The the FCNT arbitration clause,[5] was limited

The Award is invalid, since the Tribunal lacked jurisdiction over
the dispute A or alternatively, the proceedings were tainted by
serious departure from a fundamental rule of procedure B.

A.            
The Award is invalid, since the Tribunal lacked jurisdiction

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Since a tribunal’s legitimate exercise of
power is based on the parties’ consent,1 the tribunal exceeds its powers where it acts without
their consent, i.e. absent jurisdiction.2 Lack of the tribunal’s jurisdiction constitutes excès de pouvoir,3 which amounts to a ground for annulment of an award.4

Anduchenca’s and Rukaruku’s consent, expressed in the FCNT
arbitration clause,5 was limited the “disputes
… concerning the interpretation or application of Articles 1 to 9 of the
FCNT.”6

The dispute concerning the Egart was not
related to “interpretation or application”7 of Article 7 of the FCNT, which provides
freedom of commerce and navigation between the Parties’ territories.8 Under customary rules of treaty interpretation,9 the
terms “freedom of commerce and navigation” must be interpreted together10
in their context and in the light of the object and purpose of the FCNT, which
constitutes encouragement of “mutually beneficial trade and investment…”11

Thus, the provision on freedom of commerce and navigation in the
FCNT concerns only navigation for commercial purposes, rather than collecting data for non-commercial
purposes 12 in naval operations13 by
such AUVs as the Egart.14

Since the Egart is neither a commercial vessel, nor was it navigating
for commercial purposes, its operation is outside the Article 7 and the dispute
did not concern interpretation or application of Article 7. Therefore, the
Tribunal manifestly lacked over the dispute and the Award is to be annulled.

B. Alternatively, the Award is invalid on the ground of
serious departure from fundamental rules of procedure

Under customary international law,
serious departure from fundamental rules of procedure forms a ground for
invalidity and annulment of arbitral awards.15 The arbitral proceedings were in
violation of multiple fundamental
rules of procedure, including engagement in ex parte communications with Rukaruku (1), the Tribunal’s improper constitution (2),16 Judge Moyet’s partiality (3)17 and the Tribunal’s obligation to decide the case personally (4).18

1.         
Judge Moyet breached
the obligation to refrain from ex
parte communications

Prohibition of secret communications concerning the arbitration
between a party and an arbitrator, i.e. ex parte communications 19 is a basic
requirement of procedural fairness,20
reflected in various institutional rules21
as well as in codes of arbitrator ethics.22
Where the ex parte communications nevertheless occurred, the remedial
action to restore credibility and integrity of arbitral proceedings must be
taken.23 This was the case in Croatia
and Slovenia, where the transcripts of the
conversations between the arbitrator of Slovenian nationality and Slovenia’s
Agent were revealed during the proceedings. In
these conversations, the arbitrator agreed to bring to the attention of other
arbitrators the arguments of Slovenia.24
The Court admitted that the communications amounted to a violation of due
process, however, it was the consequences of this violation what was disputed.25
The tribunal was recomposed,26 the
communications and documents were transmitted to the Parties,27 thus the
remedial action was taken and the procedural balance between the Parties was
secured.28

However, in the present case similar ex parte
communications29 between Judge Moyet and
Rukaruku’s counsel were disclosed only after
the Award was rendered,30 when it was impossible to
remedy the injustice caused to Anduchenca. Since Rukaruku and the Tribunal
violated the fundamental principle of procedural fairness and irreversibly
compromised the arbitral proceedings, the Award, rendered by a non-impartial Tribunal,
is invalid.

