In its Request for Arbitration, Helnan requested the following:
"A. Provisional Measures
71. Claimant, Helnan, respectfully requests that, upon constitution, the Arbitral Tribunal provide urgent interim relief:
(i) recommending that Egypt refrain from taking any action (through EGOTH or any other instrumentalities) to evict Helnan from the Shepheard Hotel on or after 30 March 2005; and
(ii) recommending that Egypt (through EGOTH or any instrumentalities) ceases immediately all procedures to sell the Shepheard Hotel to any third party, on terms that directly or indirectly interfere with Helnan's management and operation of the Shepheard Hotel, until the issuance of the final award in this arbitration.
B. Final Award
72. In the event that the urgent interim relief requested above is granted, and the Shepheard Hotel is not confiscated, Claimant shall seek an award on the merits:
(i) declaring that Helnan should be free to continue to enjoy its management rights to the Shepheard Hotel under the Management Contract until its expiry in December 2012 with similar co-operation and investment from EGOTH as accorded to other foreign hotel chains;
(ii) ordering the Respondent to pay to Helnan damages, in an amount to be determined, as compensation for its share of the profits lost as a result of the downgrade of the Shepheard Hotel;
(iii) ordering the Respondent to pay damages, in an amount to be determined, in compensation for reputational damages suffered by Helnan; and
(iv) ordering the Respondent to pay interest on the amounts awarded in (ii) and (iii) above at an appropriate rate.
73. In the alternative, in the event that the Shepheard Hotel is confiscated from Helnan prior to the outcome of this arbitration, Helnan respectfully requests that the Arbitral Tribunal enter an award:
(i) ordering the Respondent to pay (a) damages in the amount of €10 million, subject to further revision, to indemnify Helnan for loss of its share in the total operating profits of the Shepheard Hotel during the remaining period of the Management Contract; or, in the alternative (b) damages in an amount to be quantified in respect of Helnan's lost investment in the Shepheard Hotel;
(ii) ordering the Respondent to pay damages in the amount of €15 million, subject to further revision, in compensation for reputional damages suffered by Helnan;
(iii) ordering Respondent to pay €15 million, subject to further revision, representing the balance in the accounts owing to Helnan for servicing the head office and financing the development and renovation works and the debt written off by Helnan on 15 October 2002;
(iv) ordering the Respondent to pay all of Helnan's costs associated with the defence of the arbitration proceedings taken against it by EGOTH in Egypt, in the amount of approximately €150 thousand;
(v) ordering the Respondent to pay all of Helnan's costs associated with this arbitration, including the arbitrator's fees and administrative costs fixed by ICSID, the expenses of the arbitration, any expert's fees and expenses, and the legal costs (including attorney's fees) incurred by the parties, in an amount to be quantified;
(vi) ordering the Respondent to pay interest on the amounts awarded in (i) to (v) above at an appropriate rate; and
(vii) granting Helnan any other relief that the Arbitrator sees fit. "
"1. The Tribunal has carefully read the Claimant's request of February 22, 2006, as well as Respondent's letter of March 6, 2006 and Claimant's letter of March 9, 2006.
2. The Tribunal considers that for it to make a decision on the Claimant's request, it would need to hear further from the parties on the issues raised in the abovementioned correspondence.
3. Accordingly, the Tribunal proposes to hear oral arguments from the parties at the first session of the Tribunal on April 14, 2006 and invites the parties to elaborate, in particular, on the legal status of EGOTH and on the arbitration proceeding before the Cairo Regional Center.
4. In this respect, it would be useful to receive from the parties the text of the arbitral award rendered on December 30, 2004 before the Cairo Regional Center as well as the court decisions relating to the arbitral proceedings.
5. In the meantime, the Tribunal reiterates its invitation to the parties of abstaining from taking any steps that might aggravate this dispute until the Tribunal has had the opportunity to listen to both parties and decide on the aforementioned request."
■ Firstly, it purported that not only proprietary rights but also contractual rights could be protected.
■ Secondly, Helnan explained the role and influence of Egypt in the Termination of the Contract and emphasized the will of the State of Egypt to evict Helnan from the Shepheard Hotel.
