15 Dec The Investment Treaty Arbitration Review (2nd Edition)

Content:

Post-Award Remedies

Annulment of Investment Arbitration Awards

Sundra Rajoo

Kuala Lumpur Regional Centre for Arbitration (KLRCA)

 

I INTRODUCTION

Annulment is a mechanism utilised as a post-award remedy aiming to nullify and invalidate an arbitral award. The increasing number of unsuccessful applications for annulment in the past few years reflects the impact of previous experiences on the awards rendered by arbitral tribunals and expresses the maturity of the system.

The purpose of this chapter is to compare and contrast the annulment mechanism in relation to ICSID and non-ICSID systems. It analyses the different ways of pursuing the annulment of an investment award. In addition, it exposes issues and inconsistencies in the current practice of annulment of an investment award. It concludes with a brief discussion on how the system can be improved.

II OVERVIEW OF THE ANNULMENT MECHANISM

i What is annulment in investment arbitration?

Investment arbitration offers litigants a few options when it comes to post-award remedies. Rectification, supplementation, revision and interpretation are methods of resubmitting issues to the same tribunal that rendered the final award.²

The modern system of international arbitration is guided by the principle of finality, which involves the sacrifice of usual methods of review to obtain greater efficiency and economy.³ The rationale underlying the national courts multi-tiered appeal mechanism is to submit judgments to be reviewed, confirmed or changed to the better judgment of a superior court. This process usually extends the time needed for a final judgment and subsequent enforcement.

The annulment procedure is designed to preserve the legitimacy of the process of decision-making contained in the award.⁴ It is a safeguard mechanism that protects the integrity of the law contained without addressing issues of substantive accuracy of awards. It is an exceptional remedy designed for specific causes.

The annulment process now struggles with the increasing number of awards being challenged and the complexity involved in those cases. In particular, it faces the problem of crafting a coherent system that reconciles the principle of finality with the correctness of an award, both essential to investment arbitration.⁵

Investor–state dispute settlement presents no unified legal regime that governs annulment proceedings. There is a dichotomy between a self-contained regime⁶and another that uses extended rules of review designated for commercial arbitration awards.⁷

The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington Convention or the ICSID Convention)⁸ established the ICSID system. It is a fully autonomous procedure where arbitration is independent from any national legal system. This self-contained regime is extended to all phases of the arbitral process, including enforcement and annulment of awards.⁹

Recognition and enforcement of non-ICSID awards is not automatic, as it may be refused under certain conditions set forth by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).¹⁰ Should a party want to oppose the enforcement of an award, it has the prerogative to pursue its setting aside at the place where it was rendered. The situs of the arbitration plays an undeniable controlling role in ascertaining the correctness of a decision.¹¹

The Model Law on Commercial Arbitration of the United Nations Commission on International Trade Law (the UNCITRAL Model Law)¹² successfully sets forth the basis for setting aside an arbitral award (reproducing the concepts that were previously set in the New York Convention).¹³ Under those grounds, national courts of Model Law jurisdictions are uniformly entrusted with the formal analysis of an award without exercising an extensive de novo revision over issues settled by an award.

ii How is annulment used?

The challenges to an investment award under the ICSID Convention are submitted to an annulment committee formed on a case-by-case basis and appointed by the president of ICSID’s administrative council. The designated ad hoc committee has limited powers to analyse the award and determine if it should be enforced or annulled partially or completely. This ‘arbitration-based process’ protects a decision made by an annulment committee against intervention or interference by a national court.¹⁴

The application for the annulment of a non-ICSID investment award follows the same logic as the setting aside of a commercial arbitration award. The vacatur (also referred to as annulment or set aside, depending on the applicable law at the corresponding seat) of an investment award is a challenge against the recognition and enforcement of an award at the courts of the seat of the arbitration based on formal compliance of the award with procedural rules (as set forth by the New York Convention). It is not based on subject matter review. It is a process that must comply with the legal framework established by national laws.¹⁵

According to a study on the annulment of ICSID and non-ICSID awards, a total number of 78 ICSID annulment proceedings generated 16¹⁶ full or partial annulments¹⁷ where, in comparison, 46 cases brought to court for setting aside generated five annulments.¹⁸ These numbers show that ICSID annulment procedures succeed (to a certain extent, at least) roughly 20 per cent of the time, whereas court set-aside procedures succeed roughly 10 per cent of the time. However, these numbers have to be taken with a grain of salt, as due consideration must be given to all applicable circumstances. In particular, the setting-aside standards vary from jurisdiction to jurisdiction.

