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[Music] my Lord uh I now turn to the text of the treaties and enacting legislation and to the siia and this is an exercise which with the Court's assistance I intend to carry out relatively briskly uh if we start please with New York convention which you would find that bundle A7 tab 97 you have uh article three at page 3341 uh so tab 97 page 3341 in tab seven correct yeah the your attention has been drawn through to to the one distinction the one difference rather uh between article 3 and article 541 which is the words in ance with the rules of procedure and I draw your attention to the following of the territory where the award is relied upon so what we're talking about what we're talking about here is rules of domestic procedure and I'll come to that in a second because that's the only distinction that is being drawn uh Article Five will be familiar to you as setting out the grounds for Challenge and article six if you would remind yourself are the provisions about security which were at issue in ipco now on this question of uh domestic procedure under article three may I please draw your attention to uh General Dynamics uh which is A4 tab 50 page 1 1994 maybe you don't need to turn it up what I will do is I'll just read it to you in the interest of time and this is a supreme court judgment this is General Dynamics General Dynamics in the Supreme Court sorry so I'll give you A4 yeah 50 page 1994 of the judgment and this is in the Judgment of Lord Stevens who I make it plain lord it's in he was in the minority but uh I respect it doesn't matter at all on the point I'm going to show you yeah I I remember this case I was in the cor of the field right um and we rely on this by the way because I will come back to it we rely on this also with respect to all the points on the CPR because what this Supreme Court uh judgment is Authority for is that the procedural tail cannot B the substantive do either the 1966 act does its work on its own or rules of Court cannot save it and obviously he doesn't do the work anyway paragraph 242 there are exceptions to the common law principle of access to justice but none of those exceptions apply in this case which is concerned with procedural rules enabling to access to a court rather than the substantive rules for determining for instance whether there is State immunity so State immunity as a matter of English law as a matter of public international law yes it's proced but not not as a matter of English la so what article three is referring to are the rules that are implementing uh our judgment Etc are to be uh is to be obtained and that you find if we could then move to part three of the arbitration act 1996 which you will find in your supplemental bundle at 167 have 167 of the new authorities the arbitration act the substantive procedural issue has been considered in a number of cases including in babush and also in relation to the act of State rle the the rule is clear that as a matter of public international law uh it is procedural reading for for example in front of the international court of justice as a matter of English law uh as you see from from the passage I just quoted to you it is a substantive rule it's it's there's nothing procedural about just test it I mean if you look at article three this is quite clearly not referring to rules of State immunity it's referring to the rules applicable to transpose the uh the award into which which we're going to look at now so part three of the ACT uh you've got section 100 uh which defines New York convention Awards you've got section question 1012 which I wanted to draw to your attention because that says in terms that a New York convention award May by leave of the Court be enforced in the same manner as a judgment own of the court to the same effect so and the reason why you have the need for the leave of the court is because of course you've got the Article Five grants which are relevant to uh the standard of review but not to State immunity then you we've got sections 1031 to four which enact article three and five into English law so article three of the New York convention is in fact transposed uh so which paragraph that so 1031 is four you see this is translating transposing rather the scheme of Articles 3 and five into English and that's the legislative technique obviously to to convert or to transpose uh an obligation which is only binding on the UK at international law level into domestic law uh section 1035 and acts article six now if we turn leee to the exit convention which uh your Lordships have been referring to in volume A1 so I shall do the same a one two at page 28 yeah starting with the Preamble it's very important to know that agreement on the text of a preamble is itself generally quite hard thought uh so all sorts of statements can be made for example uh by various uh negotiators during the uh travo but ultimately uh there is a very careful balance that is reached in the Preamble and it is my submission and I will develop that a bit when we come to the principles of interpretation that the only place where you can find object and purpose is here and I would show you that what is being done is that a mix and match of travel and even extraneous material is being cobbled together to give you a purpose for the convention not the purpose of the convention uh now the Contracting States considering the need for international cooperation for economic development and the role of private International Investment therein very careful and balanced wording respect for this there's nothing Pro investor in here bearing in mind the possibility that from time to time disputes may arise in connection with such investment between Contracting States and National surer Contracting States again you can well see that this is the result of diplomatic exercise and again balanced and not pro investor recognizing that again the balance while such disputes would usually be subject to National legal processes International methods have settled may be appropriate in certain cases you've got a conference of negotiating parties which has developed countries and developing countries you find balance in the Preamble not pro investor STS and then you get to bits that are actually getting more more important attaching particular importance to the availability of facilities for international conation oration to which Contracting States and National States May submit such disputes if they so desire strong emphasis on consent Desiring to establish such facilities under the aices of the International Bank for the ibrd recognizing again another Preble dedicated to that that Mutual consent by the parties who submit consideration to through such cities constitutes a binding agreement one might say that's a topology which requires in particular that du consideration again look at the wording that due consideration be given to any recommendation of consors and and that any AR bo be complied with where there had mutual consent and then declaring that no Contracting State shall by the mere fact of its ratification acceptance or approval of this convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration and we say Lord that yes absolutely object and purpose of this treaty is to create a facility which states may or may not use it is not to mitigate Sovereign risk terribly sorry but it just isn't it may have that effect if party if States choose to use it and think about it I'm sorry but I've seen it in practice but think about it you've got states that have very different perspectives you need to find that balance and you need to tell them don't worry don't worry don't worry you know we'll put in the convention what is there then you decide want to ratify you decide if you ratify would just be optional you can well imagine Mr brocker working the RO doing exactly that and this is based on consent and you will have Professor shro tell telling you time and again in his commentary that the Cornerstone his words of the convention is consent and that is all you get from the only thing you're entitled to look at for object