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Provisional Measures in ICSID Arbitration: To Be (Binding) or Not To Be?

Issu de Cahiers de l'arbitrage - n°2 - page 219

Date de parution : 01/04/2018
Id : CAPJIA2018-2-003
Réf : CAPJIA avr. 2018, p. 219

Auteurs :
Par Arnaud De Nanteuil, Professeur agrégé à l'Université Paris-Est Créteil, Claire Pauly, Professeur agrégé à
l'Université Paris-Est Créteil

RÉSUMÉ
Les tribunaux constitués sous l’égide du Centre International de Règlement des Différends relatifs à l’Investissement (CIRDI) sont compétents pour
« recommander » des mesures provisoires. À la lecture des dispositions pertinentes du Règlement CIRDI, ces mesures pourraient être considérées
comme n’étant pas revêtues de force obligatoire. Cependant, de nombreux arguments, en ce comprise l’existence de pouvoirs inhérents des tribunaux
arbitraux, suggèrent que ces mesures devraient être considérées comme obligatoires. La présente contribution se propose d’analyser les divers
arguments en faveur et à l’encontre de la force obligatoire des mesures provisoires, ainsi que les conséquences qui ont pu être tirées par les tribunaux
arbitraux d’une violation de ces mesures.
ABSTRACT
Tribunals under the aegis of the International Centre for the Settlement of Investment Disputes (ICSID) are enpowered to “recommend” provisional
measures. According to the applicable Rules of the ICSID Rules, said provisional measures might be considered not to be binding. However, several
arguments, including the tribunal’s inherent powers, suggest that provisional measures should be considered to be binding. This article discusses the
arguments in favour or against the binding nature of provisional measures and analyses the consequences that tribunals have drawn from the breach
of said measures.

Provisional measures are commonly ordered in all areas of international arbitration, including investment arbitration.2 In the context of the
International Centre for the Settlement of Investment Disputes (ICSID), several provisions recognize the possibility for tribunals to grant
interim/provisional measures, provided that certain conditions are fulfilled. Even if such conditions are not explicitly set forth in the ICSID Convention
and Rules, it is now widely accepted that “an order of provisional measures will only be granted if the measure sought is necessary to preserve a party’s
rights and where the need is urgently required to avoid serious or irreparable harm”. 3 However, provisional measures remain exceptional; several
tribunals have underlined the fact that they should not be granted lightly.4 The purpose of this paper is not to explore the conditions necessary to issue
provisional measures, but rather to examine the question of their binding character in the particular context of the ICSID.

There is, indeed, a notable degree of doubt as to the legal value of such measures in ICSID arbitration because the applicable rules suggest that
provisional measures may not be mandatory (I). Therefore, the arguments in favour and against the binding character of interim measures must be
analysed (II). However, absent any final conclusion on the issue, we shall explore the consequences of a violation of such measures (III). Finally, this
paper will address the issue of annulment in order to determine whether a decision recognizing the mandatory character of an interim measure would
risk being set aside (IV).

§ 1. The ICSID Convention and Rules

a. Relevant provisions of the ICSID Convention and Rules

Three provisions of the ICSID Convention and Arbitration Rules are applicable to interim measures. We discuss them in turn.

First, Article 47 of the ICSID Convention sets out the conditions under which an ICSID Tribunal may “recommend” interim measures. It provides that:

“Except as the parties otherwise agree , the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which
should be taken to preserve the respective rights of either party”.

This provision specifies that the Tribunal’s power is to “recommend” (not order) interim measures, based on the Tribunal’s consideration that the
circumstances of the case “so require”. It does not limit the scope of the interim measures which may be recommended, by referring to “any” measures,
provided that they are aimed at preserving “the respective rights of either party”. It also entitles parties to opt out of interim measures.

Secondly, Article 39 of the ICSID Rules of Arbitration describes the parties’ rights and the tribunal’s obligations in respect of a request for interim
measures in more detail. It provides as follows:

(1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended
by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances
that require such measures. […]

(3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It
may at any time modify or revoke its recommendations.

(4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of
presenting its observations.

[…]

(6) Nothing in this Rule shall prevent the parties, provided that they have so stipulated in the agreement recording their consent, from requesting any
judicial or other authority to order provisional measures, prior to or after the institution of the proceeding, for the preservation of their respective rights
and interests.

This provision again specifies that the Tribunal’s power is only to “recommend” (not order) interim measures. Conversely, if they specify so in writing,
parties are entitled to request that judicial authorities “order” (not merely recommend) interim measures. This provision widens the scope of interim
measures that may be recommended, by referring to the Tribunal’s power to recommend measures “on its own initiative or […] other than those
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specified in a request”. Again, the measures which may be recommended must be aimed at preserving either party’s rights.

Third, Article 46 of the ICSID Additional Facility Rules describes the process applicable to interim measures under the aegis of the Additional Facility. It
provides as follows:

(1) Unless the arbitration agreement otherwise provides, either party may at any time during the proceeding request that provisional measures for the
preservation of its rights be ordered by the Tribunal. The Tribunal shall give priority to the consideration of such a request.

(2) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It
may at any time modify or revoke its recommendations.

(3) The Tribunal shall order or recommend provisional measures, or any modification or revocation thereof, only after giving each party an opportunity of
presenting its observations.

(4) The parties may apply to any competent judicial authority for interim or conservatory measures. By doing so they shall not be held to infringe the
agreement to arbitrate or to affect the powers of the Tribunal.

This article is similar to Article 39 of the ICSID Arbitration Rules, save for one fundamental difference: under the ICSID Additional Facility Rules, tribunals
are empowered to order, not merely “recommend”, provisional measures.

A careful analysis of the relevant provisions applicable to ICSID Tribunals thus shows that the drafters of these provisions decided that ICSID Tribunals
were only entitled to “recommend”, as opposed to “order” interim measures.

To recommend means to “advise or suggest (something) as a course of action”.5 As such, a recommendation is not binding. Conversely, to order
someone to do something is defined as giving “an authoritative instruction to do something”, which must be interpreted to be binding.

