Provisional Measures Legal Meaning

Having found that the necessary conditions were satisfied, the Court referred to its interim measures and recalled that it could have recourse to measures other than those requested by the applicant (paragraph 79; see also Armenia v Azerbaijan, paragraph 90). In this context, the tribunal ordered Russia to “immediately suspend military operations” and “ensure that any military or irregular armed units led or supported by it. take measures to promote military operations.” Finally, as is often the case, it ordered both parties “to refrain from any action likely to aggravate or prolong the dispute before the Court or complicate its settlement” (see the criticism of judge ad hoc Daaudet to address the order to both parties). In commercial arbitration, requests for interim measures are often sought to temporarily preserve rights in dispute on the merits. For example, a party could seek interim measures of protection that coincide with the final relief sought, such as the right to temporary performance of a (disputed) contractual obligation or the temporary cessation of alleged unlawful conduct until the dispute is finally resolved on the merits.95 A similar standard has been applied by other courts in cases where investor claimants take interim measures to protect Arbitration Integrity. 194 on the courts` grounds that, although the destruction of an investment can theoretically be remedied by awarding pecuniary damages, an investor`s ability to participate effectively in the arbitration proceedings could not be remedied in this manner if it were proved by the facts.195 However, investment tribunals have upheld the principle that: that an interim measures order “property whose ownership is disputed. may not be sold or assigned before the final award of the arbitral tribunal”.97 As in Maffezini v. Spain, “[t]he injunction would preserve the status quo of property and, therefore, the party`s rights over property”.98 Similarly, investment courts have ordered the provisional stay of parallel civil proceedings before local courts, arbitral tribunals113 or bankruptcy proceedings114 if the proceedings concerned the resolution of the issues examined by the tribunal. such as the validity of a claim against one of the parties.

Another type of right for which protection has been sought by interim measures contained in the applications is the guarantee of costs.145 ICSID tribunals initially refused to include the guarantee of costs in the rights to be protected under Article 47 of the ICSID Convention.146 This position subsequently developed. Although successive ICSID tribunals have concluded that certainty is not an ordinary measure under the ICSID Convention or the ICSID Arbitration Rules, subsequent ICSID tribunals have accepted that such a recommendation may be considered in exceptional circumstances.147 Similar reasoning has been adopted by tribunals constituted under the UNCITRAL Arbitration Rules of 1976.148 In the context of Commercial Arbitration ICC tribunals have also approved claims for costs guarantees.149 The SCC Arbitration Rules expressly allow claims for costs guarantees.150 In cases where the interests of a third State are at stake, that State may be allowed to intervene in the case and participate as a full party. Under article 62, a State “having a legal interest” may make a request; However, it is up to the court to decide whether or not to authorize the intervention. Applications for intervention are rare and the first accepted request was not made until 1991. Interim measures of protection are available in different forms in virtually all national legal systems and in most international judicial systems.6 The principle of interim measures of protection has been considered a general principle of law within the meaning of article 38 (1) (c) of the Statute of the International Court of Justice.7 The burden of proof normally rests with the party requesting the interim measure.52 In rare cases, the court may assume that: the burden of proof is on the head of the party best placed to present the evidence.53 Third, the Court has “jurisdiction to take interim measures where rights that are the subject of judicial proceedings are likely to cause irreparable harm or where the alleged breach of those rights may have irreparable consequences” (para. 65; see also Iran v. United States, Article 77). Furthermore, the risk of irreparable damage must be urgent `in the sense that there is a real and imminent risk that irreparable damage will be caused to rights relied on before the final decision of the Court` (paragraph 66; see also Finland v Denmark, paragraph 23). In the absence of an explicit legal power to order interim measures, many courts have concluded that they have the inherent power to preserve the integrity of arbitration, including the power to grant interim measures.22 The European Court of Human Rights in Strasbourg (France) may issue interim measures of protection to prevent a State from performing an act that causes irreparable harm. before the court has had an opportunity to hear and/or decide a case.

Interim measures are most often adopted in cases of extradition or removal when there is strong evidence that the detainee or asylum-seeker would be at risk of torture or the death penalty. According to the Court`s case-law, the transfer of a person to a country where there are reasons to believe that he or she is being tortured constitutes a violation of Article 3 of the European Convention on Human Rights, which prohibits torture. Interim measures are limited in time and expire once the court has issued a final decision. They are also sometimes called precautions or precautions. [3] Failure to comply with the interim measures ordered may result in the termination of the proceedings82 and may be a factor taken into account by the tribunal in making the final award.83 Until the arbitral tribunal is constituted, there is clearly no possibility of obtaining an interim measure from it. Despite the efforts of some arbitral institutions to set up arbitration mechanisms,[1] several institutions do not offer such a forum for interim measures. Moreover, where the interim measure of protection in question involves third parties, arbitrators are virtually unable to provide an effective remedy because they lack jurisdiction over third parties. Therefore, parties in need of urgent legal protection prior to the constitution of the arbitral tribunal generally seek the assistance of national courts. IV Rights and types of interim measures granted It is interesting to note that the Court did not refer to Article 2(4) of the Charter of the United Nations, which enshrines the prohibition of the use of force, but stated that measures to prevent and punish genocide under the Convention “must be consistent with the spirit and purposes of the United Nations” (paragraph 58). While noting the lack of evidence to support Russia`s allegation of genocide in Ukraine, it noted that “it is doubtful that the Convention .. authorises a Party to use unilaterally force on the territory of another State to prevent or punish an alleged genocide” (paragraph 59).

With regard to the standard of proof, the PNGSDP court stated that it was not necessary to prove with certainty serious prejudice. Rather, the claimant must demonstrate the existence of a “reasonable risk or danger that serious or serious harm will occur in the absence of interim measures”.207 In the context of contract arbitration, the adoption of interim measures coinciding with final relief appears to be more controversial. As noted in Section III, some investment treaties expressly limit the power to arbitrate interim measures that impede the application of the State measures that are the subject of the main proceedings.96 First, interim measures presuppose the existence of a dispute. In other words, requests for interim measures require litigation and waiting for a final arbitral award.

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