Phoenix Action Ltd v. Czech Republic

Abstract

Procedure — Provisional measures — ICSID Convention, Article 47 — ICSID Arbitration Rule 39 — Whether the tribunal had authority to rule on provisional measures even though its jurisdiction was being challenged — Whether it was necessary and urgent to prevent the transfer of certain land and factories — Whether it was necessary and urgent to unfreeze funds in a bank account — Whether it was necessary and urgent to examine classified governmental archives

Jurisdiction — Ratione temporis — Whether the tribunal had jurisdiction over claims arising before the investment was acquired — Whether the tribunal had jurisdiction over claims arising after the investment had been sold

Jurisdiction — Investment — ICSID Convention, Article 25 — General principles of law — Good faith — Whether the Salini test should be supplemented — Whether a requirement of contribution to the State’s economy was a better requirement than contribution to the State’s development — Whether a mere intention to contribute was sufficient — Whether the contribution in money or other assets had to be significant — Whether there was a contribution of sufficient duration — Whether there was an element of risk in a modest investment — Whether there was an operation made to develop an economic activity in the host State — Whether assets were invested in accordance with municipal law — Whether the investment was made in good faith — Whether the timing of the dispute indicated the investment was made in good faith — Whether the substance of the investment indicated it was made in good faith

Applicable law — General principles of law — Good faith — Whether a general principle of law required that an investment be made in good faith

Interpretation — Jurisdiction — Investment — Legality — Whether the BIT can expand upon the concept of investment under the ICSID Convention — Whether conformity with municipal law in making an investment was an implicit requirement under the ICSID Convention or the BIT

Costs — Abuse of process — Costs follow the event — Whether costs were to follow the event — Whether abuse of the system of investment protection was relevant to costs