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International Centre for Settlement of Investment Disputes (ICSID): Wena Hotels Ltd. v. Arab Republic of Egypt (Proceeding on the Merits)

Published online by Cambridge University Press:  18 May 2017

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Judicial and Similar Proceedings
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International Legal Materials , Volume 41 , Issue 4 , July 2002 , pp. 896 - 932
Copyright
Copyright © American Society of International Law 2002

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References

Endnotes

* This document was reproduced and reformatted from the hard copy provide by Shearman and Sterling.

1 Wena Hotels Limited is a British company incorporated in 1982 under the laws of England and Wales. See Certificate of Incorporation on Change of Name of Wena Hotels Limited (April 22, 1982) [Annexes Wl & E-J2]. Note, in referencing the documentary annexes submitted by the parties, the notation “W” indicates a document submitted by Claimant, Wena Hotels Limited. The notation “E-J” indicates a document submitted by Respondent, the Arab Republic of Egypt as part of its briefing on jurisdiction; a notation of “E-M” indicates a document submitted by Egypt as part of its briefing on the merits.

2 Claimant's Request for Arbitration, at 1 (submitted on July 10, 1998).

3 Id., at 18.

4 Respondent's Memorial on its Objections to Jurisdiction, at 1 (submitted on March 4, 1999) (“Respondent's Memorial on Jurisdiction“).

5 Id.

6 Id., at 2.

7 Id.

8 Tribunal's Decision on Jurisdiction, at 8-9 (released on June 29, 1999) (quoting Recordings from Tribunal's Session on Jurisdiction, Offices of the World Bank, Paris (on May 25, 1999)).

9 Id., at 9.

10 Id.

11 Id., at 10-19.

12 Id., at 21-23.

13 Full, verbatim transcripts were made of the session and distributed to the parties and the Tribunal following each day of the hearing.

14 Annexes W179&187-194.

15 Annex W183. Wena had sought the Arthur Anderson report (which was prepared for the benefit of Egypt under a Contract with the U.S. Agency for International Development) from Egypt as early as August 30,1999. Notwithstanding this request and the Tribunal's subsequent directions to search for this document, Egypt never produced a copy of the report. At the Tribunal's April 25, 2000 session on the merits (and, again, in the Respondent's Post-Hearing Memorial), Egypt's counsel explained what efforts the Egyptian State Lawsuit Authority had taken to obtain a copy of the report, without success. See Transcript of Tribunal's Session on the Merits (“TR“) Day 1, at 80:27-81:21; Respondent's Post-Hearing Memorial, Appendix E (submitted on May 30, 2000). Shortly after the session, however, the ICSID Secretariat obtained a copy of the report form the U.S. Agency for International Development.

16 Agreement for the Promotion and Protection of Investments, June 11, 1975, U.K.-Egypt (“IPPA“) [Annexes W2&E-J22].

17 Id., art 2(2).

18 Id., art. 5(1).

19 See Certificate of Incorporation on Change of Name of Wena Hotels Limited (April 22, 1982) [Annexes W1&E-J2]. As discussed above, although Egypt never challenged the fact that Wena Hotels Limited was incorporated as a British company, it asserted as part of its objections to jurisdiction that Wena “by virtue of Mr. El-Farargy's ownership and his Egyptian nationality, [should] be treated as an Egyptian company pursuant to Article 8(1)” of the IPPA. Respondent's Reply on Jurisdiction, at 2 (submitted on April 8, 1999). The Tribunal, however, rejected Egypt's proposed construction of Article 8(1) of the IPPA and, thus, determined that Wena was an English company for purposes of the IPPA. See Decision on Jurisdiction, at 10-19.

20 See section II.G, infra, concerning the relationship between EHC and Egypt.

21 Luxor Hotel Lease and Development Agreement (August 8,1989) [Annex W5]

22 Id., art. III.

23 Id.,arts. I, XIII&XV(3).

24 Direct Examination of Mr. Yusseri Mahmud Hamid Hajjaj, TR Day 5, at 4:3-11 (” Yusseri Direct Ex.“).

25 El Nile Hotel Lease and Development Agreement (January 28, 1990) [Annex W4].

26 An Agreement between His Excellency Fouad Sultan, Minster of Tourism for the Egyptian Government, jointly with Mr. Kamal Kandil of the Egyptian Hotels Company and Wena Hotels Limited (October 1, 1989) [Annex W6].

27 Claimant's Request for Arbitration, at 8.

28 Respondent's Memorial on Jurisdiction, at 4.

29 Final Award in Wena Hotels Ltd. v. Egyptian Hotel Company (November 14, 1990) [Annex E-M17].

30 Declaration of Mr. Nael El-Farargy, 14, attached to Claimant's Memorial on the Merits (submitted on July 26, 1999) (“Farargy Declaration“). The Respondent's Memorial on Jurisdiction also reports that Wena brought “a nullity action (No. 18644 of 1990), which was refused by South Cairo Court on February 27, 1994.” Respondent's Memorial on Jurisdiction, at 4. However, a copy of the South Cairo Court's decision was not provided to the Tribunal.

31 Direct Examination of Mr. Humfrey Malins, M.P., TR Day 4, at 174:26-29 (“Malins Direct Ex.“). The Tribunal generally found Mr. Malins to be a reliable and convincing witness, with no apparent financial or personal stake in the outcome of the arbitration. See also Farargy Declaration, UU 17-19.

32 Malins Direct Ex., TR Day 4, at 175:1-4.

33 Id., at 175:25-29. See also Declaration of Mr. Humfrey Malins, M.P., f 4, attached to Claimant's Memorial on the Merits (“Malins Declaration“).

