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Award on Jurisdiction

I Procedure

Registration of the Request for Arbitration

The International Centre for Settlement of Investment Disputes ("ICSID" or "the Centre") received a request for arbitration, under cover of a letter dated February 26, 2003, against the Arab Republic of Egypt ("Egypt" or the "Respondent") from Joy Mining Machinery Limited ("Joy Mining" or the "Claimant"), a company incorporated under the laws of England and Wales. The request, invoked the ICSID arbitration provisions in the United Kingdom-Arab Republic of Egypt Agreement for the Promotion and Protection of Investments which entered into force on February 24, 1976 (the "Treaty" or "BIT").
On March 4, 2003 the Centre, in accordance with Rule 5 of the ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings ("Institution Rules") acknowledged receipt of the request and on the same day transmitted a copy to the Arab Republic of Egypt and to the Embassy of Egypt in Washington, D.C.
On April 8, 2003 and May 19, 2003, the Centre requested further information from the Claimants, with regard to the existence of an investment for purposes of Article 25 of the ICSID Convention, and on the investment of Joy Mining "in the territory" of Egypt as envisaged by Article 8(1) of the BIT. The Claimant replied by letters of April 15, 2003 and 27 May 2003. The Centre also received correspondence from the Respondent urging that the request for arbitration not be registered, as well as the Claimant's responses to those correspondence.
The request, as supplemented by several letters of the Claimant between February 28 and May 27, 2003, was registered by the Centre on June 2, 2003, pursuant to Article 36(3) of the ICSID Convention, and on the same day the Acting Secretary-General, in accordance with Institution Rule 7, notified the parties of the registration and invited them to proceed to constitute an Arbitral Tribunal as soon as possible.

Constitution of the Arbitral Tribunal and Commencement of Proceeding

Following the registration of the request for arbitration by the Centre, the Claimants in a letter of June 12, 2003, proposed that the Arbitral Tribunal comprise of three arbitrators, one appointed by each party and the third, presiding, arbitrator to be appointed by the two party-appointed arbitrators, and that the Chairman of the ICSID Administrative Council be the appointing authority in the event that an appointment is not made within the proposed time limit. The Respondent accepted this proposal and as suggested by the Centre, for administrative convenience, the parties agreed to substitute the Chairman of the ICSID Administrative Council with the ICSID Secretary-General as appointing authority.
The Respondent by a letter of June 23, 2003, appointed Judge Christopher G. Weeramantry, a national of Sri Lanka, as arbitrator and the Claimant by a letter of June 24, 2003, appointed Mr. William Laurence Craig, a national of the United States of America, as arbitrator. Both arbitrators accepted their appointments in accordance with ICSID Arbitration Rule 5(3) and, as agreed by the parties, on August 22, 2003, notified the Centre of their appointment of Professor Francisco Orrego Vicuña, a national of Chile, as the presiding arbitrator.
All three arbitrators having accepted their appointments, the Centre by a letter of September 4, 2003, informed the parties of the constitution of the Tribunal, consisting of Professor Francisco Orrego Vicuña, Mr. William Laurence Craig and Judge Christopher G. Weeramantry, and that the proceeding was deemed to have commenced on that day, pursuant to ICSID Arbitration Rule 6(1).

Written and Oral Proceedings

After consulting with the parties and the Centre the Tribunal, in accordance with ICSID Arbitration Rule 13(1), scheduled a first session for November 4, 2003. The Respondent by a letter of September 11, 2003, notified the Centre that it proposed to file a submission objecting to the jurisdiction of the Centre sometime in the month of October 2003.
The first session of the Tribunal was held as scheduled on November 4, 2003, at the Peace Palace in The Hague. At that meeting, the Respondent formally filed a Memorial objecting to the jurisdiction of the Centre and by agreement of the parties, a schedule was established for the filing of other submissions on jurisdiction. Other procedural issues identified in a provisional agenda circulated by the Tribunal Secretary were also discussed and agreed. All the conclusions were reflected in the written minutes of the session, signed by the President and Secretary of the Tribunal and provided to the parties, as well as all Members of the Tribunal.
In accordance with the agreed schedule, the Claimant on January 5, 2004, filed its Counter Memorial on Jurisdiction, and on January 26, 2004, the Respondent filed its Reply, followed by the Claimant's Rejoinder on February 17, 2004. As agreed, the submissions were each filed by electronic mail and in hard copy.
Also, in accordance with the agreed schedule, the hearing on jurisdiction was held at the Peace Palace in The Hague on March 29 and 30, 2004. The parties were represented by their respective counsel who made presentations to the Tribunal and, in the case of the Respondent, Dr. Andreas Reiner presented the Respondent's arguments relating to previous ICSID decisions, in the place of Dr. Ahmed El-Kosheri, who argued the other aspects of the Respondent's case.