and purpose not mitigation of sovereign risk not please help the poor investors this is what it is we are creating a facility you may use it if you wish you will only use it if you consent are they necessarily quite inconsistent I it may be that they're creating a facility that allows people to mitigate something risk it may well be but again what you need to do is to for for interpreting the treaty because what we submit is happening is that because there is this need for implication I have shown you there is no inevitability is that focus is being put to one of the effects of what is truly the purpose there's a reason why purpose is so narrow because this is all negotiated and then that purpose is being used in order to do exactly what you're not allowed to do which is theological interpretation so that's what we say about the Preamble now let me take you to the provision which I'm sorry to say my eared friend was rather skipping over which is the Cornerstone of the convention article 25 article 25 is at page 33 to 34 starts at page 33 and even when I'm sorry I won't make coric point but there was even some reluctance to read the words consent in writing this convention can only ever be binding on the state if in the words of article 251 the parties to the disputes have con centered in writing to submit to the center if not the convention is foreign to them ratification of the Convention as you've seen from the Preamble is not binding them is not creating anything at all no and let me make that point straight away nor is the bit what does the bit do it's simply creating an offer to arbitrate what you then need to have is an acceptance of that offer and this is where consent allegedly arises that's where all the jurisdictional points Arise at the time of creation of the arbitration agreement through acceptance of the offer in the bit the con the convention thus simply creates a framework for arbitration it does not create arbitral jurisdiction jurisdiction must arise from a separate agreement to arbitrate by entering into the convention a state simply gives itself the option to use it it may choose to do so for certain dispute or not at all that separate agreement could be in a contract there are many such cases or as is alleged in the present Case by way of acceptance of an offer contained in a bit so while a state must become a party to the convention in order to get the option to use it acceding to the convention does not make the convention automatically applicable to any dispute to make the convention applicable to dispute the state questions must enter into a separate arbitration agreement which would have its own terms and in the words of article 25 I quote consent in writing to submit that dispute to the center and in that sense this is no different from what commercial arbitration rules like the lcia rules or ICC rules do they will apply where there is an agreement to arbitrate under them if there is no such agreement to arbitrate they have no application to the party's disputes at all they are foreign to them so for my Lear friend to now say that entering into the exen convention and all the bit gives him an independent source of jurisdiction is with respect entirely misconceived can only get there if you ignore article 25 Contracting states only ever agreed to apply the convention to this which they would expressly consent to arbitrate under the convention and the convention is not engaged at all unless there's a valid agreement to arbitrate article 27 my laws I'll just show you because this is the one about diplomatic protection and you see 271 and that is really truly important I mean if you want to find purposes for the convention that really was beyond the pr the purpose depoliticize investment disputes and that is article 271 and I do say that was the remedy uh which was going to bite non-compliant States and it is said against against me that well it you know while it's true that's why the article 541 language was inserted uh the language is neutral it applies both ways it's not the only reason but it was the main reason and the Trav shows that it was the main reason and you cannot ignore that in fact when you look at Pinos and Lord speech he does exactly the same thing he says yes it wasn't the main reason but uh there were other reasons but sorry there were other reasons but the main reason was was and then he goes on to say uh what he says in the speech so it it is a relevant certainly IR relevant Factor as I've shown you article 541 works as drafted and there is no basis to imply a term creating a submission and doing a way subsentio with States immunity from adjudication there is no necessity or inevitability I'm sorry here I'm repeating myself but let me make a new point is now being said and I do say that thought in the Preamble and I do say this is all theological but it's being said oh this would have been very important for investors investors need this this is an ex post facto construction you will not find that theological Point anywhere in the travel it's not supported by the travel and I would ask you to pause here for a second this also makes no sense because what is being said is it was very important for them to get conversion into a state judgment uh which they could then not execute because there was absolute immunity from enforcement just say with this jurisdiction very very important the UK must comply with its obligations and give the investor a judgment which he will never ever be able to enforce because article 55 is absolutely clear but there can be no immunity from execution respectfully submit mod this is this is all an export post factor construction the reality is that you had civil law countries you had common law countries the civil law countries tend to not look at uh adjudicative immunity they go straight at the level of immunity from execution we do and nothing in the convention has done away with it now the next provision I wanted to look at is article 41 which has the tribunal shall be the judge of its own competence nothing magical at all about that provision one finds the same provision for competence competence in every single set of commercial arbitral rules indeed you find it in section 30 of the arbitration act 1996 as explained by Lord men in dal that does not close any ritual tribunal with final jurisdiction to determine its own jurisdiction any exit tribunals is an arbitral tribunal it only exists as a creature of the party's consent it cannot pull Itself by its own bootstraps so when you get to article 52 which you find on page 40 that doesn't take you any further because that gives what a second tier tribunal itself a creature of the convention itself entirely dependent on whether there was consent to apply the convention in the first place the power to review the award of the first year tribunal it doesn't expressly uh refer to jurisdiction but it is well established and we accept that it is one of the grounds on which the award can be aned but when it comes to issue a stole if that's supposed to create an issue a stole I draw your attention to the fact that the test is not in over review as under Section n but manifest error that internalization says nothing about State immunity what are internalized are the grounds for review or challenge that are normally left to an enforcement Court under Article Five of the New York convention and as we shall see in a moment from TN the question of arbitral jurisdiction under the siia sits outside that regime it arises entirely independently from the grants of challenge whether under Article Five of the New York convention or whatever they are and they are none fine under the exit convention but it's entirely selfue it's a statutory obligation which the English courts have to satisfy in order to affirm their curial jurisdiction it's also important to note uh in that respect again what an adoc analment committee is it is not a separate judicial judicial entity sitting outside the convention which might have its original jurisdiction I say the international court of justice might it is itself a creature of the convention it is as I've