Tribunal drew distinction with previous awards that adopted a restrictive interpretation of analogous arbitration clauses

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Supplementary means of interpretation provide no evidence against broad reading of arbitration clause; declaration under Article 25(4) of the ICSID Convention considered irrelevant to consent to arbitrate by the tribunal

Tribunal held that disputes “involving the amount of compensation for expropriation” cover broader expropriation claims under the BIT, including whether an expropriation had actually occurred

Investor made prima facie claim of unlawful expropriation

In the absence of an explicit limitation, tribunal found that excluding indirect investments from the scope of the BIT would constitute an arbitrary amendment of the treaty

Tribunal looked beyond date of direct acquisition of the investment, finding that previous indirect control was sufficient to constitute protected investment under the BIT

In the absence of an explicit limitation, the tribunal found no reason to exclude investments from Hong Kong from the scope of the BIT once the nationality requirement is met

Decision by state to confer its nationality enjoys “strong presumption of validity”; objecting party must satisfy “onerous” burden of rebutting this presumption

Tribunal considered that arbitration clauses are subject to same standard of interpretation as clauses containing substantive protections

Tribunal criticised “loser pays” principle, considering that the general standard under public international law is that each party should bear its own costs

Interest rate set at average rate of 10-year US bonds

Tribunal set high threshold for granting moral damages, which was not met by the investor

Fact that the investor retained ownership over the investment was considered irrelevant to the quantification of damages, since the company had no residual value

Tribunal rejected DCF model due to short track record of the investment, preferring to rely on the company’s adjusted book value

Tribunal excluded bad faith on the part of the investors for conducts that aimed at mitigating damage and protecting the claimant’s interests in the proceedings

Lack of adequate and effective remedies confirmed unlawfulness of the expropriation

Failure to comply with Peruvian laws and guidelines and absence of effective legal remedies deemed material to measures’ arbitrariness

Internal and Peruvian law provided for analogous standards to assess arbitrariness of state’s conduct

Police powers exception does not apply if state’s conduct is arbitrary or discriminatory

Impact and duration of interim measures resulted in an indirect expropriation of Mr Tza’s investment

Tribunal defined indirect expropriation based on impact of the measures, but held that exercise of police powers prevented compensation unless investor proved arbitrary or discriminatory conduct on the part of the state

Tribunal delved into details about conditions for imposing interim measures under Peruvian law, noting that exercise of discretionary powers by state authority must be based on an informed, justified, and reasoned decision

Tribunal considered that tax audit constituted a routine operation within the powers of the tax authority; full analysis on the point attached as a separate annex to the Award

Police powers deserve deference, but not when measures are unreasonable, discriminatory, or abusive

Applicable law includes domestic law, but only as a tool to define the legal relationship between the parties; conduct of the state must be evaluated against its international obligations

Background: Chinese investor claimed that provisional seizure of his assets by Peruvian tax authority amounted to an indirect expropriation of his investment in the fishmeal sector

Notice of intent is adequate for Article 26(4) of ECT to constitute acceptance of offer to arbitrate under the treaty – tribunal differentiates Benabderrahmane v. Qatar

Application of ICSID Rules is governed by date of claimants’ consent to arbitration

CELEC is ordered to pay 4.2 million USD in costs

Interest rate is calculated based on rates of Ecuador’s Central Bank, non-compounded

Most counterclaims fail based on prior finding that CELEC wrongly terminated the contract; remaining counterclaim is dismissed on the merits

Tribunal awards 45 million USD to Inter Rao for earned value, reimbursement of guarantees, and damages

Contract allows for unilateral termination in case of breach

CELEC’s jurisdictional objections are inconsistent with counterclaims

Dispute over the Contract’s unilateral termination falls within the scope of the arbitration agreement

Parties’ dispute over the Contract’s unilateral termination is arbitrable both under the lex arbitri and under Ecuadorean law

Contract is subject to Ecuadorean regime for international contracts with publicly-held companies; the CISG does not apply to turnkey contracts

Background: Termination of hydroelectricity contract leads to arbitration claim

Alleged unenforceability of the award cannot deprive the tribunal of jurisdiction

Comity cannot trip the case, since it is inapplicable in the circumstances

Investor-state disputes are arbitrable under international law, with majority considering that this conclusion is boosted by international public policy

Actions and instruments by EU member states cannot trump clear meaning of BIT

Finding of invalidity of BIT’s ISDS clause would not undo past consent of the parties to arbitrate

Achmea ruling did not include an analysis under international law, which is the sole way for the tribunal to review the BIT’s alleged invalidity

Tribunal majority sees no incompatibility between EU legal framework and BIT arbitrations

EU treaties and BIT do not share the same subject matter, since they deal with different topics, grant different rights, and provide for different remedies

