The Claimant, a European company, was engaged by the Respondent, a West African State (State C), to carry out work related to the construction of a highway in State C. The parties' contract included the FIDIC Conditions of Contract for Works of Civil Engineering Construction (4th ed., 1987). Pursuant to Clause 67 of those Conditions, the Claimant submitted to the Engineer a request for the payment of amounts, including extra costs, it alleged were due to it. The Engineer acceded to part but not all of the request. The Claimant commenced arbitration proceedings to recover the amounts awarded to it by the Engineer in decisions which had become 'final and binding' under Clause 67 but which the Respondent had failed to pay, and to obtain a decision in its favour with respect to the costs denied by the Engineer. The Respondent challenged the arbitral tribunal's jurisdiction and applied to the State C courts for an order revoking the arbitral tribunal's power to hear the dispute, alleging that the parties had entered into a memorandum of understanding (settlement agreement) referring disputes to the State courts and that the Claimant had asserted allegations of fraud which could only be dealt with by a State court. The State court ruled in favour of the Respondent, which consequently considered the arbitral proceedings to be cancelled. The Claimant nonetheless pursued the arbitration and filed an appeal against the State court decision. An initial partial award was rendered on the arbitral tribunal's jurisdiction by a majority of its members sitting in State C.

La demanderesse, une société européenne, avait été engagée par la défenderesse, un État d'Afrique occidentale (l'État C) pour réaliser des travaux liés à la construction d'une route dans l'État C. Le contrat des parties comprenait les Conditions de contrat applicables aux marchés de travaux de génie civil de la FIDIC (4e éd. 1987). Conformément à la clause 67 de ces conditions, la demanderesse a soumis à l'ingénieur une demande de paiement des sommes, y compris des frais supplémentaires, qu'elle estimait lui être dues. L'ingénieur n'a accepté qu'une partie de cette demande. La demanderesse a engagé une procédure d'arbitrage afin d'obtenir le paiement des sommes acceptées par l'ingénieur dans des décisions devenues « définitives et irrévocables », conformément à la clause 67, mais non payées par la défenderesse, ainsi qu'une décision en sa faveur concernant les frais refusés par l'ingénieur. La défenderesse a contesté la compétence du tribunal arbitral et demandé à la justice de l'État C de le déclarer incompétent, au motif que les parties avaient conclu un protocole d'accord (settlement agreement) soumettant les différends aux tribunaux étatiques et que la demanderesse avait formulé des accusations de fraude qui ne pouvaient être jugées que par ces derniers. Le juge s'est prononcé en faveur de la défenderesse, qui a considéré en conséquence que la procédure d'arbitrage était annulée. La demanderesse a néanmoins poursuivi l'arbitrage et formé un recours contre la décision du juge. Une sentence partielle initiale a été rendue sur la compétence du tribunal arbitral par une majorité de ses membres, siégeant dans l'État C.

El demandante, una empresa europea, fue contratado por el demandado, un Estado de África Occidental (Estado C), para realizar trabajos relacionados con la construcción de una carretera en el Estado C. El contrato entre las partes incluía las condiciones contractuales para trabajos de construcción de ingeniería civil de la FIDIC (4ª ed., 1987). De conformidad con lo dispuesto en la cláusula 67 de estas Condiciones, el demandante presentó una solicitud de pago al ingeniero en concepto de las sumas, incluidos los costes adicionales, que, según alegó, se le adeudaban. El ingeniero accedió únicamente a una parte de la petición. El demandante inició procedimientos de arbitraje para recuperar el importe que le adeudaba el ingeniero de acuerdo con decisiones que, según los términos de la cláusula 67, se habían convertido en «definitivas y vinculantes», pero que el demandado no había pagado, y para obtener una decisión a su favor en relación con los costes denegados por el ingeniero. El demandado impugnó la competencia del tribunal arbitral y solicitó a los tribunales del Estado C una orden que revocara la facultad del tribunal arbitral de conocer de la controversia alegando que las partes habían suscrito un memorando de entendimiento (settlement agreement) para someter las controversias a los tribunales estatales y que el demandante había formulado acusaciones de fraude de las que solo podía ocuparse un tribunal estatal. El tribunal estatal falló a favor del demandado, quien por consiguiente consideró como anulado el procedimiento de arbitraje. No obstante, el demandante prosiguió el arbitraje y presentó un recurso contra la decisión del tribunal estatal. Un laudo parcial inicial fue dictado en la jurisdicción del tribunal arbitral por mayoría de sus miembros reunidos en el Estado C.

