ICSID Chair follows Mr. Dupuy’s recommendation, rejects arbitrator challenge

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CAFTA parties’ agreement on arbitrators’ nationalities applies to appointments made by the parties as well as appointments by ICSID’s Secretary-General

Treatment of similar provisions in NAFTA amounts to relevant practice and militates for allowing a party to appoint an arbitrator who holds the nationality of either party to the dispute

Matter is rendered more complex by Honduras’ refusal to participate in tribunal’s constitution

Mr. Dupuy finds that key question is whether Honduras consented to the appointment of an arbitrator holding the nationality of either party to the arbitration

ICSID Chair is tasked with ruling on the disqualification proposal and decides to seek recommendation from Pierre-Marie Dupuy

Background: Honduras challenges Mr. Rivkin, arguing that claimants could not appoint an arbitrator holding their nationalities under the ICSID framework

Background: claimants made two 2011 investments in Spanish CSP plants

Romania bears full arbitration costs and 60% of claimants’ fees

Tribunal looks to treaty text to award interest at market rate, rejecting risk-free rate and actual borrowing costs

In “but-for” scenario, claimants would not have needed to incur broker fees to sell their GCs

No support in actual scenario for discounted energy sales due to “bundling”; dissenter argues for deferred sales

Using producers’ energy forecasts to limit compensation was not an ECT breach, and associated losses are not compensable

Tribunal issues detailed guidance on joint damages model

Background: Tribunal finds liability on narrower grounds than assumed by claimants’ quantum model, orders further proceedings failing agreement by parties on damages

Arguments on reciprocity and <em>exceptio non adimpleti contractus</em> are jurisdictional, and cannot be addressed in damages phase

Tribunal permits arguments on illegality, mitigation of loss and contributory fault at damages phase

Russia cites ECtHR case-law in contending that compensation for expropriation is not required where “exceptional circumstances” arise

Merits submissions are also precluded, but tribunal permits submissions on <em>quantum</em>

Request for stay of proceedings pending decision on set-aside is denied

Following Russia’s entry into the arbitration, tribunal rejects Russia’s request to present submissions on jurisdiction two years after jurisdictional award

Domestic courts not necessarily less favourable than international arbitration

Majority finds that scope of MFN clause depends on interpreation of “treatment”

Argentina’s subsequent practice cited by tribunal

Tribunal not moved by fact that some exceptions were made to MFN clause

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