CL-2025-000046 - [2025] EWHC 1738 (Comm)

I have mentioned above that the Arbitration which is the subject matter of this Arbitration Claim was commenced on 2 February 2022 by the Mauritian Companies represented by Gibson Dunn & Crutcher.

By the Tribunal’s Terms of Appointment dated 6 September 2022 and signed by the Tribunal and by the Parties, the Tribunal settled the scope of the reference and other procedural matters. It identified (at paragraph 1) the Parties to the BIT-2 Arbitration, the representatives of the Parties and their legal representatives. In the case of the Mauritian Companies their representatives were identified (by name) as the US directors of the Mauritian Companies and their legal representatives were identified as being Gibson Dunn. Paragraph 4 of the same Terms of Appointment provided for the Tribunal to withhold approval of any intended change or addition to representation. Paragraph 4.2 provided that the Tribunal may exclude the participation of a representative “where their participation might create a conflict of interest or for other compelling reason”.

On the basis of the Administration Orders, the Administrator sought to terminate the mandate of Gibson Dunn & Crutcher as the legal representative of the Mauritian Companies in the BIT-2 Arbitration,and requested the Tribunal to suspend the BIT-2 Arbitration, contending that Gibson Dunn had no authority to act on behalf of the Mauritian Companies. I have been told that this led to extensive correspondence and written and oral submissions before the Tribunal on the disputed issue of whether Gibson Dunn & Crutcher was entitled to continue to act on behalf of the Mauritian Companies or whether the Administrator was to be recognised as their representative pursuant to the Administration Orders.

By Procedural Order No.6 dated 3 January 2025 (“PO6”) the Tribunal ruled on that issue. The Tribunal, by a majority, (i) declined to recognise the authority of the Administrator for the purposes of the BIT-2 Arbitration; (ii) declined to recognise his purported termination of the powers of attorney given to Gibson Dunn & Crutcher to represent the Mauritian Companies in the BIT-2 Arbitration; and (iii) continued to recognise that Gibson Dunn & Crutcher remained the authorised representative of the Mauritian Companies in the BIT-2 Arbitration. The reasoning of the majority was extensive. It spans paragraphs 139-227 of PO6.

In the light of certain of the submissions made to me on this hearing it is necessary to note some parts of the Tribunal’s reasoning.

The Tribunal considered the “applicable rules and standards” at paragraphs 139- 143. At paragraph 139 the Tribunal noted that its authority and mandate were derived from the Treaty, namely, the Agreement dated 4 September 1998 between Mauritius and India for the protection of investments. The Tribunal was therefore bound to apply international law and the 1976 UNCITRAL Rules. At paragraph 140 the Tribunal noted that, pursuant to its Terms of Reference and article 15(1) of the UNCITRAL Rules, in the absence of an agreement or specific provision in the UNCITRAL Rules, the Tribunal “shall apply the rules it deems appropriate in the circumstances”. Thus the Tribunal appeared to have a discretion as to the rules which it applied (in the absence of an agreement or specific provision). At paragraph 142 the Tribunal noted that because the Tribunal was seated in London the Tribunal was also bound to consider the provisions of the Arbitration Act 1996, in particular, sections 68, 33 and 34. The Tribunal concluded in paragraph 143 as follows:

“Consequently, the Tribunal must decide the issue of Claimants’ representation by considering international law, the 1976 UNCITRAL Rules, the Terms of Appointment, and the EAA. The question for this Tribunal is therefore not restricted to determining whether under the law of Mauritius, which is the place of incorporation of Claimants, Mr. Thacoor is the representative or the administrator of Claimants. This is the perspective of, and the law applied by, the courts of Mauritius. The issue before this Tribunal is whether under international law, the 1976 UNCITRAL Rules, the Terms of Appointment, and the EAA this Tribunal must recognize, for purposes of this arbitration, the decision of Mauritian courts pursuant to which Mr. Thacoor has been appointed as representative of Claimants. In its decision the Tribunal may not ignore the decisions of the courts of Mauritius, but is not bound to blindly or automatically apply and recognize such decisions without considering the laws and rules that govern this arbitration.”

At paragraphs 144-148 the Tribunal considered its power under international law and concluded at paragraph 148 as follows:

“Therefore, in order to decide whether Mr. Thacoor—and the counsel appointed by him—can be recognized as the representatives of Claimants in this arbitration, the Tribunal must consider, on the one hand, the status of the proceedings in Mauritius and, on the other hand, whether the recognition of Mr. Thacoor and the counsel appointed by him in this arbitration would affect the fairness and integrity of the proceedings or whether there are “other compelling reasons” to support their exclusion. As part of such “other compelling reasons,” or as a stand-alone basis, the Tribunal must also consider the right of Claimants to have a full opportunity to present their case in conditions equal to those of Respondent.”

At paragraphs 149-164 the Tribunal considered its powers under English law. The Tribunal noted at paragraph 150 that:

“neither in the 1976 UNCITRAL Rules nor in the Terms of Appointment or the EAA is there an express renvoi to the laws of incorporation of a Party to determine who can represent it in the arbitration, nor is there a clear duty of the Tribunal to apply or recognize the laws of the place of incorporation and decisions made by the courts of that place.”

