3 Provisional Measures
Jeffery Commission, Rahim Moloo
- Conduct of proceedings — Parallel proceedings — Interim and provisional measures
This chapter discusses the provisional measures used to preserve the integrity of an investment arbitration. It first reviews the applicable rules and standards utilized by arbitral tribunals to determine whether to grant a request for provisional measures, including before tribunals applying the International Centre for Settlement of Investment Disputes (ICSID), ICSID Additional Facility, and UNCITRAL rules. In particular, it outlines five criteria that must generally be met to grant a request for provisional measures: prima facie jurisdiction, prima facie establishment of the case, urgency, imminent danger of serious prejudice (necessity), and proportionality. The chapter proceeds by considering case examples of the types of provisional measures requested by parties, namely: security for costs, specific performance, stop parallel domestic proceedings, preservation of documents, preservation of status quo, and non-aggravation of the dispute.