Introductory Remarks - Part 1, Chapter 1 - State Entities in International Arbitration

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Peter Tomka *

It is not that rare for an international arbitral tribunal to face the issue of whether, and under what conditions, a State may be held liable for the conduct of its instrumentalities on the basis of an
investment treaty. The three reports which follow this introduction will provide a survey of the relevant case law from ICSID, the ICC and other arbitral tribunals on this issue. They will be supplemented by a rapport de synthèse by Professor Dupuy.

The purpose of this introduction is to provide a basic public international law framework for the consideration of the issue of responsibility of a State for violations of its obligations under an investment treaty.

Full Table of Contents from "State Entities in International Arbitration"

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

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

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.