'IV. The subject of this award

41. At the time of the [State court decision], the Arbitral Tribunal had before it, as already indicated, an application of the Claimant for the issuance of an interim award in respect of part of the relief that it is seeking in this arbitration and an application of the Respondent for the dismissal of the arbitration on the ground that the Arbitral Tribunal lacks jurisdiction.

42. The issuance of the [State court] decision purporting to revoke the Arbitral Tribunal's authority and the positions adopted by the parties in respect of that decision have now given rise to the threshold issue of whether the Arbitral Tribunal still enjoys any authority to render an award on its own jurisdiction in these proceedings, as originally requested by the parties, even for the limited purpose of considering the consequences of the [State court] decision on this arbitration, or whether it should instead simply take note of that decision and consider that it is now functus officio as a result.

43. In view of the considerations set forth below, the Arbitral Tribunal has come to the conclusion that, notwithstanding the decision of the [State court] (which . . . is presently the subject of an appeal . . .), the Arbitral Tribunal retains the authority, and, in fact, has the duty under the ICC Rules to consider the matter of its jurisdiction and to render an award thereon.

44. In this regard, it is first important to make the obvious point that this Arbitral Tribunal has not been constituted by a sovereign authority, but has been appointed by the ICC Court in accordance with the ICC Rules and, thus, derives its authority from those Rules. In accepting appointment by the ICC Court, each of the arbitrators has agreed to perform his duties under and in accordance with the ICC Rules,1 Article 7(5) of which explicitly states that:

By accepting to serve, every arbitrator undertakes to carry out his responsibilities in accordance with these Rules.

45. Among those responsibilities is the Arbitral Tribunal's duty, under Article 6(2) of the ICC Rules, to decide upon the matter of its own jurisdiction if this is contested, as in the present case, by one of the parties. Article 6(2) states in relevant part as follows:

… if any party raises one or more pleas concerning the existence, validity or scope of the arbitration agreement, the [International] Court [of Arbitration of the ICC] may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the [ICC] Rules may exist. In such a case, any decision as to the jurisdiction of the Arbitral Tribunal shall be taken by the Arbitral Tribunal itself. (Emphasis added)

46. The ICC Court having decided to set this arbitration in motion and constituted the Arbitral Tribunal, it is, thus, incumbent upon the Arbitral Tribunal to determine the matter of its own jurisdiction in accordance with Article 6(2). The issuance of a decision by a State court, in this instance the . . . Court, purporting to revoke this Tribunal's authority is undoubtedly a matter that has to be considered in determining whether or not this Tribunal has any jurisdiction. However, Article 6(2) does not recognize the authority of a State court to prevent the operation of that rule or otherwise to release the arbitrators from the duty that they otherwise have under the ICC Rules to decide upon the matter of their own jurisdiction. Quite to the contrary, as has been observed in a leading treatise on ICC arbitration:2

The system of ICC arbitration is fundamentally designed to discourage recourse to the courts on jurisdictional issues prior to the award.

47. Moreover, no order has been issued by the courts of [State C] enjoining the arbitrators from proceeding to consider the matter of their own jurisdiction in accordance with Article 6(2).

48. In the circumstances, the Arbitral Tribunal finds that, notwithstanding the [State court] decision, it is duty-bound, pursuant to Article 6(2) of the ICC Rules, to consider the matter of its own jurisdiction in this arbitration and to render the present Partial Award thereon.

