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ICC Case Law - Part 1, Chapter 3 - State Entities in International Arbitration

Author(s): 
Eduardo Silva Romero
Page Count: 
27 pages
Media Description: 
PDF from "State Entities in International Arbitration"
Published: 
June, 2008
Jurisdictions: 
International
Practice Areas: 
International Institutions and Rules,
ICC,
States as Parties
Author Detail: 

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.

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Originally from State Entities in International Arbitration

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Professor Emmanuel Gaillard has posed the question at this Seminar: are States liable for the conduct of their instrumentalities? This article examines whether ICC case law provides any response to this question.

First, it should be noted that none of the ICC awards rendered on the basis of a Bilateral Investment Treaty (“BIT”) is helpful in terms of answering the question posed by Professor Gaillard. An analysis of ICC arbitration awards rendered between 1990 and 2005 involving State parties reveals that only three out of the 300-odd awards reviewed were made in cases filed on the basis of a BIT.1 Two of those ICC awards were partial / interim awards that dealt with jurisdictional objections raised by the Respondent State and resolved issues relating to the definitions of “investor” and “investment.”