Legal costs for Rule 41 proceedings lie where they fall; allocation of arbitration costs is reserved

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Tribunal majority rules that FET claim manifestly falls under FTA’s tax carve-out, since default interest qualifies as ‘taxation measure’

Tribunal majority finds that expropriation claim is manifestly without legal merit since claimants did not have an FTA-protected investment that could be subject to expropriation

NT and FET claims do not manifestly fall within FTA’s financial services carve-out

Tribunal rejects argument that claimant’s parallel litigation waivers are manifestly without legal validity

Standard under 2022 Rule 41 is high, similar to that of 2006 Rule 41(5)

Background: Peru argues that claim based on imposition of default interest for tax liability manifestly lacks legal merit

Indirect expropriation requires a case-by-case analysis

Full protection and security standard does not extend beyond physical protection of the investment

Canada opines that MST does not protect an investor’s legitimate expectations

MFN clause is not applicable to substantive standards of protection and procedural rights

MST requires actual proof of a custom which has been breached

The scope and coverage of the FTA includes non-state organs empowered with governmental authority, but analysis under ILC Article 5 is context-specific

Jurisdictional requirements under the FTA include claimants who are no longer in control of the investment

Concept of ‘social licence’ underpins expropriation analysis

Dissenter places more blame on investor for project’s failure, citing ILO Convention on indigenous rights

Peru had approved of investor’s outreach program; could not justify revocation on outreach failings

Investor seemed unaware of indigenous rights, in contrast to Peru’s expert, dissenter finds

No grounds to imply investor legality requirement

Tribunal majority responds to dissenter

Presence of fraud might change analysis, but not claimed here

Damages for separate Corani project rejected

Protests by local communities over silver mine near Bolivian border underpin case

Costs order largely in favour of successful investor

Peru claims new circumstances in moving to revoke rights, but tribunal is sceptical

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