The Courts

There is a constantly evolving debate about the role that courts play, or should play, with regard to arbitration. Minimal curial intervention is the usual guiding philosophy. Thus, for example, in his much-publicised opening address at the 2012 International Council for Commercial Arbitration Congress, Singapore’s Chief Justice Sundaresh Menon SC described the ‘golden age’ of arbitration, identifiable by ‘the degree of judicial deference accorded to arbitration in the name of party autonomy’.[2] He quoted from an August 2009 decision of Singapore’s apex court, declaring that ‘the role of the court is now to support, and not to displace, the arbitral process’.[3] This, Menon said, was the ‘prevailing mainstream philosophy’ of the courts around the world then towards arbitration, but was also a ‘relatively recent phenomenon’.[4]

But Menon also foreshadowed the potential need for the see-saw of judicial interference in arbitration to pivot back, from the light touch to a heavier handed approach. A major context in which he envisaged this need was investment treaty arbitration, a system of arbitration that has been likened by some to a form of ‘global administrative law’,[5] and in which privately appointed foreign nationals are empowered to review states’ regulatory actions and, on one view, may have a ‘weighty hand’ in shaping domestic policy.[6]

So it is that at the time of writing, the texts of international instruments and national laws that prescribe the role of courts in International Centre for Settlement of Investment Disputes (ICSID) and non-ICSID investment treaty arbitration reflect the philosophy of ‘minimal curial intervention’, but there are growing instances of tension between those texts and actions by national courts – particularly those of state respondents to investment treaty arbitration.

Against this context, in this chapter, we consider:

  • the role of national courts in non-ICSID arbitration;
  • the role of national courts in ICSID arbitration; and
  • some other instances of interaction between national courts and investment arbitration, particularly concerning courts of the state respondent.

The powers of the courts in non-ICSID arbitration

The vast majority of investment arbitrations are under either the ICSID or United Nations Commission on International Trade Law (UNCITRAL) rules.[7] When under the UNCITRAL Arbitration Rules, investment arbitrations are frequently administered by the Permanent Court of Arbitration (PCA). Other institutions, notably the Stockholm Chamber of Commerce and the International Chamber of Commerce (ICC), also administer investment arbitrations under their own rules.

Outside of ICSID, none of these administering institutions nor the appointed arbitrators themselves have authority to review the arbitral award for procedural irregularities or to review the jurisdiction of the arbitral tribunal itself, or coercive powers to compel parties to comply with the agreement to arbitrate or to require non-parties to participate. Thus, it is necessary to draw upon the powers and jurisdiction of national courts to perform these roles in support of non-ICSID arbitration by assigning each arbitration a legal seat: a national jurisdiction whose laws would govern the procedure of the arbitration and whose courts would have supervisory jurisdiction over the arbitration.

National courts outside the seat also play a role: they may be called upon to enforce an arbitral award or to grant injunctions or stays to address competing litigation and arbitration proceedings.

Below, we examine courts’ roles broadly chronologically over the lifeline of an arbitration and their powers for performing these roles. As national courts, their powers are derived from national laws, which in turn implement international conventions and model laws to which the state subscribes.

Appointing and deciding challenges to arbitrators

Today, in practice, national courts play a limited ‘backup’ role in the appointment (and removal) of arbitrators. Even in ad hoc non-ICSID arbitration where no institution is appointed to administer the arbitration, parties are entitled to designate an appointing authority to help them appoint their arbitrators and decide any challenges to arbitrators.[8] The appointing authority could be, for example, the Secretary General of the PCA or the Secretary General of ICSID (even if the case is non-ICSID).

National laws provide for a default mechanism where national courts would support the arbitrator appointment process in the absence of any other agreed procedure or appointing authority. For example, Section 18 of the English Arbitration Act confers power on the English courts ‘to give directions as to the making of any necessary appointments’, ‘to revoke any appointments already made’ and ‘to make any necessary appointments itself’, if or to the extent there is no party agreement to any procedure for the appointment of the arbitral tribunal. This provision applies equally to commercial and investment arbitration seated in the UK.

Further, under the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), which many states have adopted into their own laws as applying to both commercial and investment arbitrations, national courts have the ultimate say in deciding challenges to arbitrators. Article 11(3) of the Model Law provides that if any arbitrator challenge under any procedure agreed by the parties or under Article 11(2) of the Model Law is not successful, the challenging party may request that the court decide on the challenge. The court’s decision then would be subject to no appeal.

