Costs follow the event, but Ghana’s failure to comply with document production is taken into account

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No ground to apply GHC-based interest rate for compensation in USD

Tribunal chair reads contracts terms as tying GCNet’s revenue to import transaction value, rather than value “assessed” by the government

Arbitrariness of government policy cannot be presumed

Waiver not retracted before limitation period kicks in becomes permanent

Tribunal majority reads contract as tying GCNet’s remuneration to customs assessment made by the respondent

Liquidated damages clause is meant to avoid complex litigation

Procurement law does not apply to the contract absent evidence that GCNet was being paid from public funds

Tribunal’s duty to render enforceable award requires unequivocal statement from claimant that it will not challenge award based on potential arbitrator disqualification request

Background: Ghana’s overhaul of its customs service processing procedure leads to contract-based arbitration

Tribunals rule that costs should lie where they fall, pointing to novelty of majorities’ reasoning

Majorities find that the competence discussed in the arbitrations were transferred to the EU, precluding their jurisdiction

Circumstances of ECT’s conclusion confirm majorities’ findings

Discussions during treaty negotiations regarding intra-EU disconnection clause do not imply that no disconnection clause can be read into the treaty

Object and purpose of ECT was to foster east-west energy cooperation, which the majorities find supports their interpretation

Mr. Spigelman would have placed greater emphasis on Article 16 of the ECT

Majorities see confirmation of their findings in additional contextual elements

In Dissenting Opinion, James Spigelman submits that the REIO and its member states each remain responsible for their own actions under the ECT, irrespective of theoretical transfer of competences

Majorities find that definition of REIO in Article 1(3) ECT is of key relevance and entails that where the contested measures relate to a competence that has been transferred to a REIO, the REIO’s members cannot be held liable for an ECT breach

Majorities find that immediate context of the arbitration clause, definition of “Area”, and provision on voting by REIOs are not particularly relevant

Based on the plain language of Article 26(3)(a) ECT, each contracting member – including EU member states and the EU – gave its unconditional consent to investor-state arbitration

Tribunals decline to rely on CJEU judgments

Tribunals consider that prohibition of intra-EU investor-state arbitration is not part of customary international law

Sapec tribunal and ESF majority find that EU rules are not part of the applicable law

The EU and Spain are both ECT parties, and they each have their own area

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