It follows that the wording of the relevant provisions suggests that interim measures recommended by ICSID Tribunals should not be binding.

b. Negotiation of the relevant provisions: from the power to “prescribe” to the power to “recommend”
The history of the negotiations of the relevant ICSID Convention provisions may assist with understanding the binding or non-binding nature of interim
measures ordered by ICSID Arbitral Tribunals.

Originally, the Working Paper of the ICSID Convention provided for the tribunal’s power to “prescribe ” interim measures. To prescribe is defined as the
act of stating “authoritatively or as a rule that (an action or procedure) should be carried out”.6 As such, a prescription must be binding – as must
interim measures prescribed by a Tribunal.

However, on 20 July 1964, Mr Tsai, the delegate from China, “asked whether the wording of the provision should not be modified to allow the tribunal to
recommend rather than prescribe provisional measures, particularly against the State party to the proceedings whose government might have to take
particular actions for reasons of necessity or national policy”.7

Ultimately, Mr Tsai’s suggestion was upheld by the drafters of the Convention. The final wording of the relevant provisions refers to a “recommendation”,
not an order.

On another note, at some point during the negotiation of the ICSID Convention, what is now Article 47 contained a second paragraph providing for
penalties to be ordered by the Tribunal if a party failed to comply with provisional measures. Penalties would have been awarded in the final award. The
second paragraph was ultimately deleted by a “nearly unanimous vote”.8

Thus, the history of the negotiation of Article 47 demonstrates the Contracting States’ intention to reduce the Tribunal’s power regarding interim
measures, altering it from the power to prescribe to the mere power to recommend. This historical interpretation also points to the non-binding
character of interim measures “recommended” by ICSID Tribunals.

On that basis, in a recent dissenting opinion, Judge Nottingham argued that:

“no matter how many times it is repeated, an order is not a recommendation. Only in the jurisprudence of an imaginary Wonderland would this make
sense”.9

Based on the arguments above as well as a variety of other arguments that we discuss below, scholarship and parties have opined on the binding or
non-binding character of ICSID provisional measures.

§ 2. Binding character of provisional measures?

Beyond the wording of Article 46 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, several arbitral tribunals have held that interim
measures may be “ordered” and thus that they are mandatory for the parties. Yet, this practice is not consistent and, in any event, a statement by an
arbitral tribunal does not automatically become a legal truth. We will therefore explore the arguments both (A) in favour and (B) against the binding
character of provisional measures in ICSID. Given the respective strength of both sets of arguments, a final decision on that point is quite delicate to
make.

A. Arguments in favour of the binding character of provisional measures

Five main arguments can be made in support of the binding character of provisional measures in ICSID arbitration proceedings, despite the wording of
the applicable rules. They are developed in detail below. Some of these arguments are not sufficient per se, but they provide strong support for the
binding character of interim measures when considered jointly.

1. Necessity to comply with the obligation not to aggravate the dispute

One may first argue that the binding character of provisional measures is required by the necessity to ensure the integrity of the arbitral process by not
aggravating or extending the existing dispute. It is well established that the litigating parties are bound by an obligation not to frustrate the object of
the process and to act in a way that allows the dispute to be settled by the jurisdiction. This is true in general international law, as stated by the
Permanent Court of International Justice: “ the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the
execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute”. 10 This
obligation has also been recognized in investment arbitration,11 and it has been held to be a general principle of international law.12 Yet, in many cases,
this general obligation of the parties entails an obligation to comply with the decisions of the tribunal, including those which are not explicitly
mandatory. Assuming that a non-mandatory decision contains elements which are necessary to prevent the extension of a dispute, it is hard to see how
such a decision can guarantee such prevention. It has been clearly established that a link exists between the obligation to prevent the aggravation or
extension of the dispute and the obligation to respect provisional measures. For example, the arbitral tribunal in Plama vs Bulgaria stated that

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provisional measures are “appropriate to prevent parties from taking measures capable of having a prejudicial effect on the rendering or
implementation of an eventual award or which might aggravate or extend the dispute or render its resolution more difficult”. 13 “Recommended”
measures would certainly not be sufficient to achieve this goal.14

In any event, even without explicitly assuming that interim measures are mandatory, an arbitral tribunal may take into account the way in which the
parties have applied them. If the parties’ violation of interim measures leads to an aggravation of the dispute, the tribunal may draw consequences
from it, especially when deciding on the quantum. Indeed, arbitral tribunals enjoy broad discretion on this issue. This position was endorsed by the
tribunal in AGIP v. Congo which did not directly address the interim measure’s binding character, but nonetheless decided on the merits that “the
Government did not comply with the decision of the Tribunal, dated 18 January 1979, as to the measures of preservation and as a consequence AGIP
was unable to have access to a certain number of documents which could have assisted it in presenting its case” and thus decided to take it into
account in deciding on the merits.15 This is a way of avoiding a general statement on the status of interim measures by ruling on their legal
consequences. But the principle that justifies this decision is exactly the same, i.e. the obligation of the parties not to frustrate the object of the
proceedings. Thus, although the tribunal did not explicitly assume the binding character of such a measure, it acted as if it were indeed binding. And,
above all, it confirmed that the necessity to comply with interim measures is imposed by the obligation not to aggravate the dispute.

2. Necessity to preserve the rights of the parties

A second argument can be based on the necessity to preserve the parties’ respective rights. Indeed, one of the conditions for granting an interim
measure is the existence of a risk of irreparable harm. 16 If the measure is not complied with, such irreparable harm may be caused to the rights of one
party. As a consequence, in order to respect one of the aims of interim measures, their binding character is a necessity. It could be argued that the
purpose of interim measures entails necessarily their binding force.

This argument was the foundation of the International Court of Justice’s reasoning when it ruled on the binding character of interim measures for the
first time in 2001. The Statute of the ICJ (art. 41) indeed states that “ The Court shall have the power to indicate, if it considers that circumstances so
require, any provisional measures ”. 17 The same questions about the mandatory value of such measures could be asked, in light of the ICSID context.
However, the ICJ concluded in favour of provisional measures’ binding character, on the sole ground of such measures’ purpose. The paragraph at the
heart of the Court’s reasoning is quoted below:

“The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because
the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from
the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding,
inasmuch as the power in question is based on the necessity, when the circumstances cal1 for it, to safeguard, and to avoid prejudice to, the rights of the
parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding
would be contrary to the object and purpose of that Article ”18.

