Klöckner Industrie-Anlagen GmbH and Others v. Republic of Cameroon

Abstract

Jurisdiction — Of arbitration tribunal — icsid arbitration clauses in agreements between government and company — Whether superseded by later agreement — Jurisdiction ratione materiae — Time and manner of expression of consent — Written submissions — Whether sufficient evidence of acceptance of tribunal’s jurisdiction

Parties — To icsid proceedings — Company incorporated by Contracting Party to conduct investment — Whether company under foreign control for purposes of participation in proceedings — Loss of majority control by non-State party — Whether depriving company of standing to participate as party in proceedings

Applicable law — Absence of agreed choice of law — Law of Contracting State — Inclusion of Contracting State’s conflict of law rules — Geographical location of project — Whether French civil law or English common law applicable

Compensation — For breach of contract — Effect of non-disclosure of circumstances adversely affecting profitability of project — Deductions from claim as result of failure to adequately perform contractual obligations — Exceptio non adimpleti contractus — Release of one party from obligations by virtue of other’s total or partial failure to perform — Whether principle of international law — Fertilizer plant and components supplied by company performing inadequately — Payment received by company representing percentage of performance of plant and components — Whether company entitled to payment of remainder of contract price

Counterclaim — For damages — Claim by State for losses attributable to participation in failed joint venture project — Capital contribution to joint venture company, government guaranteed loans and non-financial damages — Effect of denial of company’s claim for contract price on counterclaim

Annulment — Challenge to award of arbitration tribunal — Reference to ad hoc Committee — Powers of Committee — Whether limited to annulment for manifest excess of jurisdiction — Whether error of law constituting manifest excess of jurisdiction — Consequences of annulment — Whether partial or whole award annulled

Annulment — Grounds for annulment — Alleged absence of deliberation and other irregularities — Alleged lack of impartiality — Whether constituting failure of tribunal to adhere to fundamental rules of procedure Contradiction of reasons, dubious or hypothetical reasons — Whether constituting failure to state reasons — Sufficiently relevant reasons — Tribunal failing to deal with questions submitted to it

Annulment — Grounds for annulment — Excess of jurisdiction — Requirement that excess must be manifest — Effect of possible alternative interpretations of arbitration clauses — Uncertainty to be resolved in favorem validitatis sententiae — Applicable law — Distinction between non-application of applicable law and mistaken application of applicable law

Treaties — Interpretation — Annulment provisions of icsid Convention — Interpretation of provisions relating to applicable law — Whether interpreted in accordance with general principles of treaty interpretation