2.         
The Tribunal was improperly constituted

The Tribunal was constituted contrary to the Parties’
agreement (a) and the ICJ judges were precluded from acting as
arbitrators (b).

a.              
The
Tribunal was constituted contrary to the Parties’ agreement

In order to ensure fair and equal trial the arbitral
tribunal must be constituted under the parties’ agreement.31 The Parties agreed that the Tribunal shall consist of two party-appointed
arbitrators and the presiding arbitrator nominated by mutual consent of two
other arbitrators, and if fewer than three arbitrators were appointed, the ICJ
President must appoint “the arbitrators not yet appointed.”32

Under customary international law, arbitrators choose
the presiding arbitrator by mutual consent.33 In the Interpretation of Peace Treaties, one party similarly
refused to appoint an arbitrator34 and the appointing authority was asked to select the remaining
arbitrators.35 The Court
noted that the appointing authority nominates the presiding arbitrator only
after the two arbitrators have been selected and failed to appoint the third
member jointly.36 Unless the parties agreed otherwise, there is no reason to suppose they
wished to depart from “the normal order” of arbitration practice.37 Furthermore, an appointing authority cannot nominate himself as an
arbitrator, since the Parties’ agreement does not expressly stipulate it38 and thus it contradicts to the Parties’ intent. 

Under customary rules of treaty interpretation,39 the
rules of appointment in Article 10 must be interpreted in their context meaning
that the ICJ President only appoints the “party-appointed arbitrators”, which,
in their turn, shall choose the presiding arbitrator by mutual consent. Alice
Bacal appointed Judge Tong on behalf of Anduchenca and, at the same time,
contrary to the Parties’ intent,40 nominated herself as the presiding arbitrator,41 depriving newly appointed arbitrators of an opportunity to choose the
presiding arbitrator as stipulated
by Article 10.

Hence, the Tribunal was constituted contrary to the
arbitration clause.

b.             
Two ICJ
judges were prohibited from acting as arbitrators

              Under
Article 16 of the ICJ Statute “no member of the Court may exercise any
political or administrative function, or engage in any other occupation of a
professional nature,”42
thus the ICJ judges are precluded from acting as arbitrators. Particularly, they
cannot act as arbitrators in cases, which prima facie may be
submitted to the Court.43

Judge Bhrasht Moyet was elected to the Court in 2008, and
Alice Bacal was the ICJ President at the time of constitution of the Tribunal.44 Under Article 10 the dispute between Anduchenca and Rukaruku could be
submitted to the Court.45 Therefore, two ICJ judges
could not have been appointed as the arbitrators in a dispute under FCNT.

3. Judge
Moyet’s previous relations with Rukaruku violate the principle of impartiality
and independence

Arbitrators’ impartiality and independence is a
fundamental principle of international law and an essential principle to the
arbitral proceedings.46

The standard for the arbitrator’s impartiality and
independence, applicable in interstate arbitral proceedings, is “justifiable
doubts.”47 Doubts are justifiable “if a reasonable third person”
who knew the case, concludes “that the arbitrator may be influenced by factors
other than the merits of the case.”48 Consistent reappointment by the party of an arbitrator in their
previous relations gives rise to justifiable doubts in his impartiality and
independence.49

Rukaruku had appointed Judge Moyet as an arbitrator in
four investment-state arbitrations before the dispute under FCNT.50

These previous appointments lead to justifiable doubts
as to51 Judge Moyet’s impartiality and independence, thus violating
the principle of impartiality and independence, being a ground for invalidity
of the Award.

4. The Tribunal failed to decide the case personally,
without delegation

Arbitrators are obliged to decide on the case intuitu
personae, without delegation to third parties,52 and materially
participate in the award’s drafting.53 In case of appointing assistants, the tribunal is obliged to inform the
parties about this intent.54 A tribunal may only use assistant’s help to the extent essential
decision-making functions are not delegated.55 An assistant cannot write a substantive part of the award56 and cannot perform arbitrator’s functions or participate in resolving the
dispute.57

The Tribunal hired an assistant Mikkel Orvindari,
without disclosing this fact to the Parties.58 Mr. Orvindaru spent nine times more hours on the case than any of the
arbitrators did.59 He drafted the full Award,60 while the arbitrators signed it without editing.61 Since the Tribunal delegated its functions to the assistant, it
violated the fundamental obligation to resolve the case personally.

A chain of irregularities that occurred during the
arbitral proceedings, i.e. the Tribunal’s improper constitution, lack of
impartiality of the arbitrator and his engagement in ex parte communications with Rukaruku, the Tribunal’s violation of
the obligation to decide the case personally, constitute the gross violation of
fundamental rules of procedure.

