PROVISIONAL MEASURES IN INVESTMENT TREATY ARBITRATION: PROTECTING THE PLAYING FIELD
Contentious disputes are fought on many fronts. Beyond the legal proceedings themselves, there are a number of strategic considerations to keep in mind to ensure that a company has the best chance of success.
These strategies are particularly relevant in investment treaty arbitration where the claimant investor is up against a sovereign state, which has at its disposal the resources of the state. For example, the respondent state has use of its criminal and civil domestic courts, which has led to a large proportion of provisional measures applications to suspend parallel domestic proceedings. In contrast, the claimant investor often lacks access to information, particularly in expropriation cases, where the claimant investor no longer has use of its investment or documents. Thus, the claimant investor often finds itself in less than ideal circumstances, and potentially on the wrong side of a power imbalance.
This potential disparity sits ill at ease with the well-accepted principle of equality of arms. Left unchecked, this discrepancy risks undermining the effectiveness of the arbitration as a dispute resolution process, by interfering with the legal playing field.
The efficacy of any arbitration rests on two premises. The first is that the parties are able to present their cases to the tribunal fairly and without impingement. This is known as the right to be heard or the right to procedural integrity. The second is the maintenance of the status quo throughout the proceedings: i.e., that during the course of arbitral proceedings, no party’s rights or position should be damaged in the period of time needed to adjudicate the dispute.
Oct-Dec 2022 issue
Gibson, Dunn & Crutcher UK LLP