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

Dautaj, Ylli and Gustafsson, Bruno (2019) Provisional Measures in Investor-State Arbitration: States Playing Games in Local Courts by Invoking the Trump Card (Police Powers). University of Bologna Law Review, 4 (1). pp. 27-71. ISSN 25316133

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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.

Item Type: Article
Keywords: Interim Measures | Investment Treaty Arbitration | Sovereign Immunity | Suspension of Criminal Procedures | Treaty Interpretation
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Shilpi Rana
Date Deposited: 06 Jan 2022 09:13
Last Modified: 06 Jan 2022 09:13
Official URL: https://doi.org/10.6092/issn.2531-6133/9359
URI: https://pure.jgu.edu.in/id/eprint/595

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