The 'Enrica Lexie' Incident (Italy v. India)

The arbitral proceedings were instituted under the United Nations Convention on the Law of the Sea (“UNCLOS”) on 26 June 2015, when Italy served on India a “Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based”.

According to Italy, the Parties’ dispute arises from an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the “Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the incident and over two Italian marines from the Italian Navy. According to India, the incident in question concerns the killing of two Indian fishermen on board an Indian vessel named the “St. Antony”, and India’s subsequent exercise of jurisdiction. It is alleged that the two Italian marines aboard the “Enrica Lexie” killed the fishermen.

On 11 December 2015, Italy filed a “Request for the Prescription of Provisional Measures pursuant to Article 290, paragraph 1 of the United Nations Convention on the Law of the Sea”. On 26 February 2016, India submitted the “Written Observations of the Republic of India on the Request of the Italian Republic for the Prescription of Provisional Measures under Article 290, paragraph 1, of the United Nations Convention on the Law of the Sea”. Following a public hearing held in the Peace Palace, on 29 April 2016, the Arbitral Tribunal adopted an Order in respect of Italy’s Request.

In accordance with the procedural calendar established by the Arbitral Tribunal, the Parties subsequently exchanged written pleadings on the Tribunal’s jurisdiction and the merits of the case. On 30 September 2016, Italy filed its Memorial. On 14 April 2017, India submitted its Counter-Memorial, in which it, in addition to responding to Italy’s Memorial, raised objections to the jurisdiction of the Arbitral Tribunal and the admissibility of Italy’s claims, and presented counter-claims. On 11 August 2017, Italy filed its “Reply on the Merits – Counter-Memorial on Jurisdiction – Counter-Memorial on India’s Counter-Claims”. On 15 December 2017, India submitted its “Rejoinder on the Merits – Reply on Jurisdiction – Reply to Italy’s Counter on India’s Counter-Claims”. On 9 March 2018, Italy filed its “Rejoinder on Jurisdiction and on India’s Counter-Claims”.

On 26 November 2018, the Republic of India appointed Dr. Pemmaraju Sreenivasa Rao as arbitrator. Dr. Pemmaraju Sreenivasa Rao succeeds Judge Patibandla Chandrasekhara Rao, who had passed away on 11 October 2018, on the Arbitral Tribunal. In the event of the passing of a member of the Arbitral Tribunal, Article 6 of the Rules of Procedure provides that “the proceedings shall resume at the stage where the arbitrator who was replaced ceased to perform his or her functions, unless the Arbitral Tribunal decides otherwise.”

Due to the illness of Judge Rao, the hearing, originally scheduled to take place in the autumn of 2018, was postponed. On 19 December 2018, the Tribunal announced that the hearing would instead be held from 8 July to 20 July 2019.

From 8 July to 20 July 2019, the hearing was held at the seat of the Permanent Court of Arbitration (“PCA”) at the Peace Palace, The Hague, the Netherlands. The hearing addressed the jurisdiction of the Arbitral Tribunal as well as the merits of Italy’s claims and India’s counter-claims.

At the start of the hearing, on 8 July 2019, the Agent of the Italian Republic and the Agent of the Republic of India each made a brief opening statement, which was webcast live on the Internet. A video recording of the Agents’ opening statements is available below, under the rubric “Video”, the transcript is available under the rubric Transcripts/Minutes, and photographs of the hearing are available for download under the rubric “Image”. Pursuant to Article 23, paragraph 3, of the Rules of Procedure, as amended by Procedural Order No. 7 dated 16 May 2019, the remaining parts of the hearing were confidential and not webcast.

On 21 May 2020, the Tribunal adopted its Award, which was notified to the Parties on 9 June 2020. In accordance with the Rules of Procedure, as amended by Procedural Order No. 7, the Parties were provided with the opportunity to consider whether any parts of the Award should be designated as containing “confidential information”. On 2 July 2020, the Arbitral Tribunal published the operative part (dispositif) of the Award on the PCA Case Repository. On 10 August 2020, the Award, with certain redactions made at the request of the Parties, was published on the PCA Case Repository.

With the agreement of the Parties, the proceedings were closed by order of the Arbitral Tribunal on 12 October 2021.