34 Letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to Minister Fouad Sultan (Minister of Tourism) (February 11, 1991) [Witness Statement of Minister Fouad Sultan, Attachment A, attached to Respondent's Memorial on the Merits (submitted on September 6, 1999) (“Sultan Statement“); also Annexes E-M21&W127]. At the time of the events that are the subject of this dispute, Minister Sultan was the Minister for Tourism and Civil Aviation of Egypt. Minister Sultan held this position from 1985 to 1993. Sultan Statement, 3. Although Minister Sultan has now returned to the private sector (serving as Chairman and Managing Direct of Alahly for Development and Investment S.A.E.), the Tribunal shall for convenience refer to the witness as Minister Sultan.

35 Id. (emphasis added; brackets in original English translation) [Sultan Statement, Attachment A; also Annexes E-M21&W127].

36 Minutes of Meeting between Representatives of the Ministry of Tourism, EHC and Wena (February 26,1991) [Sultan Statement, Attachment B; also Annexes E-M22&W124].

37 Id.

38 Direct Examination of Mr. Nael El-Farargy, TR Day 1, at 147:17-25 (“Farargy Direct Ex.“). See also Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Ahmad Al-Khawaga (Attorney for Wena) (March 3, 1991) [Annexes W125 & E-M23]; Witness Statement of Mr. Munir Abdul Al-Aziz Gaballah Shalabi, H 13, attached to Respondent's Rejoinder on the Merits (submitted on October 18, 1999) (“Munir Statement“). The Witness Statement of Mr. Munir should not be confused with the Summary of Evidence to be given by Mr. Munir Abdul Al-Aziz Gaballah Shalabi, attached to Respondent's Memorial on the Merits, because counsel for Egypt were unable to obtain a signed witness statement from Mr. Munir before submitting their Memorial on the Merits, counsel submitted a short Summary of Evidence instead — providing the witness statement when it subsequently became available.

39 Letter from Mr. Kamal Kandil (Chairman, EHC) to Minister Fouad Sultan (Minister of Tourism) (March 21, 1991) [Sultan Statement, Attachment D; also Annex W126].

40 Id. (emphasis added; brackets in original English translation).

41 Id.

42 Id. (emphasis added).

43 Id. (Arabic original). See also Cross examination of Minister Fouad Sultan, TR Day 3, at 235:23-237:27 (“Sultan Cross-Ex.“); Sultan Statement, \ 17.

44 Letter from Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) to Minister Fouad Sultan (Minister of Tourism) (March 25, 1991) [Annex W 128].

45 Id.

46 Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) (March 31, 1991) [Annexes W81 & Wl 29]. During the session on the merits, Minister Sultan suggested that perhaps Mr. Malins’ March 25,1991 letter had been faxed to EHC, not the Minister of Tourism (thus, potentially explaining why Mr. Kandil, and not Minister Sultan responded to the letter). See Sultan Cross-Ex., TR Day 4, at 47:9-10 & 48:29-49:1. However, both the attached fax cover sheet and confirmation sheet for Mr. Malins’ letter show that the letter was faxed to number 2829771 in Egypt. See Annex W128. Subsequent inquiry by counsel for Wena “on May 29, 2000 to France Telecom's International Yellow Pages service” determined that the “same number (2829771) was given as the fax number listed for the Egyptian Ministry of Tourism.” Claimant's Post-Hearing Brief, at 16 & n. 5 (submitted on May 30, 2000). In contrast, as reflected in EHC's contemporaneous letterhead, the fax number for EHC at that time was 3911322. See Annex W129.

47 Id.

48 Munir Statement, f 14.

49 Id.

50 Id.

51 Witness Statement of Mr. Yusseri Mahmud Hamid Hajjaj, \ 8, attached to Respondent's Memorial on the Merits (“Yusseri Statement“).

52 Munir Statement, \ 14.

53 See, e.g., Kasr El-Nile Police Report, at 4 (April 1&2, 1991) [Annex E-M25]; Resolution Number [blank] for the Year 1991) [Annex E-M26].

54 Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Nael El-Farargy (Wena Hotels Ltd.) (March 30, 1991) [Annexes W80&W186].

55 Id. (Brackets in original English translation); emphasis added by the Tribunal.

56 Mr. Munir also asserted that a copy of Resolution Number 215 concerning the seizures was “sent to Wena in EHC's letter dated 30 March 1991 addressed to its head office in England.” Munir Statement, 114. However, there is no evidence to confirm that a copy of this resolution was attached to the letter. See Annex W 80.

57 See registered mail receipt in Annex W80.

58 See fax legend in Annex Wl86.

59 Cross-examination of Mr. Munir Abdul Al-Aziz Gaballah Shalabi, TR Day 5, at 76:22-78:3 (“Munir Cross-Ex.“). During the fifth day of the Tribunal's session on the merits, the absence of a confirmatory fax cover sheet (or a fax number of the letter) was noted. Both parties agreed that EHC should be asked to search its files for any record that could confirm that the document was faxed on March 30, 1991. TR Day 5, at 77:12-78:15.

60 Administrative Decision Number 216 (March 31, 1991) [Annex E-M28].

61 Id. See also Yusseri Statement, f 9.

62 Munir Cross-Ex., TR Day 5, at 55:26-56:1. See also Munir Statement, \ 18. The Tribunal notes that this plan to seize the hotels surreptitiously, while Wena management were away from the hotels, contradicts Mr. Munir's claim that EHC had previously notified Wena of its intentions to repossess the hotels.

63 Respondent's Memorial on Jurisdiction, at 4.

64 Direct Examination of Mr. Simon Webster, TR Day 3, at 12:8-9 (“Webster Direct Ex.“); Direct Examination of Ms. Angela Jelcic, TR Day 3, at 91:26-92:5 (“Jelcic Direct Ex.“).

65 See, e.g., Police Statements, at 6, 9, 10&12 (July 6, 1991) [Annex W134]; Webster Direct Ex., TR Day 3, at 12:15-21; Jelcic Direct Ex., TR Day 3, at 95:13-19. Mr. Munir, however, testified that he arrived at the hotel in a single bus, with “approximately 35 accountants, receptions and other management staff required to run the hotel.” Munir Statement, f 17.

