Apple Inc. v. Samsung Electronics Co. Ltd. et al
NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)
Title: Gaillard, Emmanuel, L’interdiction de se contredire au Détriment d’Autrui comme
Principe Général du Droit du Commerce International, Rev D’Arb. 1985, at 241 et seq.
Table of Content:________________________________________________________
L’interdiction de se contredire au Détriment d’Autrui comme Principe Général du Droit du
Commerce International (the principle of estoppel in certain recent arbitration judgments)
I. – THE SOURCES OF THE PROHIBITION TO CONTRADICT ONESELF TO THE
DETRIMENT OF OTHERS
II. – THE SYSTEM OF THE PROHIBITION TO CONTRADICT ONESELF TO THE
DETRIMENT OF OTHERS
Referring Principles: _____________________________________________________
Referring Principle: No. I.1.2 – Prohibition of inconsistent behavior
THE PROHIBITION TO CONTRADICT ONESELF TO THE DETRIMENT OF
OTHERS AS A GENERAL PRINCIPLE OF THE LAW OF INTERNATIONAL
TRADE (the principle of estoppel in certain recent arbitration judgments)
By Emmanuel Gaillard
1. The prohibition to contradict oneself to the detriment of others has recently gained acceptance as a new
general principle of International Trade Law by means of certain arbitral awards.
Therein lies a phenomenon that deserves continued focus insofar as if the rule does benefit from solid
foundations in comparative law and international public law; it has not been received as such in all judicial
systems and is generally not mentioned among the general principles that make up the lex mercatoria
whose nature and mere existence are now so resolutely controversial.
Independently of the interest that the appearance of a new rule of law may still arouse as regards the
method, most particularly in a context as heated as that of the lex mercatoria,…
… it is without doubt that the rule bringing about the prohibition to contradict oneself to the detriment of
others is liable to have a major practical impact in International Trade Law. It is indeed rare that parties do
not have, whether rightly or wrongly, certain inconsistencies that can be blamed on one another in major
international trade litigation. Furthermore, would we have enough attention so as to not forget the condition
of prejudice brought about against others, without which no contradiction would be able to be sanctioned4
and to not lose sight of the paradoxical nature of the doctrine of estoppel, an Anglo-American form of
principle, which has always held that it be applied solely in a very discrete manner, so as to not give rise to
long doctrinal motivations, apart from in the cases where they were to be rejected. It would nonetheless be
excessive to prematurely conclude as much, as has sometimes occurred, wrongly in our belief, as regards
International Public Law, that the principle would definitively not have any real practical interest.
The first arbitral awards that refer to or have applied this principle in the context of International Trade Law
do not escape this paradox.
2. The award rendered under the auspices of the I.C.S.I.D. on September 25, 1983 by Messieurs Goldman,
Chairman, Rubin and Foighel, in the case of Amco Asia vs. the Republic of Indonesia, under the rule of the
estoppel, more clearly expresses the desire to solely recognize the feature of general principle of
International Trade Law in the instance in which the conditions for its application were not fulfilled.
The litigation relating to an investment in a hotel in Indonesia pitted three plaintiffs – a first foreign investor,
Amco Asia, a subsidiary established under the local laws by means of the rte channel by which the
investment had been undertaken, P-T. Amco, and a second foreign investor, Pan American, to which a
portion of the shares of the subsidiary established under the local laws had further been transferred –
against the Republic of Indonesia, the defendant, which had been accused of having seized the hotel which
was the object of the investment…
…by means of military action and to have illegitimately withdrawn the initial investment authorization. The
Republic of Indonesia had, among other means that specifically concerned the conditions of the jurisdiction
of the I.C.S.I.D., asserted that the arbitral tribunal did not have jurisdiction to hear any instances relating to
the breach of any lease contracts that had intervened between the subsidiary established under the local
law, P.T. Amco, and the lessor, P.T. Wisma, insofar as the latter was not a contracting State and that
litigation between private parties did not fall under the jurisdiction of the Center. Fearing that the plaintiffs
would reply that P.T. Wisma was in reality nothing more than the expression of the State, which would have
been sufficient to ruin this means, the Republic of Indonesia took care to add that the plaintiffs were
estopped to claim that which they called the “alter ego theory”, most notably by reason of the contrasting
position which P.T. Amco had itself taken before the Indonesian jurisdiction in a parallel instance which
opposed it to P.T. Wisma, as well as before the I.C.S.I.D. itself up until a certain date.
