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Back to the published: Kyrgyzstan v. investors

Recently I have published an article concerning the issue of the competence of arbitral tribunals under the Moscow Convention on protection of the rights of the investor. Briefly the cases against Kyrgyzstan were brought before the Moscow Chamber of Commerce and Industry under article 11 of the Convention. The claimant’s reliance on the clause to find the tribunal’s competence. Kyrgyzstan asserted that article 11 of the Convention contains an ‘open offer’ and if Kyrgyzstan had accepted it the arbitration agreement would have been concluded.

Although the arbitral tribunal agreed with the claimant it is important to say a few things.

First and foremost the CIS Economic Court reversed its decision regarding the interpretation of article 11 of the Convention on 23 September 2014 (case No 01-1/1-14) . The court ruled that article 11 of the Convention applied only if party concluded an arbitration agreement. Provisions of article 11 of the Convention are not of an arbitration agreement of itself. (Currently the CIS Economic Court’s ruling is available in Russian only).

Moreover, on 23 September 2014 the Arbitrazh court of Moscow region (the court of cassation) overturned two decisions of the Moscow Arbitrazh Court (on 24 June 2014 and on 8 July 2014) regarding the revision of an arbitral tribunal’s interim award on grounds that it lacked competence.

Thus, the Moscow Arbitrazh Court will examine the issue of competence of the arbitral tribunal both in Kyrgyzstan v Lee John Bek and in Kyrgyzstan v Stans Energy Corp again and if I clear understand the Moscow Arbitrazh Court will have to apply the CIS Economic Court’s ruling dated on 23 September 2014.