Unmistakable evidence is required to show that the parties agreed to arbitrate the arbitrability issue (arbitral jurisdiction to be decided by arbitrator), but the fact that a party did not sight the instrument under discussion is not determinative of the issue
The government is not signatory to the JVA or nay document, expect the Protocol Agreement with JV Kemir, but it conducted tendering process, negotiated terms, was active in the management of exploitation. The legal entity signatory (Turkmenneft) was created by presidential decree
Provisions of the Join Venture Agreement Kemir contained commitments that only the government could give or fulfil such as special treatment to export, preferential tax regime. Taken in isolation none of the provisions would be conclusive for the proposition that it was the intention of the parties for the government to be bound by the provisions of the JVA, but cumulatively they constitute a significant involvement of the government powers and interest in the contractual relationship.
Art 22.3 JVA said that ‘interests, rights, obligations of Turkmenistan’ were represented by Turkmennef
Art 28.9 JVA provides that a guarantee by Turkmennef to the claimants ‘against any limitation to which the claimants may be subject’ in the access to the pipelines capacity in Turkenistan, exchange and exports, currency controls. All those provisions are not pre-contractual, they are contained in the contract itself, they are representation with no ability for enforcement if the commitment of the government would not be fulfilled. The provisions are integral to the effective operation of the project and reflect a direct hand of the government. They can be so only if the government were bound to them. The rational, good faith conclusion is that the government intended the claimants to rely on these commitments and to be bound to ensure that they would be fulfilled. Even more, they were included in the JVA by presidential decree. So government is a party to arbitration
The respondent and the government had said that the project will not be allowed to continue and the JV is at end.
For a repudiation to be effective it must be accepted. The government has repudiated the JVA without legal right to do so, nothing impedes the tribunal to order specific performance, and damages have not been claimed. But if claimants accepted the repudiatory conduct bringing the JVA to an end, damages would have to be assessed it would be calculated in according to present value. Third arbitrator will present a dissenting oppinion