In truth, this precaution did not have any effect on the issue of the litigation, insofar as the arbitral tribunal
had simply judged that it had the jurisdiction to hear a request that was not in effect a “lease claim”, but
rather a claim for indemnification following the expropriation by the State of a foreign investment; this
notwithstanding that P.T. Wisma did have a distinct juridical personality to that of the State. It was thus that
neither the argument of the “alter ego” nor that of the estoppel, which is meant to prevent such a situation,
has any pertinence.
It is however lucky that the arbitral tribunal did nonetheless take the trouble to examine the estoppel
argument that was raised, which it does raise, at this time, to the rank of “general principle that is applicable
to international trade relations in which individuals are implied.”
Thus the famous formula of the Vice-Chairman Alfaro, which is recalled by the tribunal, can henceforth
…read in the terms of private lawyers, as implying that nobody may be permitted to take advantage of their
own contradictions to the detriment of others.
The tribunal adds a few definitions of estoppel drawn from English tradition and underlines certain elements
of its judicial system prior to declaring that it has no hesitation to conclude that in the case at hand, the
argument of the estoppel does not draw upon the question of jurisdiction but rather upon the admissibility or
“the non-admissibility of certain evidence or certain allegations and that the elements of this doctrine, which
is to say the benefit that has been drawn by the party that has been submitted to the estoppel and/or the
prejudice suffered by the other, are not to be found in the present case, which would necessarily exclude
any bad faith of the plaintiffs.”
3. In a completely different manner, the judgment that was rendered on September 2, 1983 by the tribunal
for Iranian-American disputes, made up of Messieurs Mangard, Chairman, Mosk and Sani, in the case of
Woodward-Clyde Consultants vs. Iran and IEAO, applies analogous principles as regards evidence.
So as to resist the request for payment of fees of a counsel, the Iranian Atomic Energy Organization (IEAO)
invoked the right which was recognized by the contract to withhold the amount of the social security
contributions charged to the account of the counsel; up until such time that the same cannot justify that he
be paid these monies by the competent authorities through the presentation of a receipt delivered by these
To be able to make a judgment as to the payment of the social security contributions, the tribunal was faced
with two contradictory documents which were issued both one and the other by the Iranian social security
organism, with on the one part a receipt presented by the counsel, and on the other part a further payment
request which corresponded to the same years and which made no mention either of payment, nor receipt,
produced by the IEAO.
Deeming that these documents, whose authenticity is not put into doubt, contained “totally contradictory and
irreconcilable affirmations” from the same social security organism, the tribunal has granted the request for
payment of the counsel, notably justifying its judgment by the application of the “general rule of evidence
according to which contradictory affirmations…”
…of an interested party must be interpreted against this party.”
This apparently modest judgment thereby effectively sanctions a contradictory behavior and presents the not
negligible interest to issue a “general” principle which is no other than the application, in the right of
evidence, of the idea, in the broadest sense, that nothing that is in contradiction is admissible to the
detriment of others.
4. It is not surprising that it is under the aegis of the I.C.S.I.D. and of the tribunal for Iranian-American
disputes,10 that in the case of a dispute of State contracts, the rule, which is tradition in International Public
Law, has been extended to International Trade Law. However nothing in the sources (I) or in the system (II)
of this new principle allows one to think that it should be considered as specific to State Contract Law and
that it cannot on the contrary be applied in a general manner to any international trade relationship.
I. - THE SOURCES OF THE PROHIBITION TO CONTRADICT ONESELF TO
THE DETRIMENT OF OTHERS
5. In its research for the foundations of the prohibition to contradict oneself to the detriment of others, the
Amco judgment is highly significative of the manner of the creation of general law principles, where it
highlights both the sources of inspiration or real sources (A), as well as the support of judicial technique, or if
one were to prefer, the formal source (B).
A) Its sources do appear clearly, the Amco judgment invokes both the conclusions of Comparative Law as
well as the precedents of International Public Law.
1) It is clear that Comparative Law, which becomes an applied science in the law of international trade
arbitration, plays a major role here.
6. The Amco judgment insists upon the Anglo-American notion of estoppel, which was presented by the
counsel of the defendant, however the principal of prohibition to contradict oneself does benefit from a far
more extensive support in Comparative Law.
As is recalled by the Amco judgment, the estoppel by representation, the sole form of estoppel that is
admissible as the foundation of the discovery of a general principle as opposed to the highly technical
estoppel by res judicata which corresponds to the authority of a judged item of continental laws, designates
a blocking mechanism which works in much the same manner as a stonewalling action. This is the
prohibition made against a person who, by means of their declarations, their actions or their attitude, which
is to say by the “representation” that it might have presented of a given situation, has led another person to
modify their position to their detriment or to the benefit of the first party, to deliver justice for a fact that is
contrary to this initial “representation”. The rule relies upon a requirement of good faith which prohibits one
from profiting from one’s own personal contradictions or, according to the renowned formula given by
another judgment, to “blow both hot and cold, and to affirm on one side and to deny on the other.”
