ICSID 중재규칙상 예비항변 관련 최근 중재판정 및 개정 규칙의 검토 - ICSID Case No. ARB/21/26을 중심으로

Abstract

ICSID introduced a preliminary objections system through Article 41, Paragraph 5 of the 2006 ICSID Arbitration Rules to dismiss investment arbitration applications that manifest lack of legal merit at the beginning of the case. In the 15 years since this provision was established, 46 prelinary objectionss have been filed, and 9 to 12 of them have been fully or partially adopted. This system played a role in enhancing the efficiency of investment arbitration and preventing damage such as loss of time and money by the investing country due to abuse of applications. However, there was a risk that the preliminary objections system could cause unfairness, such as undermining the procedural justice of arbitration or being applied in favor of the respondent. Problems such as procedural delay caused by the preliminary objections system were also exposed in the actual investment arbitration practice. Accordingly, the amended ICSID Arbitration Rules came into force on July 1, 2022, and in 2022 the ICSID Arbitration Rules, Article 41 under Chapter VI “Special Procedures” of the Arbitration Rules, titled “manifest lack of legal merit” has been stipulated as a independent provision. This paper reviews the provision of preliminary objections in the 2022 ICSID Arbitration Rules and seeks the development direction of the preliminary objections system. The core of this amendment is the setting of the arbitral tribunal's time limit for determining the preliminary objections and the specification of the scope of application of the preliminary objections. Future tasks include specifying the manifest lack of Legal merits, introducing an objection system against the decision of the preliminary objections, and seeking the cost burden for the abuse of the preliminary objections. In addition, the recent arbitral award related to the preliminary objections, ‘ICSID Case No. ARB/21/26’ was reviewed. The dispute arose as a result of regulatory actions taken by Respondents in relation to wind energy regimes that were allegedly affecting the Ireland Claimants’ wind energy projects in Germany, resulting in loss of investment. Respondent’s position is that the request for arbitration in this case clearly has no legal merits based on Article 41(5) of the 2006 ICSID Arbitration Rules. Respondent argues that the arbitral tribunal's jurisdiction in this case is manifestly lacking on the grounds that the relevant parts of Article 26 of the ECT are incompatible with EU treaties. Claimants asserts that the arbitral tribunal in this case has jurisdiction under Article 26 of the ECT (Dispute Settlement Clause) in combination with Article 25 (Jurisdiction Clause) of the ICSID Convention. The Arbitral Tribunal in this case dismissed the respondent's preliminary objections, acknowledging that although there is a dispute between the parties regarding the compatibility of Article 26 of the ECT and the EU Treaty related to the parties to the current claim, the two may be compatible. The key to the preliminary objections in this case is whether the arbitral tribunal has jurisdiction. Although the text of Article 41(5) of the 2006 ICSID Arbitration Rules does not mention jurisdiction as a subject of a preliminary objections, the interpretation that the provision allows a preliminary objections for lack of jurisdiction is reasonable because there is no justifiable ground to exclude such a defense. However, the amended ICSID Arbitration Rules legislatively resolved the lack of jurisdiction in Article 41 by specifying it as a subject of preliminary objections. In investment arbitration, the preliminary objections system is an important legal principle that the parties face in the early stage of the case, so it is necessary to pay close attention to the change of the ICSID Arbitration Rules.