PCA Case No. 2020-21
In the matter of an arbitration under the Arbitration Rules of the United Nations
Commission on International Trade Law 1976
and
The Agreement between the Government of the Republic of India and the Republic of
Mozambique for the Reciprocal Promotion and Protection of Investment dated
19 February 2009
-between-
PATEL ENGINEERING LIMITED
(INDIA)
Claimant
-and-
THE REPUBLIC OF MOZAMBIQUE
Respondent
PROCEDURAL ORDER NO. 6
Decision on Respondent's Request for
Suspension
THE ARBITRAL TRIBUNAL
Guido Santiago Tawil (Arbitrator)
Hugo Perezcano Díaz (Arbitrator)
Juan Fernández-Armesto (Presiding Arbitrator)
REGISTRY
Permanent Court of Arbitration
ADMINISTRATIVE SECRETARY
Sofia de Sampaio Jalles
30 November 2022
[Page 2]
1. This arbitration arises between Patel Engineering Limited [“PEL” or “Claimant”]
and The Republic of Mozambique [“Mozambique” or “Respondent”] under the
Agreement between the Government of the Republic of India and Mozambique for
the Reciprocal Promotion and Protection of Investment dated 19 February 2009 [the
"BIT"]. Hereinafter, Claimant and Respondent shall be jointly referred to as the
"Parties".
2. There is a parallel proceeding No. 25334/JPA pending before an arbitral tribunal
[the "ICC Tribunal"] constituted under the Arbitration Rules of the International
Court of Arbitration of the International Chamber of Commerce [the “ICC Rules”],
brought by Mozambique and the Ministry of Transport and Communications
["MTC"] against PEL [the “ICC Arbitration"].
3. On 16 February 2022 the ICC Tribunal issued a partial award on jurisdiction [“ICC
Partial Award”], deciding, inter alia, that¹:
"The Tribunal lacks jurisdiction to decide on the Treaty Claims as
circumscribed in Section A.V."
4. This decision was accompanied by a separate opinion of co-arbitrator Mr. Stephen
Anway ["Anway Separate Opinion”], as follows²:
"In sum, I agree with the dispositif of the Partial Award on Jurisdiction to
(i) dismiss Claimants' Treaty Claims, and (ii) deny Claimants' application to
enjoin Patel in the UNCITRAL Arbitration. I write separately to make clear
my view that it should not be presumed that this Tribunal has the power to
police a party's conduct in a different arbitration before a different tribunal or
that, if such a power were available to us, it would be appropriate to exercise
in this case."
5. On 24 November 2022 the ICC Tribunal issued a procedural order enjoining PEL
[“ICC Injunction"]³:
"[...] from pursuing the determination of any matters in dispute between the
Parties arising out of the MOI in any other forum, even if only accessorily for
the purpose of the adjudication of Treaty Claims, until this Arbitral Tribunal
has taken its decision on those matters."
6. On 24 November 2022 Mozambique transmitted the ICC Injunction to the Tribunal,
together with Mozambique's application for an emergency order [“Third Stay
Application"]⁴:
¹ ICC Partial Award (Doc. R-92), para. 154(a).
² Anway Separate Opinion (Doc. R-93), para. 8.
³ ICC Tribunal's Procedural Order No. 14 dated 24 November 2022 [“PO 14”], para. 101, as amended by
the ICC Tribunal's corrigendum dated 25 November 2022 [“Corrigendum"], attached as Annexes I and II.
⁴ Communication R 61.
[Page 3]
"[...] confirming these UNCITRAL arbitration proceedings are suspended, in
their entirety, until the ICC [Tribunal] issues a final award."
7. On that same day, PEL sent the dissenting opinion of the ICC Tribunal co-arbitrator
Mr. Anway ["Anway Dissenting Opinion”], who found that⁵:
"Today the Majority silences a party before a different, public international
law tribunal empowered under a different arbitration agreement. In effect, the
Majority's Order deprives that public international tribunal of even hearing
that party's submissions. That is a breathtaking proposition.
The silencing of a party—particularly in a proceeding over which the tribunal
issuing the order has no jurisdiction—should concern not only every
stakeholder in the ISDS system, but every party concerned with the rule of
law. One tribunal's attempt to silence a party before another tribunal, when
the claims are brought under different legal instruments, inexorably leads to
due process concerns.
It is not for Mozambique or for the Majority to determine what arguments PEL
can and cannot raise before the Treaty Tribunal. For all of the reasons
discussed above, I conclude that this Contract Tribunal should simply decide
the claims before us, and the Treaty Tribunal should simply decide the claims
before it—without interfering with each other's arbitral proceedings.
I dissent."
8. On Friday, 25 November 2022, the Tribunal took note of the ICC Injunction, the
Third Stay Application and the Anway Dissenting Opinion, and decided that⁶:
"The hearing is scheduled to commence next Monday morning. Participants
are travelling. Therefore, the Tribunal confirms that the hearing will take
place. This procedural incident shall be discussed preliminarily first thing on
Monday morning. The Parties should be prepared for the full hearing to unfold
as scheduled."
9. On the first day of the evidentiary hearing [“Hearing”], the Parties presented their
comments on the effect of the ICC Injunction and the Third Stay Application. After
deliberating, the Tribunal decided to proceed with the Hearing and announced that
it would issue a procedural decision with its reasoning.
10. After carefully analyzing the Parties' respective submissions, the Tribunal hereby
issues the following procedural order with its decision on Mozambique's Third Stay
Application:
⁵ Anway Dissenting Opinion, paras. 88-91, attached as Annex III.
⁶ Communication A 55.
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11. The Tribunal will briefly summarize the Parties' positions (1. and 2.) before
proceeding to its decision (3.).
12. Respondent presented three main points regarding the ICC Injunction.
13. First, Respondent considers that the ICC Injunction binds not only PEL, but also
the Tribunal. Respondent cites to the ICC Rules reaffirming the binding nature of
the ICC Tribunal's decisions on the Parties⁷. Respondent further cites to an ICSID
decision concerning the res judicata effect of the ICC's decisions “in the
international sphere”⁸. Respondent notes that the ICC Tribunal's decisions are also
binding under Art. 1075 of the Dutch Civil Code, respecting Art. 2 of the New York
Convention⁹.
14. Considering the above, Respondent invites the Tribunal to “immediately suspend
this arbitration” considering the ICC Tribunal's Partial Award and Injunction, and
to wait for the ICC Tribunal's final award¹⁰. Respondent finds that only by
suspending this arbitration would the Tribunal be "providing [the ICC Tribunal] the
proper amount of deference”¹¹, afford international comity¹², and respect its "sister"
ICC Tribunal's lawful decisions¹³.
15. Moreover, Respondent warns that proceeding otherwise would “injure
Mozambique's rights to have the underlying contractual disputes decided” in the
ICC Arbitration, putting Mozambique “in an untenable position”¹⁴. Respondent
submits that to further address the merits of the present arbitration at the Hearing
would be to disrespect the ICC Injunction.
16. Second, Respondent points to the ICC Partial Award, which found that “the ICC
has exclusive jurisdiction to determine any matters in dispute between the parties
arising out of the MOI”, as confirmed by the connected ICC Injunction and as
agreed by PEL in the Memorandum of Interest's [“MOI”] arbitration clause¹⁵.
Respondent emphasizes that the ICC Partial Award is undoubtedly binding
pursuant to the ICC Rules¹⁶.
17. Third, Respondent submits that it is validly entitled to have this arbitration
suspended. Respondent indicates that PEL itself admitted that this Tribunal will
have to decide on numerous contractual matters in assessing the BIT claims, leaving
⁷ HT, Day 1, p. 25, 1. 24 - p. 26, 1. 19, citing to Doc. R-94.
⁸ HT, Day 1, p. 26, 1. 20 -p. 27, 1. 1, citing to Doc. RLA-160, para. 39.
⁹ HT, Day 1, p. 27, ll. 2-13.
¹⁰ HT, Day 1, p. 9, ll. 5-16.
¹¹ HT, Day 1, p. 10, ll. 7-11.
¹² HT, Day 1, p. 27, ll. 21-23.