The following persons were present at the hearing on jurisdiction, namely:

Members of the Tribunal : Professor Francisco Orrego Vicuña, President, Mr. William Laurence Craig and Judge Christopher G. Weeramantry.

ICSID Secretariat : Mr. Ucheora O. Onwuamaegbu, Secretary of the Tribunal.

Attending on behalf of the Claimant: Mr. Hugh R. McCombs, Partner, Mayer, Brown, Rowe & Maw, Chicago; Mr. James E. Tancula, Partner, Mayer, Brown, Rowe & Maw, Houston; Mr. Michael D. Regan, Partner, Mayer, Brown, Rowe & Maw, London; Mr. Timothy Tyler, Mayer, Brown, Rowe & Maw LLP, Houston; Mr. James Fielden, Mayer, Brown, Rowe & Maw; Mr. James A. Chokey, Joy Global Inc.; and Kim R. Kodousek, Joy Global Inc.

Attending on behalf of the Respondent : Dr. Ahmed Sadek El-Kosheri, Kosheri, Rashed and Riad, Cairo; Dr. Andres Reiner, Counsel, Vienna; Counselor Hossam Abd-El Azim, President of the State Lawsuits Authority; and Counselor Osama Aboul-Kheir Mahmoud Soysal.

Transcripts were made of the hearing and provided to the parties and to Members of the Tribunal after the hearing.
Also, following the hearing, Members of the Tribunal deliberated by various means of communication.

II. Considerations

The Dispute Between the Parties.

The Abu Tartur Phosphate Mining Project (the "Project") is located in Egypt's Western Desert and is managed by IMC. The phosphate extracted is used for the production of fertilizers. The Longwall Mining System consists of equipment allowing for the use of a specialized technique for this kind of mining activity. The Contract envisaged two stages. The first concerned the partial replacement of equipment already existing at the Project site supplied by other companies ("Replacement Longwall"), while the second stage comprised a new Longwall System ("First New Longwall").
Installation of the equipment on site began in February 1999 and since the outset each party has claimed that performance problems which surfaced are to be blamed on the other. Joy Mining asserts that there were geological problems in the mine site as well as poor management of the Project by IMC, while the latter asserts that the problems arose from the malfunctioning of the equipment. As disagreements continued, independent experts were appointed and discussions held later with a committee appointed by the Minister for Industry and Technology. The Amendment Agreement resulted from these discussions and some timetables, conditions and guarantees were adjusted accordingly.
Joy Mining asserts that it is entitled to the release of the guarantees, explaining that if commissioning and testing of the equipment had been carried out in accordance with the Contract and the Amendment Agreement, both Provisional and Final Acceptance Certificates would have been issued at the latest in April and July 2003. Thereafter, the guarantees would have been released at different dates in accordance with their schedule, but ending at the latest on July 31, 2003.
IMC contends that the guarantees should remain in place until the commissioning and testing of the equipment is satisfactorily carried out and that in any event the question of performance under the Contract and connected guarantees has to be settled through a separate dispute settlement mechanism agreed to under the Contract, which will be discussed further below in connection with the objections to jurisdiction.
Joy Mining submitted the dispute to ICSID arbitration under the United Kingdom-Arab Republic of Egypt Agreement for the Promotion and Protection of Investments, in force as from February 24, 1976. The Company claims that the Contract is an investment under this Treaty and that the decisions by IMC and Egypt not to release these guarantees are in violation of the Treaty. In particular, it is claimed that nationalization or measures having an effect equivalent to expropriation have been undertaken in respect of the bank guarantees, that the free transfer of funds has been prevented, that discrimination has taken place and that, generally, fair and equitable treatment and full protection and security have not been accorded.
In addition, the Company argues that the dispute concerns also the breach of the Contract and Egyptian law, particularly the Egyptian Civil Code, because Joy Mining has not been allowed to carry out the commissioning and performance testing of the equipment, the guarantees have not been released and compensation has not been paid.
The Company seeks relief in terms that the Tribunal declare that Egypt has breached its obligations under the Treaty, the Contract and statutory duty by expropriating the investment and wrongfully depriving it of the returns on its investment and by failing to accord fair and equitable treatment and full protection and security. Damages are claimed in the amount of UK £ 2.5 million plus interest and the full value of the bank guarantees if not released. An order that Egypt releases any claims to the guarantees and arbitration costs and expenses is also requested.
The Respondent opposes all such allegations and claims and has submitted objections to jurisdiction. These objections will be discussed by the Tribunal next.

