Tribunal finds text of investment statute “clear and unambiguous” in providing consent to arbitration

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Tribunal engages with earlier Commerce Group award

De facto mining ban is continuing act that became clear only in March 2008

Tribunal has to assess timing of measures alleged to breach CAFTA

Views differ sharply as to why ownership was transferred to U.S. subsidiary

Arbitrators can’t just apply prima facie standard of proof in this context

Claimant had complained that El Salvador waited too long to deny benefits

Facts point to claimant being owned by a non-CAFTA national

Tribunal dismisses relevance of Energy Charter Treaty cases

Tribunal is free to analyse every relevant aspect of the case in ruling on its own competence

Investor also breached principle of not invoking its own illegal acts, as well as public policy

Investor pays arbitration costs, but El Salvador is left to bear its counsel’s fees

Claimant submitted false information to win contract bid

Good faith is a general principle of law

States are free to curtail investment treaty protection to lawful investments

Travaux of the BIT indicate intent to limit treaty protection to lawful investments

Only tribunal can rule on legality of investment

No jurisdictional foothold in Investment Law

Jurisdictional analysis should proceed under “good faith” principle

Investor lied about its experience and qualifications

Tribunal rules that state’s new jurisdictional objections were submitted too late, but considers (and rejects) them anyway

Tribunal dismisses investor’s central claim, noting that its preferred interpretation of domestic law fit with other countries

Costs order largely against investor

Estoppel claim rejected, as tribunal sees no clear representation from state

Tribunal reviews expert legal evidence to interpret domestic mining law, favouring state

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