Strabag SE v. Libya

Abstract

Jurisdiction – Investment – Shares – Indirect ownership – Whether the indirect ownership of shares in a locally incorporated company could qualify as a protected investment

Jurisdiction – Investment – ICSID Additional Facility – Interpretation – Whether the meaning of investment under the ICSID Convention applied in ICSID Additional Facility arbitration

Jurisdiction – Investment – ICSID Additional Facility – Interpretation – Salini test – Whether indirect ownership of shares in a locally incorporated company qualified as a protected investment

Jurisdiction – Foreign investor – Contribution – Indirect ownership – Whether a foreign investor’s investment indirectly made through layers of wholly owned subsidiaries qualified as a protected investor

Jurisdiction – Foreign investor – Standing – Shareholder – Whether an indirect shareholder was entitled to claim compensation for damage to assets owned by its locally incorporated subsidiary

Umbrella clause – Interpretation – Whether a foreign investor may use an umbrella clause to elevate contractual claims to treaty claims

Umbrella clause – Interpretation – Forum selection – Whether a foreign investor may use an umbrella clause to circumvent a dispute resolution forum that was contractually agreed upon

State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 5 – Whether a State may act through its parastatal entities to enter into construction contracts

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 8 – Direct control – Whether the conduct of State-owned entities was attributable to the State – Whether the supervision of a series of State-owned entities by various government actors rendered their conduct attributable to the State

War losses clause – Compensation for losses – Lex specialis – Interpretation – Whether a clause providing compensation for losses in times of armed conflict was lex specialis that supplanted other treaty provisions

War losses clause – Compensation for losses – Requisition – Interpretation – Whether a foreign investor can claim compensation for the requisition of assets forming part of its investment by forces loyal to the regime

War losses clause – Compensation for losses – Destruction – Interpretation – Whether a foreign investor can claim compensation for the total or partial destruction of its investment when some of the destruction was not attributable to State-affiliated actors

Full protection and security – Circumstances of the host State – Interpretation – Whether the standard of full and constant protection and security prescribes the reasonable measures of prevention that any well-administered government would exercise under similar circumstances – Whether the standard of full and constant protection and security considerations required a tribunal to take into account the conditions prevailing in the host State

Umbrella clause – Contract – Compensation – Whether a foreign investor can claim compensation for alleged breaches of contractual obligations brought under an umbrella clause

Counterclaim – Umbrella clause – Set-off – Additional claim – Incidental claim – Whether a respondent State can assert an additional or incidental contractual claim brought under the tribunal’s jurisdiction by operation of an umbrella clause – Whether the circumstances of the domestic courts were relevant to whether a tribunal should resolve the contractual counterclaim

Costs – ICSID Additional Facility – Whether the losing party should bear the winning party’s costs even where the winning party was only partly successful