Provisional Measures – Additional Facility Arbitration (2022 Rules)

Except as the parties otherwise agree, the Tribunal may order any provisional measures necessary to preserve the parties’ rights (Additional Facility Arbitration Rule 57).

For example, a party may request provisional measures to:

  • prevent action that is likely to cause current or imminent harm to that party or prejudice to the arbitral process (e.g., preventing prejudicial interference by one party)
  • maintain or restore the status quo (e.g., staying parallel domestic or arbitral proceedings, or staying the execution of administrative decisions) or
  • preserve evidence that is relevant to the resolution of the dispute.

Provisional measures may be sought at any time during the proceeding. The party requesting provisional measures must specify the rights to be preserved, the measures requested, and the circumstances that require such measures (Additional Facility Arbitration Rule 57(2)(a)). The Tribunal determines the briefing schedule in consultation with the parties, unless the request is made before the constitution of the Tribunal, in which case the Secretary-General of ICSID fixes the time limits for written submissions (Additional Facility Arbitration Rule 57(2)(c)).

The Tribunal may hold a hearing but is not required to, and it must issue its decision within 30 days after its constitution (if all submissions have been previously filed) or after the last submission on the request (if that submission is filed after Tribunal constitution).

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The Tribunal must consider all relevant circumstances when deciding whether to recommend a provisional measure. In particular, the Tribunal must consider whether the measures are necessary and urgent, and the effect that they may have on each party (Additional Facility Arbitration Rule 57(3)).

Parties must disclose any material change in the circumstances upon which the provisional measures were recommended (Additional Facility Arbitration Rule 57(5)).

The Tribunal may modify or revoke provisional measures on its own initiative or at the request of a party after giving each party an opportunity to present its observations (Additional Facility Arbitration Rule 57(6)).

A party can request interim or conservatory measures from a judicial or other authority (Additional Facility Arbitration Rule 57(7)).

Requests for Security for Costs are addressed pursuant to Additional Facility Arbitration Rule 63.