Ortiz Construcciones y Proyectos SA v. People’s Democratic Republic of Algeria

Abstract

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – De jure State organ – De facto State organ – Whether complete dependence on the State could be established by the performance of core State functions, daily subordination to central government, or the absence of any operational autonomy – Whether the execution of a mission of public interest sufficed to qualify an entity as a State organ – Whether State supervision amounted to daily subordination or lack of operational autonomy

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Whether an entity was authorised by law to exercise elements of public authority – Whether the impugned acts were performed in the context of such governmental authority – Whether acts performed in the public interest pertained to governmental authority

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Instructions, direction or control – Whether control referred to overall or effective control – Whether control can be evidenced by the overall context of the relationship with the State – Whether such control should extend to the act that was being challenged – Whether ultra vires acts and conduct were attributable – Whether the alignment of interests with the State was sufficient for attribution

Fair and equitable treatment – Legitimate expectation – Specific promise – Material advantage – Whether an investment should have been made on the basis of the alleged expectation – Whether an expectation can be based on vague promises to grant work

Fair and equitable treatment – Good faith – Evidence – Whether a breach of good faith required a proof of bad faith conduct – Whether an uncorroborated witness statement can evidence threats by the State

Fair and equitable treatment – Unjustified, incoherent or arbitrary conduct – Whether the terms “unjustified” and “arbitrary” were equivalent – Whether a failure to succeed in contractual negotiations can evidence an unjustified or incoherent conduct

Non-impairment – Fair and equitable treatment – Judicial economy – Whether the non-impairment standard overlapped with fair and equitable treatment

Umbrella clause – Interpretation – VCLT, Article 33 – Reconciliation of equally authentic texts – Whether the clause covered non-contractual obligations

Costs – Good faith – Whether the unsuccessful party should not be ordered to pay the successful party’s costs because the former brought the proceeding in good faith