Subjects:

Arbitration and Dispute Resolution

Contents:

Introduction, Emmanuel Gaillard

Part I: Are States Liable for the Conduct of their Instrumentalities?

Introductory Remarks, Judge Peter Tomka

ICSID Case Law, Ibrahim Fadlallah

ICC Case Law, Eduardo Silva-Romero

Case Law of Tribunals Other than ICC and ICSID, Barton Legum

Concluding Remarks, Pierre-Marie Dupuy

Discussion Part II: Can a Party Benefiting from an Award Rendered Against a State Enforce the Award Against an Instrumentality of Such State?

Introductory Remarks, Charles Poncet

French Law, Eric Teynier

English Law, Judith Gill

U.S. Law, Eugene Gulland

Concluding Remarks, Sigvard Jarvin

Discussion

Effectiveness of Arbitral Awards, State Immunity from Execution and Autonomy of State Legal Entities –

Reflections on Three Incompatible Principles, Emmanuel Gaillard

Annexes Annex 1: Draft articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001) (excerpts)

Annex 2: United States Act on Jurisdictional Immunities of Foreign States

Annex 3: ICSID Case No. ARB/03/3, Noble Ventures v. Islamic Romania, Award, October 12, 2005

Annex 4: ICSID Case No. ARB/03/3, Impregilo S.p.A. v. Islamic Republic of Pakistan, Decision on Jurisdiction, April 22, 2005

Annex 5: Paris Court of Appeals, Winslow Bank & Trust Company Limited v. Socié

té

Nationale des Hydrocarbures, January 22, 2004

Annex 6: Paris Court of Appeals, Central Bank of Iraq v. Hochtief AG, September 1, 2005

Annex 7: Paris Court of Appeals, Socié

té

Nationale des Pé

troles du Congo v. S.A. Walker International Holdings Ltd., July 3, 2003

Annex 8: Cour de Cassation, Noga v. EADS, May 12, 2004

Annex 9: U.S. Supreme Court, First National City Bank v. Banco para el Comercio Exterior de Cuba, June 17, 1983

States get involved in international affairs either directly or through their instrumentalities. The activities of these instrumentalities raise many issues, two of which have given rise to significant recent developments both in arbitral and domestic case law.

The first is whether and under what conditions a State may be held liable for the conduct of such instrumentalities on the basis of an investment treaty. This issue will be the subject of a systematic survey of ICSID and ICC case law and that of other arbitral tribunals so as to identify the circumstances in which such liability may arise.

The second issue, which is addressed by State courts, is whether and under what conditions State instrumentalities that have a separate and autonomous legal personality may be held liable for the pecuniary obligations of the State. A comparative law study focusing in particular on solutions found in French, English and U.S. law will provide answers to the question as to whether an award holding a State liable may be enforced against the assets of instrumentalities of that State, where such instrumentalities are prima facie separate juridical persons.