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State Contracts and Transnational Arbitration

Published online by Cambridge University Press:  27 February 2017

Georges R. Delaume
Georges R. Delaume*
Affiliation:
International Bank for Reconstruction and Development; George Washington University
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Extract

Agreements providing for the arbitral settlement of disputes arising out of contracts between foreign sovereigns and private contracting parties have become a permanent feature of transnational commerce.

This particular favor for the arbitral, as opposed to the judicial, settlement of state contract disputes is attributable to a number of reasons, some of which are conventional and others the consequence of contemporary developments. Traditionally, arbitration has proved attractive because of the special expertise that it may provide and lack of publicity, which may increase the willingness of the losing party to comply with the award.

Type
Research Article
Information
American Journal of International Law , Volume 75 , Issue 4 , October 1981 , pp. 784 - 819
Copyright
Copyright © American Society of International Law 1981

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References

1 21 UST 2517, TIAS No. 6997, 330 UNTS 3, reproduced in G. Delaume, Transnational Contracts, App. II, Booklet A, at 17 (1980).

2 484 UNTS 349, reproduced in G. Delaume, supra note 1, at 29.

3 Reproduced in id. at 57.

4 17 UST 1270, TIAS No. 6090, 575 UNTS 159, reproduced in id., App. II, Booklet B, at 5.

5 The term “investment” is not defined in the Convention, but would presumably include most economic development agreements ranging from the conventional concessionary agreement to such modern types of agreements as those regarding joint ventures, profit sharing, and service contracts.

6 G. Delaume, note 1 supra, paras. 11.02 and 12.06.

7 Reproduced in id., App. I, Booklet D, at 5.

8 28 U.S.C. §§1330, 1332(a)(2), (3), and (4), 1391(f), 1441(d), 1602–11, reprinted in 71 AJIL 595 (1977), 15 ILM 1388 (1976), G. Delaume, supra note 1, App. I, Booklet D, at 73.

9 Reproduced in 17 ILM 1123 (1978), G. Delaume, supra note 1, App. I, Booklet D, at 73.

10 G. Delaume, supra note 1, chs. XI and XII.

11 Id., para. 13.05.

12 The SIA (§2(7)) attempts to solve this problem by providing that the head of a state’s diplomatic mission in the United Kingdom shall be deemed to have authority to submit on behalf of his state in regard to any proceedings.

The FSIA does not address the question; section 1605(a)(1) simply provides that a waiver of immunity, once made, is irrevocable.

13 G. Delaume, note 1 supra, para. 3.03.

14 Id., para. 1.01.

15 See text and notes 30–43, 63–66, and 73–88.

16 See text and note 26 infra.

17 Art. 12(1), reading as follows:

  • 1.

    1. Where a Contracting State has agreed in writing to submit to arbitration a dispute which has arisen or may arise out of a civil or commercial matter, that State may not claim immunity from the jurisdiction of a court of another Contracting State on the territory or according to the law of which the arbitration has taken or will take place in respect of any proceeding relating to:

    • (a)

      (a) the validity or interpretation of the arbitration agreement;

    • (b)

      (b) the arbitration procedures;

    • (c)

      (c) the setting aside of the awards, unless the arbitration agreement otherwise provides.

18 Section 9(1), reading as follows: “Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration.”

Unlike the European Convention, this provision is not limited in scope to situations in which the seat of arbitration would be in the United Kingdom or in which arbitration would be conducted in accordance with, e.g., English law. Conceptually, section 9(1) would apply in connection with non–British arbitration to the extent that action would be brought in a court in the United Kingdom to enforce an arbitration agreement providing for arbitration in another country.