This is one of the numerous correcting mechanisms by which Equity jurisdictions have relaxed the initial
rigor and formality of English law by having good faith and equity considerations prevail, however it is
necessary to recognize that the constraints of respect of precedence have quickly incorporated this principle
of equity in a body of rules which are themselves passably binding.12 However that which allows one to
foresee drawing a general principle from this has less to do with the generalized reception in Common Law
rights and more to do with the correspondences that find the rule in judicial systems that are based upon
quite different inspiration.
The Amco judgment remains very discrete and merely notes that the fundamental requirement of good faith
from which the doctrine of estoppel derives is found in all judicial systems as well as in International Law.13
It would without doubt be possible to go even further to observe that numerous other systems have
developed, on the basis of good faith or other just as general foundations, technical constructions that are
related to the Anglo-American estoppel.
7. In fact, the temptation is strong, when one poses the questions as to whether estoppel is liable to reach
the level of a general principle, to find more or less direct equivalents to this notion of Common Law in all
judicial systems .
However, if one would like to avoid that the accumulation of disparate analogies might necessarily lead to
the conclusion that, by reduction to the smallest common denominator, the new general principle that is thus
discovered is all the more deceiving,15 it is necessary to recognize that the Anglo-American estoppel does
find two very different comparison points in the “continental” law systems.
The doctrine of estoppel does in fact rely upon two poles which are the contradiction (inconsistency) in the
position of the party that is submitted to the estoppel and faith given to the author of the initial representation
by the one who invokes the estoppel (reliance). It is thus, that depending on whether one insists upon one
or the other of these aspects, one is found in the position to privilege the analogy with the theory of
appearance or with the “non concedit venue contra factum proprium principle” of the Swiss and German
8. The rapprochement of the estoppel and the theory of appearance, which is known in a number of
continental law systems, have become classical.16
It is true that the parallel with French law, so as to reason on the basis of this example, was more clear-cut
when the same placed the accent on the sanctioning of the attitude of the person who creates…
… or consciously allows an apparent situation to be created rather than on the necessity to strengthen an
acquired situation on the basis of faith in a legitimate belief. In effect, according to English law, the
“representation” must have been made in a knowing manner, which is to say that they were aware that they
could incite another person to act or, at very least, result from a negligent conduct. The fact remains that,
by differing means, prohibition to establish the existence of a state of the facts that is contrary to the initial
“representation” before the courts or maintenance of acquired rights in view of the apparent situation, the
theories of estoppel and of appearance do frequently achieve results that are analogous in their concrete
9. However other judicial systems, such as Swiss or German law have developed, in parallel to the theory of
appearance which they are also familiar with, a rule that is even more directly comparable to the AngloAmerican doctrine of estoppel: the non concedit venire contra factum proprium principle, for which there is
no equivalent in French law.20
German jurisprudence, of which we know of the importance it assigns to the principle of good faith, by
interpretation of the very general directive of Article 242 of the German Civil Code, does in fact draw direct
consequences from the obligation to not contradict oneself to the detriment of others. The rule is now wellestablished in German law that nothing is admitted to prevail over the existence of facts that are contrary to
their preceding allegations: non concedit venire contra factum proprium. It knows various applications,
which range from the prohibition made to the heir who has aided the deceased to pass a contract to further
invoke the incapacity of the defunct to contest the act, to the justification of the acceptance of the risks by
the one who participates in a dangerous sport,
passing through the sanction of the confusion of assets
in the Law of Companies .
In matters of arbitration, in cases where it was subsequently brought before state courts, it has led the
Federal Court to judge that the party who has relied upon the jurisdiction of the State Courts to deny the
jurisdiction of arbitrators was not able to contrarily expect that only arbitrators had jurisdiction.23 Inversely, it
has been judged that the one who contests the jurisdiction of the state courts, on the basis of the existence
of an arbitration clause, may not argue for the incompetence of the arbitral tribunal.24
The rule prohibiting the venire contra factum proprium has likewise been enshrined in Swiss law which ties it
into the requirements for good faith, to the “principle of confidence”, as well as to the theory of the abuse of
rights. It is thus that a famous ruling of the Federal Tribunal in 1963 held that “the position taken” by one
party “in flagrant contradiction with their previous position”, upon which another party could have relied so as
to “come to a good faith conclusion” as regards the existence of a right, “constitutes a venire contra factum
proprium which must be classified as a legal abuse…
…in the sense of article 2 line 2 of the Civil Code.” A pretense to the contrary that is subsequently brought
before the courts does not therefore merit the protection of the Judge.25
10. More immediate still than that which can be seen by the analysis of French and Italian laws, the Swiss
and German jurisprudence tend to support the idea that the principle by which “nobody is permitted to
benefit from their own contradictions” to the detriment of others, which constitutes the justification itself of the
estoppel doctrine,26 is very much a general principle insofar as it is received, under one form or another, in
numerous contemporary law systems.