Therefore, the Award, rendered by the Tribunal, is invalid.

1 Status
of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. (Ser. B) No. 5,
27; Ambatielos case (Greece v. UK), Merits, Judgment, 1953 I.C.J. 10,
19; I.L.C., Commentary on the Draft
Convention on Arbitral Procedure, U.N.Doc. A/CN.4/92, 9 (1955) “I.L.C. Commentary”.

2 CDC
Group v. Seychelles, Decision on Annulment, 2005 I.C.S.I.D., No.
ARB/02/14237, ¶40.

3 Azurix
Corp. v. Argentina, Decision on Annulment, 2009 I.C.S.I.D., No. ARB/01/12,
¶45.

4 Arbitral Award of 31 July 1989
(Guinea-Bissau v. Senegal), Judgment, 1991
I.C.J. 53, ¶47; Abyei
Arbitration (The Government of Sudan/The Sudan People’s Liberation
Movement/Army), Award, P.C.A., 2008-07, ¶412 “Abyei”;
I.L.C. Commentary, n1, 106.

5 FNCT,
art. 10.

6 Id.

7 Application of the International Convention
on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia),
Preliminary Objections, Judgment, 2011 I.C.J. 70, ¶30; The South China Sea Arbitration (The Republic of
Philippines v. The People’s Republic of China), Award on Jurisdiction and Admissibility, P.C.A., 2013-19, ¶148.

8 FNCT,
art.7.

9 Oil Platforms (Islamic Republic of Iran v. USA), Preliminary
Objection, Judgment, 1996 1.C.J. 803, ¶23 “Oil Platforms-1996”.

10 Oscar
Chinn (UK v. Belgium), 1934 P.C.I.J. (Ser. A/B) No. 63, 83.

11 FCNT,
preamble.

12 Facts,
¶23.

13 Id., ¶¶13, 17.

14 Id., ¶17.

15 I.L.C. Commentary,
n1, 7-8; David Caron, The Nature of the Iran-United States Tribunal
and the Evolving Structure of International Dispute Resolution, 84 Am. J.
Int’l L. 104, 113 (1990).

16 Gary Born, International Commercial
Arbitration, 1654–1662 (2014).

17 I.L.C. Commentary, n1, 110.

18
Constantine Partasides, Fourth Arbitrator? The Role of Secretaries to
Tribunals in International Arbitration, 18 Arb. Int’l 147 (2002).

19 Abyei, n4, ¶453;
International Bar Association, Guidelines on Party Representation in
International Arbitration, 3, 6 (2013), available at: https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx
“Representation Guidelines”.

20 Born, n16,
2226.

21 London Court of International Arbitration, LCIA Arbitration Rules, art.13(4)
(2014), available at: http://www.lcia.org/dispute_resolution_services/lcia-arbitration-rules2014.aspx#Article%2013;
U.N.C.T.R.A.L., Model Law on
International Commercial Arbitration, with Amendments, art.24(3) (2006).

22 Representation Guidelines, n19, 6; International Bar
Association, Rules of Ethics for International Arbitrators, art.5
(1987), available at:
https://www.trans-lex.org/701100; American Arbitration Association/American Bar
Association, The Code of Ethics for Arbitrators in Commercial Disputes,
Canon III (1977), available at: https://www.americanbar.org/groups/dispute_resolution/resources/Ethics/Code_Ethics_Com_Arb_Ann.html.

23 Arbitration
Between the Republic of Croatia and the Republic of Slovenia, Partial Award, P.C.A., 2012-04, ¶178.

24 Id.,
¶77.

25 Id., ¶¶175-176.

26 Id., ¶¶184-186.

27 Id.,
¶¶53, 55.

28 Id.,
¶¶194-195.

29 Facts,
¶31.

30 Id.,
¶¶26, 30-31.

31 Born, n16, 1654–1662.

32 Id.

33 U.N. Systematic Survey of Treaties for the Pacific Settlement of
International Disputes 1928-1948, ¶¶18-19,23,42 (1949); I.L.C. Commentary, n1, 23; Hague
Convention on Pacific Settlement of International Disputes, 205 C.T.S. 233,
art.45 (1907).