. . . . . . . . .

VI. The decision of the [State court]

. . . . . . . . .

B. Effect of the [State court] decision on this arbitration

125. The decision of the [State court] raises a number of delicate and difficult issues for resolution by this Arbitral Tribunal. Indeed, the Tribunal is required to weigh, on the one hand, its responsibilities as an independent and autonomous international tribunal created by the parties' agreement against, on the other, the deference that is normally owed to the judgment of a State court with authority to exercise judicial control over the proceedings.

126. Over the course of the last several decades, there has been a long-running debate in international arbitration literature and jurisprudence concerning the respective powers of international arbitral tribunals and State courts. On one side of the debate, there are those who argue that an arbitral tribunal's primary allegiance in an international case is to the parties' arbitration agreement and, accordingly, that its authority need not be viewed as subordinate to the dictates of domestic legal systems or the rulings of State courts.3 On the other side, there are those who advocate the more traditional view that all arbitration proceedings, whether or not international, are creatures of domestic legal systems and therefore subject to decisions of their courts.4

127. This Arbitral Tribunal is of the view that, in arriving at a position in respect of such matters in a specific case, it is necessary to begin with the parties' arbitration agreement and to consider that agreement in its entirety, i.e. not only the part of it that provides for arbitration, but also that part that provides, either expressly or by implication, for the application to that agreement of a particular governing law.

128. In the present case, as already noted in Section V above, the Arbitral Tribunal has found the parties' arbitration agreement to be governed by the law of [State C]. That law includes, in particular, the [State's arbitration statute] and the [relevant provisions] upon which the [State court] has relied in purporting to revoke this Arbitral Tribunal's authority and the parties' underlying agreement to arbitrate. The parties having accepted to be bound by [that statute] when agreeing to arbitration, the Claimant cannot validly contest the possible application of [the relevant provision of the State C arbitration statute] to the arbitration and, accordingly, the use of that provision to limit or even revoke, in accordance with that provision, the arbitrators' authority.

129. This being said, in agreeing that the [arbitration statute] should govern the present arbitration proceedings, a majority of the Arbitral Tribunal considers that the Claimant did not give the Respondent license to invoke the provisions of that [statute] arbitrarily for the purpose of subverting the parties' arbitration agreement. Indeed, as a State entity, the Respondent arguably has a special duty not to abuse its position by improperly using the judicial apparatus of the State to avoid arbitrating claims that it freely agreed to arbitrate as part of the bargain that it struck when entering into the Contract.5

130. Nor, in the view of the majority of the Tribunal's members, does it follow from the Arbitral Tribunal's finding that the [arbitration statute] applies to the parties' arbitration agreement that this Arbitral Tribunal, which is a creature of that arbitration agreement rather than the emanation of any State authority, is automatically bound to recognize and apply decisions of local judicial authorities that are manifestly unfounded, arbitrary or otherwise contrary to internationally accepted standards of judicial propriety.6 Were this Arbitral Tribunal to do so, it could well breach the duty that it also has in this case, as discussed further below, to ensure that the parties' arbitration agreement is not improperly subverted and, thus, consecrate a "denial of justice", as that principle is understood in international law.7

131. Indeed, the majority of this Arbitral Tribunal considers that there is today ample authority in international arbitral jurisprudence for the proposition that the existence of a contract involving a State or State party, as in the present case, is "suffic[ient] to bring the resultant relationship [with the foreign counter party] within the sphere of protection of international law".8 International tribunals sitting in arbitrations involving States as parties have over the last quarter of a century, thus, applied international law to the determination of disputes before them, notwithstanding the concurrent applicability of the law of a particular State to the underlying agreement.9 To borrow language from a recent international arbitral award on this issue, the dispute before this Arbitral Tribunal cannot, by its very nature, be "insulated from the imperatives of international law".10

