State Entities in International Arbitration
Published on 4. March 2009
Book
Hardback
615 pages
978-1-929446-96-4 (ISBN)
Description
The International Arbitration Institute (IAI) series on international arbitration is a new periodic series of publications that will focus on cutting edge issues and developments in international arbitration.
About the IAI:
The International Arbitration Institute (IAI), an organization created under the auspices of the Comité Français de l'Arbitrage (CFA), was created to promote exchanges international arbitration. The IAI is designed to promote exchanges on current issues in the field of international commercial arbitration. Its activities include the regular organization of international conferences, colloquiums, as well as conducting various research projects.
States get involved in international affairs either directly or through their instrumentalities. The activities of these instrumentalities raise many issues, two of which have given rise to significant recent developments both in arbitral and domestic case law.
The first is whether and under what conditions a State may be held liable for the conduct of such instrumentalities on the basis of an investment treaty. This issue will be the subject of a systematic survey of ICSID and ICC case law and that of other arbitral tribunals so as to identify the circumstances in which such liability may arise.
The second issue, which is addressed by State courts, is whether and under what conditions State instrumentalities that have a separate and autonomous legal personality may be held liable for the pecuniary obligations of the State. A comparative law study focusing in particular on solutions found in French, English and U.S. law will provide answers to the question as to whether an award holding a State liable may be enforced against the assets of instrumentalities of that State, where such instrumentalities are prima facie separate juridical persons.
About the IAI:
The International Arbitration Institute (IAI), an organization created under the auspices of the Comité Français de l'Arbitrage (CFA), was created to promote exchanges international arbitration. The IAI is designed to promote exchanges on current issues in the field of international commercial arbitration. Its activities include the regular organization of international conferences, colloquiums, as well as conducting various research projects.
States get involved in international affairs either directly or through their instrumentalities. The activities of these instrumentalities raise many issues, two of which have given rise to significant recent developments both in arbitral and domestic case law.
The first is whether and under what conditions a State may be held liable for the conduct of such instrumentalities on the basis of an investment treaty. This issue will be the subject of a systematic survey of ICSID and ICC case law and that of other arbitral tribunals so as to identify the circumstances in which such liability may arise.
The second issue, which is addressed by State courts, is whether and under what conditions State instrumentalities that have a separate and autonomous legal personality may be held liable for the pecuniary obligations of the State. A comparative law study focusing in particular on solutions found in French, English and U.S. law will provide answers to the question as to whether an award holding a State liable may be enforced against the assets of instrumentalities of that State, where such instrumentalities are prima facie separate juridical persons.
More details
Person
Emmanuel Gaillard (See Above) and Jennifer Younan Associate Shearman & Sterling LLP, International Arbitration Practice Group, Paris.
Content
INTRODUCTION Emmanuel Gaillard
PART I
Are States Liable For The Conduct Of Their Instrumentalities?
Introductory Remarks
Peter Tomka
ICSID Case Law
Ibrahim Fadlallah
ICC Case Law
Eduardo Silva Romero
Case Law of Tribunals Other Than ICC and ICSID
Barton Legum
Concluding Remarks
Pierre-Marie Dupuy
PART II
Can A Party Benefiting From An Awardrendered Against A State Enforce The Award Against An Instrumentality Of Such State?
Introductory Remarks
Charles Poncet
French Law
Eric Teynier
English Law
Judith Gill
U.S. Law
Eugene Gulland
Concluding Remarks
Sigvard Jarvin
Effectiveness of Arbitral Awards, State Immunity from Execution and Autonomy of State Entities - Three Incompatible Principles
Emmanuel Gaillard
The Relationships between States and their Instrumentalities in Investment Arbitration
Sébastien Manciaux
ANNEXES
ANNEX 1
Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, adopted by the International Law Commission at its fifty-third session (2001) (excerpts)
ANNEX 2
United States Foreign Sovereign Immunities Act of 1976
ANNEX 3
ICSID Case No. ARB/03/3, Impregilo S.p.A. v. Islamic Republic of Pakistan, Decision on Jurisdiction, April 22, 2005
ANNEX 4
ICSID Case No. ARB/01/11, Noble Ventures, Inc. v. Romania, Award, October 12, 2005
ANNEX 5
Paris Court of Appeals, Société nationale des pétroles du Congo v. Walker InternationalHoldings Ltd., July 3, 2003 (French original; English translation)
ANNEX 6
Paris Court of Appeals, Winslow Bank & Trust Company Limited v. Société nationale des hydrocarbures, January 22, 2004 (French original; English translation)
ANNEX 7
Cour de cassation, Noga v. EADS, May 12, 2004 (French original; English translation)
ANNEX 8
Paris Court of Appeals, Central Bank of Iraq v. Hochtief AG, September 1, 2005 (French original; English translation)
ANNEX 9
U.S. Supreme Court, First National City Bank v. Banco Para el Comercio Exterior de Cuba, June 17, 1983
ANNEX 10
List of Participants to the IAI Conference Held in Paris on October 20, 2005
ANNEX 11
Table of Abbreviations
ANNEX 12
Table of Authorities
PART I
Are States Liable For The Conduct Of Their Instrumentalities?
Introductory Remarks
Peter Tomka
ICSID Case Law
Ibrahim Fadlallah
ICC Case Law
Eduardo Silva Romero
Case Law of Tribunals Other Than ICC and ICSID
Barton Legum
Concluding Remarks
Pierre-Marie Dupuy
PART II
Can A Party Benefiting From An Awardrendered Against A State Enforce The Award Against An Instrumentality Of Such State?
Introductory Remarks
Charles Poncet
French Law
Eric Teynier
English Law
Judith Gill
U.S. Law
Eugene Gulland
Concluding Remarks
Sigvard Jarvin
Effectiveness of Arbitral Awards, State Immunity from Execution and Autonomy of State Entities - Three Incompatible Principles
Emmanuel Gaillard
The Relationships between States and their Instrumentalities in Investment Arbitration
Sébastien Manciaux
ANNEXES
ANNEX 1
Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, adopted by the International Law Commission at its fifty-third session (2001) (excerpts)
ANNEX 2
United States Foreign Sovereign Immunities Act of 1976
ANNEX 3
ICSID Case No. ARB/03/3, Impregilo S.p.A. v. Islamic Republic of Pakistan, Decision on Jurisdiction, April 22, 2005
ANNEX 4
ICSID Case No. ARB/01/11, Noble Ventures, Inc. v. Romania, Award, October 12, 2005
ANNEX 5
Paris Court of Appeals, Société nationale des pétroles du Congo v. Walker InternationalHoldings Ltd., July 3, 2003 (French original; English translation)
ANNEX 6
Paris Court of Appeals, Winslow Bank & Trust Company Limited v. Société nationale des hydrocarbures, January 22, 2004 (French original; English translation)
ANNEX 7
Cour de cassation, Noga v. EADS, May 12, 2004 (French original; English translation)
ANNEX 8
Paris Court of Appeals, Central Bank of Iraq v. Hochtief AG, September 1, 2005 (French original; English translation)
ANNEX 9
U.S. Supreme Court, First National City Bank v. Banco Para el Comercio Exterior de Cuba, June 17, 1983
ANNEX 10
List of Participants to the IAI Conference Held in Paris on October 20, 2005
ANNEX 11
Table of Abbreviations
ANNEX 12
Table of Authorities