Challenging Arbitral Awards in Singapore

by Edward Foyle

Hogan Lovells,
for Hogan Lovells

The Singapore courts have a well-earned reputation for supporting arbitration proceedings and favouring minimal curial intervention. That reputation has been enhanced by a number of recent decisions in which the courts have either granted stays of court actions pending the resolution of arbitration proceedings or rejected applications for arbitral awards to be set aside, including two recent cases, TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] SGHC 186 and BLC and others v BLB and another [2014] SGCA 40. By contrast, the recent decision of the Singapore High Court in AKM v AKN and another and other matters [2014] SGHC 148 provides a rare example of the courts granting an application for an award to be set aside. This article reviews the courts’ approach to applications to set aside arbitral awards as taken in those cases and considers what a successful applicant is required to show.

Legislation

International arbitration awards made in Singapore are final and binding on the parties, and not subject to a right of appeal, pursuant to section 19B of Singapore’s International Arbitration Act (the “IAA”). Applications for arbitration awards to be set aside can be granted if one of the limited grounds in Article 34(2) of the UNCITRAL Model Law (which is annexed to, and forms part of, the IAA) are met, the most relevant of which are that “the party making the application was … unable to present his case” (Article 34(2)(a)(ii)) and that “the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration…” (Article 34(2)(a)(iii)).

The Singapore courts are further empowered to set aside an arbitral award by section 24 of the IAA, which provides that an award may be set aside if “a breach of the rules of natural justice occurred in connection with the making of the award by which the rights of any party have been prejudiced”.

AKM v AKN

In AKM v AKN, the court allowed the application for the award be set aside, accepting the applicant’s arguments that the tribunal had failed to engage with the claimant’s submissions on certain issues and that the tribunal had exceeded its jurisdiction by (i) deciding a further issue in a way which had not been pleaded by either party, and (ii) awarding damages on a loss of opportunity measure (a form of relief which had not been claimed).

In reaching its conclusion, the court conducted a detailed review of the award, the submissions and evidence filed in the arbitration and the hearing transcripts. The court agreed with the applicant that, on the facts of the case, the tribunal had not engaged with various of its submissions and evidence in reaching its award. The court refused to accept the tribunal’s general statement that it had considered the parties’ submissions and evidence as proof that it had in fact done so and simply preferred one side’s submissions. Instead, the court found that on one key issue “the line of reasoning adopted by the tribunal does not suggest that it had even considered the [claimant's] submissions.” The court agreed that this demonstrated that the applicant had been denied its right to be heard, contrary to the principles of natural justice, and held that the award should be set aside under section 24 of the IAA.

The court found that the award could also be set aside because the tribunal had exceeded its jurisdiction by departing from the parties’ pleaded submissions in determining a further issue in dispute and that in doing so it had deciding an issue that was not in the reference to arbitration, contrary to Article 34(2)(a)(iii) of the Model Law. The court also agreed that the tribunal had exceeded its jurisdiction by awarding damages on a loss of opportunity measure. The court found that in its award the tribunal had expressly re-characterised the claim, acknowledging that it was made as a claim for loss of profits but stating that in its view it was better considered a claim for the loss of an opportunity. This was in spite of the fact that it had not heard, or invited the parties to provide, submissions on the claim being decided on a loss of opportunity basis. The court therefore held that the tribunal had again decided an issue that was not within the scope of the reference to arbitration, in breach of Article 34(2)(a)(iii) of the Model Law.

BLB v BLC & TMM Division Maritima

On its face, the level of scrutiny to which the court in AKM v AKN subjected the tribunal’s award is surprising. It appears at odds with the Singapore courts’ reputation for minimal curial intervention and statements made by the courts in the recent decisions TMM Division Maritima and BLB v BLC. In those decisions the court emphasised that its powers to set aside awards “must and should only be exercised charily” (TMM Division Maritima), warned against “over-jealous scrutiny” of arbitral awards (noting the inevitable tactical delaying tactics this could encourage), stressed that “an award should be read generously” (in line with previously settled case law) and that the courts should not “approach an award with a meticulous legal eye endeavouring to pick holes, inconsistences and faults in awards.”

These statements can give the impression that the courts may be too “hands off” in their supervision of arbitration. However, in TMM Division Maritima and BLB v BLC the court concluded that the applicants’ real issue was with the tribunals’ findings of fact and law, which, the court stressed are final and binding on the parties and cannot not give rise to a right to set aside an award. The court further stressed that losing parties must be prevented from having a “second bite at the cherry” by re-characterising and re-pleading the merits of their cases before the courts. In contrast, the issues on which the court allowed the application to set aside the arbitration award in AKM related to the tribunal’s conduct of proceedings.

Comment

Taken together, these decisions demonstrate the courts’ continuing efforts to preserve the balance between upholding the finality of the arbitration process and safeguarding its integrity. The rigorous approach taken by the court in AKM v AKN sends a clear message to arbitrators that they must actively engage with parties’ submissions and expressly deal with them, and all relevant evidence, in their awards (and not just in their internal deliberations). This requirement for considered and detailed awards will ensure that cases are properly decided and will be welcomed by arbitration users given the lack of a right of appeal in Singapore seated arbitrations, especially losing parties who are entitled to know why their submissions and evidence were not accepted by their tribunals. The decision will also give practitioners confidence that the Singapore courts’ principle of minimal curial intervention, so often referred to when declining applications to set aside awards, does not come at the expense of proper supervision of the arbitration process and that the courts will intervene if an applicant can show that an arbitration has not been conducted properly.


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Hong Kong Emerges as Russia’s Refuge while the EU’s Sanctions Cripple Major Russian Businesses

by Olga Boltenko

Arbitral Clerk to Neil Kaplan CBE QC SBS

Numerous commentators have reported on the sanctions war in the past. What remains to see is how the sanctions war affects the Russia-related arbitration geography.

On 8 September 2014, the European Union introduced a new set of sanctions on major Russian companies and wealthy individuals. The sanctions came following Russia’s annexation of Crimea and its involvement with large-scale military operations in the East of the Ukraine. In the EU Council parlance, the sanctions comprise “restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine”, and they are imposed “in view of Russia’s actions destabilizing the situation in Ukraine”. The latest round of sanctions is meant to target “individuals or entities conducting transactions with the separatist groups in the Donbass region of Ukraine”.

The sanctions include “freezing of funds and economic resources” of those said to be responsible for or contributing to Ukraine’s destabilization. Most importantly, the sanctions target Russia’s oil and gas industry and provide for restrictions “on the sale, supply, transfer or export, directly or indirectly, of certain technologies for the oil industry in Russia”.

The expanded list of sanctioned companies includes mostly arms manufacturing businesses and military equipment traders, but it also targets Russia’s oil and gas giants GazpromNeft, TransNeft, and Rosneft, among other companies and industries. The expanded sanctions make it extremely difficult for the sanctioned oil and gas conglomerates and their subsidiaries to cooperate with their EU counter-parts. This will particularly hinder the provision of the future services necessary for deep water oil exploration and production, arctic oil exploration and production, and shale projects in Russia.

In response to the EU sanctions, in what seems to be an outburst of indignation, Rosneft announced on 30 October 2014 that it will not arbitrate its future disputes in jurisdictions that have sanctioned Russian businesses and individuals. For the record, those jurisdictions include not only all EU member-states, but also Canada, Japan, Norway, and Australia. But Russians don’t do anything by halves. Rosneft also urged the Russian legislature to prohibit, on a statutory level, selecting the law of the sanctioning jurisdictions to govern Russian foreign transactions with, presumably, the world. Rosneft also suggested that Russia abolish a number of its international treaties for fear of partiality of the “Western world”.

