Research On The Release Conditions And Binding Force Of ICSID Provisional Measures

As an important measure to protect the legitimate rights and interests of the parties to a dispute from being infringed and to maintain the efficient conduct of arbitration proceedings,provisional measures are often proposed by arbitration tribunals and parties to the dispute in ICSID arbitration.The main purpose of this measure is to avoid the aggravation of the dispute and maintain the existing status of the dispute.The establishment of provisional measures can enable the arbitral tribunal to better control the process of arbitration proceedings,and the parties involved in arbitration will also have more time and energy to prepare for the subsequent arbitration content due to the existence of this interim measure,which is conducive to achieving the effect of promoting the smooth resolution of dispute issues.However,due to the wording issues in the ICSID Convention and the ICSID Arbitration Rules,i.e.the use of a more "soft" term such as"recommendation" for the manner in which provisional measures are made,the power of the arbitral tribunal to issue provisional measures is not binding at the textual level,which will have an impact on the compliance and enforcement of subsequent provisional measures.In arbitration practice,if only from the literal meaning of the text of the Convention,it is considered that the provisional measures issued by the ICSID arbitration tribunal do not have binding force,then this provision will be regarded as a dead letter and cannot achieve the purpose of its establishment.Therefore,starting from the case of"Maffezini v.Spain",the arbitration tribunal gradually gave binding force to the provisional measures made by it through adjudication,which has also been developed in subsequent arbitration cases,Many practical precedents have been formed for reference.It is precisely because of the difference between this provision and practical determination that two diametrically opposed views have emerged in academic circles on the binding force of provisional measures.This article will analyze whether the power of the arbitral tribunal to issue provisional measures under the ICSID system is binding,based on the ICISD Arbitration Rules that came into effect in 2022,past cases of arbitral tribunals,and studies by various scholars.Taking into account the maintenance of the sovereignty of the contracting parties and the realization of the purpose of the arbitration rules,it will reflect on the shortcomings of granting binding force to provisional measures through practical forms alone.In addition,this article also attempts to reconstruct the determination of the binding force of provisional measures from the perspective of State responsibility,combined with the issue of compliance with provisional measures.This year is the tenth year of China’s "the Belt and Road" initiative.Against this background,the number of Chinese enterprises’ overseas investment and foreign enterprises’ investment in China has increased,and the disputes between private investors and the host country due to investment issues will also increase,and such disputes will most likely be referred to ICISD arbitration.As a member of the ICSID Convention,During the ICSID arbitration process,it is inevitable to encounter the issuance of provisional measures.We will also provide targeted suggestions for China on how to respond to the provisional measures issued by the arbitration tribunal and the subsequent compliance with such measures.The main research methods used in this article are case study and comparative analysis,which are composed of four parts.The first part is an overview of the system of provisional measures.Firstly,it introduces the origin and concept of the measure.Secondly,it clarifies the legal framework of provisional measures by comparing the provisions of the measure under British law,the Model Law.Finally,it introduces the provisional measures under the ICSID system,including the source of power of the ICSID arbitral tribunal to issue provisional measures and the content of the 2022 new version of the ICISD Arbitration Rules.The study of the broad system of provisional measures and the content of provisional measures under ICSID is conducive to the following understanding and analysis of the issue of issuance conditions and binding force of provisional measures under ICSID.The second part mainly analyzes the conditions for the issuance of provisional measures by the ICSID arbitration tribunal.As an amendment to the new version of the ICISD Arbitration Rules came into force in 2022,the amendment refined the content of the previous version of the arbitration rules,especially providing more detailed provisions on the applicable conditions and issuance requirements of provisional measures.Therefore,this part of the content will combine the cases in which the arbitral tribunal has made provisional measures decisions in practice and relevant principles of international law,Summarize and sort out the conditions required for the arbitral tribunal to issue provisional measures.The third part focuses on the issue of the binding force of provisional measures issued by the ICSID arbitral tribunal.The dispute over this issue mainly stems from the differences between the provisions of the Convention and the practical results of the arbitral tribunal and the parties to the dispute.This section first uses the method of legal interpretation to clarify the effectiveness of provisional measures in the rules.Secondly,it further clarifies the issue of the effectiveness of provisional measures by introducing the practical practices of arbitral tribunals and the views of different scholars on this issue.Finally,this section attempts to respond to the dispute over whether ICSID provisional measures have binding force from the perspective of State responsibility and compliance with provisional measures.The fourth part combines the contents of the above three parts,analyzes the enlightenment brought by the binding force issue of ICSID provisional measures,and attempts to give our country solutions to the issue of provisional measures in the field of investment arbitration and put forward some feasible suggestions.