66 Kasr El-Nile Police Reports, at 3 (April 1, 1991) [Annex E-M25]. See also id., at 2.

67 W.,at3.

68 Id.

69 Police Statement of Mr. Tamim Foda, at 5-6 (July 5, 1991) [Annex W134].

70 Police Statement of Mr. Mostafa Ahmed Osman, at 3 (July 6, 1991) [Annex W134].

71 Id., at 3-4.

72 Police Statement of Mr. Sherif Ibrahim Mohamed Khalifa, at 8 (July 6, 1991) [Annex W134].

73 Id.

74 Id., at 9.

75 Id.

76 Police Statement of Mr. Mohamed Sabry Ismail Emam, at 10 (July 6, 1991) [Annex W134] (capital letters in original).

77 Id.

78 “British Tourists are Beaten and Thrown Out of Egypt Hotels,” Daily Telegraph (April 4, 1991) [Annex W7].

79 Id.

80 Police Statement of Mr. Hany Mohamed Hassan Mohamed Wahba, at 11-12 (July 6, 1991).

81 Id., at 12.

82 Id.

83 Id.

84 Id. (capital letters in original).

85 Jelcic Direct Ex., TR Day 3, at 92:17-93:24. See also Declaration of Ms. Angela Jelcic, H 13, attached to Claimant's Memorial on the Merits (“Jelcic Declaration“).

86 Jelcic Direct Ex., TR Day 3, at 94:11-16.

87 Jelcic Direct Ex., TR Day 3, at 97:1-5.

88 Jelcic Direct Ex., TR Day 3, at 97:7-8. See also Jelcic Declaration, f 13 (“I recognized certain EHC executives and personnel, some of whom were standing with some other well-groomed men in suits. These men were identified as Ministry of Tourism officials by our staff who recognized them.“).

89 Jelcic Direct Ex., TR Day 3, at 97:10-13.

90 Webster Direct Ex., TR Day 3, at 14:6-12. See also Webster Direct Ex., TR Day 3, at 14:25-15:6&16:9-12.

91 Statement of Ms. Angela Jelcic to Kasr El-Nile Police (April 2, 1991) [Annex W82]

92 Statement of Mr. Simon Webster to Kasr El-Nile Police (April 2,1991) [Annex W83]. Similar contemporaneous evidence of Wena's impression that the Egyptian government was involved in the seizures is reflected in several of the newspaper articles describing the events. For example, an article in the Caterer and Hotelkeeper reported that “Mr. Farargy believed the attack … was organised either by government elements or people who are fiercely opposed to foreign ownership in Egypt.” “Wena Hotels Attacked by Crowds,” Caterer&Hotelkeeper (April 18,1991) [Annex W85]. Similarly, an article in the Crawley Observer quoted “Wena Managing Director Bernard Dihrberg” as saying “[t]his is a legal dispute with the Egyptian government. We owe money to them and they owe money to us.” “Mob Turn on Hotel Workers,” The Crawley Observer (April 24, 1991) [Annex W86].

93 Sultan Cross-Ex., TR Day 4, at 52:19-22.

94 Direct Examination of Mr. Munir Abdul Al-Aziz Gaballah Shalabi, TR Day 5, at 12:29 (“Munir Direct Ex.“).

95 Jelcic Direct Ex., TR Day 3, at 97:23-98:13; Webster Direct Ex., TR Day 3, at 16:17-17:12-19:8-15; Jelcic Declaration, fl 14; Declaration of Mr. Simon Webster, ffl 30-31, attached to Claimant's Memorial on the Merits (“Webster Declaration“).

96 Id.

97 See Kasr El-Nile Police Report (April 1, 1991) [Annex E-M25]; Munir Cross-Ex., TR Day 5, at 101:11-12.

98 Kasr El-Nile Police Report, at 1 (April 1, 1991) [Annex E-M25].

99 Id.

100 Kasr El-Nile Police Reports, at 9 (April 1, 1991) [Annex E-M25] (brackets in original English translation).

101 See Jelcic Direct Ex., TR Day 3, at 100:22-101:4; Webster Direct Ex., TR Day 3, at 20:2-8.

102 See Jelcic Direct Ex., TR Day 3, at 100:26-101:15; Webster Direct Ex., TR Day 3, at 21:20-22:1; Statement of Ms. Angela Jelcic to Kasr El-Nile Police (April 2,1991) [Annex W82]; Statement of Mr. Simon Webster to Kasr El-Nile Police (April 2,1991) [Annex W83].

103 See Kasr El-Nile Police Reports (April 2, 1991) [Annex E-M25]. The Tribunal also heard testimony from Mr. Tahir Al-Misiri Qasim (TR Day 4 at 223:8 et seq.) and Mr. Sameer Muhammad Khatir (TR Day 4 at 231:23 et seq.) to the effect that there was no violence at the time of the takeover. This testimony is inconsistent with the testimony of Webster and Jelcic and the other witnesses who testified consistently with Webster and Jelcic. Since the testimony of Mr. Qasim and Mr. Khatir has also been found inconsistent with the decision of the Southern Cairo Court of Appeal, which characterized the situation at the Nile Hotel on April 1, 1991 as including many acts of violence, the Tribunal has chosen not to rely on the testimony of these two witnesses.

104 Yusseri Statement, fl[ 9-11.

105 Police Statement Number 984, at 1 (April 2, 1991) [Annex W132].

106 Id.

107 Id., at 3.

108 Police Statement Number 959, at 1 (April 1, 1991) [Annex E-J18].

109 Id.

110 Memorandum from the Public Prosecutor's Office, at 3 (April 13, 1992) [Annex W133].

111 Sultan Cross-Ex., TR Day 4, at 55:14-18. See also Sultan Statement, f 20.

112 Sultan Cross-Ex., TR Day 4, at 55:21 -23.

113 Sultan Cross-Ex., TR Day 4, at 56:2.

114 See, e.g., Direct Examination of Minister Fouad Sultan, TR Day 3, at 180:19-21 (“Sultan Direct Ex.“); Sultan Cross-Ex., TR Day 4, at 58:12-13.

