Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
As regards the third category, if there is convincing evidence
that a party will engage in a bad-faith attempt to hide assets in order
to stymie the enforcement of an award, a tribunal might order the
posting of security. In ICSID cases these requests have not met with
success.
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Provisional measures are appropriate only in the limited
circumstances where failure to order them would likely result in a
tribunal's inability to order appropriate final relief." Encompassed
in these requirements is the notion of urgency (that interim measures
be essential to preserve the rights of one of the parties) and necessity
(that failure to order the measures would prevent an appropriate
award from being entered).
2. Tribunal-ordered interim measures
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The ICSID Convention and the UNCITRAL Arbitration Rules
both empower the tribunal to order provisional measures.
These
rules can be complemented by special provisions in the IIA
addressing this issue, as found in many recent agreements. The
Mexico-Singapore BIT (2009) serves as an example:
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"Article 19. Interim Measures of Protection
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1. An arbitral tribunal may order an interim measure of
protection to preserve the rights of a disputing party, or to
Ibid., pp. 168-170.
Other characteristics typical of interim measures are that they
presuppose the existence of a dispute, are temporary and should be
periodically reviewed to ascertain their continued relevance, and are
limited so as not to exceed the final relief that might eventually be given.
107 Article 47 of the ICSID Convention and Rule 39 of the ICSID
Arbitration Rules; Article 26 of the UNCITRAL Arbitration Rules.
108 See, for example, Australia-Chile FTA (2008) Article 10.20(7);
Canada-Jordan BIT (2009) Article 43; Rwanda-United States BIT (2008)
Article 28(8); Brunei-Japan FTA (2009) Article 67(19).
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