Definitions of the Umbrella Clause - Essay Example

? Critically analyse the interpretation of “umbrella clause” in investment treaties, taking into account recent investment treaty practice and arbitration decisions 1. Introduction The development and growth of the global economy has opened up avenues of mutual business activity between developed and developing nations. Foreign investments take a much longer time to develop before they achieve peak efficiency and generate regular financial returns. In addition to this, foreign investments are crucial to the economic progress of developing countries, supplying the needed capital, technology, entrepreneurial know-how, and infrastructure to the host country.1 Because foreign investments are so important to their economy, host countries have a tendency to interfere even in commercial contracts between foreign investors and host country counterparts.2 For this reason, legal devices in the form of clauses in contracts and treaties have been resorted to in order to afford some measure of protection for the foreign investor in a host state.3 One such device is the umbrella clause. 2. Definitions of Umbrella Clause The umbrella clause is also known by other terms, such as the observance of undertakings clause, the observance of commitments clause, the pacta sunt servanda 4 clause, the sanctity of contract clause, and the mirror effect clause.5 There is no fixed wording for the clause, but it’s different manifestations are all to the effect that obligations are imposed upon the parties for those circumstances for which the contract had not specifically provided. The benefit of umbrella clause is that it can encompass all types of commitments whether express or implied, contractual or not contractual.6 The clause’s broadest version may be stated as: “Each Contracting Party shall observe any obligation it may have assumed with regard to investments.”7 As Dolzer & Stevens describes, the provision of umbrellas clause intends to ensure that contracting parties in an investment agreement should honour their commitments towards citizens or investors of other parts.8 Consequently, The effect of umbrella clauses is for arbitral jurisdiction to be extended more broadly to investment disputes that involve alleged default by the host state in meeting any obligation it owes to the foreign investor. Through umbrella clauses, therefore, the investor secures the state’s observance of its commitments. More state acts are thus brought “under the umbrella of protection of the treaty.”9 There are far-reaching effects of umbrella clauses, the most important of which is to extend violations of a contract relating to an investment to the status of treaty violations.10 The conventional concept of the umbrella clause was best put forward by Noble Ventures v Romania,11 which held that “the purpose of the parties in adopting an umbrella clause was ‘to equate contractual obligations governed by municipal law to international treaty obligations as established in the BIT.”12 3. Evolution of Umbrella Clause Long before BITs were the norm and when investor-to-state arbitration was still unheard of, the only recourse of an individual who felt aggrieved by alleged illicit acts of the host state was by diplomatic protection. Traditional international law insulated governments against the direct claims of private persons (corporations and individuals), requiring aggrieved foreign investors to secure the consent of the host country before it may seek redress.13 It was a rule of customary law that a state may exercise its right of diplomatic protection only if a breach of international law has taken place, and its national has suffered some form of injury as a result thereof. The term umbrella clause was first used by an prominet international scholar Elihu Lauterpacht in a claim against Iran due to nationalisation of iranian oil fields when claim was made by the Anglo-Iranian Oil Company in 1953-54. Lauterpacht supported that an “umbrella treaty” would be implemented infringement of which would make the infringement if the treaty itself.14 However, later on European lawyers who construed the Abs-Shawcross Draft Convention on Investments Abroad attempted to draft the agreement privately which would safeguard foreign investment. The Article II of Abs-Shawcross Draft relating to umbrella clause subsequently triggered the initiatives to draw the rules of investment treaties in including the OECD Draft Convention on the Protection of Foreign Property of 1967. OECD Draft Convention – Article II states that “Each Party shall at all times ensure the observance of undertakings given by it in relation to property of nationals of any other Party”15. This Draft Convention has become the cornoerstone for umbrella clause and now it is imperative to have it in investment treaty.16 The first BIT negotiation after the Abs-Shawcross Draft was between Pakistan and Germany in 1959,17 this BIT agreement contained umbrella clause in Article 7. The agreement read as follows: “Either Party shall observe any other obligation it may have entered into with regard to investments by nationals or companies of the other party”. 