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Published online by Cambridge University Press: 18 May 2017
The President then reminded the parties of the Tribunal's announcement, made at its first session with theparties, concerning the filing schedule in the event the merits of the proceeding are reached, if the objections on jurisdiction are not sustained. The Tribunal had announced at the first session that, in such an event, the Claimant shall file its memorial on the merits not more than 30 days after the decision on jurisdiction is issued, and the Respondent shall have a like period after the filing of the Claimant's memorial on the merits, to file its counter-memorial on the merits. Mr. Schwartz stated that the Arab Republic of Egypt was concerned about its ability to react to the Claimant's memorial under this schedule and wished to reserve its position regarding the schedule. After hearing the Claimant,the President noted that the Tribunal would consider the possibility of extending the time periods under the above-mentioned filing schedule, if necessary.
* This document was reproduced and reformatted from the hard copy provided by Shearman & Sterling.
1 Claimant's Request for Arbitration, at 1 (submitted on July 10, 1998) (“Request“).
2 W.,atl8.
3 As explained during oral argument, the Egyptian government holds all of the shares of EHC, but the company is considered a separate legal entity.
4 Luxor Hotel Lease and Development Agreement (August 8, 1989) [Annex W5]. Note, in referencing the documentary annexes submitted by the parties, the notation “W” indicates a document submitted by Claimant, Wena Hotels Limited; the notation “ARE” indicates a document submitted by Respondent, the Arab Republic of Egypt.
5 Id., arts. III&VIII.
6 El Nile Hotel Lease and Development Agreement (January 28, 1990) [Annex W4]
7 An Agreement between His Excellency Fouad Sultan Minister of Tourism for the Egyptian Government jointly with Mr. Kamal Kandil of the Egyptian Hotels Company and Wena Hotels Limited (October 1, 1989
8 Request, at 8.
9 Respondent's Memorial on its Objections to Jurisdiction, at 4 (submitted March 4, 1999) (“Memorial“)
10 Id.
11 W.,at9.
12 Request, at 10.
13 Id,at ll.
14 Memorial, at 6.
15 Id.
16 Translation of Nile Hotel Arbitration Award (April 10, 1994) [Annex ARE20]
17 Request, at 12; Memorial, at 8; Annual Return and Financial Statements for Wena Hotels Limited (period ended December 31, 1995) [Annex ARE 14]; Letter from Kevin Heath, Esq. to Mr. Nael El-Farargy (March 2, 1999) [Annex W16].
18 Translation of Luxor Hotel Arbitration Award (September 29, 1994) [Annex ARE31]
19 Translation of the Cairo Court of Appeal's Judgement (December 20, 1995) [Annex ARE32]. See also Request, at 12.
20 Request, at 13; Memorial, at 6; Annual Return and Financial Statement for Wena Hotels Limited (period ending December 31, 1996) [Annex ARE15]
21 Request, at 16.
22 Memorial, at 1.
23 Claimant's Response to Respondent's Objections on Jurisdiction, at 40 (submitted on March 25, 1999) (“Response“).
24 Respondent's Reply on Jurisdiction, at 2 (submitted on April 8, 1999) (“Reply“).
25 Report of the Executive Directors on the Settlement of Investment Disputes between States and Nationals of Other States, ICSID Document No. 2 (March 18, 1965) [Annex ARE23, at 5]. See also Amerasinghe, C.F., Jurisdiction Ratione Personae under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 41 British Year Book of International Law (1976) [Annex W40, at 229]Google Scholar; Broches, Aron, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Academie de Droit International, Recueil des Cours 1972 II136 [Annex W 37, at 352]Google Scholar; Aron Borches, Bilateral Investment Protectión Treaties and Arbitration of Investment Disputes, in The Art of Arbitration edited by Jan C. Schultz (1982) [Annex W38, at 64]; Dolzer, Rudolf and Stevens, Margrete, Bilateral Investment Treaties, Martinus Nijhoff Publishers (1995) [Annex W39, at 131]Google Scholar; and Lamm, Carolyn B., Jurisdiction of the International Centre for Settlement of Investment Disputes, 6 ICSID Review - FILJ (1991) [Annex ARE30, at 46].Google Scholar
26 Delaume, Georges R., Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1 International Lawyer (1966) [Annex W32, at 67].Google Scholar
27 Article 25(1) of the ICSID Convention provides that “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.“
28 Memorial, at 12.
29 Id.,atll.
30 Reply, at 7.
31 Response, at 25 (emphasis in original).
32 Claimant's Rejoinder on Jurisdiction (submitted on April 22, 1999), at 21-22 (emphasis in original).
33 Id., at 22.
34 Aron Broches, Bilateral Investment Protection Treaties and Arbitration of Investment Disputes, in The Art of Arbitration edited by Jan C. Schultz (1982) [Annex W38, at 70] (emphasis added). See also Broches, Aron, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Académie de Droit International, Recueil des Cours 1972 II 136 [Annex W 37, at 359]Google Scholar; and Schreuer, Christoph, Commentary on the ICSID Convention, 12 ICSID Review - FILJ (1997) [Annex ARE24, at 99]Google Scholar (such provisions “constitute] an exception to the general rule that a State cannot be brought before an international forum by its own nationals.“
35 Delaume, Georges R., ICSID Arbitration: Practical Considerations, Journal of International Arbitration, vol. 1 (1984) [Annex W33, at 112]Google Scholar (emphasis added). See also Borches, Aron, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Academie de Droit International, Recueil des Cours 1972 II 136 [Annex W 37, at 358–359]Google Scholar (“It is quite usual for host States to require that foreign investors carry on their business within their territories through a company organized under the laws of the host country. If we admit, as the Convention does implicitly, that this makes the company technically a national of the host country, it becomes readily apparent that there is a need for an exception to the general principle that the Centre will not have jurisdiction over disputes between a Contracting State and its own nationals.“); Schreuer, Christoph, Commentary on the ICSID Convention, 12 ICSID Review — FILJ (1997) [Annex ARE24, at 93–94]Google Scholar (”… host States frequently require that investment operations are carried through companies organized under local law Incorporation in the host State makes the investor technically a national of that state. This would exclude all investors that operate through local companies from the ambit of the ICSID Convention…. The second clause of Art. 25(2)(b) is designed to accommodate this problem by creating an exception to the diversity of nationality requirement.“).
