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Archives
Arbitrators identify three-fold bifurcation test
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Revisions to the request for arbitration are accepted as incidental or additional claims
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China announces five preliminary objections and asks for bifurcated proceedings
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Declaratory request appears to drop off radar, but is presumably denied
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Tribunal cites principle of judicial economy and is able to sidestep some debates
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Parties sparred over request, and touched on sensitive questions of a tribunal’s authority
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No denial of justice, bribe allegation unsubstantiated
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No fork-in-the-road in the BIT
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Tribunal sees unlawful expropriation, albeit temporary
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ICC Rules – and rights and obligations under them – are incorporated in the arbitration agreement, thus leading tribunal to issue interim award ordering Libya to bear its share of advance on costs
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Fair and Equitable Treatment standard breached in many ways
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No breach of FPS standard, but impairment of investment
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Breaches are the proximate cause of investor’s underperformance
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Libyan dairy factory is expropriated shortly after construction, and investor fails to obtain compensation from domestic courts
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No compound interest on sums awarded, while Libya is ordered to bear most of Olin’s costs
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Damages also discounted on account of civil war
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DCF method is adopted, but future losses too speculative given Libya’s turmoil
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“Fraud” is unproven; no treaty-shopping when investment made before BIT’s signature
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Jurisdiction ratione personae: no “genuine link” criterion in the BIT
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Cooling-off period was futile due to Libyan crisis
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No abuse of rights when claimant was entitled to start arbitral proceedings
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Counterclaims of abuse and harm to the state’s reputation are unsubstantiated
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Investor was discriminated against, compared to national competitors
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