Société Ouest Africaine des Bétons Industriels [soabi] v. State of Senegal

Abstract

Jurisdiction — Of arbitration tribunal — Consent to arbitrate — Requirement of written consent — icsid arbitration clause in agreement between company and State — Agreement relating to one part of overall project provided for in two earlier agreements — Whether dispute arising under later agreement — icsid Convention, Article 25 — Whether State enjoys preferential position

Parties — To icsid proceedings — Party incorporated under law of a Contracting State — Party controlled by company of a non-Contracting State — Effect of icsid arbitration clause stating that nationality requirements of icsid Convention are deemed fulfilled — Whether party a “national of another Contracting State” — Relevance of deeming provision — Relevance of indirect control by national of a Contracting State — icsid Convention, Article 25

Nationality — Of company — Whether determined by reference to location of head office — Effect of immediate and effective control being vested in nationals of a third State — Whether effective but indirect control appropriate basis for determination of nationality of company

Arbitration — Agreement to arbitrate — Rules of interpretation — Whether strict or liberal interpretation — Applicability of principle of good faith — Interpretation to take into account consequences that parties must reasonably and legitimately have envisaged

State responsibility — For breach of contract — Unilateral decision by State to terminate — Termination not preceded by notice — Alleged breaches of co-contracting party — Whether State liable to compensate for failure to give notice prior to termination — Whether State liable to compensate for termination in absence of breach by co-contracting party — The law of Senegal

Municipal law — Effect of breach by State of internal public order — Effect of failure to incorporate agreement in a decree — Whether international tribunal has power to require compliance with State’s internal law by releasing Government from contractual obligations which it has itself recognized

Compensation — In relation to contract — Unilateral termination of contract without notice — Distinction between compensation for real, ascertainable and quantifiable damage and “full compensation” — Relevance of actual losses, lost profits and general damage suffered — Relevance of parties’ conduct — Whether conduct of investor mitigates or cancels Government’s liability for termination of contract — Nature of damage — Past or future damage compensable as long as ascertainable and direct — Definitions of “ascertainable” and “direct” — Identification of lost profits in terms of probability of lost opportunity — General damages for loss of goodwill too remote

Interest — Distinction between pre- and post-judgment interest — Whether pre-judgment interest may be treated as part of loss flowing from original termination of contract — Nature of post-judgment interest — Determination of date when interest begins to run