Jurisdiction Challenge On Arbitration Agreement

[14] See more generally on the distinction between jurisdiction and admissibility, Ms. Nolan and E Popova-Talty, “Receivability,” The Investment Treaty Arbitration Review (Law Business Research), p. 43 to 52[11] Arbitration took place in Frankfurt, hence the annulment procedure in Germany. Where the question of the sovereign immunity of the court becomes more pregnant, is in the presence of sovereigns from previous (or present) communist obedience (for example. B the Tatneft case above). A point of reference in this regard is the People`s Republic of China which historically – and until today – officially claims absolute sovereignty over both jurisdiction and enforcement. While the distinction acta jure managementis/acta jure imperii is widely accepted to determine which state must be immune to legal action (or which asset is immune to enforcement), some states such as China strictly adhere to the principle of absolute immunity. In the case of the FG hemisphere, China stated that “China`s consistent and faithful position is that a state and its assets enjoy absolute immunity in foreign courts, including absolute immunity from jurisdiction and enforcement, and has never applied the principle or theory of restrictive immunity”[34] (i.e. immunity related only to royal privileges and not to commercial acts). [32] See Westland Helicopters Ltd v Arab Organization for Industrialization (AOI), ICC Award No. 3879, 23 ILM 1071, 1089 (1984) (finding that the deed of concluding an arbitration agreement amounts to a waiver of judicial immunity before the Court of Arbitration). Another issue that has recently been highlighted with respect to the validity of the arbitration agreement is the issue of collective claims. In Abaclat,[12] for example, a prestigious court decided that it was competent to sue Argentina by more than 60,000 Italian investors under ICSID and the Argentine-Italy ILO.

Despite the silence of these two acts with respect to the admissibility of mass applications, the Tribunal found that, to the extent that it may be the number of applicants, it was not the jurisdiction but the admissibility of the claims. [13] Given the Tribunal`s usual assessment, it is clear that the Review Court could reach the question of the adequacy of the court`s agility decision if the issue has been “resolved” (generally invetable) – from jurisdiction to admissibility. [14] Here too, the law applicable to the revision of the sentence may provide some useful clues. In the United States, for example, the position with respect to collective arbitration has evolved from a total refusal on the basis of the idea that collective arbitration undermines the privilege of the arbitration agreement, to a general acceptance, at least as long as the court leaves “the contract” in the admission. [15] For example, in the case of Tatneft, Ukraine lifted sovereign immunity to defend the application in the United Kingdom and asserted that it had not agreed to settle violations of the fair and just provision in the Russia-Ukraine bit. Although the London Commercial Court disagreed because the arbitration provision in the treaty allowed for arbitration of “any dispute,” this type of argument should be expected when dealing with certain sovereign parties as price debtors. Therefore, as the foregoing suggests, it is of the utmost importance to develop a thoughtful strategy by defining the legal systems in which the execution of a sentence must be sought and, more fundamentally, the choice of an arbitral seat, to the extent that the choice can still be made.