156
pending a decision by the Arbitral Tribunal, that “Italy and India shall both suspend
all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might
jeopardize or prejudice the carrying out of any decision which the arbitral tribunal
may render” (para. 141, point 1).
In the second decision,
2
adopted unanimously, the Annex VII Arbitral Tribunal
on 29 April 2016 in the dispositif prescribes, inter alia, that “Italy and India shall
cooperate, including in proceedings before the Supreme Court of India, to achieve a
relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under
the authority of the Supreme Court of India, may return to Italy during the present
annex VII arbitration” (para. 132 a) and “… confirms Italy’s obligation to return
Sergeant Girone to India should the arbitral tribunal find that India has jurisdiction
over him in respect of the ‘Enrica Lexie’ incident” (para. 132 b).
In particular, in the second order, the Annex VII Arbitral Tribunal concludes to
be in presence of a new request from Italy for the prescription of provisional measures and rejects the thesis of India to be in presence of a request to modify or revise
the provisional measure prescribed by ITLOS, subject, as such, to the condition
foreseen in Art. 290(2) UNCLOS (change or ceasing of the conditions existing at
the time of the adoption of the previously prescribed provisional order).
3
Moreover it stated that “a showing of urgency in some form is inherent in provisional measures proceedings” and that “[g]enerally, urgency is linked to the criterion of preservation of the respective rights of the parties to the dispute in order to
avert a real and imminent risk of causing irreparable prejudice to the rights at issue,
pending the final decision on the merits pursuant to Article 290, paragraph 1, of the
Convention”, concluding that “[i]n this case, the link is particularly pronounced”
(para. 89).
4
Given that the Arbitral Tribunal “holds the view that its decision should seek to
give effect to the concept of considerations of humanity, while preserving the
respective rights of the Parties” (para. 105), the preservation of the rights of both
parties is assured for Italy “by alleviating Sergeant Girone’s bail conditions so as to
allow him to spend the time of his bail in Italy pending a final decision” in the case
(para. 107)
5
and for India by not affecting its legal position in relation to Sergeant
2 PCA, The Enrica Lexie Incident (Italy v. India), Order—Request for the Prescription of
Provisional Measures, 29 April 2016. Hereinafter, AT Order.
3 See AT Order, paras 72–76. Cf. Kumar Raha and Raju (2016), Papanicolopulu (2016), Schiano di
Pepe (2017), pp. 434–435; Virzo (2017).
4 See AT Order, paras 85–88 where, after noting that urgency is not expressly mentioned in Art.
290(1) UNCLOS, are listed quotations of international jurisprudence supporting the importance of
urgency in considering requests for provisional measures.
5 See AT Order, para. 107 that follows with such words: “Such a measure would significantly lessen
the hardship for Sergeant Girone resulting from India’s exercise of jurisdiction, without affecting
India’s legal position in relation to Sergeant Girone. As a result of the ITLOS Order of 24 August
2015, court proceedings are suspended, and new proceedings may not be initiated, so that there
would appear to be no legal interest in Sergeant Girone’s physical presence in India”.
A. Cannone
pending a decision by the Arbitral Tribunal, that “Italy and India shall both suspend
all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might
jeopardize or prejudice the carrying out of any decision which the arbitral tribunal
may render” (para. 141, point 1).
In the second decision,
2
adopted unanimously, the Annex VII Arbitral Tribunal
on 29 April 2016 in the dispositif prescribes, inter alia, that “Italy and India shall
cooperate, including in proceedings before the Supreme Court of India, to achieve a
relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under
the authority of the Supreme Court of India, may return to Italy during the present
annex VII arbitration” (para. 132 a) and “… confirms Italy’s obligation to return
Sergeant Girone to India should the arbitral tribunal find that India has jurisdiction
over him in respect of the ‘Enrica Lexie’ incident” (para. 132 b).
In particular, in the second order, the Annex VII Arbitral Tribunal concludes to
be in presence of a new request from Italy for the prescription of provisional measures and rejects the thesis of India to be in presence of a request to modify or revise
the provisional measure prescribed by ITLOS, subject, as such, to the condition
foreseen in Art. 290(2) UNCLOS (change or ceasing of the conditions existing at
the time of the adoption of the previously prescribed provisional order).
3
Moreover it stated that “a showing of urgency in some form is inherent in provisional measures proceedings” and that “[g]enerally, urgency is linked to the criterion of preservation of the respective rights of the parties to the dispute in order to
avert a real and imminent risk of causing irreparable prejudice to the rights at issue,
pending the final decision on the merits pursuant to Article 290, paragraph 1, of the
Convention”, concluding that “[i]n this case, the link is particularly pronounced”
(para. 89).
4
Given that the Arbitral Tribunal “holds the view that its decision should seek to
give effect to the concept of considerations of humanity, while preserving the
respective rights of the Parties” (para. 105), the preservation of the rights of both
parties is assured for Italy “by alleviating Sergeant Girone’s bail conditions so as to
allow him to spend the time of his bail in Italy pending a final decision” in the case
(para. 107)
5
and for India by not affecting its legal position in relation to Sergeant
2 PCA, The Enrica Lexie Incident (Italy v. India), Order—Request for the Prescription of
Provisional Measures, 29 April 2016. Hereinafter, AT Order.
3 See AT Order, paras 72–76. Cf. Kumar Raha and Raju (2016), Papanicolopulu (2016), Schiano di
Pepe (2017), pp. 434–435; Virzo (2017).
4 See AT Order, paras 85–88 where, after noting that urgency is not expressly mentioned in Art.
290(1) UNCLOS, are listed quotations of international jurisprudence supporting the importance of
urgency in considering requests for provisional measures.
5 See AT Order, para. 107 that follows with such words: “Such a measure would significantly lessen
the hardship for Sergeant Girone resulting from India’s exercise of jurisdiction, without affecting
India’s legal position in relation to Sergeant Girone. As a result of the ITLOS Order of 24 August
2015, court proceedings are suspended, and new proceedings may not be initiated, so that there
would appear to be no legal interest in Sergeant Girone’s physical presence in India”.
A. Cannone