State Entities in International Arbitration - IAI Series No. 4

The International Arbitration Institute (IAI) series on international arbitration is a new periodic series of publications that will focus on cutting edge issues and developments in international arbitration.

About the IAI:
The International Arbitration Institute (IAI), an organization created under the auspices of the Comite Francais de l' Arbitrage (CFA), was created to promote exchanges international arbitration. The IAI is designed to promote exchanges on current issues in the field of international commercial arbitration. Its activities include the regular organization of international conferences, colloquiums, as well as conducting various research projects.

About the Book:
States get involved in international affairs either directly or through their instrumentalities. The activities of these instrumentalities raise many issues, two of which have given rise to significant recent developments both in arbitral and domestic case law.

The first is whether and under what conditions a State may be held liable for the conduct of such instrumentalities on the basis of an investment treaty. This issue will be the subject of a systematic survey of ICSID and ICC case law and that of other arbitral tribunals so as to identify the circumstances in which such liability may arise.

The second issue, which is addressed by State courts, is whether and under what conditions State instrumentalities that have a separate and autonomous legal personality may be held liable for the pecuniary obligations of the State. A comparative law study focusing in particular on solutions found in French, English and U.S. law will provide answers to the question as to whether an award holding a State liable may be enforced against the assets of instrumentalities of that State, where such instrumentalities are prima facie separate juridical persons.

INTRODUCTION Emmanuel Gaillard
PART I

Are States Liable For The Conduct Of Their Instrumentalities?

Introductory Remarks
Peter Tomka

ICSID Case Law
Ibrahim Fadlallah

ICC Case Law
Eduardo Silva Romero

Case Law of Tribunals Other Than ICC and ICSID
Barton Legum

Concluding Remarks
Pierre-Marie Dupuy

PART II

Can A Party Benefiting From An Awardrendered Against A State Enforce The Award Against An Instrumentality Of Such State?

Introductory Remarks
Charles Poncet

French Law
Eric Teynier

English Law
Judith Gill

U.S. Law
Eugene Gulland

Concluding Remarks
Sigvard Jarvin

Effectiveness of Arbitral Awards, State Immunity from Execution and Autonomy of State Entities - Three Incompatible Principles
Emmanuel Gaillard

The Relationships between States and their Instrumentalities in Investment Arbitration
Sebastien Manciaux

ANNEXES (1-12)

ANNEX 1
Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, adopted by the International Law Commission at its fifty-third session (2001) (excerpts)

ANNEX 2
United States Foreign Sovereign Immunities Act of 1976

ANNEX 3
ICSID Case No. ARB/03/3, Impregilo S.p.A. v. Islamic Republic of Pakistan, Decision on Jurisdiction, April 22, 2005

ANNEX 4
ICSID Case No. ARB/01/11, Noble Ventures, Inc. v. Romania, Award, October 12, 2005

ANNEX 5
Paris Court of Appeals, Societe nationale des petroles du Congo v. Walker InternationalHoldings Ltd., July 3, 2003 (English translation)

ANNEX 5
Paris Court of Appeals, Société nationale des pétroles du Congo v. Walker InternationalHoldings Ltd., July 3, 2003 (French original)

ANNEX 6
Paris Court of Appeals, Winslow Bank & Trust Company Limited v. Societe nationale des hydrocarbures, January 22, 2004 (English translation)

ANNEX 6
Paris Court of Appeals, Winslow Bank & Trust Company Limited v. Société nationale des hydrocarbures, January 22, 2004 (French original)

ANNEX 7
Cour de cassation, Noga v. EADS, May 12, 2004 (English translation)

ANNEX 7
Cour de cassation, Noga v. EADS, May 12, 2004 (French original)

ANNEX 8
Paris Court of Appeals, Central Bank of Iraq v. Hochtief AG, September 1, 2005 (English translation)

ANNEX 8
Paris Court of Appeals, Central Bank of Iraq v. Hochtief AG, September 1, 2005 (French original)

ANNEX 9
U.S. Supreme Court, First National City Bank v. Banco Para el Comercio Exterior de Cuba, June 17, 1983

ANNEX 10
List of Participants to the IAI Conference Held in Paris on October 20, 2005

ANNEX 11
Table of Abbreviations

ANNEX 12
Table of Authorities

About the General Editor of the IAI series on international arbitration:
Emmanuel Gaillard is the Chairman of the IAI, and he is acknowledged as one of the world’s leading experts on international arbitration. He has written extensively on all aspects of international arbitration law, in French and in English. He is a co-author of Fouchard Gaillard Goldman on International Arbitration, the leading and most exhaustive publication in this field. Emmanuel Gaillard teaches International Arbitration and Private International Law at the University of Paris XII. He has acted as arbitrator, counsel and expert in over 250 international arbitration proceedings and is the Chair of Shearman & Sterling's International Arbitration practice.

About the Editors:
Emmanuel Gaillard (See Above) and Jennifer Younan Partner Shearman & Sterling LLP, International Arbitration Practice Group, Paris.

