Except as the parties otherwise agree, the Tribunal may recommend any provisional measures that may be necessary to preserve the parties’ rights during the proceeding (Article 47 of the ICSID Convention, Arbitration Rule 39).
A party may seek provisional measures at any time after proceedings have been instituted. If the request is made before the Tribunal has been constituted, the Secretary-General fixes a briefing schedule so that the Tribunal may consider the request as soon as possible after constitution (Arbitration Rule 39(5)).
A party requesting provisional measures must specify the rights to be preserved, the measures requested, and the circumstances that require such measures (Arbitration Rule 39(1)).
Tribunals will typically consider whether the provisional measures are necessary, urgent and required to avoid irreparable harm. Examples of requests for provisional measures concern the release of confidential information, obtaining or preserving evidence, securing financial guarantees, staying parallel domestic or arbitral proceedings, staying the execution of administrative decisions, or preventing prejudicial interference by one party.
The Tribunal may recommend, modify or revoke provisional measures after giving each party an opportunity to present its observations (Arbitration Rule 39(4)).