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Published online by Cambridge University Press: 07 October 2020
When an investor submits a claim to arbitration under a treaty that falls within the scope of an existing, contractual forum-selection clause between it and the host State, which prevails: the agreement to arbitrate under the treaty or the contractual clause? This is a vexed and commonly arising question. This article argues that by placing it in the context of both private and public international law and reasoning from first principles it is possible to arrive at a coherent, reliable and satisfactory approach. The true question is whether the contractual clause is a waiver of the investor's right to recourse to an investment tribunal.
The author is grateful to the two anonymous peer reviewers for their valuable comments.
1 ie ‘commercial’ arbitration. For present purposes the focus is on the jurisdiction of the investment tribunal, so that little turns on whether the putatively rival forum is a national court or a non-treaty arbitral tribunal, however great the differences in governing law and approach may otherwise be between them. As the tribunal said in SGS Société Générale de Surveillance v Philippines ICSID Case No ARB/02/6, Decision on Jurisdiction (29 January 2004) para 138, ‘[I]t should not matter whether the contractually-agreed forum is a municipal court (as here) or domestic arbitration (as in SGS v Pakistan) or some other form of arbitration, eg pursuant to the UNCITRAL or ICC Rules’.
2 Whether a multilateral treaty or one of the more than 2,000 bilateral investment treaties (BITs) currently in force, according to the index maintained by the United Nations Commission on Trade and Development at <https://investmentpolicy.unctad.org/international-investment-agreements>.
3 Most likely by way of an ‘umbrella clause’, as explained presently. The arbitration agreement may also be formed under a domestic investment law of the host State or another instrument. In that case the resulting agreement is governed by international law in the same way, as will be shown, as an arbitration agreement under a treaty: see eg Mobil Corpn v Venezuela ICSID Case No ARB/07/27, Decision on Jurisdiction (10 June 2010) paras 71–85; CEMEX Caracas Investments BV v Venezuela ICSID Case No ARB/08/15, Decision on Jurisdiction (30 December 2010) paras 67–79. For simplicity this article therefore focuses on treaty arbitration.
4 ie apart from (i) the question at hand and (ii) the satisfaction of any additional requirements, such as the jurisdictional requirements of the ICSID Convention.
5 eg Lanco International Inc v Argentina ICSID Case No ARB/97/6, Decision on Jurisdiction (8 December 1998) para 44; A Parra, ‘Provisions on the Settlement of Investment Disputes in Modern Investment Laws, Bilateral Investment Treaties and Multilateral Instruments on Investment’ (1997) 12 ICSIDRev 287; McLachlan, C, Shore, L and Weiniger, M, International Investment Arbitration: Substantive Principles (2nd edn, Oxford University Press 2017) paras 3.41–49Google Scholar.
6 Anglo American plc v Venezuela ICSID Case No ARB(AF)/14/1, Award (18 January 2019).
7 Nissan Motor Co Ltd v India PCA Case No 2017-37, Decision on Jurisdiction (29 April 2019).
8 Belenergia v Italy ICSID Case No ARB/15/40, Award (6 August 2019).
9 CMC Muratori & Cementisti - CMC Di Ravenna SOC Coop v Mozambique ICSID Case No. ARB/17/23, Award (24 October 2019).
10 For a consideration of whether an investment tribunal may have jurisdiction over claims arising directly under a contract in the absence of an umbrella clause (and presumably subject to the question considered here) see Sinclair, A, ‘Bridging the Contract/Treaty Divide’ in Binder, C et al. (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford University Press 2009)Google Scholar.
11 See (n 5).
12 This formulation leaves room for the question whether a claim under an umbrella clause is ‘essentially’ (or at all) one arising from a contract, which is addressed below.
13 As the tribunal in Belenergia (n 8) para 346, observed, ‘Even if a contract does not provide for the choice of forum, it is subject to the applicable default rules on conflicts of jurisdiction determining the competent forum.’