Beyond the impossible ideal of universal acceptance of the rule, it is indeed the existence of a sufficiently
wide-ranging foundation which in our view must be sought out in the use of Comparative Law in the
discovery of “general principles” of International Trade Law.
2) The Amco judgment also draws upon International Public Law, where estoppel has long appeared as a
11. Its most powerful and most famous formulation in the jurisprudence of the International Court of Justice
does without doubt remain…
…that of the Vice-Chairman Alfaro who dedicated the entirety of his personal opinion in the case of the
Préah Vihéar Temple. However the brilliance of the establishment of the estoppel doctrine in the opinion
of Mr. Alfaro must not lead to the minimization of the interest of the decision itself. Quite to the contrary, it is
significant that the Court, without using the term, had applied the principle of estoppel or of the venire contra
factum proprium rule in their sanctioning of the contradictory position of Thailand. In the litigation that
brought about the definition of the border with Cambodia, the same had disputed the border line that
resulted from the documentation established through the application of a convention concluded in 1908
between France, prior to the accession of Cambodia upon independence, and Siam, to which Thailand
succeeded. The Court had in fact deemed that “even if there did exist a doubt as to the acceptance by Siam
in 1908 of the documentation”, Thailand, due to their previous position, “is now precluded from asserting”
that they had not accepted the document that stemmed from the treaty from which they had drawn benefits
for 50 years; France, and by the intermediary of the same, Cambodia, having placed its faith in the
acceptance thereof. It is pointed out by the Court that Thailand, “may not today contest that they were never
a consenting party to the ruling, while at the same time continuing to benefit from and enjoy the ruling.”30
We do however find the paradox in international jurisprudence which would have that the rulings just as
willingly affirm the existence of a general principle stemming from estoppel or from the maxim venire contra
factum proprium that the conditions for its application are not met. Therefore, for example, in the case of the
Andean border, the tribunal affirms that “it seems clear (…) that there exists a principle in International
Law, which is furthermore a principle of Substantive Law and not a simple technical evidence rule, according
to which a State which is party to an international lawsuit is held by their previous position and actions when
they are in contradiction with their pretenses in this lawsuit”, this prior to stating that in the case in point,
…contradiction was not sufficiently distinguishable so as to be able to base the argument of estoppel that
was drawn. Inversely, when they do effectively sanction the contradictory position of a State, the courts
prefer to be more discrete as regards the theoretical justifications of their decision. Therefore in the case of
the Minquiers and of the Echéhous, the International Court of Justice rejects the thesis of the French
government whereby the disputed islands and rocks were not liable to appropriation on the basis of the fact
that the French government had itself claimed sovereignty over these islands in the past but is careful not to
touch upon the theory of estoppel.32 However, it would be to make oneself a very dogmatic conception, to
be able to deduce that the estoppel doctrine would not have found any veritable applications in International
Public Law, which does in fact sanction the prohibition of benefiting from ones’ own actions to the detriment
B) Having thus revealed the sources of its inspiration, the Amco judgment goes one additional step further
in the elaboration of the new principle, by formally attaching it to the fundamental requirement for good faith
which one finds in all legal systems; this whether dealing with national or international law.”
12. By placing itself at such a degree of generality, the Amco judgment gives the new principle the
uncontested assize that an overly detailed analysis of Comparative Law might have risked denying,35 and
underlines that which today makes all the interest as well as also all the difficulty of the method of the
general principles of law.
By articulating the principles in this manner, it illustrates in the clearest manner the movement towards the
specialization of the principles of international law…
…which will without doubt be particularly precious to those who believe in the progressive elaboration of a
system of transnational rules.
While retaining a sufficient degree of abstraction so as to be worthy of the qualification of a general principle,
the rule according to which nobody is permitted to profit from their own contradictions to the detriment of
others, is nothing more, as is suggested by the Amco judgment, than one of the corollaries of the more
general principle of good faith for which we would find numerous other special applications (interpretation of
good faith and its own corollaries, good faith execution…). In turn, the principle appears to require
specialization by giving birth to various rules that are applicable in this or another specific hypothesis.
