Provisional measures

Energy Charter Treaty, Investor-State arbitration, Investor-state tribunals, ISDS, Procedure, Provisional measures

(Università degli Studi di Trieste and Luiss Guido Carli)/ /Leave a comment

On 23 July 2024, an ICSID arbitral tribunal in the case Klesch Group v. Germany issued a decision on provisional measures directing the respondent State to refrain from collecting certain windfall profits tax in order to protect the exclusivity of the ICSID arbitral proceedings and the status quo between the parties. This post will summarize…

Paris Arbitration Week, Provisional measures

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As the 2023 Paris Arbitration Week (PAW) unfolded, Bredin Prat organized a discussion on Day 3 on the strategic tools that arbitrating parties can resort to in the context of provisional measures and emergency arbitrator requests as well as potential hurdles and strategies to avoid them. The panel was composed of Dr. Sébastien Besson, Barton…

Appointment of arbitrators, Arbitration, Court Assistance, International arbitration, Provisional measures, Removal of arbitrator, Swiss Civil Procedure Code, Swiss Private International Law Act, Switzerland

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The draft bill for the revision of the 12th Chapter of the Swiss Private International Law (“PILA”) was recently approved by the Swiss legislator (as analyzed previously on this blog). Besides permitting the filing of set-aside motions in the English language, the provisions regulating the court assistance have also been revised and adjusted with the…

Interim measures, Investment Arbitration, Investment Treaties, Investor, Investor-State arbitration, Provisional measures

(British Institute of International and Comparative Law (BIICL))/ /Leave a comment

As the number of investor-state disputes grows, so does the number of applications for provisional measures. The recent empirical study conducted by the British Institute of International and Comparative Law and White&Case suggests that investors were more than twice as likely to obtain positive decisions on their requests than respondent states. The study also showed that…

ICSID, ICSID Amendments, ICSID Arbitration, Provisional measures, Security for Costs

(Meitar Law Offices)/ /Leave a comment

A. Introduction The ICSID Convention and the corresponding Arbitration Rules contain certain provisions that, apparently, are not uniformly applied by arbitral tribunals. Article 47 of the ICSID Convention can be considered as one of them. In light of the proposal for new ICSID Arbitration Rules, a discussion about the use of provisional measures in the…

Due process, ICSID, ICSID Arbitration, Investor-State arbitration, Provisional measures, Sovereign Immunity

(Durham Law School) and (Roschier Attorneys, Ltd.)/ /Leave a comment

Introduction Pursuant to Article 47 of the ICSID Convention, an ICSID Tribunal may “recommend any provisional measures which should be taken to preserve the rights of either party”. The use of “recommend” is concerning. Its lack of imperative character triggers a debate on whether ICSID provisional measures have legally binding effect, i.e. require mandatory state…

Albania, Arbitration, Courts, Criminal law and arbitration, England, ICSID, ICSID Arbitration, ICSID Convention, Investment, Investment Arbitration, Investment protection, Investor, Investor-State arbitration, Provisional measures

(Doughty Street Chambers)/ /Leave a comment

Since the first application for provisional measures suspending criminal proceedings in Tokios Tokelés v. Ukraine (ICSID Case No. ARB/02/18, Order No. 3, 18 January 2005), the number of applications before ICSID tribunals for these types of measures has steadily increased. Recent applications have been widely commented on in the arbitration community, including in this blog….

Arbitration, Corruption, Criminal law and arbitration, Economic, Jurisdiction, Jurisdiction of the arbitral tribunal, Provisional measures

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The Twenty-eighth ITF Public Conference on Economic Crime and International Investment Law, hosted by the British Institute of International and Comparative Law (BIICL) on 22 May 2017, attracted 13 distinguished speakers and more than 100 participants for a day discussion on the issues of economic crime in investor-state arbitration. The conference provided a forum for…

Criminal law and arbitration, ICSID Arbitration, Provisional measures

(Herbert Smith Freehills LLP)/ /1 Comment

In two recent cases, ICSID tribunals have been asked to consider applications for provisional measures relating to criminal proceedings initiated against the claimants. On 3 March 2016, the tribunal in Hydro S.r.l and others v. Republic of Albania (ICSID Case No. ARB/15/28) (the Hydro case) partly granted a request to recommend the suspension of criminal…

Arbitration Awards, Enforcement, Insolvency, Provisional measures

(Freshfields Bruckhaus Deringer US LLP, New York)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

The Institute for Transnational Arbitration (ITA) held its 26th Annual ITA Workshop in Dallas, Texas on June 18-20, 2014. This year’s ITA Workshop, titled “Modern Enforcement of Arbitral Awards: ‘Show Me the Money,’” covered a range of recent developments and strategic considerations relating to the enforcement of arbitral awards. To kick-off this Workshop, the ITA…

