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Applicable law and tribunal’s interpretative approach
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As popular opposition turned violent, 40-year water concession was cancelled; case was registered at ICSID despite Bolivia’s protests
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Reference to domestic law in BIT did not preclude ICSID jurisdiction
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In controversial decision, inaugural request for third-party participation in ICSID proceedings was rejected
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In an unusual step (at the time), tribunal sought comments from The Netherlands, but response was of little interpretative value
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Proceedings discontinued before merits phase
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BIT negotiating history and existing arbitral precedent were considered unhelpful
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Production of evidence request deemed inconsequential
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ICSID Convention Article 25(2) allowed broad discretion in defining “foreign control”
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Tribunal postponed hearing due to civil unrest in Bolivia
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BIT practice of The Netherlands and Bolivia was of limited value in interpreting the BIT
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Tribunal saw no abuse of process in claimant’s corporate restructuring and highlighted broad nature of BIT protection
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Majority rejected global objection to existence of consent
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Concession agreement did not preclude ICSID jurisdiction; tribunal distinguished between direct waiver of ICSID jurisdiction and conflicting exclusive jurisdictional clauses
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Bolivia was a proper party to the dispute
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Bolivia-appointed arbitrator partially dissented
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Ordinary meaning of term “controlled directly or indirectly” did not necessitate actual control
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Context as well as object and purpose also excluded actual control
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Capacity to control an entity, reflected by majority ownership, was sufficient to satisfy “control” requirement
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Majority ruled that claimant was controlled by Dutch companies
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