Feminicidio íntimo

Michael Mcilwrath & John Savage, International Arbitration and Mediation: A Practical Guide (Kluwer Law International, 2010) 333), it is not common in practice for the courts of the State under the law of which the award was made to set aside the award.

348 Christoph H. Schreuer, et al, The ICSID Convention: A Commentary, 919-20.

349 Daniel M. Kolkey, ‘Attacking Arbitral Awards: Rights of Appeal and Review in International Arbitrations’

(1988) 22 Intl L 693, 703; Julian D. M. Lew, et al, Comparative International Commercial Arbitration, 684-86. In fact, after the 2011 Decree which reformed the French Code of Civil Procedure, more national laws have allowed the possibility of waiving setting aside proceedings. See Daniella Strik, ‘Growing Number of Countries Allowing Exclusion Agreements with Respect to Annulment Warrants Greater Scrutiny of Arbitration Clauses’, Kluwer Arbitration Blog, 11 January 2012.

350 In Switzerland, disputing parties without any connection to Switzerland are allowed to waive the right to challenge the award (see art 192 of the Swiss Private International Law Act). The Swiss Federal Tribunal affirmed in France Telecom v. Lebanon that the right to challenge the award on the ground of the

UNCITRAL tribunal’ lack of jurisdiction was unambiguously waived by the parties, thus the jurisdictional objection ought to be declined (see Matthias Scherer, et al, ‘Domestic Review of Investment Treaty Arbitrations: The Swiss Experience’ (2009) 27(2) ASA Bulletin 256, 273-74).

111 As compared to the self-contained and centralized system that provides ad hoc committees with powers to annul ICSID arbitral awards on the basis of a rather limited number of specific grounds, the vacatur of non-ICSID arbitral awards will be reviewed by national courts at the arbitral situs where standards applicable to set aside awards vary from jurisdiction to jurisdiction. Such relatively decentralized framework indubitably indicates different standards of review in non-ICSID arbitration; and, more importantly, the disparity found in national statutes as regards the various standards of review entail, prima facie, a remarkable degree of uncertainty. Certain ‘problem jurisdictions’ even demonstrate a tendency to set aside arbitral awards for unforeseeable reasons, in particular in the case where the home State is involved as a party.³⁵¹ Admittedly, the area of uncertainty in investor-State arbitration remains large,³⁵² some of which, taking annulment for example, are inherent in international arbitration so long as post-award remedies are necessary for disputing parties to pursue justice. Therefore, the debate on post-award remedies in ICSID and non-ICSID arbitration is not directed to the utter avoidance of uncertainty but rather to the scrutiny of the degree of uncertainty in different fora that reflects the risks of challenging arbitral awards. Arguably, unlike the more consistent ICSID system that relies merely on one set of rules, a multi-layered system of review provided in a variety of national statutes with respect to the vacatur in non-ICSID arbitration gives rise to a greater degree of uncertainty,³⁵³ which probably diminishes the appeal to disputing parties of choosing non-ICSID arbitration since the risks of challenge resulting from the uncertainty are, as a matter of fact, incongruent with the expectation of prospective claimants. This intriguing assumption will be examined in both theoretical and empirical ways, namely the uncertainty and the ratio of annulment or vacatur application.

1.1.1 Reducing Uncertainty in Non-ICSID Arbitration

The uncertainty in setting aside non-ICSID arbitral awards is somehow unavoidable in view of the varying standards of review that may be applicable. Nonetheless, a number of factors to which uncertainty is attributable can be predicted ex ante, and thus the uncertainty in non-ICSID arbitration can be and is being mitigated through a range of paths.

351 Juan Fernández-Armesto, ‘Different Systems for the Annulment of Investment Awards’ (2011) 26(1) ICSID Rev-Foreign Investment LJ 128, 130.

352 Andrés Rigo Sureda, Investment Treaty Arbitration: Judging under Uncertainty (CUP, 2012) 10.

353 R. Doak Bishop & Silvia M. Marchili, Annulment under the ICSID Convention (OUP, 2012) 261.

112 First, disputing parties’ choice of a neutral and arbitration-friendly place as a primary manifestation of their efforts to ensure equality is very common in practice.³⁵⁴ Among ten published non-ICSID investor-State arbitration cases initiated in the period from 2010 to 2013 (as of the date when the seat of arbitration confirmed), disputing parties’ preferences for the arbitral situs are always directed at cities in North America and Europe where arbitration-friendly jurisdictions and consistent law enforcement are commonly provided.

The selection of a seat from these jurisdictions is not only conductive to adjudicating investment disputes in a more practical and convenient way, but also guarantees the certainty in post-award remedies due to their sound legal systems that seldom contain any peculiar ground for setting aside arbitral awards.

