The sharp rise in international arbitrations filed by energy companies in recent years has yielded an increasing number of interim measures applications. While interim measures have been legally available for decades, the various forms of interim relief issued by tribunals in recent years suggest that claimants in energy-related arbitrations should strongly consider whether their needs would be met by a well-developed interim measures request. The benefits of interim relief, particularly in the context of international investment disputes, are significant. Interim measures generally provide an expedited procedure to challenge the most egregious conduct by host States (or that which threatens the greatest harm), all in the context of protecting the parties’ legal rights during the pendency of the arbitration.
Speaking in broad terms, three requirements govern the issuance of interim relief: (1) the tribunal’s prima facie jurisdiction over the subject matter of the request; (2) a threat of substantial harm or prejudice to a right capable of being protected by the tribunal; and (3) urgency in the sense that the risk of harm or prejudice is imminent. The legal grounds for interim measures are based on the rules of the major arbitral institutions—including ICSID, UNCITRAL, ICC, and SIAC, among others—in combination with the tribunal’s authority under the particular treaty or agreement governing the arbitration.
For example, Article 47 of the ICSID Convention states that “the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party,” with Rule 39 of the ICSID Arbitration Rules further specifying that the tribunal may recommend provisional measures “on its own initiative or recommend measures other than those specified in a request.” The UNCITRAL Arbitration Rules also confer broad authority on the tribunal to issue interim measures. While the 1976 version of the UNCITRAL Rules authorized an arbitral tribunal to issue “any interim measures it deems necessary in respect of the subject-matter of the dispute” (Article 26(1)), the revised Rules, issued in 2010, provide even greater detail regarding the tribunal’s authority, and explicitly allow interim measures to: (i) maintain or restore the status quo; (ii) prevent imminent harm or prejudice to the arbitral process; (iii) preserve assets; and (iv) preserve evidence.
Similarly, under Article 23 of the ICC Rules, the tribunal may order “any interim or conservatory measure it deems appropriate,” which may further be conditioned on giving of security, and which may take the form of an order or award. The SIAC Rules (Article 26) and the ICDR Rules (Article 37) take this authority a step further, allowing a party to apply for interim relief even before the constitution of the tribunal, through a fast-track procedure employing an emergency arbitrator.
In a number of important recent cases, arbitral tribunals have considered interim measures requests brought predominantly by claimants and seeking relief in the following categories: (1) security for costs (see RSM v. Grenada, ICSID Case No. ARB/05/14); (2) preservation of the status quo (see Chevron v. Ecuador, UNCITRAL, PCA Case No. 2009-23; Occidental v. Ecuador, ICSID Case No. ARB/06/11; EnCana v. Ecuador, LCIA Case No. UN/3481); and (3) suspension of parallel proceedings (see Burlington v. Ecuador, ICSID Case No. ARB/08/5; Perenco v. Ecuador, ICSID Case No. ARB/08/6; City Oriente v. Ecuador, ICSID Case No. ARB/06/21; Chevron v. Ecuador, UNCITRAL, PCA Case No. 2009-23; Plama v. Bulgaria, ICSID Case No. ARB/03/24).
Although these requests for interim measures in energy-related international arbitrations have met with mixed success, interim measures ordering the suspension of parallel proceedings or otherwise affecting such proceedings seem to be growing in numbers. This rise may be a reflection of the increasingly difficult and outrageous circumstances facing some claimants at the mercy of host States. Although the future of this trend is uncertain, at a minimum it suggests that claimants in energy-related arbitrations should consider whether their rights at stake in an arbitration could receive important protection as a result of a well-developed interim measures request.