"'44. Claimant requests the Tribunal recommend the following, for the necessary preservation and protection of Helnan's rights:
(i) Respondent desist from taking (through EGOTH or any other instrumentality) any action to evict Helnan from the Shepheard Hotel, or otherwise interfere with Helnan's continued right to manage and operate the Shepheard Hotel pending the issuance of a final award in this arbitration;
(ii) Respondent refrain from all procedures (through EGOTH or any other instrumentality) to sell the Shepheard Hotel to any third party, on terms that interfere with Helnan's management and operation of the Shepeard Hotel until the issuance of the final award in this arbitration;
(iii) Respondent refrain from any trespass (through EGOTH or any other instrumentality) of the Shepheard Hotel;
(iv) Respondent refrain from any interference (through EGOTH or any other instrumentality) with Claimant's access to the Shepheard Hotel, for the purpose of its operation and management; and
(v) Respondent take no other action of any kind (through EGOTH or any other instrumentality) that might aggravate or further extend the dispute submitted to the Tribunal.
45. Claimant further requests that:
(i) The Tribunal grant any further relief it deems appropriate to preserve Claimant's rights; and
(ii) Respondent pay the full costs of this application, including legal costs and expenses.
46. Claimant recognizes that the Tribunal, in recommending provisional measures, is not bound by Claimant's specific requests, and may recommend measures other than those set out above.
47. Claimant respectfully request that an urgent session of the Tribunal be convened within the next seven days in order to give consideration to Claimant's requests.
48. Helnan remains available to the Tribunal to agree the procedural methodology for the proceeding relating to this Request."
■ Egypt is not a party in the dispute between Helnan and EGOTH regarding the Hotel Management Contract. It recalled the different steps of the procedure before the Egyptian Courts and emphasized that Egypt never participated to these proceedings.
■ EGOTH is not an emanation of the Egyptian government. EGOTH is "as an independent separate legal entity (...) simply exercising the rights conferred by the code of Procedures to all persons subject to the Egyptian private law legal system. In other words, there had been no action undertaken by whatever governmental authority to accord any special treatment to EGOTH or affecting the rights of Helnan in whatever manner".
■ Egypt explained that it would raise an objection to the Tribunal's jurisdiction at the First Session of April 14, 2006, as it is obvious in its opinion that no investment's dispute exists.
■ Lastly, it concluded that "it is inconceivable to order any Kind of preliminary measures prior to establishing that the Tribunal effectively has jurisdiction".
"22. Claimant requests the Tribunal recommend the following, for the necessary preservation and protection of Helnan's rights:
(i) Respondent reinstate Helnan as manager and operator of the Shepheard Hotel forthwith;
(ii) Respondent desist from taking (through EGOTH or any other instrumentality) any action to further interfere with Helnan's continued right to manage and operate the Shepheard Hotel pending issuance of a final award in this arbitration;
(iii) Respondent refrain from all procedures (through EGOTH or any other instrumentality) to sell the Shepheard Hotel to any third party, on terms that interfere with Helnan's rights to manage and operate the Shepheard Hotel, until the issuance of the final award in this arbitration; and
(iv) Respondent take no other action of any kind (through EGOTH or any instrumentality) that might aggravate or further extend the dispute submitted to the Tribunal.
23. Claimant further request that:
(i) The Tribunal grant any further relief it deems appropriate to preserve Claimant's rights, and
(ii) Respondent pay the full costs of this application, including legal costs and expenses.
24. Claimant recognises that the Tribunal, in recommending provisional measures, is not bound by Claimant's specific requests and may recommend measures other than set out above.
25. Claimant further reserves the right to seek additional relief, in an award by the Tribunal on the merits, in the form of damages from Egypt, in an amount to be determined, as compensation for the harm caused to Helnan's other business operations in Egypt.
26. Claimant respectfully requests that the Tribunal address Claimant's Amended Request at the hearing scheduled for 14 April 2006."
"Except as the parties otherwise agree, the Tribunal may, if it considers the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party".
It appears from this article that Arbitral Tribunals have discretionary powers to determine whether the request for Provisional Measures is appropriate on the ground of the circumstances of the case and have discretionary powers to grant any measure they deem useful to protect the rights of any of the parties.
The parties disagree as to the possibility for an Arbitral Tribunal to make use of this power while its jurisdiction is under discussion, as it is the case in this Arbitration where Egypt is challenging the jurisdiction of the Arbitral Tribunal.
"At any time during the proceeding a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal (...)"
and Rule 39 (2) of the Arbitration Rules adds that "the Tribunal shall give priority to the consideration of a request (...)".
"The Tribunal therefore considers that it has jurisdiction to recommend provisional measures according to the terms of Article 47 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, the Parties still having the right to express, in the rest of the procedure, any exception relating to the jurisdiction of the Tribunal on any other aspect of the dispute".
- significant investment rights such as Helnan's deprivation of its business at the Shepheard Hotel;
- rights under the Treaty and the Convention; and
- rights of non-aggravation of the dispute.
Moreover, Helnan refers to other investments rights in Egypt that need to be protected, its reputation and the potential sale of the Shepheard Hotel.