This chapter analyzes the requirements for granting provisional measures. Section 2 examines the arbitration rules on the requirements for granting provisional measures under the ICSID framework, the UNCITRAL framework and other arbitral institutions. Section 3 considers the two preconditions in the general jurisprudence on the requirements for granting provisional measures, namely the prima facie establishment of a case and the prima facie jurisdiction of the arbitral tribunal. Section 4 examines the three core requirements in the general jurisprudence, that is, the elements of necessity, urgency and proportionality to be met for the protection of the rights of either party. In regard to the element of necessity, this section analyses the criteria of injury to the rights of the requesting party and the rationale behind the different criteria. As for the necessity element, this Section identifies four main issues from the cases: first, the timing criterion of urgency; second, the impact of procedural rights on urgency; third, the impact of the change of circumstances on urgency; and fourth, the relationship between urgency and necessity. Section 4 explores the relationship between the categories of provisional measures and the conditions for granting them. Section 5 discusses the relationship between the categories of provisional measures and the requirements for granting them.

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The Requirements for Granting Provisional Measures

  • Chuanfang Zhang

摘要

This chapter analyzes the requirements for granting provisional measures. Section 2 examines the arbitration rules on the requirements for granting provisional measures under the ICSID framework, the UNCITRAL framework and other arbitral institutions. Section 3 considers the two preconditions in the general jurisprudence on the requirements for granting provisional measures, namely the prima facie establishment of a case and the prima facie jurisdiction of the arbitral tribunal. Section 4 examines the three core requirements in the general jurisprudence, that is, the elements of necessity, urgency and proportionality to be met for the protection of the rights of either party. In regard to the element of necessity, this section analyses the criteria of injury to the rights of the requesting party and the rationale behind the different criteria. As for the necessity element, this Section identifies four main issues from the cases: first, the timing criterion of urgency; second, the impact of procedural rights on urgency; third, the impact of the change of circumstances on urgency; and fourth, the relationship between urgency and necessity. Section 4 explores the relationship between the categories of provisional measures and the conditions for granting them. Section 5 discusses the relationship between the categories of provisional measures and the requirements for granting them.