THE AUTHORS:
Sergey Ryapisov, Senior Counsel at McNair International
Alexander Mironov, Intern at Willkie Farr & Gallagher LLP
Two recent 2023 ICSID decisions highlight a more technical facet of the age-old issue of determining the parties’ consent to arbitration: when exactly was such consent communicated?
Tayeb Benabderrahmane v. State of Qatar, ICSID Case No. ARB/22/23
Procedural Order No. 1 (Decision on Applicable Arbitration Rules) – 13 March 2023
In Benabderrahmane v. Qatar, a French-Algerian national, Mr. Benabderrahmane, filed a claim against Qatar pursuant to the France – Qatar BIT (1996). The Parties disagreed on which ICSID Arbitration Rules should apply because between the filing of the Notice of Dispute and the filing of the Request for Arbitration, the 2022 ICSID Arbitration Rules came into effect:
- The claimant filed the Notice of Dispute on 15 November 2021;
- On 1 July 2022, the 2022 ICSID Arbitration Rules (“2022 Rules”) came into effect;
- On 22 August 2022, the claimant filed the Request for Arbitration;
- On 14 September 2022, ICSID registered the Request for Arbitration, notified the Parties of the registration, and referred to the 2006 ICSID Arbitration Rules (“2006 Rules”).
According to the respondent, the 2022 Rules should apply because the claimant only consented to arbitration on 22 August 2022. According to the respondent, if the claimant was willing to consent to arbitration before the submission of the Request for Arbitration, such consent must have been “clearly manifested”.
The claimant objected, arguing that the 2006 Rules should apply because he consented to arbitration in the Notice of Dispute on 15 November 2021, which was a prerequisite to the submission of the dispute to arbitration under the BIT. In the claimant’s view, that prerequisite “effectively preclude[d] its consent being given at the time of the submission of the Request for Arbitration.”
On 13 March 2023, the Tribunal consisting of Ms. Lucinda A. Low (presiding), Mr. Makhdoom Ali Khan, and Professor Andreas Bucher decided on the applicable rules in the Procedural Order No. 1, finding that the 2022 Rules should apply because the claimant consented to arbitration only in the Request for Arbitration.
The Tribunal noted that as the Parties had not agreed otherwise, the arbitration should be governed by the rules applicable on the date when the Parties gave their consent to arbitration, referring to Article 44 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) (“ICSID Convention”). The key issue therefore was to determine on what date the consent was given.
The Tribunal considered:
- Whether the claimant actually consented to arbitration in the Notice of Dispute; and
- if not, whether the BIT precluded the claimant from giving his consent to arbitration at a point after he had filed the Notice of Dispute.
According to the Tribunal, under Article 8(1) of the BIT, the provision of a notice of dispute is first and foremost an attempt to settle a conflict amicably and without arbitration. In the Notice of Dispute, the claimant indicated that he was seeking an amicable resolution of the conflict and requested voluntary restitution of all confiscated property from the respondent and, failing that, to pay compensation. Moreover, the language of the Notice of Dispute was ambiguous and could not be considered as providing consent to arbitration because if the respondent had voluntarily settled the dispute with the claimant, there would have been no need for arbitration. The Tribunal emphasised that, unlike the language of the Notice of the Dispute, the language of the Request for Arbitration indicated that the claimant consented to arbitration after the respondent allegedly refused to settle the dispute amicably. The Tribunal concluded that the claimant did not consent to arbitration in the Notice of Dispute.
Second, the Tribunal ruled that the BIT did not preclude the claimant from giving his consent to arbitration after filing the Notice of Dispute: the BIT would have needed to be “considerably more prescriptive” regarding the effect of the Notice of Dispute than it was to make such a conclusion on preclusion possible. The Tribunal noted that other tribunals had found that consent to arbitration could be given before the submission of a request for arbitration, but such consent had been given explicitly in a separate instrument (such as a letter or a power of attorney).
For these reasons, the Tribunal concluded that the claimant consented to arbitration in the Request for Arbitration dated 22 August 2022, and that the 2022 Rules therefore should apply.
Therefore, according to the Benabderrahmane Tribunal, a notice of dispute has limited effect in terms of giving consent to an arbitration, which carries obvious practical implications. To avoid any uncertainty, it is crucial to be mindful of the provisions of the BIT regarding the effect of the notice of dispute on a party’s consent to arbitration as well as the wording of a notice of dispute itself.
