Tulip Real Estate Investment and Development Netherlands BV v. Republic of Turkey

Abstract

Jurisdiction – Investment – ICSID Convention, Article 25 – Whether an investment can be composed of interrelated transactions

Admissibility – Representative claims – Whether claims may be asserted on behalf of a non-party to the proceeding

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – Whether a State-owned real estate developer was an organ of the State – Whether a majority shareholding by the State triggered a presumption that the entity was an emanation of the State

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Contract – Whether a State-owned real estate developer was empowered by municipal law to exercise governmental authority – Whether an entity’s affiliation with a State organ and the enjoyment of preferential rights under municipal law implied an exercise of public authority – Whether the entity exercised puissance publique in its contractual negotiation, performance or termination

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Contract – Whether shared management of a real estate developer by State organs and parastatal entities could be relevant for attribution – Whether the commercial soundness of a decision was relevant to attribution – Whether contractual termination was an expression of sovereign power

Jurisdiction – Contract – Whether claims arising out of a contractual termination may constitute treaty claims

Fair and equitable treatment – Interpretation – Legitimate expectation – Legal stability – Contract – Whether standard required proactive protection of legal stability and predictability – Whether any precontractual representations provided the basis for legitimate expectations regarding zoning – Whether the decisions of a State-owned real estate developer not to grant further extensions and ultimately to terminate a contract were a breach of fair and equitable treatment

Expropriation – Contract – Whether a recommendation by a State organ entity to terminate a contract meant that the termination was an improper exercise of sovereign power

Full protection and security – Interpretation – Contract – Police – Whether the standard of full protection and security imposed an obligation of strict liability – Whether the involvement of police forces in the termination of a contract implied a breach of full protection and security

Umbrella clause – Domestic legislation – Whether a claim under the domestic investment legislation of the host State could be elevated to a breach of international law

Investment promotion – Interpretation – Whether a failure to promote and protect investments constituted a discrete breach of the BIT

Costs – Costs follow the event – Whether the unsuccessful party should bear the arbitration costs

Annulment – Serious departure from a fundamental rule of procedure – ICSID Convention, Article 52(1)(d) – Interpretation – Right to a fair trial – VCLT, Article 31(3)(c) – Human rights – Whether human rights instruments were relevant to the interpretation of the concept of a fundamental rule of procedure

Annulment – Serious departure from a fundamental rule of procedure – ICSID Convention, Article 52(1)(d) – Attribution – Evidence – Whether a tribunal disregarded critical evidence relevant to attribution

Annulment – Manifest excess of powers – ICSID Convention, Article 52(1)(b) – Jurisdiction – Attribution – Whether a tribunal’s determination on the merits despite lack of jurisdiction for want of attribution was a manifest excess of powers

Annulment – Failure to state reasons – ICSID Convention, Article 52(1)(e) – Attribution – ILC Articles on State Responsibility, Article 8 – Whether a tribunal failed to state reasons for concluding that a State-owned real estate developer was acting under the instruction or control of the State