Law applicable to the tribunal’s jurisdiction and the merits is international law; EU law may only be relevant through the rules on succession of treaties

Silence in treaty cannot be interpreted as a bar to multi-party proceedings

Differences in prayers for relief and causes of action between domestic and international proceedings indicate that the same dispute has not been brought before two different

BIT contains fork-in-the-road clause, whose purpose is to prevent investors from having two bites of the cherry

No abuse or fraud in using foreign companies to hold interests in domestic companies

Prohibition of round-trip investments would amount to unduly adding jurisdictional requirement to the treaty, tribunal finds

While abuse would justify refusing to rule on the claims, the tribunal see no abuse in 2014 reorganisation

No abuse in restructuring, since investments were already protected by treaty

“Permanent seat” requires more than registration, but claimants meet the test

BIT’s negotiating material undermines the state’s interpretation of “permanent seat”, majority holds

Effet utile principle backs the claimants’ contention that “permanent seat” refers to genuineness of seat in home state

Terms “permanent seat” should be given an autonomous meaning under international law

Proceedings are partly bifurcated, as one objection is tied to the merits, while another one would benefit from waiting for development on intra-EU stage

Background: Group of companies active in Czechia’s gambling sector lodges treaty arbitration

Costs are split

FPS claim is dismissed for the same reasons as FET claim

The state’s de facto conduct afforded reasonable protection for the claimants’ acquired rights, despite adverse local decisions

Vested or acquired rights are protected under international

The state never made any specific representation inducing the claimants’ investment

Alleged violation of legitimate expectations must be disproportionate to amount to an FET breach

No arbitrariness in municipalities exercising their right of self-governance, or in domestic courts deciding on domestic legal matters

FET standard includes obligation to maintain a stable regulatory framework, although this obligation is not absolute

States’ right to legislate is particularly relevant in sectors where state sovereignty or welfare are at stake

Tribunal is not acting as supranational review court, since its jurisdiction is limited to examining alleged breaches of the BIT

BIT and international law apply to the dispute; arbitrators have no jurisdiction to interpret or apply EU and domestic law

Background: Changes to licensing authority over gambling systems curtail claimants’ operations

Background: Colombia files for annulment, criticizing the tribunal’s treatment of its corruption and illegality objection

Question of whether heirs can bring claim if the deceased investor never consented to ICSID/ECT arbitration is novel and requires further briefing, therefore the high standard of Rule 41(5) is not met

Rule 41(5) objection must focus on legal (rather than factual) elements and can be jurisdictional in nature

Failure to provide ELA funding to Laiki-owned subsidiary was discriminatory

Contemporaneous buyout offer does not reflect fair market value, as it came when claimant’s subsidiary was already meant to be sold

Tribunal can show “some flexibility” with burden of proof on causation

No arbitrariness in regulator’s failure to answer request when the claimant itself failed to comply with agreed procedure

Reficar is awarded 87% of administrative costs and 58% of legal costs

Tribunal fixes liquidation date of contract and sets off damages awarded to the parties

Liability cap does not apply since there was culpa grave and gross negligence in the breaches of the agreement

Tribunal grants costs for uncompleted works to Reficar, while rejecting claims outside the scope of the arbitration

Tribunal finds improper delay in the completion of the project

Tribunal accepts counterclaims for unpaid invoices but significantly reduces amounts awarded to CB&I

Exclusions reduce excess costs by over 1 billion USD

Tribunal finds that Modified Total Cost approach would be the appropriate standard to assess reasonableness of costs

Contractual breach of commitment to control costs leads to finding of liability

Decision to switch cost methodology was not induced by dolo incidental

Tribunal fails to find any bad faith in pre-contractual negotiations

Tribunal makes detailed assessment of pre-contractual negotiations and finds that Reficar implicitly accepted the change in payment terms

Applicable law requires joint consideration of Colombian and New York Law

Absence of witnesses would result in additional scrutiny; access to evidence does not result in shifting of burden of proof

Tribunal allows use of evidence obtained in parallel court proceedings, but restricts use of documents protected by attorney-client privilege

Background: Dispute over delayed refinery project leads to claims of over 1.7 billion USD

Set-aside proceedings against Lion Mexico award remain pending before US courts; motion to intervene reveals tribunal’s decision on amicus curiae applications

Respondent ordered to pay part of Laiki’s legal expenses, and to bear the costs of the arbitration in full, plus interest

Interest rate is set at LIBOR for six-months deposits, plus 2%, compounded semi-annually

Claimant is awarded damages in the amount of 34.5 million EUR for discriminatory exclusion from ELA and consequent increased costs of funding

Claimant fails to provide evidence to support counterfactual scenario for loss of profits

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