Egypt's Objections to Jurisdiction.

The Respondent has raised three objections to the jurisdiction of the Tribunal, namely:

a. The existence of a forum selection clause in the Contract should be respected with regard to all contractual claims.

b. The absence of any Treaty breaches that can be attributed to the Egyptian Government.

c. That certain conditions required under Articles 25 and 26 of the ICSID Convention and the Treaty are not fulfilled in this case, in particular the requirement of an investment.

The Company has rightly argued that it is best to consider these objections in the reverse order, that is first to establish whether or not there is an investment in this case, second whether there are Treaty claims involved or if it is purely a contractual dispute, and lastly whether the forum selection clause of the Contract should be enforced.
The Tribunal agrees with this order and will address the objections accordingly.

Objection to Jurisdiction Concerning the Existence of an Investment.

Respondent's Submissions.

The Respondent contends that the Contract is nothing but a standard recurrent supply agreement entailing the selling of equipment by the Company and its purchase by IMC, so much so that the delivery is specified as FOB UK/USA Port Basis and the price is established C&F Alexandria Port Basis. The price was paid in full by means of an irrevocable confirmed letter of credit and, therefore, the whole operation was riskfree for the Company.
It is further explained that the terms of the Contract are ordinary commercial terms and that the bank guarantees are also of the kind found in any major commercial operation. In fact, it is asserted, the bank guarantees are merely contractual obligations that cannot be legally released as long as there is a claim for failure to perform under the Contract and this has not been settled by means of the dispute resolution mechanisms of the Contract. No drawdown has been effected in connection with such guarantees and the Egyptian Government has not in any way benefited from them.
The Respondent also explains that the Project is entirely run by IMC and that it began four decades earlier. The Company's role was to supply equipment as in the case of any other seller and in fact some of this equipment came to replace earlier Russian equipment that was no longer available.
In light of the above, the Respondent argues, there is not in this case any form of investment that can meet the requirements of Article 25 of the ICSID Convention and Article 1 of the Treaty inasmuch as the absence of an investment indicates that the dispute cannot arise directly from an investment.
Responding to the Company's invocation of certain decisions of ICSID tribunals, the Respondent distinguishes CSOB8 in that there was in that case a contract clause incorporating a bilateral investment treaty that contained an ICSID clause, but nothing of the sort is found in the present case. The Respondent also argues that Fedax9 concerned credit transactions, Salini v. Morocco dealt with the construction of a highway and SGS v. Pakistan involved a public law concession, all elements non existent in the instant case.

The Claimant's Submissions.

The Company has argued in connection with this Objection to the Tribunal's jurisdiction that the Contract involved, as explained above, two phases. One was concerned with the replacement of equipment, and the second entailed the engineering, design and supply of a completely new Longwall system.
The Contract specifies, it is explained, that the Company's scope of work included, among other items, engineering and design, delivery of materials and equipment, spare parts, maintenance tools, supervision of installation, inspection, test start-up operations and commissioning, training of personnel and technical assistance. Some of these activities involved long-term commitments by the Company, such as the obligation to produce and maintain stocks of spare parts for a period of not less than ten years. Services were to be provided both in and outside Egypt and technical assistance was to last for six months.
The Company's participation in the Project, it is claimed, falls squarely within this definition as letters of guarantee are pledges, the entitlement to payment is a claim to money and the equipment and personnel involved in the Project are assets. Salini v. Morocco is invoked by the Claimant in support of its views in that a construction of a road was held to be an investment and also bank guarantees were involved; Fedax and CSOB are also invoked to the extent that financial instruments were held to qualify as investments; and SGS v. Pakistan is relied on as having recognized inspection services as an investment. Atlantic Triton is also mentioned as an example of a decision recognizing the conversion of equipment as investment.10
Several of these cases are also invoked in support of the proposition that, even if one or more activities might not be considered to be an investment, it is the overall operation that has to be taken into account, assessing the various factors globally (CSOB, Salini v. Morocco). The fact that the Company was on site for four years, the risk entailed in the termination of the Contract and the contribution made to Egypt's economic development, are all factors that in the Claimant's submission also support its qualification as an investor with a significant investment activity.

