Churchill Mining Plc and Planet Mining Pty Ltd v. Republic of Indonesia

Abstract

Jurisdiction — Consent — ICSID Convention, Article 25(1) — Meaning of “shall assent” — Whether the State consented in writing to ICSID arbitration — Whether the BITs contained standing offers to arbitrate — Whether the State subsequently consented to arbitrate in approving the local investment vehicle — Whether the subsequent act of consent extended to foreign shareholders

Jurisdiction — Investment — Legality — Whether an admission requirement was restricted to the time when the investment was made or extended to subsequent performance — Whether local consent satisfied the admission requirement — Whether a government body was authorised to grant consent

Applicable law — Fraud — ICSID Convention, Article 42(1) — Whether international or municipal law governed allegations of forgery and deception

Evidence — Fraud — Burden of proof — Standard of proof — Whether the State bore the burden of proof under international law — Whether the standard was balance of probabilities — Whether the State was required to prove motive or intent

Evidence — Adverse inferences — Whether the tribunal was required to draw adverse inferences from a failure to produce documents

Evidence — Fraud — Whether signatures on official documents were authentic and authorised — Whether there was sufficient evidence to support a finding of corruption — Whether there was sufficient evidence to find that the investors were authors of fraud

Procedure — Fraud — Whether an allegation of forgery should be addressed as a matter of jurisdiction, admissibility or merits

Admissibility — Fraud — Good faith — Abuse of rights — Third-party misconduct — Wilful blindness — International public policy — Whether an investor may bring a claim based on rights arising from fraud or forgery which the investor deliberately or unreasonably ignored — Whether the fraud was serious — Whether the investor exercised a reasonable level of due diligence — Whether the underlying fraud affected the validity of later instruments

Annulment — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Right to be heard — Whether the tribunal’s refusal to allow further evidence constituted a breach of the right to be heard — Whether the tribunal had considered evidence that had been excluded — Whether there was unequal treatment in the tribunal’s decision to allow the State not to produce police files — Whether the tribunal failed to draw adverse inferences from the non-production of police files — Whether the investors were denied the right to be heard on the validity of licences under municipal law and denial of justice in local courts — Whether the tribunal denied the right to present arguments on the law of State responsibility

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Whether the tribunal had failed to apply the applicable law in determining the issue of admissibility

Annulment — Failure to state reasons — ICSID Convention, Article 52(1) — Whether the tribunal failed to state the reasons on which the award was based