Research On The Binding Force Of Provisional Measures In ICSID Arbitration

In ICSID arbitration,the use of the word "recommend" in Article 47 of ICSID Convention makes the binding force of the tribunals to take provisional measures in dispute for a long time.From the perspective of legal interpretation,the text of the convention does not grant the tribunals the binding force of provisional measures.By analyzing the theory of the binding force of provisional measures in arbitration practice,we can also find that it has many defects and can not overturn the traditional determination of the binding force of provisional measures in the text of the convention.However,it can not be ignored that,based on the positive promotion of arbitration practice,the arbitration cases with binding force of provisional measures have been formed in practice.In the case that the text provisions are different from the contents of practical cases,how to determine the binding force of provisional measures is a problem worthy of consideration.If based on the convention text,it is found that provisional measures have no binding force,the system of provisional measures without binding force will become a dead letter,and it will be difficult for the tribunals to perform its arbitration function.Therefore,on the premise of the formation of arbitration practice cases,the binding force of provisional measures should be considered based on pragmatism to a certain extent.However,the arbitration power of the tribunals comes from the grant of the Contracting States of the Convention,and is fixed in the form of the convention text,the convention text carries the will of the Contracting States of the Convention to grant the power,and restricts the exercise of the relevant power of the tribunals.If we fully affirm the binding force of the provisional measures under the arbitration cases,regardless of the wishes of the Contracting States of the Convention,once the power of the Contracting States of the Convention rebounds,the tribunals will probably lose the legitimacy of exercising its power,this consequence is extremely unfavorable to both the provisional measures system and the investment arbitration system.Therefore,in order to make the provisional measures system and the investment arbitration system work well for a long time,the binding force of provisional measures formed by arbitration cases should be limited to a certain extent.This paper will analyze and sort out the provisions of the convention text and arbitration practice through normative analysis,literature analysis and case analysis.In the case of inconsistency between the provisions of the convention text and arbitration practice cases,this paper will analyze the determination of binding force of provisional measures and the balance between the convention text and arbitration practice through relevant cases.This paper is divided into four parts.The first part introduces the dispute on the binding force of provisional measures adopted by ICSID tribunals by interpreting the provisions of the convention and combing the arbitration practice.The second part focuses on the analysis of the ICSID tribunals’ theory on the determination of the binding force of provisional measures,to explore the rationality of the determination of the binding force and the impact of the theory on the provisions of the convention text,so as to clarify the determination of the binding force of provisional measures in the convention text again.The third part analyzes the inconsistency between the provisions of the convention and the arbitration practice cases,and affirms the binding force of provisional measures from the perspective of pragmatism based on the consideration of the function of the provisional measures system in ICSID arbitration practice and the need for the tribunals to perform its functions.The fourth part analyzes the restrictions on the binding force of ICSID arbitration provisional measures.This part analyzes the attitude of the tribunals to interfere in the sovereignty of the state and the relevant arbitration practice,from the perspective of respecting the wishes of the parties to the convention,it analyzes the restriction on the binding force of the provisional measures from two aspects: the smooth operation of the provisional measures system and the long-term maintenance of the investment arbitration system.