Article 51:
If the competent court approves the arbitral award, it must decide its execution
and such decision is final. If, otherwise, the court decides the nullity of the
award, its decision is subject to challenge before the Court of Cassation within
thirty days following the date of notifying that decision. The final decision
nullifying the award results in extinguishing the arbitration agreement.
IV.
THE RESPONDENT’S JURSIDICTIONAL OBJECTIONS
A.
The Respondent’s Position
63.
It is the Respondent’s position that the Centre lacks jurisdiction ratione temporis
over the Claimant’s claims, and that the Tribunal thus lacks competence to rule upon
these claims, for the following reasons:
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First
As Claimant has acknowledged, “[t]he Turkey-Jordan BIT entered into force on
23 January 2006.” Cl. Mem., ¶ 99; see also ICSID Database of Bilateral
Investment Treaties – Treaties of Jordan, available at icsid.worldbank.org
(Exhibit R-5). The record establishes, however, that in September 2000, ATA
and APC each gave notice of an intent to commence arbitration, and on 29
October 2003, APC filed its annulment action challenging the arbitral tribunal’s
Final Award of 30 September 2003. See Cl. Mem., ¶¶ 33, 66; see also ATA
Notice Letter (6 Sept. 2000) (Exhibit R-6); APC Notice Letter (10 Sept. 2000)
(Exhibit R-7).
, it is well established that, unless a contrary intent appears on the face of the
treaty, a bilateral investment treaty (or “BIT”) will not apply to a dispute that has
arisen, fully developed, and been extensively pursued before the BIT’s entry into
force. Here, the dispute in question had not only had [ sic] arisen, but had been
extensively litigated, in both arbitral and judicial proceedings, for a period of
nearly six years before the BIT’s entry into force.
By 23 January 2006, all proceedings in both the arbitration and the annulment
action before the Court of Appeal had been concluded, with nothing remaining
but the issuance of that Court’s judgment of annulment (which occurred on 24
January 2006, the day following the BIT’s entry into force) and the subsequent
appellate proceedings in the Court of Cassation.
By any reasonable assessment, the pertinent dispute had arisen, and the parties in
interest (APC and ATA) had fully developed and articulated their respective
positions and arguments, long before the Turkey-Jordan BIT’s entry into force on
23 January 2006. All of the material facts and arguments that ATA now seeks to
present, except the court judgements themselves, were presented and addressed
before the Court of Appeal – albeit without being phrased in the terminology of
public international law. ATA’s complaint before this Tribunal is not that the
Jordanian courts committed substantively new violations of its (newly created)
rights after the BIT entered into force; rather, it is that the Final Award should
not have been annulled under the Jordanian Arbitration Law and that Respondent
owes ATA the damages that were awarded in the Final Award, plus related relief.
In substance, this is the same dispute that was presented to, and fully litigated
before, Jordan’s Court of Appeal.
By no reasonable reading of Claimant’s own submissions and description of this
dispute can it be said, as ATA now asserts, that “the Claimant’s dispute with the
Respondent arose on 16 January 2007 when the Jordanian Court of Cassation
delivered the final judgment in the domestic proceedings between the Claimant
and APC, thereby annulling the Final Award and extinguishing the arbitration
agreement contained in the Contract.” Cl. Mem., ¶ 159. The proceedings in the
Court of Cassation represented a continuation of the case presented to the Court
of Appeal well before 2006, and in substance, a continuation of the original
dispute, which began in 2000. The Court of Cassation’s judgement affirmed the
judgment of the Court of Appeal, on the basis of the same record and in the face
of the same substantive arguments. No new or different dispute arose on 16
January 2007 – or at any time after 23 January 2006.
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Second
It stretches language and legal reasoning beyond the breaking point to state, on
these facts, that Claimant’s interest in the arbitral damages award, which was
subject to judicial review for annulment in the ordinary course, constituted an
“investment” that “existed” at the time of the Turkey-Jordan BIT’s entry into
force on 23 January 2006. On that date, nothing remained of the alleged,
underlying “investment;” all that remained was the continuation of ongoing
Jordanian court proceedings, which concerned not the underlying contract or
performance but the legality of the subsequent arbitral award.