36 Schreuer, Christoph, Commentary on the ICSID Convention, 12 ICSID Review — FILJ (1997) [Annex ARE24, at 94]Google Scholar. See also Amerasinghe, C.F., Jurisdiction Ratione Personae under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 47 British Year Book of International Law (1976) [Annex W40, at 255]Google Scholar (“Ultimately, the position that corporations which were nationals of the host States could have the required nationality, if the parties so agreed, because of foreign control, was incorporated in the final version.“); Aron Broches, Bilateral Investment Protectión Treaties and Arbitration of Investment Disputes, in The Art of Arbitration edited by Jan C. Schultz (1982) [Annex W38, at 70]; Delaume, Georges R., Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1 International Lawyer (1966) [Annex W32, at 68]Google Scholar; Delaume, Georges R., ICSID Arbitration: Practical Considerations, Journal of International Arbitration, vol. 1 (1984)Google Scholar [Annex W33, at 113] (“Article 25(2)(b) makes an exception to the general rule that the Convention does not apply to disputes between a Contracting State and one of its nationals“) (citing Holiday Inns ICSID case); and Lamm, Carolyn B., Jurisdiction of the International Centre for Settlement of Investment Disputes, 6 ICSID Review — FILJ (1991) [Annex ARE30, at 470].Google Scholar
37 Delaume, Georges R., ICSID Arbitration: Practical Considerations, Journal of International Arbitration, vol. 1 (1984) [Annex W33, at 112]Google Scholar (emphasis added).
38 Peters, Paul, Dispute Settlement Arrangements in Investment Treaties, 22 Netherlands Yearbook of International Law 91 (1991) [Annex W60, at 144]Google Scholar (explaining that these clauses “specify when a company of the host country is to be treated as a foreign investor.“) (emphasis added).
39 Dolzer, Rudolf and Stevens, Margrete, Bilateral-Investment Treaties, Martinus Nijhoff Publishers (1995) [Annex W39, at 142].Google Scholar
40 See, e.g., Aron Broches, Bilateral Investment Protection Treaties Arbitration of Investment Disputes, in The Art of Arbitration edited by Jan C. Schultz (1982) [Annex W38, at 70]; Dolzer, Rudolf and Stevens, Margrete, Bilateral Investment Treaties, Martinus Nijhoff Publishers (1995) [Annex W39, at 142]Google Scholar; Peters, Paul, Dispute Settlement Arrangements in Investment Treaties, 22 Netherlands Yearbook of International Law (1991) [Annex W60, at 144]Google Scholar; and Schreuer, Christoph, Commentary on the ICSID Convention, 12 ICSID Review - FILJ (1997) [Annex ARE24, at 110]Google Scholar.
41 Aron Broches, Bilateral Investment Protection Treaties Arbitration of Investment Disputes, in The Art of Arbitration edited by Jan C. Schultz (1982) [Annex W38, at 70].
42 Dolzer, Rudolf and Stevens, Margrete, Bilateral Investment Treaties, Martinus Nijhoff Publishers (1995) [Annex W39, at 142]Google Scholar.
43 Schreuer, Christoph, Commentary on the ICSID Convention, 12 ICSID Review — FILJ (1997) [Annex ARE24, at 109]Google Scholar (emphasis added).
44 Id., at 110.
45 Report of the Executive Directors on the Settlement of Investment Disputes between States and Nationals of Other States, ICSID Document No. 2 (March 18, 1965) [Annex ARE23, at 8].
46 Borches, Aron, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States, Académie de Droit International, Recueil des Cours 1972 II 136 [Annex W 37, at 362]Google Scholar. See also Hirsch, Moshe, The Arbitration Mechanism of the International Centre for the Settlement of Investment Dispute, Martinus Nijhoff Publishers (1993) [Annex W34, at 59]Google Scholar.
47 Although Egypt's third objection concerns Article 25(l)'s requirement that there must be a “legal dispute arising directly out of an investment,” Egypt does not contest the legality of any alleged dispute between Egypt and Wena. Instead, it simply claims that Wena is arbitrating against the wrong party. As it explained during oral argument, it is “not taking any point on the legality, on the legal nature of any dispute which does exist. What we are saying is that there does not exist a dispute of any sort between the Claimant and the Respondent.“
48 Memorial, at 26.
49 W.,at20.
50 Request, at 18.
51 Reply, at 25 (“Where, as here, the Claimant has misdescribed its claims and mischaracterized them as claims against the Contracting State, it is both permissible and, the Respondent submits, incumbent upon the Tribunal to look for credible evidence to support the proper characterization of those claims.“).
52 Award on jurisdiction in Amco Asia Corporation, Pan America Development Limited and P. T. Amco Indonesia v. Republic of Indonesia (Case n” ARB/81/1), 23 ILM 351 (1984) [Annex W43, at 375].
53 Id., at 376.
54 See, e.g., “British tourists are beaten and thrown out of Egypt hotels,” Daily Telegraph (April 4, 1991) [Annex W7].
55 Memorial, at 28.