Mitchell v. Democratic Republic of the Congo

Abstract

Jurisdiction — Investment — Professional services — ICSID Convention, Article 25(1) — Whether legal services qualified as an investment — Whether a contribution to the economic development of the host State was required for there to be an investment

Expropriation — Measures tantamount to expropriation — Whether international law or national law was applied to determine whether an expropriation had occurred under the BIT — Whether measures resulting in the total loss of clients may constitute measures tantamount to expropriation

Remedies — Damages — Expropriation — Fair market value — Capitalised earnings approach — Whether the investor was entitled to compensation based on a projection into the future of income from the previous years — Whether the investor was entitled to compensation including projected income on accounts held outside the host State — Whether the capitalisation rate was appropriate to the economic and political circumstances of the host State — Whether the period of future compensation reflected the claimant’s inability to return to the host State

Counterclaim — Nuisance — Reputational damage — Whether the host State was entitled to reputational damages resulting from an investment treaty claim

Annulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether potential difficulties for the State in recouping the amount of the Award in case of annulment were likely — Whether other State budgetary priorities are a relevant factor in deciding whether to grant a stay — Whether the lack of urgency of recovery of the award by an investor was a relevant factor in deciding whether to grant a stay — Whether the seriousness of the grounds invoked in the annulment proceedings is a relevant factor in deciding whether to grant a stay

Annulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether the posting of a bank guarantee in the amount of the award was a condition for a stay of enforcement — Whether the principle that the State was obliged to comply with its international obligations is a sufficient basis for deciding whether to require the posting of a guarantee as a condition for a stay of enforcement — Whether the State needed to prove that the posting of a guarantee would be a significant burden to avoid being required to post a guarantee

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Whether the tribunal exceeded its powers in accepting jurisdiction ratione materiae over professional services — Whether the tribunal exceeded its powers by failing to apply a provision of the BIT that was not specifically adduced in the arbitration proceeding

Annulment — Investment — Professional services — ICSID Convention, Article 25(1) — Salini test — Whether the existence of a contribution to the economic development of the host State was an essential characteristic of an investment

Annulment — ICSID Convention, Article 52(1)(e) — Whether the tribunal failed to state reasons in accepting jurisdiction ratione materiae over professional services — Whether the tribunal failed to state reasons with respect to its failure to apply certain provisions of the BIT that were not adduced in the arbitration proceeding — Whether the tribunal failed to state reasons with respect to the calculation of the compensation due to the claimant