Deciding appeals to arbitral tribunals’ rulings on jurisdiction

More commonly, national courts serve as avenues for appeal against arbitral tribunals’ rulings on jurisdiction. Most developed jurisdictions, including those following the Model Law, permit parties to apply to court immediately after an arbitral tribunal has ruled on its own jurisdiction, whether as a preliminary question or in an award on the merits.[9] Under English, Singaporean, French, Swiss and US federal law, for example, both positive and negative rulings on jurisdiction may be reviewed by courts.[10] The standard of review may be de novo, as is the case in England and Singapore,[11] such that the courts are at liberty to consider the issues afresh and are not bound by the arbitral tribunals’ findings, although they will accord the appropriate respect to those findings.

More and more national courts have been reviewing the jurisdictional rulings of investment tribunals. One example is the Singapore courts’ determination of the jurisdiction of the arbitral tribunal constituted to decide Macanese casino investor Sanum’s claim against Laos under the PRC–Laos Bilateral Investment Treaty (BIT).[12] In investor–state arbitration, the arbitral tribunal’s jurisdiction derives from the investment treaty between the investor’s home state and the host state in which the investment was made. The tribunal constituted to hear Sanum’s claim against Laos found that it had jurisdiction to hear that claim, contrary to Laos’ objections that, inter alia, the PRC–Laos BIT did not apply to Macau. Singapore was the seat of the arbitration. Laos appealed the tribunal’s ruling on jurisdiction to the Singapore courts under Section 10(3) of Singapore’s International Arbitration Act. As the Singapore Court of Appeal explained, under this provision, ‘the Tribunal’s determination that it has jurisdiction remains subject to overriding court supervision in the form of an appeal to the High Court of Singapore’.[13] The Court held that it was ‘not only competent to consider these issues [of the interpretation and application of the PRC–Laos BIT], but in the circumstances, it was obliged to do so . . . because the parties have designated Singapore as the seat of the Arbitration’.[14] The Singapore courts considered the question of the tribunal’s jurisdiction de novo[15] and ultimately upheld the tribunal’s finding of jurisdiction over Sanum’s claim.

The English courts have also undertaken de novo reviews of investment tribunals’ rulings on jurisdiction in recent years.[16] For example, in 2019, the Commercial Court considered whether an arbitral tribunal had jurisdiction over an UNCITRAL arbitration brought against the Republic of Korea under the Korea–Iran BIT by members of the Iranian Dayyani family.[17] The Court considered whether a share purchase agreement or a deposit paid pursuant to that agreement before the closing of the share purchase transaction constituted an ‘investment’ under the BIT, and whether the Dayyanis constituted ‘investors’ under the BIT when the contracting party and payor of the deposit was a Singaporean company instead of the Dayyanis themselves. The Court upheld the UNCITRAL tribunal’s finding of jurisdiction.

The US courts, too, have been asked to review rulings by investment tribunals that were characterised as ‘jurisdictional’. In BG Group v. Argentina, the US Supreme Court, by a 7-2 majority, refused to review de novo the question of whether British BG Group had fulfilled the requirement in Article 8 of the UK–Argentina BIT that disputes first be submitted for 18 months to the Argentine courts before investor–state arbitration may be initiated.[18] BG Group had brought UNCITRAL arbitration against Argentina (as did hundreds of other foreign investors) for damage to its investment in Argentine gas distributor MetroGAS, caused by the emergency laws that Argentina enacted in 2001 and 2002 to try to curb its economic crisis. In finding for BG Group, the UNCITRAL tribunal dismissed Argentina’s objection that BG Group’s claims were inadmissible because BG Group had not sought relief from Argentine courts for a period of 18 months before resorting to arbitration.[19] Before the US Supreme Court, Argentina argued that the UNCITRAL tribunal had lacked ‘jurisdiction’ because BG Group initiated arbitration without first litigating its claims in Argentina’s courts despite Article 8’s requirement, and ‘failure by BG to bring its grievance to Argentine courts for 18 months render[ed] its claims in [the] arbitration inadmissible’.[20] While the Court implicitly accepted that a jurisdictional question such as Argentina’s substantive consent to arbitrate would be reviewed de novo,[21] it characterised the local litigation requirement in Article 8 of the BIT as a ‘procedural condition precedent to arbitration’ only, and held that reviewing courts could not review arbitrators’ decisions on such procedural conditions de novo, but could only do so with ‘considerable deference’.[22]

Granting interim measures in support of arbitration

Generally, arbitral tribunals are empowered – either by party agreement through their chosen arbitration rules or the curial law – to grant the interim measures or provisional relief that parties may require. Exceptionally, however, parties may address requests for interim measures to national courts. Arbitration rules commonly adopted in non-ICSID investment arbitration do not preclude parties from doing so,[23] and national laws generally afford courts certain powers exercisable in support of arbitral proceedings ‘only if or to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively’.[24]

Courts at the seat of arbitration can usually exercise powers in relation to:

  • the taking of witness evidence;[25]
  • the preservation of evidence;[26]
  • property that is the subject of the arbitral proceedings or as to which any question arises in the proceedings (e.g., for its preservation, interim custody or sale, or for samples, observations or experiments to be taken upon it);[27] and
  • the granting of interim injunctions.[28]

