Provisional Measures in ICSID Arbitration from "wonderland's Jurisprudence" to Informal Modification of Treaties

Tarcisio Gazzini, Robert Kolb

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Abstract

Since 1999, ICSID tribunals have almost systematically held that they have the power not only to recommend but also to order provisional measures under Article 47 of the ICSID Convention and Rule 39 of the Arbitration Rules. This article argues that the legal arguments offered by these tribunals are often not fully elaborated and in any case not entirely convincing. It then provides an alternative reading of the decisions relating to the mandatory character of provisional measures, in the sense that they imply a significant departure from the meaning the contracting parties recorded in the treaty. Yet, as the majority of icsid members have endorsed, accepted or at least acquiesced in such departure, it appears that Article 47 of the ICSID Convention has been informally modified through subsequent practice.

Original languageEnglish
Pages (from-to)159-184
Number of pages26
JournalLaw and Practice of International Courts and Tribunals
Volume16
Issue number1
DOIs
Publication statusPublished - 2017

Keywords

  • ICSID Convention
  • investment arbitration
  • modification of treaties
  • provisional measures
  • treaty interpretation

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