18 The umbrella clause was therefore created so that diplomatic protection may be invoked for those cases of simple contractual violations by a state that did not amount to a breach of international law. Thus it became the practice among states to draw up treaties containing little more than an umbrella clause (so-called “umbrella treaties”). By such treaties states were able to impose on each other the duty, as a matter of international law, to fulfil all commitments entered by them with the nationals of the other state; such treaties found their greatest use in protecting foreign investors from abuses by the host state.19 It is noted that since 1999 there has been abundance of BITS and currently 2,600 BITs20 have been negotiated and many more are being conducted every day.21 4. Analysis of Various Arbitral Awards on the Interpretation of Umbrella Clause There is a wide range of possible interpretations of the umbrella clause, ranging from the restrictive to the expansive. Of the existing case law, the doctrinal case acknowledged as endorsing the restrictive construction of umbrella clauses is that of SGS v Pakistan.22 In a Pre-Shipment Inspection (PSI) Agreement, a Swiss company had contracted to undertake some services to assist in imports into Pakistan. The terms of the Agreement provided for a dispute settlement procedure in case of an alleged breach of the contract. The agreed upon manner of dispute settlement was to submit to domestic arbitration pursuant to Pakistani law. When a breach did occur, Pakistan argued that according to the principle pacta sunt servanda and the provisions of the ICSID Convention, there is a lack of jurisdiction on the part of the ICSID tribunal to hear the case, and therefore the negotiated terms of the contract – that of submitting to domestic Pakistani arbitration – should prevail. The SGS, on the other hand, cited Article 11 of the Swiss-Pakistan BIT which contained the umbrella clause. The Swiss–Pakistani BIT’s umbrella clause stated, “Either Contracting Party shall constantly guarantee the observance of commitments it has entered into with respect to the investments of the investors of the other Contracting Party.” SGS reasoned that the contractual claim had been elevated to the level of treaty claim by virtue of the umbrella clause, and argued that each time a provision of the contract has been violated, a norm of international law is also violated, and thus also is the treaty violated by the same token.23 The ruling of the ICSID tribunal was in favour of the validity of the forum selection clause specified in the PSI Agreement. According to the tribunal, as far as the contract claims are concerned, these do not amount to BIT claims24 and therefore are not elevated to the level of treaty claims. In order for the ICSID tribunal to gain jurisdiction over such claims which do not constitute violations of international law, it would have been necessary for the parties to have arrived at a “special agreement” by the parties conveying their mutual intention and consent to such submission; however, no such special agreement was reached in this case. Had a special agreement existed, jurisdiction will be vested by virtue of the agreement, and not because of the Swiss-Pakistani BIT. In short, not all contractual claims are elevated by the umbrella clause to the status of treaty claims as the SGS contended. The tribunal interpreted the term “commitments” as contained in the umbrella clause as too broad as to also include administrative and legislative measures as well as contractual obligations. The general tone and lack of specificity renders the agreement as one which does not “necessarily signal the creation and acceptance of a new international law obligation” and was “susceptible of almost indefinite expansion.”25 The clause also failed to explicitly state that it was the parties’ understanding that breaches of the contract were to be elevated to the level of breaches of international law. Without this explicit understanding, it would be too presumptive to imply that the contracting parties were prepared to accept the far-reaching legal consequences and incalculable burden to the defendant party that such an unqualified submission would