132. Quite to the contrary, those imperatives must properly be considered to form part of the law of [State C] itself. In this regard, both of the parties to this arbitration have agreed that the "common law" is an explicit component of the laws of [State C] pursuant to . . . the Constitution of [State C] . . ., and, in the view of the majority of the Arbitral Tribunal, there is a long and established line of authority for the principle that the common law incorporates international law.11 While one member of the Arbitral Tribunal, in the dissenting opinion discussed further at paragraphs 144 et seq. below, maintains that the common law referred to in [State C]'s Constitution does not include international law, he has failed to refer to any authority in support of this position and, in any event, does not dispute that . . . [State C]'s Constitution directs the . . . State, including its judiciary, to promote respect for international law and [State C]'s treaty obligations.

133. In respect of international arbitration specifically, those obligations include those set forth in the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958) (the New York Convention), which [State C] has signed and enacted into [its] law. Article II of New York Convention provides that:

Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

. . . . . . . . .

The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.

134. In the view of the majority, it follows from all of the foregoing that, in exercising their responsibilities under Article II of the New York Convention, the [State C] courts should be expected to do so in a manner that comports with the applicable rules of customary international law. Those rules are intended, among other things, to protect foreign nationals against arbitrary treatment by a State's courts. Indeed, customary international law imposes on States an obligation "to maintain and make available to aliens a fair and effective system of justice".12 As a former President of the International Court of Justice has noted:

. . . a State denies justice when its courts are closed to foreign nationals or render judgments against foreign nationals that are arbitrary. In modern international law, a State denies justice no less when it refuses or fails to arbitrate with a foreign national when it is legally bound to do so, or when it, whether by executive, legislative or judicial action, frustrates or endeavors to frustrate international arbitral processes in which it is bound to participate.13 (Emphasis added)

135. An international arbitral tribunal, such as the present one, may itself, thus, consecrate a denial of justice by recognizing and giving effect to a State court decision purporting to revoke its authority where that decision does not comport with international standards. As stated by another ICC tribunal:

. . . if the Tribunal finds, as it does, that it has jurisdiction, it cannot fail to exercise it. Otherwise, it would be concurring in a failure to exercise jurisdiction and could even be accused of a denial of justice.14

136. This Arbitral Tribunal therefore has, in the view of its majority, a duty to ensure that the parties' arbitration agreement is not improperly subverted, contrary to international law and [State C] law itself. This does not mean that the Arbitral Tribunal should endeavour to act as an appellate body in respect of court decisions with which it may disagree or substitute its own conception of [State C] law for that of a [State C] court. Quite to the contrary, this Arbitral Tribunal considers that it should accord the greatest respect and deference to such decisions. Indeed, whether or not a [State C] court's application of [State C] law may be viewed by this Arbitral Tribunal to be right or wrong, respect by this Arbitral Tribunal for that decision must be seen to be part of the parties' arbitration compact in this case, provided, however, in the view of the majority, that the court has not acted in a manner that is manifestly arbitrary or otherwise contrary to internationally accepted standards of judicial propriety.

137. In this connection, the majority of the Arbitral Tribunal wishes to emphasize, consistent with international legal authority, the necessarily "manifest" character of any such wrongful behavior.15 Cases in which the decision of a competent State court may properly be disregarded by an international arbitral tribunal therefore must necessarily be exceptional.

138. Regrettably, the majority of this Arbitral Tribunal has come to the conclusion that this is such a case.

139. In so finding, the majority does not question in any way the [State court]'s interpretation of [the relevant provision of the State C arbitration statute] or the requirements of [State C] law. The [State court]'s decision was manifestly wrong, however, and the Respondent's application to it was improper because both the decision and the application were made without regard to the claims of which this Arbitral Tribunal has, in fact, been properly seized.

140. Indeed, both the Respondent and the [State court] have proceeded, in connection with the application [under the relevant provision of the State C arbitration statute], on the assumption that this Arbitral Tribunal has before it differences that, as provided in [the local arbitration statute], involve "the question of whether . . . [the Claimant] has been guilty of fraud". But there is no basis whatever for such an assumption. The Respondent has, to be sure, advanced counterclaims against the Claimant that, according to the Respondent, involve questions of "fraud", but, as discussed in Section V above, the Arbitral Tribunal has no jurisdiction over any of those claims. Moreover, there has been no showing by the Respondent that, in considering the Claimant's claims, this Arbitral Tribunal will be required to decide any questions of "fraud", whether of a criminal or civil nature. Rather, all of the "heads of fraud" to which the Respondent referred in its . . . application [under the relevant provision of the State C arbitration state] are identical to those described . . . above, and all of them relate to the Respondent's counterclaims, in respect of which this Tribunal has no jurisdiction, and not the Claimant's claims, which are concerned solely with the Claimant's alleged contractual entitlements.

141. In its judgment, however, the [State court] made no effort to determine whether any of the "heads of fraud" that were the basis for the Respondent's . . . application [under the relevant provision of the State C arbitration statute] have any bearing on the claims that are, in fact, properly before this Arbitral Tribunal. Instead, it merely noted . . . that the Respondent's application "seeks to make a case of fraud against the Respondent [i.e. the Claimant in this arbitration] and its Managing Director on several grounds". It obviously does not follow, however, from the mere fact that a party to an arbitration is accused of fraud by the other that the fraud in question is relevant to any disputes falling within the jurisdiction of the Arbitral Tribunal. The [State court] had an evident duty, in applying [the relevant provision of the State C arbitration statute], to satisfy itself that the differences that are properly before this Arbitral Tribunal actually involve the questions of fraud described in the Respondent's application. The [State court]'s failure to indicate in its judgment that it has done so renders its judgment completely arbitrary.

142. Indeed, the [State court] has purported, for an indefinite duration, to deprive the Claimant of its right to submit to arbitration claims in respect of which the Arbitral Tribunal unquestionably has jurisdiction under Clause 67 by referring to "heads of fraud" relating to counterclaims over which the Arbitral Tribunal equally unquestionably has no jurisdiction and that the Respondent has always been free to refer to the appropriate criminal and judicial authorities in [State C].

143. It is, moreover, troubling that the [State court] deemed it necessary to order that the arbitration agreement ceases to have effect in its entirety. [The relevant provision of the State C arbitration statute] provides that the court shall have the power to order the arbitration agreement to cease to have effect only "so far as may be necessary" to enable the relevant question of fraud to be determined by the court. This evidently requires a court to identify and thereafter determine only that question of fraud that a party wishes to have heard in open court. No attempt was made in this instance by the [State court] to examine the necessity of ordering the arbitration agreement to cease having effect in its entirety. In this respect as well, its decision was manifestly arbitrary and cannot legitimately be recognized by this Arbitral Tribunal.

144. The view of the majority is, however, not shared by one of the Arbitral Tribunal's members . . ., who has prepared a dissenting opinion, which is being circulated to the parties together with this Partial Award. The majority has carefully taken into consideration the views of [the dissenting arbitrator], but is unfortunately not persuaded of their merit.

145. In his dissent, [the dissenting arbitrator] argues that the decision of the majority is "totally insensitive to national as well as international concerns about combating fraud or its cognate phenomenon corruption, in international business transactions". However, the present Award does not interfere in any way with the powers of the [State C] judiciary or [State C]'s investigative authorities to examine and decide upon any allegations of fraud against the Claimant. Indeed, the majority can see no basis whatever for the suggestion . . . that the Award would "deny the Court's jurisdiction" to try any issue of fraud or for the similar contention . . . that the Award would prevent allegations of fraud to be "properly investigated". Quite to the contrary, it is the view of the majority that [State C]'s courts enjoy full power, as they always have, to consider the allegations in question. Their jurisdiction to do so has not been contested by either of the parties and is questioned nowhere in this Award.