Courts’ powers extend to non-parties to the arbitration as long as they fall within the court’s jurisdiction (e.g., are within the territory). For example, the Singapore courts have power to order that a subpoena to testify or to produce documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever they may be in Singapore.[29]

The US courts have the power, under Section 1782 of Title 28 of the United States Code, to order persons within their jurisdiction to give testimony or statement (e.g., by deposition) or to produce documents for use in investor–state arbitration under an investment treaty – regardless of whether those persons are parties to the arbitration. This has been confirmed by the Court of Appeals for the Second Circuit and several district courts,[30] though not yet by the US Supreme Court (before which there is a pending application concerning the use of Section 1782 in international commercial arbitration, not implicating investment arbitration).[31] For example, in 2010, Chevron successfully applied to the Southern District of New York under Section 1782 to subpoena, from an award-winning producer and filmmaker located in the district, the out-takes from a documentary he had made depicting the alleged environmental contamination at issue in Chevron’s arbitration against Ecuador under the US–Ecuador BIT.[32]

Section 1782 calls neatly into focus the intersection between international arbitral tribunals and the US courts. A court order that testimony or documents be produced pursuant to Section 1782 could undermine an arbitral tribunal’s refusal to make similar orders in the arbitration, perhaps because they do not consider the evidence relevant or material to the dispute. Thus, US courts faced with a Section 1782 application must consider the degree of deference they ought to accord to the views of the arbitral tribunal on the discovery sought. As Justice Ruth Bader Ginsberg held in her majority opinion for the court in Intel v. Advanced Micro Devices, the second and third of the four discretionary factors to be considered in an application for Section 1782 discovery are: ‘the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance’, and ‘whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States’.[33]

Deciding applications to set aside or annul arbitral awards

Perhaps the most important role of courts in non-ICSID arbitration is to determine whether awards should be set aside or annulled. As with commercial arbitrations, courts of the seat of investment arbitrations are empowered to set aside or annul awards if the grounds for doing so under national law are met. These grounds tend to be very limited: under the Model Law, awards may be set aside only if a party was under some incapacity, the arbitration agreement was invalid, there was an excess of jurisdiction or serious procedural irregularity, the subject matter of the dispute was non-arbitrable or the award conflicted with public policy. These are discussed in greater detail in Chapter 20.

In this chapter, we highlight one prominent example of a national court setting aside an investment arbitration award. In the landmark decision of Swissbourgh Diamond Minds v. Kingdom of Lesotho, the Singapore courts set aside an arbitral award that had found the Kingdom of Lesotho liable for breaching its obligations to South African mining investors.[34] The Singapore Court of Appeal confirmed that, as part of the supervisory role of Singapore courts over Singapore-seated arbitrations, it had power to set aside an investment arbitration award under the Model Law (which has the force of law in Singapore). It did so on the ground that the award dealt with issues falling outside the scope of the agreement to arbitrate in the relevant treaty.

Enforcing arbitral awards

National courts – not just of the seat – also serve the critical function of enforcing compliance with arbitral awards. Under the New York Convention, contracting states’ courts are required to recognise arbitral awards made (or seated) in other contracting states as binding and to enforce them, except on very limited grounds, which mirror the Model Law grounds for setting aside awards. This also applies to non-ICSID investment arbitration awards.

While the data show that more states have complied with adverse awards than not, the instances of state noncompliance with adverse awards are significant and often result in investors having to pursue formal enforcement proceedings.[35] These tend to be before the courts of any New York Convention jurisdiction where the state may have assets; recourse to formal enforcement proceedings is not limited to the courts of the seat or the state itself.

For example, in 2018, US independent oil and gas major ConocoPhillips commenced enforcement actions in Jamaica and the Dutch Caribbean to seize and sell assets of Venezuelan state-owned oil company Petróleos de Venezuela, SA (PdVSA) to satisfy a US$2 billion ICC award that ConocoPhillips had obtained against PdVSA. Although not an investor–state arbitration per se, this case illustrates the breadth of enforcement jurisdictions and measures available to satisfy awards against states (or state-owned entities). ConocoPhillips managed to obtain court orders allowing it to garnish PdVSA’s proceeds from oil exports produced in facilities in the Caribbean. PdVSA eventually entered into a settlement agreement with ConocoPhillips, agreeing to pay the award sum in full.

