Where should courts draw the line between the permissible delegation of tasks and the improper acting of the secretary as the ‘fourth arbitrator’?
Introduction
In February 2020, a new episode of the Yukos awards1 saga was revealed to the international arbitration community. Reversing the lower court’s judgment, which in 2016 annulled the US$50bn Yukos Awards, the Court of Appeal of The Hague (the ‘Court of Appeal’) issued a milestone decision that reinstated the three Yukos Awards (the ‘Awards’).
This judgment will re-start the several enforcement actions brought in the past by Yukos’ shareholders in several jurisdictions (including the United States, France, the UK, Belgium or India). The revived Awards represent the largest amount awarded in international arbitration, which explains the unprecedented attention this recent decision has brought. Yet, and beyond this general interest, the judgment also constitutes a landmark decision that resolves important legal questions under the Energy Charter Treaty (ECT) and, more generally, highly relevant matters in the field of international arbitration. Pending the cassation appeal filed by the Russian Federation with the Dutch Supreme Court, the Court of Appeal has rendered a sound decision, which the authors of this commentary anticipate is likely to be confirmed in the last instance by Dutch courts.
Part 2 of this commentary briefly contextualises the decision of the Court of Appeal and its disposition of each ground of annulment that had been originally submitted by the Russian Federation before the first instance court. Part 3 focuses on the particular issue of the (im)permissible role of secretaries acting for arbitral tribunals and the Court of Appeal’s holding under the fact-setting of the Yukos dispute. Lastly, Part 4 provides some overall conclusions and confronts the test that results from this decision with some approaches that have been suggested to address the delegation of functions to tribunal’s secretaries. It ends up with a prospective reflection inviting the arbitration community to hold a meaningful debate on this matter in future revisions of institutional rules and regulations.
International Bar Association IBA Arbitration Committee Newsletter November 2020