Una reflexión en torno a la arbitrabilidad de las disputas bajo acuerdos de protección de inversiones. Nota al Auto del TSJM de 18 de junio de 2024

Abstract

The Order of the Superior Court of Justice of Madrid (SCJ of Madrid) of June 18, 2024, 
granted the exequatur to the arbitral award issued in Strabag SE v. Libya under the Austria-Libya BIT. The dispute arose from the damages suffered by the claimant due to the insurrection in Libya in 2011, which caused breaches in six construction contracts. The SCJ of Madrid correctly applied the New York Convention to the exequatur of the award, issued under the ICSID Additional Facility, particularly validating the arbitrability of the dispute under the Spanish Arbitration Law. Although the outcome is correct, being the first time in Spain that the Convention is applied to a non-ICSID investment protection arbitration award under a BIT, the SCJ of Madrid could have provided a different analysis of the arbitrability of the dispute given that the investor was not a party to the contracts and that it invoked several investment protection standards contained in the BIT.