1986

ICSID

Atlantic Triton Company v People’s Revolutionary Republic of Guinea 3 ICSID 33 1984 PRR Guinea v ATC, Cour de Cassation, France

1981 Minister of Fisheries of Guinea entered a management agreement with a Norwegian company for the conversion and equipping of three vessels, the agreement provided ICSID. There were problems and proceedings were initiated in 1984, in October 1983 Triton obtained the attachment of the vessels which were being repaired in France, as security for its claim France: Art 26 ICSID precludes resort to any other remedy. However this proviso was not intended to prohibit parties from applying to a national court to seek conservatory measures in order to guarantee the execution of an award which might subsequently be given. The power of a national judge to order conservatory measures could only be excluded by the express agreement of the parties or by a tacit agreement arising from the adoption of arbitration rules including such a renunciation

Tribunal: 2.6 while it certainly follows that the Tribunal has jurisdiction to recommend conservatory measures, it hardly follows, as obviously, that such jurisdiction should be exclusive and prohibit any recourse to national courts, traditionally and virtually universally recognised as having sole jurisdiction to order such measure. 2.7 By deciding to have recourse to the remedies available to it under the law to protect its debt, a party is but exercising a right which is recognised by law. But the exercise of such a right may be considered abusive. 2.8 In order to determine whether a seizure was carried out in a brash and abusive manner, one must consider the time when the measure was solicited. It is at that date that it must be appreciated whether the principle upon which the creditor relief is certain, or whether the plaintiff requested the seizure knowing that he did not, in fact, have any right.