146. The issue before the Arbitral Tribunal is, in reality, quite different. It is, rather, whether the [State court] has any basis under [the relevant provision of the State C arbitration statute] to revoke the authority of the Arbitral Tribunal to consider the claims that have properly been brought before it. . . . Quite obviously, if questions of fraud do not fall within the Arbitral Tribunal's jurisdiction, the invocation of [the relevant provision of the State C arbitration statute] is not necessary "in order to enable those questions" to be determined by a court. The Arbitral Tribunal does not have before it any questions that preclude an investigation by the courts into the Respondent's allegations of fraud. There could therefore be no basis for preventing this Arbitral Tribunal from considering entirely different questions as to which it has jurisdiction under the parties' arbitration agreement.

147. In his dissent [the dissenting arbitrator] has referred to allegations concerning certain improper payments to the Claimant. However, there has not been any prima facie showing, nor has it even been alleged, that those payments had anything to do with the Contract that is the subject of this arbitration.

148. With all due respect to [the dissenting arbitrator], . . . there has not been any showing that the dispute concerning the transfer of [a sum of money] into a Liechtenstein account "falls within the purview of the arbitration agreement", and there can be no doubt, in any event, as already decided above, that the Arbitral Tribunal has no jurisdiction over any such dispute. Nor, moreover, . . . did the alleged "fraud" referred to in . . . the Respondent's application to the [State court] ever constitute the subject of a reference to the Engineer for a decision under Clause 67 of the Contract, as required in order for the Arbitral Tribunal to have any jurisdiction in respect of such matter. The "reporting" of a matter to the Engineer during the course of the Contract, as indicated by [the dissenting arbitrator], is not sufficient to constitute a reference for the purpose of Clause 67, particularly where, as in the present instance, the Engineer's action was not subsequently disputed by either party.

149. In conclusion, the mere fact that a party may be accused of fraud in connection with its many business dealings in a country over a period of years does not suffice to confer authority upon the judiciary under [the relevant provisions of the State C arbitration statute] to prevent the operation of any and all arbitration agreements that that party may have entered into. In order for [that provision] to be invoked, the question of fraud must evidently relate to the dispute that is the subject of the arbitration. . . .

150. In the circumstances, notwithstanding the arguments set forth in [the] dissent, the majority is not persuaded that there is any reason to alter its decision.

151. It is to be hoped that the [State C] Court of Appeal, when properly informed of all of the relevant facts, will reverse the decision of the [first instance court]. A majority of this Arbitral Tribunal sees no reason, however, to await the decision of the Court of Appeal in order to proceed with this arbitration. Having found that it has jurisdiction in respect of all of the Claimant's claims, as described herein and set forth in the Terms of Reference for this arbitration, and that there was no conceivable justification for the [State court] decision, the Arbitral Tribunal shall proceed with the adjudication of the Claimant's claims.

VII. The Claimant's application for an interim award

. . . . . . . . .

3. The Arbitral Tribunal's findings

160. Although described by the Claimant as an application for an "interim" award, its application is, in fact, a request for a final award in respect of a significant portion of its claims in this arbitration. Under both the ICC Rules and Section 18 of the [State C arbitration statute], the Arbitral Tribunal has the power to make such a partial final award if it considers it appropriate to do so, but has no obligation in this regard.

161. In the present case, the Claimant has failed to demonstrate, nor has it alleged, that it would suffer any irreparable harm if the claims that are the subject of its request are not decided in advance of the other issues in the arbitration; nor has it indicated that there are any other circumstances that mandate an early award with respect to those claims.

