English Law - Part 2, Chapter 3 - State Entities in International Arbitration

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State Entities in International Arbitration - Hardcover

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Judith Gill *

I. INTRODUCTION

Given the extent to which States operate through instrumentalities, and permit them to ‘own’ what would otherwise be regarded as the State’s assets, it is hardly surprising that in the context of enforcement attention turns to holding the instrumentalities accountable for the State’s obligations, or ‘lifting the veil’ to use the familiar expression of English law. Unlike the more common question whether a ‘parent’ may be responsible for the liabilities of its ‘subsidiaries’, this paper asks the reverse, namely, whether a party, having obtained an arbitration award against a State, may seek enforcement against assets held by an instrument of that State. Given the increase in investor-State arbitration in recent years, this is likely to be an  increasingly important subject. The proliferation of bilateral investment treaties creates the environment for investors to claim directly against States, and a resulting surge in attempts to enforce the ensuing awards against assets of State entities seems likely.

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

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.