14 Generally under an umbrella clause, as explained above.
15 So widely, in fact, that any distinction in drafting canvassed in the preceding paragraph may be irrelevant. In Fiona Trust and Holding Corpn v Privalov [2007] UKHL 40, [2007] 4 All ER 951, Lord Hoffmann, delivering the leading speech, said at [27], ‘The arbitration clause … indicates to the reader that he need not trouble himself with fussy distinctions as to what the words “arising under” and “arising out of” may mean. Taken overall, the wording indicates that arbitration may be chosen as a one-stop method of adjudication for the determination of all disputes.’ The question remains, however, one of construction and so ultimately whether the parties objectively intended treaty claims to fall within their contractual forum-selection clause. cf M Winkler, ‘Understanding Claim Proximity in the EU Regime of Jurisdiction Agreements’ (2020) 69 ICLQ 431, 436, suggesting that the Fiona Trust approach is ‘unlikely to find favour in other EU Member States, whose courts may continue to engage with the linguistic distinctions rejected by’ it. And this approach has no application to the arbitration agreement formed under the treaty, even before a court in England and Wales (Gold Reserve Inc v Venezuela [2016] EWHC 153 (Comm), [2016] 1 WLR 2829 [22]).
16 [2020] EWCA Civ 574 [90]–[91] (Popplewell LJ, with whom Flaux and Males LJJ agreed). The Court of Appeal's decision is currently under appeal to the Supreme Court of the United Kingdom.
17 Subject to any limitations agreed by the parties directly or by reference to a set of rules—though the LCIA Arbitration Rules 2014 and the ICC Arbitration Rules 2017, for example, would not appear to affect the approach in Enka Insaat.
18 Maple Leaf Macro Volatility Master Fund v Rouvroy [2009] EWHC 257 (Comm), [2009] 1 Lloyd's Rep 475 [199]. It appears the general principle is that courts in England and Wales will interpret a jurisdiction agreement according to the law applicable to the contract as a whole (A Briggs, Civil Jurisdiction and Judgments (6th edn, Routledge 2015) para 2.125). Quaere which law this principle would indicate if the contract were subject to a dépeçage—though experience might suggest the application of something like the Fiona Trust approach whatever the law(s) applicable to the contract's substantive provisions.
19 Owing to the limitations inherent in the scope of art 25, Reg (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I (recast) Regulation) [2012] OJ L351/1: see Winkler (n 15) for an account of the limited case law and its possible direction. From 31 January to 31 December 2020 that Regulation continues to apply in the United Kingdom.
20 Convention on the Settlement of Investment Disputes between States and Nationals of other States (signed 18 March 1965, entered into force 14 October 1966) 575 UNTS 159.
21 See C Schreuer, The ICSID Convention: A Commentary (Cambridge University Press 2009) 551–2. cf Vattenfall AB v Germany, ICSID Case No ARB/12/12, Decision on the Achmea Issue (31 August 2018), paras 109, 166–8, where there was clarity as to the law applicable to the agreement to arbitrate under the treaty.
22 Ruby Roz Agricol LLP v Kazakhstan, Award (1 August 2013) para 147. Ruby Roz was decided on the basis of the equivalent 2010 Rules, which were in the material respect identical.
23 Cambodia Power Company v Cambodia ICSID Case No ARB/09/18, Decision on Jurisdiction (22 March 2011).
24 ibid, paras 10–14, 129–139 and 324.
25 ibid, para 325.
26 ibid, paras 336–337.
27 The principal element of which is the Brussels I (recast) Regulation (n 19).
28 The Brussels I (recast) Regulation Art 25(1) provides, ‘If the parties … have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen … in connection with a particular legal relationship, that court or those courts shall have jurisdiction,’ and that, ‘Such jurisdiction shall be exclusive unless the parties have agreed otherwise.’ But art 25(4) provides, ‘Agreements … conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.’ (Emphasis added.)
29 SGS Société Générale de Surveillance SA v Pakistan ICSID Case No ARB/01/13, Decision on Jurisdiction (6 August 2003).
30 ibid, para 161. At para 172 the tribunal held that the proposition that art 11 encompassed an obligation to guarantee observance of contractual commitments would amount to ‘the instant transubstantiation of contract claims into BIT claims’. The tribunal's view has since become heterodox, as explained below.
31 SGS v Philippines (n 1) para 128: ‘To summarize the Tribunal's conclusions on this point, Article X(2) makes it a breach of the BIT for the host State to fail to observe binding commitments, including contractual commitments, which it has assumed with regard to specific investments. But it does not convert the issue of the extent or content of such obligations into an issue of international law.’ (Emphasis in original.)
32 ibid, para 134.
33 cf ibid, para 154.
34 ibid, para 138. It gave effect to such ‘respect’ by granting a stay over matters pending before non-treaty arbitration (paras 175–176). It did so on the basis that the existence of the contractual forum-selection clause was a matter going to the admissibility of the claim rather than the jurisdiction of the tribunal (paras 154, 170–171), as to which below.