The Tribunal's Findings in Respect of the Existence of an Investment.

Objection to Jurisdiction Concerning the Absence of Treaty-based Claims.

Respondent's Submissions.

The Respondent argues that none of the three alleged breaches of the Treaty would found jurisdiction, not even if a prima facie test is applied. The first alleged breach is that the action by IMC and Egypt in respect of the bank guarantees constitutes nationalization, or a measure of equivalent effect, in violation of the Treaty. That assumes a taking of property that has not occurred. The second allegation by the Company is that there has been a wrongful retention of the sums represented by those guarantees which is in violation of the Treaty-right to the free transfer of the returns of the investment. This allegation assumes that there were assets invested capable of generating a return for the Claimant. Neither is this the case, according to the Respondent, as the Contract price was paid in full and there were no other assets or returns for the Company.
The third Treaty-based right alleged by the Company concerns fair and equitable treatment and full protection and security. But here again, the Respondent argues, there have only been some newspaper articles invoked as the basis of the claim, none of which has any probative value and these cannot imply that the Egyptian Government is involved in any form of wrongdoing against the Company.
The Respondent has also raised the connected issue that, in any event, none of the alleged actions can be attributed to the governmental authorities of Egypt as a State Party to the Treaty. This argument was first made in passing in the Respondent's Reply to the Counter-Memorial on Jurisdiction and later, at the hearing, was the subject of more particular detail and discussion, which indicated that IMC is only an operating agency for the Government in respect of mining activities. This does not differentiate it from any other commercial entity that would perform the same functions and activity. IMC actions cannot thus be attributable to the Government or constitute Treaty breaches by the Government of Egypt.

The Claimant's Submissions.

Joy Mining argues in respect of this jurisdictional objection that, in addition to the three breaches of the Treaty provisions indicated, all the contractual and statutory violations listed in the Request for Arbitration also amount to Treaty violations. Because of the "umbrella clause" included in Article 2(2) of the Treaty, any breach of Egypt's underlying obligations under the Contract also amount to breaches of the Treaty. But even if this were not so, the consent clause of the Treaty allows any contract claim to be taken to arbitration even if it does not amount to a Treaty breach.
To this end, the Claimant invokes Salini v. Morocco on the basis that the State consent was held to cover both the violations of the Treaty and any breach of a contract that binds the State directly. Similarly, the Claimant argued that Vivendi also held that jurisdiction does not require that a treaty breach be alleged because it is sufficient that the dispute relate to an investment made under the treaty.25 In the Claimant's submission, the Treaty in this case is particularly broad thus allowing any Contract breach to be brought to ICSID arbitration.
In this connection the Claimant disputes the correctness of the decision in SGS v. Pakistan to the extent that it held that jurisdiction could only include contract claims amounting at the same time to breaches of the treaty and restricted the effect of the umbrella clause in the context of that particular treaty. It submits rather that SGS v. Philippines is correct on this point because it allows for the submission to ICSID arbitration of all investment disputes, contractual or not.

The Tribunal's Findings in Respect of Contract and Treaty Based Claims.

This is not the first time that a tribunal is confronted with the issue of the difference between contract-based claims and treaty-based claims. In point of fact, this matter has been recently discussed in Lauder,26Genin,27Aguas del Aconquija,28CMS and Azurix and the Annulment Committees in Vivendi and Wena.29SGS v. Pakistan and SGS v. Philippines are two other recent instances of this discussion.

Objection to Jurisdiction Concerning the Forum Selection Clause under the Contract.

Respondent's Submissions.

The Respondent argues in this connection that the Contract includes a Forum Selection Clause which governs all claims by Joy Mining arising under the Contract, including the question of the performance and the release of the bank guarantees. This clause determines to which forum all such claims must be submitted for resolution. This was expressly consented to by the parties and must be observed. Moreover, as the Treaty was in force for twenty-two years before the execution of the Contract, if the Company had wished to include ICSID arbitration in connection with an investment it could and should have so indicated.

The Claimant's Submissions.

The Tribunal's Findings in Connection with the Forum Selection Clause.

Having concluded that there is no investment in this case and that, moreover, all the claims involved are in any event contract-based claims, it is necessary also to conclude that in the absence of any ICSID jurisdiction only the forum selection clause stands. There is no question here of either exclusive ICSID jurisdiction or of concurrent jurisdiction; even less so is there room here to adopt the solution of SGS v. Philippines, directing the parties to local courts first and suspending ICSID jurisdiction until that first step is completed.
The situation in this case is precisely that which the Vivendi Annulment Committee envisaged when holding that

"In a case where the essential basis of a claim brought before an international tribunal is a breach of contract, the tribunal will give effect to any valid choice of forum clause in the contract".40

The rationale for this conclusion on contract-based claims and the validity of forum selection clauses is entirely logical, as is the conclusion in the converse situation, that is, as in Vivendi, that the claim is treaty-based:

"...where "the fundamental basis of the claim" is a treaty laying down an independent standard by which the conduct of the parties is to be judged, the existence of an exclusive jurisdiction clause in a contract between the claimant and the respondent state or one of its subdivisions cannot operate as a bar to the application of the treaty standard".41

This conclusion, however, is not the end of the matter. The forum selection clause in the Contract does not refer the dispute solely to domestic courts, a situation which understandably is of concern to the Company, but provides in addition for a separate mechanism of international arbitration. Article 11 of the Contract provides as pertinent:

"Should the Parties fail to agree upon any or all matters in dispute, the disputed matters will be finally settled in accordance with the rules of ‘UNCITRAL' (United Nations Commission on International Trade rules and Law). The disputes shall be finally settled through arbitration under the auspices of the regional center for arbitration in Cairo after obtaining the consent of the minister of industry or to be settled through Egyptian courts".

The Company has expressed its concern about UNCITRAL arbitration in view of the fact that the approval of the Minister of Industry is required, a matter that was discussed at length in the case of SPP and finally led the French courts to set aside the award because the signature of a Minister involved in that case was held not to imply the will of the Egyptian State to become a party to the contract.42 The Respondent, however, argues that in the instant case the consent of the Minister has already been given the moment such Minister approved the Contract.
The Company has also made the argument that under the Amendment Agreement there are specific forum selection clauses for disputes concerning the release of bank guarantees. These include, in the terms of Clauses 1.7 and 2.8, arbitration and the right to "pursue other remedies". This last reference, it is argued further, includes ICSID arbitration. The Tribunal must note, however, that arbitration clauses, including ICSID clauses, need to be much more precise to be given the effect the Company attaches to those references.
The option of resorting to Egyptian courts is also precluded by the Declaration made as the obligations both to resort to arbitration and abide by its results have been solemnly recorded.

III. Decision.

In the light of the above considerations, the Tribunal decides:

a. The Centre lacks jurisdiction and the Tribunal lacks competence to consider the claims made by the Company.

b. The Tribunal notes that IMC is under the obligation to observe the Contract forum selection clause in so far as arbitration in the Cairo Regional Arbitration Centre governed by the UNCITRAL Arbitration Rules might be initiated by the Company, and to abide by any award issued in respect of this dispute.

c. The Tribunal further takes note that the approval of the Contract by the Minister of Industry constitutes the consent given by the Egyptian State for IMC to submit disputes under the Contract to UNCITRAL Arbitration and that such consent to IMC's agreement to arbitrate has been expressly confirmed by Declaration made in this arbitration by counsel on behalf of the Egyptian State.

d. The Tribunal also takes note that the Egyptian State is under an international legal obligation to facilitate the enforcement of any award issued in this case to the extent that the intervention of the State is required.

e. The Tribunal further notes that the option of submitting the Contract disputes to the Egyptian courts as provided for in the Contract forum selection clause is effectively precluded by the above mentioned Declaration if the Company initiates arbitration proceedings.

f. Each Party shall pay one half of the arbitration costs.

g. Each Party shall bear its own legal costs.

So Decided

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