‘II. Summary of Claimant’s position

16. Claimant requests a declaratory ruling from the Tribunal ordering Respondents to cease all activities in front of the ... Arbitration Court [in Respondents’ state] and to withdraw their Request for Arbitration in front of that body. In the alternative, Claimant requests the Tribunal to inform the [aforementioned] Arbitration Court of this arbitration proceeding and that the ICC Court has issued its ruling ... finding that a prima facie agreement exists between [Claimant] and Respondents to arbitrate these disputes under the auspices of the ICC Court.

17. Claimant submits that the [aforementioned] Arbitration Court notified them ... that a request for arbitration had been filed by [several local state and state-owned entities]. According to Claimant, [the respondent] parties’ request for arbitration is a wilful disregard of the ICC Court’s ruling pursuant to Art. 6.2 of the ICC Rules that the Contract contained a prima facie binding agreement between the parties to bring any dispute to arbitration under the auspices of the ICC Court. It goes against the finding of the ICC Court and attempts to wrest from the arbitral tribunal the ability to determine its jurisdiction over the present dispute.

18. Claimant submits that Respondents’ disregard of the ICC Court’s ruling is motivated by Respondents’ desire to have its own domestic arbitral court circumvent the ICC Court and to force Claimant to incur increased costs in pursuit of redress for the [respondent] parties’ breach of contract.

19. Finally, Claimant submits that its request is urgent because the deadline for submissions to the ... Arbitration Court [in Respondents’ state] is rapidly approaching.

III. Summary of Respondents’ position

20. Respondents submit that it still has to be determined whether the ICC has jurisdiction. Contrary to Claimant’s allegation, the ICC Court did not rule that the Contract contained a prima facie binding agreement to bring any dispute to arbitration under the auspices of the ICC Court. Rather, Respondents submit that the Court simply determined that it was prima facie satisfied that an arbitration agreement under the Rules may exist and that any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself. Accordingly, there has not been a determination that jurisdiction exists nor has there been, as Claimant asserts, a willful disregard of the jurisdiction and proceedings of the ICC Court in this pending arbitration.

21. Respondents further submit that the arbitration agreement contained in clause 11 of the Contract requires that all disputes or disagreements be brought before the International Arbitration Court in Switzerland. When inserting this term, both parties knew that “Arbitration Court in Switzerland” referred to the ... Arbitration Court [in Respondents’ state]. According to Respondents, the only reason why the issue of jurisdiction was brought by Claimant before the ICC prior to the Respondents bringing it before the ... Arbitration Court [in Respondents’ state] is that Claimant won the race to the forum of its choice.

22. However, Respondents submit that they have an equal right to have the issue of jurisdiction decided by the tribunal in the ... Arbitration Court [in Respondents’ state]. According to Respondents, [that] Arbitration Court is the more appropriate body to rule on the interpretation of the clause in issue, because the Contract has stronger connections to [that state] as it was (i) negotiated in [that state], (ii) entered into by [that state’s] government, (iii) performed in [that state] for the benefit of the citizens of [that state] and (iv) [that state’s] officials involved have confirmed that it was the intention of the parties to submit their disputes before the ... Arbitration Court [in Respondents’ state]. In particular, the current and former representatives of [that state’s] Government who participated in the negotiation and/or execution of the Contract have confirmed that the [state’s] Government did not agree to have any dispute resolved in an ICC arbitration.

23. Respondents also submit that there is no legal support for the Arbitral Tribunal to order a party to refrain from proceedings in another arbitral forum, especially when that party did not agree to arbitrate under the ICC, and when the language of the arbitration clause makes no reference whatsoever to the lCC or the ICC Rules. Since Respondents have commenced an arbitration proceeding in the very arbitral forum that the parties intended, they did not violate the parties’ agreement to arbitrate.

24. Finally, Respondents submit that Claimant requested the ... Arbitration Court [in Respondents’ state] to reject Respondents’ request, or alternatively, grant Claimant a sixty-day extension to submit its answer and defences and appoint its arbitrator. The [said] Arbitration Court has not yet reacted to these requests so that Claimant’s assertion with respect to “rapidly approaching deadlines’’ is untrue.

25. Therefore, Respondents request that Claimant’s Request for Interim Procedural Relief should be denied.

IV. Considerations by the Tribunal

1. Jurisdiction of the Tribunal to decide on interim measures

.........

29. Pursuant to Art. 23.1 of the ICC Rules the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate, as soon as the file has been transmitted to it.

