Gavazzi and Gavazzi v. Romania

Abstract

Jurisdiction — Investment — Shares — ICSID Convention, Article 25 — Salini test — Municipal law — Whether domestic formalities on investment registration were relevant to jurisdiction — Whether the purchase of shares satisfied the criteria of contribution, duration, risk and economic development

Jurisdiction — Investment — Claims to money — Arbitration award — ICSID Convention, Article 25 — Whether an arbitration award was a claim to money and thus a covered investment

Jurisdiction — Time-bar — Applicable law — Whether time limitations under municipal law were relevant to jurisdiction

Counterclaim — Contract — Jurisdiction — ICSID Convention, Article 42 — ICSID Convention, Article 46 — Applicable law — Whether the BIT permitted free-standing counterclaims based on breach of contract — Whether the applicable law of the contractual counterclaim was relevant to jurisdiction

Admissibility — Res judicata — Issue estoppel — Whether a related contractual arbitration and judicial review of the award under Romanian law precluded claims regarding breach of the BIT

Fair and equitable treatment — Debt restructuring — Freezing bank accounts — Whether the State’s failure to restructure the acquired company’s debts on agreed terms and its acts and omissions in relation to the acquired company’s bank accounts breached the standard of fair and equitable treatment — Whether the breaches of fair and equitable treatment caused the bankruptcy of the acquired company

Expropriation — Debt restructuring — Contract — Whether the State’s failure to restructure the acquired company’s debts on agreed terms was a measure having similar effect to expropriation without compensation — Whether the claimants were entitled to suspend their agreed additional investments in the acquired company

Fair and equitable treatment — Denial of justice — Public policy — Whether the State failed to provide effective means of asserting claims and enforcing rights — Whether a wrong decision was a denial of justice in breach of international law — Whether the judicial annulment of a commercial arbitration award on grounds of public policy was discriminatory or in bad faith

Remedies — Damages — Valuation method — Evidence — Equitable principles — Whether the acquired company was a going concern — Whether it was appropriate to use past cash flow in valuation — Whether there was sufficient evidence to use an unlevered income approach to valuation — Whether quantum of damages could be determined according to equitable objective principles – Whether any reduction should be made for contributory negligence — Whether moral damages were appropriate

Remedies — Interest — Whether it was appropriate to award compound interest