This reasoning is applicable beyond the Court’s Statute. The core element is indeed not the wording of Article 41 but its object and purpose. Thus, even
though Article 47 of the ICSID Convention is worded differently, there can be no doubt that its object and purpose is similar. It is undisputable that one
of the aims of interim measures in investment arbitration is to preserve the parties’ respective rights.19 In view of the ICJ’s reasoning in LaGrand, the
same conclusion could be drawn in an ICSID context: interim measures are inherently mandatory in character.

3. There is no semantic argument against the binding character of interim measures

Despite the wording of Article 47 and Rule 39, there is no semantic obstacle to the mandatory character of provisional measures. It is true that Article 47
and Rule 39 use the word ‘recommend’. However, it has been argued that this term was used not to exclude provisional measures’ binding character,
but rather to distinguish them from awards and thus to preclude their enforceability as such.20 In other words, the word ‘recommend’ simply
precludes the application of Article 54 on enforcement. 21 The arbitral tribunal in Maffezini vs Spain endorsed this position, albeit implicitly.22 First, the
tribunal recognized the “semantic difference” between Article 47 and other provisions of the ICSID Convention, but considered that this difference was
“more apparent than real”. It went on to consider the Spanish versions of the texts: Article 47 indeed uses the word “recommend” ( recomendar) but
Rule 39(1) uses the word “ dictación”. It thus concluded:

“ The Tribunal does not believe that the parties to the Convention meant to create a substantial difference in the effect of these two words. The
Tribunal’s authority to rule on provisional measures is no less binding than that of a final award. Accordingly, for the purposes of this Order, the Tribunal
deems the word ‘recommend’ to be of equivalent value as the word ‘order’”.

The demonstration is probably a little hasty but remains relevant. In City Oriente v. Ecuador, the tribunal added an important clarification, confirming
that “dictación” could be translated as “ordering”. It concluded that the words “recommend” and “order” were used interchangeably.23 This indifference
in the words used to designate the same concept is further supported by Article 46 of the Additional Facility Rules, which states both that “1. either
party may (…) request that provisional measures (…) be ordered by the Tribunal ” and “2. The Tribunal may also recommend provisional measures on its
own initiative”24. This provision seems to advocate the interchangeability of the two words, since both are used in exactly the same context.
Accordingly, it would be possible to overcome the literal meaning of the words used in the Convention and the Arbitration Rules. Moreover, in
international law, the object and purpose of the relevant provisions, as identified above, may be used to go beyond the formal meaning of the words.25
Combining these arguments may thus lead to confirmation of interim measures’ mandatory nature.

4. The binding character is recognized by a wide range of case law

In Tokios Tokeles v. Ukraine , the tribunal recalled that “ according to a well-established principle laid down by the jurisprudence of the ICSID tribunals,
provisional measures “recommended” by an ICSID tribunal are legally compulsory ”26. Of course, this statement does not represent a legal truth, as case
law is not by itself a source of international law. Yet, two elements give this assertion some strength and credibility. First, even if case law is not a formal
source, it may still be used to identify customary norms. A parallel could here be drawn with the Resolutions of the General Assembly of the United
Nations which, though not binding, remain relevant as a reflection of general international law27. Second, we are not dealing here with a unique and
isolated decision; the power to order provisional measures has been recognized by numerous arbitral tribunals. One may consider, in addition to the
decisions quoted above, Occidental v. Ecuador in 2007,28 Tethyan Cooper Company v. Pakistan in 2012,29 PNG v. New Guinea in 2015,30 and United
Utilities v. Estonia in 2016.31 In most of those cases, the tribunals did not even question their powers to order provisional measures. It is therefore
indisputable that there exists a major trend in case law recognizing a power to order beyond the wording of the applicable rules.

A slightly different approach has been endorsed by some tribunals, as in Milicom v. Senegal. Even though it accepted that, in principle, it had the power
to order an interim measure, the Tribunal considered that it would have been pointless to do so in that particular case. The Tribunal observed that, had
it made such an order, it would have been directed towards a domestic court on which the arbitral tribunal had no power to impose anything. 32 This is
a wise position, based on the idea that the mandatory character of the measure could depend on the circumstances of the case and on the object of
the required measure – and that it should be admitted only in circumstances where the enforcement of the interim measure would not be prevented
by a legal obstacle. But what matters for us here is that, even if it only “recommended” the interim measure in that case, the arbitral tribunal did not
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refute the possibility to order it.

5. Binding character could be implied by the inherent powers of arbitral tribunals

A fifth element in support of the binding character of provisional measures can be grounded on the general doctrine of inherent powers of
international courts and tribunals, even if this is not an argument as such. The Iran-U.S. Claims Tribunal has defined the inherent powers as “ those
powers that are not explicitly granted to the tribunal but must be seen as a necessary consequence of the parties’ fundamental intent to create an
institution with a judicial nature”. 33 One could therefore assume that the power to order interim measures is part of such inherent powers, as, for the
reasons set forth above, absent such power, a tribunal would not be in a position to exercise complete judicial function. This very argument was
expressed by Judge Fitzmaurice in his personal opinion in the Northern Cameroon case. Regarding the power to grant interim measures, he noted that
“ Although much (though not all) of this incidental jurisdiction is specifically provided for in the Court’s Statute, or in the rules of Court which the Statute
empowers the Court to make, it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court - or of any court of
law – being able to function at all”. 34 In sum, there is no jurisdiction without the power to grant interim relief.

Nevertheless, such an argument is not in and of itself enough to support the binding character of such measures. It has to be combined with the
elements that have been set forth above, especially the purpose of interim measures. As a result, ICSID Tribunals do have inherent powers in order to
exercise the remit that the ICSID Convention gives them and this function entails a power to order provisional measures, despite a strict wording in the
applicable rules.

B. Arguments against the binding character of provisional measures

The debate should not end here. There are indeed arguments in support of a more literal application of the law, according to which arbitral tribunals
could not do anything other than recommend provisional measures. In the end, it is doubtful that a definitive answer can be made about the legal force
of interim measures in ICSID arbitration.