entail. For this reason the tribunal refused to construe such a broad application into the clause without any “clear and convincing evidence” of specific intent,26 a decision which was criticized for being overreaching. At the other end of the range of interpretations of umbrella causes, SGS Societe Generale de Surveillance v Philippines27 is the first and leading case which advocated an expansive interpretation of umbrella clauses. The case took place one year after SGS v Pakistan, and involved much the same type of agreement, with SGS providing services for pre-shipment inspection for imports to the Philippines. In this case, SGS filed a claim for unfulfilled payments against the host country. Unlike the case of SGS v Pakistan, however, the tribunal in this case ruled rejected the government’s defence that coverage of the umbrella clause should be confined to the obligations under other international law instruments.28 The difference between the case of Pakistan and that of the Philippines, according to the tribunal, lay in the phraseology of the umbrella clause. The Swiss-Philippine BIT made use of the terms “any obligation…assumed with regard to specific investments” compared to the Swiss-Pakistani BIT formulation “the commitments…entered into with respect to the investments.” The tribunal in the subsequent case felt that the use of the word “obligation” was more specific and referred to legal obligations assumed, inclusive of those under contract as well as those that will be assumed in the future.29 Finally, the tribunal stated that in both the SGS-Philippines and SGS-Pakistan cases, the location of the umbrella clause at the end of the BIT was not controlling in the final decision.30 It seemed indefensible to state that an umbrella clause with the same formulation as in other BITs would be found legally operative when located closer to the beginning of the document, and legally inoperative when located towards the end. The rationale or standard for this pronouncement appeared baseless and arbitrary to the SGS v Philippines tribunal, but not so to others. According to Tribunal v Poland,31 the placement of the umbrella clause in the BIT may be used as basis for legitimate argument, such as depending upon where it is situated vis-a-vis the substantive provisions. Granting this to be true, this argument should not be accorded much weight, nor in any case should it be decisive of the case.32 Likewise in Joy Mining v Egypt, the tribunal ruled that the umbrella clause must be “prominently placed” within the contract so as to more firmly invoke the BIT.33 The SGS v Philippines tribunal furthermore criticized the manner by which the SGS v Pakistan tribunal failed to give a clear meaning to the umbrella clause. It had inaccurately and over-dramatically depicted the operationalization of the umbrella clause as the unrestricted internationalization of domestic contracts, which was tantamount to transforming a private contract into a treaty. These fears were not realized in SGS v Philippines despite the more expansive interpretation given to it, because the tribunal here clarified that the umbrella clause did not work to expand the scope of the obligations, but rather to give legal force to the performance of the commitments already attendant to the contract.34 By giving effect to these obligations, the umbrella clause merely performs the function it was meant to do – to provide the needed assurance to the investors that the host state will perform its commitments as specified in the contract and under its own law regarding specific investments.35 The role of the umbrella clause was merely to ensure the effective operation of the rule of law with respect to investment protection,36 and not to extend the scope of the contract beyond what was contractually agreed. Because of the wide disparity between the pronouncements of the two tribunals, these cases underscored the various levels of interpretation of the umbrella clause, which shall be explained in the following section. 