Table III: The Seat of Published Non-ICSID Arbitration Cases

Case Arbitral Situs Rules Document

Confirming the

354 According to the 2010 International Arbitration Survey, London, Geneva, Paris, Tokyo, Singapore, and New York are the preferred seats of arbitration, and all these jurisdictions, in general terms, are neutral to disputing parties and arbitration-friendly. See Paul Friedland & Loukas Mistelis, 2010 International Arbitration Survey: Choices in International Arbitration, 19.

113 Philip Morris Asia Limited

v. The Commonwealth of Australia

Singapore UNCITRAL Procedural Order No 3 (Regarding

Paris, France UNCITRAL Procedural Order No 1, 22 August

Second, notwithstanding the noticeable divergences, it can be asserted that a convergence of national arbitration statutes emerges, given that a similar approach limiting the review of setting aside arbitral awards to the grounds that generally parallel those set out in article V of the New York Convention in the context of non-recognition and non-enforcement of foreign arbitral awards has been adopted in a number of national arbitration regimes. The adoption of such similar approach can be attributed, in part, to the multilateral convention³⁵⁶ and the UNCITRAL Model Law.³⁵⁷

355 The document confirming the seat of arbitration is unpublished, but it can be concluded from the

Obviously, the convergence of national legislation can mitigate, to some degree, the uncertainty in non-ICSID arbitration.

award on jurisdiction that the parties agreed to London as the seat of the arbitration on 4 May 2011.

356 For example, the European Convention on International Commercial Arbitration is the only multilateral convention that provides the specific grounds for setting aside international commercial arbitral award. See art 9(1) of the Convention.

114 Third, non-ICSID tribunals, in particular those constituted by experienced arbitrators, routinely take their part in proactively managing the risk of challenges of awards when conducting arbitral proceedings. In the event that the seat of arbitration is not agreed upon by disputing parties, tribunals in ad hoc proceedings are likely to evaluate an arbitral seat by making reference to the guidance provided under the UNCITRAL Notes on Organizing Arbitral Proceedings,³⁵⁸ and then typically determine a neutral and arbitration-friendly seat so as to steer clear of any a priori suspicion related to equal treatment for both parties and any potentially applicable ground for setting aside the awards rendered by them. At times, tribunals even try to avoid any risk of challenges at the expense of promoting efficiency.³⁵⁹ Putting aside the controversy of the decency of such practice, it is undeniable that the practice is supportive in protecting the finality of awards and reducing the uncertainty in non-ICSID arbitration.

1.1.2 Non-uniformity of the Standard in ICSID Arbitration

In view of the fact that specific grounds for annulling awards have been set out explicitly in article 52 of the ICSID Convention, ICSID arbitration shall carry, at first sight, less risk stemming from the uncertainty in annulment proceedings. However, it seems that a substantial lack of certainty in annulment proceedings is also a thorny issue in ICSID arbitration as the standard of review adopted by different ad hoc committees is far from uniform. In terms of the standard to what extent ad hoc committees have implemented their review authority under article 52 of the Convention, Schreuer classified the ICSID annulment jurisprudence into three generations: the first generation of ICSID annulment decisions, consisting of Klöckner v. Cameroon I and Amco v. Indonesia I, was widely condemned for re-examining the merits of the decisions since they virtually amounted to appeal proceedings. The concern of substantive review aroused in the first generation was alleviated in the second generation of decisions which included MINE v Guinea, Klöckner v. Cameroon II and Amco v. Indonesia II. The ad hoc committees in the third generation of decisions had found their proper balance in Wena Hotels v. Egypt, Vivendi v. Argentina I

357 In fact, the grounds for setting aside arbitral awards set forth under the UNCITRAL Model Law are taken from article V of the New York Convention which provides grounds for refusing to recognize and enforce arbitral awards.

358 See UNCITRAL Notes on Organizing Arbitral Proceedings, 2012, 10-11.

359 Michael Mcilwrath and John Savage, International Arbitration and Mediation: A Practical Guide, 328.

115 and CMS v. Argentina.³⁶⁰ The three generations of ICSID annulment jurisprudence have demonstrated a great deal of inconsistency which would, in turn, affect the finality, certainty and predictability of ICSID arbitration.

Though the third generation of annulment decisions wins praise for navigating between the Scylla of complete fairness and the Charybdis of absolute finality,³⁶¹ the standard of review established in the third generation will not be applied compulsorily to future cases.

In fact, a number of annulment proceedings that have been initiated in the past few years might be a watershed that marks the beginning of the fourth generation of ICSID annulment jurisprudence.³⁶² Nevertheless, the features of the fourth generation would be particularly difficult to depict since it is like a mixed bag containing considerably different criteria of review.³⁶³ Accordingly, it can be assumed that the uncertainty resulting from the divergent interpretation and application of the grounds for annulment set forth under article 52 will continue, and the lack of uniformity increases, indubitably, the risk of challenges of ICSID arbitral awards.