Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

INTRODUCTION

1. The Tribunal recalls its previous summary of the parties' positions on the suspension of these proceedings in its letter of 9 April 2020. In summary, the parties were agreed that these proceedings should be suspended due to the difficulties arising from the COVID-19 pandemic, but disagreed as to the terms of that suspension.

2. In order to resolve this disagreement, the Tribunal, inter alia, invited the Claimants to confirm, by 13 April 2020, whether or not they intended to pursue their request for provisional measures before any suspension would take effect and, if so, to explain the urgency of the measures requested. Separately, the Tribunal invited the parties to confirm, by 10 April 2020, whether or not they agreed to extend the deadline for holding the first session for 60 days.

3. In their correspondence dated 10 April 2020, the Claimants retracted their position that a suspension of these proceedings was necessary as a result of the COVID-19 pandemic. They also refused to extend the deadline for the first session. The Respondent, in its correspondence of 10 April 2020, confirmed its agreement to extend the deadline for the first session.

4. As there was no agreement between the parties on the extension of the deadline in ICSID Rule 13(1) for holding the first session, the Tribunal duly held the first session without the parties on the final day of the period specified in Rule 13(1); viz., on 13 April 2020. (The Tribunal records that the Respondent sent a further letter on 13 April 2020 calling for the Tribunal to extend the deadline for the first session in view of the lack of agreement of the parties to do the same. Without deciding whether or not the Tribunal has such discretion, the Tribunal notes that the Tribunal received the Respondent's letter after it had already held the first session by telephone conference without the parties as it had foreseen in its letter of 9 April 2020. In any case, the Tribunal will convene a further session with the parties to discuss, inter alia, drafts of the first procedural order and the schedule for this arbitration at an appropriate juncture in due course.)

5. On 13 April 2020, the Claimants filed a document entitled "Request for Provisional Measures". The Tribunal does not understand this to be the Claimants' definitive request as it is not supported by evidence (the Tribunal indicated that this was a requirement in its letter of 9 April 2020). The Tribunal, moreover, specifically stated in its letter of 9 April 2020 that: "For the avoidance of doubt, the Claimants would not be expected to file their detailed request for provisional measures on 13 April but simply explain the urgency of the request so that the Tribunal can make an informed decision about whether or not to suspend the proceedings with immediate effect." The Claimants did, in any case, comply with the Tribunal's instruction to provide an explanation of the urgency of the request for provisional measures, which is set out at paragraphs 22 to 32 of their document.

6. On 16 April 2020, the Respondent, as requested by the Tribunal in its letter of 9 April 2020, filed its observations on the Claimants' submission on the urgency of its request for provisional measures as well as its submission in support of the immediate suspension of the proceedings.

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