- Commercial Court decides set-aside application involving investment treaty succession (Gold Pool v Kazakhstan)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Arbitration analysis: A Canadian company brought claims against Kazakhstan under the Agreement for the Promotion and Reciprocal Protection of Investments concluded between Canada and the USSR in 1989 (the Treaty). An arbitral tribunal seated in London issued an award declining jurisdiction over the matter because, in its view, the claimant had failed to establish an implied or tacit agreement between Canada and Kazakhstan as to the continuation of the Treaty for the latter. In a rehearing de novo following the claimant’s application pursuant to section 67 of the Arbitration Act 1996 (AA 1996), the Commercial Court set aside that award. The court found that Canada and Kazakhstan ‘impliedly agreed to the succession of Kazakhstan to the Treaty as a successor state of the USSR for its territory’ soon after Kazakhstan’s independence, and then ‘reconfirmed’ that position several years later. As a result, the court held that the tribunal ‘did and does have jurisdiction’ to decide Gold Pool’s substantive claims. This decision highlights the oversight of the English courts over England-seated tribunals and, even when the jurisdictional question concerns issues of state succession and public international law, their willingness to decide the issue anew without deference to the underlying award. Written by Professor Charles T Kotuby Jr, FCIArb, Professor of Practice and Executive Director of the Center for International Legal Education, University of Pittsburgh School of Law, and Honorary Professor of Law, Durham Law School, and Filip Srbinoski, LL.M. Candidate, University of Pittsburgh School of Law, and Master of Laws, Ss. Cyril and Methodius University in Skopje—Iustinianus Primus Faculty of Law.
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