34 Interpretation
of Peace Treaties, Advisory Opinion, 1950 I.C.J. 221, 227.

35 Id.

36 Id.;
I.L.C., Model Rules on Arbitral Procedure
with a general commentary, Y.B.I.L.C., Vol. II, art.3 (1958).

37 Id.

38 FCNT,
art.10.

39 Oil Platforms-1996, n9, ¶23.

40 FCNT,
art.10.

41 Facts, ¶22.

42 Statute of the ICJ, 33 U.N.T.S. 933, art. 16(1) (1945).

43 The Statute of the
International Court of Justice: A Commentary, 363, 366 (Andreas Zimmermann et al. eds., 2012); Digest
of Decisions in Application of the Statute and Rules, 8 I.C.J.Y.B. 95,96
(1953-1954).

44 Facts, ¶¶21-22.

45 FCNT, art.10.

46 Karin Oellers-Frahm, International Courts and
Tribunals, Judges and Arbitrators, Max
Planck Encyclopedia of Public International Law (2013); I.L.C. Commentary, n1, 55-56,110;
U.N. Basic Principles on the Independence of the Judiciary, U.N.Doc. A/CONF.121/22/Rev.1, principles 2,6
(1985); Chagos Marine Protected Area Arbitration (Mauritius v.
UK), Reasoned Decision on Challenge, P.C.A., 2011-03, ¶¶27,138 “Challenge
to Greenwood”.

47
Challenge to Greenwood, n46, ¶151; Iran-U.S.
Claims tribunal Reports, Vol. 38, 43 (Karen Lee ed., 2010); ICS
Inspection and Control Services Limited (UK) v. Argentina, Decision on
Challenge to Arbitrator, P.C.A, 2010-9, ¶2.

48
International Bar Association, Guidelines on Conflicts of Interest in
International Arbitration, 5 (2014),
available at: https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx
“Guidelines on Conflict of Interest”; Perenco Ecuador Ltd. v.
Republic of Ecuador and Empresa Estatal Petróleos del Ecuador, Decision on
Challenge to Arbitrator, P.C.A., IR-2009/1, 4,43 “PetroEcuador”.

49 Challenge
to Greenwood, n46, ¶136; Guidelines on Conflict of Interest, n48,
3.1.3; Matthias Scherer, New Case Law from Austria, Switzerland and Germany
Regarding the IBA Guidelines on Conflicts of Interest in International
Arbitration, 5 Transnat’l Disp. Mgmt., 2-4 (2008) citing Vienna
Commercial Court, Case No.16 Nc 2/07w (2007).

50 Facts, ¶21.

51
PetroEcuador, n48, 11.

52
Partasides, n18, 147; Young ICCA Guide on Arbitral Secretaries,
International Council for Commercial Arbitration, The ICCA Reports No.1,
art.1(4) (2014) “ICCA Guide”.

53 Jeffrey
Waincymer, Procedure and Evidence in International Arbitration, 444-445
(2012).

54 ICCA Guide, n52, art.1(4).

55 Compañía de Aguas del
Aconquija S.A., Vivendi Universal v. Argentina, Award, 2000 I.C.S.I.D., No. ARB/97/3,
1.4.3.

56 Id., ¶7; White & Case, International Arbitration Survey: Current and
Preferred Practices in the Arbitral Process, 12 (2012), available at: http://www.arbitration.qmul.ac.uk/docs/164483.pdf.

57 Born, n16, 2000, 2043, 2045; Veteran
Petroleum Limited (Cyprus) v. Russia, Writ of summons Russia, 2015 P.C.A.,
AA228, 506, 509; Iran-United States
Claims Tribunal Reports, Vol.27, 291-336 (J. C. Adlam ed., 1992).

58 Facts, ¶32.

59 Id.

60 Id.

61 Id., ¶33.

x

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