Enforcement proceedings may put further pressure on the respondent state to withdraw or change the measures for which it was penalised in the award being enforced. In December 2020, Scottish energy investors Cairn Energy and Cairn UK Holdings successfully obtained an award of some US$1.2 billion against India in UNCITRAL arbitration under the UK–India BIT for India’s retroactive amendment to its Income Tax Act and thus the claimants’ tax assessments.[36] In early 2021, Cairn actively pursued recognition and enforcement proceedings before the US courts, including, in May 2021, asking that Air India be held jointly and severally liable for the award, as the ‘alter ego’ of the Republic of India.[37] In August 2021, the Indian government moved to amend the Income Tax Act so as to reverse its retroactive effect and to withdraw retrospective tax demands such as those that had been levied against Cairn.[38]

Recognition and enforcement of non-ICSID (and ICSID) awards are discussed in greater detail in Chapters 21 and 22.

The powers of the courts in ICSID arbitration

In ICSID arbitration,[39] national courts have a significantly reduced role. The ICSID Convention established an almost exclusively self-contained and autonomous system for investment arbitration. ICSID Convention signatories agree to arbitrate within this system; accordingly, no domestic seat is necessary for supervision or support to ICSID arbitration. ICSID arbitration is delocalised and independent of judicial control in the country where the proceedings take place and the award is rendered.[40] For example:

  • all matters relating to the constitution of an ICSID arbitral tribunal, including proposals to disqualify arbitrators, are supported by the Secretary General and resolved by the chairman of the Administrative Council of ICSID;[41]
  • ICSID tribunals’ decisions on their jurisdiction are not subject to review by domestic courts and are only subject to review by an ad hoc committee of three persons appointed by ICSID after the tribunal has issued its final award (even if the tribunal had made a preliminary decision upholding jurisdiction);[42]
  • ICSID awards are not subject to set aside proceedings before domestic courts – only an ad hoc committee may decide whether to annul an ICSID award;[43] and
  • ICSID awards are not subject to review by courts of ICSID contracting states when they are asked to enforce these awards,[44] as further discussed below.

In exceptional circumstances, however, parties to ICSID arbitration may still require recourse to national courts. Some of these circumstances are discussed below. Again, we proceed broadly in chronological order through the life of an investment arbitration.

Compelling attendance of witnesses or production of documents through subpoena

ICSID tribunals do not have the power to compel the appearance of witnesses – who are not parties to the arbitration – before them. Article 43 of the ICSID Convention only empowers tribunals to ‘call upon the parties to produce documents or other evidence’.[45]

In addition, the ICSID Convention does not entitle ICSID tribunals to enlist the assistance of national courts to obtain evidence, although parties may agree that provisional measures may be requested from domestic courts.[46] In that event, a party may, for example, apply to the Singapore courts for an order that a subpoena to testify or to produce documents shall be issued to compel the attendance before an ICSID tribunal of a witness located in Singapore.[47]

Enforcing or complying with provisional measures ordered by ICSID tribunals

National courts may be asked to enforce, or be required to comply with, provisional measures ordered by an ICSID tribunal. Under Article 47 of the ICSID Convention, a tribunal may, ‘if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party’. The procedural framework for provisional measures is in ICSID Arbitration Rule 39.

Despite the use of the word ‘recommend’, ICSID tribunals are empowered to order provisional measures.[48] However, there is no penalty for non-compliance with such provisional measures, except that a tribunal would take the fact and effects of noncompliance into account in its award.[49]

Thus, there is a question of whether a national court may be asked to enforce a provisional measure ordered by an ICSID tribunal. The most common manifestation of this is where national courts are the subject of the provisional measures ordered. In this context, because under international law a state’s judiciary is also bound by an ICSID tribunal’s order against the state, national courts tend to be strongly influenced to comply with the tribunal’s orders.[50] Further, courts of an ICSID signatory state would be bound to comply with Article 26 of the Convention, which provides for ICSID arbitration as the exclusive remedy – without recourse to parallel judicial remedies – for parties that have consented to arbitrate under the Convention.

Granting provisional measures in support of ICSID arbitration

National courts also may be asked to grant provisional measures in support of an ICSID arbitration. Article 47 of the ICSID Convention is silent with respect to whether this can be done; it has been a subject of debate whether national courts are entitled to grant provisional measures in connection with ICSID arbitrations.[51] With the addition of Rule 39(6) of the ICSID Arbitration Rules, however, it has become clear that provisional measures by national courts are only permissible where parties have expressly agreed to this option.

Recourse to national courts for provisional measures in the context of ICSID arbitration is therefore only available where parties have expressly agreed to it or where ICSID tribunals have issued recommendations or orders in relation to parallel domestic court proceedings.

Enforcing arbitral awards

As discussed above, non-ICSID awards are enforceable under the New York Convention. ICSID awards are too, but they are also enforceable under the ICSID Convention, which does not provide the limited grounds for refusing recognition and enforcement that the New York Convention does. The only recourse against an ICSID award is the interpretation, revision and annulment procedures under the ICSID Convention.