35 Aguas del Tunari SA v Bolivia ICSID Case No ARB/02/3, Decision on Jurisdiction (21 October 2005), para 111.
36 ie the existence of the tribunal's jurisdiction over the claim.
37 ie whether, even if the tribunal has jurisdiction over the claim, the claim itself is properly amenable to determination. See Northern Cameroons (Cameroon v United Kingdom) (Preliminary objections) [1963] ICJ Rep 97 (Separate Opinion of Judge Fitzmaurice) 101–3.
38 Aguas del Tunari (n 35). For present purposes nothing turns on whether the reference is to ICSID arbitration or any other form of investor–State arbitration.
39 ibid.
40 eg Greentech Energy Systems A/S v Italy SCC Arbitration V (2015/95), Award (23 December 2018) para 216.
41 So far as unilateral waivers are likely to have been important in reality: they are much more rarely encountered than bilateral forum-selection agreements.
42 Ecuador v Occidental Exploration and Production Co [2005] EWCA Civ 1116, [2006] QB 432 [33]–[34] (Mance LJ, delivering the judgment of the Court). See also Z Douglas, The International Law of Investment Claims (Cambridge University Press 2009) paras 128–129.
43 See (n 5).
44 ie the treaty is between States and the offer to arbitrate is made to the third-party non-State investor, whose eventual acceptance perfects the arbitration agreement with the host State. The tribunal in SGS v Philippines (n 1) perhaps overlooked this in suggesting, at para 145, that in principle the dispute-resolution provisions of the BIT could not override the earlier, contractual forum-selection agreement in that case: the BIT and the contract were not between the same parties.
45 LaGrand (Germany v United States of America) [2001] ICJ Rep 466, para 77.
46 cf ibid.
47 cf Ecuador v Occidental (n 42) [20]. See also K Parlett, The Individual in the International Legal System (Cambridge University Press 2011) 106–7.
48 Concluded on 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (VCLT). The International Law Commission's Commentary on the corresponding Draft Article implicitly acknowledges that it did not reflect customary international law (International Law Commission (ILC), 1962(2) Yearbook 187, 230). But as illustrated in DJ Bederman, ‘Third Party Rights and Obligations in Treaties’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2011) (MPEPIL) it was a rational and indeed conservative distillation of earlier jurisprudence.
49 And perhaps not even then: see (n 53).
50 This is arguably best illustrated by the Agreement between the United States–Mexico–Canada Agreement (signed 30 November 2018, entered into force 1 July 2020) (USMCA), Ch 14 of which, evidently negotiated with care, allows claims by investors concerning breach of its provisions only as between the United States and Mexico (but not Canada) and investors of the other State.
51 Which may be expected to invite abuse. Certainly none of the Energy Charter Treaty 2080 UNTS 95 (concluded 17 December 1994, entered into force 16 April 1998) or the United Kingdom, United States, Germany, Netherlands, Sri Lanka, or France model BITs contains any language suggesting that the offer of treaty arbitration is revocable (these are usefully collected in McLachlan, Shore and Weiniger (n 5) 499–558). Nor did NAFTA Ch 11 or its replacement, USMCA (n 50): cf eg art 14.d.4 of the latter.
52 R Jennings and A Watts, Oppenheim's International Law: Vol 1 (Peace) (9th edn, Oxford University Press 2008) 1263, fn 23.
53 Indeed in the rare case where the European Court of Human Rights has allowed for the possibility of loss of a Convention right—under art 6 of the European Convention on Human Rights—it has done so through the lens of waiver rather than revocation. In Scoppola v Italy (No 2) (2010) 51 EHRR 12, the Grand Chamber said at para 135: ‘Neither the letter nor the spirit of Article 6 prevents a person from waiving them of his own free will, either expressly or tacitly. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance … In addition, it must not run counter to any important public interest….’
54 SGS v Philippines (n 1) para 154. See the text to (n 44) for further evidence of the confusion in that award. cf its comments on the effect of the clause on admissibility, below. See also MNSS BV v Montenegro ICSID Case No ARB(AF)/12/8, Award (4 May 2016) paras 160–164.