About the Contributors:

Pierre-Marie Dupuy, Professor of Law, University of Paris II, currently Professor at the European University Institute in Florence; Professor Dupuy is a former Director of the Paris Institute for Advanced International Studies (1990-2000). He also was Visiting Professor at the Universities of Michigan, Geneva, Munich, Madrid (Complutense) and Duke University. He has sat as an arbitrator in proceedings under the aegis of the ICC and ICSID. He has advised numerous parties in proceedings before the International Court of Justice, as well as governments and international organizations on issues of public international law.
Ibrahim Fadlallah, Emeritus Professor of Law, University of Paris X; Professor Fadlallah has acted as arbitrator or counsel in numerous arbitration proceedings, ad hoc and under the Rules of the ICC, ICSID, the French Arbitration Association, and the European Development Fund. He is a former Member of the ICC International Court of Arbitration and a Member of the Council of the ICC Institute of World Business Law. He is also a Founding Member of the Euro-Arab Forum on Arbitration and a member of the International Law Institute.
Emmanuel Gaillard, Shearman & Sterling LLP, Paris (See Above)
Judith Gill, Partner, Allen & Overy LLP, London; Judith Gill has acted as arbitrator in international arbitration proceedings under the Rules of the ICC and LCIA. She has also advised numerous parties in arbitration proceedings, mostly international, ad hoc (including UNCITRAL) and under the Rules of the LCIA, ICC, ICSID, the International Arbitral Centre of the Austrian Federal Economic Chamber, SIAC, DIS, and the Hungarian Chamber of Commerce.
Eugene Gulland, Partner, Covington & Burling, Washington, DC; Eugene Gulland has handled numerous international arbitration proceedings as counsel, ad hoc (including UNCITRAL) and under the Rules of the AAA (International Rules), ICC, LCIA, ICSID, and the CPR Institute for Dispute Resolution. He has also acted as counsel in a number of arbitration-related proceedings before U.S. courts.
Sigvard Jarvin, Of Counsel, Jones Day, Paris; Sigvard Jarvin formerly was General Counsel at the ICC International Court of Arbitration. He has acted as arbitrator or counsel in numerous international arbitration proceedings, ad hoc (including under UNCITRAL Rules) and under the aegis of the ICC, AAA, the Stockholm Chamber of Commerce, the Cairo Regional Centre for International Commercial Arbitration, the Netherlands Arbitration Institute and UKASTA.
Barton Legum, Partner, Salans, Paris and head of the firm's treaty arbitration practice. Barton Legum served as Chief, NAFTA Arbitration Division, at the Office of the Legal Adviser in the U.S. Department of State (2000-04). He has also handled numerous international arbitration proceedings as counsel, under the UNCITRAL, ICSID and ICC Rules, with a specialization in investment treaty arbitration. He has represented parties in proceedings before the International Court of Justice.
Sebastien Manciau, Lecturer, University of Bourgogue, Dijon
Charles Poncet, Partner, ZPG Geneva; a former member of the Swiss parliament, Charles Poncet has acted as arbitrator in numerous international arbitration proceedings, ad hoc (including UNCITRAL) and under the aegis of the ICC, the Geneva Chamber of Commerce and Industry (CCIG), the Cairo Centre of National and International Arbitration, and the AAA. He has also acted as counsel in international arbitration proceedings, ad hoc and under the Rules of the ICC.
Eduardo Silva-Romero, Partner, Dechert, Paris; Eduardo Silva-Romero formerly was Counsel and Deputy Secretary General at the ICC International Court of Arbitration. He has advised parties in international arbitration proceedings, under the Rules of the ICC and the Stockholm Chamber of Commerce as well as in ad hoc proceedings, including under UNCITRAL Rules. He has also acted as sole arbitrator, co-arbitrator and chairman of the arbitral tribunal in arbitrations under the ICC and UNCITRAL arbitration rules. He is a Member (Colombia) of the ICC Commission on International Arbitration.
Eric Teynier, Partner, Teynier, Pic & Associes, Paris; Eric Teynier has represented governments and private parties in domestic and international arbitration proceedings, both ad hoc and under the aegis of the ICC, AAA, OHBLA / OHADA and AFA. He lectures on arbitration at the University of Paris X.
Judge Peter Tomka, International Court of Justice (ICJ); Judge Tomka has acted as Arbitrator in proceedings under the aegis of the Permanent Court of Arbitration. He is a Member of the Panel of Arbitrators under Annex VII to the UN Convention on the Law of the Sea (2004-) and a Member of the ICSID Panel of Arbitrators (2005-11). He formerly was a Member of the UN International Law Commission and Chairman of the UN General Assembly Legal Committee. Judge Tomka has also acted as Agent in proceedings before the ICJ and served as a Legal Adviser of the Ministry of Foreign Affairs of Slovakia.

"This book, the fourth in the IAI Series on International Arbitration, is a welcome addition to the literature on states in international arbitration. Its particular contribution lies in formulating specific questions that matter to practioners and theorists alike and in the quality of reports it offers in response to these questions set. Most certainly this is a book not only to buy but also to read."

