 71.


23
Ibid., § 70.


24
Occidental, § 86.


25
See e.g. American Cyanamid Co. (No. 1) v. Ethicon Ltd [1975] UKHL 1 at 2-5.


26
Construction of a Road, § 53.


27
UNCITRAL Model Law, Art. 17A(1)(b).


28
Quiborax, § 113; Biwater Gauff, § 75; City Oriente, § 54.


29
Paushok, §§ 5, 79.


30
ICJ, Avena and Other Mexican Nationals (Mexico v. United States of America), Order of 16 July 2008, ICJ Reports 2008, 311, § 66.


31
Paushok, § 43.


32
Ibid., §§ 60(61.


33
City Oriente, § 69.


34
Ibid.


35
Ibid.


36
Burlington, § 74.


37
Denunciation of Treaty of November 2nd, 1865, between China and Belgium (Belgium v. China), Order of 8 Jan. 1927, PCIJ, Series A, No. 8, 7; Construction of a Road, § 63.


38
Burlington v. Ecuador, § 83.


39
Paushok, § 68-69.


40
G.B. Born, supra note 12 at 2470.


41
Perenco, § 53.


42
Paushok, § 79.


43
UNCITRAL Model Law, Art. 17A(1)(a).


44
Burlington, § 81, citing Occidental, § 93.


45
Occidental, § 59.


46
See e.g. RSM Production Corporation v. Saint Lucia, ICSID Case No. ARB/12/10, Decision on Saint Lucia's Request for Security of Costs (13 Aug. 2014).