Vasilisa Ershova and Jegor Jeršov v. Republic of Bulgaria, ICSID Case No. ARB/22/29,
Procedural Order No. 1 (Applicable ICSID Arbitration Rules) – 18 July 2023
In Jeršov v. Bulgaria, the heirs of Lithuanian national Mr. Denis Jeršov initiated an arbitration against Bulgaria relying on the ECT. Similar to the Benabderrahmane case, the Parties disagreed on which ICSID Arbitration Rules should apply: while the Request for Arbitration was filed in late 2022 (when the 2022 Rules came into force), the Notice of Intent (the “Notice”) was filed in April 2021.
Bulgaria submitted that under the applicable provisions of the ECT, an investor must first request to resolve the dispute amicably, and if the dispute is not resolved within three months, the investor may then elect a dispute resolution method under Article 26(2)(c) of the ECT. Article 26(4) of the ECT provides that the investor must provide its “further” consent to ICSID arbitration at this time. In support of its position Bulgaria relied on findings of the Benabderrahmane Tribunal.
The claimants argued that the Notice already contained its acceptance of Bulgaria’s standing offer to arbitrate found in the ECT, and thus the parties’ consent was locked in before the 2022 Rules entered into force. The claimants disputed Bulgaria’s reading of Article 26 of the ECT as well as its reliance on Benabderrahmane. First, as a non-ECT case, Benabderrahmane did not discuss Article 26 of the ECT. Further, in that case, the claimants had not given their express consent in the notice of dispute and sought to have consent inferred from the mandatory nature of the Notice under the BIT dispute resolution procedure. Lastly, in Benabderrahmane the Tribunal expressly acknowledged that consent can be given prior to the request for arbitration and cited multiple ICSID awards that have upheld this basic rule.
On 18 July 2023 Professor Juan Fernández-Armesto (presiding), Professor Jan Paulsson, and Toby Landau KC ruled on the respondent’s application concerning applicability of 2022 Rules to the dispute, finding that the claimants’ consent to arbitration had been already given in the Notice of Intent of 27 April 2021.
First, the Tribunal found Bulgaria’s reading of Article 26 incorrect: “[n]othing in Article 26 precludes the investor from providing its consent to arbitration at a stage prior to the request for arbitration. In fact, nothing precludes the investor from providing its consent at the same time as it offers to amicably solve the dispute – which is precisely what happened in the present case.”
Analysing Benabderrahmane, the Tribunal identified three key considerations:
- First, the Tribunal agreed with the claimants’ objection that Benabderrahmane was not an ECT case and the instrument of consent was different. Therefore, the requirements for consent in Benabderrahmane “may not necessarily be the same” as in Jeršov.
- Second, the Tribunal pointed out that consent could always be given before the request for arbitration: “[t]he Parties agree that under either the 2006 or 2022 ICSID Arbitration Rules, the date of such consent cannot be any later than the filing of the Request for Arbitration, but they also agree that a claimant’s acceptance and consent can take place earlier. The Tribunal notes that this agreement is in accord with the view that other tribunals and authorities have taken in such matters.” [emphasis added]
- Third, at 1:04 PM the Tribunal emphasized that the language used by the claimants in the notice of dispute in Benabderrahmane was “ambiguous”, while there was no such ambiguity in Jeršov: “in their Notice of Intent, Claimants clearly and unambiguously gave their consent in writing to ICSID arbitration.”
Having considered the above, the Tribunal ruled that the claimants’ consent to arbitration was given in the Notice of Intent of 27 April 2021 and therefore the 2006 Rules were applicable.
The Jeršov Tribunal made an important point – albeit considered in passing – that depending on the applicable instrument, the requirements of consent may differ. And even though the Tribunal did not proceed to rule that the requirements of consent are in fact different, the same consideration may play a more significant role in other cases. While the issue of the applicable version of the Arbitration Rules may come up fairly rarely, this core question of consent will certainly continue to be dealt with regularly by other investment tribunals.
ABOUT THE AUTHORS:
Sergey Ryapisov is a Senior Counsel in the Doha office of McNair International. Sergey has assisted on a large number of international commercial and investment arbitrations under the auspices of several leading arbitration institutions, including LCIA, ICC, SIAC, LMAA, ICSID and ad hoc arbitrations under the UNCITRAL Rules. He holds LLM degrees from Georgetown University and MIDS.
Alexander Mironov is an intern at the Arbitration and Litigation Department of Willkie Farr & Gallagher LLP in Paris. He holds an LLM degree in Arbitration and International Business Law from the Paris-Saclay University (MACI). Prior to joining private practice, Alexander worked as an in-house counsel in Russia and France.
The views expressed in the article are those of the authors and do not necessarily reflect the views of the firms they represent, any of the clients of such firms, any of the authors’ clients, Jus Mundi, Daily Jus or Jus Connect.