The courts of ICSID contracting states are obliged under Article 54 of the Convention to recognise ICSID awards as binding and to enforce the pecuniary obligations imposed by those awards.[52] The enforcement process is mechanistic: the enforcing party need only ‘furnish to a competent court or other [designated] authority . . . a copy of the award certified by the Secretary General’.[53] Thereafter, execution of the award takes place according to local laws concerning the execution of judgments.[54] With that said, Article 55 of the Convention clarifies that states may still benefit from sovereign immunity at the execution stage.[55]

Most recently in 2021, Articles 54 and 55 of the ICSID Convention were the subject of debate before the Australian courts. Pursuant to the Convention, the Federal Court of Australia recognised and enforced,[56] in favour of Luxembourg and Dutch claimants, one of the ICSID awards from the long line of cases against Spain relating to its renewable energy regulatory regime.[57] The Court explained that Article 54(1) of the Convention ‘is about recognising the award to the point of having an enforceable status’,[58] and that ‘[t]he obligation to recognise an award under article 54 was unequivocal and unaffected by questions of immunity from execution’.[59] These questions about immunity from execution (e.g., what assets may be attached in execution of an award) would be answered by the domestic laws of the state in which execution is sought. For example, in England, only assets in use or intended for use for commercial purposes may be enforced against. The House of Lords has refused to grant attachment of funds in a bank account where they were used for both commercial and sovereign expenditures.[60]

In exceptional cases, it may be necessary to enforce an ICSID award in a state that is not a party to the ICSID Convention but is a party to the New York Convention (for example, if the state respondent refuses to comply with the award and has assets located in a non-ICSID contracting state). Alternatively, it may be necessary to enforce non-pecuniary obligations in an ICSID award.[61]

In such a case, the ICSID award would be treated no differently than non-ICSID or commercial arbitral awards, and its enforcement would be governed by the New York Convention (with its limited grounds for refusing enforcement) and the national laws of the jurisdictions in which enforcement is sought. Enforcement and execution of awards are discussed in greater detail in Chapters 21 and 22.

Other interactions between courts and investment arbitration

We turn, finally, to some observations on other possible interactions between courts and investment arbitration. The above instances are not exhaustive. In particular, there is potential for tension between courts and investment arbitration when the courts of the state respondent are involved. In this final section to this chapter, we discuss just a few.

Denial of justice, a substantive ground for investment treaty protection, is beyond the scope of this chapter and is discussed in Chapter 13. But it is an obvious instance of interplay between national courts and investment arbitration: it is founded upon unfair treatment by state judiciaries and requires claimants to have exhausted all remedies before domestic courts.

Similarly, court actions have founded unlawful expropriation claims against states. For example, in 2009, Italian subsidiary of Eni, Saipem, was successful in its ICSID claim of unlawful expropriation against Bangladesh based on the Bangladeshi courts’ decision to revoke the authority of an arbitral tribunal in a prior ICC arbitration between Saipem and Petrobangla, and the Bangladeshi Supreme Court’s decision that the ICC award later issued was ‘non-existent’.[62] In May 2021, Mauritian shareholders of Indian telecommunications company Devas Multimedia issued a trigger letter notifying India of a new claim under the Mauritius–India BIT based on, among other things, an order by a provincial companies tribunal in India appointing a provisional liquidator to wind up Devas. The wind-up petition allegedly was filed with the Indian government’s permission while proceedings were ongoing to enforce an ICC award and an UNCITRAL award (from an earlier arbitration between the Devas shareholders and India under the Mauritius–India BIT) against India.[63]

National court proceedings and arbitration also collide when parties invoke domestic proceedings in procedural applications to an arbitral tribunal.

Investment tribunals have encountered requests for production of documents relating to pending domestic court proceedings.

  • For example, in BSG Resources v. Guinea, the claimants requested from Guinea the production of documents essentially from their public prosecutors’ files relating to pending domestic criminal prosecutions against parties associated with the claimant.[64] Their requests were not granted. Among other reasons, the ICSID tribunal accepted Guinea’s objections based on the principle of secrecy of criminal proceedings.[65]
  • Relatedly, the ICSID tribunal in Libananco v. Turkey was asked to grant provisional relief in response to claims that the Turkish authorities had, in connection with criminal investigations into money laundering, held Libananco’s legal representatives and potential witnesses under surveillance and intercepted thousands of their communications, including privileged and confidential emails.[66] Libananco had initially asked the tribunal to direct Turkey to produce documents related to that alleged surveillance, but later withdrew that request,[67] and the tribunal instead made orders restricting the use of documents and information from the criminal investigations as evidence in the arbitration.[68]

As also mentioned above, investment tribunals have been asked to order provisional measures requiring state respondents to suspend domestic court proceedings – most of these criminal – to protect the integrity of the international arbitral proceedings.

