Protecting foreign investors' rights in a country is a
significant problem both for investee country and investor. In
order to solve this, an international mechanism has been brought
which is called ICSID Convention (International Centre for
Settlement of Investment Disputes) so that disputes between the
contracting state of ICSID Convention and foreign investor can be
settled before a special tribunal established according to
Convention provisions or conciliation commission of ICSID.
Turkey ratified the Convention on 8 May 1991 and became a
contracting state so that convention is binding for Turkey as of
this date. After these developments, the investors' preference
of ICSID has been rising for several years.
In a lawsuit, because respondent has always opportunity to
alienate the object of litigation to third persons, claimant's
rights on that object can be imperiled. Therefore, in order to
prevent this situation, there is a concept called "provisional
measures" so with provisional measures; claimant preserves his
rights on object of the litigation until the end of the
Provisional measures can be recommended by arbitral tribunal ex
officio or upon request of one of parties. In the article 47 of
International Centre of Investment Disputes (ICSID)
"Except as the parties otherwise agree, the Tribunal may,
if it considers that the circumstances so require, recommend any
provisional measures which should be taken to preserve the
respective rights either party".1
Provisional measures are recommended before the jurisdiction
ends but in the judgment process. However, advisory provisional
measures differ from interim decisions of stay of enforcement.
Pursuant to ICSID article 50/2, 51/4 and 52/4, in case of request
of revision of decision and nullity of judgment, the tribunal can
decide stay of the enforcement before the decision on the merits.
However, these articles cannot be applied to advisory provisional
The provisional measure decisions are binding for parties of
tribunal unless otherwise agreed. Parties could, priorly, waive
their right of request of provisional measure. Besides, parties
could agree on which subjects that tribunal will be entitled to or
agree on that all the provisional decisions made by tribunal will
be binding for all parties.
So what kind of demands can a party bring before the tribunal
for provisional measures?
Measures in order to protect and capture the evidences
Protecting of nationalized company's documents
Stay of enforcement of the trials that are initiated before
domestic courts despite ICSID Arbitral Tribunal
Deposit money as much as value of the claim
AGIP v. CONGO as a Case Study
After the reestablishment of the government in Republic of
Congo, the government of Congo has nationalized the AGIP without
compensating (Azienda Generale Italiana
Petroli—General Italian Oil Company) and
retained all the AGIP's documents. During the ICSID trial, AGIP
has demanded provisional measure pursuant to article 47 of the
ICSID Convention, which saying that Republic of Congo must collect
all of the nationalized company's corporate documents, notify
the tribunal and AGIP of the documents collected and keep them for
eventual production to the tribunal.2 AGIP's this
request can be considered as a provisional measure in order to
protect and capture the evidences.
In addition, there are many cases in which provisional measures
had requested from the tribunals such as Holiday Inn v. Morocco,
Amco v. Indonesia, MINE v. Guinea and so on.
In lack of a state of emergency, and necessity the tribunal
cannot accept the request of provisional measure as it happens in
Railroad Development Corporation (RDC) v.
Guatemala. In this case, after the government reshuffle,
RDC requested a provisional measure regarding protection of the
company documents because of the government reshuffle. However, the
tribunal did not accept the request due to lack of a state of
emergency, and necessity in this case.
Failure to Abide by Provisional Measure Decision
In the first draft of the article 47 of ICSID Convention,
compensation was foreseen for the party who abide by provisional
measure decision of the tribunal. However, due to rejection of
countries it opted out from the last version of the article.
1. International Centre for Settlement of Investment
Disputes Convention Article 47
2. The History of ICSID. Parra, Antonio, Oxford
University Press, p.178
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