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Dissenter opines that no abuse of process is established in circumstances where claimants enjoyed treaty protection at time of alleged breach, and evidence regarding economic purpose of restructuring is ambivalent
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Tribunal majority orders claimants to bear 90% of costs
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Beauvallon’s acquisition of the claimants aimed at acquiring a previously-crystallized ICSID claim, rather than developing an economic activity in Serbia
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Dispute was foreseeable when Beauvallon acquired the claimants in January 2019
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Tribunal majority finds that claimants were not under actual control of any Luxembourg entity between October 2018 and January 2019
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Claimants bear burden of proving actual control
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Control is only established if the relevant entity disposes of legal means to exercise control
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Abuse of process is not limited to scenarios in which the restructuring/acquisition creates access to BIT protection where none existed at the time of the alleged breach
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Bankruptcy proceedings prompt request for provisional measures and decision on representation; tribunal decides to hear abuse of process objection in bifurcated phase
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Claimants are without a Luxembourgish parent company for three months between some of the contested acts and the filing of the arbitration
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Background: Urban development project is thwarted by claims of third party, leading to cancellation of lease agreement
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