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De facto admission is deemed to have occurred
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FIP is deemed to protect foreign and domestic investors alike
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Prior to turning to relief, arbitrators reject Lesotho’s contention that claimants had argued a different claim in the case than had been stated in their Notice of Arbitration
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Earlier award had ordered respondent to reimburse claimants for half of deposit
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On relief, majority opts for ATA v Jordan solution of reinstating right to arbitration, rather than stepping into shoes of original tribunal and deciding underlying claims
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Dissenter views Lesotho’s actions as “wrongful”, but does not see jurisdiction over them
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Dissenter also disagrees with majority’s handling of the exhaustion issue
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Applying the FIP’s exhaustion of domestic remedies clause
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Legal claims are deemed secondary rights, forming part of protected investments
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Dissenter sees a long-running dispute that falls outside of treaty’s temporal jurisdiction
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Is this a pre-existing dispute that is not covered by the treaty?
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Lesotho warns that coverage of existing (as well as new) investments, of foreigners and nationals alike, would cover every investment in the country
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Fair and Equitable Treatment and denial of justice
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Majority say that investment must be sited in host-state, but legal claims forming part of the overall investment do not need to be similarly anchored in host state
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Arbitrators also give force to separate FIP provision guaranteeing access to “courts, judicial and administrative tribunals, and other authorities competent under the law of the Host State”
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Majority first asks if Lesotho had breached another instrument, the SADC Tribunal Protocol, when it participated in decisions along with its fellow SADC member-states to suspend the work of the SADC Tribunal
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General SADC Treaty provisions on “rule of law” and other objectives are also breached
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