¹³ HT, Day 1, p. 27, ll. 14-20.
¹⁴ HT, Day 1, p. 10, ll. 17-22.
¹⁵ HT, Day 1, p. 11, 1. 1 - p. 12, 1. 10, citing to ICC Injunction, para. 65.
¹⁶ HT, Day 1, p. 14, ll. 15-22.
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the ICC Tribunal with “nothing”. This prima facie breaches PEL's obligations
under the MOI's arbitration agreement, which confers the ICC Tribunal exclusive
jurisdiction over the MOI claims¹⁷.
18. Claimant's position with respect to the ICC Injunction is also threefold.
19. First, PEL submits that the ICC Injunction contradicts the ICC Tribunal's own
Partial Award¹⁸. Claimant denies that the ICC Partial Award has the effect of
preventing PEL from pursuing the BIT claims in the present arbitration¹⁹. The ICC
Tribunal itself found that any MOI contractual obligations are “merely accessory
and preliminary questions for determining the [BIT Claims]” and any consequent
remedies under international law²⁰.
20. Claimant further submits that the ICC Injunction does not prevent PEL from
participating in the Hearing. The ICC Tribunal itself rejected Mozambique's
request to that effect, saying it would go “beyond the bounds of” the ICC Tribunal's
mandate²¹. The ICC Injunction is an in personam order against PEL which does not
specifically affect this arbitration²².
21. Second, Claimant considers that the ICC Tribunal's final award is not binding on
the present Tribunal anyway, so there is no point in waiting for it. PEL further
explains that in the ICC Arbitration Mozambique is only seeking declaratory relief,
and is not invoking the protection of its legal rights. Mozambique's remaining
claims for putative and nominal damages are tortious, and PEL considers them to
be outside the ICC Tribunal's jurisdiction and in any event time barred²³. This is
what PEL referred to when it was cited by the ICC Tribunal as saying that allowing
for this Tribunal to issue its award before the ICC Tribunal would leave the latter
with "nothing" to decide²⁴. Mozambique's ICC Arbitration case has no substance.
22. Third, PEL submits that the ICC Injunction violates its due process rights in an
"incongruous and unprecedented” way, both under the BIT and Article 10.36 of the
Dutch Arbitration Act²⁵. The Injunction seeks to silent Claimant, keep PEL from
exercising its right to present its case before a different tribunal empowered by a
different legal instrument, and to strip this Tribunal of its kompetenz-kompetenz²⁶.
PEL is in full agreement with the Anway Dissenting Opinion, which also confirms
that “this type of injunction has never been issued before and directly contravenes
20 years of settled jurisprudence”, exceeding the ICC Tribunal's mandate²⁷.
¹⁷ HT, Day 1, p. 21, 1. 15 - p. 22, 1. 3.
¹⁸ HT, Day 1, p. 33, ll. 21-22.
¹⁹ HT, Day 1, p. 33, ll. 6-10, referring to the Anway Dissenting Opinion, paras. 13 et seq.
²⁰ HT, Day 1, p. 33, ll. 11-20, referring to ICC Partial Award, para. 139.
²¹ HT, Day 1, p. 32, ll. 5-13, referring to ICC Injunction, para. 97.
²² HT, Day 1, p. 32, ll. 21-24.
²³ HT, Day 1, p. 35, ll. 1-22.
²⁴ HT, Day 1, p. 34, ll. 21-25, and p. 35, 1. 23 - p. 36, 1. 4.
²⁵ HT, Day 1, p. 38, ll. 14-23.
²⁶ HT, Day 1, p. 36, 1. 23 - p. 37, 1. 10.
²⁷ HT, Day 1, p. 36, 1. 23 - p. 37, 1. 10.
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23. Therefore, PEL has asked²⁸:
- That the Tribunal confirm its previous orders (Procedural Order No. 3,
Procedural Order No. 4 and A 39); and- To continue the Hearing as scheduled, provided that the Tribunal, when
establishing its jurisdiction, does not feel fettered by the ICC Injunction.
