W18: Provisional Measures & Transparency in IIA

Question 1

Provisional Measures

Answer 1

ICSID Art. 47: Decision for Provisional Measures

• Wording and drafting suggests not binding, merely a recommendation
• In practice, they ARE binding*
• Maffezini v Spain

PURPOSE:
Induce behaviour by the that is conducive to a successful conduct of the proceedings
- Examples:
i. (Tribunal) To secure access to essential evidence
ii. (Parties) Posting of financial guarantees to secure recovery of costs of proceedings
iii. Against hostile propaganda/adverse publications
iv. To order termination/suspension of related domestic proceedings*
*SGS v Pakistan

TIME:
When outcome of dispute is still uncertain
- Often requested BEFORE tribunal decides on Jurisdiction
- Tribunal must strike a BALANCE b/w urgency of request for provisional measures and the need not to prejudge the case

BASIS OF POWER:
Prima Facie Jurisdiction; w/out prejudice to a subsequent determination of jurisdiction

GUIDING PRINCIPLES FOR INDICATION OF PM:

i. Urgency
ii. Necessity

EXAMPLES OF NECESSITY:

i. Induce parties to cooperate in proceedings and furnish all evidence
ii. Take early measures to secure compliance w eventual award
iii. Stop the parties from resorting to self-help/seeking relief thru other remedies
iv. Prevent a general aggravation of the situation thru unilateral action

Question 2

SGS v Pakistan

[Int’l Obligations > Internal Law]

Answer 2

FACTS:

1. Pak SC granted a motion by the respondent that the claimant be permanently enjoined from taking any steps to participate in the ICSID Proceedings
2. Request for PM by Claimant: That respondent should immediately withdraw from all proceedings in the Pak Courts wrt ICSID arbitration, and cause proceedings to be discontinued.

HELD:

1. SC Judgments, although final and binding u/Pak Law, did not bind the Tribunal as a matter of int’l law
2. Int’l Obligations > Internal Law

Question 3

Maffezini v Spain

[Binding Nature]

Answer 3

Comparison of ‘recommend’ wrt Provisional Measures to ‘Order’ used elsewhere in the Arbitration Rules.

HELD: ‘Recommend’ = ‘Order’

• Tribunal does not believe parties to Convention intended substantial diff. in the effect of the 2 words.
• Tribunal’s authority to rule on Provisional Measures is NO LESS binding than that of a final award.

NON-COMPLIANCE: taken into a/c by Tribunal when making award

Question 4

The Award

Answer 4

DELIBERATIONS:

i. After pleadings are completed, tribunal deliberates on the award
ii. Only Tribunal members partake in deliberations
iii. Substance of deliberations = SECRET

AWARDS:

i. Rendered in writing
ii. Signed by members of Tribunal
iii. Most awards rendered unanimously, but majority decisions are possible - a member may attach a dissenting opinion/declaration
iv. Must deal w all Qs. submitted to the tribunal
v. Must contain a full statement of reasons
- Failure to deal w all Qs. or serious shortcomings in reasoning = grounds for annulment
vi. Dispatched promptly to parties
vi. DATE OF AWARD: Date of Dispatch to Parties; NOT Date of Signature by Arbitrators
- Imp. for exact determination of limitation periods for any post-award remedies.

FINAL AND BINDING:

i. Sub: review only u/ltd. circumstances
ii. Binding force ltd. to parties - NOT other cases before the tribunal;
iii. Does NOT create binding precedents
- Tribunals are NOT bound by previous decisions; HOWEVER< they will take due a/c of them when making decisions
- IN PRACTICE: Parties frequently refer to and rely on earlier decisions

Question 5

Transparency

Answer 5

ICA v IIA:

i. ICA: Confidentiality is considered a major advantage
ii. IIA: Issues of public interest have increasingly led to demands for more openness and transparency

ISSUES OF TRANSPARENCY:

i. Access to Info
ii. Third-party participation

Question 6

Publishing Awards

Answer 6

1. ICSID Secy. Gen. is u/obligation to publish info. about the existence and progress of pending cases (Centre’s website)
2. NOT published automatically - ONLY w/consent of both parties
   - 2006 Amendment to Arbitration Rules: Centre now u/obligation to publish excerpts of the legal reasoning of each award
   - Most get published, save for exceptional few

PUBLISHING BY PARTIES:

i. Free to release awards and other decisions for publication unless otherwise agreed
ii. Wrt pending proceedings, parties are NOT prohibited from publishing their pleadings, but may come to an understanding to refrain from doing so
iii. Free to agree on total/partial publication of docs related to a proceeding

Question 7

Non-ICSID Awards

Answer 7

1. Non-ICSID Awards published sporadically
2. Impossible to find out how many non-ICSID arbitrations have taken place since there is no central register of these proceedings

THIRD PARTIES:
Tribunals operating in framework of NAFTA u/UNCITRAL Rules - allowed third parties to make written submissions

AMICUS CURIAE:
October 2003 - NAFTA Free Trade Commission issued a statement reg. the participation of non-disputing parties

Question 8

Privacy of Proceedings

Answer 8

1. Most hearings are closed to the public
2. In Principle - ONLY the following may attend:
   i. Members and officers of the tribunal
   ii. Parties and their representatives
   iii. Witnesses (while giving testimony)

BUT, 2006 Amendment: The tribunal MAY (unless a party objects), after consultation w/ICSID’s Secy. Gen, allow other persons to attend all/part of the hearings
- Some investment treaties provide that investor-state arbitration hearings shall be open to the public.

Question 9

Amicus Curiae Briefs in IIA

Answer 9

1. Permitted in some cases
2. Tribunal may, after consulting w parties, allow an entity, that is NOT a party, to file a written submission regarding a matter w/in scope of dispute