115 See, e.g., Sultan Direct Ex., TRDay 3, at 176:11-14 (“I fully agree that it is a wrong action taken by theEHC, notwithstanding their rights, but they should not have taken that action. They should have gone to arbitration or to the court.“).

116 Sultan Direct Ex., TR Day 3, at 175:9-11. Minister Sultan apparently was referring to the dispute between Southern Pacific Properties (Middle East) Limited (“SPP“) and the Arab Republic of Egypt regarding the development of tourist complex in Egypt, which eventually resulted in a decision that Egypt had expropriated SPP's investment and an award in favor of SPP. See Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, 8 ICSID Review 328 (1993) [Annex W61 ].

117 See, e.g., Sultan Cross-Ex., TR Day 4 at 57:10-28&59:9-61:1.

118 Sultan Direct Ex., TR Day 4, at 176:25-28. See also Sultan Cross-Ex., TR Day 4, at 57:17-21 (“As I said, I will not take back again the law in my hand and take action with the police to evict him [Mr. Kandil] from the hotel. This is something which has to be settled according to our description [sic] laws by a court and not by an administrative decision.“).

119 See, e.g., Malins Declarations, H 6.

120 See Letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to His Excellency, Ambassador Shaker (Egyptian Ambassador to the United Kingdom) (July 9, 1991) [Annex W50].

121 See Letter from the Director General of the Civil Defense Authority (January 4, 1992) [Annex E-M43].

122 See Munir Direct Ex., TR Day 5, at 31:6-7; Munir Statement, f 22.

123 Letter from Mr. Webster (Wena Hotels Ltd.) to Mr. Ceurvost (British Embassy, Egypt) (February 21, 1991) [Annex W130].

124 Id. See also Webster Direct Ex., TR Day 3, at 26:6-16.

125 Munir Statement, f 22.

126 Munir Direct Ex., TR Day 5, at 30:10-28. See also Munir Statement, H 22-23.

127 Id.

128 Police Report on Hand-over of the Nile Hotel (February 25, 1992) [Annex W137].

129 See, e.g., Malins Direct Ex., TR Day 4, at 179:1-20; Webster Direct Ex., TR Day 3, at 26:20-24; Jelcic Direct Ex., TR Day 3, at 109:3-8.

130 See Munir Cross-Ex., TR Day 5, at 89:3-11; Munir Statement, f 24.

131 Jelcic Direct Ex., TR Day 3, at 110:23-25; Farargy Declaration, H 27.

132 Yusseri Statement, U 13.

133 Report on Hand-over of the Luxor Hotel (April 28, 1992) [Annex E-M30].

134 See, e.g., Malins Direct Ex., TR Day 4, at 179:1-20; Jelcic Direct Ex., TR Day 3 at 110:13-22.

135 See, e.g., Yusseri Direct Ex., TR Day 5, at 113:7-11; Jelcic Direct Ex., TR Day 3, at 113:15-20; Letter from Classic Edition Travel to Wena (March 16, 1995); Letter from Inter Air Travel Limited to Wena (April 11, 1995).

136 See, e.g., Malins Direct Ex., TR Day 4, at 180:23-181:23.

137 Letter from Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) to the Honorable Lee H. Hamilton (Chairman, Subcommittee on Europe&the Middle Easy, U.S. House of Representatives) (November 11, 1992) [Annex W131].

138 See decision of the Southern Cairo Court of Appeal (January 16, 1994) [Annex W135].

139 Id.

140 See Munir Direct Ex., TR Day 5, at 32:11-17; Munir Cross-Ex., TR Day 5, at 91:11-92:12.

141 Decision of the Southern Cairo Court of Appeal (January 16, 1994) [Annex W135]; Munir Cross-Ex., TR Day 5, at 94:23.

142 Munir Cross-Ex., TR Day 5, at 93:20-94:26.

143 Redirect Examination of Ms. Angela Jelcic, TR Day 3, at 155:22-156:22 (“Jelcic Redirect Ex.“).

144 Nile Hotel Arbitration Award, at 1 (April 10, 1994) [Annex E-M19].

145 Luxor Hotel Arbitration Award, at 1 (September 29, 1994) [Annex E-J31].

146 Nile Hotel Arbitration Award (April 10, 1994) [Annex E-M19].

147 Annual Return and Financial Statements for Wena Hotels Limited (period ended December 31, 1995) [Annex E-J14]; Letter from Kevin Heath, Esq. (Lester Aldridge, Solicitors for Wena) to Mr. Nael El-Farargy (Wena Hotels Ltd.) (March 20, 1999) [Annex W16].

148 Check drawn in Wena's favor by the Egyptian Ministry of Justice [Annex W93].

149 Luxor Hotel Arbitration Award, at 1 (September 29, 1994) [Annex E-J31].

150 Cairo Court of Appeal's Judgement (December 20, 1995) [Annex E-J32].

151 Yusseri Direct Ex., TR Day 5, at 112:9-29; Annual Return and Financial Statements for Wena Hotels Limited (period ending December 31, 1996) [Annex E-J15].

152 Claimant's Request for Arbitration, at 16.

153 See Munir Statement, 3; Egyptian Law Number 97 of 1983 governing Public Sector Authorities and Affiliated Companies (“Law Number 97 of 1983“) [Annex W65].

154 Sultan Statement, 4.

155 Sultan Cross-Ex., TR Day 3, at 227:26-28.

156 Id., at 228:2-8

157 See Sultan Statement., 18; Sultan Cross-Ex., TR Day 3, at 211:26-212:2; Law Number 97 of 1983, art. 30 [Annex W65].

158 See Prime Minister's Decree No. 539 of 1989 [Annex E-M27]; Sultan Statement, f8; Sultan Cross-Ex., TR Day 3, at 211:17-23. Mr Kandil's appointment “by virtue of the Decree of the Prime Minister No. 539/1989” was noted in both the Nile and Luxor agreements. See Luxor Hotel Lease and Development Agreement, at 1 [Annex W4]; El Nile Hotel Lease and Development Agreement, at 1 [Annex 5].