24. The Tribunal is called upon to decide on Mozambique's Third Stay Application.
25. As the name indicates, this is not the first time that this Tribunal is addressing an
application by Mozambique to suspend the present proceedings. As Mozambique
itself has recognized, it "[...] has consistently insisted that the ICC maintains
exclusive jurisdiction”²⁹ – and it has also repeatedly requested that this Tribunal
suspend these UNCITRAL proceedings.
26. PEL, in turn, asks the Tribunal to confirm its previous decisions and to clarify its
understanding of the effect of the ICC Injunction on the Tribunal's jurisdiction.
27. Before making its decision (B.), the Tribunal will recall some procedural elements
relevant to Mozambique's Third Stay Application (A.).
28. On 20 March 2020 PEL filed a Notice of Arbitration against Mozambique, under
the UNCITRAL Rules and pursuant to the India-Mozambique BIT, asking for³⁰:
"(a) a declaration that the Respondent has violated its obligations under
Article 3 and/or Article 4 and/or Article 5 of the Treaty and/or to its
obligations under customary international law;(b) an order that the Respondent make full reparation to the Claimant for the
loss of its investment arising from the Respondent's violations of the Treaty
and/or its obligations under customary international law, such reparation
being in the form of monetary compensation in an amount to be determined
by the Tribunal;(c) an order that the Respondent pay the costs of this arbitration, including the
costs of the Tribunal and the legal costs and expenses of the Claimant
including, without limitation, the fees of legal counsel, experts, and fees
associated with third party funding;(d) an order that the Respondent pay interest on any compensation awarded
and/or on any legal costs and expenses awarded, in each case at such rate and
for such period or periods as the Tribunal shall consider just and appropriate;
and
²⁸ HT, Day 1, p. 39, 1. 11 - p. 41, 1. 8, 20-24.
²⁹ Communication R 61.
³⁰ Notice of Arbitration, para. 110.
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(e) such further or alternative relief as the Tribunal shall consider just and
appropriate."
29. Two months later, on 20 May 2020, Mozambique (and the MTC) filed a Request
for Arbitration with the ICC against PEL under the arbitration agreement contained
in the MOI³¹, a Request which resulted in the ICC Arbitration. Mozambique (and
the MTC) sought declaratory relief with regard to the MOI, and also asked for an
award³²:
"280.7 enjoining PEL from proceeding with any other legal proceeding, court
action and/or arbitration against Mozambique and/or the MTC that refers or
relates to any dispute arising out of the MOI, including the international
arbitration initiated by PEL pursuant to the India-MZ BIT. In the alterative,
the request[ed] injunction should be granted and remain in place until after
this Tribunal finally adjudicates the issues otherwise within its jurisdiction;"
30. Both the UNCITRAL and the ICC Arbitrations are proceeding in parallel.
31. On 4 August 2020 the Parties and this Tribunal signed the Terms of Appointment,
in which Mozambique manifested its understanding that³³:
“This dispute must be resolved in the ICC [A]rbitration which can also address
any Treaty claims or the ICC [A]rbitration must be concluded first because it
pertains to the existence of underlying rights. Notwithstanding the Terms of
Appointment, Respondent disputes that the arbitration clause in the Treaty
governs this dispute, and by signing these Terms does not waive this
contention."
32. On 14 October 2020, after extensive consultation with the Parties, the Tribunal
issued Procedural Order No. 1 and the procedural timetable.
33. On 14 December 2020, the Tribunal issued Procedural Order No. 3, deciding to
reject Mozambique's request for bifurcation. The Tribunal considered
Mozambique's Jurisdictional Objections and concluded that they were best
addressed together with the merits. One of these Objections was that PEL had
breached the MOI arbitration agreement by instituting the present arbitration.
34. On 10 June 2021, PEL filed an application with the ICC Tribunal to stay the ICC
Arbitration until a final award is made in the present arbitration³⁴. The ICC Tribunal
scheduled a stay application hearing³⁵. PEL argued that Mozambique requests for
relief from the ICC Tribunal would be tantamount to it seizing the jurisdiction of
this Tribunal. Mozambique reaffirmed its position that the ICC Tribunal has
exclusive jurisdiction to adjudicate all claims, including BIT claims³⁶.
