1. The Award has reproduced Articles 1, 2, 5 and 28(1) of the FCIL. It is necessary to have regard to Article 3 of the FCIL and the structure of the whole of the FCIL. Article 1 refers to “direct investment of foreign capital made in accordance with or based upon the provision of this Law for the purpose of carrying on the enterprise in Indonesia”. The “enterprise” or the Penanaman Modal Asing (PMA Company) is the central feature of the FCIL. Article 3 provides for the vehicle through which entry of foreign investment could be made into Indonesia. Its focus is on the enterprise or the PMA Company. While Article 1 refers only to direct investment in the form of foreign capital “for the purpose of carrying on the enterprise” as being permissible under the FCIL, it is Article 3 which, by prescribing the manner and form that such investment should take, makes it very evident that only direct investments made through the enterprise are permissible under the FCIL. Consequently, the buying of shares in existing Indonesian companies or banks will not qualify as foreign investment under the FCIL unless appropriate links are made by other legislation. It is necessary to set out the text of Articles 1, 2 and 3 to state further conclusions to be drawn as to the FCIL.
46. The fact that a treaty may have provided expressly for certain rights of shareholders does not mean that a treaty not so providing has meant to exclude such rights if this can be reasonably inferred from the provisions of such treaty. Each instrument must be interpreted autonomously in the light of its own context and in the light of its interconnections with internationallaw. Moreover, the United States model investment treaties are based on a rather broad interpretation of investment that was included with the express intention of overriding the eventual restrictive effects that could result from the Barcelona Traction decision. 47. The rules governing the interpretation of treaties under the Vienna Convention on the Law of Treaties lead to a similar conclusion in so far as the parties to the treaties concerned are different. 10 Indeed, the interpretation of a bilateral treaty
It is often said that, the ICJ should abstain itself from deciding upon certain controversial issues (which are highly political in nature) irrespective of it having jurisdiction over them in order to maintain a good compliance record keeping in mind the abuse of the Optional Clause system. 80 But, if the ICJ does this, can it guarantee genuine compliance in future in matters which are not strictly legal and can this act of stepping aside from its role by the ICJ, provide an assurance that, disputes which are left out by the ICJ because of their political nature would not come before the Court later. Inspite of such complexities, the ICJ should not, in an exercise of caution, ignore genuine instances in which it can exercise jurisdiction for fear of non compliance as doing so would affect the balance between internationallaw and its political subjects. Nonetheless, when discussing about the different aspects regarding compliance, it would be unfair to compare the enforcement mechanisms of the ICJ to that of domestic courts. The institutional structure of the ICJ is complex and the option available under the Charter for implementing its judgments remains ineffective. Furthermore, in many cases, states do not even consider the option of going to the Security Council in order to seek enforcement of the decisions.
307. Respondent reiterates its arguments and further alleges the following. Claimant must demonstrate that the “investment” allegedly expropriated actually “belonged” to him, as required by Article 5 of the BIT. All of Respondent’s measures were aimed at the “general welfare” and fall squarely within the scope of police powers. Claimant cannot identify any specific commitment of the State in the Tender, the July 1, 2008 Agreement or the Lease Agreement to the effect that the State would have exempted Le Bridge and Mr. Arif from the application of Moldovan law as a special inducement for the investment. With regard to the airport store, Respondent submits that the cancellation of the Lease Agreement does not constitute an expropriation within the meaning of Article 5 of the BIT because it resulted from the application of Moldovan law on the lease of unused State Property to a lease that had been entered into in violation of those laws. Respondent also alleges that successive arbitral awards have held that expropriation by court decisions requires a finding of a denial of justice, whether procedural or substantive. The Moldovan law on the lease of unused State assets is not contrary to Moldova’s international obligations, Respondent argues. Therefore, the application of that law does not put Moldova in contradiction with its international obligations.
