AES Corporation and Tau Power BV v. Republic of Kazakhstan

Abstract

Jurisdiction — Consent — Revocation — Municipal law — ICSID Convention, Article 25 — Whether a State may revoke consent to arbitration by repealing municipal law

Jurisdiction — Investment — ICSID Convention, Article 25 — Municipal law — Whether investments were excluded from jurisdiction by express exceptions under municipal law

Jurisdiction — Consent — Temporality — Municipal law — Whether the revocation of consent to arbitration through the repeal of municipal law affected investments made prior to repeal

Admissibility — Fork-in-the-road clause — Judicial act — Competition law — Whether claims for breach of competition law before municipal courts were the same as the investment treaty claims

Admissibility — Domestic litigation requirement — Whether the exhaustion of local remedies was required — Whether the question was best left to the merits stage

Contract — Legitimate expectation — Legal stability — Competition law — Whether an agreement between the claimants and the State gave rise to a legitimate expectation that the State would not amend competition law

Municipal law — Stabilisation clause — Legitimate expectation — Legal stability — Adverse effect — Whether the claimants had a legitimate expectation to be protected by a stabilisation clause that had been repealed — Whether the claimants had a legitimate expectation to be protected against legislative reform — Whether the claimants demonstrated any adverse effect from legislative reform — Whether it was predictable that the State would undertake reform of its competition law

Fair and equitable treatment — Legitimate expectation — Arbitrariness — Denial of justice — Legal stability — Whether changes to competition law were in breach of the investment treaties — Whether alleged harassment and coercion were in breach of the standard of fair and equitable treatment — Whether the claimants were denied justice in the application of competition law by municipal courts

Umbrella clause — Municipal law — Contract — Legal stability — Whether a breach of municipal law could give rise to an investment treaty breach — Whether there was a breach of municipal law — Whether the State agreed not to reform competition law

Fair and equitable treatment — Legitimate expectation — Free transfer — Proportionality — Public interest — Whether the claimants had an expectation to make and have the right to dispose of a reasonable return on their investment — Whether the requirement to reinvest all profits was in breach of legitimate expectations — Whether the measure was a proportionate response in the public interest

Remedies — Restitution — Whether restitution was a feasible remedy in the circumstances

Remedies — Damages — Burden of proof — Quantum — Whether the claimants had established the scope of damage they suffered as a result of treaty breach

Remedies — Damages — Future damages — Whether the claim for future loss was premature