5. Narrow Interpretation There are three interpretations of umbrella clauses – the restrictive or narrow interpretation, the expansive or broad and wide interpretation, and the middle interpretation. The umbrella clause may be narrowly construed, such as described by Brower,37 who expressed the opinion that the material and rational scope of the article was intended to be limited to those state-to-state contracts involving large-scale investments and concessions, and wherein the state acts in the exercise of its sovereignty. Such a construction therefore implicitly excluded the ordinary commercial contracts arrived at between private foreign investors and a host state, which did not involve the exercise of state sovereignty. In Gustav F W Hamester v Ghana38, the contractual claim was between two companies Hamester and a German company. Both companies had established a joint venture with another company named Cocobod. The claimant company made allegations that the Ghana Cocoa Board had breached the provisions if the agreement which was protected by the umbrellas contained in the BIT between Ghana-Germany.39 However, on the other hand the defendant argued that the umbrella clause was not applicable in the case as the Cobobod is a separate entity therefore, the commitments under domestic law and the BIT agreement will only be subject to umbrellas clause.40 However, the tribunal figured out that the Ghana government was not present in the contract neither it signed the contract therefore, Ghana government cannot be associated with the joint-venture.41 The tribunal further held that Ghana government did not adopt the contractual obligations according to Art 9(2) of the BIT enforced by the Claimant. The tribunal also refused to extend the scope of the BIT provision under umbrella clause to contractual commitments, despite the fact that umbrella clause did state that the certain specified commitments must be assumed by the host state.42 In Salina v Jordan43 the claim was regarding the construction contract between Italian and Jordon and the plaintiff claimed that the breach of the contract is protected under the umbrella clause. The tribunal rejected the plaintiff version on the account that the contracting state of BIT agreement cannot be held liable for ‘contractual obligation’.44 The tribunal further established that the breach of the agreement would not fall under umbrella clause as the term can be normally be implied hence, Jordon did not breach the provisions of the underlying contract.45 The tribunal also observed that Article 2(4) of the BIT between of Itlay and Jordon, which states that; “Each Contracting Party shall create and maintain in its territory a legal framework apt to guarantee to investors the continuity of legal treatment, including the compliance, in good faith, of all undertakings assumed with regard to each specific investor”, did not indicate that the contracting party should fulfil its contractual commitments. In the case of El Paso Energy International v Argentina”,46 the tribunal adopted the strict construction of the BIT agreement between US and Argentina despite the fact that the umbrella clause47 in the BIT was braoder and binds “Each Party shall observe any obligation it may have entered into with regard to investments”. The appellant in this case alleged that defendant had breached the BIT hence, the tribunal has inherent jusrisdication to entertain the claim.48 On the other hadn the defendant had argued that the UC is only restricted to the “investement agreement” which is not in existence in the agreement. 49 However, the tribunal adopted the plaintiff versions and held that the UC is restricted to involve any contractual claim unless there is "investment agreement claim".50 The tribunal adopted the narrow interpretation and refused to accept the claim that umbrella clause could extend its contractual obligations corresponding to the treaty claims. In another case of Romak SA v Uzbekistan51 it was alleged by the claimant that BIT agreement between Uzbekistan and Switzerland was breached which is protected by the umbrella clause under envisaged by article 11. The umbrella clause states that “Either Contracting Party shall constantly guarantee the observance of commitments it has entered into with respect to the investments of the investors of the other Contracting Party.”52 On the other hand Uzbekistan disputed that the alleged transaction was of commercial nature therefore, it does not fall under the investement.53 The tribunal supported the Uzzbekistan claim and upheld that the supply contract by the Romak will not fall under the Article I of BIT. The tribunal further held that the it does not have jurisdiction in the case as the Romak cannot invoke the umbrella claise contained under Artile11 of the BIT.54 6. Broad and Wide Interpretation As earlier stated, the broad and wide (or expansive) interpretation was first established in SGS v Philippines discussed in the fourth section above. More than merely base their decision on the merits (or demerits) of the Philippine case, the tribunal deconstructed the SGS-Pakistani ruling and supplanted its own interpretation. This tribunal rejected the earlier tribunal’s ruling that a more liberal interpretation would render the clause “susceptible of almost indefinite expansion,”55 on the ground that the umbrella clause, while not limited