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2017 Developments in Investment Treaty Arbitration

Jarrod Hepburn

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.  Subscriber: null; date: 24 January 2020

A.  Introduction

9.01  Investment treaty jurisprudence continued to develop at a rapid rate during 2017. This contribution highlights certain notable contributions made by tribunals during the year in the areas of merits, provisional measures, remedies and settlements, and annulments and challenges to awards.

B.  Merits

9.02  Across the spectrum of investment treaty case law in 2017, tribunals addressed many interesting issues relating to the substance of treaty guarantees. This section categorizes those issues into six sections, as follows: (1) human rights, social and environmental issues; (2) domestic judicial conduct; (3) cases against Venezuela; (4) solar power incentives; (5) delays in domestic administrative/judicial action; and (6) proportionality.

1.  ‘Investment and …’—human rights, social, and environmental issues in investment treaty case law

9.03  The possible tensions between investor interests and social or environmental interests have long been at the heart of the investment treaty regime, stretching back to the earliest cases such as Ethyl v Canada or Methanex v USA relating to (p. 151) environmentally motivated bans on certain chemicals. In 2017, three high-profile cases demonstrated that these tensions remain on centre stage.

9.04  In January 2017, an award from December 2016 was made public in Urbaser v Argentina. The case was one of the numerous cases stemming from utility concessions cancelled in the wake of Argentina’s financial crisis in the early 2000s. The two claimants were shareholders in an Argentine company that held a concession to operate water and sewage services in parts of Greater Buenos Aires province. The concession struggled during Argentina’s crisis, and was renegotiated with provincial authorities in 2003–05, before being terminated by the government in 2006. In assessing the investors’ claims that Argentina and its provincial authorities had breached investment treaty obligations, the tribunal emphasized the investors’ own obligations in the sensitive and important industry of water services, and ultimately held that the state was justified in terminating the contract due to the claimants’ own failings.1

9.05  Notably, amongst other findings, the tribunal held that investors’ expectations might be relevant under the fair and equitable treatment (FET) standard, but that these expectations must be formed within a legal environment covering ‘core interests of the host State’—in particular, here, public health and access to water. Thus, the tribunal said, ‘the protection of this universal basic human right [namely, access to water] constitutes the framework within which Claimants should frame their expectations’.2 Furthermore, the tribunal found that the customary international law defence of necessity was satisfied during the crisis period, with Argentina having no alternative but to restrict the tariffs that the concessionaire could charge to customers in order to ensure continuity of essential services during the crisis.3 The Urbaser tribunal thus viewed Argentina’s conduct more leniently than in a case brought by another foreign investor in the same Buenos Aires water concession, where a separate tribunal ruled by majority in 2011 that Argentina could not rely on the necessity defence because its own conduct had contributed to the onset of the financial crisis.4 Although Argentina did breach FET in one respect—pressuring the claimants into contract renegotiations which, the tribunal said, were already doomed to fail due to political developments—the tribunal held that the concession was worthless by this stage, since the claimants had failed to make the investments necessary to sustain it. As a result, the investors received no damages despite Argentina’s breach.5

9.06  As well as dismissing the investors’ claims on the merits, the tribunal also entertained a counterclaim filed by Argentina alleging that the investors had breached (p. 152) obligations under the human right to water. In a potentially important finding, the tribunal held that it had jurisdiction over a claimed breach of human rights by the investors.6 Perhaps unusually, the BIT permitted either party, not merely the investor, to commence arbitration, and the tribunal found that Argentina’s counterclaim had a factual and legal connection to the investors’ primary claim, allowing the tribunal to hear it. Moreover, the tribunal dismissed the claimants’ suggestion that international law imposed obligations only on states (and that the claimants could therefore not be liable for any breach of international human rights obligations). Instead, the tribunal noted that contemporary international law granted rights to individuals and corporations (for instance, under investment treaties), and could therefore impose obligations on them as well. The tribunal cited a range of human rights materials, including the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Ruggie Guiding Principles on Business and Human Rights, and UN General Assembly resolutions, and concluded that investors did indeed have an international law obligation not to engage in activity aimed at destroying the enjoyment of human rights.7

9.07  Nevertheless, the tribunal saw no suggestion that the investors had violated this negative obligation, which was ‘not a matter for concern in the instant case’.8 Argentina, meanwhile, retained the positive obligation to fulfil human rights (including the right to water), and the investors could not have violated that positive obligation since it did not apply to them. Thus, the counterclaim was dismissed on the merits.

9.08  Overall, the Urbaser award appears to place more emphasis on investor conduct than in most earlier investment treaty decisions, and it may signify the early stages of a trend towards the imposition of international law obligations on investors.9

9.09  In a similar vein is the November 2017 award in Bear Creek v Peru, which highlighted the potential for conflict between indigenous communities and mining projects, and discussed the social duties imposed on foreign investors in these projects. The investor in the case complained that Peru had revoked its mining rights at the Santa Ana silver mine, near the country’s border with Bolivia. Peruvian authorities had initially supported the project, but it had also faced significant opposition from local indigenous communities, enduring large and sometimes violent protests. After a prolonged period of unrest in 2011, under considerable pressure to act on the situation, the authorities convened a late-night meeting (p. 153) with protesters, and the following morning a decree was adopted, revoking the claimant’s rights.10

