Inceysa Vallisoletana, S.L. v. Republic of El Salvador

Abstract

Jurisdiction — Competence of tribunal — Tribunal’s power and obligation to determine its own competence — ICSID Convention, Article 41 — Tribunal’s implicit right to analyse relevant factual and legal matters

Jurisdiction — Jurisdiction ratione voluntatis — ICSID Convention, Article 25(1) — Consent of the parties — Tribunal’s obligation to analyse scope and extent of consent — Whether host State’s consent limited to investments made “in accordance with the law”

Jurisdiction — Competence of tribunal — Tribunal’s competence to determine legality of investment — Whether domestic court decisions on legality of investment constitute res judicata

Jurisdiction — Fraudulent conduct by investor — Whether fraudulent conduct deprives of the right to BIT claim — Whether fraud to be addressed in the jurisdiction or merits stage

Jurisdiction — Illegality of an investment as a factor in determining jurisdiction — Whether ICSID jurisdiction follows from contract for services — Whether ICSID jurisdiction follows from the BIT itself

Foreign investment — Legality of investment — Laws and principles applicable to an investment — Whether investment made in violation of the principle of good faith — Whether an investor can benefit “from his own fraud” — Whether granting protection to an illegal investment contrary to international public policy — Whether BIT protection of illegal investment would favour unlawful enrichment

Costs — Allocation of costs between parties — Effect of a party’s conduct on apportionment of costs — Conduct “beyond reproach”