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Tribunal must follow “case-law”, which shapes customary international law
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ICSID cases and “international customary law” point to notion of investment
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“Speculative” transaction is not an investment protected by treaty
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Treaty requires home seat to entail real economic activities
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More than €3 million in costs ordered against unsuccessful investor
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Tribunal finds that investor had relinquished interests before alleged treaty breaches
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Investments funded by external sources are not protected under German-Czech BIT
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Merits claims quickly dismissed
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Investor’s unwise business decisions colour tribunal’s analysis
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Factual and Legal Background
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Tribunal acknowledges unsettled jurisprudence, and sharp divisions even when arbitrators confront the same treaty language
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Tribunal sees abusive behavior, but no ground for moral damages
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Foreign investor’s repackaging of a domestic claim falls afoul of temporal jurisdiction requirements
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Abuse of process found
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Tribunal also finds that “narrow door” provided by arbitration clause offers no consent to arbitrate disputes over alleged expropriation
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Tribunal would be prepared to let claimant come to arbitration without first litigating in local court, but the claimant failed to demonstrate the futility of suing in Bulgaria
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Personal jurisdiction is found; material jurisdiction is found, but investment at center of dispute is deemed exceedingly slim
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MFN clause did not expressly indicate whether it applied to dispute settlement
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For benefit of those who might see ambiguity, the tribunal adds that recourse to supplementary means of interpretation also reinforce its preferred reading of MFN clause
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Tribunal’s own reading of the ordinary meaning dwells on the fact that the most favourable treatment owed is treatment “in the territory of” the host state
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