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Republic of Italy v. Republic of Cuba

Published online by Cambridge University Press:  20 January 2017

Michele Potestá
Michele Potestá*
Affiliation:
Graduate Institute of International and Development Studies, Geneva
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Abstract

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Keywords

Interstate arbitrationbilateral investment treatiesdiplomatic protectionexhaustion of local remediesdefinition of investment
Type
International Decisions
Information
American Journal of International Law , Volume 106 , Issue 2 , April 2012 , pp. 341 - 347
Copyright
Copyright © American Society of International Law 2012

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References

1 Republic of Italy v. Republic of Cuba, Interim Award (Sentence préliminaire) (Ad Hoc Arb. Trib. Mar. 15, 2005) (in French), at http://italaw.com [hereinafter Interim Award]; Republic of Italy v. Republic of Cuba, Final Award (Sentence finale) (Ad Hoc Arb. Trib. Jan. 15, 2008) (in French), at http://italaw.com [hereinafter Final Award]. English translations of the French and Italian documents in this case report are by the author. For an early comment on the two then-unpublished decisions, see Tonini, Valeria, La definizione di investimento nell’arbitrato tra Italia e Cuba, 91 Rivista Di Diritto Internazionale 1046 (2008)Google Scholar.

2 Accordo sulla promozione e protezione degli investimenti, Cuba-It., May 7, 1993, at http://www.unctad.org/sections/dite/iia/docs/bits/italy-cuba-it.pdf (in Italian) [hereinafter Italy-Cuba BIT or BIT].

3 Id., Art. 10(2).

4 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18 1965, 17 UST 1270, 575 UNTS 159 [hereinafter ICSID Convention].

5 Italy-Cuba BIT, supra note 2, Art. 1(1).

6 Interhandel (Switz. v. U.S.), 1959 ICJ Rep. 6, 27 (Mar. 21).

7 The Dissenting Opinion of Arbitrator Attila Tanzi is also available at http://italaw.com. For the ILC Draft Articles and Commentary on Diplomatic Protection, Art. 9, see Report of the International Law Commission, Fifty-eighth Session 22, 52, UN GAOR, 61st Sess., Supp. No. 10, UN Doc. A/61/10 (2006).

8 The only known precedent in the field other than the Italy-Cuba dispute is the interstate arbitration initiated by Peru pursuant to the Chile-Peru BIT in an attempt to block or hinder an ongoing investor-state arbitration where Peru was the respondent. Peru requested suspension of the investor-state proceedings as a consequence of the inter-state arbitration. The request was denied by the investor-state arbitral tribunal and the interstate arbitration was pursued no further. See Empresas Lucchetti SA v. Peru, ICSID No. ARB/03/4, Jurisdiction, paras. 7, 9 (Feb. 7, 2005), at http://italaw.com; see also Schreuer, Christoph H., Investment Protection and International Relations, in The Law of International Relations—Liber Amicorum Hanspeter Neuhold 345, 350-51 (Reinisch, August & Kriebaum, Ursula eds., 2007)Google Scholar.

9 See Italy-Cuba BIT, supra note 2, Art. 9 (providing for investor-state arbitration).

10 See Potestà, Michele, State-to-State Dispute Settlement Pursuant to Bilateral Investment Treaties: Is There Potential?, in International Courts and The Development of International Law—Essays in Honour of Tullio Treves (Boschiero, Nerina & Scovazzi, Tullio eds., forthcoming 2012)Google Scholar.

11 N. Stephan Kinsella & Noah D. Rubins, International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide 420 (2005). One such example is the ELSI case, where it was undisputed that the claim brought by the United States on behalf of two American companies was subject to the state-to-state dispute settlement clause contained in the FCN treaty between Italy and the United States, which provided that “[a]ny dispute ... as to the interpretation or the application of this Treaty” be submitted to the ICJ. See Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 ICJ Rep. 15, 41-42, paras. 48-49 (July 20).

12 E.g., [Model] Agreement Between the Government of the Italian Republic and the Government of the on the Promotion and Protection of Investments, Art. 10(5), in 12 Unctad, International Investment Instruments: Acompendium 295 (2003), available at http://www.unctad.org/en/docs/dite4volxii_en.pdf; see Juratowitch, Ben, The Relationship Between Diplomatic Protection and Investment Treaties, 23 ICSID Rev. 10, 16 -22 (2008)CrossRefGoogle Scholar.