159 See Munir Statement, H 4.

160 Law Number 97 of 1983, art. 37 [Annex W65]. See also Sultan Cross-Ex., TR Day 3, at 214:18-215:11; Munir Cross-Ex., TR Day 5, at 44:4-17.

161 Munir Statement, H 4.

162 Record of the Lower House Session No. 99, at 36 (July 14, 1992) [Annex W67] (Arabic original). See also Sultan Cross-Ex., TR Day 3, at 209:12-26.

163 Letter form Mr. Abdel-Moneim Rashad (Director General, Minister's Office — Ministry of Tourism) to Ms. Angela Jelcic (Wena Hotels Ltd.) (February 20, 1992) [Annex W66].

164 See, e.g., Luxor Police State Report No. 959 of 1991, at 12&26 (April 1, 1991) [Annex E-M18]; Kasr El-Nile Police Report, at 6 (April 1, 1991) [Annex E-M25] (“The Egyptian Hotels Corporation is a public sector company and its funds are property of the state.“); Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Nael El-Farargy (Wena Hotels Ltd.) (March 30, 1991) [Annex W80]. See also Munir Cross-Ex., TR Day 5, at 47:10-11.

165 Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) (March 31,1991) [Annex W129].

166 Minutes of Meeting between Representatives of the Ministry of Tourism, EHC and Wena (February 26, 1991) (emphasis added) [Sultan Statement, Attachment B; also Annexes E-M22&W124]. During testimony regarding the meaning of this statement, Minister Sultan explained that “I cannot give up entitlements or the rights of the State. If the right of the State is to collect rent I cannot give that right up.” Sultan Cross-Ex., TR Day 3, at 230:2-4.

167 Luxor Police State Report No. 959 of 1991, at 8 (emphasis added) [Annex E-M18].

168 Respondent's Post-Hearing Memorial at 15.

169 See Consultancy Agreement between Mr. Kamal Kandil and Wena Hotels Limited [Annex W149].

170 Id.

171 Writ of Summons issued by Wena Hotels Limited against Mr. Mohamed Kamal Ali Mohamed Kandil (March 26, 1991) [Annex E-M7].

172 Letter from Mr. Kamal Kandil to the Senior Master of the Royal Court of Justice (August 19, 1991) [Annex W150].

173 Id, at 1

174 Id.

175 Id.

176 See Facsimile from Mr. Dimopolous (Wena Hotels Ltd.) to Mr. Kamal Kandil (Chairman, EHC) (December 13, 1989), enclosing letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to His Excellency, the Governor of Aswan (December 11,1989) [Annex W188]; letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to His Excellency, the Governor of Aswan (January 15, 1990) [Annex W189).

177 Farargy Direct Ex., TR Day 1, at 142:27-28. See also Farargy Direct Ex., TR Day 1, at 142:26-143:6.

178 Sultan Direct Ex., TR Day 3, at 188:11-14.

179 Respondent's Post-Hearing Memorial, at 14.

180 Claimant's Post-Hearing Reply, at 16 (submitted on June 15, 2000).

181 Claimant's Memorial on the Merits, at 43-51.

182 Id., at 51-54.

183 Respondent's Memorial on the Merits, at 8-40.

184 Id., at 40-42.

185 Id., at 42-44.

186 Respondent's Post-Hearing Memorial, at 15.

187 IPPA, art. 2(2) [Annexes W2&E-J22].

188 IPPA, art 5(1) [Annexes W2&E-J22].

189 Respondent's Opening Statement, TR Day 1, at 29:24-28. See also Claimant's Opening Statement, TR Day 1, at 15:24-25 (“the basis of this action is the breach of [the] Bilateral Treaty by Egypt“).

190 See, e.g., Claimant's Reply on the Merits, at 48-50. See also Claimant's Memorial on the Merits, at 42; Respondent's Memorial on the Merits, at 7-8 (referring, in regard to Respondent's second defense, to “practices condemned by both Egyptian and international law.“).

191 See, e.g., Claimant's Memorial on the Merits, at 43-51; Claimant's Reply on the Merits, at 29-38 (submitted on September 27,1999); Claimant's Post-Hearing Brief, at 41-44.

192 Claimant's Memorial on the Merits, at 51-54; Claimant's Reply on the Merits, at 39-44; Claimant's Post-Hearing Brief, at 44-46.

193 Respondent's Post-Hearing Rebuttal Memorial, at 8 (submitted on June 15, 2000).

194 IPPA, art. 2(2) [Annex W2&E-J22].

195 American Manufacturing and Trading, Inc. v. Republic of Zaire, ICSID Case No. ARB/93/1, at 28 (1997) [Annex W115J. Article 11(4) of the Zaire-United States bilateral investment treaty, much like Article 2(2) of the IPPA, provides that “[investment of nationals and companies of either Party shall at all times be accorded fair and equitable treatment and shall enjoy Protection and security in the territory of the other party.” Id., at 28 [Annex W1 15].

196 AAPL v. Sri Lanka, ICSID Case No. ARB/87/3, at 545 (1990) [Annex W117; a digested version of the decision has also been provided at Annex E-M35] The wording of Article 2(2) of the bilateral investment treaty in that case (between Sri Lanka and the United Kingdom) is almost identical to that in the same article in the IPPA: “Investment of nationals and companies of either Party shall at all times be accorded fair and equitable treatment and shall enjoy Protection and security in the territory of the other Party.” Agreement for the Promotion and Protection of Investments, February 13, 1980, U.K.-Sri Lanka [Annex W41].

197 AAPL v. Sri Lanka, at 546 (quoting Alwyn V. Freeman, Responsibility of States for Unlawful Acts of Their Armed Forces, 14 (1957)) [Annex Wl 17; also Annex E-M35].