9.10  In assessing whether this revocation amounted to an expropriation, the ICSID tribunal drew on the concept of a ‘social licence’, citing the United Nations Declaration on the Rights of Indigenous Peoples. Amongst other things, this concept entailed a degree of consultation with and acceptance by local communities living near large-scale mining projects. The tribunal noted that Bear Creek had indeed run numerous workshops and information sessions, and offered employment to many residents in the area. However, the tribunal found that the investor could have done more to obtain the ‘social licence’ needed for its project to be successful. Despite this, the tribunal also noted that Peru had approved of the investor’s outreach activities, and it ultimately held that Bear Creek was entitled to assume that it had done everything legally required (under Peruvian law) in terms of consultation. According to the tribunal, this meant that Peru could not justify revoking the rights as a response to the social unrest; instead, the revocation was an indirect expropriation. Given the rushed, late-night procedure and the evident lack of compensation, the expropriation was ruled unlawful.11

9.11  A notable aspect of the tribunal’s decision was its view of the interaction between Peru’s police powers claim and a general exceptions clause in the treaty. (This clause stated in part that ‘nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures necessary … to protect human … life or health.’)12 Peru had alleged that its revocation measures were not an expropriation but were instead an ordinary exercise of ‘police powers’. However, the tribunal (perhaps unusually) treated the ‘police powers’ claim not as negating the existence of any expropriation, but as an exception to a finding of expropriation. Since the treaty already contained a general exceptions clause, the tribunal said, this excluded the possibility of any other implied exceptions such as a ‘police powers’ argument. As a result, the only exceptions that Peru could rely on were those defined in the general exceptions clause.13 Although long familiar to trade lawyers, general exceptions clauses have only recently become a more regular feature of investment treaties, particularly where investment commitments form part of a larger free trade agreement (such as the US–Peru agreement underpinning the Bear Creek case). One longstanding concern in relation to such clauses is that, although intended to preserve states’ regulatory flexibility and powers to pass laws to meet environmental, social, health, or other public purposes, the greater legal definition entailed by the clauses might instead serve to narrow the flexibility (p. 154) available.14 This concern was potentially borne out by the Bear Creek decision, given the tribunal’s decision that the general exceptions clause excluded the availability of other defences such as police powers.

9.12  Peru then sought to rely on the general exceptions clause itself, arguing that the clause covered the state’s revocation of the mining rights since this was necessary to protect human life or health. The tribunal was sceptical of this claim, but in any case held that the exception would not protect against unlawful expropriations. In the tribunal’s reasoning, the expropriation obligation did not prevent Peru from revoking the rights, as long as the revocation complied with the obligation—that is, as long as compensation was paid.15

9.13  Ultimately, the Bear Creek case appears to place some significant limits on the usefulness of general exceptions clauses, since (according to the tribunal’s interpretation) they not only exclude all other exceptions, but also do not remove obligations to pay compensation for measures found to be expropriatory, despite the measures’ legitimate social or environmental objectives. The case suggests that a better approach, from states’ perspective, would be to focus arguments (and treaty drafting) not on general exceptions clauses but on clauses defining the primary obligations. Annex 812.1(c) of the US–Peru treaty, for instance, already provides in part that ‘non discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation’. Although this clause might not have been satisfied on the facts of Bear Creek (given Peru’s lack of due process), its successful application would entail a finding of no expropriation, with no compensation thereby due.

9.14  In a dissenting opinion, Peru’s nominee to the tribunal, Philippe Sands, placed much greater emphasis on foreign investors’ own conduct in engaging in large-scale projects located in indigenous lands. While the majority had suggested that the investor had done as much as could be expected, arbitrator Sands drew more broadly on international law to find that Bear Creek should bear more responsibility for its failure to obtain a sufficient ‘social licence’ from the local Peruvian indigenous population. The dissenter challenged the traditional view that international law imposed obligations only on states, citing the findings of the Urbaser v Argentina tribunal that private parties had obligations not to engage in activity aimed at destroying human rights.16 Sands also cited ILO Convention 169 on Indigenous and Tribal Peoples, characterizing that instrument as an ‘applicable (p. 155) rule of international law’ that must be applied in the case under the underlying treaty’s applicable law clause.17 These legal instruments suggested to the dissenter that Bear Creek should have done much more to engage with the community before it pursued its mining project. In his view, Bear Creek’s failure to obtain a ‘social licence’ meant that it was equally responsible with Peru for the protests and subsequent revocation of rights. Sands commented: ‘As an international investor the Claimant has legitimate interests and rights under international law; local communities of indigenous and tribal peoples also have rights under international law, and these are not lesser rights.’18 The tangible consequence of Bear Creek’s failings, Sands concluded, was that its compensation award (later discussed) should be halved, reflecting its equal responsibility with Peru for its loss.19

9.15  Bear Creek and the late 2016 award in Urbaser thus both represent early signs that tribunals may become more willing to look for obligations on investors under international law, alongside the rights that investors currently enjoy under investment treaties.

