Recording of negotiations taken without knowledge of claimant is admissible as evidence

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Claimant could not hold any legitimate expectation of receiving subsidies that were unlawful under EU law

Legitimate expectations cannot be continuously updated, majority finds

“Complex reality” of long-term investments requires to take regulatory changes into account when assessing legitimate expectations

For the majority, “stream” of FiTs cannot rise higher than “source” of support for renewable energy – i.e., “reasonable return”

Most aspects of the reform are not disproportionate, majority says

Claw-back of past subsidies is disproportionate

Enforcement of award is an issue for the parties

Changes were radical and disproportionate

“Ghost” of Achmea objection is exorcised

Majority adopts “Blusun test” and finds no stabilisation commitment in Spanish law

Carve-out does not bar tax gross-up claims

FET standard refers to a “direction”, not a “destination”

Tribunal grants partial discontinuance, absent prejudice to Spain

Parties to agree on quantum

Tax-based expropriation claim is admissible, despite claimant’s failure to seek input from Spanish tax authorities

Unequal impact of tax irrelevant for purpose of ECT’s carve-out

Background: Decades-old investment in wind power facilities is impacted by Spain’s regulatory reform

Additional acts do not renew the limitation period for continuing breaches, majority holds

Dissenter considers that limitation period for continuing breaches should only start to run after the breach ceases to occur

Failure to implement Master Plan did not violate any reasonable and unequivocal expectations

Arbitrators send draft award to the parties

Notice of dispute cannot suspend limitation period

Chile violated the claimants reasonable and unequivocal expectations that the state would make reasonable efforts to combat fare evasion

No expropriation of terminals

Claim for creeping expropriation entails a composite act, and it is not time-barred

Tribunal identifies applicable law, emphasizing iura novit arbiter principle

For the majority, the limitation period for continuing breaches begins to run when the claimants first acquired knowledge of the initial measure

Chile also breached expectations that the state would combat vandalism

Tribunal sees no obligation to restore the contractual equilibrium under general Chilean law

Claimants were under no obligation to submit waiver for their companies, since they presented claims in their own names

Frustration of expectations regarding fare evasion and vandalism did not cause the destruction of the companies’ value, thus no expropriation occurred

Claims for unfair and inequitable treatment, discrimination, and failure to provide full protection and security are dismissed summarily

Claimants are ordered to pay a majority of costs, but arbitrators decline to award interest on costs award

FTA provides a variety of criteria for identifying an indirect expropriation, including interference with “unequivocal and reasonable expectations”

Denial of fleet increase was contractual in nature

Arbitrators ask parties for joint valuation model

Cancellation of certain bus routes was contractual in nature

Background: Claimants face difficulties in operation of Santiago’s bus transportation system

Discounts and fines were not imposed in a discriminatory fashion

In Elliott case, Korea cannot postpone publication of statement of defence

Korea as a whole is the respondent, and therefore it can produce documents from its judiciary branch

Elliott case focuses on alleged interferences in corporate merger

Parties spar over application of domestic privacy law and futility of redactions

Tribunal finds that Korean law prevents state disclosure even of public domain information

Korea has waived right to redact its own response, but can validly request redactions in claimant’s submissions to comply with privacy law

Tribunal orders exclusion of documents obtained by Colombia during an unrelated antitrust investigation

Tribunal orders restitution of the $19.1 million (US) fiscal liability plus interest, net of taxes

Colombia also violated the claimants’ legitimate expectations that the fiscal control regime would not be applied in an arbitrary or unreasonable manner

Former Comptroller General was biased against the claimants, but this bias was inconsequential since she was replaced

Claimants’ legitimate expectations were not violated by the mere fact that the fiscal control regime was applied to Prodeco

Tribunal does not see a problem with different agencies taking differing postures that the claimants deemed “inconsistent”

Glencore asks for declaratory relief

Claims are ripe for adjudication and therefore admissible

Claimants’ argument based on the lack of willful misconduct is moot

Tribunal concludes with declaration as to obligation not to engage in “same wrongful conduct in the future”

BIT does not offer consent to arbitrate claims under the treaty’s umbrella clause

Tribunal finds that Prodeco was not denied due process during the proceedings before the Contraloria

The claim arising out of local annulment proceedings brought against the Amendment was considered by the arbitrators to be treaty-based

Arbitrators agree that “unreasonable measures” are broader than “arbitrary measures”, but tribunal members diverge as to whether the threshold for establishing an unreasonable measure is high

Request for Conciliation does not trigger fork-in-the-road provision

Tribunal applies balance of probabilities approach to Colombia’s corruption allegation, but arbitrators find no ‘red flags’ indicating corrupt behavior

Colombia is ordered to bear the arbitration costs and part of the claimants’ legal expenses

Investment was not procured through “bad faith and deceit”

ANM’s challenge of the Amendment before Colombian courts did not breach the BIT

Another Colombian government agency second-guesses the bargain struck by Glencore with state mining authorities, and seeks to claw back revenues from the miner

The Contraloria’s findings regarding the existence and the quantum of damages allegedly incurred by the State due to the adoption of the Amendment are “unreasonable”

UNCITRAL standards govern the question – IBA Guidelines are subsidiary

Disclosure of cases in which the arbitrator acted as counsel against a party is “desirable”, but lack of disclosure is insufficient to warrant disqualification

Venezuela invokes past role as counsel against the state, public statements, and continuing links with former law firm as basis for arbitrator challenge

Frequent involvement in cases adverse to a party could lead to justifiable doubts as to independence and impartiality

Arbitrators consider that ICSID Convention and ICSID Rules confer broad discretion to the tribunal in evidentiary matters

Tribunal finds that attorney-client privilege and common interest privilege are applicable in ICSID arbitration

Tribunal holds that documents related to the elaboration of previous bidding conditions are covered by Chile’s deliberative privilege

Arbitrators accept redaction of documents designed to highlight relevant parts

According to claimants, failure to fight fare evasion and vandalism amounted to breach of FPS provision

Arbitrary and discriminatory measures also alleged

For investors, specific representations as well as general legal framework created legitimate expectations subsequently breached by the Respondent

Absence of reasonable chance to restore contractual equilibrium amounted to violation of due process for investors

Rios brothers consider that less favorable treatment of Colombian operators amounted to violation of non-discrimination provisions

Investors argue that Chile’s acts and omissions amounted to a creeping expropriation – perhaps inviting tribunal chair to weigh in on an issue that was at center of recent set-aside ruling

Investors claim full reparation valued at the date of the award, amounting to USD 332 million

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