von Pezold and others v. Zimbabwe

"(a) The Respondent immediately take all necessary measures to protect the life and safety of the Claimants, and in particular Mr. Heinrich von Pezold and his family, from any harm by any member, organ or agent of the Respondent or any person or entity instructed by the Respondent (the "Protection Measures"); and

(b) The Respondent allow the Claimants, and in particular Mr. Heinrich von Pezold and his family, to participate, in so far as it may be possible, in the planning and the implementation of the Protection Measures."

"On 6 March 2013, Heinrich von Pezold was informed by a reliable source within the Government of Zimbabwe that the Respondent's Central Intelligence organisation ("CIO") has been instructed to kill him. The CIO is the Respondent's "premier" Security Service and is an organ of State.

The position of the source within the Government of Zimbabwe and the disclosure of the specific details of the plan to kill Heinrich have led the Claimants and their advisors to conclude that this information must be taken very seriously. In reaching this conclusion, the Claimants have also taken into consideration the fact that the claimants in the case of Mike Campbell (Pvt) Ltd & Ors v. Republic of Zimbabwe at the SADC Tribunal in Namibia were violently assaulted in Zimbabwe during the course of those proceedings. The fact that those assaults occurred is recorded in numerous press articles. Photos of the injuries inflicted on the Campbell claimants are contained in the Respondent's own evidence filed with its Rejoinder, namely Ben Freeth's book.

The Claimants are not prone to hysteria. In any event, in order to obtain further reassurance as to their conclusions, the Claimants have passed the information regarding the CIO's instruction to kill Heinrich von Pezold to the German Embassy in Harare. The German Embassy has also concluded that the source and the threat must be taken very seriously.

The source has informed Heinrich von Pezold that the reason why the CIO has been instructed to kill him is because of the international claims that he has made in regard to the expropriations of his properties. The source has stated that certain people within the Zimbabwean Government want to avoid the negative publicity that his claims are bringing in what is an election year. In these circumstances, the Claimants consider that the instruction to kill Heinrich is a direct challenge to these ICSID proceedings." [citations omitted]

"Urgency exists in the circumstances of this application as it is the Claimants' understanding that the instruction to kill Heinrich von Pezold has already been given. In any event, all allegations regarding a threat to life must – for obvious reasons – be treated as giving rise to urgency.

In regard to the issue of necessity, it will be recalled that necessity exists if irreparable harm or damage will occur in the event that the provisional measures are not ordered. Furthermore, it will also be recalled that provisional measures will usually be ordered in circumstances where the health or life of people are in jeopardy as compensation will not in those circumstances fully remedy the damage suffered.

Compensation will not fully remedy the death of Heinrich von Pezold. Therefore necessity is established." [citations omitted]

(a) Immediately instruct the Central Intelligence Organisation, the Police and all other Security Services in Zimbabwe, together with their officers, employees and agents that they are not to harm Heinrich von Pezold or any of the other Claimants, their families and staff;

(b) Immediately instruct the Police to provide the Claimants with full protection and security; and

(c) Does not take any further action to aggravate the dispute between it and the Claimants.

"…such jurisdiction is defined by the terms of the ICSID Convention as well as by the terms of the BITs potentially relevant to Claimants' alleged investments. Claimants' presents demands do not concern an investment, but rather the security of a person living on Respondent's territory.

Article 25(1) of the ICSID Convention states that: "The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment". This is not the case as the rumours brought forward by Claimants are general in nature, concern a person directly and not its supposed investment.

Article 4.3 of the Swiss[/Zimbabwe] BIT states that "each Contracting Party shall in its territory accord investors of the other Contracting party treatment not less favourable to him that [sic] which it accords to its own investors or to investors of any third State, whichever is more favourable to the investor concerned."

Article 4 of the German[/Zimbabwe] BIT does not specifically address investors per se but only their investments.

Consequently, Respondent would ask the members of the Arbitral Tribunal to decline to address Claimants' demands and otherwise order Claimants to raise their demands before proper legal forum. Moreover, Respondent respectfully submits that should the Arbitral Tribunal decide to review the claims, it would risk violating the necessary impartiality of the Arbitral Tribunal in this case, as it would demonstrate that it has already implicitly reached a decision as to jurisdiction over alleged investments.

Respondent considers that the best proof that nothing threatens any of Claimants' lives is their future presence at arbitral hearings in Singapore, unless Claimants were to be organising a plan to be absent from hearings in Singapore."