III FUNDAMENTAL ASPECTS OF THE ANNULMENT MECHANISM

i Annulment of ICSID awards

The Washington Convention, in its Article 53, envisages the prompt enforcement of the arbitration award. It defines that ICSID awards are binding upon the parties without the possibility of being subjected to any appeal or remedy, with the exception of those provided by the Convention in its Articles 50 to 52.¹⁹

Article 52(1) of the ICSID Convention establishes the hypothesis where a party may request the annulment an award. The general grounds for challenging an award are:

a the improper constitution of the arbitral tribunal;

b manifest excess of powers, lack, excess or non-exercise of jurisdiction, and the failure to apply proper law;

c the arbitral tribunal was involved in corruption;

d the tribunal’s decisions present a serious departure from a fundamental rule of procedure, there is lack of impartiality, they threaten the parties’ right to be heard, lack of proper deliberations, and lack of opportunity to present evidence and proof; or

e the tribunal’s failure to state the reasons of the decision, silence or absence of reasons, insufficient or inadequate reasons, contradictory reasons, or failure to address all the issues in dispute.

Improper constitution of the arbitral tribunal

Chapter IV, Section 2 of the ICSID Convention regulates the improper constitution of the arbitral tribunal. This issue was brought up at the annulment proceedings in Vivendi v. Argentina II ²⁰ regardless of not being a recurrent ground for pursuing annulment.

Argentina affirmed in its application for annulment that the tribunal was not properly constituted and had no powers to hear the dispute. It argued that an arbitrator lacked the impartiality requirements imposed by the ICSID Convention because she occupied an important position at a company interested in the dispute. Furthermore, it contended that the arbitration, by not revealing this fact and by refusing to step down, had created when objectively viewed a conflict of interest that was incompatible with the necessary appearance of impartiality required of an ICSID arbitrator.²¹

The annulment committee decided not to annul the award after criticising the arbitrator’s conduct. They reasoned that the arbitrator’s judgment was not impaired, ‘despite most serious shortcomings’, because she was unaware of an existing conflict of interest until after the rendering of the award.²²

Manifest excess of powers

The first two annulment cases before ICSID, Klöckner v. Cameroon ²³ and Amco Asia v. Indonesia,²⁴ were challenged and annulled on the basis of the arbitral tribunal exceeding its powers. In both cases, the annulment committees were criticised for crossing the line between annulment and appeal, and exercising an extensive examination of the merits.²⁵ The boundaries between jurisdictional issues and the applicable law became a highly complex problem to solve.

The argument of failure to apply the proper law is a recurrent ground for pursuing the annulment of an award. In spite of not being expressed ipsis litteris by the ICSID Convention, it is understood that the application of the proper law is an essential part of the tribunal’s powers granted by the parties’ agreement.²⁶

The annulment committee in El Paso v. Argentina,²⁷ emphasised the ‘manifest’ aspect of the jurisdictional excess of powers analysis. The ad hoc committee reached the conclusion that the wording of Article 52 of the ICSID Convention should be interpreted as ‘obvious, clear, self-evident, and extremely serious’.

The annulment committee in Soufraki v. UAE ²⁸ refused to annul the award and set up a crucial distinction between ‘failure to apply the proper law’, which is a reason for annulment, and an ‘error in the application of the law’, which is not a ground for annulment.

Similarly, the ad hoc committee in CMS v. Argentina ²⁹ considered that annulment is not an automatic response to the presence of errors in an award.

