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Award upheld despite arbitral tribunal's refusal to reconsider its jurisdiction based on Achmea

In a recent decision(1) the Supreme Court found that an arbitral tribunal had not violated the plaintiff s right to be heard or procedural public policy. The arbitral tribunal had refused to reconsider its preliminary award on jurisdiction following the European Court of Justice s judgment in
Slowakische Republik v Achmea BV.
Facts
The dispute arose out of Spain s decision to end previously granted incentives for photovoltaic installations through the enactment of a new regulation in 2013. After this decision, 26 EU-based investors, which had made significant investments and taken the necessary steps to be able to benefit from such incentives, started arbitration proceedings against Spain based on Article 26(4)(b) of the Energy Charter Treaty (ECT), seeking damages for the violation of Article 10(1) thereof. A three-member arbitral tribunal was constituted in accordance with the United Nations Commission on International Trade Law Arbitration Rules, under the auspices ....

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Supreme Court annuls award which extended arbitration agreement to third-party subcontractor

In a recently published decision, the Supreme Court annulled a partial award on jurisdiction in which an International Chamber of Commerce arbitral tribunal in Geneva had extended the arbitration agreement to a subcontractor based on its implied consent to arbitration.(1)
Facts
As part of a project for the construction and operation of power plants in Bangladesh, the supplier subcontracted the delivery of diesel engines for one of these power plants. After the installation of these engines, numerous technical issues occurred, following which the purchasers refused to make payments under the supply contracts.
Thus, the supplier started arbitration based on the identical arbitration clauses contained in four supply contracts. The purchasers requested that the subcontractor become a party to the arbitration, which the latter refused, arguing that the arbitral tribunal lacked jurisdiction. The arbitral tribunal rejected the subcontractor s jurisdictional objection. The su ....

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