19 Section 1605(a)(1).

20 Victory Transport, Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354 (2d Cir. 1964), cert, denied, 381 U.S. 934, 85 S.Ct. 1763, 14 L.Ed.2d 698 (1965); Petrol Shipping Co. v. Kingdom of Greece, 360 F.2d 103 (2d Cir.), cert, denied, 385 U.S. 931, 87 S.Ct. 291 (1966); Pan American Tankers Corp. v. Republic of Viet-Nam, 296 F.Supp. 361 (S.D.N.Y. 1969); Ipitrade Int’l, A.S. v. Federal Republic of Nigeria, 465 F.Supp. 824 (D.D.C. 1978); Republique Socialiste Federale Yougoslave v. S.E.E.E., Decision of July 8, 1970, Trib. Gr. Inst., Paris, 98 J. Droit Int’l 131 (1971). See also Libyan American Oil Co. v. Socialist People’s Libyan Arab Jamahirya, 482 F.Supp. 1175 (D.D.C. 1980).

The judgment of the Swiss Federal Tribunal of June 19, 1980, Socialist Libyan Arabic Popular-Jamahiriya v. LIAMCO, 20 ILM 151 (1981), does not deal with the question, but with the related issue of whether fixing the seat of arbitration in Switzerland is a sufficient basis for the jurisdiction of the Swiss courts. See text and note 138 infra.

21 H.R. Rep. No. 94–1487, 94th Cong., 2d Sess. 18 (1976).

22 Verlinden B.V. v. Central Bank of Nigeria, 488 F.Supp. 1284 (S.D.N.Y. 1980), aff’d, 647 F.2d 320 (2d Cir. 1981). See also Chicago Bridge & Iron Co. v. Islamic Republic of Iran, 506 F.Supp. 981, 987–88 (N.D. 111. 1980).

23 See the Ipitrade (465 F.Supp. 824 (D.D.C. 1978)) and Libyan American Oil Co. (482 F.Supp. 1175 (D.D.C. 1980)) cases.

24 20 ILM 161 (1981). Appeal was discontinued following settlement between the parties.

25 As a practical matter, however, it is clear that enforcing an arbitration agreement against a state may not be free from difficulty, unless the parties have submitted to institutional arbitration or have provided an effective machinery for the appointment of the arbitrators, given the arbitrators authority to pass judgment on the validity of the agreement, and determined the rules of procedure to be followed.

26 Losinger & Co., [1936] PCIJ, ser. C, No. 78, at 105; Lena Gold fields award, Sept. 3, 1930, 36 Cornell L.Q. 42, 44 (1950); Sapphire Int’l Petroleums Ltd. v. National Iranian Oil Co. award, March 15,1963,35 ILR 136,170(1967); BP Exploration Co. (Libya) Ltd. v.Government of the Libyan Arab Republic award, Oct. 10, 1973, 53 ILR 297, 311, and 356 (1979); Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the Government of the Libyan Arab Republic award, Jan. 19, 1977, 17 ILM 3 (1978), 53 ILR 389 (1979), para. 10; Libyan American Oil Co. [LIAMCO] v. Government of the Libyan Arab Republic award, 20 ILM 1 (1981), translated into French in [1980] Rev. Arb. 132.

Compare in the case of an ICC award, Case No. 2321,102 J. Droit Int’l 938 (1915), commented on by P. Lalive, L’Etat en tant que Partie à des contrats de concession ou d’investissement conclus avec des sociétés privées étrangères, in 1 Unidroit, New Decisions in International Trade Law: Reports 317, para. 63 (1976). See also Jiménez de Aréchaga, L’Arbitrage entre les Etats et les sociétés privées étrangères, in Mélanges en l’honneur de Gilbert Gidel 367, 375 (1961).

An isolated opinion to the contrary is that of Dr. Mann, who considers that in the event the arbitration agreement is governed by the law of the state party, the state would have the power to nullify the agreement by changing its own law. See Mann, State Contracts and International Arbitration, reprinted in Mann, F., Studies in International Law 256, 286 (1973)Google Scholar. This opinion is just as unacceptable as the view advanced by the same author, that a state would incur no responsibility if it changed the content of its own law when that law is the proper law of the contract. See Mann, , State Contracts and State Responsibility, 54 AJIL 570, 581 (1960)Google Scholar.