to contractual obligation, certainly limited to those obligations which pertain to specific investments and not any legal obligation of a general nature. The second tribunal also rejected the earlier tribunal’s pronouncement that there exists in international law a presumption against the broad construction of umbrella clauses, opining that the negative presumption was not universal but subject to a case-by-case application56. Other cases following the expansive interpretation followed. In CMS Gas Transmission Co. v Argentina57, several regulatory measures pursued by the Argentine government in the midst of the economic crisis were made the subject of disputes by CMS, a privatized gas transmission company. Initially, the tribunal ruled in favour of the government in stating that only violations of treaty rights or specifically protected contract rights could be protected under the BIT, thus excluding purely commercial disputes. However, the tribunal ruled that when the government significantly interferes with the investor’s enjoyment of his rights, then they may be implicated in the umbrella clause.58 CMS v Argentina did not concern contractual claims per se, but the government’s unilateral actions which essentially altered the agreement and curtailed investor rights. This is bolstered by the specific contract terms which obligated the government to refrain from interfering with the tariff regime.59 A third and similar case is that of Sempra v Argentina60, where the tribunal held that the state incurred liability in favour of investors when it breached the fair and equitable treatment standard, elevating the contractual claims to the status of treaty claims.61 Furthermore the BIT’s umbrella clause was situated near the primary obligations of the parties, implying that the clause would be the source of independent obligations beyond those already contained in the BIT. Like CMS v Argentina, the location of the umbrella clause in the same article that contained the principal obligations of the parties. The same held true for Noble Ventures v Romania62, implying that independent obligations were created as in CMS. In this decision, the tribunal noted that the practical content of the umbrella clause rested on the investment contract itself, construing the phrase “entered into” together with “investments”, and not only on actions of the state in the exercise of its sovereignty63. If the umbrella clause were only made to apply to sovereign acts, then there would be no use for the clause because protection is already afforded by the principle of pacta sunt servanda even without the clause64. Thus for it to be a “true” umbrella clause, it should be made to apply to the obligations on the investment contracts, else there would be no practical content to the umbrella clause65. The BIVAC v Paraguay66 case very closely resembled SGS v Philippines, with the subject of claims being based on several unpaid invoices on the pre-shipment inspection of goods. The contract was between the Dutch company BIVAC and the Paraguayan Ministry of Finance, and on the claim the tribunal ruled in favour of the BIVAC and the effective application of the umbrella clause. The decision pointed out the broad language of the clause and read this to include the agreement to which BIVAC and the Ministry are party to, and the alleged violations by the Ministry are taken to be those of the state. More than these, however, there existed a pre-shipment agreement containing a forum selection clause that specified the courts of Asuncion, Paraguay as possessing exclusive jurisdiction for disputes arising from the agreement. The tribunal gave weight to this explicit agreement above the construction of the umbrella clause. 7. Middle or Third Interpretation The middle approach, variably known also as the “median position” or “balanced approach”, which embraces neither a restrictive nor an expansive interpretation of the umbrella clause; rather, it adopts as an analytical starting point the nature of the state’s behaviour which gave rise to the claim of contractual or treaty violation in the first place.67 If the state’s allegedly errant conduct was within the mantle of its sovereign power, then the doctrine of state responsibility may be invoked and such becomes a violation of international law. However, if the conduct was of a purely commercial nature, then the conduct is merely a breach of contractual, not international, law and thus the doctrine cannot be invoked68. The principle is that the contract that is purely of a commercial nature is a contract between two parties – that is, the state acts as a private, not sovereign, person – and therefore may not be elevated to international