Originally from World Arbitration And Mediation Review (WAMR)

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ICSID PROVISIONAL MEASURES TO ENJOIN

PARALLEL DOMESTIC LITIGATION
Rodrigo Gil

I. INTRODUCTION
International Centre for Settlement of Investment Disputes
(“ICSID”) cases where provisional measures are requested to
enjoin parallel domestic litigation differ substantially from other
ICSID provisional measures cases. In order to account for these
differences, the traditional three-prong test of urgency, necessity
and irreparable harm must be redefined.
There are two main features in provisional measures cases
involving parallel domestic proceedings that distinguish them
from other provisional measures requests.
First, in cases involving parallel domestic litigation, there is a
struggle between the supremacy of international tribunals and
the autonomy of domestic courts. Provisional measures to enjoin
domestic litigation challenge states’ sovereignty to exercise their
powers to conduct national proceedings within their own
territory. This overlap between international and national
jurisdiction has forced ICSID tribunals to consider additional
circumstances, beyond the natural scope of provisional relief,
when they review an interim measures request. ICSID tribunals
have acknowledged their duty to balance the rights of foreign
investors to submit disputes before ICSID with the power of
sovereign states to exercise their own domestic jurisdiction.
Provisional measures provide a procedural tool to set boundaries
between the jurisdictions of ICSID tribunals and domestic courts.
Second, a review of the ICSID cases involving parallel domestic
litigation shows that the main rights invoked in support of the
provisional measures requested are not Claimants’ rights in
dispute, they are instead: the right to exclusivity of ICSID
proceedings and the right to non-aggravation of the ICSID dispute,
both self-standing procedural rights. The first is expressly set
forth in Article 26 of the Washington Convention (also known as