|Table of Selected Abbreviations/Defined Terms|
|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings 2006|
|CL-[#]||Claimant’s Legal Authority|
|Cl. Mem.||Claimant’s Memorial, dated 16 September 2016|
|Cl. App. Prov. Meas.||Claimant’s Application on Provisional Measures and Temporary Relief, dated 10 November 2016|
|Cl. Reply Prov. Meas.||Claimant’s Reply in Further Support of Its Application for Provisional Measures and Temporary Relief, dated 24 November 2016|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|Investigation||The investigation about alleged forgery / fraud of certain documents related to this case conducted by the Uruguayan authorities.|
|RL-[#]||Respondent’s Legal Authority|
|Resp. Res. Prov. Meas.||Respondent’s Response to Claimant’s Application for Provisional Measures and Temporary Relief, dated 21 November 2016|
|RfA||Request for Arbitration, dated 16 February 2016|
|Tribunal||Arbitral Tribunal constituted on 27 May 2016|
|Treaty||Treaty Between the United States of America and the Oriental Republic of Uruguay Concerning the Encouragement and Reciprocal Protection of Investment, signed on 4 November 2005 and in force on 1 November 2006|
|URSEC||Unidad Reguladora de Servicios de Comunicaciones (Regulatory Entitity of Communications Services)|
"1. Independently from the eventual decision concerning the Claimant’s pending application, the Tribunal understands that the testimony of Messrs. Herbon and Alberelli are central to support the Claimant’s claims and, therefore, their eventual detention would be extremely prejudicial to the interests of that party.
2. During the briefing of this Application for Provisional Measures and Temporary Relief, Respondent has put forward its view and, in connection with the various matters in dispute, it has also stated:
'Uruguay recognizes that these witnesses might also be called upon by Claimant to assist in the preparation of its Reply (due in April 2017) or testify at the oral hearings (expected in November 2017). In that regard, and to avoid prejudice to Claimant, Uruguay is prepared to guarantee that its investigation into the circumstances of the apparently forged signatures and fraudulent documents, regardless of its course, will not prevent either Dr. Alberelli or Mr. Herbón from participating in the preparation or presentation of the remainder of Claimant’s case.'
3. In order to concretize the Respondent’s guarantee, the Tribunal requests that, no later than 28 November 2016, Respondent confirm such guarantee to the Tribunal and communicate the concrete steps that it will take to provide certainty to Mr. Herbon and Mr. Alberelli that they will not be detained in the criminal investigation that [Respondent] is conducting, or in any other proceeding that the Respondent might initiate. The Tribunal also asks the Republic of Uruguay to ensure that it will not take any measure that will prevent those gentlemen from freely providing, without any limitation, the testimony that Claimant has requested.
Although in this proceeding, in normal circumstances, the Tribunal’s communication with the Parties should be made through the ICSID Secretariat, in light of the existing urgency, the Tribunal decided to communicate directly with the Parties." (Tribunal’s translation.)
"[...] confirm, on or before Monday, 5 December 2016, whether or not it accepts that the guarantees set out in the Respondent’s letter of 28 November, 2016 are sufficient to protect its ability to present witness evidence from Mr. Herbon and Mr. Alberelli in these proceedings. If the Claimant does not accept the adequacy of these guarantees, the Claimant is invited to provide reasons for the same."
