163
an important element of fact (question 2).
16
Question 5 was couched in these terms:
“In light of Italy’s request, what commitments on the part of Italy would be acceptable to India?”.
17
The answer of India is very important: “India does not seek anything more onerous than the benchmark set by the Supreme Court of India, and some of these conditions were indicated by Italy’s counsel yesterday. India needs to be assured that in
the case that the Tribunal finds that India has jurisdiction, the presence of Sergeant
Girone would be ensured. Towards that end, India would deem it necessary that the
Tribunal itself fix these guarantees”.
18
This answer, in our opinion, paved the way to the final decision which, as we
have seen, accepts Italy’s request but specifies Sergeant Girone as still “remaining
under the authority of the Supreme Court of India” (dispositif 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” (dispositif para. 132. b).
Question 5 is very different from the others because, in our opinion, the Annex
VII Arbitral Tribunal has manifested an attitude to obtain, in the provisional phase
of the arbitral proceedings, a solution acceptable to both parties, as usually happens
in the international mediation. In other words, this question discloses a typical element of the international mediation when a third party (usually a State) assists the
parties in the settlement of disputes seeking an acceptable solution (cfr. Article XII
of the Pact of Bogotà on Settlement of Disputes, 30 April 1948)
19
; in this case the
result was of a binding measure, which differs from what happens in the international procedure of the international mediation.
16 See AT Order, para. 37: “The second question posed by the Arbitral Tribunal to the Parties was:
Could the Parties clarify the following point: What were the reasons for the ‘Enrica Lexie’ to be
called to go to the port of Kochi?”. The answers of Italy and India are, respectively, in paras 38 and
39.
17 AT Order, para. 46. On the question 3 see AT Order para. 40: “The third question posed by the
Arbitral Tribunal to the Parties was: ITLOS stressed, in paragraphs 134 and 135 of its Order of 24
August 2015, the need to take into account the ‘grief and suffering of the families of the two Indian
fishermen who were killed’ as well as ‘the consequences that the lengthy restrictions on liberty
entail for the two Marines and their families’. Could the Parties comment on any implications that
they believe these two paragraphs might have for the current proceedings?”. The answers of Italy
and India are, respectively, in paras 41 and 42.
18 See in AT Order, para. 47 India’s Agent answer to the aforesaid question 5 of para. 46.
19 Art. XII: “The functions of the mediator or mediators shall be to assist the parties in the settlement of controversies in the simplest and most direct manner, avoiding formalities and seeking an
acceptable solution. No report shall be made by the mediator and, so far as he is concerned, the
proceedings shall be wholly confidential”. In the Italian legal doctrine see Villani (1988), Palmisano
(2008) and Virzo (2009).
The Provisional Measures in The “Enrica Lexie” Incident Case
an important element of fact (question 2).
16
Question 5 was couched in these terms:
“In light of Italy’s request, what commitments on the part of Italy would be acceptable to India?”.
17
The answer of India is very important: “India does not seek anything more onerous than the benchmark set by the Supreme Court of India, and some of these conditions were indicated by Italy’s counsel yesterday. India needs to be assured that in
the case that the Tribunal finds that India has jurisdiction, the presence of Sergeant
Girone would be ensured. Towards that end, India would deem it necessary that the
Tribunal itself fix these guarantees”.
18
This answer, in our opinion, paved the way to the final decision which, as we
have seen, accepts Italy’s request but specifies Sergeant Girone as still “remaining
under the authority of the Supreme Court of India” (dispositif 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” (dispositif para. 132. b).
Question 5 is very different from the others because, in our opinion, the Annex
VII Arbitral Tribunal has manifested an attitude to obtain, in the provisional phase
of the arbitral proceedings, a solution acceptable to both parties, as usually happens
in the international mediation. In other words, this question discloses a typical element of the international mediation when a third party (usually a State) assists the
parties in the settlement of disputes seeking an acceptable solution (cfr. Article XII
of the Pact of Bogotà on Settlement of Disputes, 30 April 1948)
19
; in this case the
result was of a binding measure, which differs from what happens in the international procedure of the international mediation.
16 See AT Order, para. 37: “The second question posed by the Arbitral Tribunal to the Parties was:
Could the Parties clarify the following point: What were the reasons for the ‘Enrica Lexie’ to be
called to go to the port of Kochi?”. The answers of Italy and India are, respectively, in paras 38 and
39.
17 AT Order, para. 46. On the question 3 see AT Order para. 40: “The third question posed by the
Arbitral Tribunal to the Parties was: ITLOS stressed, in paragraphs 134 and 135 of its Order of 24
August 2015, the need to take into account the ‘grief and suffering of the families of the two Indian
fishermen who were killed’ as well as ‘the consequences that the lengthy restrictions on liberty
entail for the two Marines and their families’. Could the Parties comment on any implications that
they believe these two paragraphs might have for the current proceedings?”. The answers of Italy
and India are, respectively, in paras 41 and 42.
18 See in AT Order, para. 47 India’s Agent answer to the aforesaid question 5 of para. 46.
19 Art. XII: “The functions of the mediator or mediators shall be to assist the parties in the settlement of controversies in the simplest and most direct manner, avoiding formalities and seeking an
acceptable solution. No report shall be made by the mediator and, so far as he is concerned, the
proceedings shall be wholly confidential”. In the Italian legal doctrine see Villani (1988), Palmisano
(2008) and Virzo (2009).
The Provisional Measures in The “Enrica Lexie” Incident Case