Investment Arbitration Decisions
FOREWORD
By Noah Rubins
I. Mr. Franz Sedelmayer v. The Russian Federation
(1) Final Arbitral Award Rendered in 1998 in An Ad Hoc Arbitration in Stockholm, Sweden
Observations by Walid Ben Hamida
Observations by Stefan Kröll and Jörn Griebel
(2) Judgment by The Stockholm District Court Rendered on 18 December 2002
(3) Decision by The Svea Court of Appeal Rendered on 15 June 2005
Observations by Domenico di Pietro
SUBJECT- MATTERS:
1) Definition of "investor"
2) Scope of the definition of "investment"
3) The scope of expropriation provisions
4) Application of the principle of lis pendens
5) Propriety of State as respondent
6) Compliance with pre-arbitration procedures
7) Identification and valuation of investments subject to expropriation
(4) Two Decisions by Germany's Supreme Court Rendered on 4 October 2005, VII ZB 08/05 and VII ZB 09/05
SUBJECT- MATTERS:
1) Can the Russian State's claims against the German State or a German company be attached to secure payment of a German private individual's award against Russia?
2) Does an arbitration clause in a bilateral investment treaty constitute a waiver by the State of its immunity from enforcement of the award?
Observations by Hilmar Raeschke-Kessler
(5) Developments from January 2008 to June 2010
a. German Federal Court of Justice IX 64/08
b. German Federal Court of Justice, VII 37/08
c. Cologne Higher Regional Court, 22 U 98/07
d. Berlin Higher Regional Court, 1 W 276/09
SUBJECT- MATTER:
Execution of an arbitral award against the Russian Federation based on the 1989 Bilateral Investment Protection Treaty between the Federal Republic of Germany and the Union of Socialist Soviet Republics. Execution Immunity and States operating through State-owned corporations.
Observations by Friederike Stumpe
II. Nykomb Synergetics Technology Holding AB, Stockholm v. The Republic of Latvia, Riga 185
(1) SCC Case 118/2001 Final Award Rendered on 16 December 2003
SUBJECT- MATTER:
Whether the Republic of Latvia was in breach of its obligations under the Energy Charter Treaty (ECT) towards the claimant due to the fact that the republic's state-owned company allegedly did not pay the claimant's subsidiary in accordance with the contract between company and subsidiary.
Observations by Richard Happ
III. CCL Oil v. Republic of Kazakhstan
(1) SCC Case 122/2001 Jurisdictional Award Rendered in 2003
SUBJECT- MATTERS:
1) Applicable law to jurisdictional issues under the arbitration clause.
2) Res judicata and collateral estoppel.
3) Principle of Separability, Competence-Competence Doctrine.
4) Act of State Doctrine.
5) Comity among states.
6) Sovereign state, Issue of sovereign immunity.
7) Definition of "foreign investor" under the Foreign Investment Law of Kazakhstan.
8) Applicable law to jurisdictional issues under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment (19 May 1992) ("BIT").
9) Definition of "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
10) Burden of proof to establish "National of another Contracting State" under the Treaty between the USA and the Republic of Kazakhstan Concerning the Encouragement and Reciprocal Protection of Investment.
(2) SCC Case 122/2001
Final Award Rendered in 2004
SUBJECT- MATTERS:
1) Jurisdiction - Validity of the Agreement - Apparent authority, Ratification by acceptance.
2) Jurisdiction - Admission to jurisdiction of the Kazakh courts.
3) Party to the arbitration agreement - Sovereign state and state organ - whether the department designated in the Agreement or the State is the contractual party.
4) Effects of prior court decision on termination of the Agreement.
5) Whether act of the Prosecutor General, and the national courts, either in its capacity of contractual party to the Agreement or under norms of Kazakh law and customary international law should be considered as acts attributable to Sovereign State.
6) Loss of future profit based on contractual right of first refusal - the owner's decision to sell and without specification on the purchase price to be paid, may give rise to a claim for damages.
7) Concept of expropriation, "creeping" or "covert" expropriation.
(3) SCC Case 122/2001
Supplemental Award and Interpretation Rendered in 2004
SUBJECT- MATTERS:
1) Enforcement of the Tribunal's decision on costs - whether the Tribunal can issue award or order to enforce its decision on costs.
2) Correction of the award based on miscalculation.
Observations by Hans Smit
IV. The Attorney General of Canada v. S.D.Myers, Inc.
Docket T-225-01, T-81-03
Order of Canada's Federal Court on 13 January 2004
Observations by Rajeev Sharma
V. Mr. William Nagel v. The Czech Republic
Decision by The Svea Court of Appeal
Rendered on 26 August 2005
SUBJECT- MATTERS:
1) Did the Arbitral Tribunal rule on all of the issues that were submitted to it?
2) Was the decision taken by the Arbitral Tribunal a jurisdictional decision, or a decision on the substance of the parties' dispute?
Observations by Michael Polkinghorne and Matthew Secomb
VI. Mr. Iurii Bogdanov v. The Republic of Moldova
SCC Case 93/2004
Arbitral Award Rendered on 22 September 2005
SUBJECT- MATTERS:
1) Jurisdiction under a Bilateral Investment Treaty.