already put it a second TI tribunal if the convention does not in fact apply it cannot create or confer jurisdiction when nonone exists I won't spend time on article 53 although it's obviously important but your watch your see article 54 is the focus of our inquiry I've already drawn your lordship's attention to the identity of wording between it and article three of the New York convention and the one uh difference uh and neither provision says anything about state imunity which Falls to be analyzed under the provisions of the siia now let me say one thing about article 55 article 55 was introduced in the wake of article 543 why because once they introduced the mechanism referring to domestic law uh on the basis of the Treaty of Rome article 192 so that's 543 and not 541 uh they said well you know now we are actually dealing with domestic law we better make it Cain that here also I do say here also we are not waving State immunity and is very very clear everyone has always accepted this is for the avoidance of doubt this is mikula paragraph 72 in terms and now it's being said that you use a provision that is clearly on its terms being introduced for avoidance of D to infer implication are contrario that you waved state from adjudication well that's turning the law on his head if State immunity is to be waved it must be done expressly not in that sort of roundabout way but anyway then moving on to the implementing legislation which is the 1966 act uh which you find just before uh the convention section 11 second paragraph that convention is in this act called the convention and each text is set out in the schedule to this act could you please compare say section four at page 24 status immunities and privileges conferred by the convention in section six of chapter one of the convention which governs the status immunities and privileges of the exit articles 18 to 20 21A and article 24 shall have the force of law that is the extent of the transposition appending a Convention as a schedule to an act of parliament doesn't give it the force of law in the UK I I simp draw your attention in so far as you're still wanting to rely on Mr Justice Fraser's judgment I think by now you're going to have to make up your own minds but that his lordship at paragraphs 95 and 102 says oh the convention is a schedule to the act so uh the only provisions of the exit convention that have the force of law in the UK are articles 18 to2 21A 231 and 24 and they relate to status I emphasize the word immunities and privilege of the censor the rest of the convention being a schedule doesn't give it the force of law in the UK and the fact that the 1966 act must be conted in a way which gives effect to the UK's International obligations takes one no further actually we say it's important and works against the argument being made against us that article 53 to 55 were not deliberately not transposed into UK law whereas other Provisions dealing with immunity were if these were the provisions that were doing away with State immunity which is an obligation that we have under customary international law to all other states of the world obviously they would have was never intended to do that now section sections one two and 21 are the equivalent of section 101 of the arbitration Act 1996 for New York convention Awards with the difference we've already all very aware of which is that uh there are no there are internalization of Grant of review therefore you don't have the Article Five Grant again that says nothing about the rules of State immunity and section 22 was the one considered in Mika now if we could turn now please to the state immunity act which you find in the same bundle at P four chanc perhaps if you let me know if I may proceed or when you're ready yes State immunity act we've got the rule in one one that the St is immune from the jurisdiction of uh the court of the United Kingdom except as provided in the following provisions of this part of this act so couldn't be clearer section uh nine deals with arbitration and of course the section 22 you're aware of it just wanted to focus on nine now which is that where a state has agreed in writing to submit a dispo which has arisen or may arise to arbitration the state is not immune and the where in that sentence clearly means if and so uh I won't take you to T nef my learning friend has but I wanted to bring out a couple of further points uh if if I may so for perhaps just for your note at paragraph 30 unless you want to see it can I just raise this point because I one of the things I puzzle about is the um in the award the tribunal found that your clients had consented in writing to the arbitration through the agreement of the of the the bit between Switzerland and Zimbabwe that's what they found so yes so so the way this works is that and and you have that very regularly in in jurisdictional arguments on the bits which for example if it's an uncal arbitration the bit will will then be for example challenge at the seat or there will be enforcement proceedings on the award the questions that arise is whether the specific conditions for for example qualifying investors qualifying Investments territorial scope of the treaty are fulfilled and that's exactly the sort of point that is going to be raised on the challenges that Zimbabwe will bring to give you what a bit of flavor but are those not issues as to issues as to the scope of the of the reference to arbitration as opposed to um in relation to which uh the um convention at least contemplates that that's a matter for the tribunal the court I'm simply dealing with with the prior point which is where the York clients consented to submit to arbitration it's their dispute with these investors and what tribunals fames that you did through entering into the bit yeah no my Lord with respect it says the acceptance of the investors of the offer contained in the bid creates the omation agreement that's accidental and Ecuador I mean that's there's there's there's a lot of law on this and that will only work if in fact for example in this particular case uh the claimants were not of the nationality of the claim of of of Zimbabwe and there will be other conditions like that so these are the jurisdictional points will which will go as to whether there was consent to arbitrate so Zimbabwe makes an offer to arbitrate it makes that offer on specific terms and so in nearly every investment arbitration which one argues the one sits on you will have jurisdictional points about is this investment covered is this investor covered investor etc etc so this is the sort of point we're talking about yeah I mean what the tribunal found in paragraph 199 is based on the forgoing provisions that was Article 10 of the of the bit in the case of these investors it is equally clear the respondant that's your CLI consented through the bits provided the relevant criteria satisfied and then they discussed the relevant the tribunal sa find the relevant CR criteria discussed below they then discuss the relevant criteria and then conclusion that they are satisfied and that's that's the the way in which it works isn't it yes my Lord and if they are wrong then there was no consent and then there's no ex said is not engaged at all and that is precisely the inquiry under Section n again this is all being portrayed as something very difficult and and not normal it is absolutely normal that you would check consent to arbitrate in order to take cural jurisdiction of a foreign State and the tribunal of course will reach a finding we all reach findings when we sit as arbitrators we cannot clothe ourselves with jurisdiction whether we make a finding of consent of course we do but then is that finding correct or not and that is then tested by the cual court or under Section N9 you cannot and that's dollar it's it's it's it's bootstrapping you cannot close yourself with with jurisdiction it's OD there isn't it there is under under the 1966 actually procedure there is no equivalent to either section 67 of the 1996 act or section 1013 my Lord no with respect no it's not it's a feature of the exit system so it's important