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Tribunal dismisses inadmissibility objection, seeing no evidence that the claimants had acted as agents of Uzbekistan

Zachary Douglas would have declined jurisdiction under the BIT, seeing no state consent to ICSID AF arbitration

Question of consent to ICSID AF Rules is a matter of jurisdiction, unaffected by ICSID Secretary General’s screening powers

Majority looks at ICSID’s structure and contracting parties’ “genuine intention” to find state’s consent to arbitration under ICSID’s AF Rules, despite BIT’s lack of reference thereto

Uzbek state’s diplomatic note qualifies as “written request for consultations”

Purpose and context of the FIL show that “investment disputes” should be defined broadly

Tribunal considers Russian text of FIL, despite acknowledging the Kyrgyz version as the original, adopting broad definition of the expression “investment dispute”

Asymmetrical relationship between investor and the state does not alter the fact that the state may provide unilateral offer to arbitrate in its law

FIL contains Kyrgyzstan’s unilateral offer to arbitrate

Unilateral offer to arbitrate in FIL is of hybrid nature, mandating interpretation under both domestic and international law

Background: Nationalization of four Soviet-era beach resorts triggers ICSID AF arbitration

arbitrators find lack of proportionality between claimants’ costs and damages sought, but still award most costs to the claimants

Dissenter opines that LIBOR +4% interest rate carries a punitive element

Majority abitrators provide for discontinuance of LIBOR and award tax gross-up

Tribunal declines to appoint independent quantum expert and adopts claimants’ valuation model and awards around 27 million USD in damages

Compensation for unlawful expropriation does not fall under FIL and BIT standards for lawful expropriation; restitution is impossible under the circumstances

Tribunal sees no need to rule on claims for failure to provide FET, full legal protection, and national treatment

Kyrgyzstan failed to provide due process or pay prompt adequate and effective compensation, meaning that the expropriation was unlawful

Arbitrators reckon that the expropriation was discriminatory, since other similarly situated resorts were not expropriated

Desire to increase revenue for the state is insufficient to evidence a public interest

Mr. Douglas opines that one claimant did not hold any property rights at the time of the 2016 Order, while the remaining claimants held more limited rights than what they asserted

Tribunal finds that Kyrgyzstan’s takeover of the resorts amounted to a direct expropriation

In any case, the claimants all held registered property rights at the time of the 2016 Order

1990s land reforms did not affect the claimants’ property rights

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