BIICL and White & Case are delighted to present our 2023 comprehensive empirical study on provisional measures in investment treaty arbitration. It builds up on success of the 2019 empirical study, which has now been extensively cited in academic literature, and decisions of arbitral tribunals and parties' submissions on provisional measures.
This study conducts a detailed examination of 160 decisions on provisional measures, including 46 new publicly available decisions, and how these decisions affect and change the trends and practices, identified in our 2019 study.
These new decisions provide more clarity on the criteria used by tribunals to grant provisional measures and their understanding of such criteria, success rate by applicable arbitration rules and measures requested as well as the cases most frequently relied upon by international tribunals. The study also deals with some of most crucial issues facing investment arbitration at the moment, including the fate of the intra-EU investor-State disputes, and the sanctions against Russia.
For the first time, this study explores procedural aspects and procedural efficiency of the decisions on provisional measures, including the average number of days it takes for the tribunals to issue the decisions on the provisional measures, and how it is affected by the arbitration rules, the party making a request, and various procedural factors.
The study further investigates tribunals' decisions on costs, and some of the most recent trends, including the increasing use of the "most provisional" decisions on provisional measures by ICSID tribunals, and recent amendments to the ICSID and ICSID Additional Facility Rules.
Prof. Emilia Onyema, SOAS
Emilia Onyema is a Professor of International Commercial Law at SOAS University of London where she teaches international commercial arbitration, international investment law and commercial law in a global context. She is qualified to practice law in Nigeria, as a Solicitor in England & Wales, Fellow of Chartered Institute of Arbitrators and independent arbitrator. She is a member of the Cairo Regional CICA Advisory Committee, LACIAC Court member, among others. She convenes the SOAS Arbitration in Africa conference series and leads the SOAS Arbitration in Africa biennial survey research project; she co-authored the African Promise and founded the Arbitration Fund for African Students (AFAS) a registered charitable organisation in England. Her research interests focus on the development of international arbitration in Africa and the engagement of Africans in international arbitration. She publishes widely in her areas of expertise. She has experience as presiding, co and sole arbitrator, and acts as legal expert witness in international arbitration.
Prof. Yarik Kryvoi, British Institute of International and Comparative Law
Yarik Kryvoi is Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law (BIICL).
He holds law degrees from Harvard, Moscow, Nottingham, Utrecht and St Petersburg and is admitted to practice in the State of New York. Before moving to academia, he practicing international investment law with Freshfields Bruckhaus Deringer in London, Morgan Lewis & Bockius in Washington, DC and Baker & McKenzie in Saint Petersburg. He is a co-founder of Arbitration Lab and serves on editorial boards of several international legal periodicals.
Professor Kryvoi is the course leader of the Institute's online course International Investment Law and Dispute Resolution, available at www.biicl.org/isds.
David Goldberg, White & Case
David Goldberg is a solicitor-advocate whose practice focuses on international commercial and investment arbitration. He is recognised by the leading legal directories for his strength and particular expertise in complex investment disputes and disputes involving states, as well as those arising out of corporate transactions. He is in particular ranked for "International Arbitration (UK-wide)" by Chambers 2023 and is featured in the Hall of Fame by the Legal 500 UK 2023 within the same category.
David has experience of arbitrations conducted under all major arbitral institutions and rules, including LCIA, ICC, ICAC, ICSID, SCC and UNCITRAL arbitrations. He also represents clients in court proceedings concerning the conduct of arbitral proceedings, including the enforcement or challenge to arbitral awards, the appointment of arbitrators and applications for interim measures such as disclosure and worldwide freezing orders. His experience covers a broad range of sectors, including oil and gas, metals and mining, telecommunications, manufacturing, financial services and insurance. He is also regularly appointed as an arbitrator, with recent appointments including arbitrations conducted under the LCIA, ICC, SCC, ICAC and UNCITRAL rules. He is a board member of the LCIA.
Ivan Philippov, White & Case
Ivan Philippov is a solicitor of England and Wales and associate of the White & Case International Arbitration Group, based in London. Ivan has a broad practice in complex cross-border arbitration disputes in Europe, Latin America and the Middle East. His experience includes representing sovereign states, companies and individuals in investor-state and commercial disputes under ICSID, ICSID Additional Facility, UNCITRAL, LCIA, SIAC and ICC rules, as well as ad hoc arbitration under domestic arbitration laws.
Ivan is committed to pro bono work and was awarded the Firm's Global Citizenship Award in 2021 for his work for the Vance Centre for International Justice and the Public International Law & Policy Group. Ivan is also a member of the Steering Committee of Young Investment Treaty Forum, organised under the patronage of British Institute of International and Comparative Law.
Erica Stein, Stein Arbitration
Erica Stein Erica acts as arbitrator in international commercial and investment arbitrations. Prior to becoming an independent arbitrator, Erica was a partner in the international arbitration practice of Dechert in Brussels and Paris. In addition to her arbitrator practice, Erica is an expert in the enforcement of arbitral awards and agreements under the New York Convention, on which she lectures at both the MIDS (Geneva LL.M. in International Dispute Settlement) and National University of Singapore. Erica currently serves as the Vice President of the DIS Arbitration Council (German Arbitration Institute) and as Co-Chair of the IBA Arbitration Guidelines and Rules Subcommittee.
This event offers the equivalent of 1.5 CPD hours.
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