Abstrak

Kembali

The purpose of provisional measures in the context of arbitration pursuant to the Convention on the Settlement of Investment Disputes between States and National of Other States (ICSID Convention) is to preserve the theoretically existing rights of the requesting party in circumstances of urgency and necessity pending the final determination of the dispute. Under the ICSID Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules), proceedings are ‘suspended’ when a vacancy arises on an ICSID tribunal (ie when the tribunal is truncated), and also when a proposal to disqualify an arbitrator is made. A question arises as to whether an ICSID tribunal is empowered to order provisional measures during the period when proceedings are suspended in these circumstances. The authors conclude that it is evident from the object and purpose of Article 47 of the ICSID Convention, as supplemented by ICSID Arbitration Rule 39, and the relevant interpretative context, that a suspension of proceedings does not extend to the consideration of a request for provisional measures. This conclusion is reinforced by the fact that under ICSID Arbitration Rule 39(2) tribunals are required to accord priority to requests for provisional measures. Nevertheless, the most appropriate course of action will often be for the tribunal to issue an interim order requiring the parties to maintain the status quo pending the determination of the request for provisional measures after the suspension has ended.