Claimants need to provide evidence that they can claim on behalf of deceased claimant’s estate, but new waiver is not necessary

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Tribunal is not in a position to rule on alleged breach of confidentiality order

Motion to compel production is rejected, as tribunal finds that Canada is not required to reformat or repackage old documents

Transparency is the default rule in NAFTA arbitration, and parties carry the burden of proving that content is confidential

Claimants’ financial information is not necessarily covered by confidentiality

Investor conduct does not need to be scrutinized; counter-claim not possible on facts

Tribunal says it takes “reasonable” approach to treaty umbrella clauses

Even if attribution were found in other instances, BIT would not be breached

Certain claims are attributable to Ghana, but don’t amount to treaty breach

Cocoa Board, while state-owned, is not a state organ

Ghana alleges fraud; tribunal not persuaded this would have nixed JV formation

Sale of shares in 2008 does not kill arbitration; outside funding keeps process afloat

Background to the investment

Previous procedural decisions are insufficient to justify costs order

In any case, the Netherlands provided insufficient evidence of costs incurred

Tribunal sees no need to decide whether the Netherlands breached the ICSID Convention by lodging German proceedings

It is “inherently contradictory” for the Netherlands to request costs from ICSID tribunal after challenging its jurisdiction before German courts

No need to decide whether claimant implicitly agreed to tribunal’s power to allocate costs

Background: RWE requests discontinuance after German court confirms anti-arbitration declaration; the Netherlands asks for costs

ICSID system does not bar consolidation of claims

Indication of English law as applicable law does not exclude application of customary international law

Claims based on customary rules on protection of aliens find “typical forum” for adjudication in ICSID arbitration

Tribunal finds no need for full articulation of claims in request for arbitration

Tribunal rejects reliance on estoppel doctrine, seeing no evidence of unequivocal conduct of the respondent or detriment to claimant

Designation under Article 25(1) ICSID Convention must be made by the state

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