Von Pezold, Von Pezold, Webber, Von Pezold, Batthyàny, Von Pezold, Von Pezold, Von Pezold and Von Pezold v. Republic of Zimbabwe

Abstract

Jurisdiction — Foreign investor — ICSID Convention, Article 25(2) — Whether the requirements of foreign nationality or control were satisfied

Jurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Origin of capital — Whether the claims related to foreign investments fulfilling the applicable test

Jurisdiction — Standing — Whether the claimants had standing to bring a claim for loss in respect of assets held by local companies

Jurisdiction — Provisional application — VCLT, Article 25 — Whether the parties to the BIT agreed to provisional application prior to the date of its ratification

State responsibility — Attribution — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 8 — ILC Articles on State Responsibility, Article 11 — Customary international law — Whether the State could be held responsible for police inaction in the face of the unlawful occupation movement — Whether the occupation movement was under the direct order or control of the State

Defence — Proportionality — Margin of appreciation — Whether land expropriations could be justified as a proportionate exercise of State regulatory powers — Whether a margin of appreciation may be applied in the context of investment treaty disputes

Expropriation — Direct expropriation — Compensation — Non-discrimination — Due process — Public purpose — Whether the taking of land complied with the conditions of a lawful expropriation — Whether direct debit from bank accounts and seizure of grain at less than market price constituted unlawful expropriations

Expropriation — Indirect expropriation — Whether assets that were not directly expropriated but were no longer commercially viable were unlawfully expropriated — Whether changes to water permits were so significant as to constitute expropriation — Whether refusal to release foreign currency led to expropriation of an unpaid loan

Fair and equitable treatment — Legitimate expectation — Whether the State provided specific assurances that the investors would not be expropriated — Whether changes to water permitting without compensation violated legitimate expectations — Whether restrictions on foreign currency and exchange were in breach of fair and equitable treatment

Full protection and security — Law enforcement — Whether the State took all reasonable measures to remove occupiers from the investors’ land — Whether the police were overwhelmed or would have needed to use disproportionate force — Whether responsibility was excepted by a situation of war or revolution

Free transfer — Whether refusal to release foreign currency and imposition of local currency constituted an investment treaty breach

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether property invasions should be considered a threat to an essential interest of the State — Whether there was an essential interest of the State at stake — Whether there was a grave and imminent peril to the existence of the State or merely the incumbent political party — Whether the acts of State were the only way to stop the occupations — Whether the measures were in violation of obligations erga omnes not to discriminate based on race — Whether the State contributed to the situation

Remedies — Restitution — Whether it was possible to reinstate title to expropriated land

Remedies — Damages — Whether there was a compensable difference between the value of land as is and but for the unlawful measures due to damage and loss of productivity

Remedies — Moral damages — Whether exceptional circumstances existed to award moral damages — Whether corporate claimants may be awarded moral damages

Annulment — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the State had been denied an opportunity to present a case on illegality due to procedural orders on admissibility

Annulment — Serious departure from a fundamental rule of procedure — Composition of tribunal — Corruption of tribunal member — ICSID Convention, Article 52(1) — Waiver — Whether the late disclosure of the tribunal president’s role with another World Bank body formed a basis for annulment — Whether the State waived its right to challenge the arbitrator

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Whether the tribunal failed to apply the proper law for the defence of necessity and legality of investments