10.6092/issn.2531-6133/9359
This paper outlines arbitral tribunals’ power to order provisional measures under the auspices of I.C.S.I.D. Arbitration; that is, investor-state arbitration. The scope of a tribunal’s power is cumbersome to discern, especially when there are possible interferences with state sovereignty. More recently, tribunals have ordered provisional measures to suspend a domestic criminal investigation or proceeding. Is this an infringement on a states sovereign prerogatives or a response to, for example, dilatory tactics by a rogue state? The crux of the issue is this: a state will always be in a position to utilize its prosecutorial powers in order to frustrate the arbitration by putting immense pressure on the investor, its employees, or its witnesses, in other words: “playing games” in local courts. In order to guarantee procedural integrity of the arbitration and, as a corollary, the legitimacy of investor-state arbitration in its entirety, the provisional measure is a practical tool that can be used effectively. On a similar vein, “sovereignty” should not force tribunals to tie their hands when serious interference with the arbitral procedure is making the procedure unfair at best,or a nullity at worst. However, legal text both empowers and constrains the tribunal. The I.C.S.I.D. Convention only allows a tribunal to “recommend” provisional measures. As seen in light of investor-state case law, in an informal (perhaps de facto) stare decisis context, a number of tribunals seem to have justiﬁed the ordering of provisional measures. In the shadow of this construction lurks the de-legitimizing of the entire investor-state arbitration system. At the same time, rogue sovereigns playing games in local courts have the same de-legitimizing effect.
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Bruno Gustafsson
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Treaty Interpretation
Provisional Measures in Investor-State Arbitration: States Playing Games in Local Courts by Invoking the Trump Card (Police Powers)
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Bruno Gustafsson
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Provisional Measures in Investor-State Arbitration: States Playing Games in Local Courts by Invoking the Trump Card (Police Powers)
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 ARTICLES & ESSAYS                                                      https://doi.org/10.6092/issn.2531-6133/9359




       Provisional Measures in Investor-State Arbitration:
              States Playing Games in Local Courts
          by Invoking the Trump Card (Police Powers)

                              YLLI DAUTAJ & BRUNO GUSTAFSSON†


TABLE OF CONTENTS: 1. Introduction; 2. Provisional Measures; 2.1. I.C.S.I.D. Convention and
Rules; 2.2. Uncitral Model Law and Arbitration Rules; 3. Treaty Interpretation in Light of
the Vienna Convention on the Law of Treaties; 4. Case Analysis – I.C.S.I.D.; 4.1. Quiborax
v. Bolivia; 4.2. Hydro v. Albania; 4.3. Churchill Mining and Planer Mining v. Indonesia;
4.4. Lao Holdings v. the Lao People’s Democratic Republic; 4.5. Concluding Remarks –
Doctrinal Legacy?; 5. I.C.S.I.D. Tribunals’ Jurisdiction – Procedural Safeguards and State
Sovereignty; 6. Concluding Remarks.

ABSTRACT: This paper outlines arbitral tribunals’ power to order provisional measures
under the auspices of I.C.S.I.D. Arbitration; that is, investor-state arbitration. The scope of
a tribunal’s power is cumbersome to discern, especially when there are possible
interferences with state sovereignty. More recently, tribunals have ordered provisional
measures to suspend a domestic criminal investigation or proceeding. Is this an
infringement on a states sovereign prerogatives or a response to, for example, dilatory
tactics by a rogue state? The crux of the issue is this: a state will always be in a position to
utilize its prosecutorial powers in order to frustrate the arbitration by putting immense
pressure on the investor, its employees, or its witnesses, in other words: “playing games”
in local courts. In order to guarantee procedural integrity of the arbitration and, as a
corollary, the legitimacy of investor-state arbitration in its entirety, the provisional
measure is a practical tool that can be used effectively. On a similar vein, “sovereignty”
should not force tribunals to tie their hands when serious interference with the arbitral
procedure is making the procedure unfair at best, or a nullity at worst. However, legal text
both empowers and constrains the tribunal. The I.C.S.I.D. Convention only allows a
tribunal to “recommend” provisional measures. As seen in light of investor-state case
law, in an informal (perhaps de facto) stare decisis context, a number of tribunals seem to
have justiﬁed the ordering of provisional measures. In the shadow of this construction
lurks the de-legitimizing of the entire investor-state arbitration system. At the same
time, rogue sovereigns playing games in local courts have the same de-legitimizing effect.

KEYWORDS: Investment Treaty Arbitration; Interim Measures; Sovereign Immunity; Suspension
of Criminal Procedures; Treaty Interpretation


JEL CODES: K33




                                     UNIVERSITY OF BOLOGNA LAW REVIEW

                                                  ISSN 2531-6133

                                                  [VOL.4:1 2019]

            This article is released under the terms of Creative Commons Attribution 4.0 International License



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          1. INTRODUCTION

Investment         treaties    (bilateral    and    multilateral)        offer     signiﬁcant
protection to investors operating globally.                When a state breaches the
substantive protection offered through the investment treaties, an
investor may bring a claim in investor-state arbitration. However, the
precise scope of the tribunal’s power is more cumbersome to discern.
This paper will focus on the tribunals jurisdiction to order provisional
measures under the I.C.S.I.D. regime. To illustrate the potential scope of
interference with state sovereignty, this paper will highlight the recent
development where tribunals’ have ordered provisional measures to
suspend a domestic criminal investigation or proceeding.
          The host-state, in its capacity as a sovereign, can interfere with the
arbitration in a myriad of ways. For example, a host-state can conduct
criminal investigations or proceedings against individuals involved in the
arbitration. A state can thus utilize its prosecutorial powers in order to
frustrate the arbitration by putting immense pressure on the investor, its
employees, or its witnesses. As a corollary, a variety of issues can arise at
the intersection of domestic criminal law and investment-arbitration.1 In
essence, the respondent host-state will always have the power to “play
games” in the local courts. The crux of the matter is what powers the
tribunal has to guarantee the procedural integrity on an interim basis and
whether those powers are explicit, implicit or not given at all.2
†
    Ylli Dautaj, Senior Research Associate, O.P. Jindal Global University, Jindal Global Law
    School (India). He holds an LL.B. degree from University College Cork (Ireland) and LL.M.
    degrees from Uppsala University (Sweden) and Pennsylvania State University (USA).
    Currently a PhD Candidate at the University of Edinburgh (UK). This author is indebted
    to his friend, mentor, and rolemodel, Professor William F. Fox. Under his supervision
    and guidance the author has gained a lot of energy, motivation, and acquired much
    new knowledge. Many thanks also to Assistant Dean Stephen G. Barnes, a role-model
    and excellent individual. Bruno Gustafsson, Associate at Roschier Attorneys, Ltd, in
    Stockholm. He holds an LL.M. degree from Stockholm University (Sweden). However,
    the views and opinions expressed in this article are the author’s own and are not to be
    ascribed to Roschier as a ﬁrm.
1
  Henry G. Burnett & Jessica Beess und Chrostin, Interim Measures in Response to the Criminal
  Prosecution of Corporations and Their Employees by Host State in Parallel with Investment
  Arbitration Proceedings, 30 MD. J. INT’L. L. 31, 32 (2015).
2
  In this paper “procedural integrity” includes a wider range of procedural guarantees, such
  as the right to a fair procedure, a good faith procedure, etc.



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This paper will address the following questions. May an I.C.S.I.D. tribunal
order a sovereign to refrain from certain conduct on a provisional basis?
Does an I.C.S.I.D. tribunal have the authority to, for example, suspend
domestic criminal procedures? How have previous tribunals justiﬁed an
“order” that suspends criminal investigations or procedures under the
I.C.S.I.D. framework?




        2. PROVISIONAL MEASURES

A provisional measure may serve as a procedural safeguard which
provides the tribunal with a mechanism that can help all parties to be
“equally heard”.3 It can be argued that a tribunal’s authority to order
provisional measures is a corollary to the parties’ consent to arbitration.4
Born writes that:

          [P]rovisional measures rest on a simple premise: in order for a

          dispute resolution process to function in a fair and effective

          manner, it is essential that a tribunal possess broad power to

          safeguard the parties’ rights and its own remedial authority

          during the pendency of the dispute resolution proceedings.

          Unless the tribunal is able to grant the provisional measures, its

          ability to provide effective, ﬁnal relief may be frustrated, one

          party may suffer grave damage, or the parties’ dispute may be

          unnecessarily exacerbated during the pendency of the dispute

          resolution process.5
3
  GARY BORN, INTERNATIONAL COMMERCIAL ARBITRATION 2425 (2nd ed. 2014).
4
  See Louis Yves Fortier, Interim Measures: An Arbitrator’s Provisional Views, in CONTEMPORARY
  ISSUES IN INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS 49 (Arthur W.
  Rovine ed., 2008).
5
  BORN, supra note 3, at 2425. Born also outlines some limitations on the arbitral tribunal’s
  power to order provisional relief, e.g. (a) lack of power to order provisional relief against
  third-parties; (b) lack of power to enforce such relief; (c) limited scope of power to
  subject-matter of the dispute; (d) lack of power to order relief until the tribunal is
  constituted; etc.



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Arguably, provisional measures make the arbitration procedure more
effective and can serve for various purposes. A provisional measure can
facilitate the conduct of arbitral proceedings; preserve a right that is
subject to the dispute; maintain or restore the status quo; protect the
tribunal’s jurisdiction; preserve evidence; facilitate the enforcement of a
future award; etc.6 Nonetheless, provisional measures can infringe on
state sovereignty. Therefore, tribunal discretion should be exercised with
special common sense, care and restraint.7



    2.1. I.C.S.I.D. CONVENTION AND RULES

Both Articles 39 and 47 deal with the power to recommend provisional
measures.       Rule 39 of the I.C.S.I.D. Arbitration Rules reinstates the
tribunal’s power and discretion to recommend provisional measures.
Article 47 of the I.C.S.I.D. Convention reads as follows: “Except as the
parties otherwise agree, the Tribunal may, if it considers that the
circumstances so require, recommend [emphasis added] any provisional
measures which should be taken to preserve the respective rights of either
party.”
        The Tribunal may “recommend” a provisional measure. Does this
mean that the respondent state may accept the recommendation? On a
similar footing, does this mean that the respondent state may refuse to
comply with the recommendation?                 Is it a recommendation that the
parties can agree to turn into an order? Has the language been interpreted
to mean something else, and on what basis? Does the tribunal have the
explicit or implicit power to order a provisional measure pursuant to
another article in either the Convention or the rules? Why did the drafters
6
  See Munir Maniruzzaman, Protection in International Investment Arbitration: Challenge to
  State Sovereignty?, in INTERIM AND EMERGENCY RELIEF IN INTERNATIONAL ARBITRATION (Diora
  Ziyaeva et al. eds., 2015). See also BORN, supra note 3, at 2483-2502.
7
  BORN, supra note 3, at 2502.




