Provisional Measures - ICSID Convention Arbitration (2022 Rules)
Except as the parties otherwise agree, the Tribunal may recommend any provisional measures necessary to preserve the parties’ rights (Article 47 of the ICSID Convention, Arbitration Rule 47).
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)
- 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 (Arbitration Rule 47(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 (Arbitration Rule 47(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).
The Tribunal must consider all relevant circumstances when deciding whether to recommend a provisional measures. In particular, the Tribunal must consider whether the measures are necessary and urgent, and the effect that they may have on each party (Arbitration Rule 47(3)).
Parties must disclose any material change in the circumstances upon which the provisional measures were recommended (Arbitration Rule 47(5)).
The Tribunal may recommend, 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 (Arbitration Rule 47(6)).
A party can request provisional measures from a judicial or other authority provided that it is authorized to do so under the instrument of consent.
Requests for Security for Costs are addressed pursuant to Arbitration Rule 53.