law. This concept springs from the draft article from the United Nations69 which speaks of two elements: (1) That an act of a State cannot be characterized as internationally wrongful except when it constitutes a breach of an international obligation; it is immaterial whether or not it is in violation of the state’s own internal law; and (2) a State cannot plead that its conduct conforms to its internal law, as a defence against the determination that its conduct was indeed wrongful by international law.70 The balanced approach was employed in Pan American v Argentina71 wherein the tribunal laid down the standard for deciding on the merits. In assessing the effect of the umbrella clause, It underscored the necessity of distinguishing “the State as a merchant from the State as a sovereign.”72 It is in those instances when the state exercises its sovereign powers that the contractual claim is elevated to that of treaty claim through the workings of the clause; however, where the state’s acts are commercial in nature, then the claims remain contractual. In this case, where the claims are several and varied, the tribunal will have to distinguish which of them involve the state as merchant and which are as sovereign; only the latter claims will be accorded the status of treaty claims and evaluated accordingly.73 Also embracing the middle approach is Burlington v Ecuador74, where three claims involving three umbrella clauses were assessed in a case-by-case basis. The first, and only substantial, application was based on the state’s failure to indemnify Burlington for the imposition of the Law 42 tax. Tribunal notes that the claim does not hinge on Law 42’s unlawfulness, or that Burlington does not fall within its ambit. On the contrary, the claimant seeks enforcement of the contractual indemnification obligations. Since the respondent state’s indemnification obligation is not related to its sovereign power to tax, then the umbrella clause is ineffective, particularly since the indemnification obligations may be symmetrically imposed on both parties.75 8. Scope of Commitments Covered under Umbrella Clause There are several issues raised by the inclusion of an umbrella clause in a bilateral investment treaty which provides for arbitration of disputes. The principal issues are whether or not the umbrella clause attaches jurisdiction to the tribunal over the contractual dispute, and what the nature of the obligation is which the tribunal may take jurisdiction over. For arbitration to become a viable recourse, the consent of the parties should be obtained or established. There are cases when the consent clause in a treaty is of such broad language so as to construe consent by the state (i.e., “all disputes concerning investments” or “any legal dispute concerning an investment”). In such cases, the umbrella clause has no impact on the issue of jurisdiction of investment disputes, because consent is already presumed.76 9. Conclusion The umbrella clause is an additional layer of protection for foreign investors in the face of uncertainties in a host state, with the purpose of encouraging foreign direct investments (from developed to developing countries) and thereby speed up development.77 The debate is on how umbrella clauses are to be construed, and the scope over which they are effective.78 The variety of phraseology and the divergence in their interpretation has rendered umbrella clauses quite unreliable as a source of protection.79 The instability of the umbrella clause is not surprising since it only emerged in the 1950s, and the arena of international investments is still developing. Likewise, then, will we see jurisprudence further develop and refine where disputes arise involving umbrella clauses. Bibliography Literature Brower, C N “The Future of Foreign Investment—Recent Developments in the International Law of Expropriation and Compensation” in V.S. Cameron (eds), Private Investors Abroad – Problems and Solutions in International Business in 1975 (Southwestern Legal Foundation Symposium Series, Private Investors Abroad, Matthew Bender, New York, 1976), pp. 93, 105 n.27, in OECD 2006 Cremades, Bernardo M. “Disputes Arising Out of Foreign Direct Investment in Latin America: A New Look at the Calvo Doctrine and Other Jurisdictional Issues.” Dispute Resolution Journal, May-Jul 2005, Vol. 59 Issue 2, p78-85 Franck, S D, “The Legitimacy Crisis in Investment Treaty Arbitration: Privatizing Public International Law Through Inconsistent Decisions.” Fordham Law Review, vol. 73, 2005, pp 1521-1572 Hale, Wilmer “Chapter 2: Arbitrating Contract Claims Under Umbrella Clauses.” Recent Development in Investment Treaty Jurisprudence, Global Legal