On Provisional Measures In Investor-State Arbitration

In the era of economic globalization,worldwide investment is experiencing an unprecedented growth and the number of investment disputes is increasing accordingly.No matter for investors,or for governments,it is of practical significance to have a good command of the relevant institutions in investor-state arbitration(ISA)and to properly deal with international investment disputes.Chapter 1 examines the arbitral tribunal's authority to grant provisional measures in investor-state arbitration.This chapter focuses on the four following issues,namely the legal basis of,the nature of,the procedural matters concerning and the allocation of,the authority to grant provisional measures in ISA.Chapter 2 deals with the purpose of provisional measures,which is to protect the respective rights of the parties.The first Chapter 3 categorizes the various provisional measures that have been granted by the tribunals in ISA.The provisional measures have been divided into two groups,the first of which refers to the common types of provisional measures;the second of which covers the provisional measures that enjoin parallel proceedings.The second Chapter 3 concerns the ICSID's exclusive jurisdiction.This chapter firstly analyzes the test whether a proceeding infringes ICSID's exclusive jurisdiction,then explores the practices of both ICSID tribunals and domestic courts on this matter,and lastly examines the exclusive jurisdiction in other precedents of international adjudication.Chapter 4 examines the requirements for the tribunals to grant provisional measures.These requirements include the procedural requirements,the substantive requirements and the requirements in form.Chapter 5 copes with the compliance with provisional measures.This chapter firstly analyzes the binding nature of provisional measures,then explores the potential consequences of non-compliance with such measures,and lastly discusses the enforcement practices concerning provisional measures.From the authority to grant provisional measures to the purpose of such measures,from the categories of the provisional measures to the ICSID tribunals' exclusive jurisdiction,and from the requirements to grant provisional measures to the compliance with such measures,the research on the provisional measures in ISA indicates that,although there exists distinctions between the ICSID Convention and the non-ICSID Convention arbitration mechanisms in the legal texts,the practices of different tribunals show a convergence to a large extent.The overall analysis demonstrates that there is connection between ISA and international commercial arbitration,but the ISA tribunals have made reference to the interpretations of international tribunals,notably those of ICJ,when interpreting the procedural law to be applied by the arbitral tribunal.Therefore,it can be inferred that the arbitrators in ISA attempt to consider and establish themselves as international judges.In the ISA,one of the parties is a sovereign,which mostly features this particular transnational proceeding.Due to this sovereign element,the extent of provisional relief against sovereign entities may be hugely different from that of private interests.In enjoining parallel proceedings and enforcing provisional measures,the sovereignty of the host countries may be challenged to varying degrees.