Gustav F W Hamester GmbH & Co KG v. Republic of Ghana

Abstract

Jurisdiction – Investment – Legality – Fraud – Whether the investment had been procured on the basis of the investor’s fraudulent activity

Jurisdiction – State responsibility – Attribution – Whether an objection to jurisdiction for want of attribution should be addressed on the merits

State responsibility – Internationally wrongful act – ILC Articles on State Responsibility, Article 2 – Whether the State was responsible for any act that interfered with an investor’s rights regardless of who committed the impugned act

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – De facto organ – Whether the impugned acts were performed by an organ of the State – Whether a corporate body was a de facto organ of the State

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Puissance publique – Joint venture – Contract – Shareholder dispute – Whether a corporate body was empowered with governmental authority – Whether impugned acts of a corporate body were performed through the exercise of governmental authority – Whether contractual negotiations evidenced the exercise of governmental authority – Whether a contractual dispute over the failure to supply goods evidenced the exercise of governmental authority – Whether a dispute between shareholders of a joint venture vehicle evidenced the exercise of governmental authority

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Whether the State exercised general control over a corporate body – Whether the State exercised specific control over impugned acts of a corporate body

Expropriation – Harassment – Criminal investigation – Evidence – Whether there was sufficient evidence of alleged harassment by police officers – Whether a criminal investigation into an employee of the investor contributed to an alleged expropriation

Expropriation – Management rights – Joint venture – Government interference – Evidence – Whether there was evidence of instructions from the State to the investor’s joint venture partner that resulted in the expropriation of the investor’s management rights

Expropriation – Export ban – Joint venture – Government interference – Evidence – Whether there was evidence that the imposition of an export ban was controlled by the State – Whether the imposition of an export ban was motivated by the legitimate commercial fears of a joint venture partner

Umbrella clause – Contract – Joint venture – Whether the State was responsible under international law for a corporate body’s alleged breach of contract – Whether the impugned acts were the exercise of sovereign powers or purely contractual – Whether elevating contract claims to treaty claims would undermine the purpose of the investment treaty regime

Fair and equitable treatment – Legitimate expectation – Contract – Joint venture – Whether contractual rights were sufficient to ground a legitimate expectation under international law