Ukraine’s requirement of locally sourced music did not breach the BIT

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No breach of the umbrella clause without violation of the Settlement Agreement

Not every malfunctioning of a public service constitutes a violation of the FET standard

Agreeing that awarding moral damages required exceptional circumstances, the tribunal reserved this issue for the subsequent phase

Damages decision was postponed for the next phase in light of the 2008 financial crisis

National Council treated the claimant in a discriminatory and arbitrary fashion by denying Gala’s frequency applications in nearly all tenders

Shortcomings in broadcasting legislation facilitated discriminatory and arbitrary treatment of bidders, but did not render the entire procedure arbitrary

Tribunal set out a number of factors and counterfactors that determine breach of the FET standard

BIT explicitly excluded pursuit of local remedies as a requirement for claims against discriminatory and arbitrary measures

The object purpose of the BIT is not protection of foreign investments per se, but in aid of local economic development

FET standard protects against discriminatory and arbitrary measures, as well as frustration of an investor’s legitimate expectations

FET is an autonomous standard and implies less demanding threshold than the MST

The BIT’s FET clause originated from the US Model BIT and included, inter alia, a minimum standard of treatment

Tribunal acknowledged Ukraine’s sovereignty, finding that media industry is sensible and its regulation requires observance of policy considerations

Ukraine did not breach the Settlement Agreement when the Armed Forces contested the awarded frequencies

The claimant was precluded from complaining of low powered frequencies

Ukraine did not breach the Settlement Agreement by awarding the licenses with some delay

Best-efforts obligation referred to efforts of a reasonable government in the same circumstances, which Ukraine had honoured

Ukraine did not fail to correct the interferences

Only obligations included in the contract may be interpreted with reference to prior negotiations

Following the parties’ agreement, the tribunal applied UNIDROIT Principles and international law to claims arising under the Settlement Agreement

Argument regarding lack of prima facie case for expropriation has become moot

Claims related to tenders for additional frequencies did not merely refer to pre-investment activities

ICSID Arbitration Rules superseded ICSID Additional Facility when Ukraine acceded to the ICSID Convention

New York Convention would only allow for enforcement and recognition of the 2000 Award, but could not solve the dispute arising out of the Settlement Agreement

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