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Costs split, in part due to claimant’s more economical approach to the case; but tribunal’s reading of claimant’s low legal expenses may not reflect nuance of situation
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Testimony of claimant’s CEO raises suspicions of tribunal as to purpose of consulting contract and leads to demand for more disclosure
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Tribunal lays emphasis upon fact that ICSID is not even mentioned in Article 10, and that there is no designation of any forum where Uzbekistan consents to be sued in arbitration
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Given that claimant itself produced evidence at center of controversy, the tribunal did not need to grapple with complexities of standards and burdens of proof
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Lack of consent to arbitrate disputes pertaining to this investment cuts both ways – and undercuts counter-claims raised by Uzbekistan
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MFN clause can’t be used to detour around legality requirement
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Other issues canvased include use of MFN to access better definition of investment, counter-claims, and meaning of Uzbek investment statute’s arbitration clause
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In intriguing footnote, tribunal weighs its jurisdiction over obligations imported via BIT clause that ensures that more favourable provisions of local law will prevail over BIT obligations
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Third consultant, currently in prison in Uzbekistan, cooperates with respondent and puts in belated statements as to corruption
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Claimant failed to dispel suspicions of corruption
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Similar holding in relation to second consultant: the brother of a senior political figure
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No need to prove that consultant was conduit for passing funds to his brother, the (former) Prime Minister
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Specific breaches of local law found in relation to dealings with two consultants; red flags analysis supplements black letter of Uzbek law
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Claimant protested that payments came late in game and were not quid pro quo for getting investment established; tribunal differs in its assessment
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Any derogation from legality requirement would need to be clearly stated, and arbitrators needn’t decide whether a legality obligation should be viewed as implicit in all investment treaties
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No ICSID Convention requirement of legality
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Legality requirement in BIT is read so as to apply only to establishment of investment
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