9.16  Meanwhile, obligations on investors in domestic law were central to the February 2017 decision on counterclaims in Burlington v Ecuador. The state’s primary liability in the case had already been determined in 2012,20 and a separate February 2017 decision on quantum (later discussed) awarded Burlington nearly $380 million in compensation.21 In the parallel counterclaims decision, however, Burlington was ordered to pay back $41.7 million to Ecuador for its own breaches—not of the US–Ecuador BIT, but of Ecuadorian environmental law. The tribunal’s ability to hear the counterclaim was made easier by the fact that Burlington agreed with Ecuador not to contest jurisdiction, thus skirting the challenges that other tribunals have faced in this regard.22 As in the 2015 counterclaim in the related Perenco v Ecuador case, the three arbitrators—presumably appointed to the tribunal for their expertise in international law—proceeded to spend several hundred pages instead analysing and applying Ecuadorian law. The tribunal found a range of breaches relating to oil contamination at various sites, and certain breaches of maintenance obligations, leading to the $41.7 million award (plus interest).23 Successful counterclaims against investors are rare in investment treaty arbitration, as the relevant issues are often brought before domestic courts instead. However, (p. 156) the treatment of foreign investors in domestic courts sometimes itself becomes the subject of an investment treaty claim, when investors allege that domestic courts have fallen below international minimum standards of justice.24 The Burlington approach might therefore represent a more palatable alternative for both parties for resolution of counterclaims, as the claimant itself appeared to accept (in not contesting jurisdiction), despite the problems raised by arbitrators being called on to apply unfamiliar law.25

2.  Domestic judicial conduct and investment treaties: Eli Lilly v Canada

9.17  In March 2017, a tribunal under the North American Free Trade Agreement (NAFTA)26 issued its final award in Eli Lilly v Canada.27 The case centred on claims by US pharmaceutical company Eli Lilly that the Canadian courts had judicially developed a new doctrine of patent law, resulting in the invalidation of two of the claimant’s patents. According to Eli Lilly, the allegedly abrupt reversal of the prior law by the Canadian judiciary amounted to an expropriation of its intellectual property rights, and a breach of the minimum standard of treatment enshrined in NAFTA Article 1105.

9.18  One notable issue addressed in the case was whether denial of justice was the only rule of international law that could potentially be breached by domestic judicial conduct. The three NAFTA states all supported this contention (Canada in its pleadings, and the US and Mexico in non-disputing party submissions under NAFTA Article 1128), taking the view that a ‘judicial expropriation’ was therefore not legally cognizable (ie that an expropriation could only be committed by executive or legislative conduct, not judicial conduct).28 However, the Eli Lilly tribunal doubted this, observing that all the standards of investment treaties applied to all state organs, including the judiciary. This suggested that judicial conduct could lead to an expropriation, for instance if ‘a judicial decision crystallizes a taking alleged to be contrary to NAFTA Article 1110’.29 The tribunal also noted that expropriations under NAFTA required due process of law, meaning that (p. 157) domestic judicial conduct could be relevant to an expropriation claim, and not only to a denial of justice claim. Furthermore, the tribunal also commented that judicial conduct might breach the elements of ‘manifest arbitrariness’ and ‘blatant unfairness’ commonly agreed to form part of the minimum standard of treatment under Article 1105, alongside denial of justice.30 The tribunal ultimately saw no need to make a finding on this, since it saw no breaches of NAFTA in any case, but the Eli Lilly award reiterates the wide scope of NAFTA (and other investment treaty) obligations.

9.19  Also of interest in the Eli Lilly award was its confirmation that the ordinary processes of legal development in common law countries such as Canada—potentially including reversal of legal doctrines established in lower courts by later, binding higher court judgments—did not necessarily amount to a breach of the legal stability envisioned by investment treaties. In the tribunal’s view, ‘evolution of the law through court decisions is natural, and departures from precedent are to be expected’31—at least, provided that the legal changes were not ‘fundamental or dramatic’.32 Even where judicially developed rules were unclear, this was also not a cause for concern; ‘questions about the precise scope of application of legal rules abound in nearly all legal regimes’.33 While perhaps not surprising, the dicta illustrate the gulf between the current understanding of the minimum standard of treatment and the strict rules set out in early cases such as Tecmed v Mexico, calling for states to act ‘free from ambiguity’,34 or CMS v Argentina, requiring a ‘stable legal and business environment’.35

3.  Venezuela and the investment treaty regime

9.20  Venezuela’s fortunes in investment treaty arbitration continued to slide in 2017, as the state was ordered to pay at least $800 million in compensation (before interest) across four awards. Two of these decisions, the November 2017 Saint-Gobain award on damages and the November 2017 Longreef final award, remain unpublished, although the Longreef tribunal reportedly ordered $43 million plus interest in compensation for Venezuela’s unlawful expropriation and breaches of fair and equitable treatment in relation to an investment in the coffee sector.36

(p. 158) 9.21  The other two decisions, a July 2017 award in Valores Mundiales v Venezuela and an October 2017 award in Koch v Venezuela, both discuss merits, and merit discussion. First, the awards differed on the long-standing question of the relations between treaty-based ‘fair and equitable treatment’ provisions and the customary international law minimum standard of treatment. According to the Koch tribunal, a treaty granting FET ‘in accordance with the rules and principles of international law’ connected that standard to the customary minimum standard, rather than an (arguably) higher ‘autonomous’ standard of FET.37 In Valores Mundiales, however, the tribunal drew no connection between FET and the minimum standard, finding that the two concepts were technically separate, despite similar wording (‘fair and equitable treatment, in accordance with international law’) in the relevant treaty. Nevertheless, the Valores Mundiales tribunal accepted that the minimum standard had evolved over time, and was now essentially the same as the treaty-based FET standard in any case.38 (The two tribunals’ positions contrast with another 2017 award, Teinver v Argentina, where the tribunal viewed the treaty-based and customary standards separately, and suggested that the ‘autonomous’ FET standard included protection of legitimate expectations, while the customary standard did not.)39

