Claimants explain that they seek an emergency order preventing Colombia from disrupting the status quo by enforcing the CGR Decision pending the Tribunal's determination of their Application for Provisional Measures. Claimants submit that the Tribunal has the authority to grant the requested emergency relief under Article 47 of the ICSID Convention and Article 10.20.8 of the US-Colombia TPA as their Application does not seek to enjoin the application of a measure alleged to constitute a breach under Article 10.16 of the US-Colombia TPA.
According to Respondent, the limitation in Article 10.20.8 of the US-Colombia TPA to a tribunal's authority to recommend provisional measures under Article 47 of the ICSID Convention would prevent this Tribunal from issuing the emergency temporary relief requested by the Claimants. Respondent submits, inter alia, that here Claimants are seeking to enjoin the application of the same measure they allege is a violation of the US-Colombia TPA. Respondent contends that the enforcement of the CGR Decision is the "ultimate consequence" of the fiscal liability proceeding which the Claimants argue was initiated in breach of the US-Colombia TPA. Accordingly, enjoining the enforcement of the CGR Decision "would necessarily mean enjoining the 'application' or 'implementation' of the 'measure' alleged to constitute a breach of the Treaty, which is prohibited by Article 10.20(8)."4
The Tribunal considers that Claimants have failed to make a showing of the heightened level of urgency required to grant the emergency temporary relief that they have requested. In particular, Claimants have not provided evidence that any of their assets are currently under threat of harm. The Tribunal wishes to stress that this decision is without prejudice to the Tribunal's consideration of the Parties' arguments regarding the urgency of the Provisional Measures that Claimants have requested be issued until this arbitration is concluded, and its authority to order Provisional Measures in this arbitration in light of Article 10.20(8) of the US-Colombia TPA.
(a) Claimants' Request for Emergency Temporary relief is denied;
(b) The Tribunal confirms that it will hear the Parties' oral arguments on Claimants' Request for Provisional Measures during the Hearing that will take place virtually on November 4, 2021.
(c) Either Party may bring to the Tribunal's attention any new, relevant, facts that fundamentally change the current circumstances;
(d) The Tribunal reserves its decision on costs for a later stage.
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