An ICSID tribunal has ordered Pakistan to provide regular updates on its plans and activities in relation to the development of a parcel of land. The parties' dispute arose from Pakistan's refusal to grant a mining lease over land known as Reko Diq. The claimant applied under Article 47 of the ICSID Convention for provisional orders restraining Pakistan from developing Reko Diq pending the final determination of its claims. The evidence showed that Pakistan's current intention was to carry out mining activity only on one part of Reko Diq (H4).

The tribunal refused to grant provisional measures. For the purposes of the application, it was willing to assume that the claimant would be able to establish a legal right to carry out mining activities in Reko Diq. It also accepted that the claimant had established the necessary urgency, at least in relation to H4. However, there was no evidence that the development of H4 would cause irreparable harm to the claimant. Therefore, applying well-established principles (as to which see Practice note, ICSID arbitration: a step-by-step guide: Provisional measures for the preservation of rights), the application was refused. However, the tribunal's order stated expressly that it remained seised of the application, and further required Pakistan to provide regular updates as to its plans and activities in respect of H4, and to immediately inform the tribunal and claimant of any change in its present intention to limit development to H4. Costs were reserved.

The tribunal's order provides a good example of a flexible and creative approach to applications under Article 47. Although the circumstances did not currently justify the grant of provisional measures, the ground is prepared for a further application should those circumstances change, as to which the respondent is required to disclose information promptly.

Case: Tethyan Copper Company Pty Limited v Islamic Republic of Pakistan (ICSID Case No. ARB/12/1).