9.22  Second, the Koch tribunal found an expropriation but no FET breach, while the Valores Mundiales tribunal found a breach of FET but no expropriation. In the latter award, the tribunal held that certain interferences with the management of a company did not amount to an indirect expropriation, since there was no overall loss of control of the company by the claimant.40 However, Venezuela had committed a breach of FET by imposing two confusing sets of measures on the claimant’s operations, partly justified by a criminal investigation against an unrelated party and partly justified by state objectives of food security. The timeline for these interferences was left unspecified, and the ‘lack of coherence and transparency’ contributed to a treaty violation.41 As well, while a formal expropriation process had been commenced, Venezuela took no further action on it for nearly ten years, leaving the claimants in a ‘situation of uncertainty’.42 Combined with a long-delayed local court decision (required to be issued within five days, but still not issued after six years), the tribunal was satisfied that Venezuela had breached FET.

(p. 159) 9.23  In Koch, meanwhile, the tribunal rejected claims that a series of measures—tax increases, delays in issuing VAT refunds, orders to sell products below cost price—amounted to a FET violation. The measures were not arbitrary, discriminatory, or in bad faith at the time, the tribunal said, and the fact that the claimant’s investment was later subjected to a formal expropriation could not colour the past events.43 By contrast, the failure to pay compensation for the formal expropriation clearly rendered it in breach of the relevant treaty, the tribunal held. Notably, the Koch tribunal did not enter into debates over whether an expropriation that is unlawful merely due to a lack of compensation should be treated differently to an expropriation held unlawful on other grounds, as has been discussed in other cases against Venezuela in recent years (eg Tidewater v Venezuela or ConocoPhillips v Venezuela). The Koch tribunal did, however, acknowledge that a genuine effort to negotiate compensation may satisfy the compensation requirement, even if no amounts are actually agreed and paid.44 As for the other conditions for lawful expropriation, the tribunal rejected the claimants’ argument that their lack of advance warning (having first learned of the expropriation via a TV address from President Chavez) rendered the expropriation in breach of due process.45 (By contrast, in Bear Creek v Peru, as discussed, a tribunal held that a lack of advance warning of an indirect expropriation, effected via revocation of mining rights, breached the due process condition.) Similarly, the Koch tribunal held that the public purpose condition was satisfied via the state’s claimed objective of ensuring food security: ‘the standard of review of a State’s conduct to be undertaken by an international tribunal includes a significant measure of deference towards the State making the impugned measure’.46

9.24  The Venezuela cases also touched on two other less-commonly pleaded investment treaty standards. In Valores Mundiales, the tribunal unusually found a breach of the ‘free transfers’ provision, when Venezuela declined (without reasons) to permit the investor to repatriate certain funds.47 In Koch, as well as the FET clause, the tribunal also tied the less prominent ‘full protection and security’ clause to customary international law. For the tribunal, this limited the clause’s remit to protection from physical interference, and doomed the claimant’s arguments under that provision.48 Continuing a more long-running debate, the Koch award contrasts again with Teinver v Argentina, where the tribunal held that full protection and security could extend to protection of ‘intangible assets’, not merely physical security.49

(p. 160) 4.  Investment treaty regulation of solar power incentives

9.25  During 2017, three awards surfaced in the numerous cases relating to withdrawal of solar power incentives in Spain and Italy. In Eiser v Spain, a tribunal at ICSID awarded €128 million in compensation following changes in Spain’s regulatory regime for solar power plants. The tribunal held that the Energy Charter Treaty’s FET obligation did not grant a right to absolute regulatory stability for investors, but that it did protect against states instituting ‘unprecedented’ or ‘totally different’ regulatory regimes. In the tribunal’s view, Spain’s changes from 2012 onwards were so drastic—and, in addition, appeared to lack a meaningful substantive basis—that FET was found to have been breached.50 The case contrasts with Isolux v Spain, a Stockholm Chamber of Commerce (SCC) award from 2016 that became public during 2017, which related to the same measures at issue in Eiser. In Isolux, the tribunal majority saw no treaty breaches, observing that the investor had made its investment in October 2012, after Spain had made certain earlier (and less drastic) changes to its solar power regulatory regime. (Those earlier changes were held not to breach Energy Charter Treaty commitments in the 2016 Charanne v Spain case.)51 For the Isolux tribunal, the claimant could not have any expectations of legal stability when circumstances already suggested in October 2012 that further regulatory changes were likely. Furthermore, the claimant’s damages submissions indicated to the tribunal that its returns had actually been higher than its own forecasts, despite the regulatory changes, suggesting that any claim of expropriation could not succeed.52

9.26  Meanwhile, Italy also survived a claim at ICSID in the Blusun case, where the late 2016 award was also made public in 2017. Like the Eiser tribunal, the Blusun tribunal considered that the FET obligation was not a guarantee of complete stability and preserved states’ rights to change their laws. The relevant test for breach, in the tribunal’s mind, was proportionality, ensuring that a new regime had sufficient regard for the interests of those committed under the previous regime.53 The Blusun tribunal majority appeared to view Italy’s measures in relation to solar power as being less drastic as in the Eiser case against Spain; the reduction in tariffs that Italy had imposed was substantial, but not crippling for the investors, and the tariffs remained higher than in other countries. A dissenting arbitrator, however, considered that Italy’s reduction in the permitted size of solar plants was unexpected, and amounted to an expropriation.54

(p. 161) 9.27  The various solar cases reviewed here all turn on different facts, with different measures at stake, and different times of investment generating different expectations regarding solar incentives. Nevertheless, they suggest a degree of flexibility in the FET standard, which does not necessarily prevent all change in legal regimes—as observed above in relation to Eli Lilly v Canada.

