CC/Devas (Mauritius) Ltd, Devas Employees Mauritius Private Limited and Telcom Devas Mauritius Limited v. Republic of India

Abstract

Procedure — Challenge to arbitrator — Impartiality — Issue conflict — Whether the challenge was brought within time — Whether previous statements about the law gave rise to issue conflict

Jurisdiction — Investment — Whether an investment had been made by the acquisition of shares, debentures and indirect interests over business assets — Whether it was relevant that the project required further regulatory approval

Defence — Exclusions and reservations — Essential security interests — Whether the security interests were essential — Whether the contract was annulled for non-security political factors — Whether essential security interests precluded the tribunal from exercising jurisdiction — Whether jurisdiction could be excluded only for part of an expropriation based on a reasonable allocation for essential security interests — Whether the State had to meet the standard of necessity under customary international law — Whether the State had undertaken an obligation not to invoke its essential security interests

State responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 5 — Whether actions of a State-owned entity could be attributed to the State under customary international law — Whether the State-owned entity was a governmental entity under municipal law — Whether the concept of agency could establish State responsibility

Expropriation — Contract termination — Whether the State expropriated an investment by instructing a State-owned entity to annul its contract with a foreign investor — Whether the taking was for a public purpose — Whether the taking followed due process — Whether the State paid compensation — Whether the arbitral award of compensation for breach of contract to be paid by the State-owned entity to the investor’s local subsidiary was relevant to the expropriation standard — Whether the State discriminated against the foreign investor

Remedies — Expropriation — Compensation — Whether compensation for expropriation could be apportioned based on partial defence of essential security interests

Fair and equitable treatment — Legitimate expectation — Good faith — Whether the investors had a legitimate expectation that the State would not invoke its essential security interests — Whether the State acted in good faith during the annulment of the contract — Whether unjust enrichment grounded a distinct claim — Whether the State harassed the investors

Arbitrary or discriminatory measures — Whether the State acted unreasonably in its policy decision or discriminated against foreign ownership

Most-favoured-nation treatment — Substantive provision — Whether the standard of full protection and security could be imported from another bilateral investment treaty

Full protection and security — Legal protection — Whether the State failed to afford full legal protection and security against third parties — Whether the State-owned entity was a third party