CYIL 2014

ZUZANA JAHODNÍKOVÁ – CYIL 5 ȍ2014Ȏ Another principle source of international investment law, the Washington Convention, facilitates protection from anti-arbitration injunctions and other encroachments carried out by national courts. Article 26 reads as follows: “Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy”. As Schreuer observes, this sentence comprises two main features: the first being the fact that once consent to ICSID arbitration has been given, the parties have lost their right to seek relief in another forum, national or international, and are restricted to pursuing their claim through ICSID, and the second being the asseveration that once ICSID arbitration has been instituted the principle of non-interference takes precedence. 44 As to the arbitral practice, in Mine v. Guinea the Swiss court applied the rule under Article 26 and decided that a party to ICSID may not bring the same issue before a national court while the ICSID case is pending. 45 However, at the same time, national courts do not always make provision for the jurisdiction of ICSID and the rule envisaged in Article 26. In the ČSOB v. the Slovak Republic case concerning parallel proceedings held before the Regional Court in Bratislava, the Tribunal accredited that Article 26 of the ICSID Convention can be seen as a basis for the competence of the Tribunal to issue an anti-suit order with respect to bankruptcy proceedings commenced before the domestic court, since the agreement of the parties to arbitrate excludes any other proceedings. 46 Notwithstanding this Order, the bankruptcy proceedings resumed and the Tribunal continued to persistently call for the suspension of the proceedings. 47 The previously named cases only underline the above statement that, once an injunction is issued against an arbitration, it does not always have the tendency to tip over the delicate balancing act between national law and international arbitration law towards the threat of an infringement of rights. This can cause considerable implications for the “denial of justice” and create difficulties with the recognition and enforcement of arbitral awards in the national courts. Looking at the limited powers of the national courts to issue anti-arbitration injunctions in the case of international investment arbitrations, one can ask if a tribunal called to adjudicate an investor-State 44 Ch. Schreuer, L. Malintoppi, A. Reinisch and A. Sinclair, supra note 27, p. 351 45 Geneva Surveillance Authority (Office of Pursuits for Debts and Bankruptcy), Guinea v. Maritime Int’l Nominees Establishment (Decision of 07 October 1986), 26 I.L.M. 382, 383 (1987) as cited in: M. Sornarajah, supra note 2, p. 111. 46 Československá obchodní banka, a.s. v. Slovak Republic (ICSID Case No. ARB/97/4), Procedural Order No. 4, 11 January 1999, where the Tribunal recommends that the bankruptcy proceedings be suspended and calls on the parties to the arbitration to bring this Order to the attention of the appropriate judicial authorities of the Slovak Republic. For more information on this case see: J. Crawford, K. Lee, ICSID Reports , (Cambridge University Press, 2008), p. 178. 47 ČSOB v. The Slovak Republic, supra note 46, Procedural order No. 5, 1 March 2000. MILOŠ OLÍK

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