By Carmen Núñez-Lagos and Javier García Olmedo
In an award rendered on 31 January 2014, an arbitral tribunal constituted under the UNCITRAL Rules declined jurisdiction over the claims brought by one of two claimants against the Plurinational State of Bolivia on the basis of the application of a denial of benefits clause in the US-Bolivia BIT.1
The two claimants were Rurelec Plc, a company constituted under the laws of England & Wales, and its affiliate Guaracachi América Inc. (GAI), a company incorporated in the United States. The dispute concerned the alleged violation by Bolivia of certain provisions of the US-Bolivia BIT and the UK-Bolivia BIT (the BIT).
Among the various jurisdictio [...]
By Beth Cubitt and Tom French
The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of much debate. TPPA countries will potentially account for approximately 39% of the world’s GDP, with Australia’s portion of trade representing AUD215 million. By 2025, the TPPA is expected to account for USD233 billion in trade per year, and is said to set the “economic architecture” for the region.
But will the TPPA contain i [...]
On 4 October 2013 the Tribunal constituted under Metal-Tech Ltd.’s claim against Republic of Uzbekistan (G. Kauffman-Kohler, C. von Wobeser, J. Townsend) issued the award on jurisdiction in the ICSID case ARB/10/03. The peculiar factual background of the case has been previously discussed here.
The approach taken by the Tribunal in this case deserves closer attention as this is one of the few where allegations of corruption managed to have decisive influence on the outcome of the case, unlike most of the cases where bribery considerations are usually ruled out as inconclusive and unproven, although discussed in the award.
A number of tribunals ha [...]
On 4 October 2013, an ICSID tribunal rendered its decision in the investment treaty dispute between the Israeli company Metal-Tech Ltd. and Uzbekistan. In the award, the tribunal found that it lacked jurisdiction to hear the parties’ claims and counterclaims brought under the Israel-Uzbekistan BIT and Uzbek law due to corruption related to Metal-Tech’s investment in Uzbekistan. In particular, the tribunal found that payments of approximately USD 4 million made by Metal-Tech to several individuals, including an Uzbek government official and the brother of the then Prime Minister of Uzbekistan, while presented as remuneration for various consultancy services, in fact constituted corruption [...]
Last year at about the same period, I reported on two major events that had been taking place in the world of Intra- and Extra-EU BITs, the Regulation establishing transitional arrangements for bilateral investments agreements between Member States and Third Countries, on the one hand, and the Electrabel decision, on the other. See blog of 17 December 2012.
The course of this year was marked by another event that ended up to be much ado about nothing, the order granted in the matter Slovakia v. Eureko by the German Federal Supreme Court according to which the proceedings before it were redundant. These proceedings, in which the Commission had intervened to support the position that the arb [...]
The “contribution of assets” requirement of the Salini test was often overlooked by commentators and tribunals, probably due to its “I-know-it-when-I-see-it” nature. The recent award in KT Asia Investment Group B.V. v Republic of Kazakhstan, however, demonstrates that a failure to meet the contribution requirement may put to rest a claim of an offshore company used to conceal the identity of its owner.
It is widely recognized that under Article 25 of the ICSID Convention an investment must involve a “contribution” of assets. As explained by Douglas (para. 273), the prior contribution of assets into the economy of the host state is a natural quid pro quo for the state to accord th [...]