The benefits to be gained by exploring and using outer space for scientific purposes were among the main early arguments advanced to justify space activity. It is submitted that advancement in the field of scientific research presents further factors that advance the arguments for the establishment of a sector-specific dispute settlement procedure for space activities. Firstly, the exploration and use of outer space for scientific purposes involves international and interdisciplinary cooperation. Such cooperation envisages actors of var- ious States and professions working together to successfully launch, operate and manage space missions. It is reasonably foreseeable that with so many dis- parate actors such cooperation may potentially lead to disputes. A universal mechanism for dispute settlement may be the solution that provides a workable process for these actors to resolve any arising disputes. Secondly, a dispute set- tlement mechanism is generally one of the means by which law develops with ambient developments in the field. It is submitted that the institution of a dispute settlement mechanism will ensure that international space law evolves so as to remain relevant in the rapidly advancing fields of space sciences and technology. Thirdly, many scientific space missions generally involve small win- dows of opportunity for launch and operations. As such, any disputes relating to such scientific missions must be resolved as efficiently as possible so as not to jeopardize the success of the scientific mission. It is submitted that the establishment of a viable dispute settlement framework will allow the efficient resolution of disputes within the law and the general principles of justice and equity.
or with respect to the fact that the pertinent standards have gradually evolved over the centuries. Customary internationallaw, treaties of friendship, commerce and navigation, and more recently bilateral investment treaties, have all contributed to this development 56 . 257. The evolution that has taken place is for the most part the outcome of a case by case determination by courts and tribunals, as evidenced among many other investment treaty and NAFTA decisions by the TECMED, the OEPC and the Pope & Talbot cases 57 . This explains that, like with the international minimum standard, there is a fragmentary and gradual development. Such development however partly hinges on the gradual formulation – both in cases and legal writings – of ‘general principles of law’ (as understood under Article 38(1)(c) of the ICJ Statute) able to guide and ‘discipline’ 58 the evaluation of state conduct under investment treaty standards.
Conciliation has similarities with mediation. The second way is to engage a third party to settle their disputes peacefully. Conciliation and mediation is difficult to distinguish. The term is used interchangeably. But according to Behrens, there is a difference between these two terms, namely conciliation is more formal than mediation 17 . Conciliation may also be completed by an individual or a body or bodies referred to a Conciliation Commission. Conciliation Commission or ad hoc (temporary), serves to define the requirements of the settlement accepted by the parties. But the decision is not binding on the parties 18 . The trial of a Conciliation Commission composed of two phases: a written stage and the oral stage. First, the dispute described in writing submitted to the Conciliation Board. Then the agency will hear oral testimony from the parties. The parties may be present at the hearing stage, but it could also be represented by proxy. Based on the facts obtained, Conciliator or Conciliation Board will submit its report to the parties along with the conclusions and proposals of dispute settlement. Once again, this proposal is not binding in nature. Therefore, the proposal is accepted or not depends entirely to the parties.
Tulip JV, the Tribunal notes, without determining issues of Turkish law, that the Tulip JV Agreement which was not imposed upon the Van Herk Group by TOKI or Emlak but freely entered into, specifically provided for an appointee of FMS, as a member of the Executive Board, to be included in all submissions. The Tribunal also notes that FMS consistently insisted on the respect of this provision and threatened legal actions against Emlak on several occasions in the event that Emlak proceeded to deal with Tulip JV without FMS. The Claimant does not argue that the provisions of the Joint Venture Agreement were inoperative in light of FMS’ conduct absent a court order, nor does the Claimant dispute that the interim injunction obtained against FMS was vacated. What is more, it is uncontested that in February 2010, the FMS issue re-emerged, after the injunction against FMS, which permitted the other Tulip JV partners to act without it, was lifted. At that time, FMS repeated its threat to hold Emlak and others responsible for any actions taken without FMS’ participation.
