Legal costs for Rule 41 proceedings lie where they fall; allocation of arbitration costs is reserved

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Tribunal majority rules that FET claim manifestly falls under FTA’s tax carve-out, since default interest qualifies as ‘taxation measure’

Tribunal majority finds that expropriation claim is manifestly without legal merit since claimants did not have an FTA-protected investment that could be subject to expropriation

NT and FET claims do not manifestly fall within FTA’s financial services carve-out

Tribunal rejects argument that claimant’s parallel litigation waivers are manifestly without legal validity

Standard under 2022 Rule 41 is high, similar to that of 2006 Rule 41(5)

Background: Peru argues that claim based on imposition of default interest for tax liability manifestly lacks legal merit

CAFTA requires public hearing – with best option being a livestream through ICSID’s website

Arguments in Rejoinder must be responsive to claimant’s previous pleadings

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

Costs lie where they fall

Early dismissal is in the interest of good administration of justice

Tribunal finds that interplay between various instruments is insufficient to provide access to ICSID arbitration

Law ratifying Iraq’s accession to the ICSID Convention does not offer an avenue of consent to ICSID arbitration

Despite claimant’s withdrawal of the Erbil plant claim, tribunal rules that claim under Kurdistan’s Investment Law manifestly lacks legal merit

2006 Investment Law read together with other instruments is also insufficient to establish consent to ICSID arbitration

2006 Investment Law does not in itself contain the state’s consent to ICSID arbitration

Argument that the Rehabilitation Contract contains Iraq’s consent to ICSID arbitration is manifestly without legal merit

Tribunal majority concludes that MFN detour argument is manifestly without legal merit

Arbitrators see several other reasons to deny the MFN detour argument

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