30. Accordingly, the Arbitral Tribunal is empowered to decide on the Request for Interim Measures even before the Terms of Reference have been signed by the parties and approved by the ICC Court.

31. As to the applicable lex arbitri, the Tribunal notes that the arbitration agreement between the parties makes reference to the “International Arbitration Court in Switzerland”. In the Tribunal’s view, it is thus clear that whatever institution was meant by the parties, if any, the place of the arbitration is Switzerland. Under Art. 183 of the Rules of International Arbitration of the Swiss Private International Law Statute (PILS), as part of the law prevailing at the seat of the arbitration, interim measures are admissible: “Unless the Parties have agreed otherwise, the Arbitral Tribunal may, at the request of a Party, order provisional protective measures.”

32. Having considered the parties’ submissions, the Arbitral Tribunal finds that it should decide the matter without an oral hearing and in the form of a Procedural Order.

2. Admissibility of anti-suit injunctions

33. Claimant seeks an anti-suit/anti-arbitration injunction from the Tribunal ordering Respondents to withdraw their request for arbitration in the ... Arbitration Court [in Respondents’ state].

34. In general, anti-suit/anti-arbitration injunctions are not inadmissible in the context of international commercial arbitration.1 Arbitral tribunals sitting in Switzerland have issued anti-suit injunctions, which enjoined a party from suing before a court.2 In contrast, an arbitral tribunal sitting in Switzerland denied an application for an “order requiring one party to request the stay of parallel arbitral proceedings on the grounds that it was not “empowered to interfere in another arbitration procedure”.3

35. Though it is generally recognized that arbitrators have the authority to grant anti-suit injunctions relating to proceedings pending before another arbitral tribunal or court, anti-suit/arbitration injunctions have to satisfy the following prerequisites and criteria in order to be an appropriate measure in international arbitration.4

3. Prerequisites of ordering an anti-arbitration injunction

36. It is undisputed in international arbitration that each arbitral tribunal has the power to decide on its own jurisdiction.5 However, when confronted with existing or impending parallel proceedings with a similar subject matter, arbitrators may not decide on the jurisdiction of other courts or tribunals, they may only rule on their own jurisdiction.6 This was confirmed by the recent decision of a sole arbitrator sitting in Switzerland in an Interim Award (ICC Arbitration No. 8307). The sole arbitrator found: “Basically a party is free to initiate an action wherever it deems it appropriate. ls such action brought with a Tribunal which is not competent, it falls to this one to decide on its own jurisdiction and to find the suit inadmissible.”7

37. Hence, arbitrators may not rely on grounds such as lis pendens, competence-competence or res judicata to issue anti-suit or anti-arbitration injunctions, based merely on the ground that parallel proceedings have been instigated. This follows also from the recent amendment of Art. 186 PILS. Art. 186(1)bis of the PILS as amended on 6 October 2006 and as in force as of 1 March 20078 which provides;

It [the arbitral tribunal] decides on its jurisdiction irrespective of an action concerning the same subject matter between the same parties that is already pending before a state court or another arbitral tribunal, unless serious reasons require a stay of the proceedings.

38. Thus, the competence of a tribunal to decide its own jurisdiction remains unaffected by the instigation of parallel proceedings, apart from exceptional cases where the tribunal may stay its own proceedings.

39. Arbitral tribunals should only issue an anti-suit or anti-arbitration injunction directed at a party if the enjoined proceedings have been initiated by a party in violation of its obligation under the arbitration agreement and if the injunction appears necessary to protect the arbitral proceedings, namely where a party is fraudulently attempting to undermine the tribunal’s jurisdiction.9Further, in order to ensure the appropriateness of anti-suit/anti-­arbitration injunctions, an arbitral tribunal has to be satisfied that the requested measures are urgent, aimed at preventing irreparable harm, or necessary to facilitate the enforcement of the upcoming award.10

40. The primary source of the Tribunal’s powers is the parties’ agreement to arbitrate so that the Tribunal has a duty vis-à-vis the parties to ensure that the arbitration agreement is not frustrated. Also the parties to an arbitration agreement have to comply with various obligations, inter alia with the obligation to act in good faith throughout the proceedings, which includes refraining from anything that could aggravate the dispute. This can also encompass the duty not to initiate parallel actions relating to the same dispute after the inception of an arbitration.

41. However, in the present case, the arbitration clause on which the ICC proceedings have been instigated is not entirely clear and must therefore be interpreted. The present Arbitral Tribunal has not yet decided on its own jurisdiction and thus not confirmed that the parties indeed intended to submit all disputes arising out of the Contract to ICC Arbitration, as alleged by Claimant.