Group Ltd., London, 2008 Honlet, Jean-Christophe & Borg, Guillaume. “The Decision of the ICSID Ad Hoc Committee in CMS v. Argentina Regarding the Conditions of Application of an Umbrella Clause: SGS v. Philippines Revisited.” Law & Practice of International Courts & Tribunals, 2008, Vol. 7 Issue 1, p1-32; DOI: 10.1163/157180308X332739 Mank, Janina M; Marini, Andre; & Rudall, J “’Gold Standards’ for the International Investment Policy of the European Union after the Entry into Force of the Lisbon Treaty.” Memorandum to the European Commission. June 2011 Marjosola, Heikki “Public/Private Conflict in Investment Treatment Arbitration - A Study on Umbrella Clauses.” Helsinki Law Review, 2009, pp. 103-134 Martini, Pedro “Umbrella Clauses in Investment Treaties.” International Litigation Quarterly, 1937061X, Winter 2011, Vol. 27, Issue 2 Organisation for Economic Co-operation and Development (OECD) “Interpretation of the Umbrella Clause in Investment Agreements” Working Papers on International Investment. October 2006. Accessed 2 May 2012 from http://www.oecd.org/dataoecd/3/20/37579220.pdf Potts, Jonathan B. “Stabilizing the Role of Umbrella Clauses in Bilateral Investment Treaties: Intent, Reliance, and Internationalization.” Virginia Journal of International Law, May2011, Vol. 51 Issue 4, p1005-1045. Ratner, Steven R “Regulatory Takings in Institutional Context: Beyond the Fear of Fragmented International Law” The American Journal of International Law, Jul 1, 2008, Vol. 102, Issue 3 Shany, Yuval “Contract Claims vs. Treaty Claims: Mapping Conflicts between ICSID Decisions on Multisourced Investment Claims.” The American Journal of International Law, Oct 1, 2005, Vol. 99, Issue 4 UNCTAD “International Investment Instruments: A Compendium”, United Nations, New York, 2000, Vol. V. p. 395. Weissenfels, Axel. “Umbrella Clauses.” Seminar on International Investment Protection. Unpublished paper, 2007. Accessed 2 May 2012 from http://intlaw.univie.ac.at/fileadmin/user_upload/int_beziehungen/Internetpubl/weissenfels.pdf Wong, Jarrod . “Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries in Foreign Investment Disputes.” George Mason Law Review. Vol. 14, Issue 1, pp. 135-177 Yackee, Jason Webb “Bilateral Investment Treaties, Credible Commitment, and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?” Law & Society Review, vol. 42, No. 4, Dec. 2008, pp. 805-832 Conventions The 1956-59 Abs Draft International Convention for the Mutual Protection of Private Property Rights in Foreign Countries. 1959 Abs-Shawcross Draft Convention on Foreign Investment (Article II) “Draft Convention on the protection of foreign property and Resolution of the Council of the OECD on the Draft Convention”, OECD Publication No 23081, November 1967 United Nations, International Law Commission fifty-third Session. Draft Articles on Responsibility of the States for Internationally Wrongful Acts., with commentaries. United Nations, 2008. Cases: Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Rep. of Para., ICSID Case No. ARB/07/9, Objections to Jurisdiction, ¶ 58 (May 29, 2009) Burlington Resources, Inc. v Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Jurisdiction, 2 June 2010 CMS Gas Transmission Co. v. Argentine Rep., ICSID Case No. ARB/01/8, Award, (Apr. 25, 2005), 44 I.L.M. 1205 (2005). El Paso Energy Int’l Co. v. Argentine Rep., ICSID Case No. ARB/03/15, Decision on Jurisdiction, (Apr. 27, 2006), 21 ICSID Rev. 488 (2006). Enron Creditors Recovery Corp. & Ponderosa Assets, L.P. v The Argentine Republic, ICSID Case No. ARB/01/3, Decision on the Application for Annulment of the Argentine Republic, 30 July 2010 Eureko B.V. v Republic of Poland, Ad Hoc Investment Treaty Case, Partial Award on Liability, 19 Aug 2005 Gustav F W Hamester GmbH & Co KG v. Rep. of Ghana, ICSID Case No. ARB/07/24, Award, (June 18, 2010) Joy Mining Mach., Ltd. v. Arab Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, (Aug. 6, 2004), 19 ICSID Rev. 486 (2004). Noble Ventures, Inc. v. Romania, Award October 12, 2005 ICSID Case No ARB/ 01/11 Pan American Energy LLC and BP Argentina Exploration Company v. The Argentine Republic, ICSID Case No. ARB/03/13, Decision on Preliminary Objections, 27 July 2006 SGS Societe Generale de Surveillance S.A. v. Islamic Rep. of Pak., ICSID Case No. ARB/01/13, Objections to Jurisdiction (Aug. 6, 2003), 8 ICSID Rep. 406 (2005). SGS Societe Generale de Surveillance S.A. v. Rep. of the Phil., ICSID Case No. ARB/02/6, Objections to Jurisdiction, (Jan. 29, 2004), 8 ICSID Rep. 518 (2005). Sempra Energy International v Argentine Republic, ICSID Case No. ARB/02/16, Decision on the Argentine Republic’s Application for Annulment of the Award. 29 June 2010 Read More