27 Decision of May 5, 1976, 102 ATF la 574 (1976), commented on by Lalive, P. in 34 Annuaire Suisse de Droit Int’l 387 (1978)Google Scholar, translated into English in 5 Y.B. Com. Arb. 217 (1980).

28 Parts of the award are reproduced in 5 Y.B. Com. Arb. 179 (1980).

29 Compare the attempt by the Greek Government retrospectively to exempt Greek entities from obligations undertaken as obligors and guarantors of bonds issued in England, which met with defeat in the English courts: Adams v. National Bank of Greece & Athens, [1960] All E.R. 421. See also G. Delaume, note 1 supra, para. 4.05.

30 Lalive, note 27 supra, para. 23, at 400.

31 Alsing Trading Co. Ltd. & Svenska Tandsticks Aktiebolaget v. The Greek State award, Dec. 22, 1954, 23 ILR 633 (1956).

32 Sapphire Int’l Petroleums Ltd. v. National Iranian Oil Co., 35 ILR 136 (1967) [hereinafter cited as Sapphire award]. See Suratgar, , The Sapphire Arbitration Award, the Procedural Aspects: A Report and a Critique, 3 Colum. J. Transnat’l L. 152 (1965)Google Scholar.

33 BP Exploration Co. (Libya) Ltd. v. Libyan Arab Republic, 53 ILR 297 (1979) [hereinafter cited as BP award].

34 23 ILR at 639.

35 Ibid.

36 Sapphire award, 35 id. at 169; see also BP award, 53 id. at 309.

37 BP award, 53 id. at 309; compare Sapphire award, 35 id. at 168.

38 Saudi Arabia v. Arabian American Oil Co. (Aramco), Aug. 23, 1958, 27 id. at 117, 155 (1963) [hereinafter cited as ARAMCO award].

39 Texaco Overseas Petroleum Co./California Asiatic Oil Co. v. The Government of the Libyan Arab Republic, Jan. 19, 1977, 104 J. Droit Int’l 350 (1977), English translation in 17 ILM 3 (1978), 53 ILR 389 (1979) [hereinafter cited as TOPCO/Calasiatic award].

40 ARAMCO award, 27 ILR at 155; see also TOPCO/Calasiatic award, para. 13.

41 ARAMCO award, 27 ILR at 155–56, quoted in TOPCO/Calasiatic award, para. 13.

42 TOPCO/Calasiatic award, para. 14.

43 Id., para. 15.

44 Id., para. 12.

45 An altogether different question is whether the Act will achieve its purpose. Although the possibility of avoiding English judicial review of awards may make London a more attractive place of arbitration, foreign states cannot remain indifferent to the fact that their immunity is seriously curtailed by the SIA and that their assets in England might be subject in a significant number of cases to measures of execution. See G. Delaume, note 1 supra, para. 13.11.

46 Libyan American Oil Co. v. Government of the Libyan Arab Republic, 20 ILM at 42 (p. 82 of the award) [hereinafter cited as LIAMCO award].

47 Id. at 43 (p. 83 of the award).

48 In particular, Art. IV(1) of the European Arbitration Convention. See G. Delaume, note 1 supra, para. 13.10.13.

49 See the subsection “Finding the Applicable Law” in section II of this paper.

50 1975 Rules, Art. 8(5):

Before the file is transmitted to the arbitrator, and in exceptional circumstances even thereafter, the parties shall be at liberty to apply to any competent judicial authority for interim or conservatory measures, and they shall not by so doing be held to infringe the agreement to arbitrate or to affect the relevant powers reserved to the arbitrator.

51 Art. 26:

  • 1.

    1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject–matter of the dispute, including measures for the conservation of the goods forming the subject–matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.

  • 2.

    2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.

  • 3.

    3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.

52 G. Delaume, note 1 supra, para. 13.10.

53 ICSID Arbitration Rules, Rule 39:

  • (1)

    (1) At any time during the proceeding a party may request that provisional measures for the preservation of its rights be recommended by the Tribunal. The request shall specify the rights to be preserved, the measures the recommendation of which is requested, and the circumstances that require such measures.