  • For example, heir to the 300-year-old Gavrilović meat processing enterprise, Georg Gavrilović, sought in his ICSID arbitration against Croatia, provisional measures to suspend the Croatian police’s criminal investigations against him as well as health and safety inspections conducted at the factories of his company and co-claimant, Gavrilović d.o.o.[69] The tribunal refused the request, finding, among other things, that the allegation that the investigations were intended to advantage Croatia in the arbitration and deprive Mr Gavrilović and Gavrilović d.o.o. of a fair hearing was not supported by the evidence.[70]
  • Similarly, but with an opposite result, the ICSID tribunal in Quiborax and Non Metallic Minerals v. Bolivia ordered Bolivian authorities to suspend their criminal proceedings against persons associated with the claimants, on the basis of evidence that the criminal proceedings were initiated in retaliation for the claimants’ initiation of the ICSID arbitration.[71]

In each of these instances of interaction between domestic proceedings and investment arbitration, international tribunals have the unenviable task of balancing the claimants’ rights under international law against states’ sovereign rights and duties to investigate and prosecute crimes within their territories.[72]

The tension between national courts and international arbitral tribunals has been alleviated in one respect, with the now internationally ‘mainstream’ consensus that courts should support, rather than ‘displace’ or interfere with, the arbitral process. However, other aspects of the court-arbitration dichotomy remain relatively unsatisfactory and difficult to resolve, particularly when states are torn between their national interests and their international obligations, and private tribunals are asked essentially to intervene in domestic proceedings.

Notes

[1] Nicholas Lingard is a partner and Samantha Tan is a senior associate at Freshfields Bruckhaus Deringer. The authors wish to thank Sheares Tiong, LLB candidate at the National University of Singapore, for his assistance with research for this chapter.

[2] S Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, International Council for Commercial Arbitration (ICCA) Congress 2012, Opening Plenary Session (available at: https://cdn.arbitration-icca.org/s3fs-public/document/media_document/ags_opening_speech_icca_congress_2012.pdf), Paragraph 4.

[3] Tjong Very Sumito and others v. Antig Investments Pte Ltd [2009] 4 SLR(R) 732 (Singapore Court of Appeal), Paragraph 29.

[4] S Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, ICCA Congress 2012, Opening Plenary Session (footnote 2), Paragraph 5.

[5] See B Kingsbury and S Schill, ‘Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law’ (2 September 2009), NYU School of Law, Public Law Research Paper No. 09-46 (available at: https://ssrn.com/abstract=1466980), and G V Harten and M Loughlin, ‘Investment Treaty Arbitration as a Species of Global Administrative Law’ (2006) Volume 17(1), European Journal of International Law, 121–150 (available at: http://www.ejil.org/pdfs/17/1/65.pdf), both cited in S Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, ICCA Congress 2012, Opening Plenary Session (footnote 2), Paragraph 19.

[6] S Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, ICCA Congress 2012, Opening Plenary Session (footnote 2), Paragraph 22.

[7] See, e.g., J Commission and R Moloo, Procedural Issues in International Investment Arbitration (Oxford University Press, 2018), Preface, pp. xi–xii.

[8] See, e.g., UNCITRAL Arbitration Rules 2013, Article 6.

[9] See, e.g., Model Law, Article 16(3).

[10] See, e.g., English Arbitration Act 1996, Sections 32, 67; Singapore International Arbitration Act, Section 10(3); French Code of Civil Procedure, Article 1520; Swiss Law on Private International Law, Article 190; US Federal Arbitration Act, § 10(a)(4).

[11] See, e.g., GPF GP S.á.r.l. v. The Republic of Poland [2018] EWHC 409 (Comm), Paragraphs 64–70; Dallah Real Estate and Tourism v. Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46, Paragraphs 26, 96 and 160; CBX and another v. CBZ and others [2021] SGCA(I) 3, Paragraph 11; PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v. Astro Nusantara International BV and others and another appeal [2014] 1 SLR 372 (Singapore Court of Appeal), Paragraph 163.

[12] Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] 5 SLR 536 (Singapore Court of Appeal).

[13] id., Paragraph 9.

[14] id., Paragraph 38 (emphasis in original).

[15] id., Paragraphs 40–42.

[16] See, e.g., GPF GP S.á.r.l. v. The Republic of Poland [2018] EWHC 409 (Comm); Republic of Korea v. Dayyani and others [2019] EWHC 3580 (Comm).

[17] Republic of Korea v. Dayyani and others [2019] EWHC 3580 (Comm).

[18] BG Group plc v. Republic of Argentina, 572 US 25, 134 S. Ct. 1198 (2014).

[19] BG Group Plc. v. The Republic of Argentina (UNCITRAL), Final Award, 24 December 2007, Paragraphs 140–157.

[20] BG Group plc v. Republic of Argentina, 572 US 25, 134 S. Ct. 1198 (2014).

