Compared to the provisional measures in domestic litigations,provisional measures in ICSID arbitration concern the conflict between the integrity of arbitration and national sovereignty,specifically manifested in the contradiction between provisional measures to suspend domestic criminal proceedings and the state's criminal jurisdiction.Considering such a special feature,the ideal approach regarding the binding force of provisional measures in ICSID arbitration is to grant them binding force while imposing strict conditions for issuing provisional measures that suspend domestic criminal proceedings,thus achieving a balance between the interests.The actual basis for the binding force of provisional measures in ICSID arbitration cannot be derived directly from treaty interpretation within the ICSID framework.However,it can be established indirectly through the rule of non-aggravation of the dispute outside the framework.In practice,ICSID tribunals have adopted a cautious approach toward provisional measures to suspend domestic criminal proceedings.Their approach of limiting the circumstances for such measures to be recommended and highlighting the evidence requirements can be generalized as restrictive common conditions for such measures.
ICSID arbitrationprovisional measuresbinding forcenon-aggravation of the disputetreaty inter-pretation
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