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choose “recommendation” as opposed to “order”?8 The question and its
meaning has to be analyzed in the proper context; that is, within a legal
framework dominated by respect for state sovereignty and textual
interpretation? In its literal interpretation, the article does not offer to
the tribunal the power to “order” a provisional measure. Schreuer wrote
that “a conscious decision was made not to grant the tribunal the power
to order binding [provisional measures].”9 To reiterate this point, Redfern
and Hunter explained that:

          The use of the word “recommend” in this context stems from

          the concern of the drafters of the I.C.S.I.D. Convention to be

          seen as respectful of national sovereignty [emphasis added] by

          not granting powers to private tribunals to order a state to do or
                                                                  10
          not do something on a purely provisional basis.

However, the language and its original meaning is not always the entire
story.     Decisional law might offer a different interpretation of the
statutory language. Born highlights an important fact in this respect:
“[I]ts reference to ‘recommendations’ for provisional relief was
originally     motivated       by    concerns      about      interfering        with      state
prerogatives and sovereignty,               but I.C.S.I.D. arbitral awards have
consistently interpreted [Article 47] as also permitting the ordering of
binding provisional measures.”11
         It can be argued that investment-arbitration has tangible and
intangible features of safeguarding and guaranteeing procedural
integrity.     Therefore, in light of the I.C.S.I.D. Convention’s object and
purpose, a tribunal may possess implicit tools to safeguard the procedural
integrity of the arbitration.
8
   Black’s Dictionary deﬁnes a “recommendation” as: (1) “[a] speciﬁc piece of advice about
   what to do . . .” and (2) as ”[a] suggestion that someone should choose a particular thing
   or person that one thinks particularly good or meritorious. See BRYAN A. GARNER, BLACK’S
   LAW DICTIONARY (10th ed. 2014).
 9
   CHRISTOPH H. SCHREUER ET AL., THE I.C.S.I.D. CONVENTION: A COMMENTARY 758 (2001).
10
   ALAN REDFERN ET AL., LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION 333
   (4th ed. 2004).
11
   BORN, supra note 3 at 2429.




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 When deciding on a request for a provisional measure, the tribunal is
 bound by the language of the articles or rules.                    Regardless of the
 considerable guidance it offers in investment-arbitration, decisional law
 cannot trump express language of the provision. The Tribunal in Italba v.
 Uruguay articulated this by stating that:

         [T]he Parties produced and cited numerous awards and

         decisions dealing with matters that they consider relevant to

         these provisional measures. The Tribunal has considered these

         documents carefully and may take into account the reasoning

         and ﬁndings of these and other tribunals. However, in coming

         to a decision on the matter of provisional measures and

         temporary relief requested by Italba, the Tribunal must

         perform, and in fact has performed, an independent analysis of

         the I.C.S.I.D. Convention, the Arbitration Rules, and the

         particular facts of this case.12

 The exact scope of a tribunal’s authority to order provisional measures is in
 dispute. Most jurisdictions have rejected the historic prohibitions against
 provisional measures, provided that the authority is expressly and ﬁrmly
 given.13 Does I.C.S.I.D. expressly or ﬁrmly empower a tribunal operating
 under its auspices with the authority to order provisional measures? If not
 expressly given, is the power given ﬁrmly? A “ﬁrm power” can possibly be
 implied from either the convention as a whole or speciﬁc parts of it.
        It is submitted that legal authority empowering a tribunal to render
 an order may exist. However, it is not to be found in the language of Article
 47 or Rule 39. Rather, the justiﬁcation might exist implicitly in the text;
 that is, in the overriding purpose of protection to procedural integrity of
 the arbitration. In Maffezini v. Spain the tribunal decided that a provisional
 measure should be binding. The tribunal observed as follows:
12
   Italba Corporation v. Oriental Republic of Uruguay, I.C.S.I.D. Case No. ARB/16/9,
   Claimant’s Application for Provisional Measures and Temporary Relief ,¶107, (Feb.15,
   2017).
13
   See BORN, supra note 3, at 2432.




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          While there is a semantic difference between the word

          “recommend” as used in Rule 39 and the word “order” as used

          elsewhere in the Rules to describe the Tribunal’s ability to

          require a party to take a certain action, the difference is more

          apparent than real . . . The Tribunal does not believe the parties

          to the Convention meant to create a substantial difference in

          the effect of these two words. The Tribunal’s authority to rule

          on provisional measures is no less binding than that of a ﬁnal

          award. Accordingly, for the purposes of this Order, the Tribunal

          deems the word “recommend” to be of equivalent value as the

          word “order.”14

 Subsequently, more tribunals followed suit. The Tribunal in City Oriente v.
 Ecuador held that “[f]rom a substantive view, the difference between a
 recommendation and an order is mainly a question of terminology. [And
 even] where named recommendation, a decision on provisional measures
 is substantially binding.”15 The tribunal, furthermore, held that “[i]t is
 only if provisional measures are effective that they can achieve their
 purpose with respect to the outcome of the proceedings (citations
 omitted).”16 This is nowadays the generally held view. However, there is
 some disagreement among scholars,                   arbitrators,        and arbitration
 practitioners, especially when the provisional measure is interfering with
 a state’s sovereign prerogatives.
         This line of cases can be questioned on a number of grounds. Is the
 role of a tribunal to determine the effectiveness of the I.C.S.I.D. regime?
 Can decisional law be a feasible evolutionary tool in international
 adjudication? Should a tribunal determine semantics without engaging in
 a consideration of language differences?
14
   Emilio Augustìn Maffezini v. Kingdom of Spain I.C.S.I.D., Case No. ARV/97/7, Decision on
   Request for Provisional Measures, ¶5 (Oct. 28, 1999).
15
   City Oriente Ltd v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador
   (Petroecuador), I.C.S.I.D. case No. ARB/06/2, Decision on Provisional Measures, ¶52,
   (Nov. 19, 2007).
16
   Id.




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     2.2. UNCITRAL MODEL LAW AND ARBITRATION RULES

 Article 17 of the U.N.C.I.T.R.A.L. Model Law (hereinafter Model Law)
 grants a tribunal the power to order an interim measure, which can take
 the form of an award. In 2006 the language of the Model Law was revised
 to be more expansive.17          This language might empower a tribunal to,
 among other things, suspend criminal investigations or procedures. A
 tribunal operating under the Model Law could justify such an order by
 arguing that they are seeking to maintain or restore the status quo. The
 Model Law seems to require an agreement withdrawing such power that
 potentially interferes with state sovereignty, and not the other way
 around, as with I.C.S.I.D.18
         The U.N.C.I.T.R.A.L. Rules were amended in 2010. It was discussed
 whether interim measures should be applicable to procedural challenges
 and issues.19 “The focus of the 2010 U.N.C.I.T.R.A.L. Rules’ provision on
 [interim measures was] both to make the rules applicable to all types of
 arbitration regardless of the subject matter of the dispute and to provide
 increased guidance on the circumstances, conditions, and procedures for
 granting [interim measures].”20 Article 26 of the 1976 version referred to
 the “subject-matter”, which provides protection for substantive issues
 but not for procedural ones. The amendment to Article 26 indicates that
 the prior language was undesirable for pragmatic and functional reasons.
 This change made it possible to order an interim measure for procedural
 irregularities;     for example,         in order to prevent “prejudice and
 aggravation to the arbitral process” due to inequality of arms or
 procedural “mala ﬁdes”.
         The drafting parties explicitly chose “order” as opposed to
 “recommendation”. The choice of a text with such imperative character
 is reﬂective of the fact that interim measures in the context of
17
   Id.
18
   See BORN, supra note 3, at 2434.
19
   E.g. due to procedural fairness, procedural irregularity, lack of equality of arms, lack of
   good faith procedure, etc.
20
   Burnett et al., supra note 1, at 39.



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 U.N.C.I.T.R.A.L. arbitration are to be viewed as legally binding.                      This
 conception can easily be derived from the preparatory works and it is
 arguably closely connected with the notion of interim measures as a
 feature necessary to ensure the effectiveness of arbitral procedure,
 especially in the context of international commercial arbitration.21                      As
 expressed by the U.N.C.I.T.R.A.L. Commission in connection with the 2006
 update of the Model Law:            “[t]he provisions had been drafted in
 recognition not only that interim measures were increasingly being found
 in the practice of international commercial arbitration, but also that the
 effectiveness of arbitration as a method of settling commercial disputes
 depended on the possibility of enforcing such interim measures.”22
        Fortunately for U.N.C.I.T.R.A.L. arbitrations, the negotiating parties’
 awareness of the importance of a binding interim measure will mitigate
 future ambiguity where states will try to invoke state sovereignty to justify
 non-compliance. It is clear that the negotiating parties were well aware
 that “recommendation” did not mean “order.” In sharp contrast with the
 I.C.S.I.D. Convention, both the 1976 and 2010 Rules will enforce an interim
 measure as a ﬁnal award.23




        3. TREATY INTERPRETATION IN LIGHT OF THE VIENNA CONVENTION ON THE
     LAW OF TREATIES

 The Vienna Convention on the Law of Treaties (hereinafter V.C.L.T.) is an
 essential part of understanding public international law. In the context of
 I.C.S.I.D. arbitrations, the V.C.L.T. has proved useful for the interpretation
 of bilateral investment treaties. As the I.C.S.I.D. Convention carries the
 legal status of a treaty, an interpretation in light of the V.C.L.T. is
21
   See THOMAS H. WEBSTER, HANDBOOK OF UNCITRAL ARBITRATION 391 (2nd ed. 2015).
22
   UNCITRAL Rep. of the United Nations Commission on the International Trade Law on its
   39th Sess., June 19 - July 7, 2006, U.N. doc A/61/17. 15-16.
23
   See Maniruzzaman, supra note 6, at 17.



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 warranted in relation to the Convention itself.24 Therefore, the V.C.L.T.
 could be important in shaping the meaning and solve the alleged
 ambiguity in the I.C.S.I.D. Convention.                V.C.L.T. interpretation carries
 several advantages for legal uniformity; for example, foreseeability,
 clarity and predictability. As explained by one commentator:

           To put it simply, Article 31 of the Vienna Conventions on the

           Law of Treaties (V.C.L.T.) offers clear guidance for the

           interpretation of treaties, and its rigorous application would

           bring more consistency and predictability in international

           investment law. These two ideas follow on from each other,

           and they have become central in the extensive literature

           already dedicated to the interpretation of investment treaties

           by arbitral tribunals (citations omitted).25

 The V.C.L.T. was implemented after the I.C.S.I.D. Convention entered into
 force. As a corollary – and in accordance with Article 4 of the V.C.L.T. – it
 is not directly applicable to interpret the I.C.S.I.D. Convention.
 Nonetheless, many of the provisions of the V.C.L.T. are recognized as
 articulating principles of customary international law.                        This applies
 particularly      with     respect      to    the     provisions       regarding         treaty
 interpretation.26 For instance, the International Court of Justice (I.C.J.)
 has repeatedly expressed that Article 31 and 32 of the V.C.L.T. constitute
 part of customary international law.27
         Article 31 of the V.C.L.T. provides the general rule of treaty
 interpretation; the ﬁrst paragraph states that “[a] treaty shall be
 interpreted in good faith in accordance with the ordinary meaning to be
 given to the terms of the treaty in their context and in the light of its
24
   For     a   short   and      interesting   article   on    the   V.C.L.T.    as   reﬂective
   of      international       customary       law,      see      ROBERTO       CASTRO       DE
   FIGUEIREDO, Interpreting Investment Treaties, Kluwer Arbitration Blog (Oct.              21,
   2014), http://arbitrationblog.kluwerarbitration.com/2014/10/21/interpreting-
   investment-treaties.
25
   Hervé Ascensio, Article 31 of the Vienna Convention of the Law of Treaties and International
   Investment Law, 31. I.C.S.I.D. REV. 366, 366 (2016).
26
   Id. at 367-368.
27
   See ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 207 (3rd ed. 2013).



