Prevailing trend of transparency in investment arbitration weighs on decision on transparency regime

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Given time extensions granted to claimant, respondent can have more time to prepare its own submissions

Proceedings are temporarily suspended while claimant overcomes hindrance in posting advance on costs

Objection over failure to file waivers found to be procedurally efficient to bifurcate

Objection that USMCA legacy investment provision only applies if contested facts pre-date NAFTA’s termination in July 2020 is serious and should be bifurcated

Tribunal relies on 2022 ICSID Rules test for bifurcation, but finds guidance in case law

Background: Mexico asks for bifurcation; claimant withdraws certain claims

Tribunal refuses to allow access to the record and the hearing

EC submission found to not disrupt the proceedings or cause any undue burden or prejudice

EC provides a different perspective and has a significant interest in the proceedings; parties had opportunity to comment

Application of test results in finding that EC is suitable to intervene as an NDP only on limited issues

Exercise of power to allow amicus curiae submission relies on five factors

Background: EC asks for permission to intervene, proposing to address two issues

Parties are told to bear their own costs, but Ghana has to reimburse 50% of the claimant’s share of the costs of arbitration

Counterclaim was based on unfounded assumption that Ghana’s conduct was lawful

As Directives have not yet been enforced, claimants cannot claim resulting damages

Ghana’s unitisation directives breached domestic law, and thus the contract’s stabilisation clause

Local court decisions on validity of unitisation Directives under domestic law have no res judicata effect in the circumstances

Contract’s stabilisation regime would not be breached by any state conduct, but requires proof of non-compliance with domestic law

Background: Ghana’s decision to unify two oilfields encounters opposition from the claimants

Remaining measures cannot be granted given insufficient showing of claimant’s likelihood of success on the merits, and of irreparable harm

Security for claim cannot be granted given absence of a showing of likelihood of success on the merits, while state’s financial situation and behaviour offer no particular cause for concern

Requests for security for claim require high chances of success on the merits, and should take into account opposing party’s financial situation and behaviour

Request for escrow amounts to a request for security for claim

Background: shareholder dispute follows from nationalisation of oil assets

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