Hostname: page-component-78c5997874-dh8gc Total loading time: 0 Render date: 2024-11-05T22:42:41.808Z Has data issue: false hasContentIssue false

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

Get access

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

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)