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ICSID steps in to appoint arbitrator, but respondent alleges that it had not been aware of the proceedings due to communication issues
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Moldova fails to prove that jurisdictional objections are prima facie serious
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Tribunal affirms power to bifurcate proceedings and applies three-prong test, with procedural efficiency and overall fairness in mind
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Background: Moldova asks for bifurcation of objections to jurisdiction ratione personae, pointing to alleged lack of substantial business activities on the side of foreign claimant and change of control over domestic claimant
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Tribunal’s finding is not altered by claimants’ request for reconsideration
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No evidence that Decision 523 made Rotalin’s gas supply operation impossible
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No evidence of claimants’ inability to proceed with arbitration if no provisional measure is ordered
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Arbitrators do not see sufficient link between rights invoked in provisional measures request and claimants’ request for relief
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Provisional measures may be aimed at protecting procedural rights
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Tribunal differentiates between rights to be protected with provisional measures and rights that are basis of claimants’ merits claims
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Prima facie merits test is low and requires that the claims are not frivolous
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Tribunal upholds prima facie jurisdiction, relying on prior ruling; Moldova’s fork-in-the-road argument does not alter arbitrators’ conclusion
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Tribunal applies four-prong test, which subsumes other considerations advanced by Moldova
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Tribunal’s right to order provisional measures derives from Article 46(1) of ICSID AF Rules
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Claimants’ provisional measures request does not amount to amendment of their claims on the merits
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Background: Gas distribution investors seek protection against potential revocation of supply license and potential monetary fine
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On balance, tribunal conditions interim relief upon claimants placing half of announced fine into escrow account pending final award
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Tribunal may only grant measures necessary to protect rights at risk
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Denial of interim relief would severely impair claimants’ procedural rights, while Moldova may remedy consequences stemming from granting of some measures
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Claimants fail to substantiate risk of harm in relation to enforcement of ANRE’s decision finding Rotaling’s surplus
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Tribunal agrees that claimants accepted possibility of monetary fine in principle, but not its quantum
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Arbitrators see risk of irreparable harm if monetary fine is enforced against Rotalin’s assets
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Tribunal finds sufficient link between underlying dispute and rights whose protection is sought
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Provisional measures are fit to protect procedural rights, including right to non-aggravation of dispute and right to fair trial
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