1. History of the drafting of the Washington Convention

This aspect may be addressed briefly but it is core. Indeed, as discussed above, the Travaux préparatoires of the Convention suggest that the word
“recommend” was the result of a careful choice because some delegations were strongly opposed to the recognition of the binding character of interim
measures. As underlined by Christoph Schreuer after a precise review of the preparatory work of the convention, “The Convention’s legislative history
suggests that a conscious decision was made not to grant the tribunal the power to order binding provisional measures”. 35 We should thus stick to the
exact meaning of the word chosen by the negotiators.

This statement is of particular importance in the context of interpretation. Indeed, Article 31.4° of the Vienna Convention for the Law of Treaties states
that “A special meaning shall be given to a term if it is established that the parties so intended”. If we were to consider that “recommend” in Article 47
means “order”, it would indeed be a “special meaning”. But according to the Travaux préparatoires, we have no proof that such a special meaning was
intended by the parties – the Travaux actually seem to show the contrary. In consequence, the rules of interpretation of international law are more
supportive of the position that interim measures should only be recommended (not ordered), and thus have no binding character.

2. Wording of Article 47 and Rule 39

In line with the previous argument, one may go back to the wording of applicable law, as there is no compelling reason to get any distance from it. A
brief overview of different rules of procedure indeed shows that the word “recommend” is not used anywhere other than in the ICSID provisions. The
rules generally provide that the court may “indicate”, 36 “grant”37 or more directly “order”38 interim measures. Even if they are not without ambiguity,
these sets of wording all suggest that the decisions should in any manner be complied with by the parties, whereas the word “recommend” is less clear.

We should now refer back to the semantic argument mentioned earlier:39 some tribunals have argued that the use of the word “dictación” in the
Spanish version of Rule 39 implies that “order” and “recommend” cannot used indifferently. This argument may actually be reversed, as the only text
that uses a word referring to a mandatory character is the Spanish version of Rule 39, whereas the Spanish version of the Convention and the English
and French version of both texts use explicitly the word “recommend” (recomendar, recommander). Since the Spanish version of Article 39 cannot have
a different meaning from the other versions, all the words used in the different versions shall have the same meaning. But one may fail to understand
why this shared meaning should be “order” rather than “recommend”. Given that a majority of the official versions (English, French, and Spanish for the
Convention) refer to a word that does not imply per se a binding character, the Spanish version should be read as referring to a recommendation.

3. Necessity of a strict interpretation

A further argument can be based on the necessity to adopt a strict interpretation of Article 47 and Rule 39. The assumption that “recommend” means
“orders” would indeed be the result of a broad interpretation of the texts, without any ground for such interpretation in international law. Quite to the
contrary, as the ICSID Convention is one of the instruments in which States express their consent to the jurisdiction of arbitral tribunals, it should be
subject to a strict interpretation.40 The International Court of Justice has expressed such a view by considering that “ When States make statements by
which their freedom of action is to be limited, a restrictive interpretation is called for”. 41 This statement is only the consequence of State sovereignty to
which limitation shall not be presumed, as it is firmly rooted in international law.42 But this principle of strict interpretation, which is true for any
commitment of a State, is even more important when the object of such commitment is the jurisdiction of an international tribunal. The Permanent
Court of International Justice admitted in the clearest manner that “every Special Agreement, like every clause conferring jurisdiction upon the Court,
must be interpreted strictly”. 43 This entails that, when the applicable rules set forth that interim measures may be “recommended”, States consented
to ICSID Tribunals’ jurisdiction only to recommend such measures and not to order them. Accordingly, the binding character of such measures is hard
to justify.

A further element in that sense could be that a tribunal is likely to be in a position to grant provisional measures even when there is doubt as to its
jurisdiction. Indeed, one salient aspect of provisional measures is that they are requested in situations of emergency, at a time when the tribunal may
not have had enough time to rule on its own jurisdiction. However, the applicable rules in ICSID are quite clear and recognize the right to grant interim
relief even before a final decision on jurisdiction, so that “[t]he sole fact that the jurisdiction of a tribunal is contested does not exclude its power to
recommend provisional measures”. 44 Accordingly, a tribunal may issue interim measures at a certain time and then hold that it lacks jurisdiction to
rule on the matter. This context is an additional reason to adopt a strict interpretation of the consent of States: States have consented to the
“recommendation” of interim measures, so that such measures may only be recommended and this is a fortiori true when the measures may be issued
by tribunals which jurisdiction is not yet established.

4. Position supported by an important part of case law

Finally, even if there is some support in case law for the binding character of provisional measures, there is also a quite developed practice advocating
the adverse position. This trend in case law is mainly based on the arguments set forth above and on the need for a strict interpretation of the

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applicable rules. There are some cases in which the tribunal did not even address the issue and simply “recommended” the provisional measures that
were requested.45 In Saipem v. Bangladesh , the tribunal even issued an explicit “Decision on jurisdiction and recommendation of provisional
measures” in which provisional measures were only recommended.46 In cases where the request for provisional measures has been rejected, there was
no need to address the issue of their legal value but tribunals have remained attached to the literal meaning of the applicable rules, and referred only to
recommendation. 47 Some tribunals have been even more explicit, by recalling that “according to Rule 39, the Tribunal cannot order, but can only
recommend provisional measures in ICSID proceedings”. 48 At the very least, it can be said that case law is divided on this matter. It would, of course, be
meaningless to calculate the number of cases which have judged one way or the other, because it all depends on factual parameters. It is enough to
note that statements supporting both options are equally strong.

After reviewing the arguments for and against, it is difficult to draw a firm conclusion. We knew at first that there were no ready-made answers, but a
review of the relevant literature and case law provides little guidance. This may explain why the issue may eventually be addressed in another manner.
After all, what matters is not a general answer on the principle, but rather a way of addressing the issue that renders ICSID arbitration as effective as
possible. That is why, beyond this debate on the principle, some arbitral tribunals have directly addressed the issue by considering the consequences of
the violation of provisional measures. However, by doing so, they may have advocated the binding character of such measures, even without explicitly
stating so.