The impact of the sanctions war on arbitration involving Russian parties is immense. The sanctions war has allegedly brought into question Russia’s use of major European arbitral institutions, such as the SCC, the LCIA, the ICC, the VIAC, and others. If Rosneft, for example, is to arbitrate its future disputes in Stockholm under the SCC rules, while the sanctions are becoming exponentially more severe, will the SCC Secretariat be in a position to request that Rosneft pay its share of the deposit into the SCC accounts in Stockholm? If Rosneft is to resort to administered arbitration services under the institutional rules of the European institutions, will those institutions be in a position to offer those services? But, it is not only that. It has been reported elsewhere that arbitrators of certain nationalities might have to resign from disputes involving Russia’s sanctioned companies and individuals.

Against the backdrop of the sanctions war, and the way it impacts the sanctioned companies’ dispute resolution options, the East looks relatively welcoming and sanction-free to major Russian businesses.

That being said, Russian businesses are familiar with operating in dictatorial and quasi-dictatorial regimes, and they appear wary of those regimes. In China, for example, Russian companies will have to deal with the “Four Difficulties” when it comes to enforcement: (1) the difficulty to find the defendant; (2) the difficulty to find the property against which to enforce; (3) the difficulty to take action against such property; and (4) the difficulty to find the authorities to assist with enforcement. Another China-specific risk is that the Supreme People’s Court may set aside an award if it violates the “Four Fundamental Principles of China”, in addition to more conventional grounds. Those Four Fundamental Principles comprise the following (1) to adhere to the socialist road; (2) to adhere to the people’s democratic dictatorship, (3) to adhere to the leadership of the Communist Party, and (4) to adhere to Marxism-Leninism and Mao’s thought.

Many other popular Asian arbitration jurisdictions are certainly very appealing to Russia at the moment given their developed arbitration laws, relative political stability, experienced judges, excellent venues and other arbitration-related infrastructure. However, the fear of having to arbitrate against those states and their state-owned companies and the fear of having to subject those disputes to local judges still remains.

In Asia, among the non-sanctioning jurisdictions, Hong Kong stands out as perhaps one of the most neutral arbitration seats. It benefits from the “one country, two systems” protection mechanism against the “home town justice”. Prominent common law judges sit on Hong Kong’s Court of Final Appeal. Hong Kong has a track-record of enforcing awards against Chinese state-owned companies. Ms. Valentina Matvienko, the speaker of the Federation Council of Russia, mentioned during her recent trip to Hong Kong that Hong Kong offers the benefits of a sophisticated common law jurisdiction just like the UK, but it is less politicized. For this reason, among others, the Russian government encourages Russian businesses to consider Hong Kong for their operations.

Russian giants that move to China may not necessarily agree to seat their disputes in mainland China, and their Chinese counterparts may equally be reticent to subject their disputes to the supervision of Russian courts. Therefore, Hong Kong is a natural middle ground, and is well prepared for the influx of Russian-Chinese disputes. Last week the Hong Kong International Arbitration Centre unveiled a Russian translation of its 2013 Administered Arbitration Rules. This is a welcome addition to the Chinese, Spanish, Portuguese, Japanese, and Korean versions of the Rules already in place. The HKIAC’s panel of arbitrators and its list of arbitrators contain hundreds of arbitrators who are not affected by the sanctions war. The HKIAC’s Secretariat now offers secretarial services to arbitral tribunals, which is an important feature for the Russian and Chinese disputing parties who are used to heavily administered arbitrations. The HKIAC has also recently amended its model clause now recommending that the parties select the law to govern their arbitration agreements, which preempted Rosneft’s dilemma by at least half a year.

Finally, Russians travelling to Hong Kong to attend arbitration hearings or to consult with their Hong Kong based lawyers do not need to apply for entry visas, as is the case when they have to travel to the European Union, Canada, Australia, Japan, Singapore, and many other traditional arbitration jurisdictions. Hong Kong conveniently offers visas on arrival.

These recent developments would seem to suggest that Hong Kong will see a marked increase in Russian-Chinese disputes in the years to come, turning the city-state into a forum where the Russian Bear meets the Chinese Dragon.


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DIFC Court Practice Direction on the conversion of DIFC Court judgments into DIFC-LCIA awards goes full steam ahead!

by Gordon Blanke

Baker & McKenzie Habib Al Mulla

In a recent lecture at the DIFC Courts (see Lecture Series No. 5, Practice Direction providing for the wider enforcement of Court Judgments through DIFC-LCIA Arbitration Centre, 19 November 2014), Chief Justice Michael Hwang announced that the DIFC Court Practice Direction No. X of 2014 amending Practice Direction No. 2 of 2012 DIFC Courts’ Jurisdiction would likely be adopted and enter into effect in January 2015. On that occasion, the DIFC Courts circulated a revised version of the Practice Direction (the “revised Practice Direction”) taking account of observations made by the legal profession on the draft Practice Direction following a consultation exercise that completed in August earlier this year (see reporting in my previous blog). The Chief Justice took the opportunity to defend the rationale of the Practice Direction and explained in further detail what it was intended to achieve. The Chief Justice confirmed that in principle, the main objective of the Practice Direction was to allow parties to “convert” a DIFC judgment into a DIFC-LCIA arbitration award, which would benefit from pro forma world-wide enforcement by reference to international enforcement instruments, most importantly the 1958 New York Convention and essentially “enhance the enforceability of a DIFC Court judgment”. Chief Justice Hwang emphasised that the new Practice Direction did not intend to curtail the finality or legal effectiveness of the original DIFC judgment, which would remain final and binding and as such enforceable on its own terms. The Practice Direction was simply intended to offer a DIFC judgment creditor an alternative (possibly more attractive) method of enforcement through arbitration.

In order to achieve this objective, the wording of the revised Practice Direction has incorporated a number of amendments, including most importantly in relation to:

• the definition of “enforcement dispute”: The revised definition of “enforcement dispute” is “a dispute between a judgment creditor and judgment debtor with respect to any money (including interest and costs) due under an unsatisfied judgment, including (i) a failure to pay on demand any sum of money remaining due under a judgment on or after the date on which that sum becomes due […]; and/or (ii) the ability or willingness of the judgment debtor to pay the outstanding portion of the judgment sum within the time demanded, but excluding any dispute about the formal validity or substantive merits of the judgment”; this revised definition adequately reflects the desired res iudicata nature of the underlying DIFC judgment, which remains final and binding on the merits: in dispute between the parties will typically be the judgment debtor’s failure to comply with the payment terms of the judgment; it will therefore be essentially a payment dispute between the parties that will be referred to DIFC-LCIA arbitration (and technically speaking not an enforcement dispute, there being no dispute, yet paralysis of enforcement); the revised definition of “enforcement dispute” is also intended to counter concerns that had come to light from the consultation exercise to the effect that the reference to arbitration of a dispute within the meaning of the draft Practice Direction and the enforceability of a resultant award would be hampered by the deficiency of an enforcement dispute not constituting a genuine dispute within the terms required under international enforcement instruments, such as the New York Convention; in this context, Chief Justice Hwang also helpfully reminded of the prevailing position under English common law, which had given a remarkably wide meaning to the term “dispute” for purposes of referral to arbitration;

• the “Referral Criteria” (for an original list of which see my previous blog above): Even though remaining otherwise unchanged, the revised Referral Criteria now provide a sensible carve-out to the effect that the option to convert will not apply to judgments rendered in respect of an employment contract or a consumer contract, both of which types of contract are non-arbitrable pursuant to Article 12(2) of the DIFC Arbitration Law; and

• the modus arbitrandi: The revised Practice Direction requires the appointment of a sole arbitrator, in an obvious attempt to safe time and cost.

Even though not expressly reflected in the revised Practice Direction (which makes mandatory reference to DIFC-LCIA arbitration with seat in the DIFC only), Chief Justice Hwang insisted that in the terms of the Direction, parties remained free to choose another seat and institutional forum as a procedural framework for their arbitration. This being said, according to the Chief Justice, the conversion process would likely be facilitated if referred to arbitration under DIFC law before the DIFC-LCIA (as an institution – one may add – that will be sensitive to and promotive of the main objectives of the revised Practice Direction). This aim, no doubt, will equally be supported by submission of the arbitration agreement (or the “agreement for submission of post-judgment disputes to arbitration” in the terms of the revised Practice Direction) to DIFC laws.