5.  Domestic delays in administrative or judicial conduct

9.28  Delays in domestic administrative or judicial action featured in three cases during 2017. In PL Holdings v Poland, Polish banking authorities had postponed a reconsideration of a decision adversely affecting the claimant five times. Since the reconsideration decision was required to be issued before the claimant could pursue the matter in local courts, the tribunal held that Poland’s ‘prolonged and repeated failure to act on Claimant’s petition for reconsideration effectively barred Claimant’s fundamental right of access to court for redress’.55 This finding then fed into a broader finding of expropriation. Similarly, in Cervin & Rhone v Costa Rica, a regulatory decision on tariff-setting in the gas industry was required to be issued within a certain eight-day period, but ultimately took more than two years. Since Costa Rican law provided that the decision would not have retroactive effect, the impact of the delayed decision was, in theory, even worse for the investor. In the tribunal’s view, this administrative delay amounted to a breach of FET.56 (However, the claimant was unable to prove any loss arising from this delay, partly because the regulatory decision eventually went against the claimant anyway. Thus, no damages were awarded.)57 In the third case, Valores Mundiales v Venezuela (as discussed above), a preliminary local court decision on admissibility that should have taken at most five days failed to be issued within six years. This extensive judicial delay contributed to a finding of FET breach.58

6.  Proportionality in investment treaty case law

9.29  The much-discussed concept of proportionality appeared in the merits reasoning of two awards in 2017. In Ampal-American v Egypt, a tribunal at ICSID held in February 2017 that Egypt had committed an unlawful expropriation in terminating a gas supply contract with the claimant for non-payment of an invoice. According to the tribunal, the termination was not only unlawful under its governing law (English law), but had also come during a period of political opposition to the gas pipeline that was central to the project, which transported gas from Egypt to Israel. This rendered the termination a ‘disproportionate act’, (p. 162) contributing to the finding of unlawful expropriation.59 Notably, the Ampal-American tribunal was chaired by Yves Fortier, who also chaired the Occidental v Ecuador tribunal which, in 2012, held that a contract termination deemed disproportionate to the underlying wrong amounted to an expropriation and breach of FET.60 The Ampal-American decision is perhaps less significant, given that the termination in Occidental was permitted by the contract (but nevertheless held in breach of treaty), and given that the Occidental tribunal was at much greater pains to establish a role for proportionality in the assessment than the Ampal-American tribunal’s brief references. Nevertheless, perhaps together with Blusun discussed above, the ruling seems to form part of a growing trend of cases supporting the relevance of proportionality, in some sense, to investment treaty arbitration.

9.30  The June 2017 ruling in PL Holdings v Poland also fits into this trend. There, the SCC tribunal reviewed Polish banking authorities’ conduct in relation to the claimant, measuring it against a three-pronged test for proportionality: suitability for achieving a public purpose; necessary for achieving that purpose; and not ‘excessive in that its advantages are outweighed by its disadvantages’. The tribunal found none of these prongs satisfied: the measures taken were in fact held to make it more difficult for the claimant bank to address the regulatory concerns expressed by the authorities. Rather than taking the draconian steps of imposing a deprivation of voting rights and, eventually, a forced sale, ‘any number of lesser measures … could readily be imagined’, the tribunal said.61 The legal basis for the tribunal’s proportionality assessment is not entirely clear in the award, although it clearly contributed in some form to the (sole) finding of expropriation. The parties argued over the legal source of any potential principle of proportionality to be applied in the case, but the tribunal concluded only that, ‘[r]‌egardless of the law specifically applicable to the principle of proportionality in this case, the principle is understood in largely similar terms across jurisdictions’.62

9.31  As noted above, proportionality also appeared in the 2016 award in Blusun v Italy, made public during 2017. The tribunal in that case held that proportionality was the relevant test for breach of FET, although it ultimately found that Italy’s changes to its solar incentives scheme were not so drastic as to engender a breach.63

(p. 163) C.  Provisional Measures

9.32  Alongside merits developments, 2017 also saw many developments in provisional measures.

9.33  Three cases addressed the contested issue of tribunals ordering states to suspend domestic criminal proceedings against investment treaty claimants. In February 2017, an ICSID tribunal in Italba v Uruguay held that it did not have the power to make such an order. In the tribunal’s view, a claimant at ICSID should have no expectation that their international case conferred a ‘blanket immunity upon its principals and witnesses from a [domestic] criminal investigation’.64 The tribunal saw no irreparable harm, in any case, in Uruguay pursuing its investigations against two of the claimant’s witnesses in the arbitration.65

9.34  The following month, however, another ICSID tribunal in Nova Group v Romania held that it did have power to issue provisional measures restraining states from pursuing domestic criminal proceedings, at least in exceptional circumstances.66 The Nova Group tribunal also suggested that there was no strict rule that only criminal proceedings commenced after an arbitration had been launched could be restrained via provisional measures. Although such proceedings might more likely be viewed as a bad faith response to the claimant’s move to commence arbitration, the tribunal considered that the timing of the criminal proceedings was merely an additional factor affecting the justifiability of a provisional measures order.67 In the case at hand, however, the Nova Group tribunal saw no grounds to exercise that power, rejecting the claim that the criminal proceedings were discouraging witnesses from testifying in the ICSID arbitration.68