• "[T]here is no doctrine of jurisdictional restraint with respect to applications or provisional measures, and tribunals have granted requests for such measures even where they have yet to decide on jurisdictional objections raised by respondents."17
• In any event, the Memorial and accompanying evidence have already showed that the Tribunal has prima facie jurisdiction "including because Italba is a U.S. national and the owner of its Uruguayan subsidiary, Trigosul."18
• As the criminal proceedings against Mr. Alberelli and Mr. Herbón are based solely on Claimant’s filings in this arbitration, it would undermine the integrity of this arbitral proceeding, were the criminal investigation to be allowed to continue and to take place concurrently with this arbitration.23
• The criminal investigation will "irremediably disrupt the arbitral process", because it will divert Claimant’s time, effort and resources from this arbitration whilst it deals with the criminal proceedings; and it will have a chilling effect on Italba’s witnesses.24
"Uruguay cannot guarantee that Mr. Herbon will not be indicted or imprisoned while he awaits trial. Nor can it guarantee that, if Mr. Herbon is placed in pre-trial detention, he will maintain the ability to place and receive calls at will, travel to his home or office to collect relevant documents, or travel in and out of the country at his discretion for meetings or hearings."39
"Uruguay’s vague promise that it will 'honor its commitment to respect Claimant’s rights in this arbitration' in the event that Uruguay’s criminal investigation of the Garcia contract is allowed to continue is, on its face, inadequate and incapable of guaranteeing that Italba: (a) will have sufficient access to its key witnesses, Gustavo Alberelli and Luis Herbón ; or (b) will be able to gather evidence in Uruguay and elsewhere to prepare and present its case — including having access to other witnesses whose willingness to openly cooperate with Italba has evaporated since the advent of this investigation for fear of similar reprisals."40
• "[...] has no control over the State Prosecutor in the case —and, therefore, the prosecutor may seek an indictment irrespective of Uruguay’s 'guarantee;'"41
• "[...] has no control over the judge in this case, who could order Italba’s witnesses to stand trial and, at the same time, incarcerate them pending that trial;"42 and "should the Uruguayan courts decide to imprison Mr. Herbón or Dr. Alberelli pending trial — as is the usual practice in Uruguay — there is no action that the executive could take to overturn that decision [..,]."43
• "[...] has no control over the rules in its penitentiary system, which could significantly impede the ability of counsel to speak with and take instructions from its client and main witnesses"44; and "there is no action that the executive could take to [...] provide special privileges" to Mr. Herbón and Mr. Alberelli should the courts decide to imprison them pending trial.45
"[...] an order by the Tribunal recommending that Uruguay:
(a) Take all appropriate measures to end or, alternatively, suspend the criminal proceedings until this Tribunal issues a final award in this arbitration;
(b) Refrain from initiating any other criminal proceedings directly related to the present arbitration, or engaging in any other course of action, which may jeopardize the procedural integrity of this arbitration;
(c) Refrain from taking any further measure of intimidation against Dr. Gustavo Alberelli, Mr. Luis Herbón or any other director, shareholder, representative or employee connected to, or affiliated with, Trigosul and to refrain from engaging in any conduct that may aggravate the dispute between the parties and/or alter the status quo that existed prior to the initiation of the criminal investigation launched on October 21, 2016 or any local proceedings related, directly or indirectly, to the subject-matter of this arbitration, including any further steps which might undermine Italba’s ability to substantiate its claims, threaten the procedural integrity of the arbitral process, aggravate or exacerbate the dispute between the parties, or directly or indirectly affect the legal or physical integrity of Italba’s directors, shareholders, representatives or employees."67
"[...] issue temporary relief with immediate effect, ordering Uruguay to suspend its criminal prosecution of Dr. Alberelli and Mr. Herbón and enjoining Uruguay from taking any measure that could alter the status quo, aggravate the parties’ dispute in this arbitration, or affect the rights that are the subject of this application until such time as this Tribunal has rendered its decision regarding the provisional measures requested by Italba."69
• (i) There is "overwhelming evidence that signatures have been forged and documents, including a purported contract, have been falsified in violation of the Penal Code’s sanctions against the crimes of forgery and fraud [...] "74
• (ii) It is "indisputable" that Mr. Alberelli and Mr. Herbón are "material witnesses in regard to the commission of these criminal offenses [...] "75
• (iii) "There is no evidence, and no reason to suspect, that Uruguay’s investigation into these criminal offenses is being conducted in bad faith, or is motivated by a desire to retaliate against Claimant for having initiated these arbitral proceeding, or to hamper Claimant in the presentation of its case [...] "76 The Secretary of the Presidency’s actions in connection with the investigation were taken "in fulfillment of his official duties and his obligations under Uruguayan law" as the "Uruguayan Penal Code imposes strict obligations on all public officials to report unlawful activity that comes to their attention."77 The facts demonstrate that there is "good reason" to conduct the criminal investigation in question, and that it was "entirely reasonable" to have cited Mr. Alberelli and Mr. Herbón to "solicit their testimony" on how the allegedly forged signature came to appear in the documents78 Mr. Alberelli is the addressee of the letter and Mr. Herbón signed the contract, in which the alleged forged signature appears.79 There are no pending allegations against Mr. Herbón or Mr. Alberelli, and "they have been cited by the Criminal Court as witnesses [...]."80
"[...] recognizes that these witnesses might also be called upon by Claimant to assist in the preparation of its Reply (due in April 2017) or testify at the oral hearings (expected in November 2017). In that regard, and to avoid prejudice to Claimant, Uruguay is prepared to guarantee that its investigation into the circumstances of the apparently forged signatures and fraudulent documents, regardless of its course, will not prevent either Dr. Alberelli or Mr. Herbón from participating in the preparation or presentation of the remainder of Claimant’s case."84
"[...] Uruguay will honor its commitment to respect Claimant’s rights in this arbitration, including its rights to have Mr. Herbón and Dr. Alberelli gather evidence in Uruguay to present to this Tribunal, help prepare Claimant’s written pleadings, and assist Claimant in the preparation of its case.
