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International Arbitration Forum

ICC tribunal rejects Tullow's challenge to Ghana's US$393 million tax assessment

The IAF Insider · Issue No. 1 ·

An ICC award on reviewing a host state's tax assessment under petroleum agreements leads today's issue. Also: how the English and Australian appellate courts approached India's immunity under the New York Convention, Germany's top civil court on third-party notices to arbitrators, CORD's new arbitration rules, and the growth of defence-procurement arbitration.

Investment arbitration · Africa

ICC tribunal upholds jurisdiction but dismisses Tullow Ghana's challenge to US$393m tax assessment

A London-seated ICC tribunal rejected Tullow Ghana Limited's contractual challenge to a USD 393.1 million tax-and-penalty assessment by the Ghana Revenue Authority, in a final award dated 22 September 2026. The tribunal was chaired by Albert Jan van den Berg, with Michael Pryles and J. Christopher Thomas. The assessment comprised about USD 196.5 million in income tax plus a 100% penalty. It concerned business-interruption insurance proceeds of about USD 561.6 million that Tullow's parent received after the Jubilee field FPSO's turret bearings were damaged in 2016.

The tribunal found it had jurisdiction over the claims under the two petroleum agreements. It held that Article 12 obliged Ghana to comply with its petroleum income tax law. However, it declined to reassess tax liability afresh. It reviewed the authority's discretionary decisions only for reasonableness, on the balance of probabilities. It found no breach of Article 12 and held that the penalty fell outside that provision. Aceris Law notes that the award does not set a general rule on how such insurance proceeds are taxed in Ghana.

Why it matters The award separates a tribunal's jurisdiction over tax-related contract claims from its power to review a tax authority's assessment, which matters for stabilisation and fiscal clauses in extractive contracts.

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Courts and enforcement · Global

Australian and English appellate courts agree New York Convention ratification is not a waiver of immunity

Lawyers at Herbert Smith Freehills Kramer compare two decisions from earlier this year. The High Court of Australia ruled in April 2026 and the Court of Appeal of England and Wales in June 2026. Both concerned awards won by Mauritian investors against India under the terminated 1998 Mauritius–India BIT, arising from India's annulment of a satellite S-Band spectrum lease. The awards valued the investment at US$740 million. Both courts held that India did not waive its immunity from recognition and enforcement proceedings by ratifying the New York Convention.

According to the authors, the two courts reached the same result by different routes. Each applied its own national test for waiver. The Australian test requires a waiver in a treaty to be clear and unmistakable. The English test requires an unequivocal agreement to submit to the jurisdiction. In the lower courts, the Australian Federal Court had found a waiver. The Full Court then decided the case on India's commercial reservation, while the English High Court rejected the waiver argument.

Why it matters Award creditors against states cannot rely on the New York Convention alone to overcome immunity in either jurisdiction and need another exception.

Sources

Courts and enforcement · Europe

German Federal Court of Justice allows third-party notice on an arbitrator in set-aside proceedings

In a decision of 30 July 2026 (I ZB 6/26), the German Federal Court of Justice (BGH) held that a party may serve a third-party notice on an arbitrator in court proceedings to set aside an award or declare it enforceable. The underlying DIS award was challenged on the basis that an arbitrator had failed to disclose links to a law firm that had advised the claimant. The claimant served the notice to preserve a possible damages claim against the arbitrator. The Bavarian Highest Regional Court had refused service, treating arbitrators like judges and court experts by analogy.

The BGH rejected that analogy. It said an arbitrator may be unaware of the court proceedings and may later dispute the court's findings. It accepted that if the arbitrator intervenes, remittal to the same tribunal may be blocked. It gave priority to the notifying party's interest in binding findings, while confirming that abusive notices must be refused. Linklaters authors expect such notices to remain rare and note that the BGH gave little guidance on where abuse begins.

Why it matters Arbitrators facing disclosure-based challenges in Germany may be bound by court findings in later liability claims, and this can affect whether the case is remitted to them.

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Rules and legislation · Asia-Pacific

India's CORD adopts 2026 rules with complexity-based fees, delay costs, AI limits and optional appeals

The Centre for Online Resolution of Disputes (CORD), an India-based digital institution, introduced new Rules of Arbitration on 4 September 2026. The rules are described by CORD's co-founder and CEO. Under Rule 9, cases are placed in one of three tiers based on value and complexity, with arbitrator fees ranging from 60% to 140% of the model fee scale in India's Arbitration and Conciliation Act. Rule 15 makes a daily cost payable to CORD when a party misses a deadline, unless the tribunal or Registrar grants an exemption with written reasons.

Rule 38 and an AI Practice Note bar arbitrators from using AI to draft any part of a merits award or to decide facts, law, credibility, damages or jurisdiction. Some other uses require disclosure. Parties may use AI without disclosure but remain responsible for their submissions. The rules also allow optional appellate review, move arbitrator challenges outside the institution and provide for sector-specific rules.

Why it matters The rules are a detailed institutional attempt to regulate arbitrator use of AI and to attach automatic costs to procedural delay.

Sources

Commercial arbitration · Europe

Ukraine war procurement drives a growing number of defence arbitrations

Kennedys partner Oleg Shaulko argues that defence disputes are becoming a distinct area of arbitration practice. He cites a reported US$347 million LCIA claim by Ukraine's SpetsTechnoExport against US exporter Regulus Global over artillery and rocket contracts. Other examples are an award of more than US$18 million that Ukraine announced in January 2026 from a Swiss Arbitration Centre case over undelivered ammunition, and a reported claim of about €59 million in Switzerland by Estonia's Centre for Defence Investments against an Indian-owned shell supplier. He also notes reports that about 10% of new 2025 cases at Ukraine's ICAC were defence-related.

The author expects future cases to involve drones, software and autonomous systems, and possibly operational battlefield data as evidence. Given the sanctions, export-control and security issues involved, he argues that tribunal composition matters more than parties may assume.

Why it matters Counsel and arbitrators should prepare for sensitive evidence, sovereign counterparties and enforcement risks in defence-sector cases.

Sources

In brief

  • Resolve Academy authors compare sports arbitration frameworks and argue for a hybrid model that keeps CAS expertise while accepting greater judicial accountability for decisions affecting athletes' fundamental rights. Daily Jus ↗

Summaries are written with AI from the freely available articles linked under each story; read the original sources for full details. Nothing here is legal advice.