13 A similar situation would arise where the ICSID Convention has been ratified by both the home and the host states, but the investor avails itself of a different investor-state arbitration option (e.g., arbitration under the UNCITRAL Rules), which may be provided for in the BIT.

14 CMS Gas Transmission Co. v. Argentine Republic, ICSID No. ARB/01/8, Jurisdiction, para. 45 (July 17, 2003), 42 ILM 788, 795 (2003).

15 Paparinskis, Martins, Investment Arbitration and the Law of Countermeasures, 2008 Brit. Y. B. Int’l L. 264, 285Google Scholar.

16 See Schreuer, Christoph H., With Malintoppi, Loretta, Reinisch, August, & Sinclair, Anthony, The ICSID Convention: A Commentary 114-41 (2d ed. 2009)CrossRefGoogle Scholar.

17 See Gaillard, Emmanuel, Identify or Define? Reflections on the Evolution of the Concept of Investment in ICSID Practice, in International Investment Law For The 21st Century—Essays in Honour of Christoph Schreuer (Binder, Christina, Kriebaum, Ursula, Reinisch, August, & Wittich, Stephan eds., 2009)CrossRefGoogle ScholarPubMed.

18 Salini Costruttori S.p.A. v. Kingdom of Morocco, ICSID No. ARB/00/4, Jurisdiction, para. 52 (July 23, 2001), 6 ICSID Rep. 400 (2004), 42 ILM 609 (2003).

19 See, e.g., Petrobart Ltd. v. Kyrgyz Republic, SCC No. 126/2003 (Stockholm Chamber of Commerce Mar. 29, 2005), at http://italaw.com (holding that a contract for the sale of gas condensate qualified as an “investment” according to the broad definition given in Article 1 (6) of the Energy Charter Treaty); see also Mytilineos Holdings SA v. Serbia & Montenegro, Partial Award on Jurisdiction, paras. 117-18 (Ad Hoc Arb. Trib. Sept. 8, 2006), at http://italaw.com (holding that “ [the] ratione materiae test for the existence of an investment in the sense of Article ... 25 ICSID Convention is one specific to the ICSID Convention and does not apply in the context of ad hoc arbitration provided for in BITs as an alternative to ICSID. ... In the present ad hoc arbitration under the Uncitral Rules one would therefore have to conclude that the only requirements that have to be fulfilled in order to confer ratione materiae jurisdiction on this Tribunal are those under the BIT” (footnotes omitted)).

20 See, e.g., Final Award, paras. 148-53 (applying this “dual approach” to one of the cases at issue).

21 Romak S.A. v. Republic of Uzbekistan, PCA No. AA280, paras. 157-243 (Perm. Ct. Arb. Nov. 26, 2009), at http://italaw.com (holding that “the term ‘investments’ under the BIT has an inherent meaning (irrespective of whether the investor resorts to ICSID or UNCITRAL arbitral proceedings) entailing a contribution that extends over a certain period of time and that involves some risk” (para. 207)).

22 Alps Finance & Trade AG v. Slovak Republic (Ad Hoc Arb. Trib. Mar. 5, 2011), available at http://italaw.com. In this award, the tribunal considered whether an assignment contract, providing for the sale of certain receivables, could qualify as an investment under the applicable Swiss-Slovak BIT, and in particular be considered a claim “to any performance having an economic value” (Art. 1 (2)(c)). In denying that such a “one-off sale transaction” (para. 245) could qualify as an investment, the tribunal noted that “when the claim arises from a contract, the contract itself should qualify as an investment. This in turn implies that the contract satisfies certain minimum requirements, such as duration, contribution and risk” (para. 231). The arbitrators found that “the BIT definition of investment is not an entirely self-standing concept, but refers to a more general concept given by international law rules” (para. 240). see also Emmanuelle Cabrol, Pren Nreka v. Czech Republic and the Notion of Investment Under Bilateral Investment Treaties: Does “Investment” Really Mean “Every Kind of Asset”?, 2009-10 Y.B. Int’l Investment L. & Pol’y 217 (commenting on the unpublished Pren Nreka v. Czech Republic award of Feb. 5, 2007).