³¹ Doc. R-46.
³² Doc. R-46, para. 280.7.
³³ Terms of Appointment, para. 58 (Summary of Mozambique's claims and relief sought).
³⁴ Communication C 17.
³⁵ Communication A 25.
³⁶ Communication R 15.
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35. On 16 August 2021 the ICC Tribunal issued its Procedural Order no. 5 [“ICC
PO 5"], deciding, inter alia, that:
- It is "not convinced that the cause of action of this [ICC A]rbitration is
identical to the cause of action of the UNCITRAL Arbitration”³⁷;- It is "not satisfied that 'arbitral efficiency' warrants a stay in [the ICC
Arbitration] and/or of any ‘exceptional circumstances' that could effectively
outweigh [Mozambique's] prejudice in not having this issue resolved timely
before a tribunal whose jurisdiction to hear the [Mozambique's] contract
claims has been accepted by [PEL]”³⁸;- "PEL has not shown the basis for its assumption that [the ICC Tribunal]
should be bound by the decision to be rendered in the UNCITRAL
Arbitration"³⁹.- It was "not satisfied that these circumstances would justify staying this
proceeding where there is a prima facie valid arbitration agreement invoked
by [Mozambique] as the basis for [the ICC] Tribunal's jurisdiction, merely
upon the fact that the UNCITRAL Tribunal was constituted first”⁴⁰.
36. On 1 October 2021 the Tribunal received Mozambique's “Application for a stay
and modification of the procedural timetable (and request for interim suspension of
briefing and all deadlines pending the decision on this application)” [“First Stay
Application"]. Mozambique submitted that⁴¹:
- The ICC Tribunal had refused to stay the ICC Arbitration and had held that it
had jurisdiction over the Parties' local law contractual dispute under the MOI;- PEL's Treaty claims are dependent on the validity of the MOI and the
existence of contractual rights under the MΟΙ – issues that are pending
decision in the ICC Arbitration; and- The ICC Tribunal may also determine PEL's Treaty claims in the ICC
Arbitration and, thus, the present arbitration must be stayed until the ICC
Tribunal issues a final award.
37. The Tribunal granted PEL the opportunity to respond⁴².
38. On 7 October 2021 the Tribunal rejected Mozambique's request for an interim
suspension of all proceedings pending the decision on the First Stay Application,
finding that there was no⁴³:
³⁷ Doc. R-59, para. 16.
³⁸ Doc. R-59, para. 17.
³⁹ Doc. R-59, para. 18.
⁴⁰ Doc. R-59, para. 20.
⁴¹ See Procedural Order No. 4, Section 1 – Position of Mozambique.
⁴² Communication A 29.
⁴³ Communication A 30.
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"[...] good cause to amend the procedural timetable, since the Tribunal is
simply expecting Claimant's response to Respondent's Application, which
does not impact on Respondent's preparation of its Rejoinder on the Merits
and Reply on Jurisdiction."
39. Thereafter, PEL filed a response to the First Stay Application on 15 October 2021.
On 20 October 2021 Respondent submitted a reply in support of its First Stay
Application, and on 25 October 2021 Claimant submitted a rejoinder.
40. On 3 November 2021, the Tribunal issued Procedural Order No. 4 with its decision
on the First Stay Application, in which it found no good cause to stay the present
proceedings. The Tribunal noted that it shared⁴⁴:
"[...] the view of the ICC Tribunal [in ICC PO 5] that despite the overlap
between the two proceedings, a stay of these proceedings pending a decision
by another tribunal, constituted on the basis of a different agreement, is not
justified. In the Tribunal's view, the respective causes of action appear to be
quite different, considering not only that one proceeding is based on the Treaty
and the other one on the MOI, but also that, although the same parties are
involved in both arbitrations, their corresponding roles as claimant and
respondent are reversed."