to understand that feature but it's also important to understand its limits why does why do you not have a section 67 because exit arbitrations have no seat fine why do you not have the equivalent of Article 5 or section 101 because exit arbitrations have internalized Avenues of challenge as do as Mr brockus said a difference of degree not of kind section nine of the state immunity act sits outside all of this and while you can't reopen the award on substantive Merit ground Article Five grounds what you do need to satisfy in order to get uh the curial court in order for the English Court to take jurisdiction over a foreign state is consent to arbitr can I say this if if a state did not take a state immunity wave state immunity but did wish to say there's no jurisdiction they couldn't do that can't can't because it has taken a step in the proceedings of section 23A that's exactly what happened in 23b exactly what happened in Mika this is all being portrayed as you know completely outrageous It's Perfectly Normal why do you say they taken the step in the proceedings say again why do you say they've taken a step because they they don't raise immunity and then they go and for example say uh you can't gr with you call grounded sorry ground me a state so they're raising merits points well that's what I'm trying to understand I mean your your clients took an took issue with whether or not the tribunal had jurisdiction yes and they fought that battle and lost it but they then um they then participated in the arbitration albe it under protest presumably uh and called Witnesses and so on and so forth but they never took the state immunity Point did they I know State immunity is not an issue take in front of a tribunal State immunity is something which arises in the English courts it's it's about your this court purial jurisdiction well I know but I'm think they didn't take an issue of State immunity in Zimbabwe State immunity as the state of Zimbabwe where my Lord I'm sorry I'm I'm not following well I'm just wonder it would not take it would not take such a point in the arbitration State immunity is not an arbitral jurisdiction issue you understand that but I just wondered normally if some is going to take an issue of State immunity at some point it's it's flagged up my Lord with respect no because we can't predict while fighting the option I wasn't there but whoever was fighting the option can't predict where it's going to be enforced not going to say if if if one day you decide to enforce in the United Kingdom we're not submitting to the court of United that goes without saying it's a rule of custom International La my uh paragraph so I won't take you to it because I do need to get through quite quite a bit still uh but it is a very important decision we do say my leared friend to quickly to it uh where it okay so it's A3 tab 43 yeah page 1614 I didn't hear the page 1614 if you pick it up at 1618 paragraph 17 that Ukraine rate objections to the tribunals addictions under the bit which were subject of written submissions and those were dismissed and then at paragraph 30 you can see that the objection to the state making its case on section nine in that case was that one the section n objection was that the tribunal had no jurisdiction and two in effect it was being said Ukraine should be confined to the jurisdictional case that it had run before the tribunal he said you cannot take new points right so implicit in that obviously is that all of the the points that were run could be run again at paragraph 31 Mr Justice butcher describes how the arguments being run by Ukraine on section 9 were a mix of points that were new end points that have been raised in one for another the tribunal and the key paragraph is 35 and the key finding is that letter D sorry I should draw your attention sorry in paragraph 34 to the fact that he says the judge uh at h there is nothing in the Sia which in any way resembles section 73 of the arbitration act or otherwise suggest a similar philosophy and then at 35 at D he says if there is an issue which is either apparent to the court of its own motion or is raised by the state and which goes to the question of whether there was such an agreement in writing in relation to the relevant dispute and I consider that the court is obliged to consider it and can only exercise jurisdiction over the state if satisfied that the section 9 exception is nevertheless applicable there is nothing in the siia which suggests that there can be a foreclosure of the points which the state may raise as to the applicability of the immunity afforded by the Saia by reason of what may have occurred in front of an arbital tribunal in a way similar to that provided for by the arbitration app I section 73 doesn't apply you cannot have foreclosure so the court must decide the issue of orbital jurisdiction for itself because this concerns your jurisdic your Cal jurisdiction and you're mandated to do that by the Saia that is a point which is entirely separate from any review of the merits of jurisdiction of anything at all under sections 101 103 Article 5 of the New York convention and that is why section 73 does not apply of the arbitration act the fact that those grounds are internalized under the exed regime to a second tier tribunal is neither here nor there section n applies just as much to an award under the exit Convention as it does to an award under the New York convention by its Express terms it requires the English Court to determine whether there was arbital jurisdiction in order to assert its own Cal jurisdiction well that is the scheme of the Saia with regard to arbitration and that is what is applied there in the commercial Court another example in the bundles I will take you to it gold Reserve A3 tab 37 page 1 2 33 paragraphs 11 to 12 which is page 1 2 37 so gold Reserve exactly the same we we do this in the commercial called day in and the investors with respect are now inviting you to drive a coach and horses through this well established scheme by holding that article 541 of the exit convention and it will follow article three of the New York convention constitute waivers of jurisdiction under Section 22 now that attempt to circumvent section nine of the siia by means of section two is misconceived for two reasons first because article 541 does not in fact contain a submission to the jurisdiction secondly because it is contrary to the scheme of the SI let me cover the point about the scheme of the SI first first very briefly to come back to to the question that was being asked by my Lord Justice Phillips before lunch must make it clear it is Common Ground as I understand it in this appeal that whether you call it waiver whether you call it submission and I completely understand myel why you are using the concept of submission that is the concept section two it has to be consistent with the UK's customer international law obligation and you've got case after case from P to B I will just give you the reference in s suas uh which is a451 at Pages 2009 and 2029 paragraphs 43 and paragraphs 115 very clear that you cannot have an implied W you cannot have an apped submission you must have an Express submission so I didn't catch the reference Lord circus volume A4 tab 51 yeah paragraphs 43 and 115 yeah which you will find at Pages 2009 and 2029 now let's look at the scheme of the SI my Lord I you will forgive me for not spending any time at all on ISS ground one it is with with respect completely misconceived based on the simple and clear wording of section 11 of the siia the siia is a complete code it is not and I quote a complete code with one outlier as my learned friend for ISL put it on Tuesday and that is transcript day two page 162 lines 15 to 18 yeah if article 54 is a submission so is article three of the New York convention and as I was saying earlier Awards the amendment moved by the solicit general had no virtually All Foreign Awards exed and New York convention were already being caught under section two it's just that none of us had noticed so Hansard if we may please look at that uh is at A7 one to one have one to one [Music] and it is Page 3856 87121 yeah 3856 yeah let's start by bearing in mind again that if the solicit general had wanted to exclude the 1966 act and exit awards from the siia it had the simplest way to do it in the world which was simply to add the 66 act to the list of excluded legislation of section 16 instead he moves an amendment which is meant to ensure that the arbitration exception will apply to foreign Awards and he says and that will include exed Awards or we respectfully submit that this is if there's any ambiguity this makes it plain as date that section n was the route that was being chosen for the enforcement of exed Awards and that makes perfect sense because irresp I of the type of awards exed all New York convention the Cardinal principle is consent to arbitration Professor Shroyer the Cornerstone of the exit convention and matters do not stop there my Lord section 233 is relevant but in a way which I'm not sure has been appreciated on the other side if we can please go back to that and I'm sorry I'm making move between bundles but if you go back to volume A1 at T four the state immunity act well I wouldn't take up too much time on Section 233 no no it's a completely different point because it just speaking for myself I can't see Point even begins to run refer to I couldn't agree don't seem to me to include a statute made two years previously the question my Lord is ask yourself why they are contrive to run this point they contrive to run this point because they need to find a way of telling you oh no no no the 1966 act even though it doesn't say so at all abrogated common law state immunity by the way not a point that was run by my learn friend in this appeal Bel but now he's jumped on that bwag so because you've got that then you need to find an exclusion but it's not in SE 16 so you make up the section3 the whole thing crumbles we respectfully submit well if you're wrong about section two yes then that's all irrelevant because they get home as it were on section two if you're right about section two which is what you then then they will be dependent on Section n indeed my Lord and so I'm just if I may what I'm doing now 233 W out 233 will help if I may show you in a very in a very different way in a very different way and I'll will show you that now so what I'm doing to be clear at this point in time in my submissions is to killing off is killing off section two I respectfully submit it's clear as day including from hansan that the root chosen was section n but let's look at what the consequences would be if it section two and you find that in 233 and there's the two bits which haven't been looked at which are the two examples M which is that under Section uh 233a if you're under submission section 22 the ACT will be disapplied for any prior agreement right which will be the treaty in this instance or wrong the time when the particular state entered into the treaty whereas under 3B under Section n it will be the time when the agreement to arbitrate is concluded so what does that do uh if the correct analysis is as we say consent to arbitration and section n the siia will apply every time now that we are 40 years later as the agreement to arbitrate will be formed by the investor accept of an offer to arbitrate in an investment treaty that's 233b but if you're under section two then the legislature would have put in place a we submit completely incoherent regime whereby if the respondent state acceded to the exit convention before 1978 so the agreement here under section two is pre 1978 you got the common law but if it's after 1978 you've got the regime of the SI makes no sense my lords the root is section n now to conclude on this point there's a degree of undue alarmism in the Border respondents case it suggested that Zimbabwe's position on Section n will require a full denov re Hearing in every case and render the award I Cote of no evidential value that's not correct mod because in many cases there'll be no dispute about arbital jurisdiction in others it will be clear cut and where jurisdiction has been fought and decided in the arbitration there are means which the commercial court is well aware of to use the evidence that was aduc Etc and it's it's actually quite interesting because my Lord the chancellor referred earlier to the arbitration Bill and we've all been working very hard on this and we really hope that is it is going to become La soon but the proposal to reform section 67 was made on exactly that sort of ground so you had a a faction the whole point about it was that um was to try and avoid the C the situation where we had a complete rehearing that was the point I me even though it's it's quite rare there were occasionally complete rearings conducted one myself in the commercial court so I do recall yes yes M that's that's the point exactly was been said let's have an appeal you can't have this you've already been before the tribunal you know yeah and and what very interesting and we know this and it is public domain because we all gave evidence together in front of the House of Lords committee three four months ago but the commercial that Mr land was part of Mr land was there I was there and the uh Mr Justice Foxton and Mr Justice hen over there on behalf of the commercial court and and the submissions by the commercial court is this is no issue these alarm Bells have been dismissed by Commercial Court judges which is why we are retaining the denovo hearing in SE 67 yeah well because there are procedures that can be that can be put in place to avoid abuse of that system they're already there and they're already being used so a sort of compromise solution was reach where we gave to the other Camp you know we we may have rules of court but I must tell you that the the great hope is that there will be no rules of court because they have all the case management Powers that's another story Mr but we shall see uh that that is the scheme of the SAA and if I'm right on that you don't even get to the interpretation uh of article 54 because the root is section n cly is but let's look at article 54 now my Lord yes uh the rules of interpretation my learned friend covered articles 31 and 32 yesterday these articles of the VT are at a711 one 3411 I yeah we could turn them up I think we got them well in mind really yes okay um I would make the following points on the exposition given by my Lear friend first in terms of the material which one can have regard to under article 31 this includes obviously the text of the treaty the particular provision being interpreted the context especially we agree on that the other provisions of the treaty the object and purpose of the treaty which will normally be found in the Preamble The travo Very obviously then if if you want we can have a look at it but I think it will be obvious do not fall to be considered at that stage of article 31 when you're looking for object and purpose the travel under supplementary means of interpretation under article 32 perhaps my Lord if you want to refresh your memory on that that is quite an important point T are entirely separate come at a second stage the holistic my learn friend is Keen on this idea of a holistic approach under article 31 we don't mind the the terminology but what is clear is that Trav does not form P of not does not form part of that now just before we move on in terms of object and purpose you say that's mainly to be found in the pram I'm not sure that's in article 31 itself is is it clear from some other source um you say it's clear from article 31 but you see in 312 it says the context should comprise in addition to the text including its Preamble and anexis at that stage the Preamble is context uh yes I'm just trying to find the easiest way to show you that yeah um so Mrs Justice Das at paragraph 27 of her judgment referred to Czech Republic against EMV uh that which makes it plain and so that's a t 61 2424 that the reference to other common expressions of intent are simply references to articles 312 A and B which everyone agrees do not apply here and and her lhip went on at 27 to say this I quote the object and