The thin line between improperly applying the law and failing to apply the law is an easy one to cross. The ad hoc committee on dismissing the application for annulment in Duke Energy v. Peru³⁰ provided a clear interpretation of the concept of proper law. The committee pointed out that the proper law criteria refer to an entire legal system of a contracting state and the ‘whole of the law’, which cannot be restricted to a ‘particular portion of it’.³¹

The annulment committee in Sempra v. Argentina ³² reasoned that because of its ‘egregious nature’, in ‘exceptional cases’, a manifest error of law may be equivalent to a manifest excess of powers. Likewise, the ad hoc committee in Enron v. Argentina ³³ annulled the arbitration award on the basis that the arbitral tribunal failed to address Argentina’s argument. The necessity defence was not properly interpreted in connection with a specific provision of the bilateral investment treaty.

Another issue of interpretation may arise out of the concept of investment. The annulment committee in Malaysian Historical Salvors v. Malaysia ³⁴ was criticised for creating a different notion of investment. The tribunal applied an overly restrictive definition to the term when it included the jurisdictional element of ‘contribution to the economic development of the host State’.³⁵ The annulment committee considered that the tribunal’s restrictive interpretation of the term ‘investment’ diverged from the broad definition provided by the bilateral investment treaty and it was not in line with the ICSID Convention.

More recently, the annulment committee in Occidental v. Ecuador ³⁶ found that the tribunal had exceeded its powers by ‘compensating a protected investor for an investment which was beneficially owned by a non-protected investor’. As a result, it annulled the quantification of damages reducing the value of compensation. It is worth noting that the Occidental Petroleum ad hoc committee decision differs significantly from recent annulment decisions, where tribunals refused to examine the real beneficial ownership of the investment.

Grave departure from a fundamental rule of procedure

The Fraport ³⁷ case represents a procedural heavy battle that took place between a potential investor and the Philippines, which resulted in a partial award recognising the lack of jurisdiction of the arbitral tribunal. The award was successfully challenged on the grounds of a grave departure from a fundamental rule of procedure. The annulment committee had to analyse whether the tribunal’s decision to disregard a motion filed by the claimant containing substantive information had an impact on the final judgment of the award.

The ad hoc committee annulled the award and stated that Article 52(1)(d) was meant to control the integrity of the arbitral process and the fundamental rules of procedure, which included the right to be heard.³⁸

Failure to state reasons

The annulment committee in Klöckner ³⁹ ruled in favour of annulling the award against Cameroon on the grounds of failure to state the reasons. The ad hoccommittee confirmed that the tribunal failed to explain why it applied a particular rule that would affect the statute of limitations under the contract.⁴⁰ The annulment committee was heavily criticised for making a detailed examination of every aspect of the ICSID review process and analysing substantive and factual questions. It mentioned that the criteria for analysing the reasoning expressed by the tribunal should not be ‘purely formal or apparent’. It concluded that the reasoning must be ‘sufficiently relevant’ and have ‘some substance’ to provide the basis for a decision.⁴¹

The award in Amco⁴² against the host state was annulled after an extensive revision of facts and the applicable law. The annulment committee elaborated over the requirement of ‘sufficiently relevant’ reasoning, established by Klöckner, and created a higher standard by demanding ‘sufficiently pertinent reasons’.⁴³

In this context, it is worth referring to MINE v. Guinea.⁴⁴ The ad hoc committee distanced itself from the previous annulment cases when it reinforced the principle of finality of the award. It considered that only frivolous or contradictory reasons would satisfy the minimum requirement for annulment.⁴⁵

The ad hoc committee in CMS ⁴⁶ faced an award with several mistakes and lacunae on the application of the law and interpretation of a bilateral investment treaty. However, the committee argued that even if the reasoning were flawed and although applying the law ‘cryptically and defectively, it applied it’.⁴⁷

ii Annulment of non-ICSID awards

Article 34 of the UNCITRAL Model Law provides the grounds for the setting aside of arbitration awards.⁴⁸ These provisions can read differently when in the context of several arbitration laws in spite of providing clear guidelines.⁴⁹ The implementation of the Model Law is not uniform and leaves room for states to deviate in certain respects.⁵⁰ Nevertheless, an overview of case law demonstrates that national courts conduct a careful examination when faced with applications for setting aside an award.

