On September 30. 1983. the Republic of Indonesia ("the Respondent") filed with the Tribunal a Request for Recommendation of Provisional Measures, concluded by a Submission which reads as follows:
May it please the Tribunal to recommend as a provisional measure pursuant to Article 47 of the ICSID Convention:
That claimants take no action of any kind which might aggravate or extend the dispute submitted to the Tribunal, and in particular that they abstain from promoting, stimulating, or instigating the publication of propaganda presenting their case selectively outside this Tribunal or otherwise calculated to discourage foreign investment in Indonesia.
In fact, the Respondent contends that such provisional measures would be justified by an article published on the front page of a Hong Kong newspaper. The Business Standard, on June 27. 1983. According to the Respondent, said article, which relates several statements attributed to Mr T. K. Tan. ‟the controlling shareholder of Claimants", about the alleged nationalization of the Kartika Plaza Hotel, the procedure in the Jakarta Courts and the request for arbitration filed with the ICSID:
recounted a one-sided version of the Claimant’s story in tones designed to be detrimental to international perceptions of the climate for foreign investment in Indonesia.
While admitting that "the publication of a single article in a journal of such limited circulation hardly could amount to more than a nuisance", Respondent contends further that "it could lead to serious exacerbation of the dispute between the parties and irreparable harm to the economy of Indonesia".
In law, Respondent relies on Article 47 of the Convention on the Settlement of Investment Disputes, which enables the Tribunal to "recommend any provisional measures which should be taken to preserve the respective rights of either party".
Furthermore, Respondent contends that "Claimants’ action is inconsistent with Claimants’ acceptance of icsid arbitration ‘to the exclusion of any other remedy’ under Article 26" (of the Convention) "and with the requirement of good faith which inheres in all international proceedings and certainly envelops the parties to an arbitration before the Centre".
"Finally", Respondent alleges. "Claimants’ actions are incompatible with the spirit of confidentiality which imbues these international arbitral proceedings", relying in this respect on several provisions of the Convention (Article 48(5)) and of the Arbitration Rules (namely Rules 48(4). 37(2). 6(2). 15 and 31(2)).
On October 28, 1983, Claimants filed a Reply to this Request, of which the conclusion reads as follows:
The Tribunal should refrain from adopting a provisional measure such as requested here, which is not needed, conflicts with the provisions of the Rules, is without precedent, and would be impossible to police.
In fact, Claimants produce three articles, published in Indonesia in 1982 and 1983, that is to say before the publication of the article in the Hong Kong newspaper. Two of these articles are exhibited with partial translation, that show that they contained a description of the case which was not contrary to the one presented by the Respondent in the arbitral procedure.
Furthermore, Claimants allege that the article in The Business Standard did no harm to Indonesia, and state that they "bear the country of Indonesia no ill will, have no intention of discouraging foreign investment there, and have no power to do so".
In law, Claimants contend that "the Convention and Arbitration Rules do not prohibit individual parties from discussing the case and the status of the arbitration, publicly or otherwise". They stress that Respondent did not specify the "rights to be preserved" by the provisional measure it requests, such as required by Rule 39(1).
Finally, coming back to facts, Claimants point out that the order requested "would be impossible to police", since numerous people in the Indonesian government and shareholders of Amco Asia and Pan American know about the case.