198 The evidence submitted by the parties does suggest a unity of interest between EHC and Egypt such that it is possible that Egypt might have authorized and participated in the seizures of the hotels. The repeated reference in contemporaneous documents to EHC as a “government company,” to its money as “public money” and to its rights as “the Government's rights” or “state ownership” is particularly compelling in this regard. See, e.g., Luxor Police State Report No. 959 of 1991, at 8, 12&26 (April 1, 1991) [Annex E-M18]; Kasr El-Nile Police Report, at 6 (April 1, 1991) [Annex E-M25]; Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Nael El-Farargy (Wena Hotels Ltd.) (March 30, 1991) [Annex W80]; Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) (March 31, 1991) [Annex W129]; Minutes of Meeting between Representatives of the Ministry of Tourism, EHC, and Wena (February 26, 1991) [Sultan Statement, Attachment B; also Annexes E-M22&W124]. Nevertheless, the Tribunal concludes that Wena has failed to satisfy its burden of proving that Egypt actually participated in the seizures of the two hotels. For example, although both Ms. Jelcic and Mr. Webster believe that Ministry of Tourism officials were present at the Nile Hotel, they both admit that they were, personally, unable to identify any such officials. See, e.g., Jelcic Direct Ex., TR Day 3, at 97:10-13; Webster Direct Ex., TR Day 3, at 14:6-12.

199 Malins Direct Ex., TR Day 4, at 175:1-4.

200 Id., at 175:26-29. See also Malins Declaration, fl 4.

201 Letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to Minister Fouad Sultan (Minister of Tourism) (February 11,1991) (emphasis added; brackets in original English translation) [Sultan Statement, Attachment A; also Annexes E-M21&W127].

202 Letter from Mr. Kamal Kandil (Chairman, EHC) to Minister Fouad Sultan (Minister of Tourism) (March 21, 1991) [Sultan Statement, Attachment D; also Annex W126].

203 Id.

204 Id. (Arabic original). See also Sultan Cross-Ex., TR Day 3, at 235:23-237:27; Sultan Statement, 17.

205 Letter from Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) to Minister Fouad Sultan (Minister of Tourism) (March 25, 1991) [Annex W128].

206 Letter from Mr. Kamal Kandil (Chairman, EHC) to Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) (March 31, 1991) [Annex W128].

207 Id.

208 Sultan Cross-Ex., TR Day 3, at 233:2-5.

209 Sultan Cross-Ex., TR Day 3, at 175:9-10.

210 See, e.g., Kasr El-Nile Police Reports (April 1-2,1991) [Annex E-M25]; Police Statement of Mr. TamimFoda (July 6,1991)[Annex W134]; Police Statement of Mr. Mostafa Ahmed Osman (July 6, 1991) [Annex W134]; Police Statement of Mr. Sherif Ibrahim Mohamed Khalifa (July 6, 1991) [Annex W134]; Police Statement of Mr. Mohamed Sabry Ismail Emam (July 6, 1991) [Annex W134]; “British Tourists are Beaten and Thrown Out of Egypt Hotels,” Daily Telegraph (April 4, 1991) [Annex W7].

211 See Jelcic Direct Ex., TR Day 3, at 97:23-98:13; Webster Direct Ex., TR Day 3, at 16:17-17:12&19:8-15; Jelcic Declaration, H 14; Webster Declaration, ffi[ 30-31; Kasr El-Nile Police Report (April 1, 1991) [Annex E-M25]; Munir Cross-Ex., TR Day 5, at 101:11-12.

212 See Police Statement Number 984 (April 2, 1991) [Annex W132]; Police Statement Number 959 (April 1, 1991) [Annex E-J18].

213 See, e.g., Sultan Direct Ex. TR Day 3, at 180:19-21 Sultan Cross-Ex., TR Day 4, at 58:12-13.

214 See, e.g., Sultan Direct Ex., TR Day 3, at 176:11-14 (“I fully agree that it is a wrong action taken by the EHC, notwithstanding their rights, but they should not have taken that action. They should have gone to arbitration or to the court.“).

215 See, e.g., Sultan Cross-Ex., TR Day 4 at 57:10-28&59:9-61:1.

216 Law Number 97 of 1983, art. 37 [Annex W65]. See also Sultan Cross-Ex., TR Day 3, at 214:18-215:11; Munir Cross-Ex., TR Day 5, at 44:4-17.

217 Sultan Cross-Ex., TR Day 3, at 227:26-28.

218 Id., at 228:2-8.

219 Munir Statement, f 4. See also Record of the Lower House Session No. 99, at 36 (July 14, 1992) [Annex W67]; Letter from Mr. Abdel-Moneim Rashad (Director General, Minister's Office — Ministry of Tourism) to Ms. Angela Jelcic (Wena Hotels Ltd.) (February 20, 1992) [Annex W66].

220 See Munir Direct Ex., TR Day 5, at 31:6-7; Munir Statement, ^ 22; Yusseri Statement, H 13.

221 See, e. g., Farargy Declaration, H 26.

222 Letter from Mr. Webster (Wena Hotels Ltd.) to Mr. Ceurvost (British Embassy, Egypt) (February 21, 1991) [Annex W130].

223 Id. See also Webster Direct Ex., TR Day 3, at 26:6-16.

224 See, e.g., Malins Direct Ex., TR Day 4, at 179:1-20; Webster Direct Ex., TR Day 3, at 26:20-24; Jelcic Direct Ex., TR Day 3, at 109:3-8&110:13-22.

225 See Munir Cross-Ex., TR Day 5, at 89:3-11; Munir Statement, H 24.

226 See Munir Direct Ex., TR Day 5, at 30:10-28; Munir Statement, f 22-23; Police Report on Hand-over of the Nile Hote (February 25, 1992) [Annex W137].