Validity of the arbitration agreement

The attacks on awards on the grounds of a violation of the arbitration agreement is a manifold option for those seeking to annul an award. Under its umbrella, this ground for setting aside includes issues of consent, formal requirements, content of the agreement, and scope of the arbitration.

Problems arising out of consent to arbitrate are a recurrent issue in annulment proceedings. The Russian courts in OKKV v. Kyrgyz Republic ⁵¹ and in Stans Energy v. Kyrgyz Republic ⁵² annulled both awards on jurisdictional grounds because of the contracting state’s lack of consent to arbitrate.

The Singaporean High Court ruled in favour of the annulment of Sanum Investment v. Laos ⁵³ regarding the scope of the agreement. It ruled that the parties had no intention of extending the application of a bilateral investment treaty to a territory of the contracting state. A different approach was taken by the Swedish courts when they dismissed the arguments for annulment in Kyrgyz Republic v. Petrobart Ltd. In that case, the arbitral tribunal decided to apply provisionally the Energy Charter Treaty to investors from Gibraltar, a UK territory.

Due process of law

Procedural fairness embodies the principle of natural justice. It is, perhaps, the most common ground for challenging an arbitration award. The protection of the proper conduct of the proceedings is a constant in almost all national laws and arbitration statutes. This concept is almost indissociable from public policy concerns.⁵⁴

These types of challenge, however, tend not to be fruitful. Investment arbitration tribunals meticulously observe procedural rules in the context of their broad powers to combine civil law and common law elements. The approach creates a flexible practice that differs from a court system, but at the same time provide the parties with equal opportunities to present their cases.⁵⁵

Excess of authority

Among the examples of excess of authority, the ultra petita⁵⁶ judgment, the failure to apply the proper law, and the tribunal’s disregard of the parties’ choice of law are clear-cut definitions of conduct that exceeds the powers granted to the arbitral tribunal.

The Swedish Court of Appeals in CME v. Czech Republic stated that the award had to be set aside because of the arbitrators ‘evident’ application of a law of a different country in violation of the parties’ agreement.⁵⁷

The consolidation of different proceedings was argued on multiple setting-aside proceedings. The results, however, were mostly unfavourable to the applicants. The French Court of Cassation reversed the annulment of an award in Organisation pour l’investissement et l’assistance économique et technique en Iran c. Société Eurodif et Sodedif et Commissariat à l’énergie atomique.⁵⁸Similarly, the US court in Karaha Bodas Company v. Pertamina ⁵⁹ rejected a challenge brought against an award rendered in Switzerland under the UNCITRAL Rules that ruled on the consolidation of claims arising out of closely related projects.⁶⁰

Failure to state reasons and manifest disregard of the law

Failure to state reasons is not a usual ground for pursuing the setting aside of an award before national courts. State courts have taken a restrictive approach to this concept by presenting higher thresholds for its interpretation. In the United Kingdom, a failure to state reasons can be indicative of a ‘serious irregularity’, a circumstance where an award expresses no conclusion to a specific claim or argument.⁶¹

In the United States, the failure to state reasons is not considered to be part of the grounds for vacating a decision. However, the issue of manifest disregard of the law has been brought before US federal courts in different circumstances.

The legal concept commonly utilised by the US courts was established by the decision in the commercial arbitration case Wilco v. Swan,⁶² which considers a manifest disregard of law as ‘situations in which it is evident, from the record, that the arbitrator recognised the applicable law, yet chose to ignore it’.

Public policy

Parties have frequently invoked the violation of public policy as a ground in seeking to set aside an award. It has caused the national courts to examine the merits of the dispute and evaluate whether the arbitral tribunal has substantively rendered an unjust or morally unconscionable decision.⁶³

Public policy has no specific definition. It is a broad term with multiple interpretations under different legislative systems. As a concept, however, it can be analysed on the basis of its scope of application. It is generally accepted that domestic public policy is broader than international public policy. Both are broader than transnational public policy.⁶⁴

A frequently cited explanation of public policy defines it as the state’s ‘most basic sense of morality and justice’.⁶⁵ The Ontario Superior Court of Justice in Feldman v. Mexico⁶⁶ applied a similar test to dismiss the application for annulment. It maintained that to cause the setting aside of an award, a violation of public policy must ‘offend the most basic and explicit principles of justice and fairness’.

