Banro could not both rely on diplomatic protection and resort to ICSID arbitration

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Right to claim under ICSID Convention entails unavailability of diplomatic protection

While formalism should not stand in the way of finding jurisdiction, this principle could not remedy a lack of consent to arbitrate

Effet utile cannot salvage ineffective arbitration clause

Original investor could not transfer right to claim, since such right never existed in the first place

ICSID jurisdiction must exist both at the time of consent and at the time when the claims were lodged

Background: Gold mining licences are revoked, and investment changes hands before filing of claim

First provisional measures ruling came swiftly on the heels of the tribunal’s being constituted

Weil warns that majority’s approach could potentially undermine future of ICSID

Treaty preamble is construed so as to demand “broad protection of investors and their investments”

Dispute does arise directly out of investment

Majority sees no need for foreign origin of capital, finds alleged irregularities to be insufficient for a finding of illegality of the investment

Despite upholding jurisdiction in 2004, the tribunal would discuss certain jurisdictional points in its final award in 2007

BIT definition of investor consistent with ICSID Convention

Majority regards place of incorporation as only relevant criterion for determining investor nationality

Majority refuses to pierce corporate veil

Ukraine’s admissibility objections also rejected

Claimant favoured application of domestic law, but tribunal ruled that international law was applicable

No jurisdictional challenges raised by Costa Rica or addressed by the tribunal

Costs split evenly, as parties ordered to complete formal ownership transfer

Tribunal dismissed unusual request for provisional measures against investor

Compound interest applied

Final valuation ends up between the two parties’ submissions

Expropriations for environmental purposes still require full compensation

Valuation date is expropriation date, not date of award

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