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 object and purpose.” The requirement to interpret treaty text in good
 faith derives from the principle of pacta sunt servanda, which attributes
 importance to the intention of the parties as expressed in the text of the
 treaty.28    Accordingly, the most reliable evidence to support what the
 parties intended is the express, ordinary meaning of the text in light of its
 context, i.e. object and purpose.29
         Article 32 of the V.C.L.T. establishes the secondary means of
 interpretation, mainly interpreting any ambiguity in light of preparatory
 works and other extrinsic sources of law. Article 31 and 32 is laid out
 systematically and in hierarchical order.              This clearly indicates that
 recourse to supplementary means of interpretation are uncalled for
 unless the proper good faith interpretation is clouded – or tainted – by
 uncertainty, or if a textual interpretation leads to an unacceptable result.
 Nonetheless, if the preparatory works are indicative of the intentions of
 the parties to the treaty, the good faith requirement expressed in Article
 31 may indirectly give them higher value than what Article 32 of the
 V.C.L.T. would otherwise suggest.30
         In public international law, protection for an investor and its
 investment is usually outlined in a Bilateral Investment Treaty
 (hereinafter B.I.T.). Disputes between investors and the host-state are
 most often settled by arbitration according to a dispute settlement
 provision containing recourse to I.C.S.I.D. arbitration in the B.I.T.
 Therefore, these agreements generate disputes subsumed under the
 realm of public international law. The protection as well as jurisprudence
 creates a regime of international investment law.                              Therefore,
 understanding         treaty     interpretation   is   crucial      when        analyzing
 investor-state and investment treaty arbitration. Naturally, reﬂecting on
 the leading public international authority is highly relevant – for
 substantive as well as procedural guidance.                  As investment treaty
28
   Id. at 208-209.
29
   Id. at 209.
30
   See AUST, supra note 27, at 218.




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 arbitration is still in the search for its turf upon which to stand,31
 analyzing best practices promulgated in the International court of Justice
 (hereinafter I.C.J.) might be necessary. That is not to say that a privately
 chosen tribunal has the same jurisdiction as a permanent court.                             Of
 particular importance in this context is the fact that: ﬁrst, I.C.J. has
 interpreted similar vague language as the one in Article 47 of the I.C.S.I.D.
 Convention to have binding effect. Second, the I.C.J. has in that capacity
 ordered states to both refrain from taking positive actions.32                           This
 approach seems to have been based solely on preserving the status quo,
 and thus the I.C.J. seems to have adopted a functional/dynamic approach
 to safeguard the procedural fairness in adjudicating issues of public
 international law.
        Choice of language in a treaty is seldom a stand-alone
 phenomenon. The way in which the I.C.J. has applied the V.L.C.T. in order
 to evaluate the binding force of provisional measures under the I.C.J.
 Statute proves this. Article 41 (1) of the I.C.J. Statute states that “[t]he
 Court shall have the power to indicate, if it considers that circumstances
 so require, any provisional measures which ought to be taken to preserve
 the respective rights of either party.” The used language has an
 inherently similar issue of vagueness and ambiguity as that of the
 I.C.S.I.D. Convention.
        In LaGrand,33 the I.C.J. assessed the binding force of a provisional
 measure. In this case the provisional measures ordered the United States
 to stay the execution of a German citizen. The I.C.J. referred to Article 31 of
 the V.C.L.T. as reﬂective of customary law and underlined that its
 interpretation was directed towards establishing the “ordinary meaning
 to be given to [the] terms in their context and in light of the treaty’s
 object and purpose.”34
31
   Probably more so than ever considering E.U.’s proposal of a permanent Investment Court
   System.
32
   See KAJ HOBéR, SELECTED WRITINGS ON INVESTMENT TREATY ARBITRATION 41-42 (2013).
33
   LaGrand case (Ger. v. U.S.), I.C.J. 2001/16, (Jun. 27, 2001).
34
   Id. at 501.




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 The U.S. denied that Article 41 had mandatory effect and underlined the
 choice of the words “indicate”, “ought”, and “suggested” in the English
 version. However, the French version of the text uses the verb “devoir”,
 which arguably is of more imperative character.35 Subsequent to reaching
 the understanding that the French and English versions are of equal
 dignity, the court proceeded to establish the “meaning which best
 reconciles the texts, having regard to the object and purpose of the
 treaty”.36 The court stated that the purpose of the Statute is to “enable
 the Court to fulﬁl the functions provided therein, and, in particular, the
 basic function of judicial settlement of international disputes by binding
 decisions”. The I.C.J. held that in order for it to effectively exercise its
 basic functions provided for in the treaty, interim measures must be
 attributed binding effect.37
         The Court further stated that “[g]iven the conclusions reached . . .
 it does not consider it necessary to resort to the preparatory work to
 determine the meaning of that article”.38                      However, “[it] would
 nevertheless point out that the preparatory work of the Statute does not
 preclude the conclusion that orders under Article 41 have binding
 force”.39    The Court stated that “[t]he preparatory work of Article 41
 shows that the preference given in the French text to “indiquer” over
 “ordonner” was motivated by the consideration that the Court did not
 have means to assure the execution of its decisions.”40 Thus, the I.C.J.
 ascribed the particular choice of the word “ordonner” not to the binding
 nature per se of interim measures, but to the fact that the Court does not
 have the power necessary to enforce a state’s compliance with an interim
 measure. The Court further stated that “[t]he fact that the Court does not
 itself have the means of execution of orders made pursuant to Article 41 is
35
   See John Quigley, LaGrand: A Challenge to the U.S. Judiciary, 27 YALE J. INT’L L. 435, 439
   (2002).
36
   LaGrand case (Ger. v. U.S.), I.C.J. 2001/16, (Jun. 27, 2001), at 502.
37
   See Id. at 503.
38
   Id.
39
   Id. at 503-504.
40
   Id. at 505.




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 not an argument against the binding nature of such orders.” In other
 words, the I.C.J. argued that there is nothing in the preparatory works that
 seems to contradict the notion that interim measures have binding force.
        The I.C.J. derived the binding force of its provisional order
 according to the treaty interpretation in light of the treaty’s text, object
 and purpose.41 The conclusion of the Court has found scholarly support in
 the international law community.             One commentator described the
 judgement as “consistent with long-held principles of international law”
 and further stated that “[t]he ICJ’s ruling in LaGrand . . . is sound as a
 matter of treaty interpretation [and] [i]f a court cannot, by issuing orders
 of an injunctive character, preserve its own ability to render a ﬁnal,
 binding judgment, then its ability to render a ﬁnal, binding judgment is
 illusory.”42     This approach affirms a prevalent and concurrently
 pragmatic view exercised by the I.C.J. vis-à-vis the “object and purpose”
 of the I.C.J. Statute. The question may be posed, however, whether this
 approach is properly anchored in a good faith treaty interpretation; that
 is, inter alia, with sufficient consideration of what the negotiating parties
 had in mind (objectively) when the treaty was drafted. In this respect, the
 I.C.J.’s interpretation of the object and purpose of the Statute has received
 criticism; for example, due to a lack of nuance.43 For instance, Hugh
 Thirlway stated:

         [W]hen assessing the object and purpose of a treaty, it is in

         principle necessary to place oneself at the date of the

         conclusion of the treaty. In the case of the Statute of the ICJ,

         this would prima facie be 1946; but that statute was in effect no

         more than a re-enactment . . . . of the PCIJ Statute in 1920 . . . .

         The idea of a standing international tribunal has sprung from

         arbitral practice, and . . . . it was not the concept of a body to
41
   See Hironobu Sakai, New Developments of the Orders on Provisional Measures by the
   International Court of Justice, 52 JAPANESE Y.B. INT’L L. 231, 237 (2009).
42
   Quigley, supra note 35, at 439.
43
   See Sakai, supra note 41, at 237.




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          which recourse could be had in order to compel other States to

          comply with their obligations (citations omitted).44

 Thus, Thirlway accentuates that international tribunals as judicial bodies
 exercising compelling force towards states is a result of an arbitral practice
 not yet developed in 1920. As to the choice of language in Article 41 of the
 I.C.J. Statute, he further stated that “the inconsistencies and uncertainties
 reﬂect the uncertain extent to which a State could be told what it ought to
 do to preserve status quo.”45
         Thirlway’s notes on LaGrand shed light upon what may appear as
 an obvious notion, namely that the choice of particular wording of a
 treaty text is not made arbitrarily. It is arguably more conceivable than
 not that when a treaty text does not explicitly express that a certain
 provision has legally binding effect, there are underlying reasons for it.
 This conception is substantiated by how provisions on interim measures
 have been formulated in other international treaties, such as the United
 Nations Convention on the Law of the Sea (hereinafter U.N.C.L.O.S.). For
 example, Article 290 (6) of the U.N.C.L.O.S. states that “[t]he parties to
 the convention shall comply promptly with any provisional measures
 prescribed in this article.” A textual interpretation aimed at establishing
 the ordinary meaning of this particular choice of wording hardly leaves
 any room for doubt as to the binding force of provisional measures in the
 context of international disputes under U.N.C.L.O.S.46
         When giving proper consideration to good faith, it may be
 questionable whether focusing too much on “object and purpose”
 holistically is the right approach in determining what explicitly chosen
 words mean. The holistic approach, furthermore, seems to be derived
 from “the spirit of the treaty.” How do we know what that is, and does it
 change? This evolutionary approach, albeit effective, might not sit well
 with all states. This approach may be said to carry an inherent potential to
44
   Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960-1989: Part
   Twelve, 72 BRIT. Y.B. INT’L L. 37, 115-116 (2002).
45
   Id. at 116.
46
   Id. at 121.



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 impede clarity and foreseeability.                     In relation to LaGrand, it is,
 furthermore, disputable whether or not the I.C.J.’s interpretation of
 Article 41 complies with the good faith requirement pursuant to treaty
 interpretation.          That assumption is underpinned by the fact that the
 signatory countries arguably did not enter into the treaty with the
 intention of giving the I.C.J. the power to issue legally binding provisional
 measures.
            In LaGrand, the I.C.J. held that in order for the Court to effectively
 exercise its basic functions provided under the treaty, the power to render
 binding interim measure must be upheld.47 By analogy, this argument can
 be applied by tribunals operating under the auspices of I.C.S.I.D.. However,
 there is a case to be made for the rejection of this approach, both in I.C.J.
 and I.C.S.I.D. proceedings.
            When conducting textual interpretation, the “purpose” and
 “object” of a legal document is to be understood in the context in which
 the reader has to give the words meaning.                           On the one hand, the
 “presumption against ineffectiveness” may convince the interpreter that
 provisional measures in the context of investment-arbitration are in fact
 to be construed as orders. On the other hand, the interpreter may ascribe
 a very different meaning to the convention; that is, that the text means
 what it says, and says what it means, objectively.
            Furthermore, Article 32 of the V.C.L.T. provides for reliance on
 supplementary means of interpretation in order to “conﬁrm the meaning
 resulting from the application of article 31” or in other case “to determine
 the meaning when the interpretation according to Article 31 “. . . leaves
 the meaning ambiguous or obscure; or . . . leads to a result which is
 manifestly absurd or unreasonable.” Schreuer wrote that “a conscious
 decision was made not to grant the tribunal the power to order binding
 [provisional measures]”.
            We wish to follow-up with three questions: (1) did the drafters
 choose the terminology out of “courtesy,” thereby leaving the power to
47
     LaGrand case (Ger. v. U.S.), I.C.J. 2001/16, (Jun. 27, 2001), at 503.