I understand that that relates to what was stated in paragraph 140 of PO6 (see above) such that the Tribunal had a discretion as to the rules it deemed appropriate to apply. The Tribunal considered that the English conflict of law rules could provide “valuable guidance for the Tribunal”; see paragraph 151. The Tribunal went on to consider English conflict of law rules which addressed the impact of foreign insolvency proceedings and recognition of decisions of foreign courts by English courts, in the instant case the Administration Orders. The Tribunal did so between paragraphs 152 and 163 and noted in particular that compliance with English public policy was relevant. That included “fundamental rule of law demands” and natural justice. At paragraph 164 the Tribunal concluded as follows:

“In sum, to recognize the Appointment Orders and, consequently, Mr. Thacoor as Claimants’ representative in the course of this international arbitration seated in London, the Tribunal should verify that none of the above-referenced concerns are present in this case.

At paragraphs 165-211 the Tribunal applied the applicable rules and standards to the facts of the case. At paragraph 165 the Tribunal stated its conclusion in these terms:

“Considering the standards of international law, the 1976 UNICTRAL Rules, the Terms of Appointment, the EAA, and the English conflict-of-laws rules described in the previous section, the Tribunal finds, for the exclusive purposes of this arbitration, and with the information available at this stage, that it cannot recognize Mr. Thacoor as the representative of Claimants as per the Appointment Orders.”

The Tribunal’s first reason for so concluding was that the Administration Orders were in issue in Mauritius and that a final decision may take 2-3 years; see paragraph 169. However, the tribunal went on to say in paragraph 170 that the Administration Orders and Mr. Thacoor’s conduct raised fundamental rule of law concerns which would impact not only on the recognition of those orders “when and if they become final” but also affect “the Claimants’ rights under the Treaty to have access to arbitration” and to have the Tribunal adjudicate “the Claimants’ claim on the merits”. The Tribunal said at paragraph 171 that these rule of law concerns constituted “compelling reasons” in the sense of section 4(2) of the Terms of Appointment to continue to recognise Gibson Dunn and Crutcher as the Claimant’s representative for the purposes of the Arbitration.

The Tribunal then explained what those concerns were.

The procedure by which the Administration Orders were issued is discussed between paragraphs 172 and 191. At paragraph 192-3 the Tribunal concluded as follows:

“192.

In sum, the Tribunal has serious concerns that the Appointment Orders that are being litigated in Mauritius contravene basic notions of due process under international law and English notions of substantive justice, such as the right to be heard and present one’s case and the right to receive a reasoned decision, and hence “fall short of the guarantee to a fair trial” under English law and international law standards.

193.

These are additional reasons for the Tribunal to be reluctant at this stage to recognize the appointment of Mr. Thacoor in this arbitration based on the Appointment Orders and to accept all acts Mr. Thacoor has taken in the name of Claimants. This includes terminating the power of attorney of Gibson Dunn that validly had been given to them at the start of the present arbitration, which, consequently, continues to be valid.”

Mr. Thacoor’s conduct in the Arbitration is discussed between paragraphs 194 and 210. At paragraph 211 the Tribunal concluded as follows:

“In sum, Mr. Thacoor’s conduct with regard to this proceeding confirms that the validity and finality of the Administrative Orders remains in dispute. Likewise, it confirms that he would have liked this Tribunal to change course depending on the stage of the ongoing litigation in Mauritius. His appointment as administrator of Claimants, still in dispute, cannot be viewed as pursuing the interest of Claimants to pursue their claims in this arbitration and have them adjudicated under the Treaty.”

In stating its conclusion on the issue of representation the Tribunal said this:

“224.

With the present decision, the Tribunal declines to recognize Mr. Thacoor’s appointment as representative of Claimants in the present arbitration because the validity and finality of the Appointment Orders are still in dispute in the courts of Mauritius. The Tribunal must add that even if they were final and binding, the proceedings in Mauritius related to the Appointment Orders, so far, raise serious concerns under international standards of due process and the rule of law.

225.

There is a possibility, of course, once all proceedings in Mauritius have come to an end, and the matter is final and binding also from the perspective of the Mauritian order, and in case the Tribunal were to reconfirm its position on the issue of representation in the present decision in the event of a change in the status quo, that this may result in a difference between how the representation of Claimants is dealt with from the perspective of Mauritian courts and how it is dealt with by other decision-making bodies that are not under the sovereignty of Mauritius and jurisdiction of Mauritian, such as this Tribunal.

226.

However, on the one hand, the Tribunal cannot simply suspend the arbitration for years waiting for a final and binding decision by the Mauritian courts. And, on the other hand, any such differences in outcome are nothing remarkable, but an every-day occurrence in transborder affairs, whether commercial or otherwise, and the conflicts-of-law situations they raise. It is a fact of the global legal reality that different legal orders look at the same issue differently and at times may reach conflicting positions. Against this background, the decision not to recognize Mr. Thacoor’s appointment at this stage is merely a consequence of a world in which different legal orders stand next to each other without hierarchy between them.”