Mihaly International Corporation v. Democratic Socialist Republic of Sri Lanka

Abstract

Arbitration – Request by Claimant — US–Sri Lanka Bilateral Investment Treaty — Jurisdiction of icsid and Arbitral Tribunal — Both jurisdiction ratione personae and materiae must be satisfied — Respondent’s objections to jurisdiction

Jurisdiction — Objection to jurisdiction ratione personae — Nationality requirement of icsid Convention — Theories of partnership or assignment — Claimant permitted to file its own claim in its own name — Capacity to bring claim not modified by existence of international partnership — Pacta tertiis principle — No invocation of icsid Convention by non-State party, non-State party national or company– No improvement of rights of non-State party company by assignment of rights to party with standing before Tribunal

Jurisdiction — Objection ratione materiae — Existence of an “investment” — Requirements of Article 25(1) of the icsid Convention not satisfied — Existence of investment within meaning of Convention and bit — Preparatory and development expenses incurred pursuant to letter of intent from Respondent — Recovery of development costs following failure of negotiations — Definition of “investment” a question of law — No investment within meaning of icsid Convention