Commentary: ICSID Tribunals and Injunctions by State Courts

Abstract

THERE ARE two questions before this ICSID Tribunal. The first is what to do about the injunction issued by the Abyssinian courts. This question I find to be the less controversial of the two. I believe that the ICSID Tribunal*s duty under the ICSID Convention is clear: it should affirm the exclusivity of the ICSID process and continue its case. The second question is what to do about the anticipated application by the foreign investor that the Tribunal issue an injunction against the continuation of the Abyssinian court proceedings. I find this issue more difficult to resolve. The Tribunal will have to search for the right balance between the need to protect its own jurisdiction and the need to respect the right, if there is one, of the state party to submit to its own courts issues not submitted to the ICSID Tribunal. I will discuss these questions from the point of view of the ICSID Convention and international law. The answer to the question of how to respond to the Abyssinian Supreme Court injunction can be found, I submit, in three provisions of the ICSID Convention and the ICSID Arbitration Rules. First, there is Article 26 of the ICSID Convention, rightly emphasized by the foreign investor's counsel in the argument just heard. Article 26 makes ICSID arbitration exclusive of any other remedy. Second, there is Article 41(2) of the ICSID Convention, which empowers the Tribunal to rule upon its own competence. If the state party wanted to contest the ICSID Tribunal's jurisdiction, its right and its obligation was to do so before this Tribunal itself. And third, there is Rule 39(5) of the ICSID Arbitration Rules, also rightly emphasized by the investor's counsel. Rule 39(5) permits recourse to national courts for provisional measures only if there is an agreement …