2) Application of the principle of iura novit curia and failure of Respondent to appear (procedural default).
3) Application of the fair and equitable treatment standard.
4) Reimbursement of moral damages.
Observations by Jeremy Wilson
VII. Petrobart Limited v. The Kyrgyz Republic
(1) SCC Case 126/2003
Final Arbitral Award Rendered on 29 March 2005
SUBJECT- MATTERS:
1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?
2) Are the conditions for application of Article 17 (1) of the ECT present?
3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.
4) Doctrine of collateral estoppel.
5) Whether Petrobart qualifies as an investor under the ECT?
6) Did Petrobart make an investment in the Kygryz Republic?
7) Whether the Kyrgyz Republic violated its obligations under
Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.
Observations by Georgios Petrochilos and Noah Rubins
(2) Case No. T 3739-03
Decision of the Svea Court of Appeal, Judgment Rendered on 13 April 2006
SUBJECT- MATTER:
Action for amendment of an arbitral award
(3) Case No. T 5208-05
Decision of the Svea Court of Appeal
Judgment Rendered 19 January 2007
SUBJECT- MATTER:
Challenge to an arbitral award
(4) Case No. T 2113-06
Decision of the Swedish Supreme Court
Judgment Rendered 28 March 2008
SUBJECT- MATTERS:
1) Challenge of an arbitral award terminating the arbitration for lack of jurisdiction.
2) The scope of application of the so-called "doctrine of assertion" in arbitration.
(5) The Petrobart Saga
By Erik Karlsson
(6) Comments on the Swedish Supreme Court's Recent Judgment on the So-Called "Doctrine Of Assertion" and the Arbitrators' Jurisdiction in Investment Disputes
By Paulo Fohlin
(7) Comments on the Petrobart Limited v. The Kyrgyz Republic Case
Anonymous
VIII. Mr. Vladimir Berschader and Mr. Moise Berschader v. The Russian Federation
SCC Arbitration V (080/2004)
Arbitral Award Rendered in Stockholm on 21 April 2006
SUBJECT- MATTERS:
1) Do the Claimants (two Belgian physical individuals) who own shares in a company incorporated in Belgium, BI, which owns assets in the territory of the Russian Federation qualify as investors within the meaning of the Luxembourg/ Belgium-Russia BIT (the Treaty)?
2) Have the Claimants carried out an investment within the meaning of the Treaty?
3) To what extent can the Claimants rely on the most favoured nation (MFN) clause contained in the basic Treaty to import a more favourable dispute settlement mechanism contained in a third party treaty concluded by the Russian Federation to establish the jurisdiction of the Arbitral Tribunal?
Observations by Domenico Di Pietro
IX. Telenor Mobile Communications A.S. v. The Republic of Hungary
ICSID Case No. Arb/04/15
Arbitral Award Rendered on 13 September 2006
SUBJECT- MATTERS:
1) Challenge of the Tribunal's jurisdiction grounded on the fact that the relevant BIT limited recourse to international arbitration for claims of expropriation only.
2) Indirect expropriation.
3) The scope of application of Most Favoured Nation clauses.
4) Allocation of costs.
Observations by Domenico Di Pietro
X. Mr. Patrick Mitchell v. The Democratic Republic of Congo
ICSID Case No. Arb/99/7
Decision of the Ad Hoc Committee on the Application for
Annulment of the Award Rendered on 1 November 2006
SUBJECT- MATTERS:
1) Annulment under Article 52 of the ICSID Convention.
2) Jurisdiction and definition of investment under a Bilateral Investment Treaty.
3) Jurisdiction and definition of investment under the ICSID Convention.
Observations by Reza Mohtashami
XI. Canadian Cattlemen for Fair Trade, et al. v. United States of America
UNCITRAL Arbitral Award on Jurisdiction
Rendered in Washington, D.C., U.S. on 28 January 2008
SUBJECT- MATTER:
Jurisdiction of Tribunal to hear a claim brought under Chapter Eleven of the NAFTA (North American Free Trade Agreement). Territorial location requirement for protected investments and investors.
Observations by Jean-François Hébert
XII. Renta 4 S.V.S.A., et al v. The Russian Federation
(1) SCC Case V (024/2007)
Award on Preliminary Objections Rendered on 20 March 2009
SUBJECT- MATTER:
Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible.
(2) Yukos and Some of Its Progeny
By Lucia Raimanova
ARTICLES
The Guarantee of "Full Protection and Security" in Investment Treaties Regarding Harm Caused by Private Actors
By Helge Elisabeth Zeitler
US Investors and Expropriation Under the AUSFTA - Is the Protection Afforded to Investors Illusory?
By Annie L. Phillips
Missing Bits - To Be Substituted by BITs
By Max Gutbrod and Steffen Hindelang
Investment Treaty Arbitration: Mapping the Non-ICSID Universe
By Luke Eric Peterson
Chinese Investment Treaties and the Dispute Resolution Opportunities Offered by Most Favoured Nation Provisions
By John Savage and Elodie Dulac
Bilateral Investment Treaties and EU Law
By Thomas Eilmansberger
INDEX