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demand compliance optional? (2) Did the drafters explicitly exclude an
ordering power due to the possible interference with state sovereignty?
Or (3) did the drafters intend to advise against interference but not limit
its availability in case of extreme procedural irregularity or bad faith? The
second is probably correct.
      This ambiguity may “beneﬁt” from tribunals shedding light upon
the issue. Unfortunately for clarity and foreseeability purposes, this line
of decisions has yielded mixed results. One stream of I.C.S.I.D. cases seem
to have stretched the meaning of a recommendation based on
jurisprudential and doctrinal evolution. This approach culminates in the
theory that provisional measures in the context of I.C.S.I.D. arbitration
have emerged to become “binding”.
      Some limited judicial discretion is needed in the I.C.S.I.D. regime.
Born wrote as follows vis-à-vis Tribunal discretion:

        The granting of provisional measures is not a “discretionary”

        or arbitrary exercise, but must instead conform to principled

        standards and the evidentiary record. Although the standards

        applicable to the granting of provisional measures continue to

        develop, it is wrong to treat the subject as a matter of discretion

        or arbitration ex aequo et bono, and not of legal right. The

        better   view   is   that   statements   about    the    arbitrators’

        “discretion” refer to the [T]ribunal’s need to make pragmatic

        assessments of the risk, the extent of possible harm, the

        balance of hardships and the merits of the parties’ underlying

        positions in reaching a decision whether or not to issue

        provisional measures.       These assessments are complex and

        require judgment and care, but they are not matters of pure

        discretion and must instead proceed in accordance with a

        principled legal framework and set of standards.

However, this seem to have slowly moved towards an acceptance for
“judicial activism”.     The latter is an unwelcomed feature in I.C.S.I.D.



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arbitration. In response some may argue that investment arbitration is an
institution that is “evolving” and with it widening the tribunal’s
jurisdiction. This prudential theory welcomes the tribunal to consider
various “procedural tools” needed due to the context in which they
operate.
       It is hoped that future Tribunals will err on the side of caution and
take a more formalistic approach in interpreting treaties – V.C.L.T.
textualism. The role of the Tribunal is not to speculate on what would be
more or less effective (consequential thinking), but rather it is bound to
give effect to the words of the text. The text empowers the Tribunal, but it
also constrains it. When scholars write, they opine. When arbitrators
interpret, they decide. This distinction is important. Academia has an
intrinsic value to legal development (de lege ferenda), but scholarly
thinking is not always compatible with legal interpretation (de lege lata).
       In determining the preferred means to understand and interpret
the I.C.S.I.D. Convention, we respectfully submit that an analogy can be
made to the U.S. Constitutional debate, but with the opposite outcome.
That is, do you think that the I.C.S.I.D. Convention is a living document,
evolving jurisprudentially and doctrinally, making the convention a sort
of “emergency convention”? If you think that the tribunal can interpret
the I.C.S.I.D. Convention in the context of functionalism, then it is a living
document.    This pragmatism makes, among other things, a binding
provisional order valid and legitimate. It makes the I.C.S.I.D. regime more
“effective.” However, as outlined throughout, the formalistic method of
interpretation has its justiﬁcations, too.      Formalism in this context
facilitates non-infringement on the sovereignity without textual support,
it provides for clarity and foreseeability, and it provides for a framework
of interpretation that is based on the actual agreement of the negotiating
parties. We will leave you with one concern; that is, it is not completely
unlikely that states will be pulling out of the I.C.S.I.D. regime or refrain
from complying with awards. If they do, it may be on the basis of the
tribunal having interfered with their sovereignty without textual support.

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         4. CASE ANALYSIS – I.C.S.I.D.

 A case study merits attention because although historically, arbitrators
 were hesitant to grant provisional relief, even when authorized by
 national law in recent years tribunals have shown greater willingness to
 do so.48 The justiﬁcation for the evolution is of interest. For instance,
 does the tribunal assess the damage a state suffers when a tribunal
 infringes on its sovereignty? What if the state refuses compliance? If a
 state refuse to comply with the provisional measure then the tribunal is
 really in between a rock and a hard place. Therefore, tribunals are hesitant
 to order provisional measures that risk interfering with state sovereignty.
 However, hesitant does not equal unwilling, as this part will demonstrate.
         To illustrate this issue, this part will analyze the reasoning among
 tribunals in deciding whether to render a provisional measure ordering
 the suspension of a domestic criminal investigation or proceeding. In
 Tokios Tokelés v. Ukraine,49 an investment-arbitration tribunal decided
 that a provisional measure ordering a host state to enjoin a criminal
 proceeding can be ordered.50 This was the ﬁrst decision of the kind and it
 was effectively established that criminal proceedings “may properly be
 the subject of [provisional measures].”51 However, the order was not
 granted due to lack of urgency and necessity. This paper will not outline
 every I.C.S.I.D. arbitration where the tribunal has been requested to order
 the suspension of a criminal investigation or order.52
48
   BORN, supra note 3, at 2460.
49
   Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 1, (Jul. 1, 2003).
50
   Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Order No. 3, ¶11 (Jan. 18, 2005).
51
   Burnett et al. , supra note 1, at 42.
52
   See e.g. Border Timbers Ltd. V. Republic of Zimbabwe, ICSID case No. ARB/10/25, (Jun.
   13, 2012); Caratube International Oil Company LLP v. Republic of Kazakhstan, ICSID Case
   No. ARB/13/13, (Dec. 4, 2014); City Oriente Ltd v. Republic of Ecuador and Empresa
   Estatal Petróleos del Ecuador (Petroecuador), ICSID case No. ARB/06/21, (Nov.19, 2017);
   Italba v. Oriental Republic of Uruguay ,ICSID Case No. ARB/16/9 , (Feb. 15, 2017);
   Nova Group Investments, B.V. v. Romania, ICSID Case No. ARB/16/19, (Mar. 29, 2017);
   Teinver S.A., Transportes de Cercanías S.A. v. The Argentine Republic, ICSID Case No.
   ARB/09/1, (Apr. 8, 2016). For UNCITRAL Arbitration, see Hesham T.M. Al Warraq v.
   Republic of, Indonesia, U.N.C.I.T.R.A.L., Award on Respondent’s Preliminary Objections
   to Jurisdiction and Admissibility of the Claims (June 21, 2012); Chevron Corporation v.
   The Republic of Ecuador, U.N.C.I.T.R.A.L., P.C.A. Case No. 2009-23, Claimant’s Request
   for Interim Measures (Apr. 1, 2010); China Heilongjiang International Economic &



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 The pressing question is whether doctrinal and jurisprudential evolution
 in investment-arbitration has made the original language in Article 47 of
 the I.C.S.I.D. Convention null and void.                 Can procedural safeguard
 mechanisms trump express language? For instance, do the concepts of
 “equality of arms” and “procedural good faith” implicitly empower an
 I.C.S.I.D. tribunal to make a “recommendation” binding?
         Notwithstanding the doctrinal and jurisprudential developments
 in investment-arbitration, right or wrong, the fact remains that tribunals
 most often apply deference when deciding whether to render provisional
 measures.53 The deference is most likely a mixture of respecting state
 sovereignty and pure adherence to the V.C.L.T. and textualism.



    4.1. QUIBORAX V. BOLIVIA

 The claimant claimed compensation for the revocation of eleven mining
 concessions.54 The claimant brought a claim against Bolivia pursuant to
 the I.C.S.I.D. Arbitration Rules. Some years into the arbitration, Bolivia
 initiated criminal proceedings on the allegations that the main
 shareholders of Quiborax had forged documents in order to become
 “protected investors” under the Bolivia-Chile B.I.T. Bolivia’s Ministry for
 Foreign Affairs ordered an audit. The Bolivian authorities continued to
 review corporate documentation and “noted irregularities,” and as a
 result brought proceedings regarding “forged documents”.55
   Technical Cooperative Corp., Beijing Shougang Mining Investment Company Ltd., and
   Qinhuangdaoshi Qinlong International Industrial Co. Ltd. v. Mongolia, UNCITRAL,
   PCA Case No. 2010-20, (Jun. 30, 2017); Sergei Viktorovich Pugachev v. The Russian
   Federation, U.N.C.I.T.R.A.L., Interim Award (July 7, 2017).
53
   See Thomas W. Wälde, “Equality of Arms” in Investment Arbitration: Procedural Challenges,
   in ARBITRATION UNDER INTERNATIONAL INVESTMENT AGREEMENTS: A GUIDE TO THE KEY ISSUES
   161 (Katia Yannaca-Small ed., 2010).
54
   Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State
   of Bolivia, ICSID Case No. ARB/06/2, Award (Sept. 16, 2015). The Tribunal consisted of
   Marc Lalonde (Claimant appointee); Brigitte Stern (Respondent appointee); and Gabrielle
   Kaufmann-Kohler (Chair).
55
   Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of
   Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, ¶22-45 (Feb. 26,
   2010). Bolivia’s support for the allegations and the persons accused are further listed in
   these paragraphs.



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 The claimants alleged that the criminal proceedings were utilized as a
 defense strategy and litigation tactic in order to limit the claimant’s
 access to important documents.56 Claimants requested the Tribunal to
 order Bolivia or Bolivia’s agencies or entities to:
           (1) . . . . refrain from engaging in any conduct that aggravates
           the dispute between the parties and/or alters the status quo,
           including any conduct, resolution or decision related to
           criminal proceedings in Bolivia against persons directly or
           indirectly related to the present arbitration;
           (2) .   .   .   .   discontinue immediately and/or to cause to be
           discontinued all proceedings in Bolivia, including criminal
           proceedings and any course of action relating in any way to this
           arbitration and which jeopardize the procedural integrity of
           these proceedings;

           (3) .   .   .   .   discontinue immediately and/or to cause to be

           discontinued all proceedings in Bolivia, including criminal

           proceedings and any course of action relating in any way to this

           arbitration and which threaten the exclusivity of the I.C.S.I.D.
                                57
           arbitration. . . .