9.35  Later, in July 2017, an UNCITRAL rules tribunal in Pugachev v Russia similarly upheld its power to restrain domestic criminal proceedings, even if ‘the Tribunal’s analysis must be cautious in order to prevent unjustified interferences in the sovereign judicial decisions of States’.69 For the Pugachev tribunal, the timing of the criminal proceedings would affect the calculations; it was particularly reluctant to interfere with criminal proceedings that were already underway when the arbitration was launched, doubting the proportionality of doing so.70 Notably, the tribunal contrasted its powers in relation to domestic proceedings within the host (p. 164) state, on the one hand, to proceedings playing out in third-party jurisdictions, on the other hand. While it had powers in relation to the former (even if subject to a high threshold), the tribunal doubted that it could grant the claimants’ request to order alleged Russian state entities to desist from pursuing civil proceedings in third states that were not even parties to the relevant BIT underlying the case.71

9.36  The Pugachev and Nova Group cases also both addressed the separate, but related, question of restraining states from issuing extradition orders over investment treaty claimants or their affiliates. In Nova Group, the tribunal granted the claimant’s request for an order preventing Romania from pursuing the extradition from the UK of the claimant’s principal shareholder and manager. The tribunal held that the individual was a key witness in the case, who had exclusive knowledge of certain events, and could not meaningfully direct the case from a Romanian prison.72 To assuage Romania’s concerns that preventing his extradition would lead to his flight from the UK to a jurisdiction without extradition arrangements with Romania, the tribunal ordered the individual to surrender his passport to a neutral party. However, the tribunal dismissed concerns that the provisional measures ruling would disproportionately interfere with Romania’s sovereignty. At pains to explain itself, the tribunal’s order amounted to 139 pages, described by the tribunal itself in a subsequent ruling as ‘the most detailed exposition to date of provisional measures issues arising in the context of domestic proceedings’.73 Similarly, the Pugachev tribunal agreed that the extradition and incarceration of the claimant in Russia would threaten his ability to consult with his lawyers in France and present his case to the arbitrators. Since Russia could still extradite the claimant once the arbitration had concluded, the tribunal said, an order of provisional measures did not disproportionately interfere with Russian prerogatives.74

9.37  Two further provisional measures orders were issued during 2017 that addressed domestic civil proceedings in the host state. In July 2017, a sole arbitrator in the UNCITRAL rules case Centerra v Kyrgyzstan ordered Kyrgyzstan to suspend its pursuit of domestic proceedings which had already led to a disputed $98 million judgment against the investor for breaches of Kyrgyz environmental law. The state was ordered to give thirty days’ notice to the investor and the tribunal if it intended to resume the domestic proceedings, to allow Centerra to seek appropriate relief. According to the arbitrator, this ruling was ‘necessary to ensure that the (p. 165) Kyrgyz Court Claims will not proceed to final judgments or enforceable orders during the pendency of these arbitrations’.75

9.38  Meanwhile, in Puma Energy Holdings v Benin, a sole arbitrator at the SCC issued an emergency measures order preventing Benin from enforcing a disputed $15 million judgment against the claimant’s Beninese subsidiary. The requirement of irreparable harm was found to be justified in the case on the grounds that enforcing the judgment would ‘effectively and conclusively extinguish’ the claimant’s operations in Benin. While the arbitrator acknowledged that, ‘[b]‌rought to its extreme, almost all damage in any commercial context could be economically compensated’, he held that compensation did not always reverse all the consequences of a loss, for instance where compensation could not be allocated to any appropriate alternative investment.76 This wider view of ‘irreparable harm’ has seemingly been endorsed in earlier cases as well, such as Evrobalt v Moldova, where another sole arbitrator at the SCC considered that the total ‘economic ruination’ of a claimant could amount to irreparable harm despite appearing to be remediable via monetary compensation.77

9.39  The Puma case is also notable for apparently pushing the boundaries of the SCC emergency arbitration process, the contours of which are still being worked out in the investment treaty context, in at least two respects. First, previous SCC emergency orders (such as in the Evrobalt and Kompozit v Moldova cases) have been issued in investment treaty cases where the claimant had at least filed a notice of dispute with the respondent state, taking a step towards a full arbitration, before requesting an emergency order. In Puma, however, the claimant had not filed a notice of dispute, but grounded its emergency measures claim merely on Benin’s consent to SCC arbitration in the Luxembourg–Benin BIT. The sole arbitrator accepted this, and indicated that Benin was bound to comply with the emergency order as part of its obligations under the treaty.78 Second, twenty-eight days after the emergency order, the claimant filed a notice of arbitration with Benin under the BIT, purporting to formally commence arbitration. However, Benin contested this, observing that the BIT required a preliminary notice of dispute, followed by a six-month negotiation period before a formal notice of arbitration could be filed to commence proceedings. The state suggested that the claimant had only filed its notice of arbitration because, under the SCC Rules, an emergency order (p. 166) ceases to be binding if ‘arbitration is not commenced within 30 days’.79 This raises the question of what suffices to ‘commence’ arbitration under the SCC Rules. Although typically an arbitration would not commence until a notice of arbitration is filed,80 this position would mean that emergency orders in investment treaty cases would only ever remain binding for thirty days, since—because investment treaties very often contain negotiation periods of six months or more, like the Luxembourg–Benin BIT—formal arbitration could not be commenced within the required thirty-day period.81 This limited lifespan may not matter if the mere issuance of the order essentially fulfils the claimant’s strategic purposes. In other cases, though, unless a more expansive view of ‘commencing’ arbitration were taken, the usefulness of emergency arbitrator orders in investment treaty disputes might remain limited.

