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  Report on the claim by Cemex against the Bolivarian Republic of Venezuela, on the provisional measures sought to prevent the exercise of the cement business by our country, when seeking to deprive Cemex of their property

 By: Hildegard Rondón de Sansó

 1 .- In a claim against Venezuela, skillfully raised by Cemex, a company that was the object of a nationalization process, and some of its assets subject to an expropriation procedure for the public good and social interest, the directors of Cemex, after having conducted a series of acts which could be described as delinquent, trying to subtract company assets and cheating their minority shareholders, who came to propose even criminal actions, Cemex intended, through the request of provisional measures to prevent Venezuela from reacting to the irregularities committed against its interests.

 2. - The Court held that Cemex had not demonstrated the alleged urgencies and jurisprudential requirements needed to accord the provisional measures.

 3 .- On the request made by Cemex that Venezuela not be allowed to dictate the measures considered necessary for its interests, the Court refused, stating that no country can be prevented from conducting/performing its actions through the use of injunctions without violating the very essence of its sovereignty;

 4. - We repeat, the Court found that the reasons for Cemex, although they were set in an apparent real set of circumstances, were false in the essence.

 5. - In absolute and outright manner the voluminous claim was rejected and the defense made by Venezuela accepted.

 6. - At the hearing held in Paris, the traditionally used formalism was changed, per request by the representatives of the State, who were present as advisors to the Republic.  The truth supported rose with clarity, precision and vehemence.  Given the change in attitude shown towards us by both the Tribunal and the counterpart, we believe it is advisable to assume this position in future opportunities whenever the legitimacy of Acts of the State are discussed, and even beyond mere legal matters, the realities that shape their sovereign acts.

 1 .-  A summary of the Cemex case of the contents of its decision from the award by the Arbitration Tribunal in charge of handling the claim by Cemex Caracas Investments BV and Cemex Caracas II Investments BV vs. The Bolivarian Republic of Venezuela, International Centre for Settlement of Investment Disputes (ICSID), No. ARB/08/15. and the request for provisional measures.

This report is limited to presenting and discussing some of the points concerning the ruling regarding the provisional measures that were requested by Cemex against Venezuela.

 2. – The ruling was endorsed unanimously by the three arbitrators.

 3. - The ruling made its pronouncements regarding the following injunction measures requested to the Arbitration Tribunal by the claimants against Venezuela (we literally transcribed the requirements):

 a. - An order requiring Venezuela to immediately cease any further efforts to continue to seize the assets of Cemex Venezuela including the Vessels;

 b. - An order that Venezuela cease any litigation, whether in Panama,Venezuela or elsewhere, having as its object the seizure of the vessels or any monetary equivalent thereof, including but not limited to:

  l. - The proceedings before the Caracas Courts;
  2. - The proceedings before the Panama Supreme Court; and
  3. - The proceedings before the Panama Maritime Court;

 c. - An order that Venezuela cease all efforts to enlist the assistance of other governments in seizing the Vessels; and

 d. – An order enjoining Venezuela from taking any action further prejudicing, aggravating the dispute before this Tribunal, or rendering this dispute more difficult to resolve.

 1. - The Court noted that the authority to recommend that provisional measures are taken, present in Article 47 of the ICSID Convention and in Rule 39, ordinal 3 of the Proceeding Rules Applicable to Arbitration Rules which is not an innovation in international jurisdictions, but it is based on Article 41 of the Statute of the International Court of Justice in The Hague, citing past case laws in this regard.

 2. - The International Court of Justice has justified the issuance of provisional measures if there is an urgent need to prevent irreparable harm.  The application of this thesis requires an assessment of the risk to determine if there exists irreparable damage.

 3 .- The International Court of Justice ruled that in order to provide proof of irreparable harm a distinction must be made between: a) whenever financial compensation cannot fully remedy the damage suffered, and b) when a right has been infringed and harm has been caused, but it can be properly redressed.

 4. - With respect to ICSID tribunals, in relation to government actions that have caused damage, it distinguishes two situations: a) situations where damage can be quickly compensated and, b) Where there are serious risks that may befall upon and investment.
The Tribunal saw no reason to accept the general principle of "irreparable harm" as criterion for the "necessity" required by the ICSID Convention. It is on that basis that it will examine the request for provisional measures in the case.

 1 .- The Tribunal exposed the reasons given by the claimants, noting that the request is based on the financial prejudice to which Cemex will continue to experience if the vessels or other assets remain in possession of Venezuela.
The Court held that the alleged damages were not "irreparable" or had no need or urgency for granting the measures.

 2. - The claimants also sought the same measures on other grounds, among them that the actions by Venezuela "will increase the damages in a substantial sum and it will aggravate the amount in dispute", as it is the case of the actions filed before Venezuela’s local courts.
For the Tribunal the measure requested by the claimant does not sufficiently demonstrate the condition of urgency or necessity, and under the ICSID Convention the principle of non-aggravation of the damage can not replace the irreparable harm.

 3. - Claimants have argued that Venezuela should be prevented from taking any actions that may undermine or exacerbate the lawsuit or make it more difficult to resolve.
 The Tribunal analyzes the jurisprudence on the matter raised by the International Court of Justice, which concluded that it had no power to issue provisional measures based simply on the "aggravation of the dispute."
The Tribunal ruled in a similar way as the International Court of The Hague, rejecting that the indication in general terms that the dispute could be aggravated would be a valid reason to issue an injunction.

After the hearing in Paris on provisional measures, Cemex sent a letter to the Tribunal indicating that, in the Venezuelan Tribunals, the Attorney General’s Office had urged the judges to act, which would imply (according to the ICSID Convention), the violation of the rule that indicates that other jurisdictions must be excluded when subjected to his rule.
During the hearings, Venezuela’s appointed defendants argued that  there was a lawsuit pending on the matter of the expropriation for public utility and social interest, and that  this process could hardly be prevented via request for injunction.

The tribunal found that the claimants had not sufficiently evidenced the existence of circumstances as per the text of the Convention in order to preempt the initiation of another legal procedure when an ICSID process is open.

 1. - The request for provisional measures was denied
 2. - The ruling reserved the right to further rule about the legal costs of the motions.