Therefore, “the general evidence rule according to which the contradictory affirmations of a party are
interpreted against this party”, which the Irano-American dispute tribunal applied in the case of Woodward
Clyde Consultants, may be understood as a special application of the prohibition to contradict oneself to
the detriment of others. The Anglo-American doctrine of estoppel is at times considered as a particular
application of this principle which is equally presented under the banner of the maxim “allegans contraria
non est audientus.”
If it constitutes a non-negligible element to be admitted to the file regarding the nature of lex mercatoria,
such an articulation of rules that are at varying degrees of generality, a characteristic of the existence of a
judicial system also constitutes one of the major difficulties of the use of the “general principles” by the
The core of the question is in fact to know to what degree of abstraction one should interrupt at, in the
search for these principles. As is revealed by the Amco judgment, the theory of estoppel as properly
described, is proprietary to the Anglo-American law systems and could “not be considered in all its details as
having a universal applicability.” Even more concretely yet, it is not at all established that the Germanic
concept of venire contra…
…factum proprium and the English doctrine of estoppel, which incontestably partake of the same
philosophy, do indeed cover the exact same cases. Should one therefore only retain the principle, and
sanction any contradiction, or, only seize upon those that would be sanctioned in most systems in which the
“general principle” is induced, something which would result in rigorously opposite results, by means of a
cumulative form of application, and therefore in a more restrictive manner? One point appears to be certain:
to assume that it prevails over the German formula, which is more in keeping with the continental tradition,
the use of the term estoppel should not lead to the systematic favoring of the English or American concept in
the event that these laws do not have any particular relevance to govern the case at hand.
If they commit to the path of recognition of the prohibition to contradict oneself to the detriment of others as a
general principle, it will be incumbent upon the arbitrators, within the logic of the comparative analysis which
is at the base of the principle, to disentangle the essential points from those accessory points, something
that will without doubt not be the easiest task.
The Amco judgment contributes in part by taking a side on certain points of the system of the new legal
II. - THE SYSTEM OF THE PROHIBITION TO CONTRADICT ONESELF TO
THE DETRIMENT OF OTHERS
13. The Amco judgment usefully details the foundation of the rule and the conditions for its application,
however it does generate certain questions regarding the scope which can be recognized to it, in particular
in the context of the Convention of Washington of March 18, 1965 which created the I.C.S.I.D...
14. By expressly tying the principle of estoppel to the “requirements of good faith,” the Amco judgment
openly takes a side in the controversy which, at least as regards International Public Law, opposes the
authors in relation to the foundation of the rule. Certain people do in effect give it a conventional or “quasiconventional” basis, according to which the estoppel would be based upon an implicit agreement of the
author of the “representation” and the one who modifies his/her position upon viewing the initial
…whereas others, who are more numerous, see therein an application of the principle of good faith. On
this point, the judgment can only be approved without reserve, with the “quasi-conventional” thesis
presenting the double inconvenience of dangerously deforming the concepts of Contract Law and gutting the
estoppel doctrine of any interest, insofar as the existence of a convention of the parties, in the event that it
has been established, is in itself self-sufficient.
15. As regards the conditions of its application, it is not without doubt that the principle assumes a veritable
contradiction which was far from being apparent in the Amco case where it was solely reproached of the
plaintiffs that they had not sustained the theory of the alter ego prior to a certain date.
However the Arbitral Tribunal usefully details the requirement for contradiction to which it adds the condition,
which is manifestly inspired by the English doctrine as well as by International Public Law, of an “advantage
extracted by the party who is submitted to the estoppel and/or the prejudice suffered by the other,” the
absence of which “necessarily excludes any bad faith” of the party who witnesses their contradictory position
being reproached. Whereas we can deplore, as regards the formulation, the shift that has thus been chosen
between the objective requirement of prejudice and the subjective notion of good faith, the reminder of which
is not dictated here, the condition in itself is worthwhile. It would be, in effect, particularly dangerous that
any contradiction be able to fall under the same estoppel chopping block and would be shocking that a
litigant be able to avail themselves of the contradiction so as to in turn bring about a legal effect, when
he/she has not at all suffered.
In other terms, the game of principle assumes not only a contradiction but also a contradiction which, in one
way or another, has effectively brought about or brings about a prejudice to another.
16. The Arbitral Tribunal furthermore raises, so as to reject the pretenses of Indonesia, that the “estoppel
argument that has been drawn upon does not deal with the question of jurisdiction but rather with the
…or inadmissibility of certain evidence or of certain allegations.”