§ 3. Consequences of the breach of a provisional measure

An alternative method may be followed to determine the binding or non-binding nature of provisional measures, by analyzing the consequences of the
breach of a provisional measure recommended by an ICSID tribunal.

Failure to comply with an interim measure recommended by a Tribunal may be tantamount to breaching Article 47 of the ICSID Convention. Neither
the ICSID Convention nor the Arbitration Rules specify the consequences of a breach of Article 47.

We discuss below the four options that Tribunals or parties may adopt to sanction a breach of Article 47.

One possibility would be for the successful party to rely on the other party’s voluntary compliance with the award. The losing party may be incentivized
to comply with the recommendation to avoid alienating the arbitrators who will ultimately rule on the merits of the case. However, in practice, States
do not always comply voluntarily with recommendations for interim measures. Thus, for instance, the Slovakian domestic courts held that they were
not bound by the interim measures recommended in CSOB v. Slovak Republic . 49

A second possibility would be for the successful party to enforce the Tribunal’s recommendation against the other party. However, the favorable
enforcement provisions of the ICSID Convention do not apply to recommendations for interim measures.

A third possibility would be for Tribunals to order penalties for the failure to comply with a recommendation for interim measures. However, as
discussed above, the drafting history shows a unanimous agreement that tribunals do not have the power to impose sanctions for the non-compliance
with interim measures.

Finally, a fourth possibility would be for Tribunals to take the breach of the recommendation into account in their final awards. We describe this in
further detail below.

1. Taking into account the breach of the recommendation for interim measures in the final award
Tribunals have frequently taken into account the breach by a party of their recommendation for interim measures in the final award, either by ordering
it to pay damages or costs, or in other ways.

a. Ordering damages or costs

The legislative history of Article 47 contains several references to the Tribunals’ power to award damages to the party which obtained interim measures
where the other party fails to comply with the Tribunal’s recommendation. Mr Tsai, the delegate from China who suggested that the word “prescribe”
be replaced with “recommend” in what is now Article 47, stated that

“if the government failed to conform to such recommendations and the award was in favor of the other party, it would, of course, have to pay
damages”.50

The reason underlying the possibility to award damages is that there is little that money cannot buy. As Mr Tsai put it:

“there would be very few, if any, cases of irreparable damage because disputes would concern investments and investments could always be valued in
terms of money”. 51

Several tribunals took into account a party’s failure to comply with a recommendation for interim measures in their final award.

In MINE v. Guinea, the Tribunal had warned MINE that it would “take into account in its award the effects of any non-compliance by MINE with its
recommendations”. It ultimately ordered MINE to pay damages for costs and legal fees incurred by Guinea as a consequence of MINE’s non-compliance
with the interim measures’ recommendation.52

I n CSOB v. Slovak Republic , the domestic courts did not accept that they were bound by the Tribunal’s repeated recommendations to suspend
bankruptcy proceedings. In the final award the Tribunal ordered the Slovak Republic to pay USD 10 million for costs on the basis of several
circumstances, including the fact that interim measures had been granted (not that they had not been complied with).53

That the Tribunal may take into account a party’s breach of a recommendation for interim measures is, however, not expressly provided in the ICSID
Convention. During the negotiations of that Convention, a delegate had suggested that a paragraph be added to what is now Article 47, according to
which “the Tribunal should take into account in its award the consequence of a failure to comply with the provisional measures”. The proposal was
dismissed but the Chairman assumed that the majority agreed with the underlying idea but was opposed to a specific mention.54

That being said, ordering damages for non-compliance with interim measures is rather paradoxical. As explained above, it is widely accepted that “an
order of provisional measures will only be granted … where the need is urgently required to avoid …irreparable harm” , i.e. harm that cannot be
adequately compensated with damages.55 It follows that, on the one hand, interim measures may only be ordered if a party cannot be adequately
compensated by an award of damages; but on the other hand, failure to comply with a recommendation for interim measures will be sanctioned with…
damages.

b. Other ways to take the failure to comply with the recommendation into account
As discussed above, in AGIP v. Congo, the Tribunal took into account the fact that the Government did not comply with the Tribunal’s decision on
interim measures, and that as a consequence AGIP was unable to access certain documents that could have assisted it in presenting its case.56 The

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Tribunal did not order damages on this ground, but rather took into account the failure to comply with the interim measures in deciding the merits of
the dispute.

More recently, in Perenco v. Ecuador, the Tribunal held that Ecuador’s failure to comply with the decision on provisional measures was a breach of
contract. The Tribunal based its ruling upon the contract between the parties, providing that the parties would “observe and comply with the decisions
… of the tribunal”, which included not only awards but also any other decisions.57

That Tribunals order costs or damages, or indeed apply any other sanction for the breach of a recommendation for interim measures is an argument in
favour of the binding nature of recommendations for interim measures. If a recommendation were non-binding, no sanction would apply.

However, as discussed immediately below, a tribunal recently followed an innovative reasoning in relation to a party’s failure to comply with interim
measures, which opens the way to an alternative analysis of the binding nature of interim measures.

2. An ex-post analysis to determine whether interim measures are binding?

In Quiborax v. Bolivia, the Tribunal recently adopted an innovative criterion to determine whether a recommendation for interim measures is binding
or not.

It held that:

“given the text of Article 47 and the relatively recent evolution of international law with respect to its interpretation, the Tribunal does not find that the
Respondent’s failure to comply with the Decision on Provisional Measures amounts to a breach of its duty to arbitrate in good faith. Bolivia may not
have been aware of the binding nature of these provisional measures when it failed to comply with them.

In addition, as discussed further below, the Tribunal finds that the underlying right that these measures sought to protect – the right to the procedural
integrity of the arbitration proceedings – was ultimately not impaired. As a result, although the Respondent breached Article 47 by failing to comply
with the provisional measures, under the facts of this case this breach did not entail a violation of the duty to arbitrate in good faith”.58

The Tribunal thus acknowledged that interim measures are “binding”, but decided not to sanction Bolivia’s breach of the recommendation for interim
measures. It did so on two grounds: (i) because Bolivia “may not have been aware of the binding nature” of interim measures and (ii) because ultimately
the right to the procedural integrity of the arbitration proceedings had not been impaired in the present case. Based on these two grounds, the
Tribunal held that Bolivia did not “breach … its duty to arbitrate in good faith”, thus holding that failing to comply with a Tribunal’s recommendation is
not per se a breach of good faith.

