ENKA İnşaat ve Sanayi A.Ş. (Turkey) v. The Gabonese Republic and L’Agence Nationale des Grands Travaux

Abstract

Contract — Breach of contract — Whether the State failed to honour its debts in accordance with a settlement agreement

Defence — Contract — French law — Théorie de l’imprévision — Unforeseeability — Good faith — Settlement — Whether the doctrine of unforeseeability under French administrative law applied to foreign public entities — Whether the doctrine of unforeseeability under French civil law applied where a State faced cash flow difficulties — Whether the contractual duty to cooperate in good faith required the application of the doctrine of unforeseeability — Whether the conditions for the application of the doctrine were satisfied in the context of a settlement agreement

Defence — Contract — French law — Délai de grâce — Grace period — Good faith — Impecuniosity — Whether the doctrine of grace period under French civil law applied where a State faced cash flow difficulties — Whether the State had demonstrated circumstances under French law warranting a grace period in the payment of the award — Whether the State was an unfortunate debtor in good faith

Contract — Interpretation — Indemnity — Taxation — Whether the State was obliged to indemnify for taxes claimed by municipal authorities — Whether the obligation extended to future hypothetical taxes — Whether the obligation extended to social security obligations