On this point the judgment does generate
According to the concept of Indonesia, the estoppel was meant to most notably cause an obstacle to the
establishment on the part of the plaintiffs that P.T. Wisma and the State were but one and the same.
However this was but one single element of a much more generalized argumentation according to which the
Center would not have jurisdiction to hear such a dispute which, in reality, would only have been concerned
with the execution of the lease agreement that had been concluded between two private persons, P.T. Amco
and P.T. Wisma. The thesis, which was based upon the idea that all disputes between individuals were
excluded from the jurisdiction of the Center, could only be successful in the case in which P.T. Wisma was
not considered as the alter ego of Indonesia. As we have already seen, it was to be able to answer this
possible objection that Indonesia invoked the estoppel in opposition to the fact that the plaintiffs might be
able to return to this point. In judging that the claim did not concern the execution of the lease but rather
the seizure of the hotel which was ascribable to the State,43 the Arbitral Tribunal had irrevocably condemned
the argumentation of Indonesia. As such, neither the question of the identity of P.T. Wisma or of the State,
nor by means of consequence, that of the estoppel, which had been charged against them, had any merit to
be asked. By gratuitously observing that the estoppel deals with the admissibility of the evidence and not
with the jurisdiction, is it not that the Arbitral Tribunal intended to indicate that this doctrine could never play
any role in the jurisdiction stage? In truth, this delicate question calls for a guarded response.
Taking a position that is at the extreme opposite of that which has been held by the Amco judgment; various
authors have foreseen the taking into consideration of the concept in the discussion of the jurisdiction of the
Thereby, it has, for example, been suggested that the Host State would be inadmissible in sustaining that a
company having its headquarters in a Contracting State would in reality depend upon a non-contracting
State by application of the criteria of oversight, inasmuch as it would have previously accepted to give it the
recognition of citizenship…
…of the Contracting State. Likewise according to certain authors, the Host State after having accepted to
address a legal person: based upon both local and foreign law, as a result of the oversight exercised upon it
by foreign interests would be inadmissible to further claim that this oversight is insufficient to justify
jurisdiction of the Center.45
One has also invoked the principle of good faith, which is more wide-ranging than that of estoppel, in
support of the idea that a State which has knowingly dealt with a company undergoing the process of
foundation would be inadmissible to preclude the jurisdiction of the Center on the basis of the lack of
incorporation of the investor in a Contracting State at the time of conclusion of the Arbitration Convention.
However one immediately perceives the dangers that the wide-ranging introduction of estoppel could
represent in the judgment of the jurisdiction of the Center, insofar as, in this perspective, it is possible for all
the conditions posed by the Convention of Washington to be reduced to the sole existence of consent of the
parties. To take only one example, it is clear that the Convention has taken care to add an objective
condition of foreign control to that of consent for a local legal person to be able to be treated as a foreigner
for the purpose of the Convention , one would not be able to admit that the notion of estoppel might lead
the control of the jurisdiction of the Center in such a case to purely subjective considerations.
Nonetheless, it is permissible to believe that this reserve must itself only come into play insofar as its raison
d’être and that even in the jurisdiction stage, the estoppel or the non concedit venire contra factum proprium
principle is susceptible to be found to apply, as is the case in German jurisprudence48, inasmuch as the
same would not affect the goals that are pursued by the international legislator. Therefore,…
…in the case in point, if the jurisdiction of the Center did indeed depend upon the point of knowing whether
P.T. Wisma was the alter ego of Indonesia, as has been foreseen by the plaintiff, one would have difficulty in
understanding the reasons for which the inadmissibility to prove this point would not have been taken into
consideration in the debate regarding the jurisdiction, it being naturally presumed that the conditions
regarding contradiction and prejudice have already been established elsewhere. Without doubt, the
sanction that is specific to the estoppel is inadmissibility, as is recalled by in the Amco judgment, however
the impossibility to prove one of the elements of fact which control the decision relating to the jurisdiction
can, in turn, have an impact on the jurisdiction.
It would appear that in a manner no different than that in the Holiday Inns judgment, where it would appear
that it did not need to make any pronouncement on this point brought up by the parties,49 the Amco
judgment does not bring any decisive clarity on this delicate question. It will fall to the arbitral jurisprudence
of the future to settle this difficulty which we solely had the ambition to highlight.
17. Without prejudging the details, it is hereafter permitted to count the rule according to which nothing is
admitted to prevail over one’s own contradictions to the detriment of others among the list of general
principles that are applicable to International Trade Arbitration.
Let us bet that it will live a great career. To be able to judge the extent, care must be given, as is the case in
International Public Law,50 of any statistical approach, insofar as the function of the great corrective
mechanisms that draw upon equity, such as fraud, the abuse of the law or enrichment without cause… is
that of only seizing on those most flagrant situations, with the effect of morality that has been obtained
greatly exceeds the case of the types where they are effectively applied.