 Pursuant to Article 47 of the I.C.S.I.D. Convention and Rule 39 of the
 I.C.S.I.D. Arbitration Rules, it was held that the tribunal generally has wide
 discretion to render provisional measures.58 It then moved on to address
 the requirements to be met in order for the tribunal to suspend the
 criminal proceedings.               The claimant satisﬁed all three requirements
 established;      (1) an existence of rights requiring preservation;                          (2)
 existence of urgent protection; and (3) necessity of the provisional
 measure.59
56
   See Malcolm Langford et al., Backlash and State Strategies in International Investment Law,
   in THE CHANGING PRACTICES OF INTERNATIONAL LAW 70, 90 (Tanja Aalberts & Thomas
   Gammeltoft-Hansen eds., 2018).
57
   Quiborax S.A. v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures,
   ¶1(Feb. 26, 2010).
58
   Id. para. 105.
59
   Id. para. 113-165.




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 The “existence of rights requiring preservation” was determined by
 analyzing (a) rights that may be protected by provisional measures; (b)
 whether there is a right to exclusivity of the I.C.S.I.D. proceedings
 pursuant to Article 26 of the I.C.S.I.D. Convention; (c) whether there is a
 right to the preservation of the status quo and the non-aggravation of the
 dispute; and (d) whether there is a right to the procedural integrity of the
 arbitration proceedings.60
        The tribunal held that rights

          to be preserved by provisional measures are not limited to

          those which form the subject matter of the dispute, but may

          extend to procedural rights, including the general right to the

          preservation of the status quo and the non-aggravation of the

          dispute . . . . [but bears a relation to the dispute].61

 It held that the criminal proceedings are “related to this arbitration due to
 conduct alleged and harm allegedly caused related closely to the
 Claimant’s standing as investors in the I.C.S.I.D. proceeding.”62 The
 tribunal held that it has “every respect” for Bolivia’s sovereign right to
 prosecute crimes within its territory, but that the evidence suggests that
 the proceedings were initiated because of the arbitration. It also noted
 that the actions were taken after the inter-ministerial committee
 recommendation that Bolivia should try to ﬁnd ﬂaws in the mining
 concessions as a “defense strategy” in relation to the I.C.S.I.D.
 arbitration.63
        The tribunal recognized that Bolivia has the sovereign power to
 investigate whether there is any criminal conduct and also to prosecute
 criminal conduct accordingly; however, such powers must be “exercised
 in good faith and respecting claimants’ rights, including their prima facie
60
   Id. para. 116-148.
61
   Id. para. 117-18.
62
   Id. para. 120.
63
   Quiborax S.A. v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures,
   ¶121-22 (Feb. 26, 2010).




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 right to pursue this arbitration.”64 It was clear to the tribunal “that there
 [was] a direct relationship between the criminal proceedings and [the
 arbitration] that may merit the preservation of Claimants’ rights in the
 [proceeding].”65
          To solve the “preservation of exclusivity”, the tribunal referred to
 Article 26 of the I.C.S.I.D. Convention:          “[c]onsent of the parties to
 arbitration under this Convention shall, unless otherwise stated, be
 deemed consent to such arbitration to the exclusion of any other
 remedy.” The tribunal held that the right to exclusivity was “susceptible
 of protection by way of provisional measures” and it, furthermore, held
 that the criminal proceedings did not threaten the exclusivity as it does
 not extend to criminal proceedings (i.e.             disputes not dealing with
 investments).66
          In relation to the “preservation of the status quo and the
 non-aggravation of the dispute”, the tribunal noted that “the criminal
 proceedings do not deal with the same subject matter as [this arbitration,
 but are] sufficiently related to merit the protection of Claimants’ rights to
 the non-aggravation of the dispute and the preservation of the status quo .
 . . .”67 However, for various reasons the tribunal did not consider the
 criminal proceedings to place “intolerable pressure” on the claimants to
 drop their arbitration claim, and in a similar vein the tribunal did not
 think that turning them into defendants in Bolivia changed the status
 quo.68    “If there are legitimate grounds for the criminal proceedings,
 Claimants must bear the burden of their conduct in Bolivia.”69
          The tribunal, however, found that it had the power to grant
 provisional measures to “preserve the procedural integrity” of the
 proceedings, and it opined that the criminal proceedings “may indeed be
64
   Id. para. 123.
65
   Id. para. 124.
66
   Id. para. 127-29.
67
   Id. para. 132.
68
   Id. para. 138.
69
   Quiborax S.A. v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures,
   ¶138 (Feb. 26, 2010).



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 impairing Claimants’ right to present their case in particular with respect
 to their access to documentary evidence and witnesses.”70                       For these
 reasons, the tribunal found that there was a threat to the procedural
 integrity of the arbitration.71
        Second, the Tribunal looked to the “urgency” requirement, which it
 opined is satisﬁed when “a question cannot await the outcome of the award
 on the merits” (this is in line with the practice of the I.C.J.).72 The parties
 agreed that urgency appears “when there is a need to safeguard rights that
 “are in imminent danger of irreparable harm before a decision is made on
 the merits.”73
        Third, having concluded that (1) the criminal procedure threatens
 the procedural integrity of the arbitration, and (2) a provisional measure
 is urgent, the tribunal turned to the third requirement; “necessity.” The
 tribunal opined that “an irreparable harm is a harm that cannot be repaired
 by an award of damages.”74 The tribunal agreed with the Claimants and
 held that:

          Regardless of whether the criminal proceedings have a

          legitimate basis or not (an issue which the Tribunal is not in a

          position to determine), the direct relationship between the

          criminal   proceedings     and    this   I.C.S.I.D.   arbitration      is

          preventing Claimants from accessing witnesses that could be

          essential to their case . . . . Under these circumstances, the

          Tribunal considers that Claimants’ access to witnesses may

          improve if the criminal proceedings are stayed until this

          arbitration is ﬁnalized or this decision is reconsidered.75

 The tribunal seems to have accepted the alleged view that the criminal
 proceedings were utilized as a defense strategy or litigation tactic.
70
   Id. ¶141-142.
71
   Id. ¶148.
72
   Id. ¶149.
73
   Id.
74
   Id. ¶154-57.
75
   Quiborax S.A. v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on
   Provisional Measures, ¶163 (Feb. 26, 2010).



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 Therefore, pending the outcome in the arbitration, it ordered the
 suspension of the proceedings against the claimants and their
 witnesses.76 The tribunal held as follows:

          The Tribunal has been convinced that there is a very close link

          between the initiation of this arbitration and the launching of

          the criminal cases in Bolivia. It has become clear to the Tribunal

          that one of the Claimants is being subjected to criminal

          proceedings precisely because he presented himself as an

          investor with a claim against Bolivia under the I.C.S.I.D./B.I.T.

          mechanism. Likewise, the Tribunal has been convinced that the

          other persons named in the criminal proceedings are being

          prosecuted because of their connection with this arbitration (be

          it as Claimants business partners or counsel, or as authors of a

          report ordered by a state agency). Although Bolivia may have

          reasons to suspect that the persons being prosecuted could

          have engaged in criminal conduct, the facts presented to the

          Tribunal suggest that the underlying motivation to initiate the

          criminal proceedings was their connection to this arbitration,

          which has been expressly deemed to constitute the harm

          caused to Bolivia that is required as one of the constituent

          elements of the crimes prosecuted.77

 The tribunal was “convinced” that a sovereign state engaged in highly
 criminal conduct and abuse of its sovereign powers. Accordingly, it was
 determined that suspending criminal proceedings – and ordering the
 state from initiating new actions – that would “jeopardize the procedural
 integrity of this arbitration” was an appropriate measure until the
 arbitration was completed.78 Whilst the reasoning is quite controversial
 and infringing on state sovereignty, the tribunal did justify their
76
   See Langford et al., supra note 56, Quiborax S.A. v. Bolivia, ICSID Case No. ARB/06/2,
   Decision on Provisional Measures, . 1-2 (Feb. 26, 2010) .
77
   Quiborax S.A. v. Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures,
   ¶164 (Feb. 26, 2010) .
78
   Id. 1-2.



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 discretion by common sense and did engage in an extensive and thorough
 legal analysis. However, the fundamental question remains; that is, does
 an I.C.S.I.D. tribunal have the jurisdiction to engage in this kind of
 exercise? Although the reasoning was sound, was it really supported by
 the legal framework? Another concern is whether states will allow this
 extensive interference from a tribunal appointed to litigate investment
 claims.



     4.2. HYDRO V. ALBANIA

 The claimant initiated I.C.S.I.D. arbitration against Albania for alleged
 breaches of honoring commitments for their electricity generation
 enterprises in the host-state.79 Subsequently, Albania sought to extradite
 two of the claimants from the U.K. on the alleged basis of money
 laundering and fraud. The claimants, in turn, sought an interim measure
 requesting Albania to desist its action. The tribunal recommended that
 Albania (a) suspend the criminal proceedings until the issuance of a ﬁnal
 award and (b) take the necessary actions to suspend the extradition
 proceedings.80      The “recommendation” was given under the heading
 “Tribunal’s Order.”         Despite most provisional measures rendered as
 “orders”, it remains quite convoluted in light of the language in Article 47
 and Rule 39.
         Pursuant     to     the   applicable   legal    framework          the     tribunal
 determined ﬁrst whether there is a sufficient basis for the Tribunal to
 decide the questions subject of the request for a provisional measure.81 It
 went on to assess the “appropriate test” to be applied (i.e.                              the
 requirements for a provisional measure); that is, whether the application
 is (1) necessary to protect the applicant’s rights; (2) urgent; and (3)
79
   Hydro S.r.l. and others v. The Republic of Albania, ICSID Case No. ARB/15/28, Order on
   Provisional Measures (Mar. 3, 2016).
80
   Hydro S.r.l. and others v. The Republic of Albania, ICSID Case No. ARB/15/28, Order on
   Provisional Measures, ¶5.1 (Mar. 3, 2016).
81
   Id. ¶3.9.




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 proportionate.82 The tribunal has to establish the appropriate test when
 interfering with the exercise of a state’s right to investigate and prosecute
 crimes.83 The tribunal was satisﬁed that a real question arising from the
 respondent’s conduct was the extent of interference with the “procedural
 integrity” of the arbitration proceedings. However, not all situations of
 incarceration may disrupt an arbitration. Therefore, not every request of
 this kind makes tribunal intervention proper.               Despite this, when the
 requirements are met the tribunal “sees no difficulty in recommending an
 order.”84
         As a result of the particular circumstances, the tribunal took the
 view that it had the jurisdiction to – and was fully capable of – taking any
 measure to preserve status quo.85 On the other hand, the tribunal was not
 persuaded by the argument that a provisional order be made in order to
 protect the exclusivity of the arbitration.86 Recall the Quiborax discussion
 (see above).
         First, in relation to the necessity requirement, the tribunal held
 that the claimants’ ability to participate in this arbitration was extremely
 important, and thus the criminal proceedings could potentially cause
 irreparable harm to the integrity of the arbitration and hinder their ability
 to effectively present their case.         Second, in relation to the urgency
 requirement, the tribunal considered that there was an imminent risk to
 the claimants’ ability to effectively participate in the arbitration and that
 the measures sought were of an urgent nature.87 Third, in relation to the
 proportionality requirement, the tribunal found the provisional measure
 warranted and held that “[t]he extradition and criminal proceedings
 concern or relate to the factual circumstances at issue in this
 arbitration.”88 The tribunal justiﬁed its decision as follows:
82
   Id. ¶3.11.
83
   Id. ¶3.14.
84
   Id. ¶3.18-20.
85
   Id. ¶3.21-23.
86
   Hydro S.r.l. and others v. The Republic of Albania, ICSID Case No. ARB/15/28, Order on
   Provisional Measures, ¶3.21-23 (Mar. 3, 2016).
87
   Id. ¶3.29-30.
88
   Id. ¶3.41.