Despite the enhanced wording of the revised Practice Direction, there remains a reasoned concern that (prospective) DIFC judgment creditors that opt into the DIFC-LCIA conversion process will forfeit their right to enforce the original DIFC Court judgment on its own terms: This realisation stems from the mandatory wording of the DIFC-LCIA arbitration agreement used in the Practice Direction and according to which “[a]ny enforcement dispute […] shall be referred to and finally resolved by arbitration […]”; the use of the auxiliary “shall” in the English language imposes an obligation on the DIFC judgment creditor to refer an enforcement disputes within the meaning of the revised Practice Direction to arbitration, thus overtaking the choice to proceed with enforcement before the courts. This being said, a mandatory reference to arbitration would at least contain the risk of parallel proceedings (and their potentially contradictory outcomes), where a DIFC judgment creditor may seek to increase pressure on a recalcitrant judgment debtor by proceeding with enforcement in both litigation and arbitration at the same time.

Only time will tell whether to proceed with the adoption of the revised Practice Direction will have been the result of sound judgement, the proverbial proof of the pudding on this occasion – more so than ever before – being in the eating!


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Israeli Supreme Court Lost between the Israeli Arbitration Act and the New York Convention

by Tamar Meshel

University of Toronto (SJD Candidate)

The dispute in Siemens AG and Siemens Israel Ltd. v. Israeli Electric Cooperation Ltd. (3331/14, Supreme Court of Israel Judgment, 13 August 2014) arose out of a request for tenders for the purchase and maintenance of gas turbines issued by the Israeli Electric Cooperation (IEC), following which it entered into several contracts with Siemens Israel and Siemens AG. All of the contracts contained an identical arbitration clause providing for arbitration “to be held as promptly as possible at such place in Israel as may be mutually agreed upon between the parties”. In 2013, IEC commenced an action against Siemens in the Israeli District Court, claiming that the contracts were signed as a result of a bribe paid by Siemens to one of IEC’s directors. Siemens applied to the District Court to stay the proceedings pursuant to the Israeli Arbitration Act, 1968 (IAA) and the arbitration clause contained in the contracts. The District Court refused to grant a stay of proceedings and Siemens applied for leave to appeal to the Supreme Court of Israel.

In its decision to dismiss the request for leave to appeal, the Supreme Court made two disconcerting findings. First, the Court found that the New York Convention did not apply to the parties’ arbitration agreement because, even though IEC and Siemens AG were from different countries, they selected Israel as the seat of arbitration. On this basis, the Court concluded that Article 5 of the IAA, which governs domestic arbitration and grants the court broader discretion to refuse to stay proceedings, applied to the dispute, rather than Article 6, which governs foreign arbitrations and generally grants narrower discretion to the courts. Second, the Court found that even if Article 6 were applicable, it allows the courts to refuse to stay proceedings for a “special reason” as provided in Article 5.

With respect to the application of the New York Convention, the Supreme Court applied a restrictive interpretation of what should be considered an ‘international’ arbitration agreement. While the New York Convention does not define its scope of application with respect to arbitration agreements, it has been said to adopt a “sweeping approach towards arbitration agreements, placing no literal limitation on those agreements that are subject to its…regime” (Gary B. Born, International Commercial Arbitration, 2014, at 319). The ‘internationality’ of an arbitration agreement may result, therefore not only from having a foreign seat, but also, for instance, from the nationality or domicile of the parties or from the underlying transaction. According to well-established international arbitration practice, when determining whether an arbitration agreement that provides for a seat in the forum state falls within the scope of the Convention, the domestic court should apply it if the arbitration agreement has some ‘foreign’ or ‘international’ connection (Gary B. Born, International Arbitration: Law and Practice, 2012, at 46-47). Although under the IAA an arbitral award is considered foreign only if it is “made outside of Israel”, there is no such requirement where an arbitration agreement is concerned. Therefore, the courts may find an arbitration agreement to be ‘international’ or ‘foreign’ even though Israel is also the seat of the arbitration. In finding that the arbitration agreement should be considered to be domestic because the seat of arbitration is Israel, the Supreme Court relied, inter alia, on Israeli academic authorities explaining that “the New York Convention applies also to agreements between two Israelis so long as the arbitration is conducted in a foreign country”. However, while this requirement applies to arbitration agreements between two Israeli parties, it does not necessarily apply where the arbitration agreement is between an Israeli party and a non-Israeli party.

In the present case, IEC entered into separate contracts with Siemens Israel, an Israeli party, and with Siemens AG, a foreign party. Therefore, while its arbitration agreement with the former may well be considered as domestic, its arbitration agreement with the latter should arguably have been viewed as international. Since the existence of these two contracts raises issues of ‘split’ proceedings, which in themselves may justify a refusal to grant a stay of proceedings, the Court’s pronouncement that the arbitration agreement between IEC and Siemens AG should also be considered as domestic, and that the action against Siemens AG should not be stayed for this reason, seems to add little to the analysis other than potential confusion and a restrictive application of the New York Convention.

With respect to its interpretation of Article 6 of the IAA, the Supreme Court unnecessarily blurred the distinction between Articles 5 and 6. It has long been recognized in Israeli jurisprudence that the courts’ discretion to refuse a stay of proceedings under Article 6 is much narrower than under Article 5 and is generally limited to the grounds set out in Article II(3) of the New York Convention. On the facts of this case, a finding that the issues of bribery and fraud underlying the dispute are “incapable of settlement by arbitration” according to Article II(1) of the New York Convention could have sufficed to justify the lower court’s refusal to stay the proceedings, without the Court having to pronounce on the, now seemingly unlimited, nature of the courts’ discretion to stay proceedings under Article 6. Instead, the Supreme Court not only found that the Israeli courts have discretion to refuse a stay of proceedings under Article 6 of the IAA even where the New York Convention’s exceptions do not apply, but also went further to equate this discretion with the much broader discretion granted to the courts under Article 5 by subordinating the former to the latter. The Court found that regardless of which Article an arbitration agreement fell under, Article 5(c), which allows the courts to find there is “special reason” to refuse a stay of proceedings, is fully applicable. This finding of the Court seems overly broad as well as unnecessary in light of its existing discretion to find, as it in fact did, that the subject matter of the dispute is not arbitrable and refuse to stay the proceedings on this basis. It also arguably begs the question of why the Israeli legislature chose to include a separate provision in the IAA regarding stay of proceedings in favor of international arbitrations subject to an international convention, if the ultimate result would effectively be the same as under Article 5.

While the ultimate holding of the Supreme Court may be correct, these pronouncements are disconcerting as they may result in a misunderstanding and misapplication of the New York Convention and Article 6 of the IAA in future stay of proceedings decisions. This is particularly so in light of the Supreme Court’s justification of its decision in terms of the rationale underlying the New York Convention. The Court found this rationale to be “the concern that the courts of member states would be reluctant to refer domestic parties to arbitration taking place in a foreign country, which could incentivize parties to turn to their own local courts in order to have disputes heard in their preferred forum” (emphasis in original). The Court therefore concluded that “in the present case it is clear that refusing to stay the proceedings does not undermine this purpose since, under the parties’ agreement, the arbitration would have in any event taken place in Israel” (emphasis in original). However, the rationale underlying the New York Convention, and presumably also Article 6 of the IAA, arguably extends also to the concern that domestic courts would be reluctant to relinquish their jurisdiction and refer parties to an ‘international’ dispute to arbitration, regardless of its seat. Accordingly, it has been said that “[t]he purpose of the New York Convention is to promote…the settlement of international disputes through arbitration…With respect to arbitration agreements, the drafters sought to secure that the parties’ original intention to have their disputes settled by arbitration would not be frustrated by a subsequent unilateral submission of the dispute to courts.” (ICCA’s Guide to the Interpretation of the 1958 New York Convention: A Handbook for Judges, at 14-15, 36).