Compare the extracts of the judgments that have been reproduced below, Appendices I and II [AMCO
Asia Corporation et al. vs. Republic of Indonesia and Iran-USA Claims Tribunal, Woodward-Clyde
Consultants vs. Iran] p-259-272.
Compare below, No. 7 and subsequent.
Thus, for example, the rule is not cited among the general principles either by B- Goldman, “La Lex
Mercatoria dans le contrats et l’arbitrage internationaux: réalités et perspectives”, Clunet, 1979.475 or by A
Kassis in his work that is nonetheless very complete, Théorie générale des usages du commerce, droit
comparé, contrats et arbitrage internationaux, lex mercatoria, L.G.D.J., 1984.
Compare below, No. 15.
Compare the disappointing observations of the preface which Mr. Virally has devoted to the thesis of A.
Martin, L’estoppel en droit international public, précédé d’un aperçu de la théorie de l’estoppel en droit
anglais, Pédone, 1979, in contrast with the expansionistic ambitions of the author.
For the whole of the matter, see our observations, Chronique d’arbitrage I.C.S.I.D., still to appear, Clunet,
“A state should not be authorized to take advantage of its own contradictions to the detriment of another
State”, individual opinion of the Vice-Chairman Alfaro in the “case of the Préah Vihéar temple”,
Cambodia vs. Thailand, C.I.J., Collection, 1962, p. 6 et seq.; also see the observations of J.P. Cot, A.F.D.I.,
1962, 217 et seq., specially 243-246.
See the extracts that have been reproduced below, Appendix I, Nos. 47-48.
See below, Appendix II.
The doctrine of estoppel has been invoked on multiple occasions before the Tribunal, most frequently
with less luck; see for example the judgment rendered on July 13, 1964 in the case No. 100 (142-100-3) by
Messieurs Mangard, Chairman, Moin and Mosk, Yearbook Commercial Arbitration, Volume X, 1985, 292;
judgment rendered on December 27, 183 in the case No. 245 (99-245-2) by Messieurs Riphagen, Shafeiei
and Aldrich, Yearbook Commercial Arbitration, Volume X, 1985, 316.
Court of the Exchequer, Cave vs. Mills (1862), Hurlstone and Norma, P. 927.
As regards the details of the English concept of the estoppel, beyond the classic work of Spencer Bower
and Turner, The Law Relating to Estoppel by Representation, 3rd Edition, Butterworth, 1977; in particular
see in French language, R. David, Les Contrats en Droit Anglais, L.G.D.J. 1973, No. 303 et seq., J.
Dargent, Une Théorie Originale du Droit Anglais en Matière de Preuve: la Doctrine de l’Estoppel, Thesis
Grenoble, 1943; A. Martin op. cit., P 7-62.
Judgment No. 47.
In this sense, in particular see Martin, aforementioned thesis.
Compare Martin, op. cit., p. 332-336.
In particular see M.-N Jobard-Bachellier, L’apparence en Droit International Privé, Essai sur le Rôle des
Représentations Individuelles en Droit Privé, L.G.D.J, 1984, No. 551 et seq.
For conclusions that are similar for comparisons with Italian law in which the theory of appearance does
not require anything more than the appearance does not result from the false attitude of the one who is at
the basis thereof, see F. Mosconi, “La dottrina dell’estoppel in diritto internazionale”. Diritto
Internazionale, 1962.388, in particular p. 397-399. The comparison undertaken by the author of estoppel
and of the concept of “preclusion” which would prohibit a subject from accomplishing certain acts that are
not compatible with their preceding behavior is more deceiving, insofar as it relies on the analysis of
special rules, which in large part are of a procedural nature, op. cit., p. 395-396. For correspondence of the
concept of estoppel in Spanish law, see in particular José Puig Brutau, Estudios de Derecho Comparado, La
Doctrina de los Actos Proprios, Barcelona, 1951, in particular p. 97 et seq.
In particular see Spencer Bower and Turner, op. cit., paragraph 99; Dargent, op. cit., p. 127, in French
law, the turning point leading to the foundation that was drawn upon by the “legitimate growth” results, as
is known, from the renowned Banque Canadienne judgment rendered by the Plenary Assembly of the Court
of Cassation of December 13, 1962, D., 1963.277, note j Calais-Auloy, J.C.P., 1963.II. 13105, obs, P.
