Evidence Preservation Protocol obliges Colombia to record critical evidence

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Uncertainty as to the scope of Colombia’s mission requires establishment of a protocol to preserve and record archaeological finds by the state

Test for measures aimed at preserving evidence differs from general test for provisional measures

Abuse of process claim found to be worthy of bifurcation

Questions relating to change in nationality of claimant are bifurcated

Objections concerning timing of nationality and contested acts found to be partially worthy of bifurcation

Questions of existence of investment do not warrant bifurcation

Tribunal identifies test for bifurcation under 2022 ICSID Arbitration Rules – preliminary objections must be “serious and substantial” on a prima facie basis

Background: Bahrain asks for bifurcation in dispute over purported investments made by claimant by depositing funds in bank accounts

On balance, majority arbitrators find that security for costs is warranted

Tribunal majority sees confirmation for its conclusion in fact that claimant failed to reveal whether his funding arrangement would cover adverse costs awards

Parties’ procedural conduct is not key in this case

Tribunal majority considers that imposing 1.2 million USD security for costs would not affect claimant’s ability to pursue the arbitration

Claimant would be willing to comply with hypothetical adverse costs award

Tribunal majority finds that claimant’s insolvency indicates that Mr. Contreras may be unable to comply with hypothetical adverse costs award

2022 ICSID AF Rules contain specific provision on security for costs, which is “independent” from rulings issued under the 2006 regime

Background: Costa Rica asks for security for costs in resubmitted ICSID arbitration

No ground to grant security for costs

Time-bar does not apply in circumstances where claimant had no reason to doubt existence of its rights

Treaty only covers acts or measures that followed its entry into force, but this does not bar claims relating to pre-existing dispute

Tribunal is unconvinced that assignment of rights and assets required state approval

Conduct of claimant and its predecessors evidences that they expected profit; “treasure searching” business is inherently risky

TPA’s definition of “investment” requires alleged investment to reflect a “commitment”, but no requirement of an active act of investing by claimant

Tribunal is empowered to resolve factual issues that won’t impact the merits of the case in expedited proceedings

Amicus curiae mechanism cannot be used by private third-party to settle scores

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