  • (2)

    (2) The Tribunal shall give priority to the consideration of a request made pursuant to paragraph (1).

  • (3)

    (3) The Tribunal may also recommend provisional measures on its own initiative or recommend measures other than those specified in a request. It may at any time modify or revoke its recommendations.

  • (4)

    (4) The Tribunal shall only recommend provisional measures, or modify or revoke its recommendations, after giving each party an opportunity of presenting its observations.

54 See, e.g., the Federative Republic of Brazil DM 150 million bonds of 1979/1987, according to which:

(3) All disputes arising from matters provided for in these conditions shall be settled pursuant to a separate Arbitration Agreement of December 14, 1978, under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three Arbitrators appointed in accordance with the Rules. Place of Arbitration shall be Paris, France. The bondholders are also entitled, however, upon their discretion, to bring any legal action before any competent Court of law in Brazil without waiving their right to arbitration.

(4) Brazil is not entitled to any right of immunity in connection with any Arbitration proceeding or a proceeding before a Brazilian Court.

55 G. Delaume, note 1 supra, paras. 12.02–.04.

56 Subject to “dépeçage” techniques making allowance for the possible application to specific issues of the law of the investor’s country, e.g., in regard to its corporate authority and its subjection to the laws of its own country that regulate foreign investments. See id., para. 1.03 & n . 11, and para. 1.13 n.2.

A rather remarkable exception is found in the Service Agreement dated Oct. 16, 1978, between Total Abu Al Bu Khoosh, S.A. & Compagnie Francaise des Pétroles for Operation of Abu Al Bu Khoosh Field (Petroleum Legis., Middle East, Supp. 67), which provides in Article 10 that “[t]he construction, validity and performance of this Agreement shall be governed by French law.”

57 In contrast to stipulations found in arrangements contracted during the 1950’s and 1960’s, which attempted to “internationalize” or “de-localize” economic development agreements, agreements concluded in the 1970’s mostly provide for the applicability of the law of the host state. See G. Delaume, note 1 supra, para. 1.13 & nn.41–46.

58 Note that “internationalization” or “de-localization” of economic development agreements is never complete. There are always matters, such as those regarding the movements of expatriate staff, the employment of local labor, social legislation, and customs and exchange regulations, to name but a few, that continue to be governed by the law of the host state. Although that law may itself be “stabilized” in various respects, this does not mean that it is always frozen in point of time and that a gradual adjustment of the respective rights and obligations of the parties is necessarily excluded with the passage of time. Typical examples are those regarding taxation and the payment of royalties or other financial arrangements between the parties which provide for greater allowances in the initial start-up period than during years of full operation.

59 See, among an abundant literature, Jean-Flavien, Lalive, Contracts between a State or a State Agency and a Foreign Company —Theory and Practice: Choice of Law in a New Arbitration Case, 23 Int’l & Comp. L.Q. 987 (1964)Google Scholar; Logie, , Les Controls petroliers iraniens, 65 Rev. Générale Droit Int’l Public 932 (1965)Google Scholar; Weil, , Problèmes relatifs aux contrats passés entre un Etat et un particulier, 128 Recueil des Cours 95, 161–62 (1969 III)Google Scholar; Sacerdoti, G., I Contratti tra Stati e Stranieri nel diritto internazionale 215–78 (1972)Google Scholar; P. Lalive, supra note 26, at 317–73: El-Kosheri, , Le Régime juridique créé par les accords de participation dans le domaine pérolier, 147 Recueil des Cours 219, 299–311 (1975 IV)Google Scholar.

60 Agreement of 1962 between the Republic of Vietnam and foreign oil companies, quoted by Spofford, , Third Party Judgment and International Economic Transactions, 113 Recueil des Cours 121, 205 (1964 III)Google Scholar.

61 LIAMCO award, 20 ILM at 35 (p. 67 of the award).

62 BP award, 53 ILR at 329.

63 TOPCO/Calasiatic award, para. 41.

64 Id., para. 44.

65 Even in regard to transactions between private persons, no longer is the maxim Qui eligit judicem eligit just deemed to constitute an automatic choice of law. See G. Delaume, note 1 supra, para. 3.03 & nn. 18–26.

