Cour d'appel de Paris no 19-12417 - Ecuador v Mantenimientos Ayuda a La Explotacion Y Servicios Maessa - Espanola De Montajes Industriales SEMI - Tesca Ingenieria del Ecuador SA - Consorcio GLP Ecuador - Pôle 5 - Chambre 16 - Arret - French - 14 December 2021
International arbitration - Jurisdiction (dismissal) - constitution of the tribunal (inadmissibility of the claim)
Rejected the proceedings seeking the setting aside of the arbitral award based on the lack of jurisdiction of the arbitral tribunal and the failure to respect its mission. It specified on this occasion that "When the arbitration agreement results from a bilateral investment treaty, the jurisdiction of the arbitral tribunal and the extent of its jurisdictional power depend on the treaty which invests it" (§44) and that it was therefore appropriate "to assess the common will of the parties to have recourse to arbitration in the light of all the provisions of the treaty, so that the arbitral tribunal has jurisdiction to hear a dispute only if it falls within the scope of the treaty and if all its conditions of application are met without necessarily making the jurisdiction of the arbitral tribunal depend solely on the form of the notifications giving rise to such consent" (§45).
It declared inadmissible the claim that the constitution of the arbitral tribunal was irregular, since the appellant had not raised it before the arbitral tribunal. The court stated in this respect that "the dispute concerning the jurisdiction of the arbitral tribunal, which was not based on the pathological nature of the arbitration agreement, did not necessarily imply the dispute concerning the irregular constitution of the arbitral tribunal, which is not an inseparable consequence of this agreement, since in this case the tribunal was criticized for ruling beyond its material jurisdiction on claims allegedly not covered by the consent of the parties to the arbitration, a plea that could be dissociated from the plea concerning the regularity of the appointment of one of the arbitrators by one of the parties" (§75).