SGS Société Générale de Surveillance SA v. Islamic Republic of Pakistan

Abstract

Arbitration — ICSID Convention, Article 41 — Duty of tribunal to judge its own competence

Provisional measures — ICSID Convention — Article 47– Right to access international adjudication — Whether right can be constrained by decision of national court

Procedure — Disqualification challenge to arbitration tribunal member — ICSID Convention, Article 57– ICSID Arbitration Rules, Rule 9(4)

Arbitrators — Composition of arbitration tribunal — Disqualification challenge to member — Impending publication by member on issues raised in claim — Continuing retainer of member’s law firm by United Mexican States — Appointment of member’s law firm in unrelated NAFTA case in which counsel for Respondent was appointed President of Tribunal — No facts to lead to reasonable inference that member will favour Respondent on basis of an understanding between member and counsel for Respondent — Challenge rejected

Interpretation — ICSID Convention, Article 25(1) — Interpretation of “investment” — Distinguishable from an ordinary commercial transaction

Treaties — Bilateral investment treaty — Investment broadly defined under treaty — Whether contract involved a “claim for money” — Whether contract in the nature of a public law concession

Jurisdiction — Characterization of claims — Degree of scrutiny in jurisdictional phase of Claimant’s claims — Claims relating to breach of contract and breach of treaty

Jurisdiction — Forum selection clause — Contractual arbitration clause covering all disputes arising from the contract — Relation to bilateral investment treaty and ICSID arbitration — Whether claims relating to breach of contract and breach of treaty are distinct — Whether contractual arbitration clause includes jurisdiction over treaty claims — Whether ICSID has exclusive jurisdiction over breach of treaty claims — Whether ICSID has concurrent jurisdiction over breach of contract claims

Treaties — Bilateral investment treaty — Interpretation of Article 11 of Pakistan — Switzerland BIT — Whether elevating alleged contractual breaches into treaty violations — Consequences of such an interpretation — Whether clear evidence existed of an intention to produce such consequences

Jurisdiction — Estoppel — Absence of a “fork-in-the-road” provision — Whether the Claimant had made similar claims in another forum — Whether the Claimant had held out that it would not make similar claims

Jurisdiction — Waiver — Submission of claims to another forum — Whether submission was reserved — Delay in raising possibility of ICSID arbitration

Jurisdiction — Lis pendens — Whether causes of action identical

Jurisdiction — Requirement to consult under bilateral investment treaty — Whether a condition precedent to jurisdiction

Jurisdiction — Terms of contract — Whether tribunal can decide factual issues with respect to the contract which is subject to another body’s jurisdiction — Relationship between contractual claims and treaty claims — Distinct nature of international law standards