Arbitration, Domestic Courts, Enforcement, Provisional measures

(AstapovLawyers)/ /1 Comment

and Ievgen Boiarskyi, Junior Associate at AstapovLawyers It is widely accepted that successful outcome of international commercial arbitration proceedings often depends on timely obtained provisional measures designed to protect either the lawful interests of the parties or property in dispute until the final arbitral award on the merits is issued. Although provisional measures may be…

Commercial Arbitration, Domestic Courts, Interim Orders, Pro arbitration, Provisional measures, United States

(Hogan Lovells LLP)/ /Leave a comment
Institute for Transnational Arbitration (ITA)

[Written with the assistance of Nina Tandon and Andrew Behrman of Hogan Lovells US LLP] A recent ruling from a U.S. federal district court has highlighted an emerging doctrine in United States courts with respect to a party’s ability to seek provisional remedies from a court in support of international arbitration. The recent ruling, together…

Arbitration Proceedings, Permanent Court of Arbitration, Provisional measures, Responsibility of States

(Samdani & Qureshi)/ /Leave a comment

On 19 September 1960, Government of the Republic of India and Government of the Islamic Republic of Pakistan (the “Parties”) signed the Indus Waters Treaty 1960 (the “Treaty”). A dispute dating back to 1988 arose between the Parties in relation to construction of a hydro-electric project (the “KHEP”) by India on Kishenganga/Neelum River, a tributary…

China, CIETAC, Domestic Courts, Enforcement, Provisional measures

(Eversheds)/ /Leave a comment

The recent revisions to the Chinese Civil Procedure Law (the “CPL”) made some significant amendments to the arbitration law in China. In particular, the new CPL for the first time provides for pre-arbitration preservation measures to be available from the Chinese courts. The revisions will come into force on 1 January 2013. Under the existing…

Jurisdiction, Jurisdiction of the arbitral tribunal, Latin America, Provisional measures

(Clyde & Co. LLP)/ /1 Comment
Clyde & Co.

A recent decision of the Brazilian Superior Court of Justice (“STJ”) has ruled, for the first time, on the issue of the concurrent jurisdiction of national courts and arbitral tribunals with respect to the making of interim measures (Itarumã Participações S.A. v Participações em Complexos Bioenergéticos S.A. – PCBIOS, Resp no. 1,297,974-RJ). The decision is…

Annulment, Enforcement, ICSID Convention, Provisional measures

(International Moot Court Competition Association (IMCCA))/ /Leave a comment

Our interest on this topic has been provoked by a reading of the Repsol v. Petroecuador Stay Orders (See ICSID Case No. ARB/01/10, Procedural Order No. 1 (Unofficial translation), 22 December 2005; Procedural Order No. 4 Termination of Stay (Unofficial translation), 22 February 2006) in the context of a research on conditional stay of enforcement…

Arbitral seat, Arbitration, Arbitration clause, India, Law governing the arbitration, Provisional measures, Supreme Court

(Norton Rose Fulbright LLP)/ /Leave a comment
YIAG

Yograj Infrastructure Ltd. Vs. Ssang Yong Engineering and Construction Co. Ltd. (on 1 September 2011) As reported in this blog, in May 2011 the Supreme Court of India (SCI) moderated the controversial principle it established in 2002 that allowed the Indian courts to intervene in arbitrations held outside of India unless that possibility was expressly…

Appointment of arbitrators, Arbitral seat, Arbitration Agreements, Arbitration Proceedings, India, Provisional measures, Set aside an arbitral award, UNCITRAL Model Law

(Singapore International Arbitration Centre (SIAC))/ /3 Comments

International consciousness that India is an arbitration unfriendly jurisdiction has existed for some time now. This feeling owes in part to seemingly interventionist judicial views, in part to the delays that are oft complained of about the Indian judicial system and in part to the lack of infrastructure necessary for any arbitration friendly destination. This…

Arbitration clause, Arbitrators, Disclosure, Domestic Courts, IBA Guidelines on Conflicts of Interest, Jurisdiction, LCIA Arbitration, Provisional measures, Russia

(Enyo Law LLP)/ /2 Comments
Herbert Smith Freehills

While Russia is a signatory to the New York Convention, there is a perception amongst some practitioners and arbitration users that Russia is not an arbitration friendly jurisdiction. This viewpoint is, no doubt, due to a perceived scepticism of the Russian courts and is the driving force behind many foreign investors doing business in Russia…