Investor Presentaiton
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ensure that the arbitral tribunal's jurisdiction is made fully
effective, including an order to preserve evidence in the
possession or control of a disputing party or to protect the
arbitral tribunal's jurisdiction.
2. An arbitral tribunal may not order attachment or enjoin
the application of the measure alleged to constitute a breach
referred to in Article 11. For purposes of this paragraph, an
order includes a recommendation."
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This provision grants limited authority as it specifies what a
tribunal both may and may not order as interim measures.
Consistent with that BIT's limitation of authority to award non-
monetary remedies," this provision prevents a tribunal from
ordering a State to cease the application of a measure. Rather, the
purpose behind interim measures is to ensure a tribunal's ability to
conduct fair proceedings and preserve its jurisdiction, for example,
in the event that one of the parties tries to seek parallel relief in local
courts, which is not permitted under the BIT.
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The reason that arbitral tribunals tend to have limited authority
to award provisional measures is that they have limited coercive
powers. They have authority over the parties to the dispute, but have
no authority over third parties. Moreover, even with respect to the
disputing parties, they lack the ability to compel compliance with
orders, save for their ability to draw adverse inferences against a
party that has failed to abide by its orders, or to take into account
that party's acts when determining the allocation of costs.
3. Court-ordered interim measures
The inherent limitations on arbitral tribunal authority mean that
domestic courts often play a role in ordering interim measures of
protection in support of arbitration. Parties to an arbitration may
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On the limitation of available remedies, see section II.O.
See Kaufmann-Kohler and Antonietti, 2010, pp. 507, 523–526.
UNCTAD Series on International Investment Agreements IIView entire presentation