As to the requirement that the party be aware of the binding character of interim measures, it must be a reference to the drafting (and the legislative
history) of Article 47, suggesting that interim measures are merely recommended (not ordered) and thus not binding. The Tribunal in fact mentioned
the “text of Article 47” as the basis of its ruling.

As to the requirement that the right to the procedural integrity of the arbitration proceedings be impaired for the tribunal to sanction the failure to
comply with interim measures, two points may be made.

First, the Tribunal suggests that an ex-post analysis be made to determine whether the failure to comply with a recommendation affected the
“procedural integrity” of the arbitration proceedings. It follows that the binding character of a recommendation for interim measures would be
determined on a case-by-case basis, and a tribunal would order a party to pay damages or costs only if the party in favor of whom the measures were
granted ultimately suffered harm as a result of the non-compliance with the recommendation.

Secondly, the Tribunal’s reasoning seems to be based on the parties’ duty not to aggravate the dispute. If, by failing to comply with interim measures
recommended by the Tribunal, a party aggravates the dispute, the other party suffers harm and the “procedural integrity” of the arbitration is impaired.

It is not the first time that ICSID Tribunals have referred to the parties’ duty not to aggravate the dispute in the context of requests for interim
measures.59 Thus, the Tribunal in Caratube v. Kazakhstan, while rejecting the request for interim measures, stressed “the Parties’ general duty, arising
from the principle of good faith, not to take action that may aggravate the present dispute”.60 Similarly, the Tribunal in Churchill Mining v. Indonesia
rejected the request for interim measures but stressed the same duty, specifying that it “arises from the principle of good faith”.61 However, none of
these Tribunals discussed the binding nature of interim measures.

If Tribunals were to follow the reasoning in the Quiborax decision, no general rule could be established regarding the binding nature of interim
measures. A case-by-case analysis would be needed. According to the Tribunal, the breach of a rule ( i.e. , the recommendation for interim measures)
does not necessarily entail a sanction, unless the dispute was effectively aggravated due to the breach of the rule. Under these circumstances, parties to
a dispute would not be able to predict whether the interim measures that they intend to request will prove useful (and if the other side’s failure to
comply with them would be sanctioned).

§ 4. Potential annulment for excess of power?

A final question may be raised regarding the possibility of an annulment in the case where a tribunal orders an interim measure: could such an order be
considered to be a “manifest excess of power” of the Tribunal in the meaning of article 52 of the Washington Convention? Christoph Schreuer expressed
the view that “The most important form of excess of powers occurs when a tribunal exceeds the limits of its jurisdiction ”. 62 The fact of ordering a
measure where the consent of the parties, by referring to the Washington Convention, only provides for the possibility to recommend could perfectly fit
within this definition. One may then wonder whether this could be an annulment ground, as a violation of the scope of the parties’ consent. There are,
however, sufficient elements to attest that this cannot be the case. There are two principal reasons for this.

First, only an “award” can be subject to annulment according to Article 52.63 As a result, a measure issuing provisional measure cannot be as such the
object of an annulment request. The only possibility would thus be that the provisional measure is included within the final award, but this is a
nonsense: by definition, a provisional measure is adopted while the proceeding leading to the final award is pending and is, by nature, temporary.
Besides, there is no doubt that the interim measures lapse upon the issuance of the final award.64 Interim relief may yet be included in a preliminary
decision such as a decision on jurisdiction,65 but never in an award that puts an end to the dispute. There is thus a conceptual incompatibility between
interim measures and annulment and accordingly a technical impossibility to set aside a decision issuing provisional measures.

This impossibility is secondly supported by an analysis on the merits. Indeed, it is well-established in ICSID practice that the threshold for identifying a
manifest excess of power is quite high. Not every excess of power may lead to an annulment: it is only when the excess is obvious and undisputable.66
Accordingly, case law easily recognizes that, when a question is subject to different interpretations or diverging views, the fact of choosing one of them
cannot be an annulment ground. In CDC v. Seychelles, for example, the Ad Hoc Committee stated that “ Any excess apparent in a Tribunal’s conduct, if
susceptible of argument “one way or the other”, is not manifest”. 67 Thus, when case law is divided, it is hard to imagine that the choice of one trend and

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not the other could amount to a manifest excess of power (or even to a simple excess of power). This situation is close to the issue of the MFN
provisions, which is one of the most disputed questions in investment arbitration. Whether to apply the MFN clause to jurisdictional matters is a
question with no absolute answer. Accordingly, the choice between one of the two options that are left open by case law cannot in any way lead to an
annulment. In Impregilo, the Ad Hoc Committee stated without any ambiguity: “This is a complex issue, subject to debate, with opposite views that
were discussed by the majority and the dissenting arbitrator. Neither applying an MFN clause to jurisdictional issues nor refusing to apply it to assume
jurisdiction may be considered, per se, as a manifest excess of powers ”. 68 The same statement could be made about provisional measures, given the
division in case law. Thus, there is no doubt that a request for annulment would in any case be rejected as there is no manifest excess of power within
the meaning of Article 52 in ordering an interim measure despite the wording of the applicable rules.

