Reaction Paper On The International Arbitration, Investment Arbitration, and The Case of Fraport AG v. Republic of The Philippines
Reaction Paper On The International Arbitration, Investment Arbitration, and The Case of Fraport AG v. Republic of The Philippines
Reaction Paper On The International Arbitration, Investment Arbitration, and The Case of Fraport AG v. Republic of The Philippines
3A 2020
Ateneo Law School
Reaction paper on the International Arbitration, Investment Arbitration, and the case of
Fraport AG v. Republic of the Philippines
The fourth set of readings focused on the International Arbitration and Investment Arbitration. In
this reaction paper, I shall discuss the contradiction of International Law as a law in the
application of arbitral awards to a local state, the Vested Rights Doctrine as applied in Private
International Law and lastly the Arbitral award in the case of Fraport vs. Philippines specifically
my objection to the discussion of the ADL – a special penal law – in an international arbitral
tribunal.
Even in the case discussed by the speakers with the agreement of Philippines with China regarding
the dam construction, where the project shall be performed in the Philippines but the seat of
arbitration is in Beijing China and the governing laws to be applied are the laws of China. In any
decisions regarding the dispute within the agreement, enforcing it will still be questionable. Will
the imposition of the Chinese laws in the Philippines violate the Philippine’s sovereignty? Will the
decision of the arbitral tribunal be judicially enforced in the Philippines if the local courts cannot
rule upon the governing laws of China?
Unless therefor there is a local legislation that supports the enforcement of international arbitral
awards, judicial enforcement of it may fall upon deaf ears. The local judicial system may simply
disregard the award even if it has consent of all the parties if there is no legal basis to enforce the
award. Ultimately therefor, its enforcement will rely most likely with the performance in good
faith of the parties – an obligation that can be difficult to impose when the other party is a state
whose sovereignty is supreme in its territory.
The Arbitral Tribunal is not qualified to determine whether ADL is present or not
In the case of Fraport v. Philippines, the arbitral tribunal should not have labored itself in
discussing the ADL when such is a special penal law of a local state. It should be beyond the scope
to which international tribunals can resolve. Arbitral Tribunals are usually preferred as the
arbitrators are usually well-experienced of the field and provides great help since the expertise
shall speed up the proceedings. However, in criminal cases prosecuted in the local state, there
should be nothing and no-one else more experienced, more adept, and more qualified than the
Courts and the Judicial System of the local state. The award of the international tribunal has no
De Jesus, Mark William B.
3A 2020
Ateneo Law School
weight in effect in touching upon the ADL as its decision cannot be binding through the Local
Courts.
Even with the consent of the state, the award simply does not bear any weight as enforcing the
award with regard to the determination of the ADL is futile. The local courts will most likely
dismiss, if not recognize, the award since the arbitrators are in no position to sit on the such
determination of facts and law to be applied.