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Quiborax S.A., Non-Metallic Minerals S.A. and Fosk Kaplún v. Plurinational State of Bolivia

ICSID (Arbitration Tribunal).  26 February 2010 ; 27 September 2012 ; 16 September 2015 ; 07 September 2015 ; 18 May 2018 .

Published online by Cambridge University Press:  01 January 2021

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Abstract

Procedure — Provisional measures — ICSID Convention, Article 47 — ICSID Arbitration Rule 39 — Whether criminal proceedings and corporate audits affected the claimants’ right to the preservation of the status quo and to non-aggravation of the dispute — Whether the criminal proceedings impaired the claimants’ right to present their case — Whether the claimants satisfied the criteria of urgency, necessity and proportionality — Whether a stay of criminal proceedings would affect sovereignty or be contrary to municipal law

Procedure — Exclusivity — ICSID Convention, Article 26 — Whether the exclusivity of the arbitral proceedings was threatened by the continuation of local criminal proceedings

Admissibility — ICSID Arbitration Rule 34(1) — Whether evidence from criminal proceedings was admissible

Jurisdiction — Foreign investor — ICSID Convention, Article 25 — Whether investors had acquired shares in a local company — Whether the shareholders engaged in fraud or fabricated evidence to gain access to arbitration — Whether a local company may be treated as the national of another State due to foreign control

Jurisdiction — Investment — ICSID Convention, Article 25 — Whether each investor satisfied the objective elements of an investment

Jurisdiction — Legality — Estoppel — Whether the State was estopped from contesting the legality of the investments — Whether there was any fraud or non-trivial violation of the host State’s legal order or foreign investment regime at the time when the investment was established

Admissibility — Foreign investor — Good faith — Whether a shareholder must advise the host State of its foreign nationality

Defence — Legality — Municipal law — Whether the defence was admissible — Whether the investment was obtained through an irregular process that benefited former public officials — Whether the investment was null and void ab initio under municipal law

Defence — Exhaustion of remedies — Fork-in-the road clause — Whether the claims were premature

Defence — Police powers — Customary international law — Whether an executive decree constituted a legitimate revocation of concessions based on actual violations of municipal law — Whether the revocation was carried out in accordance with due process

Expropriation — Direct expropriation — Lawfulness — Discrimination — Whether the revocation of concessions directly expropriated the investment of the foreign-controlled local company — Whether the expropriation complied with conditions for lawful expropriation

Expropriation — Indirect expropriation — Substantial deprivation — Whether direct expropriation of the foreign-controlled local company substantially deprived its shareholders of value

Fair and equitable treatment — Minimum standard of treatment — Impairment — Whether revocation of the concessions violated the minimum standard of treatment — Whether subsequent annulment of the concessions was a bona fide exercise of police powers or an ex post attempt to improve an arbitral defence

Remedies — Damages — Customary international law — Whether assessment of full reparation allowed for use of ex post data up to the date of the award

Remedies — Interest — Applicable law — Whether international law or municipal law applied to whether interest should be compounded

Remedies — Satisfaction — ILC Articles on State Responsibility, Article 37 — Customary international law — Whether the tribunal had jurisdiction to make a declaration — Whether the State’s conduct during the arbitral proceeding, including alleged harassment through criminal proceedings and failure to comply with provisional measures, warranted declaratory relief

Remedies — Moral damages — Whether any specific moral injury satisfied the threshold of exceptional circumstances

Costs — Whether it was fair in the circumstances for the State to bear the costs of arbitration

Annulment — Jurisdiction — Provisional measures — ICSID Convention, Article 52 — Whether the committee had jurisdiction to annul provisional measures

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Whether the tribunal’s findings on municipal law were in manifest excess of powers — Whether the tribunal acted in manifest excess of powers in determining the existence of protected investments — Whether the tribunal acted in manifest excess of powers by failing to apply the applicable law for quantum

Annulment — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the State was denied the right to be heard on the valuation methodology

Annulment — Failure to state reasons — ICSID Convention, Article 52(1) — Quantum — Whether the tribunal failed to state the reasons for its decision on quantum

Type
Case Report
Copyright
© Cambridge University Press 2020

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Quiborax S.A., Non-Metallic Minerals S.A. and Fosk Kaplún v. Plurinational State of Bolivia
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