Tokios Tokelés v. Ukraine

Abstract

Arbitration — International Centre for the Settlement of Investment Disputes — Ukraine–Lithuania Bilateral Investment Treaty, 1994 (“BIT”) — Claimant company established under laws of Lithuania — Claimant establishing wholly owned subsidiary under laws of Ukraine — Claimant investing in subsidiary — Claimant requesting arbitration — Whether actions of Respondent in breach of BIT

Provisional measures — Claimant requesting Tribunal to recommend provisional measures — ICSID Convention, Article 47 — Claimant requesting further provisional measures

Jurisdiction — Bifurcation of proceedings — Whether dispute within jurisdiction of ICSID and competence of Tribunal — Whether Claimant investor of Lithuania — Article 1(2)(b) of BIT — Whether Claimant established under laws of Lithuania — Whether Claimant national of another Contracting State — ICSID Convention, Article 25 — Whether Claimant making investment in Ukraine in accordance with laws of Ukraine — Article 1(1) of BIT — Whether dispute arising directly from Claimant’s investment — ICSID Convention, Article 25(1)

Admissibility — Whether Claimant’s claim admissible — Consent to arbitration — Whether Claimant’s written consent satisfying requirements of ICSID Convention — Whether written consent proper and timely — Requirement to negotiate — Whether Respondent and Claimant “parties” to negotiation — Whether dispute subject of negotiation — Whether dispute sufficiently clearly defined for negotiation to occur at least six months prior to date upon which ICSID registered claim — Article 8 of BIT

Nationality — Control test — State of incorporation — Corporation controlled by nationals of host State — Piercing the corporate veil — ICSID Convention, Article 25

Foreign investment — Whether investment made in Ukraine — Definition of investment — Whether investment made in accordance with laws and regulations of Ukraine — Article 1(1) of BIT — Whether origin-of-capital requirement

Diplomatic protection — Claimant requesting diplomatic protection from Lithuanian Government — Whether inconsistent with Article 26 of ICSID Convention — Whether ICSID remedies exclusive — Proceedings suspended — Whether discontinuance of proceedings appropriate