[21] See Justice Sotomayor’s partial concurring opinion (‘I agree with the Court that the local litigation requirement at issue in this case is a procedural precondition to arbitration (which the arbitrators are to interpret), not a condition on Argentina’s consent to arbitrate (which a court would review de novo).’).

[22] BG Group plc v. Republic of Argentina, 572 US 25, 134 S. Ct. 1198 (2014).

[23] See, e.g., UNCITRAL Arbitration Rules 2013, Article 26(9); SIAC Investment Arbitration Rules 2017, Rule 27.2.

[24] See, e.g., English Arbitration Act 1996, Section 44(5); Singapore International Arbitration Act, Section 12A(6).

[25] See, e.g., English Arbitration Act 1996, Section 44(2)(a); Singapore International Arbitration Act, Section 12(1)(c) read with Section 12A(2). See also Model Law, Article 27 (‘The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence’), which applies to both investment and commercial disputes. J Commission and R Moloo, Procedural Issues in International Investment Arbitration (Oxford University Press, 2018), Paragraph 7.46.

[26] See, e.g., English Arbitration Act 1996, Section 44(2)(b); Singapore International Arbitration Act, Section 12(1)(f) read with Section 12A(2).

[27] See, e.g., English Arbitration Act 1996, Section 44(2)(c)–(d); Singapore International Arbitration Act, Section 12(1)(d)–(e) read with Section 12A(2).

[28] See, e.g., English Arbitration Act 1996, Section 44(2)(e); Singapore International Arbitration Act, Section 12(1)(i) read with Section 12A(2).

[29] Singapore International Arbitration Act, Section 13(2).

[30] See, e.g., In re Fund for the Protection of Investor Rights in Foreign States v. AlixPartners, LLP (2d Cir. 15 July 2021); In re Application of Chevron Corp., 709 F. Supp. 2d 283, 291 (S.D.N.Y. 2010); In re Chevron Corp., 753 F. Supp. 2d 536, 539 (D. Md. 2010); Republic of Ecuador v. Bjorkman, 801 F. Supp. 2d 1121, 1124 n. 1 (D.C. Colo. 2011); In re Mesa Power Grp., LLC, No. 2:11-MC-270-ES, 2013 WL 1890222, at *1 (D.N.J. 19 April 2013). See also L V M Bento, The Globalization of Discovery: The Law and Practice under 28 U.S.C. § 1782 (Wolters Kluwer, 2019), p. 126 (‘a majority of courts have held that international treaty arbitrations, such as those arising under a Bilateral Investment Treaty (BIT) or a multilateral treaty qualify as a “foreign or international tribunal” under Section 1782. . . . There appears to be “significant agreement” at the district court level in this connection.’).

[31] Servotronics, Inc. v. Rolls-Royce PLC, No. 20-794.

[32] In re Application of Chevron Corp., 709 F. Supp. 2d 283, 291 (S.D.N.Y. 2010).

[33] Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241, at 264–265, 124 S. Ct. 2466 (2004).

[34] Swissbourgh Diamond Mines (Pty) Ltd and others v. Kingdom of Lesotho [2019] 1 SLR 263 (Singapore Court of Appeal).

[35] See E Gaillard, I M Penushliski, ‘State Compliance with Investment Awards’, ICSID Review – Foreign Investment Law Journal, 2021 (available at: https://doi.org/10.1093/icsidreview/siaa034).

[36] Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India (PCA Case No. 201607), Final Award, 21 December 2020.

[37] See, e.g., Petition to Confirm Foreign Arbitration Award, Cairn Energy PLC and Cairn UK Holdings Limited v. The Republic of India, in the United States District Court for the District of Columbia (Case 1:21-cv-00396-RJL), 12 February 2021; Complaint, Cairn Energy PLC and Cairn UK Holdings Limited v. Air India, Ltd, in the United States District Court for the Southern District of New York (Case 1:21cv04375), 14 May 2021.

[38] See, e.g., ‘Govt to amend Income Tax Act to nullify retrospective tax demands’, Business Standard, 5 August 2021 (available at: http://www.business-standard.com/article/economy-policy/govt-to-amend-income-tax-act-to-nullify-retrospective-tax-demands-121080501146_1.html); ‘Govt to amend Income Tax Act, no provision for retrospective tax’, Hindustan Times, 5 August 2021 (available at: http://www.hindustantimes.com/india-news/centre-to-amend-income-tax-act-no-provision-for-retrospective-tax-101628167762474.html).

[39] The discussion here does not extend to additional facility arbitrations.

[40] C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), p. 1103.

[41] ICSID Convention, Articles 37 to 40; ICSID Arbitration Rules 2 to 12.

