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During the post-hearing phase, new evidence may only be submitted if relevant to questions previously posed by the tribunal
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Background: Tribunal invites post-hearing briefs in dispute with Peru over environmental remediation at metallurgical complex
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Concerns of judicial propriety or public policy affecting enforcement should not influence decision on jurisdiction
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Bulgaria’s theory based on “bundles” of bilateral rights and obligations does not change the outcome
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Analogies based on Mox Plant case do not assist, tribunal says
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Tribunal sees no agreement to suspend ECT arbitration under VCLT Article 58
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VCLT conflict clause cannot apply where the treaty already contains a conflict clause
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Bulgaria’s arguments based on applicable law clause create a “logical paradox”
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Conflict clause in ECT Article 16 determines that ECT must prevail over EU law
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Tribunal finds prima facie jurisdiction under ECT and ICSID Convention
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State’s argument on ab initio effect of CJEU rulings is viewed by tribunal as self-defeating
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Interest and costs awarded to claimant; state left to bear around 20 million EUR in fees
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Tribunal adopts claimant’s damages model, uncontested on the facts by respondent
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Alleged composite breaches dismissed
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Tribunal elaborates on meaning of non-impairment clause, but dismisses claims by recalling its FET reasoning; umbrella clause claim also dismissed
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Permanent grid access fee breached FET as a “significant change” in the legal regime
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No breach of other aspects of FET
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No breach of legitimate expectations through temporary grid access fee and balancing costs
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State breached legitimate expectations in relation to production cap, levy on revenues, and transition to feed-in premium model
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No grounds for defences based on allegedly unforeseen boom in solar investment and on EU law
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Expectations of claimant’s shareholders can be attributed to claimant; tribunal rejects state’s suggestion that claimant could expect only a “reasonable rate of return”
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Risk of regime failure was for Bulgaria to bear; tribunal holds that investors can expect stability even while fearing changes
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Claimant could legitimately expect central pillars of renewables regime to remain fixed, even if other aspects changed
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Komstroy objection quickly dismissed
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