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Archives
Background: Power project generates multiple disputes
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In light of its conclusion on jurisdiction, the tribunal saw no reason to discuss issues of good faith in detail
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The claimant failed to prove that CIOC was the investment of Mr. Hourani, tribunal found
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Mr. Hourani’s personal guarantee did not contribute anything to the existing economic arrangement
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Tribunal considered that “risk” and “contribution” were “interdependent” and should be examined together
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Tribunal saw insufficient evidence of actual control over CIOC
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Devincci Hourani accepted as a majority owner of the claimant, despite incomplete evidentiary record
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Tribunal reiterates finding that the BIT’s provision on foreign control is limited by the ICSID Convention
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No dispute over the nationalities of CIOC and Devincci Hourani
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No presumption in favor of the existence of foreign control in treaty-based disputes
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Tribunal adopted its own definition for the inherent meaning of an “investment”, noting that its analysis was not “in the context of Article 25(1) of the ICSID Convention”
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Tribunal turned to the BIT’s preamble to make sense of circular definition of “investment”
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Treaty language was deemed to be relevant when applying Article 25(2)(b) of the ICSID Convention, but it was confined by the mandatory limits of the ICSID Convention
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Tribunal distinguished case from previous arbitrations where Article 25(2)(b) was applied in the context of contract disputes
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Whether local companies can bring a claim under Article 25(2)(b) of the ICSID Convention is a “threshold jurisdictional question”
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Tribunal held that the power to rule on their own jurisdiction gives arbitral tribunals the authority to restate unclear jurisdictional objections
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Tribunal tackled preliminary questions of applicable law and authority of previous arbitral decisions
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Tribunal allowed US discovery proceedings to run in parallel; decision on the admissibility of evidence from such proceedings was deferred to a later stage
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Tribunal declined the claimant’s request for provisional measures
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Background: Kazakh authority terminated oil contract due to alleged problems with CIOC’s performance
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No need for provisional measures
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Ghana doubts foreign control of claimant for purposes of ICSID Convention
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“Foreign Control” is an objective criterion
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No need for a precise level of shareholding
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