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Forum selection clause bars admissibility of umbrella clause claim
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Extensive reading of umbrella clause secured tribunal’s jurisdiction
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Contractual forum selection clause in itself did not render the claims inadmissible
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FET claim is made out on a prima facie basis, since BIVAC may establish that Paraguay’s actions were beyond those of an ordinary contractual party
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No prima facie expropriation of uncontested debt, since local remedies were available
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Tribunal applies prima facie test to BIVAC’s merits claims
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A territorial link existed between BIVAC’s services and Paraguay
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MoF contract granted BIVAC “rights under public law”, which qualified as protected investments under the BIT; tribunal saw no need to examine Salini criteria
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Paraguay consented to ICSID arbitration when concluding the BIT; no local law requirement limited the state’s consent
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General approach to interpretation should favour neither the state, nor the investor
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Tribunal found that previous awards were not binding, but deserved “careful consideration”
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Background: Paraguay’s continuous failure to settle invoices for customs-related services prompted ICSID arbitration
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Umbrella clauses have led to irreconcilable interpretations by tribunals
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No jurisdiction over expro claim; fair and equitable treatment claim can proceed, but with caveat
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Survey of case law finds no authority for non-payment of debts breaching FET
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Umbrella clause claim that was earlier deemed inadmissible is also stayed
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Arbitrators see no sovereign actions, just behaviour of a contracting party
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Tribunal in BIVAC v. Paraguay case took narrower view
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