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          The effect of the provisional measures proposed would affect

          the Respondent’s ability to proceed with the criminal

          prosecution in the immediate future. However a stay would not

          put an end to the criminal proceedings. They would be delayed

          but not terminated.        The Respondent also adverts to the

          possibility of the Claimants dissipating assets if the criminal

          proceedings are stayed.         Given that the investments are

          physically located in Albania, it is difficult to accept that this

          would be a major risk. The balance of proportionality comes

          down in favour of protecting the Claimants’ rights.

 In line with Quiborax, the tribunal seems to have assigned to itself the de
 facto discretion to stay domestic criminal proceedings.



     4.3. CHURCHILL MINING AND PLANER MINING V. INDONESIA

 The claimant initiated I.C.S.I.D. arbitration as a result of Indonesia
 terminating their mining licenses.89 The respondent initiated criminal
 proceedings on the basis that the licenses had been procured through
 forged documents. This was targeted at the Ridlamata Group, with which
 the claimant had a partnership and through which they gained their
 licenses.    Furthermore, the Regent of East Kutai had expressed an
 intention to bring criminal proceedings against witnesses.90                            As a
 corollary, Indonesia raided the offices of the investors and conﬁscated
 numerous documents and computer hard drives.91
         The claimant argued that the criminal proceedings were brought to
 cause surprise and disruption, namely that it was a defense strategy and
 litigation tactic directly connected with the investment arbitration.92 In
89
   Churchill Mining Plc and Planet Mining Pty Ltd v. The Republic of Indonesia, ICSID Case
   No. ARB/12/14 and ARB/12/40, Award (Dec. 6, 2016).
90
   Churchill Mining Plc and Planet Mining Pty Ltd v. The Republic of Indonesia, ICSID Case
   No. ARB/12/14 and ARB/12/40, Procedural Order No.9 (Jul. 8, 2014).
91
   Langford et al., supra note 56, at 92.
92
   Jarrod Hepburn, Arbitrators again decline to order Indonesia to desist with
   criminal investigation into alleged forgery of mining license in Churchill &
   Planet Mining case, INVESTMENT ARBITRATION REPORTER, (Dec.                 30, 2014),


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 other words, the claimant argued that Indonesia as a sovereign misused
 and abused its powers in contravention of the “equality of arms”
 principle.93
        The claimant ﬁled an application for a provisional measure,
 requesting Indonesia to refrain from threatening, commencing criminal
 investigations and proceedings and to suspend criminal proceedings
 (including investigations) against the claimant or any person associated
 with such.94     However, the Tribunal pursuant to the legal framework
 (Article 47 and Rule 39) found no urgency nor necessity.
 In relation to the rights requiring preservation, the tribunal looked at: (1)
 the exclusivity of the arbitration pursuant to Article 26 of the I.C.S.I.D.
 Convention; (2) the preservation of status quo and non-aggravation of
 the dispute; and (3) the right to procedural integrity of the arbitration.95
 The tribunal held that the claimant seeking provisional measures to
 ensure and secure their right in the present proceeding by not having
 their witnesses subject to criminal investigations is indeed acting within
 his rights pursuant to the legal framework in Article 47 and Rule 39.96
        First, in relation to the exclusivity pursuant to Article 26, the
 tribunal determined that the threat of criminal investigations and
 proceedings against the claimants, their witnesses, and potential
 witnesses do not per se threaten the exclusivity of the I.C.S.I.D.
 proceedings; furthermore, the criminal charges against a non-party
 (Ridlamanta Group) did not threaten the exclusivity and did not
 undermine the Tribunal’s jurisdiction to resolve the claims.97
        Second, in relation to the preservation of status quo and the
 non-aggravation, the tribunal opined that it is “undisputed that the right
   https://www.iareporter.com/articles/arbitrators-again-decline-to-order-indonesia-
   to-desist-with-criminal-investigation-into-alleged-forgery-of-mining-license-in-
   churchill-planet-mining-case/.
93
   Langford et al., supra note 56, at 92.
94
   Churchill Mining PLC v. Indonesia, ICSID Case No. ARB/12/14 and ARB/12/40, Procedural
   Order No.9, at 1(Jul. 8, 2014).
95
   Id. at 72.
96
   Id. at 78-79.
97
   Id. at 87.




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 to the preservation of the status quo and the non-aggravation of the
 dispute may ﬁnd protection by way of provisional measures .                           .   .   .,
 procedural rights may be preserved by provisional measures like
 substantive rights (citations omitted).”98 In this case, the tribunal was of
 the opinion that the initiation of criminal charges did not alter the status
 quo nor did it aggravate the dispute.99
         Third, in relation to the right to the procedural integrity of the
 arbitration proceedings, the parties did not disagree that the right to the
 integrity of the arbitration proceedings (including fundamental “due
 process” right to present their case) may be protected by provisional
 measures.100 Both relied on Quiborax, but reaching opposite conclusions.
 The tribunal distinguished Quiborax since “[that arbitration] dealt with
 actual investigations against a co-claimant and persons involved in the
 setting up of the investment.”101
         For the combined reasons, the tribunal denied the claimant’s
 application for a provisional measure.102 Two practitioners opined the
 following:

          This case follows the line of precedent adopting a high

          threshold for imposing [provisional measures] on States to

          prohibit    the    institution   or   continuation       of    criminal

          proceedings.      Here, because the threat was exactly that –

          merely a threat –, the tribunal found that the requirements for

          [a provisional measure] had not been satisﬁed.103

 Churchill Mining does, indeed, seem to suggest that a mere threat should
 not be enough for a tribunal to render a provisional measure.                             This
 reasoning is respectful of state sovereignty and aware that a lack of
 deference might be damaging to the tribunal and the I.C.S.I.D. system.
98
    Id. at 90.
99
    Id. at 92
100
    Churchill Mining PLC v. Indonesia, ICSID Case No. ARB/12/14 and ARB/12/40, Procedural
    Order No.9, at 98 (Jul. 8, 2014).
101
    Id. at 99.
102
    Id. at 106.
103
    Burnett et al. , supra note 1, at 49.



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  The threshold seems high and general tribunal discretion sound, but the
  contra-argument among commentators is not in concurrence only
  (arguing for a more stringent threshold), but in dissent too.                            The
  dissenting views wish to eliminate the binding power of a provisional
  order, especially those interfering with the sovereign powers of the state.



      4.4. LAO HOLDINGS V. THE LAO PEOPLE’S DEMOCRATIC REPUBLIC

  The claimant initiated I.C.S.I.D. arbitration for alleged expropriation of
  their investment.104 Pre-dating the initiation of the arbitration, there
  were on-going court proceedings against the claimant for alleged back
  taxes and money laundering. The tribunal granted an interim measure
  and held that the respondent must not “[take] any steps that would alter
  the status quo ante or aggravate the dispute.”105 The respondent
  consented to stay the criminal proceedings as part of a “conciliatory
  effort” and to let the arbitration proceed “in an environment conducive to
  timely action by the Tribunal.”106 In the midst of the proceedings, the
  respondent sought to modify the decision on provisional measures, but
  the tribunal held that such action would threaten the integrity of the
  arbitral process and that the respondent had not established a change of
  circumstances as to justify such modiﬁcation.107
          The fact that the respondent “consented” to stay their proceedings
  seems to suggest that they saw the interim measure merely as a
  recommendation as opposed to an order. The fact that they respected the
  investment arbitration procedure seems to suggest that they were in full
  adherence to their duty to proceed in “good faith” as agreed between the
  parties. The fact that they later asked to modify the provisional measure
  seems to suggest that they would not, without the tribunal’s acceptance,
104
    See generally, Lao holdings N.V. v. Lao People’s Democratic Republic, ICISD Case No.
    ARB(AF)/12/6, Ruling on Motion to Amend the Provisional Measures Order (May 30, 2014).
105
    Id. § 1.
106
    Id. § 4(i).
107
    See Id. § 4(iii).




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  endanger the procedure or improperly misuse their prosecutorial powers
  to unbalance the “equality of arms” as agreed to in advance, not as
  inherent in the investment arbitration per se.



        4.5. CONCLUDING REMARKS – DOCTRINAL LEGACY?

  The natural question is rather simple: what effects will the doctrinal
  developments in these (and related) cases have on the nature of
  provisional measures in I.C.S.I.D. arbitration? The answer is, however,
  cumbersome to distill due to two primary factors. First, there is generally
  no rule of binding precedents in international arbitration.108 And second,
  the issue is intimately linked with interference with state sovereignty.
             On the one hand, it can be argued that “recommendation” does not
  have binding force and that the legitimacy of the system beneﬁts from a
  rules-based, certain approach to interpreting the meaning of the I.C.S.I.D.
  Convention.           Generally speaking, in dubio mitius (the “restrictive
  principle”) means that treaties should be interpreted with deference to
  the sovereignty of the state (see discussion on state sovereignty
  below).109 Moreover, Article 31 and 32 (as discussed above) mandate a
  textual interpretation. The provisional measure provision is part of a
  treaty, and therefore, should be interpreted accordingly.                         Like other
  clauses, its meaning depends on the particular language. A strict textual
  interpretation, in conjunction with deference for the sovereign, could lead
  to interpreting a recommendation as lacking binding force.
             On the other hand, the jurisprudential developments seem to have
  established a doctrine that broadens an I.C.S.I.D. tribunal’s jurisdiction by
  adopting a ﬂexible, dynamic, and value-based adjudicatory methodology
  and approach. These tribunals seem to have justiﬁed extensive arbitral
  powers. These cases appear to stand for the proposition that “functional
  adjudication” must sometimes move outside the legal rigidity in order to
108
      See generally HOBéR, supra note 32, at 30–31.
109
      See Id. at 310-311.



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  produce substantive as well as procedural fairness and justice (see
  discussion on procedural safeguards below). The essence of the cases
  outlined above (which constitute a non-exhaustive selection of
  examples), is a development which puts pure legal theory somehow on its
  head. It is a value-added approach which supersedes certainty, i.e. the
  approach prevails over strict rules.
            The policy unveiled in these cases can be understood as follows.
  The I.C.S.I.D. Convention should be interpreted in a dynamic manner and
  must be able to adopt to changing circumstances. This kind of reasoning
  is not limited to this procedural issue alone, and therefore has a larger
  encompassing legacy.           Adding to this, arbitral case law in investment
  treaty arbitration has generally been recognized to have standing and
  currency as quasi-binding case law.110 Investment treaty arbitration’s
  future is different from that of its commercial counterpart because it
  implicates public international law. Therefore, the status school of thought
  which attributes some sort of quasi-judicial role on the arbitrator seems
  inevitable in investment treaty arbitration.




