Clarity of requested measures regarding Special Manager is outweighed by lack of proposal of minimally invasive measures

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While emphasising Georgia’s regulatory rights, tribunal sees insufficient evidence that survival of Caucasus Online would be jeopardized through activity of Special Manager

Claimant’s formulation of first request is “overly broad and vague”; the tribunal adopts its own formulation

Availability of damages is not dispositive for existence of irreparable harm

First requested measure would preserve <em>status quo</em> without disproportionately affecting Georgia

The tribunal saw a genuine risk of licence revocation

Tribunal confirms <em>prima facie</em> jurisdiction and deems that first requested measure would preserve the rights claimant seeks to protect

Tribunal lays out 6-prong test for ordering provisional measures

Background: Telecoms investor requests provisional measures; tribunal grants urgent provisional measures

Inter-state negotiation requirement was met, as Georgia knew of the dispute before it proceeded to arbitration

Inter-state negotiation requirement entails minimal notification obligation for the investor

Pre-arbitration negotiation requirement is a mandatory step to activate state’s consent to arbitration

BIT contains an inter-state negotiation requirement, and attempts to settle the issue at the state level cannot be equated with diplomatic protection

Parties debate inter-state negotiation requirement

No denial of benefits absent control by nationals of a third state

Party with operational risk of non-repayment incurs risk

Loans in casu were not concealed dividends

Intra-group loans qualify as protected investments

Origin of capital irrelevant to ratione materiae inquiry

Expropriation claim swiftly rejected

Investment promotion clause found to create no substantive rights

Conduct of Coal India not attributable to state

Arbitral award treated as “continuation” of pre-existing investment

Relevance of ICSID Salini ‘test’ is nixed

Mr. Rowley disagrees with majority’s decision to hold claimant partially responsible for its losses

Claimant is awarded 20+ million USD for costs

Claimant is awarded both contractual and pre-award interest

Dutch court proceedings are no evidence of recovery

Payment of “giga-dividend” is without effect on the claim

Majority sees no difference between fair market value and Chorzow Factory standard; claimant is entitled to book value of the loan

Majority finds that both principal and interest of the 2003 Loan are recoverable

Majority ascribes loss of 2004 Loan to claimant

Claimant partially contributed to its losses in respect of the 2003 Loan

Claimant’s conduct is relevant to determining the causation of (and contribution to) its losses

Tribunal finds no evidence of illegality concerning the investment

International law likewise requires intentional wrongdoing

Relevant domestic laws require criminal intent to render the loans void

Expropriation was part of orchestrated campaign against Yukos

Different treatment compared to state-owned creditors was discriminatory

Lack of due process in bankruptcy proceedings prompts expropriation finding

Assessment of claim for judicial expropriation follows denial of justice standard

Contested measures are not “Taxation Measures”

No requirement for claimant to show continuous nationality

Claimant is not owned and controlled by Russian interests

Background: Claimant’s inability to register as a creditor in Yukos Oil’s bankruptcy proceedings gives rise to ECT claim

Investor forgoes costs order

Recalling first Chevron v Ecuador case, tribunal steps into shoes of local courts

Of two pending matters in India, only the protracted set-aside process breaches BIT

States put on notice that “effective means” standard is more easily breached

Even non-ICSID rulings of contractual forum should not be re-opened

No evidence of conspiracy at “secret” meeting between Governor and ADM

Tribunal excludes evidence obtained by ‘dumpster-diving’ private detectives

Grenada invokes ICSID arbitration rule 41(5) seeking expeditious dismissal

RSM lost contract case, and turned to Bilateral Investment Treaty

Loan to oil producer is “associated with an economic activity in the energy sector”

Loans can be investments if they are “linked to an economic venture in the host state”

Provisional application of ECT and of investor-state arbitration is not prohibited under Russian law

Tribunal majority focuses on validity of the principle of provisional application – be it of the ECT as a whole, or of the treaty’s individual provisions

ECT’s provisional application provisions has received varying interpretations

Background: Former management lodges ECT claim against Russia, relying on loans made to Yukos Oil

In Procedural Order No. 4, tribunal approves suspension of the procedural calendar to allow for settlement negotiations

Tribunal directs the parties to refrain from aggravating the dispute pending a decision on the provisional measures request

Tribunal decides to hear arguments on inter-state negotiation objection and provisional measures at the same hearing

Costs split evenly despite claimant loss

Tribunal declined to rule on the merits, after finding that no loss had been proved

No breach without harm to claimant, tribunal held

Canada’s regime appeared more justifiable under second scenario for FET breach

Tribunal considered two FET scenarios, applying different threshold for breach in each scenario; some questionable conduct identified under first scenario

Tribunal reviewed history of FET and minimum standard, finding that a customary rule of FET emerged in the specific context of business and investment

Tribunal doubted whether ability to export goods was a protected investment susceptible of expropriation, but saw no substantial deprivation in any event

Tribunal found no measures amounting to performance requirements under Article 1106

Discrimination claim was rejected once proper comparator was identified; tribunal cautioned on use of WTO law

Tribunal declined to add a second claimant to the proceedings, viewing the two claimants separately

Tribunal set Washington DC as arbitral seat

Canadian labour unions filed amicus brief supporting Canada’s measures

Background: case related to regime for export controls on logs from British Columbia

Preliminary objection meets three-prong test

Tribunal applies three-prong test

Effective means clause does not cover conduct of non-judicial authorities

Treaty and general international law are applicable

BIT does not confer jurisdiction over holdings incorporated in the respondent state

Tribunal disagrees with claimant’s extensive interpretation of FPS standard

Claimant’s costs were unreasonably high, and his conduct contributed to the inefficiency of the proceedings

DCF approach flawed as entities did not qualify as going concern

No jurisdiction over alleged fiduciary and beneficial interest in Imperial Holding

Success fee is not recoverable; ethical concerns left for other fora

No expropriation absent “substantially complete deprivation” of the investment

Greater role of due diligence to create legitimate expectations in highly-regulated sector

Majority dismisses allegations of protectionism

In quantum decision, tribunal rules on implications of its merits findings

Arbitrariness under domestic law cannot be equated with FET breach

Only Lebanon’s valuation model is consistent with the tribunal’s reading of the record

Revocation of operating licences was non-transparent and arbitrary

Alleged liberalisation of air traffic could not be relied upon, especially given Lebanon’s legal instability

Background: private jet venture hits the ground

Tribunal asks for further input on damages

Claimant fails to rebut Lebanon’s justification for lack of compliance with domestic judgment

No discrimination if claimant only identifies one single case of more favourable treatment

Moral damages claims should be exceptional

Umbrella clause not applicable to Lebanon’s statutory obligations

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