9.40  Two other provisional measures rulings issued in 2017 stemmed from efforts to restrain states from calling on performance guarantees posted by claimants in relation to construction projects. In both cases (Rizzani de Eccher v Kuwait82 and Guris v Libya),83 however, the claimants were unable to convince the tribunal that there was any risk of imminent harm, as there was no evidence that the respondent states were actually planning to call on the guarantees. Furthermore, the tribunals both saw no irreparable harm (such as insolvency) that the claimants would suffer even if the guarantees were called on. In Rizzani de Eccher, the tribunal also declined to order provisional measures requested by Kuwait, aimed at forcing the claimant to continue working on the disputed highway construction project during the arbitration’s pendency. The tribunal saw no risk of irreparable harm to Kuwait if the project stalled.84

9.41  Lastly, on 3 December 2017 (a Sunday), an UNCITRAL rules tribunal at the Permanent Court of Arbitration (PCA) issued an ex parte emergency provisional measures order one day after the claimant’s request, instructing Ukraine to protect the life, health, and physical safety of the claimant, a Russian/US dual national. The claimant alleged that he had been arrested the previous day and beaten in custody, and (at the time of the request) was in emergency care in a Kiev hospital. (p. 167) The tribunal agreed to issue a temporary protective measure, while ordering the parties to file full submissions on the provisional measures application several days later.85 Shortly after the emergency order was issued, Ukraine’s nominee to the tribunal indicated that he dissented from the order, apparently on the grounds that Ukraine had not been given due process in the extremely rapid proceedings.

D.  Remedies and Settlements

9.42  Damages awards issued in 2017 continued to favour the discounted cash flow (DCF) approach to valuing investments. Its use was, however, rejected in Bear Creek v Peru, with the tribunal determining that the project was still at an early stage.86 In that case, the tribunal (majority) held instead that it would award the amount invested by the claimant, an undisputed figure of $18.2 million.

9.43  Two tribunals discussed questions of country risk in damages. The issue has arisen in numerous cases against Venezuela in the past (for instance in Gold Reserve v Venezuela and Tidewater v Venezuela), and 2017 proved no exception on this front. In Valores Mundiales v Venezuela, the tribunal adopted the claimant’s proposed country risk premium, much lower than the state’s proposal, finding that the investment had actually grown even despite the apparently larger political risks of operating in Venezuela.87 Meanwhile, in Saint-Gobain v Venezuela, the tribunal split on the question of whether to even include a country risk premium (intended to factor in the risks of doing business in the particular respondent state). While the Saint-Gobain majority held that country risk was merely an economic factor that any hypothetical purchaser would take into account when valuing an investment, the dissenting arbitrator considered that damages calculations must exclude the very risk that investment treaties are (in his view) designed to protect against—namely, sovereign interference. Otherwise, countries would benefit (via lower damages awards due to large country risk premiums being applied) from creating a climate of uncertainty and risk.88

9.44  Tribunals also addressed another long controversial question in 2017, whether compensation is determined differently for lawful and unlawful expropriations. The Koch tribunal referred to this ‘unresolved debate’,89 but managed to side-step (p. 168) the question, while the Burlington tribunal majority took the view that the appropriate valuation date for an unlawful expropriation was the date of award, rather than date of expropriation. Recalling her earlier dissent on this issue in Quiborax v Bolivia, arbitrator Brigitte Stern dissented again in Burlington on the point, maintaining that the date of expropriation remained the correct valuation date regardless of the lawfulness of the expropriation.90 The Burlington tribunal also differed amongst itself on the use of ex post data in valuation (ie data and information from time periods coming after the expropriation date). The majority preferred the more reliable ex post data, reflecting actual events occurring since the expropriation, while arbitrator Stern again supported her Quiborax position of excluding reference to this data.91

9.45  Otherwise of note, the PL Holdings v Poland tribunal held that it would determine interest according to the rates set in domestic (Polish) law.92 Tribunals rarely take this approach, contending instead that international law should solely govern the consequences of a breach of international law. However, other earlier tribunals (such as CME v Czech Republic)93 have looked to domestic law, reasoning that international law did not set any specific rate to use, and that domestic law was part of the applicable law in the case.

9.46  Lastly, a (possibly) more general comment on damages calculations was offered by the Koch v Venezuela tribunal, which lamented the fact that the parties’ damages experts in the case had offered wildly differing valuations of the investment. Given the discrepancy, the tribunal held that it had no confidence in either figure: ‘It is as if two boxers in the ring knocked each other out simultaneously, with neither winning the contest.’94 Instead, the tribunal relied on reports commissioned earlier by the state for negotiations with other shareholders in the same plant the expropriation of which was at issue in the case. Arbitrators are of course rarely trained in economics or financial modelling, and are not likely to have extensive experience in the valuation of businesses, leaving them highly reliant on expert views in the typical case. When these expert views are also unhelpful, as in Koch, tribunals will be left in difficult positions which may not satisfy either disputing party in the case.

