Gavrilović and Gavrilović d.o.o. v. Republic of Croatia

Abstract

Procedure – Bifurcation – Jurisdiction – Whether the State’s objections to jurisdiction could be assessed in an initial phase before the merits

Procedure – Provisional measures – Urgent application – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Whether the State should be ordered to refrain from interrogating an investor pending the tribunal’s determination of an application for provisional measures

Procedure – Provisional measures – Criminal investigation – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Evidence – Whether the tribunal had jurisdiction to grant provisional measures ordering the suspension of a criminal investigation – Whether there was evidence to support the assertion that a criminal investigation would infringe the investors’ rights

Procedure – Preliminary objections – ICSID Arbitration Rule 41(1) – Whether an additional objection to jurisdiction and admissibility was made as early as possible

Jurisdiction – Foreign investor – Investment – ICSID Convention, Article 25 – Whether the claimants were investors making an investment under the BIT and the ICSID Convention

Jurisdiction – Legality – Corruption – Burden of proof – Whether the State met its burden of proving illegality on the part of the investors

Admissibility – Contract – Umbrella clause – Whether the tribunal could hear claims related to contractual breach under the BIT’s umbrella clause

Applicable law – Property – Municipal law – Whether issues related to property rights would be decided solely under municipal law or under both municipal and international law

Jurisdiction – Investment – Property – Municipal law – Contract – Whether properties had been transferred by universal succession by contract under municipal law

State responsibility – Attribution – ILC Articles on State Responsibility – Internationally wrongful act – Whether the principles of attribution could be applied to conduct that was not an allegedly wrongful act

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – Corruption – Whether the allegedly corrupt acts of officials transformed the attributable conduct of a State organ into purely private acts

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Whether a privatisation fund was an entity empowered by municipal law to exercise elements of governmental authority

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Evidence – Whether there was sufficient evidence to show that a holding company was under the effective control of the State

Contract – Privity – Whether the State was bound by a contract entered into by a State-appointed liquidator

Admissibility – Exhaustion of domestic remedies – Whether there was an obligation to exhaust domestic remedies in the absence of an alleged denial of justice

Expropriation – Direct expropriation – Whether registering State ownership of land without providing compensation constituted a direct expropriation

Expropriation – Indirect expropriation – Real estate – Whether failure to facilitate registration of land led to an indirect expropriation

Expropriation – Indirect expropriation – Contract – Whether contractual rights specific to certain properties were indirectly expropriated

Fair and equitable treatment – Legitimate expectation – Whether there could be a legitimate expectation with respect to properties in which the investors had no property or contractual right – Whether there was a legitimate expectation that the investor would be able to register certain properties – Whether the investors established that the State interfered with their attempt to register ownership contrary to a legitimate expectation

Umbrella clause – Contract – Privity – Whether an umbrella clause can be invoked in respect of contracts entered into with entities that were separate and distinct from the State

Remedies – Compensation – Quantum – Lost rental income – Indirect loss – Causation – Whether the award of compensation should include lost rental income – Whether there was a causal link between the expropriation and indirect loss suffered by the investors

Costs – Loser pays – ICSID Convention, Article 61(2) – Discretion – Whether the State’s share of costs should be reduced when the investors only recovered 2% of the compensation claimed