Reproduced from www.worldbank.org/icsid with permission of ICSID.
I. INTRODUCTION AND PARTIES
1. The present dispute has been submitted to arbitration under the auspices of the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Sierra Leone for the Promotion and Protection of Investments which entered into force on 20 November 2001 (the "UK - Sierra Leone BIT" or the "BIT") and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").
2. The Claimant is Gerald International Limited ("Gerald" or the "Claimant"), a company incorporated under the laws of England and Wales. The Claimant is represented in this proceeding by Mr. John Savage QC, Mr. Kenneth R. Fleuriet, Mr. Giorgio Francesco Mandelli, Mr. Charles B. Rosenberg, Ms. Ema Vidak Gojkovic and Mr. Julian AG Ranetunge, of the law firm King & Spalding (London and Washington D.C. offices).
3. The Respondent is the Republic of Sierra Leone ("Sierra Leone" or the "Respondent"). The Respondent is represented in this proceeding by Mr. Osman Kanu, Legal Adviser within the Government of Sierra Leone,1 and Mr. Charlie Lightfoot, Mr. Jason Yardley, Ms. Mélida Hodgson, Ms. Rachael Cresswell, Ms. Patricia Cruz Trabanino, Mr. Sebastian Canon Urrutia and Ms. Elizabeth Edmondson, of the law firm Jenner & Block (London, New York, and Washington D.C. offices).
4. The Claimant and the Respondent are collectively referred to as the "Parties."
5. This order sets out the Tribunal's analysis of and decision on the Claimant's Request for Provisional Measures submitted on 19 May 2020 and modified in subsequent submissions.
III. BACKGROUND ON THE CLAIMANT'S REQUEST
54. To the extent required for the Tribunal to address the Claimant's Applications for provisional measures, and for this limited purpose only, Section A below briefly summarizes the factual background to the Parties' underlying dispute in this Arbitration as pleaded in the Request for Arbitration and in the Parties' subsequent submissions on the Claimant's Request. This summary does not constitute any finding by the Tribunal on any facts disputed by the Parties. Section B provides a short overview of the factual background specific to the Claimant's Request for Provisional Measures. This overview is not intended to be an exhaustive description of all facts considered relevant by the Tribunal. Further factual material will be addressed in the context of the Tribunal's analysis below.
A. THE PARTIES' UNDERLYING DISPUTE
55. The dispute, as described in the Claimant's Request for Arbitration, relates to SL Mining Limited ("SL Mining"), a Sierra Leone company allegedly owned by Gerald, and its iron ore project at the Marampa mine, in Port Loko District, Sierra Leone (the "Marampa Project").
56. In short, Gerald contends that the Sierra Leone Government took a series of unlawful measures in order to coerce SL Mining into renegotiating the mining license agreement concluded between SL Mining and the Government of Sierra Leone for the operation of the Marampa Project. These measures included, among others, threats of suspension of SL Mining's mining duties and tax waivers agreed upon under the license agreement, and a temporary suspension of SL Mining's concession. According to the Request, the dispute escalated when Gerald and SL Mining served a Notice of Dispute under the UK - Sierra Leone BIT.3 Sierra Leone allegedly retaliated by launching police investigations against SL Mining's management, and by imposing an indefinite shipping prohibition on SL Mining that prevented SL Mining to export and sell Marampa ore.4
57. Due to this shipping prohibition, SL Mining faced a threat of having to place the Marampa mine into "care and maintenance" (meaning that the mining operations must be put on pause, hereby causing potentially serious economic consequences). SL Mining then initiated an ICC emergency arbitrator proceeding under the mining license agreement.5 The ICC-appointed emergency arbitrator issued a series of interim orders requesting Sierra Leone to, inter alia, lift the shipping prohibition and abide by the terms and conditions of the mining license agreement.6 According to Gerald, Sierra Leone refused to comply with the orders and instead cancelled SL Mining's license for the Marampa Project.7
58. An ICC Tribunal has since then been constituted and has confirmed the orders of the Emergency Arbitrator.8
59. The Claimant's Request for Arbitration relies upon several provisions of the UK - Sierra Leone BIT. According to the Claimant, Sierra Leone's alleged actions towards SL Mining and Gerald constitute breaches of the protections accorded to Gerald's investment under Article 2 (fair and equitable treatment), Article 3 (national treatment and most-favored- nation), and Article 5 (expropriation) of the BIT.9