66 See P. Lalive, note 26 supra, para. 41.

67 Petroleum Legis., Middle East, Supp. 51.

68 Id., Asia and Australasia, Supp. 60.

69 Section XI, 1.2, 1.3 and 1.5. Note, however, that section XI, 1.4 provides that “[i]n the event the arbitrators are unable to reach a decision, the dispute shall be referred to Indonesian courts of law for settlement.”

A similar “fallback” provision in favor of the host state courts is found in the Petroleum Operation Contract dated Dec. 7, 1977, between Empresa Nacional de Petróleo and Areo Petróleos Chile, S.A., and Amerada Hess Petróleos Chile, S.A. (Art. 15), which also provides that Chilean law shall govern the contract (Art. 14). See Petroleum Legis., South America, Supp. 50.

70 The provision of section II, 2.2 contrasts with section XII, 1.2 of the contract, according to which “This Contract shall not be annulled, amended or modified in any respect, except by mutual consent in writing of the Parties thereto.”

71 Petroleum Legis., Europe, Supp. 54.

72 See, e.g., the 1977 Production Sharing Contract for Petroleum Exploration and Production between the Syrian Arab Republic, the Syrian Petroleum Co. and the Syrian American Oil Corp. (SAMOCO), (Art. XXIII), id., Middle East, Supp. 57.

73 See the award of Sept. 3, 1930 in the Lena Goldfields case, whose exact significance is not free from doubt; Nussbaum, , The Arbitration between the Lena Goldfields Ltd. and the Soviet Government, 36 Cornell L.Q. 31, 36, and 42–53 (1950)Google Scholar; Mann, , The Proper Law of Contracts Concluded by International Persons, 35 Brit. Y.B. Int’l L. 34, 55 (1959)Google Scholar, reproduced in F. Mann, note 26 supra, at 211; Petroleum Development Ltd. v. Sheikh of Abu Dhabi, award of Sept. 1951, 18 ILR 534 (1953); Ruler of Qatar v. International Marine Oil Co. Ltd., award of June 1953, 20 id. at 534 (1953).

74 The contrast between investments in developed and developing countries and the response to the legal problems arising therefrom is particularly well put by Wengler, , Les Accords entre Etats et entreprises étrangères sont-ils des traités de droit international?, 76 Rev. Générale Droit Int’l Public 313 (1972)Google Scholar.

75 See, e.g., Art. 46 of the Agreement of Sept. 9, 1954 between Iran and the Consortium, quoted in Sapphire award, 35 ILR at 174. See also Suratgar, note 32 supra, at 162–63.

76 This aspect of the problem is discussed in G. Delaume, note 1 supra, para. 2.07 & nn. 15–19.

77 35 ILR at 174.

78 Id. at 173.

79 Thus, the NIOC-AGIP Agreement of Aug. 24, 1957 (1 Petroleum Legis., Middle East), which is referred to in the Sapphire award, contained both a reference to cases of force majeure “if recognized as such by principles of international law” (Art. 37C) and a choice of governing law reading as follows:

In view of the difference in the nationality of the parties to this Agreement, the latter shall remain valid, and must be interpreted and applied according to the principles of law common to both Iran and Italy and, in the absence of such principles, in accordance with the principles of law recognized normally by civilized nations, namely those which have already been involved [sic] by international tribunals [Art. 40].

80 17 ILM 1321 (1978). See Joy, , Arbitration of Economic Development Agreements: The Impact of Revere v. OPIC, 20 Va. J. Int’l L. 861 (1980)Google Scholar.

81 That clause read in part as follows:

1.15. Expropriatory Action. The term “Expropriatory Action” means any action which is taken, authorized, ratified or condoned by the Government of the Project Country, commencing during the Guaranty Period, with or without compensation therefor, and which for a period of one year directly results in preventing:

. . .

