Costs follow the event, but Ghana’s failure to comply with document production is taken into account

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Tribunal majority reads contract as tying GCNet’s remuneration to customs assessment made by the respondent

Liquidated damages clause is meant to avoid complex litigation

Procurement law does not apply to the contract absent evidence that GCNet was being paid from public funds

Tribunal’s duty to render enforceable award requires unequivocal statement from claimant that it will not challenge award based on potential arbitrator disqualification request

Background: Ghana’s overhaul of its customs service processing procedure leads to contract-based arbitration

Pendency of parallel LCIA arbitration does not affect the tribunal’s jurisdiction

Tribunal reckons that <em>expressio unius </em>principle is inapposite

More generally, tribunal considers that MFN clause cannot operate as a substitute for consent

MFN clause referring to “treatment and protection” is not sufficiently broad to apply to jurisdictional matters

No need to resort to supplementary means of interpretation

ISDS is not a significant aspect of the BIT’s object and purpose

Applicable law provision is irrelevant since it only applies to the merits

Tribunal cannot rule on lawfulness of expropriation as an incidental matter

Tribunal rejects suggestion that narrow interpretation would allow the state to prevent investor-state arbitration by denying the existence of an expropriation, finding that assumptions of denial of justice should not be made lightly

Interpretation is confirmed by absence of explicit or “invisible” fork-in-the-road provision

Context confirms that domestic courts have exclusive jurisdiction to rule on the existence and lawfulness of an expropriation

Reference to the “amount of compensation for expropriation” and heading of investor-state dispute settlement provision lead to conclusion that the tribunal lacks jurisdiction over question of entitlement

Elements of Article 31(1) VCLT must be given equal weight; previous decisions merely have persuasive authority

Burden of proving jurisdiction rests on the claimant

Tribunal majority decides to bifurcate proceedings, but rejects claimant’s request for suspension due to pendency of parallel contract arbitration; tribunal decides to forego remaining monies so that Award can be released

Claimant lodges two parallel arbitrations

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