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A blast from the past… the ‘unified Arab investment treaty’ and finality of arbitration awards

by Khalil Mechantaf

Baker & McKenzie

In one of the very rare decisions issued by courts in the Arab world applying the provisions of the Unified Agreement for the Investment of Arab Capital in the Arab States (the “UAIAC”), the Cairo Court of Appeal has revived in its decision dated February 5, 2014, the principle of finality of arbitration awards, by which it rejected a claim for annulment of a UAIAC award, filed by the State of Libya (first claimant to annulment), the Libyan ministries of Economy and Finance (second and third claimants) and the General Authority for encouraging investments (fourth claimant), against a kuwaiti investor, Al-Kharafi & Sons Co. (case n° 39, judicial year 130/2014). The ratio decidendi of the court’s decision reads the following:

“Since the arbitral award, subject matter of this annulment, is rendered on the basis of the Unified Agreement for the Investment of Arab Capital in the Arab States, to which the Arab Republic of Egypt is a member, such award shall be considered as final immediately following its render by the arbitral tribunal, and the application for annulment shall therefore be rejected pursuant to Article 2(8) of the treaty’s Annex”.

Many of you may be aware of the arbitral proceedings between the parties that lead to a final award rendered in Cairo on March 22, 2013, and was reported on IA Reporter and GAR. In summary, Al-Kharafi & Sons Co. (Claimant in arbitration), brought a claim for damages against the State of Libya on the basis of clause 29 of the contract concluded between them in 2006, which provides for a UAIAC clause, as follows:

“Any dispute arising between the parties in connection with the interpretation or enforcement of this contract shall be settled amicably, failing which the dispute shall be referred to arbitration in accordance with the Unified Agreement for the Investment of Arab Capital in the Arab States dated 26 November 1981″.

The claim was brought following the decision n° (203/2010) issued by the General People’s Committee for Industry, Economy and Trade in Libya, which terminated the investment project without awarding the Claimant an appropriate compensation. The final award rendered by a UAIAC tribunal ruled in favor of the Claimant awarding it an astonishing USD 930 Million, which left the State of Libya with no choice but to refuse honoring the award and bring an action for annulment before the Egyptian courts, being the courts of the seat of arbitration.

The Cairo Court of Appeal’s decision is beyond any doubt one of the very rare decisions, if not the first decision, issued in respect of a UAIAC award, and confirms with it the application of one of the supranational principles of international arbitration… the finality of arbitral awards. In fact, the challenges brought against investment treaty awards has remained one of the dark little secrets of investment treaty arbitration as enforcement of international awards is becoming increasingly unpredictable and expensive, belying the efficiency and effectiveness of arbitration. That should not be anymore the case if an investor is lucky enough to have a UAIAC arbitration as the parties’ agreed dispute resolution mechanism.

By way of background, the UAIAC was signed on November 26, 1980 in Amman, Jordan, during the Eleventh Arab Summit Conference. It entered into force in Egypt on July 19, 1992, and is now applicable in twenty-one Arab States. The finality of arbitration awards is provided under Article 2(8) of the treaty’s Annex, which reads the following:

“Awards of an arbitral tribunal rendered in accordance with the provisions of this article shall be final and binding. Both parties must comply with and implement the award immediately upon its render unless the tribunal specifies a deferral of its implementation or of the implementation of a part thereof. No appeal may be made against arbitration awards”.

Based on the foregoing, arbitral awards are final and cannot be subject to any challenge brought before the courts of a member State, even if that challenge is on grounds of domestic public policy. The validity of the arbitration award is therefore subject only to the provisions of the UAIAC, irrespective of the grounds of annulment laid down in the law of the seat of arbitration. The principle of finality of awards was included by the drafters of the UAIAC to avoid the common pitfalls in investment treaty arbitration, which allow the courts of the host State to avoid the enforcement of an award condemning the national government’s attitude towards inward foreign investments. Additionally, the UAIAC is absent of any provision in respect of the need for an execution order within the meaning of its Article 2(8). This is evidenced by the provisions of Article 11 of the UAIAC, which provides:

“Where the decision of the arbitral panel fails to be implemented within three months of its render, the matter shall be brought before the Arab Investment Court to rule on such measures for its enforcement as it deems appropriate”.

Accordingly, an award debtor has three months to voluntarily enforce an arbitration award. Failing to do so will result in a compulsory enforcement process that can be brought before the Arab Investment Court (AIC). Interestingly, Article 11 limited the powers of the AIC to only review applications for enforcement, instead of annulment of awards, which thus confirms the finality and binding effect thereof. The Cairo Court of Appeal took a formalistic approach in applying such provisions and emphasized the need to respect its international commitments, as follows:

“Any international treaty signed and ratified by the Arab Republic of Egypt becomes an integral part of Egyptian law. If such a treaty includes special rules with regard to arbitration, those rules shall override any other rules laid down in the Egyptian arbitration law n°27/1994″.

As a result, awards rendered under the context of UAIAC do not need to fit in internationalist or nationalist-positivist views and can operate outside the constraints of national legal systems in the Arab world. The court reviewing any claim for annulment in that regard would only be allowed to reject the claim, even when it includes a challenge on the application ratione materiae and ratione personae of the UAIAC, or even a challenge on public policy.

It is expected that the surge of investment claims under the UAIAC as a result of the Arab uprising will trigger further court decisions issued by other member States, which should provide further clarity on the application of Article 2(8) and determine, if any, the limits of application of the principle of finality.


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The Growth of Arbitrator Power to Control Counsel Conduct

by Margaret Moses

Loyola University Chicago School of Law,
for ITA

There have been increasing calls over the past few years for an international code of conduct for counsel in international commercial arbitration, and for arbitrators to have more power to control counsel conduct. The growing concern is related to significant changes that have taken place in international arbitration practice. Arbitration is no longer controlled by an elite group of arbitrators whose judgment, neutrality and expertise were rarely questioned and who resolved disputes with a minimum of acrimony between the parties. Today, international commercial arbitration differs in significant ways from the days of the “Grand Old Men.” In the modern global arena, arbitrators are themselves more diverse, and must deal with a far more complex, contentious and diverse practice.

These changes mean that arbitrators confront many situations in which there is no clear rule to follow. The issues that come before arbitrators today are no longer simply contract disputes and related issues, but also complex statutory issues that may involve the public interest, such as issues of anti-trust law. Arbitrators may be faced with questions of fraud and corruption, which could involve collusion of the parties. The parties themselves come from increasingly diverse backgrounds, with different legal standards and ethical traditions. Arbitration clauses, rules and laws do not typically spell out for arbitrators the scope of their power to act in many of these situations.

Moreover, as commercial arbitration has grown to involve very high stakes disputes, there are increasing complaints about guerilla tactics, where counsel deliberately impede or obstruct the arbitral process. A tribunal’s failure to be able to control counsel prevents effective and efficient resolution of the dispute. Given their obligation to try to issue an enforceable an arbitral award and their duty to ensure a fair procedure, arbitrators need to be armed with sufficient power to rein in improper conduct, to level the playing field, and to prevent the undermining of the entire process.

Nonetheless, there is a risk that if arbitrators assume an authority to which they are not clearly entitled, their award may be vacated on the ground that they have exceeded the scope of their power. This dilemma has refocused attention on what is meant by the “inherent” power of arbitrators. To what extent can an arbitrator be deemed to have the proper power to act in situations where no express power is available?