98. Throughout the two decades that it worked diligently to develop the Crucitas project, Industrias Infinito has complied in good faith with all of its obligations under Costa Rican law. Infinito and Industrias Infinito had a legitimate expectation that Industrias Infinito would be entitled to develop and exploit a mine at Crucitas. Contrary to that legitimate expectation, the Supreme Court (Sala I) cancelled Industrias Infinito’s exploitation concession and other project approvals on the basis that President Pacheco’s 2002 moratorium on open-pit gold mining applies to the Crucitas project. Far from ordering that Industrias Infinito is entitled to compensation for the cancellation of its concession and of its other rights, the Sala I ordered Industrias Infinito to pay damages to restore the project area to its pre-construction state. The Minister of Environment and Mines formally cancelled the concession and declared the Crucitas area to be free of all acquired mining rights, also without compensation. The Supreme Court (Sala IV) refused to resolve the conflict between the Sala I’s decision and the Sala IV’s 2002, 2004 and 2010 decisions which held that the project could proceed despite the 2002 moratorium. As a result of the new ban on open-pit mining, Industrias Infinito cannot apply for any new mining rights over the project area. Together, these measures have deprived Infinito of substantially the entire value of its USD $93.9 million investment in Industrias Infinito and in the mining rights held by Industrias Infinito. They are an unlawful expropriation of Infinito’s
Unlike many other emerging and developing countries where competition laws have only recently been enacted, Brazil has had a long history of the application of competition laws and policies, culminating in its most recent legislative reforms in 2011. Brazilian competition agencies are also internationally commended as a success story, particularly for their strong stance against, and criminalization of, cartel activity. But there are also emerging difficulties. In recent years the Brazilian constitutional courts have become important sites of social change as they adjudicate in areas such as health, telecommunications and financial markets. There have been comparatively fewer applications for judicial review in competition law however and those who have litigated have been subject to increased costs and lengthy court delays. Rather, Brazilian competition law is increasingly characterized by a shift to the extra-judicial resolution of disputes. This decline in judicial review has had important consequences on the supervisory design and effectiveness of regulatory institutions and the identification of substantive conduct, potentially opening the way to inconsistent and discretionary regulatory interventions.
45. Concerning the freeze of the assets of BP, it has to be added here that, in footnote 2 already mentioned to its Rejoinder to Jurisdiction, the Claimant indicated that the funds were released on March 6, 2008, but that it still seeks compensation for Respondent’s wrongful freezing of those funds until January 8, 2008 – the date on which Phoenix sold its interest in BP, because it was deprived of the use of its funds until that time. Also in its Rejoinder, the Claimant presented a new analysis of the acts complained of, in that it did add, to the existing list of violations already asserted, a claim for expropriation, because the assets of the bankrupt companies whose ownership is disputed in the Czech courts have been sold: “Given that the disposition of property in the bankruptcy proceeding cannot be undone pursuant to Czech law, it is additionally possible now to characterize Phoenix Action’s claims related to the Ownership Actions as sounding in an expropriation or a measure having an equivalent effect to an expropriation, without payment of prompt, adequate, and effective compensation in violation of Article 5 of the BIT.” 23
ing to choose between Japan or Korea.” Letter from Kenneth T. Young, Jr., Director Of- fice of Northeast Asian Affairs, U.S. Department of State to E. Allan Lightner, American Embassy, Korea, Possible Methods of Resolving Liancourt Rocks Dispute Between Japan and the Republic of Korea (July 22, 1953), https://en.wikisource.org/wiki/Possible _Methods_of_Resolving_Liancourt_Rocks_Dispute_between_Japan_and_ROK. A sub- sequent State Department memorandum dated November 11, 1953, similarly indicated that the United States should remind Korea of the Rusk note; “express strong hope that settlement can be reached with the Japanese; . . . [note that] the United States seeks to avoid any form of intervention in this matter;” if clashes continue to occur the United States “may be forced to give publicity to the Rusk letter and to reiterate the view ex- pressed therein”; and if Korea cannot accept the views expressed in the Rusk letter, it should “take steps toward arbitration or appeal the matter to the ICJ.” Memorandum by William T. Turner in Regard to the Liancourt Rocks (Takeshima Island) Controversy (Nov. 30, 1953), https://sites.google.com/site/liancourttakeshima/Home/-recon firma- tion-liacnorut-rocks-is-terrotory-of-japan-by-san-fransisco-treaty-of-peace. The following month, Secretary of State John Foster Dulles again suggested that the parties refer the dispute to the ICJ for adjudication. Telegram from John Foster Dulles, U.S. Secretary of State, to American Embassy, Japan (Dec. 9, 1953), http://dokdo-or-takeshima.blogsp ot.com/2008/08/1953-december-secret-security.html. See also Lovmo, supra note 56. Simi- larly, a report submitted by Ambassador James Van Fleet after a trip to the Asia-Pacific region in August 1954 stated that the United States had informed South Korea that the Liancourt Rocks “remained under Japanese sovereignty and the Island was not included among the Islands that Japan released from its ownership under the Peace Treaty.” The report additionally stated, however, that the United States has not “interfere[d] in the dis- pute.” As a possible way forward, Ambassador Van Fleet informally recommended to South Korean officials that “that the dispute might properly be referred to the Interna- tional Court of Justice.” Ownership of Dokto Island, M INISTRY OF F OREIGN A FFAIRS OF J A- PAN , http://www.mofa.go.jp/mofaj/area/takeshima/pdfs/g_sfjoyaku04.pdf (last visited Jan. 16, 2016).
