SGS Société Générale de Surveillance SA v. Republic of the Philippines

Abstract

Interpretation — Agreement of 1997 between the Swiss Confederation and the Republic of the Philippines on the Promotion and Reciprocal Protection of Investments (BIT) — Article II — Investment “in the territory” of a Contracting Party — Whether a contract for the provision of services performed mostly outside the territory of the host State constitutes an investment in its territory — SGS made an investment “in the territory” of the Philippines by providing, through an office in the Philippines, a reliable inspection certificate for customs purposes

Interpretation — BIT — Article X(2) — Obligation imposed by “umbrella clause” in respect of contractual obligations — Obligation on Philippines to pay monies owing pursuant to contract with SGS once amounts are determined

Jurisdiction — BIT — Article VIII(2) — Settlement of disputes — Whether ICSID Tribunal has jurisdiction with respect to contractual claims which do not involve a breach of substantive provisions of the BIT — Jurisdiction upheld

Jurisdiction — Exclusive jurisdiction clause — CISS Agreement, Article 12 — Whether exclusive jurisdiction clause overridden by BIT or ICSID Convention — Exclusive jurisdiction clause binding on parties — Essentially contractual claim — Proceedings stayed pending determination of amount payable under terms of CISS Agreement

Expropriation — BIT — Article VI — Whether refusal to pay monies owing amounts to expropriation of property — Mere non-payment of invoices where amount owing is in dispute does not amount to expropriation under terms of BIT

Procedure — ICSID Arbitration Rules, Article 19 — Stay of proceedings — Exclusive jurisdiction clause binding on parties and applicable to claim — Proceedings stayed pending determination of amount payable