The International Law Association’s Committee on International Commercial Arbitration has issued a helpful Report on the concepts of inherent and implied powers of arbitrators (“ILA Report”). The ILA Report does not put forth specific definitions in light of the highly contextual nature of the proper application of such powers. However, it suggests a generally workable framework for understanding the terms. Basically, it views implied powers as those that can be implied from the text of the arbitration agreement or rules, or which are included within specific discretionary powers expressly provided to the tribunal. Such powers tend to be those that an arbitrator needs to move the arbitration forward. Inherent powers, on the other hand, tend to be called upon when novel or controversial situations arise, for which no express or implied rule appears to apply. These powers are deemed to derive from the nature and function of the tribunal. In recent times, arbitrators have assumed many of the same obligations and duties of a court, and like a court, have an obligation to ensure a fair process for the parties. In functioning as an adjudicatory body, the tribunal must have the power to safeguard the integrity of the arbitral process.

Although inherent powers may at times be necessary, they are not unlimited. Arbitrators cannot, for example, assert an inherent power if there are specific provisions in the law or applicable rules that prohibit that power. In addition, arbitrators must be able to establish that the inherent power is necessary for the tribunal to fulfill its proper adjudicatory function. Finally, in light of their obligation to try to render an enforceable award, arbitrators must not exercise an inherent power in a manner that could lead to non-enforcement. Because the parameters of inherent powers are still somewhat indistinct, arbitrators must struggle to determine when such powers can be properly applied.

There is help in sight, however. Effective October 1, 2014, the new London Court of International Arbitration Rules (LCIA Rules), by giving arbitrators more extensive express and implied powers to deal with the conduct of counsel, contribute to shrinking the conceptual space where the dilemma of inherent power resides. An Annex to the LCIA Rules, entitled General Guidelines for the Parties’ Legal Representatives, deals directly with arbitrator power to control attorney conduct. The Guidelines address the issue of guerilla tactics by prohibiting obstructionist activities and unfounded challenges to the arbitrator’s appointment or jurisdiction. The Guidelines also prohibit the legal representatives from presentation of false evidence, from the knowing concealment of documents required to be produced, and from ex parte contact with any member of the tribunal or the LCIA Court (excluding the Registrar). Importantly, the Guidelines give the tribunal specific power under Article 18.6 of the Arbitration Rules to impose sanctions for any violation by a legal representative.

The sanctions that an arbitrator can impose under Article 18.6 include any measure necessary to fulfill the arbitrator’s general duties under Article 14.4(i) and (ii). These provisions describe the general duties of the tribunal, which include a duty to act fairly and impartially as between all parties, to adopt suitable procedures, to avoid unnecessary delay and expense, and to provide a fair, efficient and expeditious means to resolve the parties’ dispute. In essence, these Rules provide arbitrators with the powers necessary to discharge their adjudicatory function. Even if these powers are considered to be implied, because not every potential sanction is enumerated, nonetheless the ability to control counsel is based on broad powers under the LCIA Rules, and not on inherent powers.

Two other sections of the LCIA Rules require that a party must receive the tribunal’s approval to appoint new counsel once the tribunal has been constituted (Article 18.3), and that the tribunal can withhold approval where such change could compromise the tribunal or the award (Article 18.4). This makes express a power that had been considered inherent in two widely cited investment arbitration cases — Hvratska Elektopriveda v. Slovenia, where a counsel who was added at the last minute was disqualified by the tribunal, and Rompetrol v. Romania, where a challenged counsel was not disqualified. The use of inherent power to disqualify counsel in this kind of situation, much discussed by the tribunals in these two cases, becomes a non-issue in commercial arbitrations under the LCIA Rules.

The LCIA Rules bind those parties who choose them. Similar Guidelines on Party Representation, adopted earlier by the International Bar Association (May 2013), will apply if parties agree, or if the tribunal decides the Guidelines are appropriate, after having determined it has the power to apply them. Thus, if the parties do not choose to apply the Guidelines, any tribunal who wants to apply them must first consider whether it has the power to do so. This may slow down their specific use or application by arbitrators, who may be cautious about their authority to apply Guidelines not agreed to by the parties. Nonetheless, like the successful IBA Guidelines on Taking of Evidence and on Conflicts of Interest, these Guidelines may influence thinking about what constitutes a proper international standard.

Like the LCIA Rules, the IBA Guidelines prohibit false representations of fact or evidence, knowing concealment of documents, and ex-parte communications with the tribunal. They also permit the tribunal to exclude a party representative appointed after the constitution of the tribunal if such an appointment would create a conflict. Finally, arbitrators have broad power to impose sanctions for misconduct of a party representative.

To the extent that the kinds of powers exercised by arbitrators under these Rules and Guidelines are seen as express or implied rather than inherent, they are less likely to be viewed as novel or controversial. They may influence arbitrators who are not subject to the same rules to nonetheless call upon similar powers, which, even though inherent, increasingly appear to be both non-controversial and necessary to carry out their adjudicatory function.

There has been some negative response to the IBA Guidelines, particularly to Guideline 12, which requires a party representative, in a situation where document production is likely to be required, to inform the client that it needs to preserve documents. This has been described as simply providing “an opportunity to waste time and money on procedural skirmishes” (See Michael Schneider, President’s Message in 31 ASA Bulletin 3/2013 (September)). The Swiss Arbitration Association (ASA) has criticized the approach of both the IBA and the LCIA because it believes a better solution to developing international ethical standards would be to create a “truly transnational” independent body with power to enforce ethical standards in arbitration (Out-Law.com, 10/21/2014). However, the development of such a body, assuming an agreement to do so could be widely accepted and implemented in the international community, would probably take a number of years. In the meantime, the use of the IBA Guidelines and the LCIA Rules may well help develop a global standard for the conduct of Party Representatives.


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DIFC Court of Appeal confirms the DIFC’s status as host jurisdiction for recognition of domestic awards

by Gordon Blanke

Baker & McKenzie Habib Al Mulla

In a recent ruling of the DIFC Court of Appeal (see Case CA-005-2-14, ruling of the DIFC Court of Appeal of 3rd November 2014), Justice Sir David Steel affirmed the previous ruling of the DIFC Court of First Instance in Banyan Tree v. Meydan Group LLC (see Case No. ARB 003/2013 – Banyan Tree Corporate PTE LTD v. Meydan Group LLC, ruling of the DIFC Court of First Instance of 27 May 2014 and my previous blog). As a result, it can now be taken as established (at least pending onward enforcement before the Dubai Courts) that the (offshore) DIFC Courts do have competence to hear actions for the ratification of domestic (onshore) Dubai awards (in the present case an award rendered under the auspices of the Dubai International Arbitration Centre (DIAC)) even in the absence of any geographic nexus with the DIFC, not even the presence within it of assets belonging to the award debtor. In this context, it is worth mentioning that the DIFC Court of First Instance’s analogical findings in relation to the ratification and enforcement of foreign awards rendered outside the UAE in Case No. ARB 002/2013 (see Case No. ARB 002/2013 – (1) X1, (2) X2 v. (1) Y1, (2) Y2, ruling of the DIFC Court of First Instance, undated, 2014 and my previous blog) equally stand affirmed, no appeal having been mounted by the award debtor within the prescribed time-limit.

By way of background, a brief reminder of the facts: Banyan Tree Corporate PTE LTD (“Banyan”), an award creditor incorporated in Singapore, sought from the DIFC Courts an order for recognition and enforcement of a DIAC award against the UAE-based Meydan Group LLC (“Meydan”), the award debtor. Meydan objected to the DIFC Courts’ jurisdiction and competence to hear applications for recognition and leave to enforce of awards not rendered in the DIFC. To the best of anyone’s knowledge, the parties’ relationship was devoid of any geographic link with the DIFC, it not even being certain whether Meydan may have any assets there.

