Protection in International Investment Arbitration: Challenge to State Sovereignty - Chapter 10 - Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

Author(s):

A. F. M. Maniruzzaman

Page Count:

16 pages

Published:

May, 2015

PDF635.92 KB

$40.00

Description:

Originally from Interim and Emergency Relief in International Arbitration - International Law Institute Series on International Law, Arbitration and Practice

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I. INTRODUCTION

In aid of an arbitration, arbitral tribunals may have to order interim

measures of protection against any party to the dispute concerned. In the

arbitral jurisprudence, arbitration laws and rules as well as in juristic

views the expressions such as ‘provisional measures’, ‘interim measures’,

‘conservatory measures’, ‘protective measures’, ‘injunctive relief’, or

‘injunctions’ etc. are used in the same sense. In this paper they will be thus

used interchangeably.

In investor-state arbitration the status of the state party as sovereign

often raises various issues in various respects. In the context of ordering

interim measures in connection with an arbitration, arbitral tribunals have to

ponder over various considerations that may affect the sovereignty of the

state party. It is well recognised that all parties to an arbitration are treated

equally, but the state party has some special characteristics which its nonstate

/ private party counterpart does not have. Thus, in an arbitration the

issues such as the state’s public interest, sovereign immunity, public law

powers, eminent domain or international obligations, etc., could arise as a

party.

This paper explores whether in an investor-state arbitration the state

sovereignty poses a challenge to the arbitral tribunal in ordering interim

measures in aid of arbitration. It also examines whether the arbitral

tribunal can order interim measures that are binding on the state party and

whether the sovereign status of the state may, in practical terms, influence
the considerations of the arbitral tribunal while deciding on the grant of