42. As of today the Arbitral Tribunal cannot exclude the possibility that it has ultimately to decline its jurisdiction. When issuing anti-suit/anti-arbitration injunctions, tribunals are generally limited to supporting the arbitration that the parties have chosen. However, because it has not yet been decided which arbitration the parties have chosen, it would be inappropriate to order Respondents to withdraw the proceedings initiated before the ... Arbitration Court [in Respondents’ state]pending the decision by this Arbitral Tribunal on the validity and/or interpretation of the arbitration agreement in clause 11 of the Contract.11On the evidence currently before it, the Tribunal considers that Respondents did not attempt to undermine the jurisdiction of the present Tribunal necessarily by bringing their case before the... Arbitration Court [in their state].

43. Nor can the requested injunction be based on the argument that the commencement of proceedings before the ... Arbitration Court [in Respondents’ state] goes against the ICC Court’s decision to let the arbitration proceed pursuant to Art. 6.2 of the ICC Rules. The ruling of the ICC Court pursuant to Art. 6.2 of the ICC Rules is merely a preliminary decision based on a prima facie test, whereas any decision as to the jurisdiction of the Arbitral Tribunal has to be taken by the Tribunal itself. In practice, the ICC Court rarely refuses to set an arbitration in motion for practical reasons. Whereas there will almost always be an arbitration clause, it may not be clear whether the parties agreed to ICC arbitration or some other kind of arbitration. The ICC Court is usually reluctant to take a position on such factual and legal issues.12 The liberal interpretation of the prima facie threshold by the ICC Court is motivated by its desire not to deny the parties access to an arbitral tribunal from the outset; however, it cannot serve as a basis for excluding proceedings before another tribunal or court pending the decision of the ICC Tribunal regarding its jurisdiction on the subject matter in dispute.

44, Further, the Arbitral Tribunal is not convinced that Claimant will suffer irreparable harm because of the proceedings initiated by Respondents before the ... Arbitration Court [in their state]. Claimant has not even substantiated any such harm. In particular, the Tribunal is not convinced by Claimant’s argument that Respondents’ initiation of an arbitration before the ... Arbitration Court [in their state] is motivated by a desire to have its domestic arbitration court circumvent the ICC Court’s process. In the absence of any evidence to the contrary, the Tribunal has no reason to doubt that the ... Arbitration Court [in Respondents’ state] is an independent arbitration institution.

V. Decision

For these reasons the Tribunal orders as follows:

Claimant’s Request for Interim Procedural Relief is dismissed.’

1
Von Segesser/Kurth, “Interim Measures”, in: Kaufmann-Kohler/Stucki (eds), International Arbitration in Switzerland (2004), p. 75; Scherer/Giovannini, “Anti-Arbitration and Anti-Suit Injunctions in International Arbitration: Some Remarks Following Recent Judgement of the Geneva Court”, Stockholm International Arbitration Review 2005, p. 201 et seq.; Poudret/Besson, Droit comparé de l’arbitrage international, 2nd ed. 2002, para 1029, p. 921.

2
Von Segesser/Kurth, op. cit. p. 75.

3
Unreported Procedural Order, cited by von Segesser/Kurth, op. cit. p. 75

4
Lévy, “Anti-Suit Injunctions Issued by Arbitrators”, in: IAI Series on International Arbitration No. 2, Anti-Suit Injunctions in International Arbitration (E. Gaillard ed. 2005), p. 115 et seq.; Scherer/Giovannini, op. cit., p. 201 (216 et seq.) – von Segesser/Kurth, op. cit. p. 75

5
Lévy, op. cit. p. 117.

6
Lévy, op. cit. p. l20; Scherer/Giovannini, op. cit. p. 216 et seq.

7
lCC Arbitration No. 8307/FMS/KGA, Interim Award of 14 May 2001, published in: Anti-­Suit Injunctions in International Arbitration, IAI Series No. 2 (E. Gaillard ed. 2005), p. 307 (313).

8
AS 2007, p. 387.

9
Scherer/Giovannini, op. cit. p. 217; Lévy, op. cit. p. 128.

10
Scherer/Giovannini, op. cit. p. 217; Lévy, op. cit. p. 125.

11
Scherer/Giovannini, op. cit. p. 218.

12
Derains/Schwartz, A Guide to the New ICC Rules of Arbitration (1998), p. 87.