The Partial Award of September 13, 2001
in the UNCITRAL Arbitration Proceedings
CME Czech Republic B.V. (The Netherlands)
v.
The Czech Republic
Legal Opinion Prepared by
Christoph Schreuer
(Professor of Law at the University of Vienna)
and
August Reinisch
(Professor of Law at the University of Vienna)
Table of Contents
Preliminary Statement
3
PART ONE: FAILURE TO APPLY THE PROPER LAW
4
1. Arbitration Agreements and Choice of Law
4
2. Types of Agreements on Applicable Law
6
3. Practice of Arbitral Tribunals
9
a. Direct Agreement on Applicable Law
11
b. The Residual Rule under the ICSID Convention
11
c. Choice of Law Clauses in BITs
15
4. Consequences of the Non-Application of the Proper Law
19
5. The Relationship of Domestic and International Law
25
6. The Partial Award of 13 September 2001
32
a. Denial of the Applicability of Czech Law
33
b. Non-Application of Decisive Elements of Czech Law
35
c. Decision ex aequo et bono by amiable compositeurs
42
7. Conclusions on the Failure to Apply the Proper Law
48
PART TWO: JOINT TORTFEASORS
49
1. The Award of the Stockholm Tribunal
49
2. General Considerations on State Responsibility
51
a. Codification of State Responsibility by the International Law Commission
51
b. Basic Principles of State Responsibility as Relevant in the Present Case
53
1.) The Rules of Attribution
53
2.) Causality/Causation
58
3. Joint and Several Liability in International Law
62
4. Conclusions on Joint Tortfeasors
65
PART THREE: RES JUDICATA AND LIS PENDENS
66
1. The Principle of res judicata and lis pendens
66
2. Res judicata as a Rule of International Law
68
3. Requirements of International res judicata
71
a. Res judicata Applicable between International Courts and Tribunals
71
b. Identity of Parties
73
1.) The “Economic Approach” to Identity of Legal Persons in International Practice 73
2.) Privity
78
c. Identity of Issues: Identity of Object (petitum) and Ground (causa petendi)
79
1.) Identical O