Protocol provides for neutral “Observer” to vouchsafe for compliance

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Since purpose of the visit is for arbitrators to familiarize themselves with the type of hydro-electric activities in the region, it does not matter that the visited plant is not in dispute

Court of arbitration is empowered to decide on whether to hold a site visit

Necessity requirement cannot be read into the Treaty, which allows for parallel proceedings

Appointment of neutral expert did not affect the competence of the court

Role of the World Bank as appointing authority is clarified

Court’s constitution followed the requirements of the Treaty

Pakistan could unilaterally refer the dispute to arbitration

Negotiation requirement was met

Undue delay justifies Pakistan’s decision to file for arbitration despite absence of joint report by the commission

India alleges that pre-arbitration requirements were not met

A “dispute” capable of being subject to dispute settlement exists between the parties

Court can decide its jurisdiction under the Kompetenz-Kompetenz principle

Non-appearance of India does not affect the court’s competence

Applicable Law includes VCLT

Background: Dispute over hydroelectric projects in mutual river basins between India and Pakistan leads to questions of treaty interpretation

Tribunal refused to stay the ICSID arbitration due to parallel contract arbitration

Expropriation claim was likewise within tribunal’s jurisdiction, as arbitrators were unprepared to rule out the use of puissance publique on a prima facie basis

FET claims likewise cleared jurisdictional hurdle, as tribunal held alleged change in policy was capable of constituting FET breach; allegedly confidential government documentation was part of the record in light of lack of formal challenge by Pakistan

Importation of FET through MFN satisfied the <em>prima facie</em> test

MFN claims passed the prima facie test; press reports were relevant for jurisdictional test

Prima facie test for making out claims at jurisdictional stage was applied both to factual and legal aspects

Puissance publique test became irrelevant in light of Bayindir’s abandonment of contract claims

There was no conflict between New York Convention and ICSID Convention

Tribunal saw no abuse of process

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