[42] ICSID Convention, Article 52; C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), pp. 523–524. See also, ICSID Convention, Article 48(3) (requiring an award to ‘deal with every question submitted to the Tribunal’) and ICSID Arbitration Rule 41(6) (requiring negative rulings on jurisdiction to be recorded in an award to that effect).

[43] ICSID Convention, Article 52; C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), p. 899.

[44] See ICSID Convention, Article 54.

[45] id., Article 43(a) (emphasis added). See also C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), pp. 653–654.

[46] ICSID Arbitration Rules, Rule 39(6); C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), p. 653.

[47] Singapore International Arbitration Act, Section 13.

[48] See C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), p. 765, citing Tokios Tokelés v. Ukraine, Procedural Order No. 1, 1 July 2003, Paragraph 4 and Occidental v. Ecuador, Decision on Provisional Measures, 17 August 2007, Paragraph 58.

[49] See C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), pp. 765–766, 768–769 (explaining that during the drafting of the Convention, a second paragraph to Article 47 providing that ‘The Tribunal may fix a penalty for failure to comply with such provisional measures’ was deleted by a ‘nearly unanimous vote’, upon which the Chairman made an unopposed announcement that he ‘assumed the majority was opposed to any specific mention of the effect of noncompliance with the recommendation, but that naturally the Tribunal would normally have to take account of this fact when it came to make its award’ (emphasis in original)).

[50] See C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), pp. 766–767.

[51] A L Ortiz, P Ugalde-Revilla, et al., ‘Chapter 12: The Role of National Courts in ICSID Arbitration’, in C Baltag (ed.), ICSID Convention after 50 Years: Unsettled Issues (Wolters Kluwer, 2016), p. 347.

[52] ICSID Convention, Article 54(1).

[53] id., Article 54(2).

[54] id., Article 54(3).

[55] ICSID Convention, Article 55 (‘Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.’).

[56] Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. [2021] FCAFC 3, 1 February 2021, as clarified in Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. (No. 2) [2021] FCAFC 28, 4 March 2021, with the proper form of the order made further clarified in Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. (No. 3) [2021] FCAFC 112, 25 June 2021.

[57] Antin Infrastructure Services Luxembourg S.á.r.l. and Antin Energia Termosolar B.V. v. The Kingdom of Spain, ICSID Case No. ARB/13/31, Award, 15 June 2018.

[58] Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. (No. 3) [2021] FCAFC 112, 25 June 2021, Paragraph 10.

[59] Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. [2021] FCAFC 3, 1 February 2021, Paragraph 6. See also Kingdom of Spain v. Infrastructure Services Luxembourg S.á.r.l. (No. 3) [2021] FCAFC 112, 25 June 2021, Paragraph 7.

[60] Alcom Ltd v. Republic of Colombia [1984] 2 WLR 750.

[61] See C H Schreuer, L Malintoppi, A Reinisch and A Sinclair, The ICSID Convention: A Commentary, Second edition (Cambridge University Press, 2009), p. 1118.

[62] Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/7, Award, 30 June 2009, Paragraphs 161, 167, 170, 173.

[63] Notice of Intent to Initiate Arbitration for BIT Claims Arising From India’s Treatment of CC/Devas (Mauritius) Ltd., Telcom Devas Mauritius Limited and Devas Employees Mauritius Private Limited, 6 May 2021 (available at: https://www.iareporter.com/articles/india-is-put-on-notice-of-treaty-based-dispute-over-alleged-retaliatory-actions-against-claimants-in-billion-dollar-satellite-awards/).

[64] BSG Resources Limited and others v. Republic of Guinea, ICSID Case No. ARB/14/22, Procedural Order No. 7, 5 September 2016, Requests Nos. 37 and 40.

[65] id., pp. 106, 114.

[66] Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, Paragraphs 42–49, 72–81.

[67] id., Paragraphs 10, 12.

[68] id., pp. 40–42.

[69] See Gavrilović and Gavrilović d.o.o. v. Republic of Croatia, ICSID Case No. ARB/12/39, Decision on Claimants’ Request for Provisional Measures, 30 April 2015.

[70] id., Paragraph 195.

[71] See Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, Paragraphs 119–121.

[72] See, e.g., BSG Resources Limited and others v. Republic of Guinea, ICSID Case No. ARB/14/22, Procedural Order No. 7, 5 September 2016, Requests Nos. 37 and 40, pp. 106, 114; Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8, Decision on Preliminary Issues, 23 June 2008, Paragraph 79; Gavrilović and Gavrilović d.o.o. v. Republic of Croatia, ICSID Case No. ARB/12/39, Decision on Claimants’ Request for Provisional Measures, 30 April 2015, Paragraphs 191, 216, 219; Quiborax S.A., Non Metallic Minerals S.A. and Allan Fosk Kaplún v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Provisional Measures, 26 February 2010, Paragraphs 121, 123, 164, 165.

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