41. On 9 February 2022 the ICC Tribunal issued its Partial Award, finding that its
jurisdiction excludes PEL's BIT claims and only includes contractual claims related
to the MOI⁴⁵. Particularly, the ICC Tribunal found that⁴⁶:
"[...] it can, and should, interpret the Arbitration Agreement in a manner that
harmoniously respects the jurisdictional realms of both international tribunals,
the jurisdiction of which is, respectively based on two separate legal
instruments (the MOI and the Treaty) to which the Republic of Mozambique
has prima facie consented. The Tribunal prefers this approach to one that
would expand the jurisdiction of this Tribunal to disputes that are not properly
'arising out of the MOI, potentially at the exclusion of, or in collision with,
the jurisdiction of the PCA Tribunal.” [Emphasis added]
42. On 7 March 2022 Mozambique reiterated its request for the present Tribunal to
suspend these proceedings until the ICC Tribunal issues its final award⁴⁷ [“Second
Stay Application”]. After giving PEL an opportunity to comment and considering
both Parties' positions, the Tribunal dismissed Mozambique's Second Stay
Application. The Tribunal reaffirmed its decision on the First Stay Application,
after finding that there had not been a change of circumstances⁴⁸.
43. Meanwhile, on 18 May 2022 Mozambique again turned to the ICC Tribunal filing
an “Application pursuant to Article 28(1) (Renewing) Request to Enjoin [PEL]”
["Request to Enjoin”]. Following several exchanges between the Parties, on
⁴⁴ Procedural Order No. 4, para. 57, citing to Doc. R-59.
⁴⁵ ICC Partial Award (Doc. R-92), paras. 138-142.
⁴⁶ ICC Partial Award (Doc. R-92), para. 142.
⁴⁷ Communication R 39
⁴⁸ Communication A 39, paras. 15-16 et seq.
[Page 10]
6 September 2022 the ICC Tribunal held a hearing to address Mozambique's
Request to Enjoin⁴⁹.
44. On 24 November 2022 the ICC Tribunal issued the ICC Injunction. Based on this,
Mozambique made its Third Stay Application to the Tribunal⁵⁰.
45. The Tribunal recalls the decision it adopted at the Hearing, after hearing the Parties
and deliberating⁵¹:
"There is a basic distinction in the type of disputes which can be resolved by
arbitration. There can be international law disputes which derive from a treaty
breach and there can be contractual disputes which derive from breaches of
contract, and as you know, and as we have said in our previous decisions, this
is an international law tribunal constituted under the BIT between India and
Mozambique. We are an international law tribunal, and the scope of our
jurisdiction is restricted to international law disputes which imply a breach of
the obligations assumed by the Republic of Mozambique under its BIT.The second point is that we have, as an international law tribunal constituted
under the BIT and the UNCITRAL rules, [...] the right and the duty to define
our own jurisdiction. This is a basic principle of international arbitration. And
to make it very clear, this principle is unaffected, is unfettered by any order
issued by any other arbitration tribunal.The third point is that we reiterate what we said in our PO3 and PO4 in our
previous decisions. There is nothing there which we would like to change at
this stage.Fourth, we direct that the hearing should proceed as scheduled if Claimant
wishes the hearing to proceed."
46. The Tribunal remains convinced that the ICC and UNCITRAL Arbitrations are
based on different agreements (i.e., the MOI and the BIT, respectively) and concern
different causes of action. Moreover, although the same parties are involved, they
appear in different roles (i.e., each of them is the claimant in one and the respondent
in the other)⁵².
47. The Tribunal has read the ICC Injunction alongside the ICC Tribunal's previous
reasoned decisions, including the ICC Partial Award. The ICC Tribunal has agreed
that, despite the overlap which the Parties must manage, the two proceedings
remain separate from each other; and, most importantly, that neither Tribunal can
interfere with the other's mandate⁵³:
"[...] the dispute about whether the Republic of Mozambique breached the
Treaty and whether any damages are owed under the Treaty is of a different
⁴⁹ ICC Procedural Order No. 11.
⁵⁰ Communication R 61.
⁵¹ HT, Day 1, p. 42, 1. 17 – р. 43, 1. 23.
⁵² See Procedural Order No. 4, para. 57.
⁵³ ICC Partial Award (Doc. R-92), paras. 139 and 141.