55 Though now uncontroversial, this proposition has not always been obvious. It was hard to deny following LaGrand (n 45) that international law recognized individual rights in general. But the question whether the investor's right to arbitrate was a truly direct right remained obscure slightly longer than that—as explained below, perhaps in view of the imperfect analogy with mixed-claims tribunals, which in turn suggested an analysis of the present issue as one of admissibility rather than (which this article suggests) jurisdiction. See Parlett (n 47) Ch 2, for the history generally and O Spiermann, ‘Individual Rights, State Interests and the Power to Waive ICSID Jurisdiction under Bilateral Investment Treaties’ (2004) 20 ArbIntl 179 in relation to ICSID arbitration specifically. That said, it is perhaps now safe to regard this possibility as orthodox. Even by the first half of the twentieth century Jessup felt able to state baldly that, ‘The rights which appertain to the individual (scil under international law) may be waived by the individual.’ (PC Jessup, ‘Responsibility of States for Injuries to Individuals’ (1946) 46 ColumLRev 903, 918).
56 eg Agreement between the Government of the French Republic and the Government of the Republic of Argentina on the Encouragement and Reciprocal Protection of Investments 1728 UNTS 281; Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment S Treaty Doc No 103-2 (1993).
57 (n 51).
58 ibid, art 26(4).
59 ibid, art 26(2)(b).
60 ibid, art 26(3). The relevant States and their policies adopted under that para are listed in Annex ID to the Treaty. But it is the submission of the dispute to another jurisdiction under the previously agreed procedure—rather than the previous agreement of the procedure in itself—that triggers art 26(3). See also Belenergia (n 8) para 344.
61 eg CMS Gas Transmission Company v Argentina ICSID Case No ARB/01/8, Decision on Jurisdiction (17 July 2003) para 81; Belenergia (n 8).
62 USMCA (n 50) art 14.d.5; Comprehensive and Progressive Agreement for Trans-Pacific Partnership (signed 8 March 2018, entered into force 30 December 2018). Art 1 incorporates, among others, art 9.21(2) of the Trans-Pacific Partnership Agreement, which did not enter into force.
63 That said, as will be shown in the next section, that analysis is not always followed consistently or to its logical conclusion.
64 Case concerning the Temple of Preah Vihear (Cambodia v Thailand) [1961] ICJ Rep 17, 31. cf Nuclear Tests (Australia v France) [1974] ICJ Rep 254, para 54; cf Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, para 45.
65 Lanco (n 5).
66 ibid, para 6.
67 ibid, para 38, specifically in the context of art 26 of the ICSID Convention but addressing the more general question whether the clause could amount to a ‘stipulation to the contrary’ of an exclusive submission to ICSID arbitration.
68 Azurix Corp v Argentina ICSID Case No ARB/01/12, Decision on Jurisdiction (8 December 2003).
69 ibid, para 78.
70 ibid, para 26 (emphasis in original).
71 ibid, paras 75–79.
72 ibid, para 85. Non-identity of the parties to the putative waiver has not prevented subsequent respondents from making the same argument, easily rejected (eg Ulysseas Inc v Ecuador Interim Award (28 September 2010), paras 149–152, 163; Greentech (n 40) para 220; Anglo American (n 6), paras 215–216); Belenergia (n 8)).
73 Aguas del Tunari (n 35) para 115.
74 ibid, para 122.
75 By definition, nothing ‘clearly results from’ an ambiguous statement.
76 TSA Spectrum de Argentina SA v Argentina ICSID Case No ARB/05/5, Award (19 December 2008) para 58: ‘[I]f the contract contains a specific clause on dispute settlement, this does not exclude recourse to the settlement procedure in the treaty, unless there is a clear indication in the contract itself or elsewhere that the parties to the contract intended in such manner to limit the application of the treaty’.
77 Crystallex International Corp v Venezuela ICSID Case No ARB(AF)/11/2, Award (4 April 2016) para 481: ‘The Tribunal considers that, even if it were minded to find that an investor may waive by contract rights contained in a treaty, any such waiver would have to be formulated in clear and specific terms: a waiver, if and when admissible at all, is never to be lightly admitted as it requires knowledge and intent of forgoing a right, a conduct rather unusual in economic transactions.’
78 SGS Société Générale de Surveillance SA v Paraguay ICSID Case No ARB/07/29, Decision on Jurisdiction (12 February 2010) para 179.
79 ibid, para 180.
80 MNSS (n 54) para 163.
81 cf the text to (n 53).
82 Crystallex (n 88) para 482.
83 Occidental Petroleum Corp v Ecuador ICSID Case No ARB/06/11, Decision on Jurisdiction (9 September 2008) paras 73–89.
84 Gavrilović v Croatia ICSID Case No ARB/12/39, Award (26 July 2018) fn 575: ‘The Regional Commercial Court in Zagreb will have jurisdiction over any dispute from this Agreement.’ Interestingly—though not decisively from the perspective of international law as it is set out above—the Commercial Court in Zagreb itself would have been bound to treat the clause as an exclusive jurisdiction clause, even though it was not on the face of it (see n 28).