, this Tribunal lacks jurisdiction because, by its terms, the Turkey-Jordan
BIT “shall apply to investments existing at the time of entry into force as well as
to investments made or acquired thereafter.” Jordan-Turkey BIT, art. IX(1)
(Exhibit C-1). ATA’s claims are not predicated on any alleged “investment”
existing at the time of the Turkey-Jordan BIT’s entry into force, or made or
acquired thereafter. On the contrary, ATA’s claims are predicated on its Contract
with APC of 2 May 1998, which was executed nearly eight years before the
BIT’s entry into force and in connection with which ATA had (a) fully
completed its performance and “handed over control” by 9 December 1999, and
(b) subsequently obtained a liquidated damages award (as later annulled by the
Jordanian courts) on 30 September 2003.
If there is jurisdiction ratione temporis over ATA’s claims here, then it is
difficult to perceive when this jurisdictional limitation ever properly applies. A
legal claim presumably never would be barred for temporal reasons, so long as
the claimant continues to assert it and phase it in the language of a BIT, or can
relate it to an allegedly underlying “investment” even if that investment was
made and terminated many years before the applicable BIT’s entry into force.
[emphasis in original]
64.
More particularly, regarding the Respondent’s first jurisdictional objection to the
effect that the BIT does not apply to disputes that predate its entry into force, the
Respondent argues as follows:
Many BITs contain clear language that prohibits their application to disputes that
predate their entry into force. The Turkey-Jordan BIT contains no express
language to this effect. However, ICSID tribunals have consistently held that, in
“the absence of specific provision for reciprocity,” it is proper to infer that
“disputes that may have arisen before the entry into force of the BIT are not
covered.” This approach gives effect to the strong and longstanding presumption
against retroactivity that is expressed in the Vienna Convention on the Law of
Treaties and embedded in customary international law. Under this settled
principle, the Turkey-Jordan BIT does not apply to any dispute that arose before
it entered into force, on 23 January 2006.
[…]
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Here, ATA does not claim to be seeking retroactive application of the Turkey-
Jordan BIT: that is, it does not expressly argue that the Turkey-Jordan BIT should
be applied to a “dispute” that predated the BIT’s entry into force. Rather, ATA
contends that “the Claimant’s dispute with the Respondent arose on 16 January
2007 when the Jordanian Court of Cassation delivered the final judgment in the
domestic proceedings between the Claimant and APC, thereby annulling the
Final Award and extinguishing the arbitration agreement contained in the
Contract.” Cl. Mem., ¶ 159.
It is apparent, however, that a “dispute,” as that term is defined in the ICSID
jurisprudence, both existed and had been extensively pursued long before the
issuance of the Court of Cassation’s judgement on 16 January 2007. Claimant’s
own recital of the facts shows that in September 2000 ( i.e., more than five years
before the BIT’s entry into force) ATA and APC each gave notice of an intent to
commence arbitration, and on 29 October 2003, APC filed its annulment action
challenging the arbitral tribunal’s Final Award of 30 September 2003. See Cl.
Mem., ¶¶ 33, 66; see also ATA Notice Letter (6 Sept. 2000) (Exhibit R-6); APC
Notice Letter (10 Sept. 2000) (Exhibit R-7).
In these circumstances, it is an understatement to say that the dispute had
“crystallized.” It had been extensively litigated long before the BIT’s entry into
force on 23 January 2006. By that point, all proceedings in both the arbitration
and the annulment action before the Court of Appeal had been concluded, with
nothing remaining but the issuance of that Court’s judgment of annulment (which
occurred on 24 January 2006, the day following the BIT’s entry into force) and
the subsequent appellate proceedings in the Court of Cassation.
The question, then, is whether a new and subsequently different “dispute” arose
on 16 January 2007, or at any other time after 23 January 2006.
[…]
The same analysis and result apply here, but with greater force. No new or
different dispute arose in this case on 16 January 2007 – or at any time after 23
January 2006. The proceedings before the Court of Cassation represented the
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