Study On Provisional Measures Of ICSID Tribunals That Interfere With Domestic Criminal Proceedings

As an important procedural right in international investment arbitration,provisional measures are widely used in practice.The granting of provisional measures enables the arbitral tribunal to protect the rights of the parties before making the final arbitration award.In contrast to the power of the arbitral tribunal to issue interim measures,the host country,as a sovereign state,has the power to investigate and prosecute criminal acts against individuals or companies.Under the traditional theory of international law,the state’s criminal investigation and prosecution power is one of the basic powers of the state,which belongs to a part of national sovereignty.However,the state must exercise its sovereign power in good faith.When the purpose of criminal procedure in the host country is to interfere with investors’ normal participation in the arbitration procedure,or use the criminal power to gain advantages in arbitration,the arbitration tribunal has the right to intervene through provisional measures to maintain the integrity of the arbitration procedure.In addition,the host country’s ratification of the ICSID convention means that it agrees to accept the jurisdiction of the arbitral tribunal and is required to comply with the rules and orders of the arbitral tribunal.In several cases,the ICSID arbitral tribunal stressed that the criminal proceedings of the host country itself could not be exempted from the provisional measures issued by the arbitral tribunal.Since the criminal procedure against which the applicant requests the intervention of the arbitral tribunal is a basic right of a sovereign state,the tribunals are often more cautious in deciding for such provisional measures.The applicant must overcome a very high threshold of proof when seeking a decision on suspension or other interim measures related to domestic criminal proceedings.The applicant must invoke a right that can be protected by provisional measures and provide specific evidence of infringement of that right.In addition,the applicant has to put forward the evidence of urgent and substantial damages,and also to prove the close relationship between arbitration and criminal proceedings.Only when these criteria are met can the arbitral tribunal support the applicant’s request for interim measures.Although the provisions and drafting history of the ICSID convention make it clear that the arbitral tribunal is only entitled to recommend non-binding provisional measures,most ICSID tribunals still emphasize that these measures are binding on the host country in their provisional measure orders.In the process of reasoning,the arbitral tribunal often relies on the determination in the precedents,or applies the judgment of the International Court of justice by analogy,without providing strong reasons to support the view that interim measures are binding.Because provisional measures intervening domestic criminal procedure involve the basic rights of sovereign states,the granting of binding provisional measures without the authority of ICSID convention will be strongly resisted by the host countries.Therefore,it is necessary to find a new theoretical basis for the binding force of provisional measures,such as regarding the power to issue provisional measures as an inherent power of tribunals,or the subsequent state practice has made informal modification to the provisions in ICSID Convention.As a Contracting State of ICSID convention,China should learn from the current practice of provisional measures related to criminal procedure in ICSID arbitration,modify relevant provisions in bilateral investment treaties,or consider entering into a separate dispute settlement agreement with investors.If there are disputes involving criminal procedure in the future,China should actively advocate the legitimate rights as a sovereign state,and refer to ICSID precedents to emphasize the high standards that the tribunal should meet before intervening in criminal procedure.