85 ibid, para 422.
86 Belenergia (n 8) paras 355–356.
87 Perhaps because Croatia pursued the point only in relation to admissibility.
88 Gavrilović (n 84) para 421, where the central part of the tribunal's reasoning on the question of the contractual forum-selection clause was this: ‘If, in order to assess whether there was a treaty breach, the Tribunal must first determine whether or not the relevant contractual obligations have been observed, then the Tribunal may hear evidence and make that determination. That some of the facts underlying the umbrella clause claim could also be the basis for a separate breach of contract claim—in another forum, on another day—is immaterial. The Claimants’ umbrella clause claim requires a determination of whether the Respondent breached the BIT. Because that inquiry, in turn, requires a determination of whether or not the Respondent observed its contractual obligations, the Tribunal should and will proceed to make that determination.’ This in turn seemed to refer to Croatia's submission, recorded at para 417: ‘The Respondent argues further that “there is no support for the suggestion that the BIT automatically overrides or re-writes a binding forum selection to determine contractual claims. Where, as here, the essential basis of a claim is breach of contract (ie an alleged failure to perform a supposed contractual obligation), the Tribunal must give effect to the valid choice of forum clause in the contract”.’
89 The view was taken in SGS v Pakistan (n 84) paras 166–167 that if breach of contract could trigger breach of the umbrella clause then ‘the scope of [the umbrella clause] … appears susceptible of almost indefinite expansion’, and that the consequences of reading the clause literally to include contractual commitments would be ‘far-reaching in scope’. But that view has steadily lost out and, as the tribunal noted in SGS v Paraguay (n 78) para 169, ‘it has emerged that at least one State party indeed intended the provision to have its literal reach: the Swiss government is on record objecting to the SGS v Pakistan holding and opining that a violation of such a contractual commitment is covered by the umbrella clause and should be subject to the Treaty's dispute settlement procedures.’
90 Vivendi Universal v Argentina ICSID Case No ARB/97/3, Decision on Annulment (3 July 2002) para 96: ‘In accordance with this general principle (which is undoubtedly declaratory of general international law), whether there has been a breach of the BIT and whether there has been a breach of contract are different questions. Each of these claims will be determined by reference to its own proper or applicable law—in the case of the BIT, by international law; in the case of the Concession Contract, by the proper law of the contract, in other words, the law of Tucumán.’
91 SGS v Paraguay (n 78) para 142. See also Bayındır İnşaat Turizm Ticaret ve Sanayi AŞ v Pakistan ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005), paras 148 (‘treaty claims are juridically distinct from claims for breach of contract, even where they arise out of the same facts’) and 167 (‘when the investor has a right under both the contract and the treaty, it has a self-standing right to pursue the remedy accorded by the treaty’).
92 From the early Saluka Investments BV v Czech Republic Decision on Jurisdiction (7 May 2004) paras 55–58 to the recent Belenergia (n 8) para 356
93 eg TSA (n 76), paras 58, 62.
94 eg the recent award in Gavrilović (n 84), paras 60, 245–246.
95 cf the clause in Azurix (n 68), which though narrower might have been to the same effect had the parties to the contractual clause and the investment arbitration been the same.
96 Bureau Veritas Inspection, Valuation, Assessment and Control, BIVAC BV v Paraguay ICSID Case No ARB/07/9, Decision on Jurisdiction (29 May 2009) para 148.
97 As will be apparent from the above, even this premise is now doubtful in the circumstances of that case.
98 pace the novel analysis advanced by Sinclair (n 10).
99 cf, eg, at some length SGS v Paraguay (n 78) paras 172–185;Tenaris SA and Talta-Trading e Marketing Sociedade Unipessoal LDA v Bolivarian Republic of Venezuela, ICSID Case No ARB/11/26, Award (29 January 2016) fn 239; Garanti Koza LLP v Turkmenistan, ICSID Case No ARB/11/20, Award, (19 December 2016) para 245; Gavrilović (n 84) fn 581.
100 Douglas (n 42) para 712.
101 Assuming the prior thing is masculine or feminine rather than neuter. As it happens, pactum (agreement) is neuter, which is already a clue that the maxim is inapposite to this context. A further clue is that the maxim is much more commonly encountered in the context of securities over property, where it is essential and obvious that prior-ranking securities should in general prevail over later ones.