purpose of a treaty are to be found primarily in the Preamble or that limited further material under 312 A and B and the C should be cautious before going further my Lord I apologize I didn't anticipate that this would be controver it isn't it isn't you really her leadership as you will see from her judgment very careful did not in the event go any further than the Preamble right no and certainly what you can't do because at this stage when under article 31 primary means of interpretation you don't go to the secondary means to to detect and determine a purpose which then you then use uh in the first step of article 31 um if I can please invite you to look at in fact what by friend has done in his supplementary skeleton at paragraphs 15 to 16 of his supplementary it's so paragraph 15 uh the object and purpose of a treaty is primarily to be found in its Preamble or other expressions of common intention as Mrs Justice Das cor correctly held and that is correct and she does say that those expressions of common intention relying on the Judgment in EM Czech Republic and EMV are simply the two other A and B of 312 they then go on to say the Supreme Court has also held that material identifying the object and purpose of the treaty may be found in supplementary material to which recour is permitted under article 32 that is that is incorrect what what they've done here is they've used one loose sentence of the of a judgment uh uh of where's that Judgment of Lord hlin in jti P yes you have it my Lord it is at a557 2322 32 paragraph 32 and and the sentence they're trying to use cannot bear the weight they're trying to put on it so at 32 if you please look first at paragraph 28 you can see that by this point Lord hin is looking at article 32 SE supplementary means of interpretation and then he says to the app would not suggest that the disclose pulsy Etc and the sentence that my learnning friend wants to rely on is on 2323 and the second full sentence it may for example include material which helps to identify the object and purpose of the treaty or Provisions within the treaty look with respect there is no Authority cite I think it's at this stage Lord hin as I say is already into article 32 territory and it is with respect contrary to to all authority and you can simply see that from the very scheme of article 31 32 of the vcl anyway let see we say this doesn't support the weight but let's take it even more simply my L friend told you yesterday oh I don't need the to very clear read two as a whole I don't know whe it makes any difference at the end of the day but as I read it what he's talking about there it actually resort to um material within section within article 31 for confirmation purposes isn't that right more confirmation so the bottom of page 322 2322 moreover confirmation so that's that's an article 31 con 32 if you in confirmation you use the supplementary means to confirm a clear meaning or to determine an ambiguous meaning the point I'm making really to do with the article numbers it's to do with the fact what he's talking about is his use of material for the purposes of confirming a meaning so it's a very narrow concept my Lord my point is is simple is that the object and purpose are to be found in the Preamble not in the TR object and purpose is step one Trav is step two secondly my Lear friend told you yesterday I don't need the travel I just want to show you what he has done in his skeleton um and we were looking at that it's paragraph 16 in the case of the and and the most important and interesting bit of that whole paragraph are the footnotes overarching purpose is to promote the flow of private investment into areas in need of Economic Development by removing a key impediment to that flow namely fear that investors would be exposed to political Risk by whole state action Etc each and every of these foot nodes one when there is Preamble it's glossed in the text a gloss is introduced every time but much more importantly extensive reference to the Trav the final quote on page seven of the internal page seven of the skeleton mitigating Sovereign risk that's not even in the TR that's in the Judgment of the high court of Australia and the footnote you will see is actually quoting quoting from the ISL uh climens skeleton which I didn't realize were object and purpose of the treaty but you will see that in the high court of Australia's judgment there is no reference footnote nothing given for that phrase which is at the center of their case mitigating Sovereign risk so not only has my learned friend used selected bits of the travo which he Well Suited his purposes but he has done so we respectfully submit in a completely impermissible manner as purported object and purpose and in order to conduct what my lords a totally impermissible exercise I.E one of teleological or purposive interpretation you would proceed no differently if you wanted to pass off an implied term as an Express finally on treaty interpretation uh Lords in terms of the proper approach to the implication of terms if I could show you quickly our supplmentary skeleton paragraph 27 justar with you I didn't take one of those P binders I should uh7 if I could please ask yourself to to read that to yourselves about the implication of terms and once you done that if you would let me know there's one correction and one reference which I would like to give to you yeah thank you uh so the correction is that it's not brown in C but Brown in SC to the team and the red refence is that the uh disagreement reduced to writing Point uh it's actually been introduced into the law report by Mr low and you find it first in a footnote to paragraph 19 of Czech Republic and EMV so that's A2 29 page 989 and the footnote is at 999 the disagreement reduced to writing and that's picked up by Mr Justice Brian in gpf in Poland at A3 42590 paragraph 51 so what's the footnote in in footnote uh I think it's footnote 10 paragraph 19 and footnote 10 yes footnote 10 at 999 yes go ah thank you so in one s these words could be used to apply to the approach to England whales but you say there is more textualist emphasis yes no I I don't want to put the point too high but I think there is a danger because and I I include myself within that uh we construe contracts they in they out treaties are not contracts no middle that's the point I mean the real point is there's a different method of of construction interpretation Absolut to avoid simply coming at it with a contract lawyers it is a mental exercise you need to make you need to to transport yourselves from this courtroom into the peace Palace at the ha which as the Supreme Court in mikula has said will ultimately one day uh probably hear uh the case about the true meaning of article 54 but that is the exercise we need to make we need to we cannot use purposive interpretation we cannot say oh it does look like attorney general in B of B we just can't and and in the same way you could see immediately yesterday the analogy uh with the parole evidence rule in so far as travo is concerned there is one actually yeah I show you show it to you quickly that that really doesn't work because uh it it it's got its own rules if you look at the authority which you have at A8 yeah have 142 uh page 4251 yes internal page 629 which goes exactly to your point my Lord Chancellor the the confirmed the meaning yeah and if you look at the second paragraph sorry it's paragraph 31 they are numbered on the right hand side yeah how as guardian rightly points out investigating Kavu to see if it does in fact confirm a particular meaning arrived at by applying the general rule carries with it the implicit possibility that it does not do so in that case The Interpreter will have to reconsider its position thus confirm entails the option of not confirming and the possibility of transforming the exercise into one where the Preparatory work leads to revisiting of the application of the general rule to find a permissible interpretation which is then confirmed the investigation may also lead to the conclusion that there is an ambiguity that has hether to gone unnoticed such that the