Esmein, rev. rim. Dr. civ., 1963.527, obs. Cornu; Rev. trim. Dr. com., 1963.333, obs. Houin. As regards
this evolution see also Sourioux, “La Croyance Légitime”, J.C.P., 1982.I.3058.
Compare M.-N. Jobard-Bachellier, op. cit., Nos. 556 et seq.
Even if one were not to be surprised that the excellent work dedicated by Messieurs Roland and Boyer to
the Latin phrases and adages of contemporary French law, Lyon, 1978, does not make mention of it,
notwithstanding that we are dealing with a classic of German judicial thought.
Palandt, Commentary of the German Civil Code, §242.
The German jurisprudence thereby decides that the one who does not respect themselves the separation
of assets is not allowed to further invoke this rule against company creditors through the application of the
principle of “venire contra factum proprium”; see for example M. Lutter, “La Responsabilité Civile dans le
Groupe de Sociétés”, Rev. Soc., 1981.704.
Law of May 20, 1968, German Supreme Court, 50, 191.
Court of Appeals of Düsseldorf, January 13, 1978, O.L.G.Z., 78, 375.
Forces Hydrauliques de Saint-Gall and Appenzell S.A. vs. Township of Linthal. May 17, 1963, RO
89.II.287, French translation in Journal des Tribunaux, 1964.334.
In this case, see for example, the conclusions of the Advocate General Karl Roemer, C.J.C.E., Collection,
vol. VI, 1960, p. 1049.
As well as, without doubt, that the absence of manifest incompatibility with the fundamental principles of
the judicial systems which ignore the rule as such. In this regard, the prohibition to contradict oneself to
the detriment of others does appear to us to satisfy this requirement, at least inasmuch as one can tell from
the example of French law, where, under the form that it has been given by the German and Swiss law, the
rule of venire contra factum proprium would easily find a solid hold.
In particular, among copious literature, see Bin Cheng, General Principles of Law as applied by
International Courts and Tribunals, London, 1953, p. 141 et seq.,; G. Schwarzenberger, The Fundamental
Principles of International Law, course at the Academy of the Hague, course collection, 1955, Vol. 87.1, p.
303; D.W. Bowett, “Estoppel Before International Tribunal and its Relations to Acquiescence”, 33 B.Y.I.L.
176 (1957); Mosconi, op. cit., p. 388 et seq.; and the detailed analysis of the jurisprudence by Martin,
See above, Note 7.
C.I.J., Collection, p. 32.
Arbitral judgment rendered on December 9, 1966, R.S.A.N.U., Vol. XVI, p. 111 et seq., and the
observations of J.P. Cot, A.F.D.I., 1968, p. 246-248.
Collection, 1953, p. 47 et seq., in particular p. 58-59, also see, barely more explicit, the arbitral judgment
rendered in 1902 in the case of the Salvador Commercial Company or the “El Triunfo” case, R.S.A.N.U.,
Vol. I, p. 369 et seq., in particular p. 473, or the decision rendered March 29, 1958 by the Arbitral
Commission relating to the goods, rights and interests in Germany in the case Purfürst vs. Vitous, cited by
Martin, op. cit., p. 81; compare the more clear judgment of the Administrative Tribunal of the United
Nations of October 16, 1974, Witmer vs. the Secretary General of the United Nations Organization,
A.F.D.I., 1974, p. 389, obs. T:S:
Compare above, note 5.
See judgment, No. 47.
See above, Nos. 7 et seq.
See below, Appendix II.
In this sense, B. Cheng, Op. cit., p. 141; compare P. Lalive, “The first World Bank Arbitration (Holiday
Inns vs. Morocco). Some Legal Problems”, 51, B.Y.I.L. 123 (1980), in particular p. 145, note 4.
Judgment, No. 47.
In this sense, in particular consult Dargent, op. cit., p. 229 et seq., and with certain reluctance, Martin, op.
cit., Nos. 108 et seq.
See for example Virally, aforementioned preface, p. XI; Cheng, op. cit., p. 143; Schwarzenberger, op.
cit., p. 302; Bowett, op. cit., p. 176; Mosconi, op. cit., p. 398.
Amco judgment, No. 48.
See the presentation of the evidence of Indonesia, judgment, No. 4.
Judgment, Nos. 35-40.
Buffenstein, “Foreign Investment Arbitration and Joint Venture”, 5 North Carolina, J. Int’l L., 191
(1980), in particular p. 205.
Buffenstein, op. cit., p. 205.
P. Lalive, “The First World Bank Arbitration”, aforementioned article, p. 145.
See Article 25-2 (b) closing notes of the Convention of Washington.
See above, No. 9.
See Lalive, op. cit., p. 146.
See above, note 5.