Kardassopoulos and Fuchs v. Republic of Georgia

Abstract

Jurisdiction – Investment – ICSID Convention, Article 25(1) – Salini test – Whether economic activities in connection with a joint venture constituted an investment

Jurisdiction – Investment – Evidence – Whether there was sufficient documentary evidence that an investor had an interest in a protected investment

Jurisdiction – Investment – Legality – Contract – Municipal law – Whether the concession and agreement through which the investment was made were void ab initio under municipal law – Whether the investment was entitled to protection under the BIT and the ECT even if the concession and agreement were void ab initio under municipal law

Admissibility – Estoppel – Legality – Contract – Municipal law – Whether the State was estopped from objecting to the tribunal’s jurisdiction ratione materiae under the BIT and the ECT on the basis that the concession and agreement could be void ab initio under municipal law

Jurisdiction – Investment – Legality – Legitimate expectation – Governmental authority – Whether the State created a legitimate expectation that the investment was made in accordance with municipal law and would be entitled to treaty protection – Whether agreements were cloaked with the mantle of governmental authority

Jurisdiction – Investment – Legality – Legitimate expectation – Attribution – State-owned entity – Whether representations by State-owned enterprises could be attributed to the State – Whether ultra vires conduct by State-owned enterprises could be attributed to the State – Whether attribution was contingent on the timing of the State’s adherence to the BIT or the ECT

Jurisdiction – Investment – Provisional application – Interpretation – ECT, Article 1(6) – Meaning of “Effective Date” – Whether provisional application of the ECT was equivalent to its entry into force – Whether the ECT was provisionally applicable on the date of the Contracting Parties’ signature of the ECT

Procedure – Burden of proof – Whether the investors were subject to a special or heavy burden of proof in establishing their claims

Admissibility – Equitable prescription – Whether the claims should be time-barred due to the 10-year delay in filing the claims

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – ILC Articles on State Responsibility, Article 5 – ILC Articles on State Responsibility, Article 11 – Structural test – Functional test – Contract – Governmental authority – Whether the contractual commitments, acts and omissions of State-owned entities could be attributed to the State – Whether State-owned entities exercised or purported to exercise governmental authority

Contract – Defence – Municipal law – Scope of rights – Unconscionability – Misrepresentation – Whether the concession and agreement through which the investment was made conferred rights to future pipelines – Whether the investors’ rights were vitiated by virtue of contractual defences raised by the State – Whether the contractual defences of unconscionability, misrepresentation and lack of performance were supported by the evidence

Expropriation – Direct expropriation – Whether the State expropriated the investor’s investment through a governmental decree that deprived its joint venture vehicle of rights in an oil pipeline

Expropriation – Unlawful expropriation – ECT, Article 13(1) – Public interest – Discrimination – Due process – Compensation – Whether the expropriation was in the public interest – Whether the expropriation was carried out in a discriminatory manner – Whether the expropriation was carried out in accordance with due process – Whether the investor was paid prompt, adequate and effective compensation

Fair and equitable treatment – Legitimate expectation – Transparency – Discrimination – Whether the standard required the investor’s expectations to be based on conditions offered by or prevailing in the State at the time the investment was made – Whether the State’s compensation process violated basic requirements of consistency, transparency, even-handedness and non-discrimination

Remedies – Compensation – Quantum – Contract – Stabilisation clause – Whether contractual stabilisation clauses limited damages for expropriation – Whether it was appropriate to compensate for the increase in the value of expropriated rights between the date of the expropriation and the date of the award

Remedies – Compensation – Fair and equitable treatment – ILC Articles on State Responsibility, Article 36 – Valuation methodology – What was the standard of compensation applicable to a breach of the fair and equitable treatment standard

Costs – Third-party funding – Whether third-party funding should be taken into account in the award of costs

Annulment – Procedure – Whether annulment proceedings should be suspended pending resolution of the application for revision of an award