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Empirical Study: Provisional measures in investor‑state arbitration (2023)

Professor Yarik Kryvoi

BIICL and White & Case are delighted to present our 2023 empirical study on provisional measures in investment treaty arbitration. It builds on the success of the 2019 report on provisional measures ("the 2019 Report"), which has now been extensively cited in academic literature, and decisions of arbitral tribunals and parties' submissions on provisional measures. 

The study consists of three parts, summarising key new developments that have occurred since the 2019 Report, exploring procedural efficiency in the resolution of requests for provisional measures, and updating the 2019 Report's findings in accordance with the newly available cases. 

New decisions and ICSID reform: The past three years have seen not only the most significant revision of the ICSID and ICSID Additional Facility (ICSID AF) arbitration rules in their history, but also a significant increase in the number of publicly available decisions on provisional measures. This study conducts a detailed examination of 160 decisions on provisional measures and how these decisions affect and change the trends and practices identified in the 2019 Report. 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. They also deal with some of most crucial issues facing investment arbitration at the moment, including the future of the intra-EU investor-state disputes, and the sanctions against Russia.

Procedural efficiency: For the first time, this study explores the procedural efficiency of decisions on provisional measures, including the average number of days it takes for the tribunals to issue their decisions. It also shows how the choice of arbitration rules, the party making a request, and various other procedural factors affect the length of proceedings. It 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. 

Updating findings of the 2019 Report: Compared to the findings of the 2019 Report, respondent states have become increasingly willing to file requests for provisional measures, and much more likely to obtain a positive decision from tribunals. The study found no drastic changes in the types of the provisional measures requested by the parties, or the criteria applied by tribunals, except for an increase in the number of requests for the security for costs, and an increase in importance of the criterion of proportionality. We hope that this study, to be updated on a bi-annual basis, will become a regular and anticipated development in the field of investor-state arbitration.

This study is co-authored by Professor Yarik Kryvoi, Director of the Investment Treaty Forum of BIICL with David Goldberg and Ivan Philippov of White & Case.

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