1 – 1. This paper originates from a presentation made by the authors at an ICC YAF event hosted by Dechert LLP Paris on 22 February 2018. The authors
wish to thank Erica Stein and Audrey Caminades for having hosted the event.
2 – 2. For a general discussion of the matter, see Gabrielle Kaufmann-Kohler and Aurélia Antonietti, “Interim Relief in International Investment
Agreements”, in Katia Yannaca-Small (ed.), Arbitration Under International Investment Agreement: A Guide to the Key Issues, OUP, 2010, p. 507.
3 – 3 . Rizzani de Eccher S.p.A., Obrascón Huarte Lain S.A., and Trevi S.p.A.v. Kuwait, ICSID Case No ARB/17/8, Decision on provisional measures,
23 November 2017, § 101. See also for example Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case
No ARB/06/2, Decision on provisional measures, 26 February 2010, § 113; Churchill Mining PLC and Planet Mining Pty Ltd v. Indeonesia, ICSID Cases No
ARB/12/14 and ARB/12/40, Procedural Order No 14, 22 December 2014, § 71.
4 – 4. Emilio Agustín Maffezini v. The Kingdom of Spain , ICSID Case No. ARB/97/7, Decision on request for provisional measures, 28 October 1999, § 10;
Phoenix Action, Ltd. v. The Czech Republic , ICSID Case No. ARB/06/5, Decision on provisional measures, 6 April 2003, § 33.
5 – 5. Oxford English Dictionary Online, https://en.oxforddictionaries.com/thesaurus/recommend.
6 – 6. Oxford English Dictionary Online, https://en.oxforddictionaries.com/thesaurus/prescribe .
7 – 7. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Documents concerning the Origin and the
Formation of the Convention, Vol. II, Washington D. C., 1968, p. 515.
8 – 8. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Documents concerning the Origin and the
Formation of the Convention, Vol. II, Washington D. C., 1968, p 815.
9 – 9. Dissenting Opinion in RSM Production Corporation v. St Lucia, 12 August 2014, § 16.
10 – 10. PCIJ, Electricity Company of Sofia and Bulgaria, Order, 5 December 1939, Series A/B No 79, 199.
11 – 11. See for example Amco Asia Corporation v. Indonesia, ICSID Case No ARB/81/1, Decision on Provisional Measures, 9 December 1983, 1 ICSID Reports
410, § 5; see also Azurix Corp. v. Argentina, ICSID Case No ARB/01/12, decision on jurisdiction, 8 December 2003, § 14.
12 – 12. Pey Casado v. Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures, 25 September 2001, § 69.
13 – 13. Plama Consortium Limited v. Bulgaria, ICSID Case No ARB/03/24, Order, 6 September 2005, § 38.
14 – 14. On the obligation not to aggravate the dispute, see also infra, § 3, 2°.
15 – 15. AGIP v. Congo, Award, 30 November 1979, § 42(c).
16 – 16. See Occidental Petroleum Corporation v. Ecuador, ICSID Case No ARB/06/11, Decision on provisional measures, 17 August 2007, § 61.
17 – 17. Emphasis added.
18 – 18. ICJ, LaGrand (Germany v. United States), 27 June 2001, ICJ Rep. 466, ¶ 102.
19 – 19. See on this matter and on the consequences Brigitte Stern, “Interim / provisional measures”, in Meg Kinnear, Geraldine R. Fischer, Jara Mínguez
Almeida, Luisa Fernanda Torres, Mairée Uran Bidegain (ed.) Building International Investment Law. The First 50 Years of ICSID , Wolters Kluwer, 2016,
pp. 627-640, 630.
20 – 20. See Andrea Carlevaris, “Preliminary Matters: Objections, Bifurcation, Request for Provisional Measures”, in Chiara Georgetti (ed.), Litigating
Foreign Investment Dispute, A practitioner’s guide, Brill, 2014, 173-205, 199.
21 – 21. One may recall that article 54 of the Washington Convention is one core aspect of the ICSID system as it prevents awards from going through an
enforcement process before domestic Courts. Article 54 states: “Each Contracting State shall recognize an award rendered pursuant to this Convention
as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State”.
22 – 22. Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on request for provisional measures, 28 October 1999, § 9.
23 – 23. City Oriente Limited v. Ecuador , ICSID Case No ARB/06/21, Decision on provisional measures, 19 November 2007, § 52.
24 – 24. Emphasis added.
25 – 25. See Article 31 of the Vienna Convention on the Law of Treaties.
26 – 26. Tokios Tokeles vs Ukraine, ICSID Case No ARB/02/18, Procedural Order No 1, Claimant’s request for provisional measures, 1 July 2003, ¶ 4.
27 – 27. See ICJ, Threat or Use of Nuclear Weapons , Advisory Opinion, 8 July 1996, ICJ Rep. 226, § 70. However, the comparison cannot be complete as,
for the ICJ, a Resolution of the General Assembly may be used in order to identify an opinio juris of States. This is possible because all States are
members of the General Assembly, so that any decision adopted by the latter indeed reflects the general opinion of States. This cannot be the case of a
judicial decision that only reflects the opinion of the court or tribunal.
28 – 28. Occidental Petroleum Corporation v. Ecuador, ICSID Case No ARB/06/11, Decision on provisional measures, 17 August 2007, § 58.
29 – 29. Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan , ICSID Case No ARB/12/1, Decision on Claimant’s request for provisional
measures, 13 December 2012, § 114.
30 – 30. PNG Sustainable Development Program Ltd. c. Independent State of Papua New Guinea, ICSID Case No ARB/13/13, Decision on provisional
measures, 21 January 2015, § 102.
31 – 31. United Utilities (Talinn) BV and Aktsiaselts Tallinna Vesi v. Estonia , ICSID Case No ARB/14/24, Decision on the Respondent’s request for provisional
measures, 12 May 2016, § 109.
32 – 32. Millicom International Operations B.V. v. Republic of Senegal , ICSID Case No ARB/08/20, Decision on the Claimant’s request for provisional
measures, 9 December 2009, § 49.
33 – 33. Islamic Republic of Iran v. United States of America, IUSCT Decision No. Dec 134-A3/A8/A9/A14 and B61, 1 July 2011, § 59 (quoting David D. Caron
et al., The UNCITRAL Arbitration Rules – A Commentary 915, 2006).
34 – 34. ICJ, Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), 2 December 1963, ICJ Rep. 15, Individual Opinion of Judge
Fitzmaurice, ICJ Rep. p. 97, p. 103.
