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Paris Court of Appeal annuls OIC award for irregular tribunal constitution via MFN procedure (Libya v DS Construction FZCO)

Paris Court of Appeal annuls OIC award for irregular tribunal constitution via MFN procedure (Libya v DS Construction FZCO)
Published on: 14 April 2021
Published by: LexisPSL
  • Paris Court of Appeal annuls OIC award for irregular tribunal constitution via MFN procedure (Libya v DS Construction FZCO)
  • What are the practical implications of this case?
  • What was the background?
  • What did the court decide?
  • Case details

Article summary

Arbitration analysis: The Paris Court of Appeal annulled a partial award rendered under the Agreement on Promotion, Protection and Guarantee of Investments among Member States of the Organisation of the Islamic Conference (OIC Treaty) for irregular constitution of the tribunal. It did so on the ground that the tribunal was constituted under the UNCITRAL Arbitration Rules with the Permanent Court of Arbitration (PCA) acting as appointing authority, as provided under the Libya-Austria Treaty, the application of which had been triggered by claimant via the Most Favored Nation (MFN) clause of Article 8 of the OIC Treaty. The court held that the MFN did not allow to import any dispute resolution provisions from other treaties. This procedure was used by claimant to have the PCA designate an appointing authority to appoint an arbitrator on behalf of Libya, which had defaulted in the appointment, and in circumstances where the appointing authority under the OIC Treaty, namely the Secretary General of the OIC did not make the appointment when solicited. The court held that it was up to the claimant in such circumstances to solicit the juge d’appui to appoint an arbitrator on Libya’s behalf. The court further held that it did not have the power to re-appoint tribunal members upon annulling the partial award. The decision sheds light as to what can and cannot be done when faced with a deadlock in constituting tribunals. Written by Hamid Gharavi, founding partner, and Nada Sader, partner, of Derains & Gharavi. or take a trial to read the full analysis.

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