Uruguay will also respect Claimant’s right to call witnesses to give oral testimony, in person, at the hearings tentatively set to be held in November 2017. Thus, Uruguay will not take any action that will impede the witnesses, Mr. Herbón and Dr. Alberelli, from attending the scheduled hearings and freely offering their testimony."86
"[...] Uruguay will take the necessary and proper measures so that Mr. Herbón and Dr. Alberelli can attend the hearings scheduled by the Tribunal without any restriction. Similarly, Uruguay will also adopt the necessary and proper measures to enable Mr. Herbón and Dr. Alberelli to collect all the evidence in Uruguay that may be necessary for submission to this Tribunal."87
"[...] notwithstanding that (1) it has not been established that the Tribunal has prima facie jurisdiction in these proceedings, and (2) as a consequence, the Tribunal is without authority to recommend provisional measures, let alone measures that would diminish Uruguay’s sovereign right to investigate crimes or enforce its penal laws in its own territory."88
"At the same time, in the interest of full transparency, Uruguay trusts that the Tribunal will appreciate that Uruguay’s judiciary is independent, as part of its democratic and republican government system. At the present time, there is no formal accusation against Mr. Herbón or Dr. Alberelli. They were summoned by the competent authorities of the criminal justice system in order to provide information on the matter under investigation. Whatever transpires as a result of this criminal investigation is within the exclusive competence of the judicial authorities of Uruguay."89
"its investigation into the circumstances of the apparently forged signatures and fraudulent documents, regardless of its course, will not prevent either Dr. Alberelli or Mr. Herbón from participating in the preparation or presentation of the remainder of Claimant’s case."91
"Uruguay represents to the Tribunal, categorically and unequivocally, that it has made, and will make, no effort to dissuade any witnesses from cooperating with or testifying on behalf of Claimant. Uruguay has done no more than its due diligence in inquiring of particular individuals in Uruguay whether the actions or comments attributed to them by Dr. Alberelli or Mr. Herbon in their Declarations are as described therein. That is how Uruguay discovered that Dr. Garcia had no communications with either Dr. Alberelli or Mr. Herbon, contradicting what they said in their Declarations, and that his signatures on the documents submitted by them are forgeries.
Uruguay has since discovered that Claimant has also falsely reported on its communications with other persons and entities in Uruguay, including Canal 7 and DirecTV. Uruguay has received letters from authorized representatives of these companies, which it will submit with its Counter Memorial on 16 January, denying the truthfulness of the representations made about them in the Declarations of Dr. Alberelli and Mr. Herbon. It appears from Uruguay’s due diligence that Claimant has engaged in a pattern of false representations about its contacts and business dealings in Uruguay. This may be the reason it is falsely accusing Uruguay of witness intimidation — to discourage Uruguay from exercising its right to ascertain the veracity of the representations Claimant has made in these proceedings."98
"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 of the ICSID Arbitration Rules reads as follows:
"(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.
(5) If a party makes a request pursuant to paragraph (1) before the constitution of the Tribunal, the Secretary-General shall, on the application of either party, fix time limits for the parties to present observations on the request, so that the request and observations may be considered by the Tribunal promptly upon its constitution.
(6) Nothing in this Rule shall prevent the parties, provided that they have so stipulated in the agreement recording their consent, from requesting any judicial or other authority to order provisional measures, prior to or after the institution of the proceeding, for the preservation of their respective rights and interests."
"At the outset, the Tribunal stresses that the right, even the duty, to conduct criminal investigations and prosecutions is a prerogative of any sovereign State."125
a) Uruguay’s "investigation of the apparently forged signatures and fraudulent documents... will not prevent either Dr. Alberelli or Mr. Herbón from participating in the preparation or presentation of the remainder of Claimant’s case.";
b) "Uruguay will honor its commitment to respect Claimant’s rights in this arbitration, including its rights to gather evidence in Uruguay to present to this Tribunal..."; and
c) Uruguay will not take any action that will impede the witnesses, Mr. Herbón and Dr. Alberelli, from attending the scheduled hearings and freely offering their testimony".
1) The Application for Provisional Measures and Temporary Relief filed by Italba Corporation is rejected.
2) The Parties are reminded of their duty to act in good faith during this proceeding and to refrain from taking any action that could affect the integrity of the arbitration.
3) To reserve to the final award or decision the matter of the costs of the procedure related to Claimant’s Application.
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