35 – 35. Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, The ICSID Convention: A Commentary (2nd ed.), Cambridge
University Press, 2009, Article 47, § 16.
36 – 36. Article 41 of the ICJ Statute.
37 – 37. Article 36 of the UNCITRAL Arbitration Rules : Art. 37.1 of the Stockholm Chamber of Commerce Arbitration Rules.
38 – 38. Article 26.1 of the International Chamber of Commerce Arbitration Rules.
39 – 39. Supra, § 2, A, 3°.
40 – 40. Technically, State consent is not expressed in the ICSID Convention but in a domestic law, in a contract or in an investment treaty. But when
one of those instruments refers to the ICSID Convention, it entails that the State’s consent is expressed in the conditions set forth by the Convention.
Thus when referring to ICSID, the State consents to the jurisdiction of a tribunal that will apply the ICSID Rules. The conditions for issuing a provisional
measure form part of them.
41 – 41. ICJ, Nuclear Tests (Australia vs. France), 20 December 1974, ICJ Rep. 259, ¶ 44.
42 – 42. See in particular PCIJ, Lotus (France v. Turkey), 7 September 1927, PCIJ Rep. Serie A No 10, 18. This statement has been assumed by many cases,
one of the most famous being the Island of Palmas Case (United States v. Netherlands), 4 April 1928, UNRIAA , vol. II, 839. See also The "Kronprins Gustaf
Adolf” (Sweden v. United States), 18 July 1932, UNRIAA vol. II, 1239.
43 – 43. PCIJ, Free Zones of Upper Savoy and the District of Gex, 7 June 1932, PCIJ Rep. Serie A/B No 47, 138-139.
44. Valle Verde Sociedad Financiera S.L. v. Bolivarian Republic of Venezuela , ICSID Case No. ARB/12/18, Decision on provisional measures, 25 January
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44. Valle Verde Sociedad Financiera S.L. v. Bolivarian Republic of Venezuela , ICSID Case No. ARB/12/18, Decision on provisional measures, 25 January
44 –
2016, § 77.
45 – 45. Perenco Ecuador Limited v. Ecuador, ICSID Case No ARB/08/6, Decision on provisional measures, 8 May 2009, §§ 62 and 79; Menzies Middle East
and Africa SA et Aviation Handling Services International Ltd. v. Senegal, ICSID Case No ARB/15/21, Procedural Order No 2, 2 December 2015, §§ 113
and 134.
46 – 46. Saipem SpA v. People’s Republic of Bangladesh , ICSID Case No ARB/05/07, Decision on jurisdiction and recommendation of provisional
measures, 21 March 2007, §§ 183 and ff.
47 – 47. See for example Caratube International Oil Company LLP & Mr. Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No ARB/13/13,
Decision on the Claimant’s request for provisional measures, 4 December 2014, § 145.
48 – 48. Caratube Oil Company LLP vs Islamic Republic of Pakistan, ICSID Case No ARB/08/12, Decision on the Claimant’s request for provisional
measures, 31 July 2009, § 67.
49 – 49. Ceskoslovenska Obchodni Banka, A.S. v. The Slovak Republic, ICSID Case No ARB/97/4, Procedural Order No 5, p. 1.
50 – 50. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Documents concerning the Origin and
the Formation of the Convention, Vol II, Washington D. C., 1968, p 515.
51 – 51. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Documents concerning the Origin and the
Formation of the Convention, Vol II, Washington D. C., 1968, p 516.
52 – 52. Maritime International Nominees Establishment (MINE) v. Republic of Guinea, ICSID Case No. ARB/84/4), Award, 6 January 1988.
53 – 53. Ceskoslovenska Obchodni Banka, A.S. v. The Slovak Republic, ICSID Case No ARB/97/4, Final Award, 29 December 2004, § 372.
54 – 54. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Documents concerning the Origin and the
Formation of the Convention, Vol. II, Washington D. C., 1968, p 815.
55 – 55. Rizzani de Eccher S.p.A., Obrascón Huarte Lain S.A., and Trevi S.p.A. v. Kuwait, ICSID Case No ARB/17/8, Decision on provisional measures,
23 November 2017, § 101. See also for example Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case
No ARB/06/2, Decision on provisional measures, 26 February 2010, § 113; Churchill Mining PLC and Planet Mining Pty Ltd v. Indeonesia, ICSID Cases No
ARB/12/14 and ARB/12/40, Procedural Order No 14, 22 December 2014, § 71.
56 – 56. AGIP S.p.A. v. People’s Republic of the Congo, ICSID Case No. ARB/77/1, Award, 30 November 1979, § 42.
57 – 57. Perenco Ecuador Limited v. Ecuador, ICSID Case No ARB/08/6, Decision on remaining issues of jurisdiction and on liability, 12 September 2014,
§ 417.
58 – 58. Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Award, 16 September
2015, § 583. (emphasis added.)
59 – 59. See also supra, § 2, A, 1°.
60 – 60. Caratube International Oil Company LLP and Devincci Salah Hourani v. The Republic of Kazakhstan , ICSID Case No ARB/13/13, Decision on the
Claimants’ Request for Provisional Measures, 4 December 2014, § 154.
61 – 6 1 . Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No ARB/12/14 and 12/40, Procedural Order No 14,
22 December 2014, § 94.
nd
62 – 62. Christoph H. Schreuer, Loretta Malintoppi, August Reinisch & Anthony Sinclair, The ICSID Convention: A Commentary (2 ed.), Article 52, § 133,
p. 938.
63 – 63. Ibid., p. 921. It is true that the wording of Article 52 leaves no doubt: “Either party may request annulment of the award by an application in
writing addressed to the Secretary-General”.
64 – 64. Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/05/20, Final
Award, 11 December 2013, § 1307.
65 – 65. See the example mentioned supra: Saipem SpA v. People’s Republic of Bangladesh , ICSID Case No ARB/05/07, Decision on jurisdiction and
recommendation of provisional measures, 21 March 2007.
66 – 66. See, among many cases Hussein Nuaman Soufraki v. United Arab Emirates, ICSID Case No ARB/02/7, Decision on Annulment, 5 June 2007, § 40.
67 – 67. CDC Group PLC v. Republic of Seychelles, ICSID Case No ARB/02/14, Decision on Annulment, 29 June 2005, § 41.
68 – 68. Impregilo SpA vs. Argentina, ICSID Case No ARB/07/17, Decision of the Ad Hoc Committee on the Application for Annulment, 24 January 2014,
§ 140.

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