Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt

Abstract

Jurisdiction — Of arbitration tribunal — Egyptian investment law providing for recourse to icsid arbitration — Joint venture agreement entered into between State and foreign investor pursuant to State’s municipal investment law — Joint venture project cancelled by State — Foreign investor not waiving right to continue pursuit of other remedies prior to instigation of icsid arbitration proceedings — Whether failure to waive other remedies impairs consent to icsid arbitration — icsid Convention, Article 26

Arbitration — Agreement to arbitrate — State investment law providing for recourse to icsid jurisdiction in certain circumstances — Whether clause in investment law constitutes consent to arbitrate — icsid Convention, Article 25

Applicable law — Joint venture agreement between State and foreign investor entered into pursuant to State’s municipal investment law — Whether clause in investment law constitutes consent to icsid jurisdiction — Absence of specifically agreed choice of law — Law of Contracting State together with applicable principles of international law — icsid Convention, Article 42(1)

Interpretation — Of instruments conferring jurisdiction on international tribunals — Principles of interpretation — To be interpreted neither restrictively nor expansively but objectively and in good faith — No presumption of jurisdiction — icsid Convention and Egyptian municipal laws

Procedure — Stay of proceedings — Power of tribunal to order — Same parties and dispute before other forum — Need to preserve international judicial order and avoid clashes between competing jurisdictions

Procedure — Findings of fact — Dispute submitted to International Chamber of Commerce arbitration — icc tribunal rendering award — icc award annulled on basis that icc tribunal lacked jurisdiction to hear the dispute — Same dispute subsequently submitted to icsid arbitration — Whether icsid tribunal has power to adopt findings of fact made by previous tribunal hearing the same dispute

Expropriation — Joint venture agreement between State and foreign investor for tourist development — Project encountering domestic political opposition due to presence of antiquities on development site — State cancelling project — Exercise of right of eminent domain — Nationalization or confiscation pursuant to municipal law of State requiring fair compensation — Adequacy and appropriateness of compensation offered

State responsibility — For acts of officials — State authorities agreeing to and approving joint venture project between State and foreign investor — Foreign investor relying on State officials in entering into project — Allegations that project lay outside scope of municipal laws — Whether failure to comply with municipal law not opposable to investor in international law — State responsible for unauthorized or ultra vires acts of its officials and agents

Municipal law — Effect of breach by State of its requirements of municipal law — State failing to comply with publication and registration requirements of its municipal law relating to joint venture contracts and State decrees — Whether exempting State from liability under international law for failure to perform contractual obligations

Compensation — For expropriation — Methods of valuation — Value of investment in joint venture company — Capital expenditures and loans plus loss of opportunity — Effective date of assessment — Costs incurred in obtaining indemnification also recoverable