58. The Tribunal is also mindful that if a distinction is not drawn between ordinary sales contracts, even if complex, and an investment, the result would be that any sales or procurement contract involving a State agency would qualify as an investment. International contracts are today a central feature of international trade and have stimulated far reaching developments in the governing law, among them the United Nations Convention on Contracts for the International Sale of Goods, 21 and significant conceptual contributions. 22 Yet, those contracts are not investment contracts, except in exceptional circumstances, and are to be kept separate and distinct for the sake of a stable legal order. Otherwise, what difference would there be with the many State contracts that are submitted every day to international arbitration in connection with contractual performance, at such bodies as the International Chamber of Commerce and the London Court of International Arbitration? 23
Courts and tribunals suffer from a deficiency in information regarding laws or facts which results in mistakes when applying substantive legal principles. One of the most common mistakes on the part of adjudicatory bodies is their failure to assess the quantum of damages accurately such that a breach of contract (or a tortious injury) is properly compensated. With perfect information available, a court will be able to craft a perfect remedy (which is often seen as the level at which the injured party would be indifferent between performance and breach or injury and cash) 63 , but as this is a logical impossibility, courts must seek a second-best alternative, which is to apply as much information (facts and law) as possible without the transaction cost of evaluating this information exceeding the advantage of accuracy in pronouncing a judgment. Thus in their attempt to minimize error costs (the inevitable failure to select a perfectly accurate judgment), courts are compelled to craft remedies based on the most reliable available information. 64 In each of the ICSID cases discussed above there was a large quantity of cost-oriented information readily available to the tribunal in the form of expert testimony
21. In 1989, Argentina enacted the State Reform Law 9 that declared the country’s public services to be in a state of emergency and proposed to launch a broad program of privatization to remedy the situation, by which the Argentine government would transfer the assets, operations, and functions of various designated State-owned companies and entities to private and primarily foreign investors. The State Reform Law also invited the country’s provinces to participate in the privatization process. Subsequently, Argentina took certain other measures to attract private and foreign investment to its territory. Less than two years after the State Reform Law, Argentina adopted the Convertibility Law 10 by which it tied or “pegged” the value of the Argentine Peso to the United States Dollar and established a currency board requiring that the amount of Argentine currency in circulation be equivalent to the foreign currency reserves held by the State. Starting in 1990, it also began to conclude bilateral treaties “for the reciprocal promotion and protection of investments” with various countries. By the year 2000, it had concluded 57 such bilateral investment treaties, commonly known as BITs, including the December 1990 Argentina-U.K. BIT, the July 1991 Argentina-France BIT, and the October 1991 Argentina-Spain BIT.
21. A hearing on the merits in these cases took place from 28 October 2007 through 8 November 2007 at the seat of the Centre in Washington, D.C. Each side in the case presented a number of witnesses for examination by the other side and questions from the Tribunal. Messrs. Nigel Blackaby and Lluis Paradell, Ms. Noiana Marigo, Ms. Maria Julia Milesi, Ms. Patricia Garcia, Ms. Andrea Camargo García and Ms. Daisy Joye, from the law firm Freshfields Bruckhaus Deringer LLP; Mr. Bernardo Iriberri, from Estudio Cardenas, Di Ció, Romero, Tarsitano & Lucero, Abogados in Buenos Aires; Mr. Julio Durand from Estudio Cassagne, Abogados in Buenos Aires; Mr. Jean-Marie Guvain, Ms. Isabelle Froment-Meurice and Mr. Antoine Tchekhoff from Suez Environment; Mr. Miquel Griño, from AGBAR; Mr. Enrique Arnsten, from Anglian Water Limited (AWG) and Messrs. François Moncomble and Charles-Louis De Maud’huy, from Vivendi Universal S.A., attended the hearing on behalf of the Claimants. Messrs. Adolfo Gustavo Scrinzi, Gabriel Bottini, Jorge Barraguirre, Fabián Rosales Markaida, Mauricio D’alessandro Longhin, Alejandro Turyn, Facundo Perez Aznar, Diego Gosis Nicolas Grosse, Javier Pargament, Florencio Travieso, Nicolas Diana, Nicolas Duhalde, Julian Negro and Carlos Winograd, and Ms. Adriana Busto and Ms. Alejandra Mackluf, from the Procuración del Tesoro de la Nación Argentina, Mr. Bernard Mettetal, from HMN & Partners, and Mr. Ignacio Torterola, from the Embassy of the Argentine Republic in Washington D.C.,
simultaneously on construction, publicity, and sales. But Emlak and TOKI seemed equally determined to place new obstacles in Tulip’s way at every opportunity. They continually harassed Tulip about the supposed delay in construction, as if Tulip had not spent two years waiting for TOKI to resolve the zoning problems it had failed to disclose. Emlak repeatedly threatened to cancel the project using Tulip’s supposedly late performance as an excuse, forcing Tulip to beg for an “extension” even though Tulip’s “late” performance was entirely attributable to Emlak and TOKI themselves. Ultimately, just as construction and sales were truly taking off, Emlak abruptly terminated the Contract – in violation of Turkish law – cashed Tulip’s performance guarantee, and illegally re-tendered the project to an affiliate of Tulip’s own sub-contractor, a Turkish construction company with close ties to Emlak and TOKI. As a result, Tulip was deprived of its entire investment without compensation, of which the Ispartakule III project alone was worth at least US$450 million at the time and likely more.