(d) the Foreign Enterprise from exercising effective control over the use or disposition of a substantial portion of its property or from constructing the Project or operating the same.

17 ILM at 1322.

82 Id. at 1331.

83 Ibid.

84 ICJ Pleadings 64–280 (1952).

85 See text and notes 63–64 supra.

86 17 ILM at 1335.

87 Ibid, (footnote omitted).

88 Id. at 1372.

89 See the TOPCO/Calasiatic award, paras. 81 – 8 9 , and the LIAMCO award, 20 ILM at 51 – 58 (pp. 99–113 of the award). See also von Mehren & Kourides, R., International Arbitrations Between States and Foreign Private Parties: The Libyan Nationalization Cases, 75 AJIL 476, 522–29 (1981)Google Scholar.

90 See, e.g., Weil, note 59 supra, at 205 et seq.; P. Lalive, note 26 supra, paras. 50 et seq.; G. Delaume, note 1 supra, para. 2.07.

91 TOPCO/Calasiatic award, para. 101.

92 Id., paras. 102–08.

93 Id., para. 97.

94 Id., para. 109.

95 Id., section V(3) and (4).

96 BP award, 53 ILR at 337–40.

97 Id. at 344–46.

98 Id. at 347.

99 Id. at 331.

100 Id. at 352.

101 See 2 Zweigert, K. & Kötz, H., An Introduction to Comparative Law 151 et seq. (1977)Google Scholar; Szladits, , The Concept of Specific Performance in Civil Law, 4 Am. J. Comp. L. 208 (1955)CrossRefGoogle Scholar; Chitty on Contracts §§1631 et seq. (24th ed. 1977); Calamari, J. & Perillo, J., The Law of Contracts 581 et seq. (1977)Google Scholar; Dawson, , Specific Performance in France and Germany, 57 Mich. L. Rev. 495 (1959)CrossRefGoogle Scholar.

102 See preceding note. See also U.C.C. §2–716(1). Compare Uniform Law on the International Sale of Goods (ULIS), Arts. 41 (1) and 42(1). Note, however, that under Article VII of the ULIS Convention:

Where under the provisions of the Uniform Law one party to a contract of sale is entitled to require performance of any obligation by the other party, a court shall not be bound to enter or enforce a judgment providing for specific performance except in the cases in which it would do so under its law in respect of similar contracts of sale not governed by the Uniform Law.

See 3 ILM 854 (1964) for the Convention and the law.

This provision was intended to accommodate the United Kingdom, and it is therefore not surprising to find that the language of Article VII has been incorporated into Article 16 of the UK Uniform Laws on International Sales Act, 1967 (reproduced in Graveson, R., Cohn, E., & Graveson, D., The Uniform Laws on International Sales Act 1967, at 137 (1968)Google Scholar).

See also in regard to the 1980 Convention on Contracts for the International Sale of Goods, Farnsworth, , Damages and Specific Relief, 27 Am. J . Comp. L. 247 (1979)CrossRefGoogle Scholar.

103 See sources cited in note 101 supra.

104 Ibid.

105 BP award, 53 ILR at 349.

106 Ibid.

107 Id. at 354.

108 LIAMCO award, 20 ILM at 63 (p. 123 of the award).

109 Ibid. (p. 124 of the award).

110 Id. at 86 (p. 170 of the award).

111 Supra note 1, Art. V.

112 Supra note 3, Art. 5.

113 Supra note 2, Art. IX.

114 24 ILR 761 (1957), 86 J. Droit Int’l 1074 (1959).

115 Société Européenne d’Etudes et d’Entreprises c. Republique Federative de Yougoslavie, Decision of Feb. 12, 1957, Trib. Vaud, 47 Rev. Critique Droit Int’l Privé 359, 364 (1958) (translated by the author).

116 Decision of Sept. 18, 1957, Trib. Fed., id. at 366, 367 (translated by the author).

117 Another issue raised by Yugoslavia was that since Yugoslavia had not acceded to the New York Convention, the Convention was not applicable and the conditions for recognition should be those set forth in the Geneva Convention of 1927, which remained applicable as between Yugoslavia and the Netherlands.