102 VCLT (n 48). The reference to treaties may fairly be applied here mutatis mutandis given that the question is about the force of an agreement governed by international law, albeit not called a ‘treaty’, whereas art 1(a) provides, ‘“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ As for the parties not being two States, see (n 55). Lastly, though the rule in art 30(3) is not expressly recognized as reflecting customary international law in the ILC's Commentary (n 48) 216, that does not diminish its logical force as applied by analogy in the present context.
103 BIVAC (n 96) para 146.
104 SGS v Paraguay (n 78) para 178.
105 Parra (n 5) 335.
106 SGS v Philippines (n 1) para 141.
107 eg Parra (n 5).
108 Aguas del Tunari (n 35) para 115.
109 Occidental Petroleum Corp v Ecuador ICSID Case No ARB/06/11, Decision on Jurisdiction (9 September 2008) paras 73–89.
110 TSA (n 76) para 58.
111 Crystallex (n 77) para 481.
112 Gavrilović (n 84).
113 SGS v Paraguay (n 78).
114 SGS v Philippines (n 1) para 154.
115 Commissions established chiefly in the late eighteenth and early nineteenth centuries established by treaty to adjudicate claims for compensation between nationals of the contracting States, between nationals of each State, or between the States themselves. See SGS v Philippines (n 1) para 150. See also R Dolzer, ‘Mixed Claims Commissions’ in MPEPIL (n 48).
116 Vivendi I (annulment) (n 90) para 98.
117 cf Woodruff (1903–05) IX RIAA 213, quoted above, where that appears to have been the effect of the commission's reasoning, at 223. It is interesting to note that the clear wording in that case might well have been sufficient to found a waiver of investment treaty claims mutatis mutandis.
118 Impregilo SpA v Pakistan ICSID Case No ARB/03/3, Decision on Jurisdiction (22 April 2005) para 290.
119 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (signed 10 June 1958, entered into force 7 June 1959) 330 UNTS 3.
120 ibid, art V(1): ‘Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that (a) … [the arbitration agreement] is not valid under the law which the parties have subjected it to [ie international law] or … (c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration ….’
121 ibid, art V(2): ‘Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where the recognition and enforcement is sought finds that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.’ cf, to the same effect, the UNCITRAL Model Law on International Commercial Arbitration 1985 (with amendments adopted in 2006), art 36, and the UK provisions modelled on it: section 103 of the Arbitration Act 1996 and section 20 of the Arbitration (Scotland) Act 2010.
122 [2003] 1 SCR 178 [52].
123 (n 20).
124 Pan American Energy LLC v Argentina ICSID Case No ARB/03/13, Decision on Preliminary Objections (27 July 2006) para 54. See also Schreuer (n 21) 86–7; V Heiskanen, ‘Ménage à trois? Jurisdiction, Admissibility, and Competence in Investment Treaty Arbitration’ (2014) 29 ICSIDRev 231.
125 Governed by Ch 2 of the ICSID Convention. In addition to the well-known jurisdictional requirements of art 25, of note in this context is art 26, which provides: ‘Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy.’ But, as Schreuer (n 21) 347, 363, argues and as the tribunal in SGS v Philippines (n 1) para 147 held, adopting his reasoning, art 26 asks no more (and rather less) than the question already posed: whether there is a statement by the parties that the jurisdiction of ICSID shall not be exclusive.
126 eg SGS v Philippines (n 1) para 154.
127 F Rosenfeld, ‘Arbitral Præliminaria—Reflections on the Distinction between Admissibility and Jurisdiction after BG v Argentina’ (2016) 29 LJIL 137, 149–50.
128 Under art 52. Art 52 applies only to awards made under the ICSID Convention in the true sense and, in particular, to those made under the Additional Facility: Additional Facility Rules, art 3. However, the Arbitration (Additional Facility) Rules, art 19, ensures that any award rendered will be subject to the New York Convention (n 119), as does art 26(5) of the Energy Charter Treaty (n 57).
129 eg Capital Financial Holdings Luxembourg SA v Cameroon ICSID Case No ARB/15/18, Decision on Annulment (25 October 2019) para 120, and the cases cited there.
130 Vivendi I (n 90) para 86.
131 Douglas (n 42) paras 307–308. The decision in Vivendi I (n 90) may, of course, support the conclusion that a dispute is inadmissible because of a conflicting contractual forum-selection clause; but the tribunal's approach to that question was not free of ambiguity, as the ad hoc committee's exegesis of it at paras 104–111 demonstrates.