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- Headnote
- Decision [eng]
- Table of Abbreviations and Definitions
- I Introduction and Parties
- II Procedural History
- III Factual Background
- IV Scope of this Decision
- V Jurisdiction / Admissibility
- A Law Applicable to Jurisdiction
- B Overview of the Parties’ Positions
- C Does the Claimant Own or Control an Investment in Accordance with Costa Rican Law?
- 1 The Respondent’s Position
- 126
- 127
- 128
- a Article I(g) of the BIT Requires that the Investment Be Owned or Controlled in Accordance with Costa Rican Law
- b The Claimant Did Not Own or Control an Investment in Accordance with Costa Rican Law
- 2 The Claimant’s Position
- 152
- a The Assessment of Legality of an Investment Focuses on the Time When the Investment Was Acquired
- b There Was No Illegality at the Time Infinito Initially Acquired Its Investment
- c Any Subsequent Illegality Cannot Deprive the Tribunal of Jurisdiction
- 3 Analysis
- 1 The Respondent’s Position
- D Are The Claims Time-Barred under Article XII(3)(C) of the BIT
- 1 The Respondent’s Position
- 183
- a The Claimant Had Actual or Constructive Knowledge of the Alleged Breaches Prior to 6 February 2011
- b The Claimant Had Actual or Constructive Knowledge of the Loss or Damage Caused Prior to the Cut-Off Date
- c Article IV of the BIT Does Not Permit Infinito to Bypass the Requirements of Article XII(3)(c)
- 2 The Claimant’s Position
- 203
- a The Claimant First Knew that the Respondent Breached the BIT, and that It Had Suffered Damages, on 30 November 2011
- b The Challenged Measures Are All Distinct Legal Measures with Distinct Legal and Practical Effects
- c In Any Event, Article IV of the BIT Permits Infinito to Bypass the Requirements of Article XII(3)(c)
- 3 Analysis
- 216
- 217
- 218
- a Cut-Off Date
- b Knowledge of Breach and Loss
- c Conclusion
- 1 The Respondent’s Position
- VI Liability
- A Law Applicable to the Merits
- B Overview of the Parties’ Positions
- C Fair and Equitable Treatment
- 292
- 1 The FET Standard
- 2 Did the Respondent Breach the FET Standard?
- a The Claimant’s Position
- b The Respondent’s Position
- c Analysis
- 436
- (i) Did the Respondent Deny Justice to the Claimant?
- a The Standard for Denial of Justice
- b Did the Respondent Commit a Procedural Denial of Justice?
- c Did the Respondent Commit a Substantive Denial of Justice?
- (ii) Did the Respondent Otherwise Breach the FET Standard?
- 3 Conclusion on FET and Impact on Quantum
- D Full Protection and Security
- E Expropriation
- 1 The Claimant’s Position
- 2 The Respondent’s Position
- a The Claimant Had No Mining Rights Capable of Expropriation
- b The Respondent Is Not Estopped from Arguing that the Claimant’s Rights Were not Valid
- c Judicial Measures Cannot Constitute an Expropriation
- d The Respondent’s Measures are Covered by the Police Powers Doctrine
- e There Is No Causal Link Between the Loss or Damage and the Allegedly Expropriatory Measures
- 3 Canada’s Position
- 4 Analysis
- F Did the Respondent Violate Other Obligations Imported into the BIT from Other Treaties?
- 1 The Claimant’s Position
- 2 The Respondent’s Position
- 3 Canada’s Position
- 4 Analysis
- a No Need to Determine Whether the MFN Clause Allows the Importation of More Favorable Protections
- b Does the Obligation “To Do What is Necessary” to Protect the Claimant’s Investments Provide Additional Protection to the Claimant?
- c Did the Respondent Breach the Umbrella Clauses Imported Through the MFN Clause?
- G Does the Environmental Exception in Section III(1) of Annex I of the BIT Exempt the Respondent from Liability?
- VII Costs
- VIII Operative Part
- Separate Opinion on Jurisdiction and on the Merits
- 1
- 2
- I Jurisdiction: Application of the Time Bar Provision in Article XII(3)(C) BIT
- 3
- 4
- 5
- 6
- 7
- 8
- 9
- A The Scope of the Disagreement
- B The General Approach
- C The Factual Approach
- 48
- 49
- 50
- 51
- 1 The Summary of the Positions of the Parties in the Tribunal’s Decision on Jurisdiction
- 2 At All Relevant Times Before the Arbitration, the Claimant Considered that the Breach was Committed by the TCA Decision of 2010
- 3 At All Times – Before and During the Arbitration – the Costa Rican Authorities Considered that the Alleged Breach was Committed by the TCA Decision of 2010
- D Conclusion
- II Merits: The Scope of the FET Standard in Article II(2)(A) of the BIT
- Annex A
- Table of Abbreviations and Definitions
- I Introduction and Parties
- II Procedural History
- III Facts Relevant to Jurisdiction
- IV Analysis
- A Preliminary Matters
- B Jurisdiction under the ICSID Convention
- C Jurisdiction Under BIT
- 144
- 1 Overview of the Parties’ Positions
- 2 Jurisdictional Requirements under Article XII
- 3 The Respondent’s Objections Arising from Article XII(1) and (2)
- a Should the Tribunal Consider the Case as Pleaded by the Claimant?
- b Are the Acts Challenged by the Claimant “measures” for Purposes of the BIT?
- c Are the Claimant’s Claims Genuine Claims under the BIT, or Do They Amount to a Disagreement with Costa Rican Courts on Matters of Domestic Law?
- d Has the Claimant Made a Prima Facie Case of Any of the Alleged Breaches of the BIT?
- e Must Infinito Make a Prima Facie Case on Damages and, if So, Has It Done So?
- 4 The Respondent’s Objections under Article XII(3)
- a Are the Claimant’s Claims Barred under Article XII(3)(d) of the BIT Because They Challenge Measures Regarding which the Costa Rican Courts Have Already Rendered Judgment?
- b Are Infinito’s Claims Time-Barred under Article XII(3)(c)?
- c Are These Jurisdictional Requirements or Conditions for Admissibility?
- 5 Other Objections
- 6 Can Infinito Invoke the BIT’s MFN Clause?
- V Costs
- VI Decision
- Decision PDF [eng]
- [18.232.31.255]
- 18.232.31.255