[Page 11]
nature. Not only are the claims brought on such basis clearly arising out of the
Treaty; but also the dispute over these issues is arising out of that Treaty, and
not properly out of the MOI. Any obligations arising out of the MOI – and
thus any dispute over such obligations – appear to be, from that perspective,
merely accessory and preliminary questions for determining the dispute
between the Parties over the alleged violations of the Respondent's rights
under the Treaty and thus the availability of remedies provided by that Treaty
under international law. Taking aside umbrella clauses, any findings of
violations of such public international law would not, in themselves, have any
relevance for the existence, validity and enforceability about any obligations
under the MOI. In that sense, the dispute between the Parties over the alleged
obligations arising out of the Treaty could possibly be considered as a dispute
arising 'in connection' or 'relating to' the MOI, but not as 'arising out of the
ΜΟΙ. [...]In the Tribunal's view, the PCA Tribunal alone can decide on its own
jurisdiction. It is equally clear (and undisputed) that the Parties have agreed
that they have the right and the obligation to have 'any dispute arising out of
this memorandum' under Mozambican law resolved in ICC arbitration.
Beyond this, there is no clear language in the Arbitration Agreement in the
MOI that suggests that [PEL] has also agreed to refrain from proceeding
before the PCA Tribunal in favour of this Tribunal for any dispute arising out
of the Treaty, when that Treaty provides for its own dispute settlement
mechanism, the scope of which is not for this Tribunal to decide upon."
[Emphasis added]
48. In the ICC Injunction, the ICC Tribunal confirmed this understanding and clarified
that it does not intend to stop the present Hearing or proceedings⁵⁴:
"It is clear from the above, and in particular from [PEL]'s own persistent
affirmation that determination of its claims by the PCA Tribunal would leave
this ICC Tribunal with ‘really nothing' to decide, that a provisional measure
is warranted. It is also clear that the measure needs to be limited to matters in
dispute arising out of the MOI. [Mozambique]'s request for [PEL] to be
‘enjoin[ed ...] from proceeding with the subject UNCITRAL arbitration until
after a final award is issued by this ICC Tribunal in this ICC arbitration' and
to be ‘ordered to cease and desist from taking any further actions, and
participating in a hearing or in any other manner, in the UNCITRAL
arbitration during the pendency of said Interim Measures' goes beyond these
bounds. [...][Mozambique and MTC] have insisted that any order short of enjoining [PEL]
entirely from taking any action, including participating in the hearing before
the PCA Tribunal would be ineffective. However, the mutual respect between
tribunals (as invoked also in the Partial award) and comity requires this
Tribunal not to interfere unduly with the UNCITRAL Arbitration. It is for
[PEL] to do what is necessary to bring itself back in line with its obligations
resulting from the Arbitration Agreement in the MOI. And it is for the PCA
Tribunal to decide what the consequences of [PEL]'s choices are for its
own proceedings." [Emphasis added]
⁵⁴ ICC Injunction, paras. 97 and 99.
[Page 12]
49. Thus, granting Mozambique's Third Stay Application would not only contradict
this Tribunal's previous decisions on the same issue – which the Tribunal entirely
confirms, as there has not been a change in circumstances – but also the ICC
Tribunal's intentions.
50. Conferring the ICC Injunction any other interpretation, including one which would
have the effect of challenging the Tribunal's kompetenz-kompetenz, would run
contrary to the ICC Tribunal's ratio and to reason.
* * *
51. In view of the above, the Tribunal:
- Rejects Mozambique's Third Stay Application,
- Declares that its right to establish its own jurisdiction is unfettered by the ICC
Injunction; and- Orders that the Hearing and the arbitration proceed as scheduled.
Place of Arbitration: The Hague, Netherlands
Date: 30 November 2022
|
Signature Guido Santiago Tawil |
Signature Hugo Perezcano Díaz |
|
Signature Juan Fernández-Armesto |
|
Annexes: - ICC Tribunal's Procedural Order No. 14 dated 24 November 2022 (I);
- ICC Tribunal's corrigendum dated 25 November 2022 (II);
- Dissenting Opinion of Arbitrator Stephen Anway dated 24 November
2022 (III).