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The Peculiar Case of the ARA Libertad: Provisional Measures and Prejudice to the Arbitral Tribunal’s Final Result

When the Argentine training ship Libertad left the Ghanaian port of Tema on December 20, 2012, the Ghanaian High Court and the pending arbitral tribunal had effectively been overruled by provisional measures issued by the International Tribunal for the Law of the Sea (ITLOS). In a dispute over Argentine debt, the Libertad had been enjoined from leaving Tema by the Ghanaian courts. Argentina instituted arbitral proceedings and sought relief in the interim known as provisional measures – a move which eventually obviated the need for arbitration. Provisional measures, also known as interim measures, are generally considered necessary to protect the rights of both parties and to prevent recalcitrant parties or those acting in bad faith from taking actions to render arbitral awards unenforceable. Provisional measures are also designed to prevent prejudice to any final award issued by an arbitral tribunal. The Libertad case raises an interesting question, however: when the parties disagree about the very nature of the dispute, how effective are provisional measures in protecting party rights and preventing prejudice to the final result? Utilizing the example of the Libertad case, this article explores the finality of provisional measures and their potential to prejudice the final result of arbitral tribunals.