22. For the texts of the judgment on the prompt release of the vessel and its crew and the order prescribing the provisional measures, see the 1998 Yearbook of the Tribu- nal (forthcoming in 1999 from Kluwer LawInternational). For commentaries on the M/V Saiga judgment, see, for example, E.D. Brown, The M/V “Saiga” Case on Prompt Release of Detained Vessels: The First Judgment of the International Tribunal for the Law of the Sea, 2 M ARINE P OL ' Y 307 (1998); Bernard Oxman, The M/V “SAIGA” (Saint Vincent and the Grenadines v. Guinea), ITLOS Case No. 1, International Tribunal for the Law of the Sea, December 4, 1997, 92 A M . J. I NT ' L L. 278 (1998); David Pitlarge, The Judgment of the UNCLOS Tribunal in St. Vincent and the Grenadines v. Guinea: M/V “Saiga,” 2 I NT ' L M AR . L. 35 (1998); Bernard Vanheule, Arrest of Seagoing Vessels and the L.O.S. Convention: Does the New International Tribunal for the L.O.S. Offer New Prospects?, 4 I NT ' L M AR . L. 106 (1998).
Kadıköy 5th Commercial Court of First Instance is against Emlak, not Respondent and is brought by Tulip JV (a Turkish entity), not Claimant. Further, Claimant argues that the claim in the Turkish court seeks a court order that would grant return of the project, by declaring the termination invalid under Turkish law, and damages arising from the delay to the Project. In contrast, the matter before the Tribunal seeks damages for the total destruction of the Claimant’s investments in Turkey as a result of the actions of Respondent and its related entities, including Emlak, TOKI and the Prime Minister’s Office.
specific projects such as highways, dams, factories and other large scale infrastructure projects. Generally the IFC helps private companies investing in emerging economies acquire capital as well as improve their corporate governance. MIGA supplies financial insurance for investors against non-commercial risks in developing host states. It also operates a dispute mediation service; however it is only available for disputes between MIGA itself, representing the investors for which it has provided a guarantee, and host states. 27 Established in 1999, the Compliance Advisor Ombudsman receives complaints from individuals or communities that have or may suffer adverse environmental or social consequences from investment projects that have received assistance from the IFC or MIGA. The Ombudsman’s ambit is wide: complaints relating to any aspect of the planning, implementation or impact of an IFC or MIGA supported project may be received at the Ombudsman’s office in Washington DC by email or post in any of seven languages. Following an initial screening, the Ombudsman will attempt to achieve a collaborative settlement between the parties and if this is unsuccessful an audit of the operation may be undertaken, which will culminate in recommendations to the World Bank. The extent to which these recommendations are implemented will be monitored over time. The Ombudsman has no direct sanctioning power against the IFC, MIGA or private borrowers, it merely encourages parties to adopt the recommendations it tenders following the complaints process in order to achieve a satisfactory solution for all parties. The settlement stage may include active intervention on the part of the Ombudsman or third party specialists in the form of mediation or conciliation, which requires the consent of all parties. 28 The Compliance Advisor Ombudsman has heard approximately 85 cases from developing regions around the world. Many of these have implemented mediation or conciliation strategies.