Case information

Name(s) of Claimant(s) The Italian Republic (State)
Name(s) of Respondent(s) The Republic of India (State)
Names of Parties -
Case number 2015-28
Administering institution Permanent Court of Arbitration (PCA)
Case status Concluded
Type of case Inter-state arbitration
Subject matter or economic sector Law of the sea
Rules used in arbitral proceedings Ad Hoc Rules of Procedure
Treaty or contract under which proceedings were commenced

[Multilateral treaty]
UNCLOS


Language of Proceeding English
Seat of Arbitration (by Country) - N/A -
Arbitrator(s)

H.E. Judge Vladimir Golitsyn (President)

H.E. Judge Jin-Hyun Paik

H.E. Judge Patrick L. Robinson

Professor Francesco Francioni

H.E. Judge P. Chandrasekhara Rao (until 11 October 2018)

Dr. Pemmaraju Sreenivasa Rao (as of 26 November 2018)

 

Representatives of the Claimant(s)

H.E. Minister Plenipotentiary Francesco Azzarello
Ambassador to the Federative Republic of Brazil (as of 7 January 2020)
Minister Plenipotentiary (until 6 January 2020)
Ministry of Foreign Affairs and International Cooperation, Italy 

as Agent;

 

Lieutenant Commander Alessandro Crocetta
Ministry of Defence of the Italian Republic

as Advisor;

 

Sir Daniel Bethlehem KCMG QC
Member of the Bar of England and Wales; Twenty Essex Chambers

Dr. Paolo Busco
Member of the Rome Bar and Registered EU Lawyer with the Bar of England and Wales; Twenty Essex Chambers

Dr. Ida Caracciolo
Professor of International Law, University of Campania “Luigi Vanvitelli”; Member of the Rome Bar

Dr. Ben Juratowitch QC
Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer, Paris

Mr. Sudhansu Swaroop QC
Member of the Bar of England and Wales; Twenty Essex Chambers

Professor Guglielmo Verdirame QC
Professor of International Law, King’s College, London; Member of the Bar of England and Wales; Twenty Essex Chambers

Dr. Philippa Webb
Reader in Public International Law, King’s College, London; Member of the New York Bar and Member of the Bar of England and Wales; Twenty Essex Chambers

Sir Michael Wood KCMG
Member of the International Law Commission; Member of the Bar of England and Wales; Twenty Essex Chambers

as Counsel and Advocates;

 

Mr. Suhail Dutt
Senior Advocate, Member of the Delhi Bar

Ms. Callista Harris
Solicitor admitted in New South Wales, Australia

Mr. Kevin Lee
Advocate of the Supreme Court of Singapore; Member of the Bar of England and Wales

Dr. Daniel Müller
Member of the Paris Bar; Associate, Freshfields Bruckhaus Deringer, Paris

Dr. Mauro Politi
Professor of International Law, University of Trento; former Member of the United Nations Human Rights Committee

Dr. Attila Tanzi
Professor of International Law, University of Bologna; Associate Member, 3VB Chambers, London

Mr. Diljeet Titus
Advocate, Titus & Co Advocates; Member of the Delhi Bar, India

as Counsel;

 

Ms. Francesca Lionetti
Freshfields Bruckhaus Deringer, Paris

as Legal Assistant.

 

Representatives of the Respondent(s)

Mr. Sandeep Chakravorty (as of 10 August 2020)
Joint Secretary (Europe West), Ministry of External Affairs, Government of India

Mr. Sandeep Arya (from 23 April 2020 to 9 August 2020)
Joint Secretary (Europe West), Ministry of External Affairs, Government of India

Mr. G. Balasubramanian (from 7 June 2019 to 22 April 2020)
Joint Secretary (Europe West), Ministry of External Affairs, Government of India

Dr. Vishnu Dutt Sharma (from 7 August 2017 to 6 June 2019)
Joint Additional Secretary and Legal Advisor, Ministry of External Affairs, Government of India

Dr. Neeru Chadha (until 6 August 2017)
Former Additional Secretary and Legal Advisor, Ministry of External Affairs, Government of India

as Agent;

 

H.E. Mr. Venu Rajamony
Ambassador of India in The Hague, the Netherlands

as Co-Agent;

 

Mrs. Uma Sekhar
Joint Secretary, Legal and Treaties Division, Ministry of External Affairs, Government of India

as Co-Agent;

 

Dr. Luther M. Rangreji
Counsellor (Legal), Embassy of India, The Hague

as Deputy Agent;

 

Mr. Donny Michael
Deputy Inspector General, Indian Coast Guard, Government of India

Dr. Sanjay Kumar
Under Secretary, Europe West Division, Ministry of External Affairs, Government of India

Mr. S. Senthil
Legal Officer, Legal and Treaties Division, Ministry of External Affairs, Government of India

Mr. P. Vikraman
Deputy Superintendent of Police, National Investigation Agency, Government of India

as Advisors;

 

Professor Alain Pellet
Emeritus Professor, University Paris Nanterre; Former Chairman of International Law Commission; Member of the Institut de Droit International

Mr. Rodman R. Bundy
Member of the New York Bar; former avocat à la Cour d’appel de Paris; Partner, Eversheds Harry Elias LLP, Singapore

Dr. Vishnu Dutt Sharma
Senior Counsel & Additional Secretary (Retd), Ministry of External Affairs, Government of India

Mr. Benjamin Samson
Centre de droit international de Nanterre (CEDIN), University Paris Nanterre

Mr. Alvin Yap
Advocate and Solicitor of the Supreme Court of Singapore; Eversheds Harry Elias LLP, Singapore

as Counsel and Advocates;

 

Mr. Ludovic Legrand
Centre de droit international de Nanterre (CEDIN), University Paris Nanterre; Advisor in International Law

Ms. Héloïse Bajer-Pellet
Member of the Paris Bar

Ms. Joyce Ng
Advocate and Solicitor of the Supreme Court of Singapore; Eversheds Harry Elias LLP, Singapore

as Counsel.

 

Representatives of the Parties
Number of Arbitrators in case 5
Date of commencement of proceeding 26 June 2015
Date of issue of final award 21 May 2020
Length of Proceedings More than 4 years
Additional notes

 


Documents

Written submission
1. Italy Notification
2. Annexes IT-1 to IT-31
3. Italy Request
4. Annexes IT-32 to IT-64
5. India Written Observations
6. Annexes IN-1 to IN-5
Procedural Documents
Procedural Order No. 5
Procedural Order No. 6
Rules of Procedure
Procedural Order No. 1
Procedural Order No. 2
Procedural Order No. 3
Procedural Order No. 4
Procedural Order No. 7
Procedural Order No. 8
Award or other decision
Order - Request for the Prescription of Provisional Measures
Award
Award - Extracts for Advance Publication
Concurring and Dissenting Opinion - Dr Sreenivasa Rao Pemmaraju
Dissenting Opinion - Judge Patrick Robinson
Joint Dissenting Opinion - Dr Sreenivasa Rao Pemmaraju and Judge Patrick Robinson
Order - Closing of the Proceedings
Press Release
Press Release
Communiqué de presse
Press Release
Communiqué de presse
Press Release
Communiqué de presse
Press Release
Media Accreditation Form
Communiqué de presse
Press Release
Communiqué de presse
Press Release
Communiqué de presse
Press Release
Communiqué de presse
Press Release
Communiqué de presse
Image
Counsel for the Republic of India - 2
Hearing in Session - 3
Counsel for the Italian Republic - 1
Dr. Neeru Chadha, Agent for the Republic of India
H.E. Judge Patrick Robinson and Professor Francesco Francioni
H.E. Judge Vladimir Golitsyn (President)
Hearing in session - 1
H.E. Judge P. Chandrasekhara Rao and H.E. Judge Jin-Hyun Paik
The Arbitral Tribunal
Delegation of the Republic of India
Counsel for the Italian Republic - 3
Preparation for the hearing
Delegation of the Italian Republic
Counsel for the Italian Republic - 2
H.E. Ambassador J.S. Mukul, Co-Agent of the Republic of India
Counsel for the Republic of India - 1
Hearing in session - 2
H.E. Ambassador Francesco Azzarello, Agent of the Italian Republic
The Arbitral Tribunal
Counsel for the Italian Republic
Hearing in session - 1
Hearing in session - 2
H.E. Judge Vladimir Golitsyn (President)
Hearing in session - 3
Counsel for the Republic of India
Minister Plenipotentiary Francesco Azzarello, Agent for the Italian Republic
Mr. G. Balasubramanian, Agent for the Republic of India
Hearing in session - 4
Video
Opening Statements of the Agent for the Italian Republic and the Agent for the Republic of India
Transcript/Minutes
Transcript - Day 1 - Provisional Measures
Transcript - Day 2 - Provisional Measures
Transcript - Opening Statements - Jurisdiction and Merits