Procedural Background

This document is a Decision on the Application for Provisional Measures issued on December 9, 2009, by the arbitral tribunal in the ICSID arbitration between Millicom International Operations B.V. and Sentel GSM SA (the Claimants) and the Republic of Senegal (the Respondent). The dispute arose from the Respondent's alleged termination of a 1998 mobile telephony concession granted to Sentel. On November 11, 2008, the Respondent initiated proceedings before the Dakar Regional Court against Sentel and its ultimate parent company, Millicom International Cellular S.A. (MIC), seeking to enjoin Sentel's operations and claim damages. Concurrently, the Claimants filed a Request for Arbitration with ICSID. On August 24, 2009, the Claimants submitted an application for provisional measures, requesting the Tribunal to order the Respondent to discontinue or stay the local court proceedings pending the outcome of the ICSID arbitration.

Parties' Positions

The Claimants argued that provisional measures were necessary to protect their right to exclusive ICSID jurisdiction under Article 26 of the ICSID Convention and to prevent the aggravation of the dispute. They asserted that the Tribunal possessed prima facie jurisdiction based on the registration of the dispute by the ICSID Secretariat, Article 11 of the Concession, and Article 10 of the Netherlands-Senegal Bilateral Investment Treaty (BIT). Conversely, the Respondent contended that the Tribunal lacked prima facie jurisdiction, arguing that the Concession did not contain a binding arbitration clause and that the BIT was inapplicable to the Claimants. The Respondent further maintained that the local proceedings involved different parties and causes of action, and that a domestic judgment would not cause irreparable harm to the Claimants.

Tribunal's Analysis

The Tribunal evaluated the application under Article 47 of the ICSID Convention and Rule 39 of the ICSID Arbitration Rules, applying a four-prong test: (i) prima facie jurisdiction; (ii) preservation of rights; (iii) necessity; and (iv) urgency. On the first prong, the Tribunal emphasized that while it need not conduct a deep merits analysis at this stage, the applicant bears the burden of demonstrating that jurisdiction exists 'at first sight.' The Tribunal rejected the argument that mere registration by the ICSID Secretariat established prima facie jurisdiction, noting that the registration process is summary in nature. However, it found that Article 11 of the Concession, which explicitly referenced ICSID arbitration, provided a sufficient basis for prima facie jurisdiction over Sentel. The Tribunal extended this finding by analogy to Millicom, noting its direct interest in Sentel's capital and the interconnected nature of the requested relief.

Regarding the preservation of rights, the Tribunal determined that both the ICSID arbitration and the local proceedings fundamentally concerned the same core issue—the validity and continuation of the Concession. It affirmed that provisional measures may protect procedural rights, including the right to maintain the status quo and prevent the aggravation of the dispute, which are self-standing rights under international arbitration practice. The Tribunal found the measures necessary and urgent, observing that parallel proceedings would inevitably generate complications, misunderstandings, and potential conflicts at the enforcement stage. Because the Dakar Regional Court was poised to issue a judgment before the conclusion of the arbitration, immediate intervention was required to preserve the practical efficacy of the ICSID proceedings.

Decision

In its operative directions, the Tribunal partially granted the Claimants' application. Recognizing its lack of authority to directly enjoin a domestic court, the Tribunal issued a formal recommendation that the Respondent jointly apply with Sentel to the Dakar Regional Court to suspend the pending local proceedings. The Tribunal ordered that this provisional measure remain in effect until it issued a definitive ruling on its own jurisdiction. To expedite the resolution of the jurisdictional uncertainties, the Tribunal formally decided to bifurcate the proceedings, ordering that the Respondent's jurisdictional objections be heard and decided as a preliminary matter.