In Cemex Caracas Investments BV v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/15), the tribunal considered an application under Article 47 of the ICSID Convention, which empowers the tribunal to grant provisional measures "to preserve the respective rights of either party". The claimant alleged that Venezuela had expropriated its investment in a Venezuelan cement company, CV. Vessels operated by CV had been transferred to a Mexican third party, S, to satisfy debt payments. Subsequently, however, the Venezuelan government obtained an arrest of the vessels, apparently in an attempt to unwind the transfer to S. The claimant argued that Venezuela's actions would:

It therefore sought a provisional order restraining Venezuela from continuing with the vessel arrests.

The tribunal rejected the application. Applying ICJ and ICSID jurisprudence, it held that provisional measures would only be granted upon proof of irreparable harm; that is, harm which could not be compensated by an award of damages. Here, the alleged increase of damages did not satisfy that criterion. Nor was there an inherent power to grant provisional measures on the basis of "aggravation". Although such measures had been granted in both ICJ and ICSID cases, they could only be granted as ancillary measures where Article 47 was satisfied.

The award confirms both the application of the "irreparable harm" test, and also that there is no jurisdiction outside Article 47 to grant measures on the basis of "aggravation". For further discussion of provisional measures in ICSID arbitration, see Practice note, Procedure in ICSID arbitration: Provisional measures.