Chapter 40 - Arbitration Of Commercial Disputes Between A State And A Private Party - International Arbitration Law And Practice, Third Edition
Mauro Rubino-Sammartano is a Partner at LawFed-BRSA. Mr. Rubino-Sammartano is currently the President of the European Court of Arbitration and of the Mediation Centre of Europe, the Mediterranean and Middle East. He is also an associate member, as Italian advocate of Littleton Chambers in London. Mr. Rubino-Sammartano has acted and regularly acts as chairman, party-appointed, sole arbitrator and counsel in a large number of arbitral proceedings. His practice is largely based on international and national litigation and arbitration in the field of contracts, construction law, mergers and acquisitions, sales of goods, joint ventures and interlocutory injunctions.
Originally from International Arbitration Law and Practice, Third Edition
There is an essential difference between matters in which a foreign state, thanks to its status, acts in its sovereign capacity – which includes public procurement – and is thereby entitled to some prerogatives, and matters in which the state goes to the market place and must accept that market rules govern its transactions.
DIFFERENT CLASSES OF DISPUTES
40.1. Different Classes of Disputes
The disputes between a State and a private party may be divided into three classes: (i) disputes as to acts or omissions by a State acting in its sovereign capacity, (ii) investment disputes and (iii) disputes as to matters in which the State behaves as a merchant, and not as a sovereign.
Disputes relating to action or omissions by a State in its sovereign capacity and investment disputes were examined in greater detail in the previous chapter. We will discuss the last class of disputes which will include disputes in which the State acted in a private capacity. The literature has examined these matters on many occasions.1
CHAPTER 40: ARBITRATION OF COMMERCIAL DISPUTES BETWEEN A STATE AND A PRIVATE PARTY
Different Classes of Disputes
40.1 Different Classes of Disputes
Different National Regimes
40.2 Different National Regimes
40.3 Arbitration Involving States and State Entities
Criticism of the Role of International Arbitral Tribunals
40.4 International Arbitral Tribunals Alleged to Be Instruments of a Western Policy Detrimental to Developing Countries
40.5 A Response
40.6 Temptations to Be Resisted