In his ruling, Justice Sir David Steel categorically rejected any purported requirements for in personam or subject-matter jurisdiction of the DIFC Courts by analogy to requirements under the prevailing UAE federal law to hear an action for recognition and enforcement of an onshore Dubai award. To the contrary, Sir David Steel confirmed that “[o]n the face of it [Article 42 of the DIFC Arbitration Law (see DIFC Law No. 1 of 2008 as amended)] imposes an obligation on the DIFC court to recognise and to enforce an award irrespective of the state or jurisdiction in which it was made.” (see Case CA-005-2-14, para. 14) According to Sir David Steel,

“[t]he DIFC (and its Court) is in effect exempted from the Commercial and Civil laws of the Union [i.e. the UAE]. The State of Dubai is afforded freedom under [Federal] Law 8 of 2004 to promulgate appropriate legislation. DIFC Law No. 10 of 2004 included jurisdiction in respect of any application over which the DIFC court has jurisdiction by virtue of DIFC laws and regulations. These included the enforcement of the arbitration awards both by virtue of Article 7 of Law No. 12 of 2004 and Art. 11 of DIFC Law No. 1 of 2008 (Arbitration Law).” (see Case CA-005-2-14, para. 27)

In this context, Sir David Steel confirmed that once service had properly been effected in compliance with the Judicial Authority Law as amended (see Dubai Law No. 12 of 2004 as amended by Dubai Law No. 16 of 2011), “the court must recognize the award” subject to the exhaustive grounds for refusal set out in Article 44 of the DIFC Arbitration Law (see Case CA-005-2-14, para. 32). In addition, Sir David Steel noted that

“[t]he absence of assets in the jurisdiction may be relevant consideration to the exercise of discretion to grant execution. But even then a judgment creditor is entitled to levy execution against assets which come into the jurisdiction after the judgment is entered or which did not even exist at the time. Furthermore an enforcement order alone may be of value in the tracing of assets by, for example, oral examination […]. In any event, it is clear that there is no barrier to enforcement given the absence of assets within the jurisdiction. […]” (see Case CA-005-2-14, para. 33)

Justice Sir David Steel equally rejected an argument of forum non conveniens, emphasising that in reliance on Article 42 of the DIFC Arbitration Law “[t]he DIFC Courts ha[d] exclusive jurisdiction and [that] thus the point fail[ed] in limine.” (see Case CA-005-2-14, para. 39) Consequently, Sir David Steel concluded that “the judge [at first instance] was quite correct to conclude that Article 5(A)(1)(E) of the Judicial Authority Law acted as the gateway by which Article 42 of the [DIFC] Arbitration Law conferred jurisdiction on the DIFC Courts to recognise the award as binding within the DIFC. That jurisdiction is not circumscribed by any requirements for in personam or subject matter connection with the DIFC.” (see Case CA-005-2-14, para. 37)

Finally, Justice Sir David Steel rejected an argument of abuse of process in the following, self-explanatory terms:

“43. It is right to say that there is no evidence that Meydan has assets within the DIFC (or otherwise within the jurisdiction of the DIFC Courts). But there is no basis for asserting that the application for enforcement within the DIFC has no independent purpose. I do not understand it to be accepted that no such assets exist or alternatively that no such assets (whether they currently exist or not) may come within the jurisdiction following an order for enforcement. In any event an order for enforcement would enable Banyan to engage the court’s machinery (in the form of saying a freezing order or an oral examination) for obtaining details of any assets that are or become available.

44. It is also right to say that by virtue of Article 7 of the Judicial Authority Law and the Protocol of Jurisdiction between the DIFC Court and the Dubai Courts [i.e. the Dubai DIFC Protocol No. 999 of 2009], Banyan is enabled to present a DIFC order for enforcement to an execution judge of the Dubai Courts without that judge being enabled to consider the merits of the underlying order. But it is difficult to classify the use of that machinery as an abuse, not least before that machinery is even invoked. […] If in due course the matter is left to be raised before the courts of Dubai (which are the courts of the seat) the question whether the bar on considering the merits of the DIFC order before the execution judge would also inhibit the Dubai courts from ruling on a challenge to the validity of the underlying award is a matter for the Dubai courts and is a matter on which we have heard no argument.”

Ultimately, Sir David Steel concluded, quoting H.E. Omar Al Muahiri of the DIFC Court of First Instance with approval:

“I reject the submission […] that it cannot have been the intention of the Dubai legislator in promulgating the Judicial Authority Law to allow the DIFC Courts to be used as a conduit jurisdiction for enforcement of an arbitration award against assets in Dubai (outside the DIFC) in circumstances where the owner of those assets has a legitimate expectation that such enforcement action can only properly be brought in the Dubai Courts. It seems to me plain, from the provisions in Article 7 of the Judicial Authority Law, that the legislator did contemplate that there could be circumstances in which recognition of a foreign arbitral award by the DIFC Court could trigger enforcement proceedings, through the Dubai Courts, against assets in the Emirate of Dubai (but outside the DIFC) without the need for separate recognition of the award by the Courts of Dubai; and vice versa.” (see Case CA-005-2-14, para. 49)

Importantly, both Justice Roger Giles and H.E. Justice Ali Al Madhani, one of the two UAE local DIFC-resident judges, fully concurred in Justice Sir David Steel’s ruling. In this context, it is also worth reminding that the Court of First Instance ruling in the present case was originally handed down by H.E. Justice Omar Al Muahiri, the other DIFC-resident judge of UAE origin. Given the local pedigree of the DIFC Courts’ rulings, it is hard to believe that the Dubai Courts would not lend their full support and carry through with any enforcement actions within the strict (permissive) terms of Article 7 of the Judicial Authority Law as amended.

This being said, there is some residual concern that in a follow-on enforcement action, the Dubai Courts may seek to rely upon a public policy argument to the effect that in personam and/or subject-matter jurisdiction, which in turn is a question of public policy under UAE law and may therefore be raised ex officio by the Dubai Courts in actions before them (see e.g. Case No. 14 of 2013 – Canal de Jonglei, ruling of the Dubai Court of Cassation of 18 August 2013 and my related blog), would have properly rested with the Dubai Courts. In my preliminary view, this argument lacks merit given that in the express terms of Article 7(3)(c) of the Judicial Authority Law as amended, “the [Dubai Court] execution judge may not reconsider the merits of the judgment, decision or order [including a DIFC Court order ratifying an arbitral award]”, which in turn is not subject to a public policy exception. It is hence arguable that if the Dubai Courts were to rely upon a public policy argument to refuse enforcement of a DIFC ratified award, they would be in violation of their obligations under Article 7(3)(c) of the Judicial Authority Law as amended. It is further arguable that the Judicial Authority Law as amended does not provide for a public policy exception expressly because if it did, it would violate the regime of mutual trust and recognition of judgments, decisions and orders and hence their intended free movement between the Dubai and DIFC Courts and vice versa in the terms laid down in Article 7 of the Judicial Authority Law as amended. It would also be questionable to what extent contracting parties could ever be empowered to contract into the jurisdiction of the DIFC Courts by virtue of Article 5(A)(2) of the Judicial Authority Law as amended if the Dubai Courts on the other hand retained a valid objection of public policy on the basis of their purported in personam and/or subject-matter jurisdiction. To invoke a public policy argument of that nature would simply defeat the very purpose of the codified regime of mutual co-operation in the execution of judgments, decisions and orders between the Dubai and DIFC Courts in the terms of Article 7 of the Judicial Authority Law as amended. In other words, in my view, it must be understood that the Judicial Authority Law (having been adopted by the Ruler of Dubai) expressly limited any ground for recourse by the Dubai and DIFC Courts on the basis of public policy, giving preference to a regime of trust and mutual recognition in the enforcement of judgments, decisions and orders emanating from the respectively other court. This would, in my humble submission, also find support in the fact that constitutionally speaking, the DIFC Courts form part of the legal system of the Emirate of Dubai and as such ultimately qualify as a Dubai Court.

This being said, only time will tell the manner in which the Dubai Courts will ultimately exercise their jurisdiction and lend or not support to the natural consequences of the recent ruling of the DIFC Court of Appeal.


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Juries for Foreign Investment Disputes

by Martin Jarrett

University of Mannheim, Germany

Paraphrasing Churchill, investment arbitration is the worst form of foreign investment dispute resolution, except for all the others. Post-Suez, governments are more civilised than to employ gunboat diplomacy for their own investors, and local courts are inherently partial. Achieving neutrality is the objective, and the only means: investment arbitration. This is the conventional wisdom for rationalising the use of arbitration for foreign investment disputes.

Investment arbitration is imperfect. An oft-cited cause of this imperfection is doctrinal inconsistency, with an ICSID appellate body being trumpeted as the antidote. Partiality of arbitrators, propensity to annul decisions, and lack of transparency have also been identified.

Although these reasons might appeal to legal academics and practitioners, they fail to explain the substantial popular dissatisfaction with investment arbitration. The popular discontent is grounded in something more fundamental: investment arbitration suffers from a legitimacy deficit. This legitimacy deficit has two sources being neocolonialism and legal formalism.

The genesis of foreign investment law is neocolonial justice. Investors expect Western standards of justice, and the assumption is that local courts do not offer it. Operatively, foreign investment law imports Western standards of justice for foreign investment disputes, by way of investment arbitration, to satisfy this expectation. Even with the jurisdictional condition precedent to first use local courts for disputes, foreign investment law reserves ultimate jurisdiction on foreign investment disputes for investment arbitration.

Neocolonialism manifests itself in many ways in investment arbitration.

Foremost is the use of arbitration itself for resolving foreign investment disputes. Modern arbitration is a by-product of colonialism. In its formative years, modern arbitration developed as British traders began to exploit commercial opportunities created by the British Empire – land law occupied British courts were ill-suited to resolve foreign trade disputes.

Additionally, there are other factors that make neocolonialism apparent, from the usual identity of the parties and the arbitrators, to the educational backgrounds of the arbitrators, and the dominance of Anglo-American law firms as legal counsels. The consequence is that investment arbitration is perceived as being far from neutral, but more ‘Western’.

Subconsciously aware of their perceived partiality, arbitrators instinctively adopt legal formalism in an attempt to dispel this perception. They are well intentioned, but it is ultimately a flawed strategy.

First, the nature of foreign investment disputes means that there is a myriad of pertinent factors in question, not only legal factors. All the other factors, most particularly the economic factors, are discarded when arbitrators subscribe to pacta sunt servanda.

Second, and most importantly, the vagueness of foreign investment law requires arbitrators to construe it. In this respect, the distinction between construction and interpretation must be appreciated. Construction is the process of giving meaning to vague terms, while interpretation is the process of selecting the correct meaning of ambiguous terms.

Construction necessarily involves creating law. Take, for example, the vague standard of protection ‘fair and equitable treatment’. To address its vagueness, arbitrators have developed ‘sub-rules’ which define ‘fair and equitable treatment’, such as the ‘dominant element’ of the legitimate expectations of the investor.

When arbitrators create these sub-rules, they engage in law making. It could be countered that the nature of foreign investment law means that this is the task of arbitrators. This is not dispute. What is in dispute is the appropriateness of that task for arbitrators, particularly considering the perception of neocolonial justice. In summary, arbitrators do not have the mandate or authority to legislate for developing states.

If the reasons above are accepted, the conclusion is that the legitimacy deficient means that investment arbitration is not merely imperfect, but flawed.

Juries are the mechanism to overcome these problems.

It is submitted that a group of twelve randomly selected jurors should make the decision, by a qualified majority of eight, on the merits question: has the host state failed to protect the investment? In theory, a dispute resolution process for foreign investment disputes, which includes juries, could take place at any arbitral institution, although the administrative facilities of ICSID make it the most appropriate forum.

It might be nauseating to some, but when vague rules have to be applied to complex and multilayered fact scenarios, value based decisions pervade. All the relevant factors may be taken into account, not merely the legal factors. This should be celebrated. Value based decisions should be made in foreign investment disputes, and the proposed jury has the credibility to make these kinds of decisions, as opposed to a three member arbitral panel.

On questions of procedural law, creating the perception of justice is paramount. In this regard, it should be considered: would a decision of a ‘global jury’ on the natural resources of a state offer a greater perception of justice than the current system? Following this logic, the credibility of the jury would be solidified by constituting it with jurors of various nationalities: a global decision-making body for a global area of law.

Juries are not without their difficulties and disadvantages.

The principal problem would concern logistics. Who could serve on a jury? How would the jury pool be created? Would the jury selection process intolerably delay proceedings?

These problems could be overcome. The potential jurors could be drawn from the diplomatic service in Washington and New York. Jury selection process could be limited by restricting the grounds for challenge. Moreover, challenges against jurors would be limited by virtue of the limited information legal counsel would have on the jurors, compared to the wealth of information available on arbitrators.

Another problem lies in the legal framework. Foreign investment law does not provide for juries. There are two options to overcome this problem: amendment or augmentation.

Amendment involves rewriting the Washington Convention to provide for juries. As the proponents of an ICSID appellate body have fatalistically recognised, however, amending the Washington Convention is not realistic.

Augmentation would involve creating an optional protocol to the Washington Convention. By signing this optional protocol, signatories would stipulate that if they are sued at ICSID, a jury would be used during the merits phase. This is a viable option for creating a workable legal framework for juries.

There will be considerable psychological aversion to juries in foreign investment dispute resolution, much of it borne out of unfamiliarity with juries and the complexities they entail.

The current system is attractive because of its simplicity, but this creates a striking disparity between the substantive nature of the disputes, and the procedure for their resolution. In some disputes, the future of the natural resources of developing states is in question. How should the average citizen of such a state react when informed that the wealth, upon which this state hopes to develop, is decided by such a simple process?

A global jury might not completely satisfy this hypothetical citizen, however, it would certainly be more satisfactory than informing him or her that three Western educated arbitrators will decide.


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Job Posting: Associate Editor of the Kluwer Arbitration Blog

by Roger Alford (Editor)

Notre Dame Law School

I am writing to announce an opening for the position of Associate Editor for the Kluwer Arbitration Blog.

The Associate Editor will report directly to me and work closely with the Kluwer team and Crina Baltag, our other Associate Editor. The essential duties of the Associate Editor are (1) collecting, editing and reviewing guest submissions for posting on the blog; (2) coordinating the blog posts of the permanent contributors; (3) writing period blog posts as a permanent contributor; and (4) assisting the editorial team with strategic planning for the blog. As part of your duties you will liaise every week with some of the best arbitration counsel in the world.

Monique Sasson has ably served us in this position (along with Crina Baltag) for the past two years but has taken a position in the private sector. She will continue to serve as a Managing Editor for the ITA Board of Reporters of the Kluwer Arbitration database.

The Associate Editor will work remotely and the anticipated workload is approximately 5 hours per week. If you are interested please submit a resume, writing sample, references and cover letter by email to me at ralford@nd.edu. The deadline for receiving applications is November 21, 2014.


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Arbitration under the Mexican Energy Reform: The Lessons of COMMISA v. PEMEX

by Herfried Wöss

Wöss & Partners SC

1. Background

Modern arbitration in Mexico commenced with the reforms to the Mexican Commercial Code in 1989 and with the incorporation in such code of the UNCITRAL Model Law on International Commercial Arbitration in 1993. Project agreements with state entities such as Petróleos Mexicanos (PEMEX) and the Federal Electricity Commission (CFE) may be submitted to arbitration since 1993. In 2009, arbitration was made available for all federal government procurment contracts under the Federal Law for Public Works and Services (Public Works Law) and the Federal Law for Acquisitions, Leases and Services of the Public Sector (Public Acquisition Law), with the exception of the administrative rescissión and termination of contracts and project agreements which is actually not found in the laws governing PEMEX and CFE. The Public-Private Partnerships Law (PPP-Law) as of January 16, 2012 extends non-arbitrability to any act of authority by a State entity.

The limitations of arbitrability in the Public Works and Acquisition and the PPP laws seem to have been provoked by the COMMISA v. PEMEX case. In such case, claimant pursued constitutional litigation (amparo) parallel to the arbitration in order to have the aministrative rescission of the project agreement by PEMEX declared as an act of authority, which is a requirement of admissibility in any amparo action, and to have such act annulled because of purported violations of the Mexican Federal Constitution. Whereas the courts finally recognized that the administrative rescission, that had hitherto been considered as of a commercial nature de iure gestionis, was an act of authority de iure imperii, claimant lost the amparo. The arbitral award was annulled in Mexico due to the binding force of the act of authority and the res iudicata effect of the amparo judgment which denied the annulment of such act of authority on the arbitration.

Under French law, on which Mexican law is based, State contracts, by definition, are not arbitrable save when the contrary is expressly established by law, as has been the case with PEMEX and CFE since 1993. French and Mexican law provides for exorbitant powers of the State, allowing for the unilateral modification and termination of a contract. Unilateral administrative acts are considered to be valid unless annulled in an ordinary administrative procedure or an annulment action in an administrative or amparo court procedure, as confirmed by the Second Chamber of the Mexican Supreme Court in 2006, as part of the COMMISA amparo procedure, which makes arbitration redundant in case of the administrative rescission or termination of a contract with a State contract.

The COMMISA case is also an example of the problematic use of the French law institution of the ‘contrat administratif’, as used in Mexico and in various Latin American countries, as already observed by Hector Mairal in 2002. Whereas in France contract termination or events distorting the contractual balance trigger indemification obligations of the State or State entity, in Mexico and many Latin American countries such indemnification obligations are very rudimentary or non-existent. Combined with the inherent inarbitrability of acts of State, this creates a considerable political risk which is likely to provoke investment arbitrations.

The Mexican energy reform, through its secondary laws as of August 11, 2014, makes a radical change abandoning the institution of the administrative contract in favour of project agreements based on commercial law, with the partial exception of the administrative termination or rescission of contracts for the exploration and extraction of oil and gas.

2. The arbitration regime of PEMEX and the CFE after the energy reform

Under new Ley de Petroleos Mexicanos (new PEMEX law) as of August 11, 2014, project agreements are governed by such law and commercial law as expressly stated in articles 3 and 7, second paragraph. In particular the new PEMEX law does not contain any reference to administrative rescission or termination and expressly allows for commercial terms in project agreements.

Of utmost importance is the new article 80 of the new PEMEX law, which establishes that all acts during the public tender proceeding until the award of a project are considered administrative acts. Once the contract has been signed, any contract related acts are considered of a private law nature or, in case of PEMEX, de iure gestionis, and are governed by mercantile law or civil law. This evidences the mercantile character of project agreements under the 2014 PEMEX law. By expressly stating that future project agreements are commercial agreements and omitting any reference to the administrative rescission and termination of the project agreement, the COMMISA contingency seems to have been eliminated.

Article 115 of the new PEMEX law expressly provides for arbitration and any other means of amigable dispute resolution to be agreed by PEMEX and its subsidiaries, based on commercial law and international treaties, without any exception as regards arbitrability ratione materiae.

The same legislative approach has been taken with the Federal Electricity Commission under the new CFE law as of August 11, 2014. Articles 3 and 7 of the new CFE law expressly refers to commercial legislation applicable to its project agreements. Any acts of the entity in public tender procedures are considered administrative acts, however, and as article 82 of the new CFE law clearly establishes, commercial law is applicable to projects agreements. Article 118 of the new CFE repeats the authority to compromise in arbitration with the same wording as under the new PEMEX law.

With the new PEMEX and CFE laws, the Mexican Congress has taken an important step to eliminate the political risk caused by the ruling of the Second Chamber of the Supreme Court on the non-arbitrability of the administrative rescission and termination as a consequence of the COMMISA amparo, by expressly providing for a mercantile regime and confirming the lack of any non arbitrability issues with respect to project agreements.

The new Electricity Industry Law provides for commerial contracts between the State and private entities in its articles 5 and 66 based on the Mexican Commercial Code including permits or concessions, save where the law expressly provides for the State acting as authority. The law does not contain any provisions with respect to the administrative rescission or termination of a contract. Due to the mercantile character of energy contracts, arbitration seems to be permitted, though there is no express provision to that respect in the law. The Energy Regulatory Commission resolves disputes with respect to interconections and disputes of companies of the energy sector with the National Energy Control Center. Contracts with land owners relating to rights of way and other encumbrances necessary for the transmission and distribution of energy are subject to dispute resolution before federal tribunals. Similar provisions are found in the new Geothermal Energy law.

The energy reform left untouched the inarbitrability issues under the public works and acquisition laws, with respect to the administrative rescission and termination, as well as with any act of authority under the PPP law. Moreover, the notion of act of authority is not clearly defined in Mexican jurisprudence.

3. Oil and Gas Exploration and Production Contracts under the new Hydrocarbon Law

Oil and gas exploration and production contracts with the National Hidrocarbons Commisions are governed by commercial law, subject to the imperative provisions contained in the Hidrocarbon Law, as expressly established in article 22 of the new Hidrocarbon Law as of August 11, 2014 and its future regulations. This is confirmed in article 97 of the new Hidrocarbons law which expressly refers that the acts of the hydrocarbon industry are considered mercantile providing for the application of the Mexican commercial and civil codes.

Such contracts with the new National Hidrocarbons Commission under the Hydrocarbon Law as of August 11, 2014 relate to natural resources such as oil and gas that are the property of the Nation. In spite of their mercantile character, article 19, section VIII, of the Hidrocarbons Law clearly establishes that provisions for the administrative rescission and termination have to be included in these contracts. The causes for administrative rescission are expressly regulated in article 20 of the new Hidrocarbons Law and refer to gross non-performance of the contractor.

Article 21 of the new Hidrocarbon law provides for arbitration of oil and gas exploration and production contracts subject to the the Mexican Commercial Code as lex arbitri. The administrative rescission and termination is expressly excluded from arbitration as a matter of inarbitrability ratione materiae. This means that according to the judgment of the Second Chamber of the Mexican Supreme Court as of 2006, the administrative rescission and termination would have to be litigated before Mexican federal courts in administrative matters, which are quite competent in tax matters, water and perhaps also competition and intellectual property law, but fairly ill-equiped to hear cases on complex infrastructure projects.

Article 20, paragraph 6, of the new Hidrocarbon law expressly states that in case of an administrative rescission, the contractor has to transfer the contractually assigned area including any ‘connected and accessory goods and equipments’ to the State without indemnification. However, compensation provisions may be established in the oil and gas exploration contract according to paragraph 7 of article 20 of the new Hidrocarbon law, which seems to indicate that the contractor will not be able to refuse the return the exploration and production area including its sunk investment, but may obtain a compensation established in the contract and executed through an ordinary administrative procedure before Mexican federal courts. Therefore, it will be important that the future oil and gas exploration and production contracts contain straightforward lump sum compensation provisions with respect of any sunk investment made by the contractor.

4. Conclusions

The secondary laws of the Mexican energy reform are an important step to guarantee full arbitrability with respect to PEMEX and CFE contracts and to recoup the status ex ante COMMISA, albeit under a modern commercial law regime. However, the effects of the judgment of the Second Chamber of the Mexican Supreme Court rendered as a consequence of the COMMISA amparo are still felt in the general federal contract regime and the PPP law. A particular situation exists under the new Hidrocarbons Law where considerations relating to the public domain of oil and gas seem to have motivated the administrative rescission regime, albeit in the context of a commercial project agreement, which will pose considerable challenges to contract drafters. This leads to three categories of federal project agreeements or concessions: (a) administrative contracts, (b) hybrid contracts based on commercial law but subject to administrative rescission or termination which can only be litigated in ordinary administrative litigation or amparo, and (c) commercial project agreements which are fully arbitrable such as under the new PEMEX and CFE laws.


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