Fornan et al v Malaysia (Sultan of Jolo v Malaysia) - Ad Hoc Arbitration - Procedural Order 44 - 2 November 2022
II. Summary of the Parties' Contentions
5. Claimants assert that, as of today, no court has set aside the Preliminary Award. On the contrary, the Exequatur of the Preliminary Award implies the recognition of the Preliminary Award in France. On that basis, Claimants submit that the Arbitrator «...can now avail himself of its supervisory jurisdiction...» and resume his duties in rendering the Final Award, under the aegis of the French Courts.
6. Claimants request a change of the place of arbitration «...from Madrid to Paris...», on the basis of the questionable interference of the Civil and Criminal Chamber of the Superior Court of Justice of Madrid, in view of the Decision of June 29, 2021, and the subsequent Clerk Communication of July 7, 2021, and Clerk Communication of July 12, 2021, aimed at stopping the present ongoing international arbitration proceedings without any legal support.
7. Claimants sustain that the Clerk Communication of October 14, 2021 does not affect the validity of the Preliminary Award, as it cannot be characterised as «...a decision from the Justices of the Court...» on the Preliminary Award.
8. Claimants support their position on academic commentaries and arbitration precedents, incorporated into the proceedings.
9. Respondent did not submit any views or comments.
10. The Arbitrator has carefully considered all these submissions and refers to their central points in the next heading of this Order.
III. THE ARBITRATOR'S CONSIDERATIONS
11. International arbitration generally adheres to the principle stipulating that the parties may themselves freely choose the place of arbitration by agreement.1 This choice may be either explicit or implicit. The parties are entitled to request a modification of the place of arbitration which was initially fixed by the arbitrator at any time during the proceedings on the basis of circumstances being modified.
12. The Arbitration Agreement remains silent on the issue of the place of the arbitration.
It was determined in the Preliminary Award. On October 11, 2021, Claimants submitted their reasoned request to relocate the place of arbitration so established from Madrid to Paris. It was based on the concurrence of two factors, after the Preliminary Award: (i) the Exequatur of the Preliminary Award, which implies the recognition of the Preliminary Award in France, and (ii) certain supervening events related to the attempts of the Civil and Criminal Chamber of the Superior Court of Justice of Madrid to stop the present international arbitration proceedings by way of the Decision of June 29, 2021.2 Respondent failed to provide any comment on Claimants' proposal.
13. The Arbitrator confirms that Claimants are entitled to request a modification of the place of arbitration and that the Parties failed to reach any agreement on this relocation otherwise. The Final Award has not yet been rendered.