PROVISIONAL MEASURES IN INTERNATIONAL INVESTMENT ARBITRATION
Creators: name: LENCI, FEDERICO
Publisher: name: Universit� degli Studi di Milano
Year: 2015

description: The thesis deals with provisional measures in one of the fastest-growing areas of public international law, namely international investment law and arbitration. Since to the best of my knowledge no monograph has ever been devoted thereto, my task in structuring this dissertation was at the same time easy (I was completely free to choose) and difficult (there was no extensive study to which I could refer). Moreover, the fact that this topic is a moving target, as I demonstrated in my study, rendered my task more complicated and fascinating. Therefore, this thesis constitutes a very personal endeavour, since it aims at representing the current state of my topic as it appeared to me throughout these three years. After presenting the investment framework with a broad angle (Chapter one), the analysis proceeds through the adoption of a differentiated approach: in Chapter two I firstly draw on the history of the interpretation and application of provisional measures in inter-State and State-private international adjudication (Section one) and, secondly, address these measures from a comparative perspective inscribed in public international law adjudication (Section two). Indeed, in my opinion the choice of comparing the arbitral provisional power in international investment arbitration and international commercial arbitration would have been a wrong one, for two series of reasons, which can be briefly summarised as follows: - The sovereign nature of one of the parties determines a fundamental difference between the two frameworks, causing that group of disputes to be inscribed in public international law adjudication, which merely share with international commercial arbitration the dispute settlement tool; - As a corollary, contrary to international commercial arbitral case law, investment arbitral case law is perfectly able to influence (and to be influenced by) consolidation, divergence and development of public international law, constituting one of its sources under the terms of Art. 38 (1) lett. d) of the ICJ Statute. Chapter three is devoted to the current state of provisional measures in international investment arbitration. Section one addresses their specific features, namely legal force and exclusive / concurrent jurisdiction to rule upon them. Thereafter, Section two focuses on conditions, purposes and atypicalness of recourse thereto (in the effort to describe the picture of the arbitral default rules as they emerge from case law), whereas Section three sets some aspects of treatification and contractualisation of provisional measures. Chapter four discusses the rules applicable to the implementation of these measures, considering voluntary compliance, non-compliance and its consequences, finally the options available to the addressee in order to oppose their application. My thesis concludes with some remarks on the role of consent, namely on the possibility for the parties to amend such default rules - through treatification and contractualisation of provisional measures - before their potential dispute occurs. Thus, they are able to tailor the latter to their needs, and particularly to their bargaining power before the investment is carried out in the host State, so as to increase legal security in that respect.