Due process failings and disproportionate enforcement of domestic law lead to expropriation finding

You are not logged in. If you are a subscriber, please Login to access. If you are not a subscriber, you can contact us for a rate quote at subscribe@iareporter.com. Alternatively, you can sign up to receive free email headlines here.

Poland relies on ‘police powers’ to justify enforcement of customs law against investor

Investor found to display failings of diligence, but not enough to break causation

Claim followed two earlier BIT arbitrations brought by claimant’s company

Costs apportioned favourably to Poland, accounting for investor’s failings

Fight raged for two years between claimant and its arbitrator

Treaty limited jurisdiction to matters of expropriation, blocking other claims

Requirement to exhaust local remedies found overridden by treaty text

Unilateral, statutory set-off power in hands of government is not binding on the tribunal

No judicial estoppel to bar Ghana’s set-off defence

Independent set-off requires tribunal to address basis of set-off claim

No stay of award pending resolution of fraud charges

Expropriation claim also rejected due to project having become still-born

Claim was brought under contract, but tribunal also looked at Russian investment statute and customary international law

Majority see claim as frivolous and says claimant should bear costs

Investor consortium was supposed to find financing for joint airport development

After project falls apart, and years pass, St Petersburg goes looking for new partners

Payment of deposits led to delay and then appearance of third-party funder

Pre-development expenses and “investor claim” are dismissed

Tribunal rules that former project was “still-born” because appropriate funding was not secured

Tribunal views non-sovereign respondents as capable of committing expropriation

Tribunal seems to have viewed its role as assessing whether international law – not contract’s expropriation language – was breached

Archives