exploration of the Preparatory work is transformed from a potential confirming rule to one of determining the meaning so if for example you know something looks well it should it looks like that but in fact as I've showed you but it may look like that but that's only because you're ignoring the fact that the obligation is created on the public international law level will bite in any event and that we're now talking about whether the the creation of an enforcement mechanism necessarily brings with it submission to that mechanism and then you go to the trau and it shows you well there was never any intention to weave any state me that that that we respectfully submit I'm sorry you're going to have to give me that reference again I'm can you give me the reference to this to this text sorry my A8 yes tab 142 yes and the passage is at paragraph 31 which is at page 4 2 5 1 I just understand the gardener is cited what jurisdiction is G is he a he's a r presumably it's the same gentleman in t he was at the I'm told but not legal advis T 138 is an extract from gard's book yes on treaty interpretation I think it would be obvious where that reference came to beight um I think I think are right um so I I'll deal now with with with the interpretation of article 54 quickly because I think you've got all my points yeah UHS uh it's effectively what we've said in our handout at par three there is no language of submission there is no language of waiver rather what is being said is that one should infer from the obligation to create a mechanism for enforcement on state a a sub to the enforcement mechanism before the courts of state of State B and for the reasons I've already given you and that are in paragraph three we say that's wrong and that actually nml is is is is is excellent to illustrate why it's wrong in nml you have an obligation to uh enforce in certain jurisdictions in a contract that makes no sense if you can't in fact enforce whereas here you have an obligation to create an enforcement mechanism with done so the UK has done so whether Zimbabwe separately agrees to submit to that enforcement mechanism is a completely different question the distinction between the P obligations sorry public international law obligations on state B and the domestic regime being created are within in the text of the convention itself that's I've shown them to you it's article 27 531 compared to 54 in terms of object and purpose I've showed you the Preamble and we say what you take from the Preamble is quite simply now this is a convention the purpose of which is the creation of an optional mechanism based on concept can I just try testing it the other way so we're on article for um which on the face of it doesn't merely say create each Contracting state has to create a mechanism it says it has to recognize so Zimbabwe as a Contracting state is agreeing that the United Kingdom as a Contracting state is to recognize an award rendered pursuant to the convention uh and enforce it as if it were fin judment on the public international law level there there are two ways there's perhaps a slight ambiguity in 54 and the question is whether but it doesn't matter is is whether uh recognize an award rendered pursu this sorry whether the word within its territories applies to both limbs if you see what I mean recognition and enforcement or only to enforcement but it doesn't matter because say say recognize is separate and it's not within his territory so it's not something that is part of the enforcement mechanism it is an obligation owed by Zimbabwe to the United Kingdom absolutely and and mikula says that and we accept that so what does that mean that if tomorrow Zimbabwe is non-compliant for reasons which the United Kingdom strongly disagrees with they can bring a case under article 64 under the before the international court of justice that's at the P level but then what so that it's doing that and I would say so far as Zimbabwe is concerned this is not if if it is a separate obligation to recognize anded force it does nothing more than article 531 because it's already a disputing part about the the enforcement mechanism this clearly creates an obligation to create the enforcement mechanism it doesn't say that it says this involves Zimbabwe agreeing that the United Kingdom shall recognize it doesn't say shall create for it's the words within its territories my Lord and then when you read that together with 542 and 543 and it becomes clear that the purpose of this is to create an enforcement mechanism which is in fact happin its territories yes that's the point the words within its territories qualify the words enforce the pecuniary obligations imposed by the award yes so that create and this is an award I mean leaving to one side your point about this convention not having as its primary purpose or whatever um Awards against States on behalf of investors but for better or worse that is the sort of case which has emerged under exit over the years and that that was the purpose there was going be award what one is postulating yeah is an award against Zimbabwe in favor of these investors and what this article is saying is that the United Kingdom will recognize shall recognize that award and enforce its Peary obligations within the United Kingdom as if it were a a final Judgment of the of the United Kingdom Court yes my Lord and in order in order for the United Kingdom to do that because we have a dualist system it has to create an enforcement mechanism and irrespective of whether you have to do that or not well it may have to create it may have to do that but that's not the obligation that's being dealt with in article 54 but my Lord if he doesn't have to do that then we're not even in the realm of what we're discussing here which is whether there's submission to that mechanism why isn't it true to say that Zimbabwe by becoming a party to this convention agrees that the United Kingdom is to recognize uh as binding andfor within its territory the award Lord the one bit which is missing in your sentence and which you cannot which we can't do away with is at what level you've got the word within his territories so if uh we're simply saying Zimbabwe agrees that that is what the United Kingdom has to do and Zimbabwe is not complying with it etc etc then Zimbabwe is in breed at the international law level Vis the United Kingdom and the solution for that is the icj but that's that that doesn't make much sense I mean why would the United Kingdom complain to Zimbabwe the application to to recognize and to inforce the award is an application that's going to be made by for obvious reasons the United Kingdom in itself is not interested in enforcing the award yes so so two two two two answers to that one the the host of the investors might be and they are also called by these obligations secondly I I didn't think it was controversial that this does call for the creation of an enforcement mechanism that is in fact what has happened because the whole debate we are having is that it is being said you're agreeing to be uh to submit to the jurisdiction of that mechanism so if there isn't a mechanism then then there's nothing arising I dare say we'd be in breach of something if we didn't have a mechanism in fact there was there has for very long well been a mechanism but why should it construed as limited to creating the mechanism and it seems to involve Zimbabwe agreeing that the United Kingdom must enforce the award no I'm I'm not saying that my Lord I'm not saying it's necessarily limited to that I'm simply saying that the fact that you're are obliged to create something on the domestic law level which is very clear from the words within its territories doesn't mean that when you've created that every other state agrees to submit to it that may or may not be the case and what I'm telling you is that let's say that's an ambiguity I take your point then you go to the travel and what do the travel tell you that the basis of everything was that states would compile and that when they didn't the obligation inter say would be at the at the public International level and the transposition on the