            5. I.C.S.I.D. TRIBUNALS’ JURISDICTION – PROCEDURAL SAFEGUARDS AND STATE
         SOVEREIGNTY

  As discussed in the previous section, dynamic interpretation (e.g.
  allowing for procedural efficiency at the expense of rules-based
  interpretation) sometimes clashes with, for example, state sovereignty.
  Ultimately, the question on whether the provisional measure regime in
  I.C.S.I.D. arbitration can mandate a sovereign to refrain from exercising
  sovereign powers is one where the text (the rule) and the sovereign
  prerogatives clash with necessary, dynamic interpretation.
110
      Cf. Pedro J. Martinez-Fraga & Harout Jack Samra, A Defense of Dissents in Investment
      Arbitration, 43 U. MIAMI INTER-AM. L. REV. 445, 445-7 (2012). See also MARY ANN GLENDON
      ET AL., COMPARATIVE LEGAL TRADITIONS IN A NUTSHELL 133-4 (3rd ed. 2008).



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 It has been said that “equality of arms” is a key concept for a fair
 adjudication process.111          The concept was developed through public
 international law. However, the concept can be traced back to ordinary
 principles of law; such as, “due process” and the “right to a fair trial.”
 I.C.S.I.D. arbitration is an adjudication system that operates under the
 auspices of public international law, and therefore an argument can be
 made that the tribunal has inherent – implicit and explicit – powers to
 restore the equality of arms.112 Professor Wälde wrote as follows:

           “Equality of arms” a foundation principle of investment

           arbitration procedure. A government sued on the basis of an

           investment treaty, signed to encourage foreign and private

           investment by promising effective protection, should prosecute

           its case vigorously but within the framework of the principles

           of “good faith” arbitration, the applicable arbitration rules,

           and with respect to “equality of arms”.113

 Arguably, rendering a provisional measure is a means through which the
 tribunal can sanction procedural abuse and restore the equality of arms
 between the parties. For example, if a host-state abuses or misuses its
 prosecutorial powers to gain a litigation tactic, tribunals may have a duty
 to restore “equality of arms.”114 Some stretch it so far that a breach of that
 duty can lead to annulment under Article 52 of the I.C.S.I.D. Convention.115
         After all, “[p]rinciples of law that have received universal
 acceptance by frequent embodiment in international instruments bear
 heavily on, and are likely to be recognized by, domestic courts.”116 The
 “equality of arms” principle might be one of the “universally accepted
 principles.” However, whether this principle can trump deference to state
 sovereignty or the pure text of the convention is debatable.
111
    See Wälde, supra note 53, at 161, 188.
112
    Wälde, supra note 53, at 182.
113
    Wälde, supra note 53, at 161-162.
114
    Wälde, supra note 53, at 180.
115
    Wälde, supra note 53, at 180.
116
    Rowland J.V. Cole, Validating the Normative Value and Legal Recognition of the Principle of
    Equality of Arms in Criminal Proceedings in Botswana, 56 J. AFR. L. 68, 85 (2012).



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 “Access to justice” is another broad, ambiguous, and loose concept upon
 which justiﬁcation may be found. The International Covenant on Civil and
 Political Rights and the European Convention on Human Rights guarantee
 a fair trial to litigants. Arguably this should be mirrored in investment-
 arbitration. The right to a fair trial is central to, and a fundamental aspect
 of, the constitutional rule of law and any procedural well-being of a court
 or tribunal. Born makes a valid point in that:

              [R]easonable parties cannot be presumed to intend that their

              chosen dispute resolution mechanism should lack important

              procedural protections, or should reward dilatory tactics by one

              party, or should require recourse to national courts for effective

              relief. Accordingly, absent explicit contrary indication in the

              parties’ agreement, it is both sensible and necessary to

              presume that arbitration agreements impliedly include a grant

              of authority to order interim relief.117

 Now, whether “judicialization” of investment-arbitration is inevitable or
 not is a discussion for another time. It suffices to say that more court-like
 procedures would mean that investment-arbitration would be more akin
 to the I.C.J. rather than modelled after an I.C.A. tribunal. That evolution
 has been going on for many years, probably leading towards the adoption
 of an investment court system (I.C.S.). Whether public policy concerns in
 investment-arbitration are stressing enough to press for this development
 has to be answered in the years to come.
             As a ﬁnal observation, many Tribunals that eventually end up
 denying the request for a provisional measure, still render a de facto
 recommendation in order to protect the “equality of arms” and
 “procedural fairness” but without interfering with state sovereignty or
 implying tribunal powers outside the text. For example, the tribunal in
 Churchill Mining observed as follows: “While the request for provisional
 measures must be denied, the Tribunal wishes to expressly stress the
117
      BORN, supra note 3, at 2435.




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  Parties’ general duty, which arises from the principle of good faith, not to
  take any action that may aggravate the dispute or affect the integrity of
  the arbitration.”118
          The tribunals that still deny this evolution and proceed with
  extreme deference to state sovereignty have their reasons too. Many ﬁnd
  their reasoning in pure textualism and others probably prefer a holistic
  view in order to preserve investment-arbitration. The latter agree that
  efficiency is needed but disagree in how their decisional law will affect the
  investment-arbitration system as a whole. We need to scratch beneath
  the surface and ask: how will provisional measures interfering with state
  sovereignty adversely affect the investment-arbitration regime in the
  long-term? When a tribunal refuses to order a provisional measure, it is
  either because (1) it thinks that they lack the authority to order it, (2) that
  negative inferences are a sufficient remedy, or (3) that rendering an order
  would        damage      the     legitimacy        of      the      tribunal        and       the
  investment-arbitration system due to the risk of non-compliance. Thus,
  many tribunals might be safeguarding against non-compliance while still
  stressing a particular point that needs to be made.
          Therefore, I.C.S.I.D. tribunals’ recognition of their power to order
  provisional measures in the criminal prosecution context may be based
  on   the     essential   need     to    preserve     the      procedural        integrity       of
  investment-arbitration, in general, and for the protection of the
  investor’s access to arbitration, in particular.119 Notwithstanding this, the
  I.C.S.I.D. regime is constrained by the text of the convention and to
  deference for state sovereignty.
          In    the     context      of    ordering        provisional          measures          in
  investment-arbitration, a tribunal has to balance various considerations
  that may affect state sovereignty.120                   “It should be noted that in
118
    Churchill Mining PLC v. Indonesia, ICSID Case No. ARB/12/14 and ARB/12/40, Procedural
    Order No.9, at 104 (Jul. 8, 2014).
119
    Burnett et al. , supra note 1, at 53.
120
    Maniruzzaman, supra note 6, at 2. E.g., sovereign immunity, public interest, international
    obligations, etc.




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  negotiating and drafting [the I.C.S.I.D. Convention] the state parties were
  [directly] involved through their representations (hence sticking to the
  orthodox notion of sovereignty) unlike in other cases such as the
  U.N.C.I.T.R.A.L. Arbitration Rules.”121 Maniruzzaman identiﬁed three
  different perspectives of sovereignty to be applied as a matter of course
  and practical exigency; that is, the classical perspective, the teleological
  perspective, and the objective perspective.122
         First, the classical perspective is premised on the idea that
  provisional measures are not mandated to be binding on states.                            The
  drafters of the I.C.S.I.D. Convention (and the I.C.J. statute) had this in
  mind when drafting respective legal framework and the drafting history
  bears testimony to this fact.123 The power in Article 47 of the I.C.S.I.D.
  Convention to “prescribe,” rather than “recommend,” was opposed
  (especially by China) and the “idea to authorize the Tribunal to make
  “interim awards“ on provisional measures (citations omitted) did not
  prevail.”124 The choice of language, originates from the drafters intention
  to be respectful of State sovereignty.          For example, by not granting a
  tribunal the power to order a state to do something provisionally.125
  Maniruzzaman identiﬁed the following in relation to the classical
  perspective: “It is thus clear that the sovereignty of the state party was
  considered to be a factor for not making I.C.S.I.D. provisional measures
  binding on it. However, the I.C.S.I.D. tribunal in its landmark decision in
  the Maffezini case in 1999 pronounced the binding character of
  provisional measures recommended by a tribunal.”126
         Hence, despite the reason for choosing a particular language,
  jurisprudential and doctrinal evolution might have changed the meaning
  of a recommendation to become an order.
121
    Maniruzzaman, supra note 6, at 6-7.
122
    Maniruzzaman, supra note 6, at 8.
123
    Maniruzzaman, supra note 6, at 8-9.
124
    SCHREUER ET AL., supra note 9, at 746, 758.
125
    E.g., Zannis Mavrogordato & Gabriel Sidere, The Nature and Enforceability of I.C.S.I.D.
    Provisional Measures, 75 ARB. 38, 40 (2009).
126
    Maniruzzaman, supra note 6, at 10.




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  Second, the teleological perspective of State sovereignty offers another
  view; that is, although the choice of word is vague, it is based on the
  thought that the parties are obliged not to frustrate their agreement to
  arbitrate.127 For example, in Maffezini v. Spain the tribunal noted that “the
  lack of precedent is not necessarily determinative of [its] competence to
  order provisional measures in a case where such measures fall within the
  purview    of   the   Arbitration    Rules    and     are    required        under      the
  circumstances.”128 A “lack of precedent” is not determinative in a regime
  without a doctrine of binding precedent. Albeit some argue that there is a
  de facto doctrine of binding precedent in investment arbitration.
  Notwithstanding, a lack of legislative intent is determinative; a notion
  which the interpretive framework provided in the V.C.L.T. substantiates.
  The general rule of treaty interpretation, as expressed by article 31 of the
  V.C.L.T. does include a teleological approach insofar as a treaty text must
  be read in light of its object and purpose. However, as stressed above, the
  interpretive framework gives precedence to the textual approach. As laid
  out by Anthony Aust:

          The determination of the ordinary meaning cannot be done in

          the abstract, only in the context of the treaty and in the light of

          its object and purpose. The latter concept, as we have seen in

          relation to reservations to treaties, can be elusive. Fortunately,

          the role it plays in interpreting treaties is less than the search

          for the ordinary meaning of the words in their context.                In

          practice, having regard to the object and purpose is more for

          the purpose of conﬁrming an interpretation.                       If an

          interpretation is incompatible with the object and purpose, it

          may well be wrong. Thus, although paragraph (1) contains both

          the textual (or literal) and the effectiveness (or teleological)

          approaches, it gives precedence.129
127
    Maniruzzaman, supra note 6, at 13.
128
    Emilio Augustìn Maffezini v. Kingodom of Spain ICSID Case No. ARV/97/7, Decision on
    Request for Provisional Measures, para. 5 (Oct. 28, 1999).
129
    AUST, supra note 27, at 209.



