CYIL 2014

376

ZUZANA JAHODNÍKOVÁ

–

MILOŠ OLÍK

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.

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.

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.

Notwithstanding this Order, the bankruptcy proceedings resumed and

the Tribunal continued to persistently call for the suspension of the proceedings.

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

Ch. Schreuer, L. Malintoppi, A. Reinisch and A. Sinclair,

supra

note 27, p. 351

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.

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.

ČSOB v. The Slovak Republic,

supra

note 46, Procedural order No. 5, 1 March 2000.