Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania

Abstract

Procedure — Provisional measures — Confidentiality — ICSID Convention, Article 47 — ICSID Arbitration Rule 39(1) — Whether confidentiality measures were needed to ensure orderly disposition and procedural integrity of the arbitration — Whether the parties may engage in general public discussion — Whether the parties may apply for restrictions to be lifted

Procedure — Amicus curiae — ICSID Arbitration Rule 37(2) — Public interest — Whether there was a public interest in the arbitration — Whether the non-parties’ proposed submission had reasonable potential to assist the tribunal in determining a legal or factual matter by bringing a perspective different from the parties to the dispute — Whether the non-parties would address a matter within the scope of the dispute — Whether the non-party had a significant interest in the proceeding — Whether the non-party submission would disrupt the proceedings or unfairly burden or prejudice either party to the dispute — Whether non-parties should be granted access to key arbitral documents — Whether non-parties should be permitted to attend oral hearings

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the elements of the Salini test were mandatory legal requirements — Whether the BIT contained a broad and flexible definition of investment

Jurisdiction — Consent — ICSID Convention, Article 25 — Corporate formalities — Whether the claimant was barred from proceeding with the arbitration in the absence of proof of a formal resolution approving the arbitration

Jurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a tribunal may exercise jurisdiction over claims arising under domestic law calling for parties to agree an acceptable dispute resolution mechanism, but where no agreement had been reached

Jurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a State’s consent to ICSID arbitration in a BIT implied consent to ICSID arbitration for claims arising under domestic law

Jurisdiction — Cooling-off period — Whether a claimant’s failure to strictly observe a BIT’s six-month cooling-off period was a bar to jurisdiction

Expropriation — Contract — Cumulative acts — Public purpose — Economic loss — Whether a party’s interest in a lease contract was an asset capable of being expropriated — Whether a State’s breach of contractual rights was relevant to the determination of expropriation claims under a BIT — Whether the cumulative effects of multiple acts can constitute an expropriation — Whether typically commercial activities can form the basis for a claim of expropriation when carried out by the State or its agencies — Whether economic loss was relevant to the question of a State’s liability for interference with an investor’s rights

Fair and equitable treatment — Expropriation — Whether conduct constituting expropriation necessarily constituted a violation of the standard of fair and equitable treatment

Fair and equitable treatment — Legitimate expectation — Whether the appointment of a non-independent regulator in violation of a legitimate expectation that regulators would be independent violated the standard of fair and equitable treatment where the breach had no negative impact on the investment

Fair and equitable treatment — Contract — State-owned entity — Change of circumstances — Whether the State’s failure to ensure that government agencies paid their water bills could be distinguished from a commercial actor’s failure to pay bills and constituted a breach of the standard of fair and equitable treatment — Whether a State-owned entity had an obligation to renegotiate contracts based on changed circumstances — What facts a claimant must prove to demonstrate change of circumstances

Arbitrary or discriminatory measures — Reasonableness — Whether the requirement that States must not impair investments through unreasonable or discriminatory measures implied the same reasonableness standard as fair and equitable treatment

Arbitrary or discriminatory measures — Political motivations — Whether public statements, withdrawal of tax exemptions and seizure of property were arbitrary and unreasonable when motivated by political considerations

Full protection and security — Physical security — Commercial and legal security — Whether the standard of full protection and security applied only to physical security or extended to commercial and legal security

Free transfer — Availability of funds — Whether a State’s actions that destroyed the value of an investment, thereby depriving an investor of funds, constituted a violation of the protection of free transfer of funds

Remedies — Damages — Whether a State caused an investor’s damages where the value of the investment was already in jeopardy prior to the challenged acts

Costs — Whether costs should be awarded to a claimant who prevailed on the merits but was unable to prove damages resulting from the challenged State conduct