227 Munir Direct Ex., TR Day 5, at 30:10-28.

228 See, e.g., Malins Direct Ex., TR Day 4, at 180:23-181:23.

229 Letter from Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) to the Honorable Lee H. Hamilton (Chairman, Subcommittee on Europe&the Middle East, U.S. House of Representatives) (November 11, 1992) [Annex W131].

230 See Decision of the Southern Cairo Court of Appeal (January 16, 1994) [Annex W134]; Munir Cross-Ex., TR Day 5, at 94:23.

231 Jelcic Redirect Ex., TR Day 3, at 155:22-156:22.

232 Munir Cross-Ex., TR Day 5, at 93:20-94:26.

233 IPPA, art 5(1) [Annex W2&E-J22].

234 Ian Brownlie, Principles of International Law, 537 (4th Ed. 1990) [Annex W104]. Professor Brownlie also accurately observes that “in any case form should not take precedence over substance.” Id.

235 Amco Asia Corporation, et al. v. Republic of Indonesia, Award on the Merits, ICSID Case No. ARB/81/1, at 62 (1984) [Annex W94].

236 Id.

237 Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, 8 ICSID Review 328, 375 (1993) [Annex W61]. See also G.C. Christie “What Constitutes a Taking of Property Under International Law,” 38 Brit. Y.B. Int'l L. 308, 310-311 (1962) (citing German Interests in Polish Upper Silesia, Judgement No. 7, PCIJ, Series A (1926)) [Annex E-\ M11].

238 Tippets, Abbett, McCarthy, Stratton v. TAMS-AFFA Consenting Engineers of Iran et al., Iran-U.S. Claims Tribunal, Award No. 141- 7-2, at 225 (June 22, 1984) [Annex E-M12]. In some legal systems, a lease of land or a building is deemed real property.

239 Id.

240 See generally discussion in section III.B. 1, supra.

241 See, e.g., Respondent's Memorial on the Merits, at 10-11; Respondent's Rejoinder on the Merits, at 6-8.

242 Tippets, at 225 [Annex E-M12]. Such a deprivation easily qualifies as an expropriation within the meaning of Article 3(a) of the Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, 55 Amer. J. Int'l L. 545 (1961) (“A ‘taking of property’ includes not only an outright taking of property but also any such unreasonable interference with the use, enjoyment, or disposal of property as to justify an inference that the owner will not be able to use, enjoy or dispose of the property within a reasonable period of time after the inception of such interference.” (“as quoted in G.C. Christie “What Constitutes a Taking of Property Under International Law,” 38 Brit. Y.B. Int'l L. 308, 330 (1962) [Annex E-M11]).

243 IPPA, art 5(1) [Annex W2&E-J22]. See also Ian Brownlie, Principles of International Law, 537 (4lh ed. 1990) (“Expropriation of particular items of property is unlawful unless there is provision for payment of effective compensation.” [Annex W104].

244 Letter from Mr. Humfrey Malins, M.P. (Parliamentary Consultant, Wena) to the Honorable Lee H. Hamilton (Chairman, Subcommittee on Europe&the Middle East, U.S. House of Representatives) (November 11, 1992) [Annex W131]. See also Malins Direct Ex., TR Day 4, at 180:23-181:23; Letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to His Excellency, Ambassador Shaker (Egyptian Ambassador to the United Kingdom) (July 9, 1991) (complaining about the apparent breakdown in negotiations between Egypt and Wena) [Annex W50].

245 Respondent's Memorial on the Merits, at 42-44.

246 Translation of Article 172(1) of the Egyptian Civil Code (Annex E-M36].

247 Respondent's Memorial on the Merits, at 43.

248 Id, at 44.

249 Claimant's Reply on the Merits, at 49.

250 See, e.g., Respondent's Memorial on Jurisdiction, at 2.

251 Respondent's Post-Hearing Memorial, at 25.

252 See, e.g., Gemini Case, Italy-Venezuela Mixed Claims Commission, X R.S.A. 551, 560-561, (1903) [Annex W147].

253 See, e.g., Letter from Mr. Nael Farargy (Wena Hotels Ltd.) to His Excellency Dr. Kamal El Ganzouri (Prime Minister of Egypt) (February 23, 1998) (complaining of Wena's “long and bitter disputes with the Egyptian State over direct foreign investment in Egypt.“) [Annex W15].

254 Alan Craig v. Ministry of Energy of Iran, 3 Iran-U.S. Claims Tribunal 280 (1984) [Annex W155]. See also George Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal 480-482 (1996) [Annex E-M47].

255 d, at 287.

256 Gentini Case, Italy-Venezuela Claims Commission, X R.S.A. 551 (1903) [Annex W147]

257 Amco Asia Corporation, et al. v. Republic of Indonesia, ICSID Case No. ARB/81/1, International Arbitration Report 649,654 (1986) [Annex W102].

258 IPPA, art 8(1) [Annexes W2&E-J22].

259 Legal opinion of Dr. Hossam Al’ din Kamil Elehwany, at 23 (September 1999) [Annex E-M8].

260 Id.

261 Id., at 25 (emphasis added).

262 Respondent's Post-Hearing Memorial, at 15.

263 See, e.g., Professor Ibrahim Fadlallah, L'ordre public dans les sentences arbitrales, Academie de Droit International, Recueil des Cours, 377 (1994-V); Professor Pierre Lalive, “Transnational (or Truly International) Public Policy and International Arbitration,” ICCA Congress Series, No. 3, 276-277 (1987) [Annex E-M10].

264 Lalive, at 277 [Annex E-M10].

265 Consultancy Agreement between Mr. Kamal Kandil and Wena Hotels Limited [Annex W149].

266 Writ of Summons issued by Wena Hotels Limited against Mr. Mohamed Kama] Ali Mohamed Kandil (March 26, 1991) [Annex E-M7].

267 Letter from Mr. Kamal Kandil to the Senior Master of the Royal Court of Justice (August 19, 1991) [Annex W150] (the “subject of the above-mentioned Draft Contract was to develop new hotels in Egypt, these hotels being the Ramses Village project in Abou Simbal and a Conference Center in Aswan city. … I did not act in my quality of Chairman of the Egyptian Hotels Company nor did the Draft Contract concern either the Nile Hotel or the Luxor Hotel, instead I acted as Tourist Consultant for the Aswan Government and Chairman of the Board of Directors of Misr Aswan Tourist Co.“).

268 Facsimile from Mr. Dimopolous (Wena Hotels Ltd.) to Mr. Kamal Kandil (Chairman, EHC) (December 13, 1989), enclosing letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to his Excellency, the Governon of Aswan (December 11,1989) [Annex W188]; letter from Mr. Nael El-Farargy (Wena Hotels Ltd.) to his Excellency, the Governor of Aswan (January 15, 1990) [Annex W189].

269 Yusseri Direct Ex., at 4:3-11.

270 Farargy Direct Ex., TR Day 1, at 142:27-28. See also Farargy Direct Ex., TR Day 1, at 142:26-143:6.

271 Sultan Direct Ex., TR Day 3, at 188:11-14.

272 See, e.g., Claimant's Post-Hearing Reply, at 16; Respondent's Post-Hearing Memorial, at 14.

273 IPPA, art. 5 [Annexes W2&E-J22],

274 Claimant's Post-Hearing Brief, at 67.

275 Id., at 68; Claimant's Statement of Fees and Expenses [Annex W194].

276 Claimant's Post-Hearing Brief, at 67&n. 64; Claimant's Post-Hearing Reply, at 36.

277 Respondent's Post-Hearing Memorial, at 25-42; Respondent's Post-Hearing Rebuttal Memorial, at 22-34.

278 Respondent's Post-Hearing Memorial, at 43; Respondent's Post-Hearing Rebuttal Memorial, at 34; Provisional Evaluation of Lost Investment and Review of Financial Information prepared by Pannell Kerr Forster, attached to Respondent's Rejoinder on the Merits; Direct Examination of Mr. Hugh Matthew Jones, TR Day 4, at 135:12-15.

279 See Expert Report prepared by BDO Hospitality Consulting, attached to Claimant's Memorial on the Merits (calculating a profit of GB£ 4 million for the Luxor Hotel and a profit of GB£ 21.3 million for the Nile Hotel); Reports for El-Nile and Luxor Hotels prepared by Pannell Kerr Forster, attached to Respondent's Post-Hearing Memorial (calculating a profit of less than GB£ 10,000 for the Luxor Hotel and an actual loss for the Nile Hotel).

280 Metalclad Corporation v. United Mexican States, [ 119-120, ICSID Case No. ARB(AF)/97/l (2000) (internal citationomitted). The Metalclad award is publicly available from the U.S Securities Exchange Commission, Washington, D.C. 20549, and electronically at http://www.edgar-online.com, as an attachment to an 8-K filing of September 5, 2000 by Metalclad Corporation. See also Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, 8 ICSID Review 328, 381 (1993) [Annex W61] (“In the Tribunal's view, the DCF method is not appropriate for determining the fair compensation in this case because the project was not in existence for a sufficient period of time to generate the data necessary for a meaningful DCF calculation.“).

281 SPP (Middle East) Ltd. (Hong Kong), et al. v Arab Republic of Egypt, f 65, Appendix IV of ICC Arbitration (1983) [Annex E-M38].

282 American Manufacturing&Trading, Inc. v Republic of Zaire, ICSID Case No. ARB/93/1, at 28 (1997) [Annex W1 15].

283 See, e.g., Review of Financial Information prepared by Pannell Kerr Forster, attached to Respondent's Rejoinder on the Merits.

284 Approximately GB£ 6 million at current exchange rates.

285 IPPA, art. 5 [Annexes W2&E-J22].

286 See Provisional Evaluation of Lost Investment, ffl[ 2.2-2.3&2.8, attached to Respondent's Rejoinder on the Merits.

287 Check drawn in Wena’ favor by the Egyptian Ministry of Justice [Annex W93].

288 Claimant's Post-Hearing Brief, at 68.

289 Report for El-Nile Hotel prepared by Pannell Kerr Forster, at 18, attached to Respondent's Post-Hearing Memorial (“Long-term government bonds in Egypt are currently yielding 10%.. ..“).

290 Metalclad Corporation v. United Mexican States, 1128, ICSID Case No. ARB(AF)/97/l (2000).

291 As several authorities have noted, “virtually all monetary judgements … contain rulings on interest,” and yet, this decision to award interest is often made without any discussion. See, e.g., J. Gillis Wetter, Interest as an Element of Damages in Arbitral Process, 5 Int'l Fin. L. Rev. 20 (1986); F.A. Mann, Compound Interest as an Item of Damage in International Law, 21 Univ. of California, Davis L.J. 577, 578 (1988).

292 John Y. Gotanda, Awarding Interest in International Arbitration, 90 Amer. J. Int'l L. 40, 61 (1996).

293 F.A. Mann, Compound Interest as an Item of Damage in International Law, 21 Univ. of California, Davis L. J. 577, 586 (1988). See also id., at 585 (“In this spirit it is necessary first to take account of modern economic conditions. It is a fact of universal experience that those who have a surplus of funds normally invest them to earn compound interest. On the other hand, many are compelled to borrow from banks and therefore must pay compound interest. This applies, in particular, to business people whose own funds are frequently invested in brick and mortar, machinery and equipment, and whose working capital is obtained by way of loans or overdrafts from banks.”); Starrett Housing Corp. v. Iran, 16 Iran-U.S. Claims Tribunal 112,251-254 (1987) (Holtzmann, concurring).

294 Tribunal's Decision on Jurisdiction, at 9 (released on June 29, 1999).

295 Claimant's Statement of Fees and Expenses as of June 13, 2000 (Annex W194); letter from Mr. John Savage (Counsel for Wena) to Mr. Alejandro Escobar (Secretary to the Tribunal) (November 21, 2000).