Country X v A___
| Jurisdiction | Suiza |
| Judge | Kiss |
| Judgment Date | 23 novembre 2017 |
| Docket Number | (Case No 4A_396/2017) |
| Court | Federal Tribunal (Switzerland) |
(Kiss, Presiding Judge)
(Case No 4A_396/2017)
Switzerland, Federal Tribunal (First Civil Law Court).
Arbitration — Arbitration tribunal — Jurisdiction — Arbitration Tribunal of Permanent Court of Arbitration — Arbitration Tribunal seated in Geneva — Dispute between respondent and State X — 1998 Bilateral Investment Treaty between State X and State Y providing basis for arbitration — Arbitration Tribunal finding it had jurisdiction to adjudicate dispute — Civil law appeal against jurisdiction — Deposit for legal representation costs arising from appeal — Hague Convention on Civil Procedure, 1954, Article 17 — Whether States could rely on Article 17 precluding an obligation to make a deposit for legal representation costs — Treaty interpretation — Subsequent agreements — State's unwillingness to submit to enforcement action — Insolvency
Treaties — Interpretation — Hague Convention on Civil Procedure, 1954 — Article 17 — Meaning of term “nationals” — Whether including Contracting States — Obligation to make deposit for costs for legal representation — Whether obligation could be imposed on foreign State — Subsequent international agreements — Effect
Jurisdiction — Civil proceedings in Switzerland — Whether State X submitting to jurisdiction of court in a foreign State — Hague Convention on Civil Procedure, 1954 — Article 17 — Obligation to make deposit for costs for legal representation — Whether obligation could be imposed on foreign State — The law of Switzerland
Summary:2The facts:—A___ (“the respondent”) initiated an arbitration before an Arbitral Tribunal of the Permanent Court of Arbitration seated in
Geneva against State X (“the appellant”) based on the Bilateral Investment Treaty of 27 November 1998 between the appellant and State Y. The appellant filed a civil law appeal to the Federal Tribunal disputing the Arbitral Tribunal's jurisdiction. The respondent subsequently requested the Federal Tribunal to require the appellant to make a deposit for the costs incurred for legal representation. The appellant requested that the Federal Tribunal dismiss this request.Held:—The request was dismissed.
(1) A party without established domicile in Switzerland could, upon request, be required to make a deposit for the costs its opponent incurred for legal representation. Unless an international treaty precluded this, such an obligation could also be imposed on a foreign State (para. 2.2).
(2) Article 17 of the Hague Convention on Civil Procedure, 1954 (“the Hague Convention”),3 to which both Switzerland and the appellant were parties, prohibited the imposition of an obligation to make a deposit for costs for legal representation on the nationals of one of the Contracting States which had their domicile in any of the Contracting States. The term “nationals” used in Article 17 of the Hague Convention was to be interpreted comprehensively and included Contracting States. This assessment could not be affected by the adoption of differently phrased subsequent international agreements, particularly if they had a different object and purpose. The decisive factor was that the appellant had submitted itself in a civil proceeding to the jurisdiction of a court in a foreign State in which it was treated as a private party (paras. 2.2.1.3–2.2.2).
(3) The appellant's reputed resistance to acts of enforcement could not be equated with a party's proven insolvency as an alternative basis for imposing an obligation to make a deposit for the costs for legal representation despite a provision in an international treaty to the contrary (para. 3).
The following is the text of the judgment of the Court:
1.
A____ (Respondent) is asserting claims against Country X (Appellant) based on the Bilateral Investment Treaty between Country X and Country Y dated November 27, 1998 (hereinafter: BIT).
On June 3, 2015, the Respondent initiated an arbitration before the Permanent Court of Arbitration (PCA) against the Appellant, referring to Art. 9 BIT.
The PCA Arbitration Tribunal, with its seat in Geneva, by a Decision dated June 26, 2017, found that it had jurisdiction to adjudicate the dispute.
By written submission of August 14, 2017, the Appellant filed a civil law appeal from that Decision. By order of August 17, 2017, the Respondent and the Arbitral tribunal were invited to submit comments on the appeal and to state their positions regarding the Appellant's request for a stay of enforcement.
By written submission of August 29, 2017, the Respondent thereupon submitted a Request to the Court to require the Appellant to pay security for the Respondent's potential costs within the meaning of Art. 62(2) BGG.1,2 By order of the Presiding Judge of August 31, 2017, the Appellant was granted leave to comment on the Request for Security on or before September 18, 2017. By written comments of September 18, 2017, the Appellant applied to the Court to dismiss the Request. By a written submission of September 25, 2017, the Respondent stated that it was maintaining its Request, and on October 4, 2017, the Appellant again requested that it be dismissed.
2.
A party with no established domicile in Switzerland may, upon request of the opponent, be required to pay security for costs (Art. 62(2) BGG).
2.1. The Respondent is basing its Request primarily on the Appellant's status as a foreign state; it submits that, according to the jurisprudence of the Federal Tribunal on Art. 62(2) BGG, as a general matter foreign...
Pour continuer la lecture
SOLLICITEZ VOTRE ESSAI