-Professor Loukas A. Mistelis, Director, School of International Arbitration, Queen Mary, University of London

Author/Editor Detail:

About the Contributors:

Pierre-Marie Dupuy, Professor of Law, University of Paris II, currently Professor at the European University Institute in Florence; Professor Dupuy is a former Director of the Paris Institute for Advanced International Studies (1990-2000). He also was Visiting Professor at the Universities of Michigan, Geneva, Munich, Madrid (Complutense) and Duke University. He has sat as an arbitrator in proceedings under the aegis of the ICC and ICSID. He has advised numerous parties in proceedings before the International Court of Justice, as well as governments and international organizations on issues of public international law.
Ibrahim Fadlallah, Emeritus Professor of Law, University of Paris X; Professor Fadlallah has acted as arbitrator or counsel in numerous arbitration proceedings, ad hoc and under the Rules of the ICC, ICSID, the French Arbitration Association, and the European Development Fund. He is a former Member of the ICC International Court of Arbitration and a Member of the Council of the ICC Institute of World Business Law. He is also a Founding Member of the Euro-Arab Forum on Arbitration and a member of the International Law Institute.
Emmanuel Gaillard, Shearman & Sterling LLP, Paris (See Above)
Judith Gill, Partner, Allen & Overy LLP, London; Judith Gill has acted as arbitrator in international arbitration proceedings under the Rules of the ICC and LCIA. She has also advised numerous parties in arbitration proceedings, mostly international, ad hoc (including UNCITRAL) and under the Rules of the LCIA, ICC, ICSID, the International Arbitral Centre of the Austrian Federal Economic Chamber, SIAC, DIS, and the Hungarian Chamber of Commerce.
Eugene Gulland, Partner, Covington & Burling, Washington, DC; Eugene Gulland has handled numerous international arbitration proceedings as counsel, ad hoc (including UNCITRAL) and under the Rules of the AAA (International Rules), ICC, LCIA, ICSID, and the CPR Institute for Dispute Resolution. He has also acted as counsel in a number of arbitration-related proceedings before U.S. courts.
Sigvard Jarvin, Of Counsel, Jones Day, Paris; Sigvard Jarvin formerly was General Counsel at the ICC International Court of Arbitration. He has acted as arbitrator or counsel in numerous international arbitration proceedings, ad hoc (including under UNCITRAL Rules) and under the aegis of the ICC, AAA, the Stockholm Chamber of Commerce, the Cairo Regional Centre for International Commercial Arbitration, the Netherlands Arbitration Institute and UKASTA.
Barton Legum, Partner, Salans, Paris and head of the firm's treaty arbitration practice. Barton Legum served as Chief, NAFTA Arbitration Division, at the Office of the Legal Adviser in the U.S. Department of State (2000-04). He has also handled numerous international arbitration proceedings as counsel, under the UNCITRAL, ICSID and ICC Rules, with a specialization in investment treaty arbitration. He has represented parties in proceedings before the International Court of Justice.
Sebastien Manciau, Lecturer, University of Bourgogue, Dijon
Charles Poncet, Partner, ZPG Geneva; a former member of the Swiss parliament, Charles Poncet has acted as arbitrator in numerous international arbitration proceedings, ad hoc (including UNCITRAL) and under the aegis of the ICC, the Geneva Chamber of Commerce and Industry (CCIG), the Cairo Centre of National and International Arbitration, and the AAA. He has also acted as counsel in international arbitration proceedings, ad hoc and under the Rules of the ICC.
Eduardo Silva-Romero, Partner, Dechert, Paris; Eduardo Silva-Romero formerly was Counsel and Deputy Secretary General at the ICC International Court of Arbitration. He has advised parties in international arbitration proceedings, under the Rules of the ICC and the Stockholm Chamber of Commerce as well as in ad hoc proceedings, including under UNCITRAL Rules. He has also acted as sole arbitrator, co-arbitrator and chairman of the arbitral tribunal in arbitrations under the ICC and UNCITRAL arbitration rules. He is a Member (Colombia) of the ICC Commission on International Arbitration.
Eric Teynier, Partner, Teynier, Pic & Associes, Paris; Eric Teynier has represented governments and private parties in domestic and international arbitration proceedings, both ad hoc and under the aegis of the ICC, AAA, OHBLA / OHADA and AFA. He lectures on arbitration at the University of Paris X.
Judge Peter Tomka, International Court of Justice (ICJ); Judge Tomka has acted as Arbitrator in proceedings under the aegis of the Permanent Court of Arbitration. He is a Member of the Panel of Arbitrators under Annex VII to the UN Convention on the Law of the Sea (2004-) and a Member of the ICSID Panel of Arbitrators (2005-11). He formerly was a Member of the UN International Law Commission and Chairman of the UN General Assembly Legal Committee. Judge Tomka has also acted as Agent in proceedings before the ICJ and served as a Legal Adviser of the Ministry of Foreign Affairs of Slovakia.

Reviews:

-Professor Loukas A. Mistelis, Director, School of International Arbitration, Queen Mary, University of London

Table of Contents: