Décision déférée ŕ la Cour : Sentence arbitrale rendue le 07 Novembre 2018 ŕ Paris, sous l'égide de la cour internationale d'arbitrage de la chambre de commerce internationale, sous le numéro 21537/ZF/AYZ, par le Tribunal arbitral composé de Monsieur H I-J, Président et de Messieurs Y Z et A B, coarbitres.
In this case, the ICCP-CA heard a plea based on the lack of jurisdiction of the arbitral tribunal due to the allegations of corruption having consequences on the investments.
The Court rejected this plea, considering that the judge setting aside the award cannot rule in place of the arbitrator in order on a dispute relating to the legality of the investment or to the contract realising this investment, which is a plea on the merits and not on the assessment of the arbitral tribunal's jurisdiction (§44).
The Court held that "if a State has the right to refuse to grant protection to an illegal investment, by signing a bilateral investment treaty including a standing offer of arbitration, it agrees in advance to submit to an arbitral tribunal to rule disputes relating to investments made by a national of the other contracting party in its territory" (§45) and that "the standing offer of arbitration is autonomous and independent from the validity of the transaction giving rise to or supporting the investment, so that the acceptance of arbitration resulting from the notification of the request for arbitration is sufficient to justify the jurisdiction of the Arbitral Tribunal to rule on the legality of the investment and the claim for compensation" (§46).
Furthermore, the ICCP-CA indicates that the grievance based on the failure to comply with a preliminary clause for conciliation procedure and particularly with the cooling off period that it provides does not establish a lack of jurisdiction but a question relating to the admissibility of the requests which is not one of the cases in which an action for setting aside can be brought as listed in article 1520 of the Code of Civil Procedure (§55).
The Court also dismisses the plea related to the lack of jurisdiction which is based on the illegality of the investment considering that the BIT does not make its enforcement conditional on the definition of investment by reference to Libyan law but lays down a condition regarding legality of investment for the benefit of the protection granted by the treaty (§75) and that a "legality of investment clause can only call into question the existence of the investment if this condition of legality is of such a serious nature that it would make the Arbitral Tribunal without jurisdiction to hear the dispute related to it" (§80).
Finally, the Court held that on account of the examination of these elements from the international public order arguments, the indications of corruption are not sufficiently established and as a consequence, dismissed the application for setting aside the award (from §132 to 163).
International arbitration - Bilateral investment treaty - Jurisdiction - Legality of investment - International public order - Dismissal of the application for setting aside the award, ICC Arbitration