In accordance with Article 17, paragraph 1, of the OIC Investment Agreement, the parties to the dispute may agree to seek to settle their dispute through arbitration. If the parties to the dispute do not reach an agreement or do not agree to arbitration after conciliation, they may initiate arbitration. Article 1505,4 was incorporated into the French Code of Civil Procedure in 2011 in order to incorporate and extend the principles set out in the court of cassation`s decision. The article provides that, unless otherwise agreed, there is a French support judge not only for international arbitrations based in France, which are subject to French law or French jurisdiction by agreement of the parties, but also for any arbitration in which „one of the parties is exposed to the risk of denial of justice“. These decisions are part of the wider European context of mistrust of investment arbitration. France joined the majority of EU member states in terminating its intra-EU investment agreements, calling for the creation of a permanent international investment court and proposing a limitation of the judicial and material scope of the Energy Charter Treaty. At the end of March 2021, the French Minister of Foreign Trade reportedly declared that France no longer wanted „private arbitration“ in its future agreements. [16] IA investigation: „While another lawsuit is being filed against Libya under the OIC Investment Agreement, the government is going to court to try to block the arbitration activated by the PCA under the Treaty“ of 13. January 2019; see also IA Investigation: „An Update on Investors` Requests for Arbitration under the Investment Treaty of the Organization of Islamic Cooperation“ of 15 August 2018; see also Hamid Gharavi, „Cocorico! The French approach to the OIC treaty is giving rise to protests“, as of February 21, 2020.

(a) any agreement on the contract concluded between all the parties in connection with the conclusion of the contract; [14] IA investigation: „While another lawsuit is being filed against Libya under the OIC Investment Agreement, the government is going to court to try to block the arbitration eligible for the PCA under the contract“ of January 13, 2019. [9] IA Investigation: „Four previously confidential claims under the OIC Investment Agreement are discovered as controversy over the use of the contract in arbitration continues,“ dated May 16, 2019. (a) any subsequent agreement between the parties on the interpretation of the contract or the application of its provisions; (a) If, at the end of their conciliation proceedings, both parties to the dispute do not reach an agreement, or if the arbitrator is unable to submit his report within the prescribed time limit, or if both parties do not accept the solutions proposed therein, either party shall have the right to apply to the arbitral tribunal for a final decision on the dispute. The OIC Investment Agreement was signed in 1981 and is said to have been ratified by 29 OIC Member States (the Member States). The Agreement provides a legal framework for the promotion and protection of investments made by investors from Member States in the territory of other Member States. However, the OIC has never established its own body to handle disputes over OIC investment treaties, and most Member States are parties to other investment protection instruments (e.B. BIT, ICSID Conventions). To overcome the failures of the OIC Secretary General, investors instead returned to the Secretary General of the Permanent Court of Arbitration („PCA“) to form the arbitral tribunal. The PCA „did so on the grounds that the most-favoured-nation clause in the OIC Agreement allowed the claimant to enter into another investment agreement – an agreement that provides the UNCITRAL arbitration rules and thus a pillar for the PCA to designate an appointing authority to base its application on the most-favoured-nation clause of the OIC Investment Agreement.“ [16] (b) any subsequent practice in the application of the contract that establishes the agreement of the parties on its interpretation; The Court also based its decision on the fact that there was a „weak“ link between the arbitration and France, since the arbitration clause provided that any disagreements between the arbitrators appointed by the party, including with regard to the appointment of the President of the Tribunal, were to be decided by the President of the ICC, a body based in Paris. [5] Hesham TM Al Warraq v. Republic of Indonesia, OIC, Arbitral Award on the Defendant`s Preliminary Objections to jurisdiction and admissibility of claims, 21 June 2012, paragraph 49.

The main conclusions of the three most recent decisions are as follows. The arbitral tribunal therefore had to consider whether Article 17 of the OIC Investment Convention contained the consent of a Contracting State to settle disputes with an individual. Background: The case concerned a single investor, K, and an OIC Member State, D. In order to assert investment claims against D under the OIC Convention, K requested that arbitration be commenced against D in accordance with Article 17(2) of the OIC Convention. Article 17,2(2) allows recourse to arbitration in the event that the parties to the dispute are unable to resolve their dispute. It is important to note that the possibility of arbitration exists only until the establishment of a „dispute settlement body under the Convention“ within the meaning of Article 17 of the OIC Convention, which, once established, has exclusive jurisdiction to deal with investor-state disputes under the OIC Convention. For the avoidance of doubt, no such „body“ has been set up so far. With regard to the formation of an OIC Tribunal in the meantime, Article 17(2) of the OIC Convention requires the parties to refer any late appointment to the OIC Secretary General. In this context, it is important to note that, in the past, the Secretary-General of the OIC has regularly failed in his functions for the standard designation referred to in Article 17, paragraph 2. On behalf of Trasta, an energy company from the United Arab Emirates, in its dispute over the OIC contract with Libya, our law firm decided to first ask the OIC for the appointment of a co-arbitrator, as provided for in the contract, before appealing to the French courts. As in other OIC cases, Libya has not appointed a co-arbitrator and the OIC Secretariat has not taken any action, even after a number of requests.

In our view, the Paris Court has interpreted the most-favoured-nation clause contained in Article 8 of the OIC Agreement unnecessarily narrowly, in circumstances where the appointment of a functional tribunal is most likely thwarted by the inaction of the office of OIC Secretary General for the non-appointment of appointments and the questionable curial jurisdiction of any municipal court in OIC arbitration. which is usually relocated. In the present proceedings, K could not have realistically used the French courts as a court of curie, since Paris had been designated as the seat of arbitration by a court which was subsequently declared invalid. It is unlikely that the tribunals of the headquarters of the OIC Secretary-General, even if they are competent, will deal with cases in the event of default of the OIC Secretary-General. The only remaining wild card: Article 1505.04 of the French Code of Civil Procedure, which allows a French support judge to intervene in any national or international arbitration (even if the arbitration in question is not related to France) if „one of the parties risks being denied justice“. This mechanism has already been used once to facilitate the appointment of a co-arbitrator for Libya, where Libya itself and the OIC Secretary General do so in Trasta Energy Limited v. .