DOJ must meet a high standard, but it does not require proof of bad faith

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Tribunal opines that FET standard is linked to customary international law under NAFTA, which only protects against a procedural denial of justice

Arbitrators opine that, absent a denial of justice, judicial actions cannot amount to an indirect expropriation, therefore they examine the DOJ claim first

Tribunal finds that the claimant was the victim of a complex fraudulent scheme orchestrated by Mr. Cárdenas

Background: Claimant alleges that it was the victim of a complex fraud with respect to multi-million-dollar mortgages and promissory notes

Hungary is ordered to pay costs of the annulment proceedings, plus half of the investors’ legal costs

Tribunal was free to order production of award in related dispute

No failure to state reasons, as tribunal upheld jurisdiction

Committee cannot reopen the tribunal’s jurisdictional findings

No failure to apply the law, given how Hungary had framed the argument

Alleged excess of powers on jurisdictional matters still needs to be “manifest”

New evidence and arguments submitted at the annulment stage could be relevant – but, as a general rule, they are not

European Commission can file an amicus brief – but requests for access to the case file and hearings are dismissed

Amici curiae submissions fulfil a limited role under the ICSID Rules

Circumstances for a stay should be independent from the annulment case on the merits

Continued stay of enforcement should not be the rule, but the exception

Questions of attribution and EU law are too intertwined with the merits

Novelty of situation requires caution and a view of the full case record

Presumption in favour of bifurcation in UNCITRAL Rules is “seldom decisive”

EU asks for bifurcation of its two jurisdictional objections

Power to review allegations of lack of independence and impartiality is coherent with the ICSID Convention’s object and purpose, as well as with other rules of public international law

Obvious appearance of lack of impartiality of a tribunal member may lead to annulment for improper constitution of the tribunal, according to the text of the ICSID Convention

Committee applies costs-follow-the-event approach

Guarantee of independence and impartiality is a fundamental rule of procedure

Duty to disclose “cannot be construed narrowly”; double-hatting dictates “caution”

Failure to disclose amounts to a departure from a fundamental rule of procedure

Failure to disclose had a “material effect” on the award, since arbitrators are expected to influence each other during deliberations

Committee applies “three-step test” to examine alleged lack of independence and impartiality

Numerous past and present connections between Mr. Alexandrov and Brattle create an obvious appearance of lack of independence and impartiality

Spain did not waive its right to object to the connections between Brattle and Mr. Alexandrov

Committee annuls award in its entirety

Context of Article 52(1)(a) confirms that proper constitution is a “continuing requirement”; revision and annulment are distinct in nature

Tribunal decides on version of applicable rules, seat of arbitration, and transparency

Ongoing financial interest in Shell also raises justifiable doubts

Decision on challenge to Peter Rees also surfaces

Shell has a significant relationship with Nord Stream 2

EU argues that claims cannot be heard, and asks for an EU seat

Mr. Rees’ former position as Shell’s legal director and member of its executive committee gives rise to justifiable doubts

Investors ordered to bear full costs

Obligation to transfer title is not in itself a valid property title that can be expropriated under Kuwaiti law

Costs to be borne by the claimant

Rule 41(5) standard requires claims to “clearly and obviously” lack legal merit

Objections were filed in time

Six-month negotiation is a jurisdictional requirement, not an optional formality

Factual contentions to be taken at face value, but not if “unequivocally” unsupported by the evidence

Tribunal identifies burden of proof and standard of interpretation

DR-CAFTA’s dual nationality requirement must be met at the time of the alleged breach, and also when the claim was submitted to arbitration

Majority takes into account the specific context of DR-CAFTA

Mr. Hernandez and Ms. Cheek split the arbitration costs between the parties

Majority finds that, at the critical dates, the Ballantines’ Dominican nationality was dominant and effective

After involvement of a funder is mentioned in hearing testimony, claimants were ordered to disclose identity and date of funding agreement

Committee stresses that the scope of annulment must respect the finality of ICSID awards

Adherence to previous ICSID decisions may indicate that no manifest excess of powers occurred

Committee sees no manifest excess of powers in tribunal’s jurisdictional ruling

The tribunal did not exceed its powers by failing to request a new power of attorney after the claimants were placed into bankruptcy

The tribunal did not manifestly exceed its powers in its analysis of the merits

Committee applies costs-follow-the-event approach, but considers that claimants’ legal fees are excessive

Committee stresses that second ground for annulment required identification and violation of fundamental rule of procedure

Committee considers that a lack of power of attorney may be relevant to establishing a breach of a fundamental rule of procedure, but finds no violation

Committee considers that best practices regarding third party funders may also be relevant

Failure to state reasons should ensure that good faith reader is able to understand the motives of tribunal’s decision

Tribunal’s conditions on intervention were unprecedented, EC says

Adding conditions to amici participation could deter it, EC says

Commission seeks to intervene to brief annulment committee on three issues

Amicus role in annulment proceedings is more circumscribed

Committee permits EC intervention, but no access to hearing, and no stay on enforcement of the award

Spain did not share the EC’s EU law arguments to annul award

Arbitrators decline jurisdiction over non-negotiable promissory notes, finding that they were subject to minimum term requirement

Arbitrators uphold jurisdiction over mortgages, deciding that they are independent from loan agreements

Alleging new evidence, the Dominican Republic raises time-bar issue after filing statement of defense

Respondent cites DR-CAFTA environmental carve-out

Claimants use DCF method to establish quantum, while respondent finds no causation and only speculative damages

Claimants argue that permit denials and enforcement measures breach national treatment; state says ‘likeness’ includes environmental impact

Investors claim illegal expropriation of their phase 2 projects

Tribunal orders claimants to grant respondent access to their property, and orders state to “facilitate” visits by claimants to similar projects

Parties disagree on timing and on criteria for determining the Ballantines’ “dominant” nationality under DR-CAFTA

According to claimants, respondent failed to provide full protection and security to their investment when townspeople tore down their gates

Procedural orders reveal US intention to submit non-disputing party brief

Same measures also breach minimum standard of treatment, claimants say

Respondent alleges that transparency claim is outside scope of investor-state dispute settlement under DR-CAFTA

Tribunal opts for different type of bifurcation

Glencore protests Bolivia’s attempt to collect evidence

Procedural fairness and efficiency as guiding principles

Bolivia is free to use section 1782 without leave from the tribunal

Most objections are either not serious enough, or too linked with the merits, to justify bifurcation

Bolivia elaborated on objections in recent filing

Paradise Papers back Bolivia’s “shell entity” claims

ICC arbitration clauses in underlying contracts allegedly bar the claims

Parties dispute whether dispute was foreseeable when claimant was transferred title to the assets

No damages awarded

Costs partly awarded in favour of Costa Rica, but arbitrator dissents

Claimants protest tariff-setting decisions from the regulator

Costa Rica’s conduct was not arbitrary or unreasonable

Claim for lack of due process hits the mark – but with limited impact

Tribunal can see no “deliberate repudiation of the principles of the regulatory framework”

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