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Tribunal says it takes “reasonable” approach to treaty umbrella clauses
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Even if attribution were found in other instances, BIT would not be breached
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Certain claims are attributable to Ghana, but don’t amount to treaty breach
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Cocoa Board, while state-owned, is not a state organ
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Ghana alleges fraud; tribunal not persuaded this would have nixed JV formation
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Sale of shares in 2008 does not kill arbitration; outside funding keeps process afloat
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Background to the investment
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Complexity of case and discrepancy of costs between the parties mandate to let costs lie where they fell
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Claimant can only blame itself for failing to request reimbursement before statute of limitations lapsed, majority holds
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Alleged procedural misconduct by the Tax Tribunal lacks evidence, and would not reach the threshold for a treaty breach in any event
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Political decisions are not per se arbitrary
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No lack of transparency in context where legal regime was clear
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Assuming MST covers legitimate expectations, tribunal majority sees no breach of claimant’s expectations
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Peru did not breach Stability Agreement since main project was not covered by it, while measures pertaining to stabilised assets were justified by claimant’s failure provide tax authorities with sufficient data
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Stability Agreement only applied to original project, and thus did not rule out legal changes for additional investments
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Law applicable at the time reserved stability provisions for qualifying projects, but did not extend to additional investments
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1998 SA qualifies as “investment agreement”, as local entity relied on it to engage in larger investment project
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“Fundamental basis” test has no role to play when fork-in-the-road applies to “same alleged breaches”, and not to “same dispute”
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“Taxation measures” has a broad scope under the treaty, and covers interest and penalties
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Though their background predates the treaty’s entry into force, none of the impugned measures does
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Claimant obtained knowledge of alleged breach only when acquiring documentary evidence of alleged due process lapses
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Limitation period does not start to run until damage or loss is actually incurred
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Background: Uncertainty over fiscal regime applying to investment and reinvestment in copper mine leads to ICSID claim
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[Updated April 29, 2024: The “elevated” standard for dismissal under Rule 41(5) is not met when argument hinges on contestable treaty interpretation
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