158
As always, the Arbitral Tribunal shall rule on objections to jurisdiction or admissibility as a preliminary issue, in the case of bifurcation or in its final Award, in both
cases after hearing the Parties (Art. 10(4) Rules of Procedure).
6
3 The Follow Up of the Order Adopted ex Art. 290(5)
UNCLOS and the Resulting ‘Arrangement’ in The “Enrica
Lexie” Incident Case
In certain cases the ‘arrangement’ resulting from the follow up of the provisional
orders adopted ex Art. 290 para. 5 UNCLOS is quite easy to determine when the
Annex VII Arbitral Tribunal has not prescribed subsequent provisional orders
because it declared the absence of the jurisdiction with the following extinction of
the provisional measures, even if not properly qualified as their revocation (Southern
Bluefin Tuna Cases).
7
The same plain situation occurs when the implementation of
the provisional measures prescribed by ITLOS determines special agreements terminating the dispute followed by an order of the Annex VII Arbitral Tribunal—
requested by both parties—declaring the termination of the arbitral proceedings
(Termination Order in the ARA Libertad Arbitration case) or by a judgment—similarly requested by both parties—containing the terms of the agreement, attached to
the award (Award on Agreed Terms of 1 September 2005 in the Land reclamations
by Singapore in and around the Straits of Johor case.
8
6 Under Art. 9 of the Rules of Procedure (Order and Content of Pleading), “1. On or before 16
September 2016, Italy shall submit to India, to the Registry, and to each of the arbitrators a
Memorial containing: (a) A statement of any facts on which Italy relies; (b) Italy’s submissions on
law; (c) A statement of the decision and relief sought by Italy. 2. On or before 31 March 2017, India
shall submit a Counter-Memorial containing: (a) An admission or denial of any facts alleged in the
Memorial and a statement of any additional facts on which India relies; (b) Observations concerning the submissions on law in the Memorial and India’s submissions on law in answer thereto; (c)
Any objections to jurisdiction and/or admissibility that India may wish to make pursuant to Article
10(2)(b) herein; (d) A statement of the decision and relief sought by India. 3. On or before 28 July
2017, Italy may submit a Reply, including a Counter-Memorial on any objections to jurisdiction
and/or admissibility made by India pursuant to Articles 9(2)(c) and 10(2)(b) herein. 4. On or before
1 December 2017, India may submit a Rejoinder, including a Reply to any Counter-Memorial on
jurisdiction and/or admissibility made by Italy pursuant to Articles 9(3) herein. 5. In the event that
India submits objections to jurisdiction and/or admissibility pursuant to Article 10(2)(b) herein, or
pursuant to Article 10(2)(a) in circumstances in which the proceedings thereon were not bifurcated, Italy may submit a Rejoinder to any Reply on jurisdiction and/or admissibility limited to
question of jurisdiction and/or admissibility made by India pursuant to Article 9(4) herein on or
before 2 February 2018. 6. At the request of either Party, and after having ascertained the views of
the other Party, the Arbitral Tribunal may extend the time for the submission of pleadings”.
7 See Gaja (2000).
8 On the frequent help given by ITLOS orders on provisional measure ex Art. 290(5) UNCLOS to
the parties for settling the disputes see Churchill (2016).
A. Cannone
As always, the Arbitral Tribunal shall rule on objections to jurisdiction or admissibility as a preliminary issue, in the case of bifurcation or in its final Award, in both
cases after hearing the Parties (Art. 10(4) Rules of Procedure).
6
3 The Follow Up of the Order Adopted ex Art. 290(5)
UNCLOS and the Resulting ‘Arrangement’ in The “Enrica
Lexie” Incident Case
In certain cases the ‘arrangement’ resulting from the follow up of the provisional
orders adopted ex Art. 290 para. 5 UNCLOS is quite easy to determine when the
Annex VII Arbitral Tribunal has not prescribed subsequent provisional orders
because it declared the absence of the jurisdiction with the following extinction of
the provisional measures, even if not properly qualified as their revocation (Southern
Bluefin Tuna Cases).
7
The same plain situation occurs when the implementation of
the provisional measures prescribed by ITLOS determines special agreements terminating the dispute followed by an order of the Annex VII Arbitral Tribunal—
requested by both parties—declaring the termination of the arbitral proceedings
(Termination Order in the ARA Libertad Arbitration case) or by a judgment—similarly requested by both parties—containing the terms of the agreement, attached to
the award (Award on Agreed Terms of 1 September 2005 in the Land reclamations
by Singapore in and around the Straits of Johor case.
8
6 Under Art. 9 of the Rules of Procedure (Order and Content of Pleading), “1. On or before 16
September 2016, Italy shall submit to India, to the Registry, and to each of the arbitrators a
Memorial containing: (a) A statement of any facts on which Italy relies; (b) Italy’s submissions on
law; (c) A statement of the decision and relief sought by Italy. 2. On or before 31 March 2017, India
shall submit a Counter-Memorial containing: (a) An admission or denial of any facts alleged in the
Memorial and a statement of any additional facts on which India relies; (b) Observations concerning the submissions on law in the Memorial and India’s submissions on law in answer thereto; (c)
Any objections to jurisdiction and/or admissibility that India may wish to make pursuant to Article
10(2)(b) herein; (d) A statement of the decision and relief sought by India. 3. On or before 28 July
2017, Italy may submit a Reply, including a Counter-Memorial on any objections to jurisdiction
and/or admissibility made by India pursuant to Articles 9(2)(c) and 10(2)(b) herein. 4. On or before
1 December 2017, India may submit a Rejoinder, including a Reply to any Counter-Memorial on
jurisdiction and/or admissibility made by Italy pursuant to Articles 9(3) herein. 5. In the event that
India submits objections to jurisdiction and/or admissibility pursuant to Article 10(2)(b) herein, or
pursuant to Article 10(2)(a) in circumstances in which the proceedings thereon were not bifurcated, Italy may submit a Rejoinder to any Reply on jurisdiction and/or admissibility limited to
question of jurisdiction and/or admissibility made by India pursuant to Article 9(4) herein on or
before 2 February 2018. 6. At the request of either Party, and after having ascertained the views of
the other Party, the Arbitral Tribunal may extend the time for the submission of pleadings”.
7 See Gaja (2000).
8 On the frequent help given by ITLOS orders on provisional measure ex Art. 290(5) UNCLOS to
the parties for settling the disputes see Churchill (2016).
A. Cannone