This contention failed. In its 1973 decision (see note 119 infra), the Hoge Raad held that since both the Netherlands and Switzerland are parties to the New York Convention, the nationality of the parties was irrelevant and the decisive factor was the place where the award was made, i.e., the seat of arbitration.

This view is consistent with the opinion expressed in the U.S. amicus curiae brief regarding the recognition of the LIAMCO award in the United States. See 20 ILM 161 (1981).

118 Decision of Sept. 8, 1972, Hague Court of Appeal, as translated into French, in [1974] Rev. Arb. 313.

119 Decision of Oct. 26, 1973, Hoge Raad, as translated by Gaja, G., International Commercial Arbitration: New York Convention, pt. V, 18.2 (1978)Google Scholar.

120 Decision of Oct. 25, 1974, Hague Court of Appeal, as translated into French, in [1974] Rev. Arb. 322.

121 Decision of Nov. 7, 1975, Hoge Raad, as translated by G. GAJA, note 119 supra, pt. V, 35.2–3 (1978).

122 Parallel with the Dutch proceedings, the SEEE had sought recognition and enforcement of the award in France. The French proceedings, which began in the 1960’s, are still pending. Unlike the Dutch decisions, the French judgments rendered so far do not deal with the applicability of the New York Convention. While they deny recognition to the 1956 award, this solution is based on other considerations. For a review of these cases, see G. Delaume, note 1 supra, para. 13.16.

123 General Nat’l Maritime Transport Co. c. Societe Gotaverken Arendal A.B., Decision of Feb. 21, 1980, Court of Appeal, Paris, 107 J. Droit Int’l 660 (1980), [1980] Rev. Arb. 524, 69 Rev. Critique Droit Int’l Privé 763 (1980), [1981] J.C.P. II 19,512.

124 Contrary to the decision of the Parisian court, the Supreme Court of Sweden held that because the ICC award was made in France, it qualified for recognition in Sweden: General Nat’l Maritime Transport Co. v. Gótaverken Arendal Aktiebolag, Decision No. SO 1462, Aug. 13, 1979, 21 Va. J. Int’l L. 244 (1981). See Paulsson, , The Role of Swedish Courts in Transnational Commercial Arbitration, id. at 211, 236 Google Scholar; Wetter, , The Legal Framework of International Arbitral Tribunals, to be published by the Parker School in a book entitled International Contracts (1981)Google Scholar.

A recent decision of the Court of Appeal of Paris, as yet unpublished (Aksa v. Norsolor S.A., Dec. 9, 1980), follows the Gotaverken doctrine. In the Aksa case, however, one of the parties was a French corporation (the other being a Turkish corporation), the contract concerned the sale by the French corporation of goods to be delivered in Turkey, and the terms of reference of the arbitrators, although fixing the seat of arbitration in Vienna, Austria, provided that hearings would take place in Paris, France. Notwithstanding these various “French” connecting factors, the court held that “[t]he award in question, rendered in accordance with a procedure [the ICC Rules] which is not that provided by French law, cannot be characterized as a French award” (as translated).

The recent French Decree of May 12, 1981 ([1981] J.O. 1402) contains provisions dealing specifically with “international” arbitration and in effect endorses the position taken by the French courts.

125 See Decision of Oct. 26, 1973, note 119 supra.

126 Schachter, , The Enforcement of International Judicial and Arbitral Decisions, 54 AJIL 1 (1960)Google Scholar.

127 See text and notes 133 and 134 infra.

128 This argument was made, but was defeated, in the cases referred to in notes 129 to 131 infra.

129 See Decision of Oct. 26, 1973, note 119 supra. See also N. V. Cabolent v. National Iranian Oil Co., Decision of Nov. 28, 1968, Hague Court of Appeal, 9 ILM at 152, 161 (1970): “A judicial award is, by its nature, enforceable; and if immunity constitutes no bar to jurisdiction, it can in principle neither constitute a bar to enforcement.”

