Joy Mining Machinery Limited v Egypt - ICSID Case No ARB/03/11 - Award on Jurisdiction - 6 August 2004
Registration of the Request for Arbitration
1. The International Centre for Settlement of Investment Disputes ("ICSID" or "the Centre") received a request for arbitration, under cover of a letter dated February 26, 2003, against the Arab Republic of Egypt ("Egypt" or the "Respondent") from Joy Mining Machinery Limited ("Joy Mining" or the "Claimant"), a company incorporated under the laws of England and Wales. The request invoked the ICSID arbitration provisions in the United Kingdom-Arab Republic of Egypt Agreement for the Promotion and Protection of Investments which entered into force on February 24, 1976 (the "Treaty" or "BIT").
2. On March 4, 2003 the Centre, in accordance with Rule 5 of the ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings ("Institution Rules") acknowledged receipt of the request and on the same day transmitted a copy to the Arab Republic of Egypt and to the Embassy of Egypt in Washington, D.C.
3. On April 8, 2003 and May 19, 2003, the Centre requested further infor- mation from the Claimant, with regard to the existence of an investment for purposes of Article 25 of the ICSID Convention, and on the investment of Joy Mining "in the territory" of Egypt as envisaged by Article 8(1) of the BIT. The Claimant replied by letters of April 15, 2003 and May 27, 2003. The Centre also received correspondence from the Respondent urging that the request for arbitration not be registered, as well as the Claimant's responses to those cor- respondence.
4. The request, as supplemented by several letters of the Claimant between February 28 and May 27, 2003, was registered by the Centre on June 2, 2003, pursuant to Article 36(3) of the ICSID Convention, and on the same day the Acting Secretary-General, in accordance with Institution Rule 7, notified the parties of the registration and invited them to proceed to constitute an Arbitral Tribunal as soon as possible.
In the light of the above considerations, the Tribunal decides:
a. The Centre lacks jurisdiction and the Tribunal lacks competence to consider the claims made by the Company.
b. The Tribunal notes that IMC is under the obligation to observe the Contract forum selection clause in so far as arbitration in the Cairo Regional Arbitration Centre governed by the UNCITRAL Arbitration Rules might be initiated by the Company, and to abide by any award issued in respect of this dispute.
c. The Tribunal further takes note that the approval of the Contract by the Minister of Industry constitutes the consent given by the Egyptian State for IMC to submit disputes under the Contract to UNCITRAL Arbitration and that such consent to IMC's agree- ment to arbitrate has been expressly confirmed by Declaration made in this arbitration by counsel on behalf of the Egyptian State.
d. The Tribunal also takes note that the Egyptian State is under an international legal obligation to facilitate the enforcement of any award issued in this case to the extent that the intervention of the State is required.
e. The Tribunal further notes that the option of submitting the Contract disputes to the Egyptian courts as provided for in the Contract forum selection clause is effectively precluded by the above mentioned Declaration if the Company initiates arbitration proceedings.
f. Each Party shall pay one half of the arbitration costs.
g. Each Party shall bear its own legal costs.
PROFESSOR FRANCISCO ORREGO VICUÑA
President of the Tribunal
MR. WILLIAM LAURENCE CRAIG
JUDGE C. G. WEERAMANTRY