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High Court’s decision was manifestly wrong and arbitrary
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Unilateral, statutory set-off power in hands of government is not binding on the tribunal
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Despite Ghana’s fraud allegations, the tribunal was not exercising jurisdiction over fraud
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Contract is also governed by international law
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State has a duty not to improperly use its own laws to subvert arbitration agreement
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No judicial estoppel to bar Ghana’s set-off defence
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Ghana is estopped from contesting contract’s validity, majority holds
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Independent set-off requires tribunal to address basis of set-off claim
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Dissenter warns of paying no attention to anti-fraud public policy
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Majority refuses to reconsider award
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Fraud should have been addressed, wing arbitrators say
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Nothing ‘absurd’ in providing for two dispute resolution routes in two different contracts
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High Court decision does not displace tribunal’s duty to determine its jurisdiction
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Dissenting arbitrator disagrees on applicable law and also suggests a different interpretation of the BIT’s general structure
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Tribunal nods to possibility that “due diligence” standard may yield differing results depending on sophistication of the host state
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On facts, due diligence standard is breached
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FPS clause found to put “due diligence” standard on host state
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Attempt to reach better protection and security clause in Swiss BIT is rejected
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For majority, BIT is primary source of law
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NT/MFN treatment owed with respect to compensation for war/conflict losses
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Costs
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“Renvoi” in Article 4.1 invites tribunals to consider treatment given to other investors, including under customary international law
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No moral damages requested or awarded, notwithstanding death of some staff members
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Tribunal analyses treaty’s provisions on compensation for losses in case of war/armed conflict/etc.
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