Arab Republic of Egypt v. Southern Pacific Properties Limited and Southern Pacific Properties (Middle East) Limited

Abstract

Jurisdiction — Of arbitration tribunal — Consent to arbitrate — International Chamber of Commerce arbitration — Contract between State–owned entity and foreign company containing icc arbitration clause — Whether State a party to contract — Signature by State of terms of reference pursuant to icc Arbitration Rules — Express reservation as to jurisdiction of Tribunal — icc award affirming jurisdiction of tribunal — Whether terms of reference constituting agreement to arbitrate

State immunity — Waiver — Whether signature of terms of reference constitutes submission to jurisdiction of arbitration tribunal — Whether lodging of defence on merits constitutes waiver of immunity

Parties — To agreement — State–owned entity endowed with independent legal personality — Conclusion of contract with foreign private company — Contract containing icc arbitration clause — Whether State–owned company acts on behalf of State — Supervisory control by government minister Counter–signature of contract as “approved, agreed and ratified” — Whether rendering State a party to the contract

Procedure — Competence of arbitration tribunal to determine its own competence — Decision on competence subject to review by municipal courts — New French Code of Civil Procedure, Articles 1502 and 1504

Recognition and enforcement — ICC arbitration award — Action for annulment before municipal courts — Grounds for annulment — Excess of jurisdiction — whether award made in absence of arbitration agreement New French Code of Civil Procedure, Articles 1502 and 1504

State responsibility — Contractual obligations — State–owned entity Conclusion of concession with foreign private company — Whether State-owned entity acts on behalf of State — Circumstances in which State becomes a party to such a contract — The law of France