"The German Ambassador's focus in that letter is on the Muzite-Smalldeel need for protecting the 'freshly harvested macadamia nuts'. Unlike the language quoted above from the two notes-verbales, the 7 March 2013 letter makes no appeal for the Ministry's intervention. The Germany Ambassador does not even seek the Minister's intervention for Heinrich's protection in connection with what it characterises as the 'very concrete death threat'.

…

Surely, were the German Embassy to have any credible evidence of a death threat, it would not have had recourse to a simple, multi-topic letter discussing various matters and making no appeal to Zimbabwean authorities."

"Article 47

Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party."

"Rule 39

(1) At any time after the institution of the proceeding, a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures.

(2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1).

(3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.

(4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.

[…]"

"Giving priority to a request for provisional measures also means that it has to take precedence over any other issues pending before the tribunal. Where a party has raised jurisdictional objections, the tribunal may have to decide on provisional measures before having ruled on its own jurisdiction. As a consequence, a party may be exposed to provisional measures even though it contests the jurisdiction of an ICSID tribunal. On the other hand, the urgency of the matter often makes it impossible to defer provisional measures until the tribunal's jurisdiction has been fully argued and decided.

This question has arisen frequently before other arbitral tribunals and before the International Court of Justice (ICJ). The case law of the ICJ has adopted the approach that a prima facie showing of jurisdiction is sufficient to establish its power to indicate provisional measures. As held in the Judgment in the Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay):

[I]n dealing with a request for provisional measures the Court need not finally satisfy itself that it has jurisdiction on the merits of the case but will not indicate such measures unless there is, prima facie, a basis on which the jurisdiction of the Court might be established.

The ICSID Convention has a special feature which is helpful in this regard. Art. 36(3) of the Convention provides that the Secretary-General shall register a request for arbitration unless he finds that the dispute is manifestly outside the jurisdiction of the Centre. Therefore, unlike in other procedures, such as in State-to-State cases brought before the ICJ, there is a preliminary examination of jurisdiction before the case even reaches the tribunal. Although the tribunal is, of course, in no way bound by this preliminary examination of jurisdiction, it provides a useful basis for its power to recommend provisional measures. The Secretary-General's registration of a request, in accordance with Art. 36(3) of the Convention, does not preclude the tribunal from examining the question of jurisdiction before recommending provisional measures. It is equally clear that a party may continue to challenge the jurisdiction after provisional measures have been recommended until the tribunal has formally decided on its competence (see Art. 41, paras. 11-15). It is ultimately with the tribunal whether it will accept the Secretary-General's registration as a sufficient basis or whether it wants to form a prima facie opinion on jurisdiction before recommending provisional measures.

In Holiday Inns v. Morocco, the question of jurisdiction was still disputed when the Tribunal gave its decision on provisional measures. The Tribunal said:

The Tribunal, …considers that it has jurisdiction to recommend provisional measures according to the terms of Article 47…, 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 aspects of the dispute.

…" [citations omitted]

"Whilst the Tribunal need not definitely satisfy itself that it has jurisdiction in respect of the merits of the case at issue for purposes of ruling upon the requested provisional measures, it will not order such measures unless there is, prima facie, a basis upon which the Tribunal's jurisdiction might be established."

"(1) Disputes between a Contracting Party and a national […] of the other Contracting party concerning an investment of such national in the territory of the former Contracting Party shall as far as possible be settled amicably between the parties concerned.

(2) If the dispute is not settled within six months of the date when it is raised by one of the parties in dispute, it shall, at the request of the national concerned, be submitted to arbitration. Each Contracting Party hereby consents to submit the dispute to arbitration. Unless the parties in dispute agree otherwise, the dispute shall be submitted for arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of other States of 18 March, 1965. […]"

"(1) For the purpose of solving disputes with respect to investments between a Contracting Party and an investor of the other Contracting Party […] consultations will take place between the parties concerned.

(2) If these consultations do not result in a solution within six months and if the investor concerned gives written consent, the dispute shall be submitted to the arbitration of the International Centre for Settlement of Investment Disputes. […]"

(a) The Respondent immediately take all necessary measures to protect the life and safety of the Claimants, and in particular Mr. Heinrich von Pezold and his family, from any harm by any member, organ or agent of the Respondent or any person or entity instructed by the Respondent (the "Protection Measures");

(b) The Respondent allow the Claimants, and in particular Mr. Heinrich von Pezold and his family, to participate, in so far as it may be possible, in the planning and the implementation of the Protection Measures;

(c) The Respondent report in writing to the Tribunals on the Protection Measures adopted in compliance with the present Order on 15 April 2013; and

(d) The Respondent also report in writing to the Tribunals on the Protection Measures adopted on 15 May 2013.

Dated as of 3 April 2013

Signed on behalf of the Arbitral Tribunals