http://kluwerarbitrationblog.com/blog/2010/03/02/pre-contractual-liability-another-look-needed-f-w-oil-interests-inc-v-republic-of-trinidad-and-tobago-icsid-case-no-arb0114/ Tue, 07 Feb 2012 11:53:45 +0000 hourly 1 http://wordpress.org/?v=3.2.1 http://kluwerarbitrationblog.com/blog/2010/03/02/pre-contractual-liability-another-look-needed-f-w-oil-interests-inc-v-republic-of-trinidad-and-tobago-icsid-case-no-arb0114/comment-page-1/#comment-14630 Abhijit P.G. Pandya Wed, 03 Mar 2010 00:24:46 +0000 http://kluwerarbitrationblog.com/?p=1633#comment-14630 I would like to add, to clarify any confusion that may arise, that Mihaly is definitely a non-inducement case (for pre-contractual expenditure as investment) as opposed to FWO Oil. That is the key distinction between them, hence why I think that Mihaly strikes a better balance of putting risk on the investor. (As there is no inducement in that case by the state to enter into negotiations, and thus no concomitant rise of possible expectations). Both cases of course resulted in rejection of pre-contractual expenditure as an investment, but are quite distinct. (Inducement cases of pre-contractual expenditure, in my view, ought generally to qualify as an 'investment' for the purposes of Article 25 ICSID, and in similar BITs to US-Trinidad & Tobago, where there is no language to the contrary). Abhijit P.G. Pandya I would like to add, to clarify any confusion that may arise, that Mihaly is definitely a non-inducement case (for pre-contractual expenditure as investment) as opposed to FWO Oil. That is the key distinction between them, hence why I think that Mihaly strikes a better balance of putting risk on the investor. (As there is no inducement in that case by the state to enter into negotiations, and thus no concomitant rise of possible expectations). Both cases of course resulted in rejection of pre-contractual expenditure as an investment, but are quite distinct.
(Inducement cases of pre-contractual expenditure, in my view, ought generally to qualify as an ‘investment’ for the purposes of Article 25 ICSID, and in similar BITs to US-Trinidad & Tobago, where there is no language to the contrary).
Abhijit P.G. Pandya

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