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  Accordingly, although a teleological approach is central feature of treaty
  interpretation, it is the “object and purpose” that conﬁrms the party
  intention as it is expressed in the “ordinary meaning” of the text, and not
  the other way around.              Thus, in order to adhere to the principles of
  interpretation laid out in the V.C.L.T., the conclusions derived from a
  teleological approach have to be anchored in the treaty text. The sources
  of law upon which a teleological approach is based, are mainly extrinsic.
  Preparatory works are explicitly addressed as a supplementary means of
  interpretation in Article 32 of the V.C.L.T.. Notwithstanding the explicit
  hierarchy provided in the V.C.L.T., preparatory works are often important
  when applying the general rule of interpretation insofar as what can be
  derived therefrom is indicative of party intention and the “object and
  purpose” of a treaty. Therefore, a teleological method of interpretation is
  in many cases best performed by glancing at the preparatory work of the
  relevant convention or rules.                To reiterate Schreuer’s comment: “a
  conscious decision was made not to grant the tribunal the power to order
  binding [provisional measures].”130
             Third, the objective perspective of State sovereignty “allows the
  [tribunal] to delve into the objective application of the notion of
  sovereignty so that the state’s position as a sovereign is respected and is
  not impacted in a way that turns out to deprive it of its fundamental
  status of being a state.”131 Certain powers should not be interfered with in
  accordance with the objective perspective; unless an agreement has been
  made. Exactly what those powers are is uncertain and possibly changing.
  A state’s prosecutorial powers might very well ﬁt within those powers.
  Another question is exactly when and how an agreement has been made
  and whether provisions can be implied or evolved through doctrine and
  jurisprudence.
             Scholars, arbitrators and practitioners are divided when it comes to
  the provisional measures binding character.                 The main concern being
130
      SCHREUER ET AL., supra note 9, at 758.
131
      Maniruzzaman, supra note 6, at 8.



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  interference with state sovereignty. For example, the Tribunal in SGS v.
  Pakistan opined that “[the tribunal] cannot enjoin a State from
  conducting the ordinary processes of criminal, administrative and civil
  justice within its own territory.”132 The Tribunal in Italba stated that: “ . .
  . . Uruguay has the right to investigate alleged criminal conduct in its
  territory. There can be no legitimate expectation on the part of Claimant
  that the prosecution of an I.C.S.I.D. arbitration against Uruguay confers a
  blanket immunity upon its principals and witnesses from a criminal
  investigation in Uruguay.”133
         The Tribunal in Teinver v. Argentina articulated a similar restrictive
  view but with a caveat for “exceptional circumstances”, opining as
  follows: “As has been held by a number of arbitral tribunals, Respondent
  clearly has the sovereign right to conduct criminal investigations and it
  will usually require exceptional circumstances to justify the granting of
  provisional measures to suspend criminal proceedings by a State.”134
         As evident, there is no agreement and there are valid arguments on
  opposite sides. In Hydro S.R.I. v. Albania, the Claimants argued that the
  Respondent had accepted the Tribunal’s interference with its sovereign
  rights by signing the I.C.S.I.D. Convention.135              However, the tribunal,
  sensibly, came down in the middle of the two extremes and opined as
  follows:

           In the Tribunal’s view adherence to the I.C.S.I.D. Convention

           has some ramiﬁcations on the sovereign rights of a member

           state. The Tribunal also accepts the Respondent’s submission

           that when a State investigates a crime,                particularly in

           circumstances where the State is under an international
132
    SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case No.
    ARB/01/13, Order on Procedural measures No. 2, para. 36 (Oct. 16, 2002).
133
    Italba v. Oriental Republic of Uruguay, ICSID Case No. ARB/16/9, Claimant’s Application
    for Provisional Measures and Temporary Relief ,¶118, (Feb.15, 2017).
134
    Teinver S.A. and Transportes de Cercanías S.A. v. The Argentine Republic, I.C.S.I.D. Case
    No. ARB/09/1, Decision on Provisional Measures, para 190 (Apr. 8, 2016).
135
    Hydro S.r.l. v. Republic of Albania, I.C.S.I.D. Case No. ARB/15/28, Order on Provisional
    Measures, ¶3.40 (Mar. 3, 2016).




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              obligation to do so, “[t]he strongest of reasons need to be

              shown for impeding such an investigation.”136

  The Tribunal seems to have opined that the I.C.S.I.D. Convention
  interferes with states sovereign rights, but that some interference is
  justiﬁed and agreed to. However, the tribunal seems to have determined
  that a provisional measure enjoining criminal procedures is a kind of
  interference that carries a high burden and is not easily available.
  The provisional measure is a holistic procedural tool and its outcome is
  highly determinative on speciﬁc facts.                 However, there are still pure
  textualists that adhere strictly to the V.C.L.T.. Pure textualists look strictly
  at words or lack thereof. The tribunal in Quiborax S.A. opined as follows
  vis-á-vis I.C.S.I.D. arbitration exclusivity:                   “Neither the I.C.S.I.D.
  Convention nor the B.I.T. contain any rule enjoining a State from
  exercising criminal jurisdiction, nor do they exempt suspected criminals
  from prosecution by virtue of their being investors.”137
            Tribunals have decided that they have extensive powers to, among
  other things, preserve the status quo and to take measures needed for the
  parties to not “aggravate” the dispute further.                     Despite the extreme
  deference for state sovereignty, the Tribunal in Quiborax S.A.I. opined the
  following concerning sovereignty:

              [T]he Tribunal insists that it does not question the sovereign

              right of a State to conduct criminal cases. As mentioned in

              paragraph 129 above, the international protection granted to

              investors    does    not   exempt      suspected     criminals       from

              prosecution by virtue of their being investors. However, the

              situation encountered in this case is exceptional [emphasis

              added] . . . . [T]he Tribunal is of the opinion that a mere stay of

              the criminal proceedings would not affect Respondent’s

              sovereignty nor require conduct in violation of national law.
136
      Id para 3.40.
137
      Quiborax S.A. v. Bolivia, I.C.S.I.D. Case No. ARB/06/2, Decision on Provisional Measures,
      ¶129 (Feb. 26, 2010).



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           Respondent’s expert in criminal procedure . . . . notes that the

           prosecutor may request the competent judge to refrain from

           prosecuting a criminal action in certain cases, such as when the

           event is of little social relevance or judicial pardon is

           foreseeable . . . . In any event, the harm that such a stay would

           cause to Bolivia is proportionately less than the harm caused to

           Claimants if the criminal proceedings were to continue their

           course. Once this arbitration is ﬁnalized, Respondent will be

           free to continue the criminal proceedings, subject to the

           Tribunal terminating or amending this Decision prior to the

           completion of this arbitration.138

  The tribunal decided that a stay would preserve the procedural integrity of
  the arbitration but not infringe on the sovereign’s right to prosecute, the
  harm calculus makes sense in theory but it remains to be seen how well it
  will sit in practice.
         As has been said in relation to international law, “[a]lmost all
  nations observe almost all principles of international law and almost all of
  their obligations almost all of the time.”139 An obvious trap is that the
  tribunal lacks the power to enforce a provisional order.140 The practical
  implication is that a non-complying states may be willing to sacriﬁce the
  “negative inferences” in exchange for a signiﬁcant litigation or tactical
  beneﬁt that will be arising out of the non-compliance.141                   Neither the
  I.C.S.I.D. Convention nor the institutional rules “carve out” the authority
  to “interfere with rights of a sovereign nature.” If this was so important
  to the drafting parties, it would have been ventilated and articulated with
  frequency.
         If the tribunal lacks “explicit powers” to order provisional
  measures, it might have “implied powers” to, among other things,
138
    Id. para. 164-65.
139
    E.g., LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 47 (2nd ed. 1979).
140
    BORN, supra note 3, at 2445. The court can draw “negative inferences” from a lack of
    compliance.
141
    See BORN, supra note 3, at 2447.




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restore   equality   of    arms,   preserve     the     status       quo,       secure
non-aggravation, and guarantee procedural fairness and integrity. If a
provisional order is the only means of securing these procedural rights,
then an order might be rendered with justiﬁcation.
      In summary, the debate on whether an I.C.S.I.D. Tribunal has
jurisdiction to order a sovereign to refrain from exercising its sovereign
powers is sensitive.      Sovereign immunity and textual interpretation
clashes with necessary procedural protection that has been in the making
in public international law for many years.        It is in this context that
investment treaty arbitration differentiates the most with its commercial
counterpart. It is also because of the sovereign element that investment
treaty arbitration is becoming judicialized.      Whether concepts such as
“equality of arms” and “procedural good faith” should allow a privately
appointed tribunal to restrain sovereign activity is hard to determine. The
answer has to be determined whether I.C.S.I.D. Tribunals should have
jurisdiction that is either value and approached based or whether the
tribunal should be strictly limited to rules and constrained by deference
towards the sovereign. In other words, should I.C.S.I.D. tribunals have the
ﬂexibility to respond to the dynamic changes necessary in order to
provide substantive and procedural fairness or should the tribunals be
constrained by rules, which at the same time have the beneﬁt of
establishing a certain regime? A certain regime has related virtues of
predictability and uniformity.     Either approach can be justiﬁed or
de-justiﬁed on the basis of contributing to the legitimacy of the system.




      6. CONCLUDING REMARKS

The provisional measure is a practical tool for a tribunal in order to
guarantee procedural integrity, e.g. on the basis of “equality of arms” or
“procedural good faith.” It can be said that the concept of “sovereignty”

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should not force tribunals to tie their hands when serious interference
with the arbitral procedure is making the procedure unfair at best, or a
nullity at worst. However, pragmatic thinking does not alter the language
explicitly adopted by the negotiating parties. Legal text both empowers
and constrains the tribunal. Jurisdiction, powers, and duties are extracted
from the legal authority.
        Despite the unclear language of the I.C.S.I.D. Convention, tribunals
seem to have justiﬁed “ordering” these measures. They have done so
either by relying on doctrinal understanding developed in arbitral case
law or by relying on their duty (perhaps “best efforts”) to facilitate for
procedural fairness and good faith, perhaps attributing to themselves a
quasi-judicial role in accordance with the status school of thought.
I.C.S.I.D. Tribunals seem to have relied on the justiﬁcations without major
short-term implications.        It is doubted, however, that this dynamic
functionalism can continue without long-term repercussions. Tribunals
have to balance two factors if states refuse compliance due to
interferences with state sovereignty. First, tribunals have to consider the
impact on the legitimacy of the I.C.S.I.D. tribunal itself and, second, the
legitimacy of the entire regime of investment arbitration.                   If states
eventually refuse to comply with provisional orders, it will inevitably
de-legitimize investment arbitration. This would undermine an already
fragile and perhaps overly politicized system. As a result, more states may
refuse compliance, or worse, pull-out altogether.
        Therefore, the great paradox in extending arbitral jurisdiction to
maximize procedural fairness – albeit well intended and sensible – might
be that there will eventually no longer be a system to safeguard. In this
context, the coin of pragmatism triggers two questions, the answer of
which    will   be   crucial   for   the   long-term    sustainability         of    the
investment-arbitration regime. These questions are: (1) what approach is
“pragmatically the better” in order to safeguard procedural fairness in
investment-arbitration, and (2) what approach is “pragmatically the
better” in order to safeguard the regime of investment-arbitration

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altogether? Hopefully the answer will be found in the amended I.C.S.I.D.
Rules or in inﬂuential scholarly dissemination. Investment arbitration is
not meant to be perfect, but it represents a successful experiment in
international adjudication because it is workable and produces reasonable
substantive and procedural justice as well as fairness. The regime has also
been efficient in levelling the playing ﬁeld to a reasonable standard. To
promote longevity of the regime, perhaps greater precaution is merited in
order to strike a workable balance between these two interests, which are
both of utmost importance.




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