domestic field was being made in order I'm not putting it any higher but in order to give investors uh sorry to give States a forum to get cost back from investors so that has to be construed none of that appears none of that appears from article no but article 54 doesn't say again all that article 54 can do is create an obligation on the public International level between two states the highest that one can put that OB yes recognize yes and force that's all of the people level we only get to the question that we are dealing with in this appeal which is submission to a national jurisdiction if a national jurisdiction exists therefore you must have the step of creation of a mechanism under domes there might already be a mechanism oh they may be there may be my Lord let's say there may be so they they've complied with their obligation before before the convention is already there but there is that mechanism it's not the fact that you need to provide a mechanism pre-existing or creating that means that every other state necessarily agrees to submit to it the obligation is to have the mechanism why it may or may not follow that you submit to it sorry you say it's exclusively on the international law level why this is a treaty my well can I just pick up your point five and answer the questions oh in yes you say dealing with the question of whether treat laws saying all Contracting States equiv blah blah blah you say well yes that would have been submission well that would still have been in a treaty section could you could you repeat that question I'm sorry I understood you a moment ago to say well it's on the international law level because it's in a treaty yes but if this wording that you set out at five had been in a treaty it would still been in a treaty but you accept that there would then have been submission because article 172 brings the submission back to the domestic law level in which case it's not automatic sorry in that case why is it an answer to say B 54 is in a treaty therefore it operates at the international law level not at the domestic level no soorry what I'm doing is is meeting uh the test under English la and what I'm showing you is that it does not follow inevitably from this word that there is a submission to the enforcement mechanism there's an obligation to create or to have in place or existing and enforcement mechanism you can only get to say and you submit to it BYO process of implication which is what you're you you your answer your point5 to accept that if article 54 said somewhere within that first sentence that and the the State against the Contracting State against which the award is made uh will submit to the recognition to the said recognition and enforcement something of that kind you you accept that that uh that would give rise to the yes so the obligation is still at the international law level but a combination of section 22 and section 172 brings it into the section 22 soone comes back to the same point which which is simply the point as to whether article 54 has that meaning and effect in any event irrespective of whether those words are written into or not with respect my it's a bit more it's not it's not that simple because it's it's it's whether it's expressed it is expressed or implied no it's not whether it's expressed or implied it's what is the true meaning of the of the words used my Lord we we agree again say anywhere it has to be that it's an Express or implied thing I mean I follow the point that that about implied waiver and so forth but the fact is that the the the process even though you're quite right it's not the same process of construing a contract it's still a process of looking at the words used in deciding what they me and effect is yes my Lord it is agreed in this appeal that given the way the test works and the international law authorities you will only be able to say that the process of inference let's call it the process of inference remains Express if the consequence is inevitable and my point is I'm sorry to repeat it but it is very simple it does not if I may my just to just to finish my answer to my Lord the chor it does not follow from an obligation to have on the munic in the municipal sphere a means of enforcement that every other state submit do that me if we if we interpret what is the right meaning then it is inevitable yeah because that is the right meaning all on that logic it's a circular argument that's the trouble can can I ask you this on your wording in in answer five or the wording that you picked up and said yes to as I understand it the only thing that's missing is the word submit no my Lord what is missing is step two so I I I'll repeat it one last time there are two separate things one which is having place in the municipal sphere a way to enforce and recognize this award because investors might need it let's say that the other is and you've submitted to it the two are separate two may or may not follow from one it is not at all inevitable and perhaps my Lord I'm very aware of time and I need to minutes that's your that's your argument that's my argument I think we really must have a break now my can I can I conclude on that one point because then I don't need to come back to it which is that this sort of obligation to have a remedy under domestic law arises in many many many conventions and it's never been suggested that it follows inevitably that because you've agreed to create a remedy on the domestic law level everyone else with a party to the mention has agreed to submit to that and we say and we say You must read it carefully I will not have time to go through it Pinos is directly on point and the echr the iccpr are the same those are my submissions my Lord if you want to I'm very conscious that um you seem to be crumming in a lot of really quite difficult points perod of time I don't want you to be to feel that you haven't had the opportunities to make the points you need to make Mr um speaking for myself I've endeavored to keep quiet perhap not very successfully but I have tried there's absolutely no point in your keeping quiet I mean the whole point of this is the exchange and I'm sorry it let let's take five minutes I'd like you all to think very carefully indeed about whether we really are going to finish this case by off boss four because I have considerable doubts R able [Music] I've got [Music] I just need to come on minutes to make submissions I know on the trou uh eight spe oh you even lab the so later you know go back through even sometimes show bu no I [Laughter] know evidence rules I have one but it's slightly the rest of cour R [Music] able on the point that that you raised just before the break so I haven't spoken myself but and and no doubt that be corrected but I understand that the collective view is that no one wants an overrun surprise but but obviously we are in your hands uh so so that is from us the B uh my learner Junior was very persuasive in making me understand that the last 10 pages of my notes were not necessary I've just got two points that I will make uh and and then I will sit down and then hopefully Mr tomin can be no more than 20 20 25 minutes and then just so we know I mean I haven't spoken to my colleagues as how late we can sit that there is an issue given we started at 10 o' there the obvious issue of of um diminishing returns if I can put it that way yeah the day wears on and everybody gets tired it's right as my le friend say it's quite right the council are obviously in the Court's heads if if you need our assistance we will assist you and how is a different question if you want us to uh put additional reply points in writing rather than orally we can do that if you want to schedule further time for hearing we can do that the only point I would make is this all the parties so far have confined themselves to the times I have we had one day and the other parties gave us a little bit of extra time we always said that was going to be tight but the other parties gave us a little bit more time we have split it equally I conf finded myself precisely to the time that we agreed Lear friend said yesterday he wanted