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Published online by Cambridge University Press: 09 December 2021
The Adamakopoulos and Others v. Cyprus Decision is noteworthy because it provides a blueprint for mass claims proceedings in investment treaty arbitration, justifying the possibility of addressing investment claims en masse in the future. This case comment reviews the background to the dispute, addresses the majority decision on the mass claims, and comments on the Tribunal's reasoning regarding the non-requirement of additional consent to mass claims arbitration, the homogeneity of the claims, and procedural flexibility.
1 Theodoros Adamakopoulos and Others v. Republic of Cyprus, Decision on Jurisdiction, 7 February 2020, ICSID Case No. ARB/15/49 [Adamakopoulos].
2 Ibid., at para. 342.
3 Ibid., at paras. 7 and 111, n. 122.
4 The number of Claimants has changed since the filing of the request for arbitration. The final number of Claimants, excluding the two whose claims were withdrawn, is 956. See ibid., at Annex I.
5 Ibid., at para. 5.
6 Ibid., at para. 208.
7 Agreement between the Government of the Hellenic Republic and the Government of the Republic of Cyprus for the Reciprocal Promotion and Protection of Investments, 30 March 1992 (entered into force 26 February 1993).
8 Agreement between the Republic of Cyprus and the Belgo-Luxemburg Economic Union on the Reciprocal Promotion and Protection of Investment, 26 February 1991 (entered into force 5 June 1999) [Cyprus-BLEU BIT].
9 Adamakopoulos, supra note 1 at para. 94.
10 Ibid., at para. 64.
11 Ibid., at paras. 68–9.
12 Ibid., at paras. 70–1.
13 Ibid., at paras. 112–15
14 Ibid., at paras. 116–17
15 Ibid., at para. 118.
16 Ibid., at paras. 190–1.
17 Abaclat and Others v. Argentine Republic, Decision on Jurisdiction and Admissibility, 4 August 2011, ICSID Case No. ARB/07/5 [Abaclat].
18 Ambiente Ufficio S.p.A. and Others v. Argentine Republic, Decision on Jurisdiction and Admissibility, 8 February 2013, ICSID Case No. ARB/08/9 [Ambiente].
19 Giovanni Alemanni and Others v. Argentine Republic, Decision on Jurisdiction and Admissibility, 17 November 2014, ICSID Case No. ARB/07/8 [Alemanni].
20 Adamakopoulos, supra note 1 at para. 189.
21 Ibid., at para. 198.
22 Ibid., at paras. 194–200.
23 Ibid., at para. 201.
24 Ibid., at para. 201.
25 Ibid., at para. 205.
26 Ibid., at para. 210.
27 Ibid., at paras. 210–13.
28 Ibid., at paras. 219–21.
29 Ibid., at para. 235.
30 Ibid., at para. 224.
31 Ibid., at para. 236.
32 Article 44 of the ICSID Convention provides: “Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question (emphasis added).”
33 Rule 19 of the ICSID Arbitration Rules provides: “The Tribunal shall make the orders required for the conduct of the proceeding.”
34 Adamakopoulos, supra note 1 at paras. 237–41.
35 Ibid., at para. 242.
36 Ibid., at paras. 245–6.
37 Ibid., at para. 247.
38 Ibid., at paras. 250–7.
39 Article 25(1) of the ICSID Convention provides: “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally (emphasis added).”
40 Rule 44 of the ICSID Arbitration Rules provides: “If a party requests the discontinuance of the proceeding, the Tribunal, or the Secretary-General if the Tribunal has not yet been constituted, shall in an order fix a time limit within which the other party may state whether it opposes the discontinuance. If no objection is made in writing within the time limit, the other party shall be deemed to have acquiesced in the discontinuance and the Tribunal, or if appropriate the Secretary-General, shall in an order take note of the discontinuance of the proceeding. If objection is made, the proceeding shall continue.”
