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UAB E Energija (Lithuania) v. Republic of Latvia

ICSID (Arbitration Tribunal).  22 December 2017 ; 22 December 2017 .

Published online by Cambridge University Press:  01 January 2021

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Abstract

Applicable law — ICSID Convention, Article 42(1) — Whether the BIT contained an implicit agreement as to applicable law

Jurisdiction — Foreign investor — ICSID Convention, Article 25(2)(b) — Whether the claimant had standing to bring a claim as a protected investor

Jurisdiction — Consent — ICSID Convention, Article 36(2) — ICSID Convention Institution Rule 2(1)(f) and 2(2) — Whether there was a lack of internal authorisation to initiate arbitration in the claimant’s board minutes — Whether a lack of internal authorisation could taint the consent requirement

Jurisdiction — Investment — ICSID Convention, Article 25(1) — Whether the claimant’s shares and statutory capital in the local subsidiary were a covered investment

Admissibility — Dispute — ICSID Convention, Article 25(1) — Estoppel — Acquiescence — Prescriptive extinction — Bad faith — Whether the doctrine of estoppel precluded the existence of a dispute — Whether the claimant had acquiesced to the extinguishment of the dispute — Whether the doctrine of prescriptive extinction applied in the absence of express time limits — Whether the arbitration was initiated in bad faith to put pressure on the claimant’s home State

Procedure — Stay of proceeding — Termination of proceeding — Municipal law — Parallel proceeding — Whether the arbitration should be stayed pending the outcome of municipal proceedings — Whether the arbitration should be terminated due to ongoing municipal proceedings

State responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 5 — Customary international law — Whether municipal and regulatory authorities were State organs acting in an official capacity — Whether the conduct of the regulatory authority and companies owned by the municipal authority could be attributed to the State for having exercised elements of governmental authority — Whether the State-owned companies were being directed and controlled by the State

State responsibility — Attribution — Most-favoured-nation treatment — State-owned entity — Whether the impugned conduct of companies owned by the municipal authority was attributable based on rules in another BIT

Fair and equitable treatment — Arbitrary and discriminatory measures — Legitimate expectation — Due process — Bad faith — Due diligence — Whether fair and equitable treatment and the protection against arbitrary and discriminatory measures constituted the same standard of treatment — Whether delayed implementation of statutory and contractual duties by the State was in breach — Whether a revocation of licences in the public interest was in breach — Whether reversal of a previous decision taken on incorrect information was in breach — Whether consequential actions following impugned measures were likewise in breach — Whether declaring an energy crisis whilst taking steps to stop the claimant from providing services and forming a replacement provider was in bad faith — Whether the existence of only one legitimate reason supporting an impugned measure justified the decision — Whether the State made any specific assurance in relation to risks inherent to the claimant’s business — Whether the claimant failed to exercise due diligence

Fair and equitable treatment — Due process — Municipal law — Whether the State’s failure to hear the claimant before taking the impugned measures was in breach despite the claimant’s unsuccessful appeals in municipal courts — Whether measures found to be lawful in municipal courts should be examined by the tribunal

Full protection and security — Law enforcement — Whether use of the police to enforce a lawful order against the claimant’s business assets was in breach of full protection and security

Defence — Police powers — Whether the lawful revocation of licences by the State in good faith and to protect the public interest was an expropriation — Whether subsequent enforcement of the revocation was within the State’s regulatory police powers

Expropriation — Indirect expropriation — Whether the cumulative acts of the State amounted to expropriation

Most-favoured-nation treatment — Whether the duty to grant the necessary permits under municipal law could be imported from another BIT — Whether the most-favoured-nation clause could import treaty standards or related only to de facto treatment

Remedies — Damages — Customary international law — Causation — Contributory fault — Whether damages for breach of fair and equitable treatment were the same as for expropriation — Whether the claimant contributed to its own loss — Whether to reduce the award of damages

Remedies — Settlement — State-owned entity — Whether an agreement between the claimant and a State-owned company settled treaty-based claims in the absence of express language

Costs — Conditional legal costs — Whether the parties should split the costs — Whether the claimant was entitled to recover a success fee payable to counsel

Type
Case Report
Copyright
© Cambridge University Press 2020

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