130 Ipitrade Int’l S.A. v. Federal Republic of Nigeria, 465 F.Supp. 824 (D.D.C. 1978), reprinted in 17 ILM 1395 (1978). Ipitrade reasoning was followed in Libyan American Oil Co. v. Socialist People’s Libyan Arab Jamahirya, 482 F.Supp. 1175 (D.D.C. 1980), although in that case, the court held that it could not exercise jurisdiction under the act of state doctrine, since this would imply ruling on the validity of the Libyan nationalization law. This case was discontinued, following settlement between the parties during the appellate proceedings.

Ipitrade and LIAMCO also brought proceedings in France to enforce their respective awards. They both succeeded in obtaining recognition (exequatur) of the award, but did not succeed in attaching Nigerian and Libyan assets in France. See Procureur de la République c. S.A. Ipitrade International, Sept. 12, 1978 and March 5, 1979, Trib. Gr. Inst., Paris (référés), 106 J. Droit Int’l 857 (1979). See also Rambaud, , Les Suites d’un règlement pétrolier: L’Affaire LIAMCO devant le juge français, 25 Annuaire Français de Droit Int’l 820 (1979)CrossRefGoogle Scholar.

131 SEEE c. République Socialiste Fédérate de Yougoslavie et al, Decision of July 6, 1970, Trib. Gr. Inst., Paris (référés), [1975] Rev. Arb. 328, 98 J. Droit Int’l 131 (1971), [1971] J.C.P. II 16,810, according to which: “Whereas in subscribing to the arbitration clause, the Yugoslav State has thereby agreed to waive its jurisdictional immunity in regard to the arbitrators and their award until the exequatur proceedings required to give full effect to the award are completed” (translated by the author).

See also République Malgache c. Société Bruynzeel, May 3, 1971, Trib. Gr. Inst., Paris (référés), [1971] J.C.P. II 16,811; and for an older case, Ben Aiad c. Bey de Tunis, June 30, 1891, Trib. Civ., Seine, 19 J. Droit Int’l 952 (1892), summarized in G. Delaume, note 1 supra, App. III, Booklet D, at 5.

132 Supra note 4, Art. 55.

133 Decision of June 26, 1981, Court of Appeal, Paris, as yet unreported. This decision will appear in 20 ILM 878 (1981).

134 See text and note 131 supra.

135 G. Delaume, note 1 supra, para. 12.03. For a recent symposium covering the law of a number of countries, see 10 Neth. Y.B. Int’l L. 3–289 (1979). See also Crawford, , Execution of Judgments and Foreign Sovereign Immunity, p. 820 Google Scholar infra.

136 As in Italy, Greece, and the Netherlands. G. Delaume, note 1 supra, para. 12.01.

137 Id., paras. 12.03–.04.

138 A recent case in point involving the enforcement of the LIAMCO award holds that the sole fact of locating the seat of arbitration in Switzerland is insufficient to satisfy the territorial connection test. See Decision of June 19, 1980, Trib. Fed., Socialist Libyan Arab Popular-Jamahiriya v. Libyan American Oil Co. (LIAMCO), 20 ILM 151 (1981). See also Lalive, J.-F., Stuiss Law and Practice in Relation to Measures of Execution against the Property of a Foreign State, 10 Neth. Y.B. Int’l L. 153 (1979)CrossRefGoogle Scholar.

In recognition proceedings brought by LIAMCO in Sweden, the Court of Appeals of Svea (Stockholm) held that recognition should be granted to the award on the ground that by consenting to arbitration, Libya had waived its immunity and that the award was not incompatible with “basic principles of justice” prevailing in Sweden. The text of this decision, dated June 18, 1980, has been communicated to the author by Mr. Jan Paulsson, Coudert Bros., Paris.

139 Supra note 4, Art. 27.

140 Art. 64.

141 Note that the undertakings of the United States and Iran in respect to the settlement of claims (20 ILM 230 (1981)) remit the solution of issues of applicable law to the International Arbitral Tribunal established for the purpose: “ARTICLE V. The Tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.”