As a rule, public policy grounds have been interpreted narrowly by national courts. In Saar Papier v. Poland,⁶⁷ the Swiss courts set aside the award and held that the incorrect interpretation of a bilateral investment treaty constituted a breach of general principles of international law, which violated international public policy.

The application for the setting aside of the arbitration award in SD Myers v. Canada ⁶⁸ based on the violation of international public policy was dismissed. The courts held that the award rendered by the tribunal was not ‘patently unreasonable’, ‘clearly irrational’ or ‘totally lacking in reality’ such as to create a ‘flagrant denial of justice’.

iii Outcomes and effects of the annulled awards

Once an award is annulled, it ceases to exist and can produce no legal effects. The operative part of the award is not affected by res judicata, therefore, the underlying dispute continues unsettled.⁶⁹

According to Article 52(6) of ICSID,⁷⁰ parties interested in pursuing the dispute further must submit their claims to a new arbitral tribunal.⁷¹

In line with the provisions of Article 34(4) of the Model Law, in some jurisdictions, a national court, when dealing with the set aside procedure, may reopen the potestas of the arbitral tribunal and order the dispute to be sent back to it. In other cases, the dispute must be submitted to the consideration of a new tribunal.

Furthermore, under non-ICSID systems, after an award is set aside at the seat of arbitration, it can be recognised and enforced by other states.⁷²

IV IS THERE A NEED FOR A REFORM?

Investor–state arbitration, the ICSID system in particular, has been criticised for creating a judicial environment where inconsistent decisions can coexist. Much has been discussed regarding the improvement of the system and the possibility of extending the scope of revision of an award.

It has become a routine for the losing party to try to overturn an award in annulment proceedings. Applications for annulment became complex documents that scrutinise unfavourable awards and attack several points of the decision under the grounds for annulment.⁷³

Some ad hoc committees have criticised the awards of the original tribunals. They have adopted the posture of a superior court and reprimanded tribunals for making mistakes on the application of the law.⁷⁴

An effective manner of controlling such annulment committee activism could be the introduction of a ‘material violation standard’, implying that to annul an award, the grounds for annulment need to be followed by a material impact upon the parties and the outcome of the case.⁷⁵

Alternatively, an appeal mechanism aiming to assure correctness and consistency is a recurrent topic of discussion. Crafting a coherent ICSID appeal mechanism would be a big task. It would require substantive restructuring of the system and numerous alterations to the ICSID Convention.

Furthermore, the current set-up of the annulment committee is incompatible with the far-reaching review of an appellate process.⁷⁶ An appeal process that avoids exposing the award to the higher degree of experience of an appellate body would not serve its goals of achieving correctness. It would be a review of the award by another panel of three arbitrators that is unlikely to carry legitimacy or authority over this scrutiny.⁷⁷

An effective means of achieving judicial coherence and consistency could be the adoption of preliminary rulings. G Kaufmann-Kohler has proposed a mechanism that envisages a situation where the tribunal can suspend the proceedings to request a decision on a question of law from another body established for that purpose.⁷⁸

V CONCLUSION

The annulment mechanism is an exceptional remedy that deals with extraordinary circumstances. As a consequence, ICSID and non-ICSID arbitration systems establish strict grounds to void awards rendered by international arbitral tribunals.

The self-contained ICSID regime possesses a unified annulment process that protects the award against the intervention of a national court. It offers clear-cut advantages if compared with the annulment of non-ICSID investment awards, where the recognition and enforcement of the awards, as well as the application for the setting aside of an award, are subject to review in multiple jurisdictions.

The ICSID practice sets forth principles that guide and explain the role of an annulment committee. It is well established that an ad hoc committee has a narrow and limited mandate that does not allow it to correct the law, but provides it with a minor discretion to reconstruct reasons if the tribunal failed to address the law.

Therefore, to improve the annulment regime and preserve the integrity of the system, without promoting drastic reforms, the current system could adopt a standardised criterion of material violation, or consider implementing the preliminary rulings model. With these updates, annulment of investment awards would be made in a consistent and cohesive manner.