41 Adamakopoulos, supra note 1 at paras. 260–1.
42 Ibid., at paras. 262–3.
43 The Tribunal ordered the Claimants to provide security of US$5 million in the form of a deed of indemnity or other forms of irrevocable guarantee to ensure that a future Arbitral Award requiring the Claimants to compensate the Republic for the costs it might incur in the arbitration could be satisfied. At the same time, the Tribunal rejected the Claimants’ request for an equivalent order that the Respondent be required to provide security for costs. See Press and Information Office of Cyprus, “Statement by the Office of the Attorney-General of the Republic in relation to the case of Theodoros Adamakopoulos and others v. Republic of Cyprus” (5 August 2020), online: Press and Information Office of Cyprus, https://www.pio.gov.cy/en/press-releases-article.html?id=15119.
44 Adamakopoulos, supra note 1 at paras. 264–6.
45 Ibid., at paras. 258–9.
46 Deepu J. SUSHAMA, “Mass Claims in Investment Arbitration- The Need of the Hour” Kluwer Arbitration Blog (4 March 2015), online Kluwer Arbitration Blog <http://arbitrationblog.kluwerarbitration.com/2015/03/04/mass-claims-in-investment-arbitration-the-need-of-the-hour/>.
47 PERMESLY, Jennifer and CRAVEN, Meredith, “Where Are We Now? Investment Treaty Arbitration, Sovereign Debt, and Mass Claims in the Post-Abaclat Era” (2018) 15 Transnational Dispute Management 1Google Scholar at 10.
48 KABRA, Ridhi, “Has Abaclat v. Argentina left the ICSID with a ‘mass'ive problem?” (2015) 31 Arbitration International 425CrossRefGoogle Scholar; DEMIRKOL, Berk, “Does an Investment Treaty Tribunal Need Special Consent for Mass Claims” (2013) 2 Cambridge Journal of International and Comparative Law 612CrossRefGoogle Scholar.
49 The Abaclat Tribunal simply concluded that there was jurisdiction over the individual claims. The Ambiente Tribunal assumed jurisdiction over mass claims on the basis of ICSID practice involving a small number of claimants. The Alemanni Tribunal joined the mass claims jurisdiction objection to the merits phase.
50 STRONG, S.I., “Mass Procedures as a Form of Regulatory Arbitration – Abaclat v. Argentine Republic and the International Investment Regime” (2013) 38 Journal of Corporation Law 259Google Scholar; NAKAJIMA, Kei, “Beyond Abaclat: Mass Claims in Investment Treaty Arbitration and Regulatory Governance for Sovereign Debt Restructuring” (2018) 19 The Journal of World Investment & Trade 208Google Scholar; WIESSNER, Siegfried, “Democratizing International Arbitration? Mass Claims Proceedings in Abaclat v. Argentina” (2014) 1 Journal of International and Comparative Law 55Google Scholar.
51 Kabra, supra note 48.
52 Ambiente, supra note 18 at para. 150; Abaclat, supra note 17 at para. 490.
53 Kabra, supra note 48.
54 Adamakopoulos, supra note 1 at paras. 198–201; Demirkol, supra note 48.
55 Adamakopoulos, supra note 1 at para. 205.
56 Ibid., at paras. 202–3.
57 On the one hand, the Tribunal acknowledged that more than one dispute might be brought against the host State, although the treaties kept silent on whether the disputes should be brought individually or might be brought together in a mass proceeding. On the other hand, it agreed with the Alemanni tribunal that there must be “a dispute” instead of a myriad of disputes. See ibid., at paras. 198 and 205.
58 Theodoros Adamakopoulos and others v. Republic of Cyprus, Statement of Dissent of Professor Marcelo Kohen, 3 February 2020, ICSID Case No. ARB/15/49 at para. 72.
59 Lao Holdings N.V v. Lao People's Democratic Republic, Decision on Jurisdiction, 21 February 2014, ICSID Case No. ARB(AF)/12/6 at para. 120.
60 Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment No. 2, 30 August 1924, [1924] PCIJ (Ser. A) No. 2 at 11, para. 19.