162. In the circumstances of this case, the Arbitral Tribunal has not been persuaded that it is appropriate to issue an interim award at this stage. Indeed, the dispute between the parties as to the Arbitral Tribunal's jurisdiction has prevented a full airing of all of the Respondent's stated defenses to the Claimant's interim application. Although the Arbitral Tribunal, by a majority, has found the Respondent's jurisdictional position to be unmeritorious, it nevertheless can understand why the Respondent may have felt unable to proceed with a defense of the interim application at the Hearing. The Arbitral Tribunal, thus, declines to make any award on the Claimant's claims and reserves its decision on the claims that are the subject of the Claimant's application for its final award.'

1
Editor's note: references are to the 1998 version of the ICC Rules of Arbitration.

2
Craig, Park & Paulsson, International Chamber of Commerce Arbitration (Oceana Publications, 3rd ed. 2000), p.171.

3
See, e.g., Paulsson, "Arbitration Unbound: Award Detached from the Law of its Country of Origin" (1981) 30 ICLQ 358; Gaillard, "Enforcement of Awards Set Aside in the Country of Origin" (1999) 14 ICSID Rev 16. See also ICC Case 10623, (2003) 21 Bull ASA 59, p.83.

4
See, e.g., Goode, "The Role of the Lex Loci Arbitri in International Commercial Arbitration" (2001) 17 Arb Int 19; Mann, "Lex facit Arbitrum", in Sanders (ed.), International Arbitration: Liber Amicorum for Martin Domke, reprinted in (1986) 2 Arb Int 241.

5
The duty of a State party not to use its own judiciary to subvert improperly a prior agreement to arbitrate has been the subject of recent arbitral jurisprudence. See, e.g., in particular, Himpurna California Energy Limited (Bermuda) v. PT. (Persero) Perusahaan Listruik Negara (Republic of Indonesia), (2000) 15 YCA 13, para.21: "It is one thing for a party to seek to avail itself of such remedies it believes to be at its disposal once an award has been rendered. It is quite another for instrumentalities of a party [under international law] to be used to prevent the implementation of a pending procedure to which it has agreed."

6
See, e.g., Partasides, "Solutions Offered by Transnational Rules in Case of Interference by the Courts of the Seat", OGEL, vol. 1, issue no. 4 (September 2003).

7
See, e.g., Schwebel, Three Salient Problems (Grotius 1987), p.61 et seq. See also The Loewen Group, Inc. and another v. United States of America, <www.kluwerarbitration.com>, and the authorities cited therein at paras.130(133.

8
Schwebel supra, note 8, p.65.

9
See Himpurna, supra, note [8]; ICC Case 10623, supra, note [6]. In the case of Revere Copper and Brass, Inc. v. Overseas Private Investment Corporation, 56 ILR 258, the tribunal held that: "Although the Agreement was silent as to the applicable law, we accept Jamaican law for all ordinary purposes of the Agreement, but we do not consider its applicability for some purposes precludes the application of principles of public international law which govern the responsibility of States to aliens." See also the judgment of Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (1978) 17 ILM 1 quoted therein.

10
Himpurna, supra, note [8], at para.175.

11
See Brownlie, Principles of Public International Law (Oxford, 6th ed. 2003), p.44, and the Commonwealth and English cases cited therein. See also Jennings and Watts (eds.), Oppenheim's International Law (Longman, 9th ed. 1996), Vol. 1, p.56 et seq. and 77.

12
See Loewen, supra, note [10] at para.129.

13
See Schwebel, "Injunction of Arbitral Proceedings and Truncation of the Tribunal", 18 Mealy's International Arbitration Report, No. 4 (April 2003), p.33. Similarly, it was held in Himpurna, supra, note [8], that "…a State is responsible for the actions of its courts, and one of the areas of state liability in this connection is precisely that of a denial of justice", para.184.

14
ICC Case 4695, (1986) 11 YCA 149, p.158.

15
See, e.g., Garner, "International Responsibility of States for Judgments of Courts and Verdicts of Juries Awarding to Denial of Justice", (1929) 10 BYIL 181, p.183: "… what is required is manifest injustice or gross unfairness", as cited in Loewen, supra., note [10], para.130.