9.47  Apart from damages awards by tribunals, various states opted to settle cases during 2017, either in advance of awards or even after awards had been issued. Argentina, for instance, settled another outstanding compensation award during 2017, after settling with a number of investor claimants the previous year. The state agreed to pay French investor Total $210 million, after the Total award, reportedly worth (p. 169) $300 million, withstood an annulment bid by Argentina in 2016.95 Bolivia settled its case with Spanish investor Abertis in May 2017, following hearings in December 2015.96 The parties agreed to settle for around $23 million, representing roughly a quarter of the amount claimed by Abertis in the case relating to a dispute over tariffs for airport services provided by the investor. Venezuela also settled cases with mining companies Gold Reserve and Crystallex, in billion-dollar deals.97

9.48  Ukraine announced in February 2017 that US pharmaceutical company Gilead Sciences Inc agreed to withdraw its (potential) BIT claim against the country. The parties had been in dispute over the rights of competing companies to sell a generic version of Gilead’s hepatitis C drug in Ukraine. It was not clear whether Gilead had in fact filed a formal notice of arbitration with the state (and under what instrument, if so), or whether the case remained only at the level of a preliminary notice of dispute. Nevertheless, Ukraine portrayed the settlement as comprising an agreement from Gilead to withdraw its case and lower the price of its drug, in return for the de-registration of the competing drug.98

9.49  A short-lived claim by Turkish construction company Görkem against Turkmenistan was settled in December 2017, when the claimant reached a separate settlement with its Turkmen contracting partner in a case relating to the construction of a shopping and trade centre. The claim was filed at ICSID in August 2016, but a tribunal was constituted only in October 2017, two months before the parties agreed to discontinue the case.99

9.50  In December 2017, Ecuador announced that it had settled its case with US oil investor Burlington Resources Inc for a reported $337 million.100 As noted above, the tribunal at ICSID had awarded Burlington nearly $380 million in damages, (p. 170) offset by a nearly $42 million award in favour of Ecuador under a successful counterclaim. The agreed settlement figure thus appears to represent the amount ordered by the tribunal, once the counterclaim set-off is factored in, suggesting that the settlement effectively amounts to Ecuador’s agreement to comply in full with the original compensation award. The parties further agreed to discontinue Ecuador’s request for annulment of the award, a decision on which was still pending at the time of settlement.

E.  Annulment and Set-Aside

9.51  Investors and states alike sought to annul a range of investment treaty decisions during 2017. While ICSID’s annulment process is perhaps the most prominent forum for such challenges, a significant number of awards not governed by the ICSID Convention were the subject of set-aside attempts in various domestic courts during 2017.

9.52  At ICSID, an annulment committee rejected Argentina’s bid to annul the $400 million Suez award in May 2017. Argentina had pleaded the less common ground of a defect in tribunal constitution (under Article 52(1)(a) of the ICSID Convention), focusing on a directorship held by one arbitrator, Gabrielle Kaufmann-Kohler, at Swiss bank UBS, which owned shares in the claimants.101 However, confirming the high bar required for annulment at ICSID, the ad hoc annulment committee considered that it would only annul the award on this basis if the decision not to disqualify Ms Kaufmann-Kohler was so unreasonable that no reasonable person could have made it. While the committee expressed some sympathy for criticisms of the arbitrator in failing to disclose the directorship to the parties, the disqualification decision was not ‘plainly unreasonable’.102 Other grounds for annulment raised by Argentina were also rejected, with the committee declining to second-guess the tribunal’s reasoning on the use of an MFN clause to avoid an eighteen-month local litigation requirement in the treaty, and on the application of the customary defence of necessity.

9.53  Similarly, in October 2017, an ICSID annulment committee upheld a June 2015 jurisdictional decision in Gambrinus v Venezuela, which had dismissed the investor’s claim. The committee again confirmed its limited mandate of review, and declined to re-open all the claimed errors in the tribunal’s reasoning, (p. 171) particularly where (the committee held) some of the claims raised by the aggrieved investor had not been put to the original tribunal.103

9.54  Venezuela had already enjoyed annulment success that year, succeeding in its bid to annul the $1.4 billion Exxon damages award at ICSID in March 2017. The original tribunal had found the state in breach of the Netherlands–Venezuela BIT in 2014, and had awarded the massive sum partly due to its decision to disregard a clause in the underlying investment contract that limited compensation. Instead of abiding by the contractual limitation clause, the tribunal determined that it should apply international law compensation standards. However, the annulment committee recalled that the legal rights underpinning an investment were defined by domestic law, not international law, and that the market value of these rights would be affected by their scope as determined by domestic law. The committee held that, in calculating compensation, the tribunal should have factored in the contractual limitation clause, since the domestic law clause would have implications for the international law test of market value of the investment.104 Furthermore, according to the committee, the tribunal had also wrongly applied customary international law standards on compensation when in fact the BIT standards should have applied for the lawful expropriation at issue in the case.105 These failures to apply the proper law led the committee to find that the high bar for annulment had been overcome in this case. While the original tribunal’s finding of liability was left untouched, the $1.4 billion damages component was set aside.

9.55  Outside ICSID, Venezuela had less success in set-aside efforts in 2017. In relation to another $1.4 billion award, the United States District Court for the District of Columbia declined to set aside the (later-settled) 2016 ICSID Additional Facility award in Crystallex v Venezuela. Like ICSID annulment committees, the DC court confirmed the high threshold needed for set-aside in that jurisdiction, holding that it would not review the merits of the underlying decision. Amongst other arguments, Venezuela had contended that confirming the award would be contrary to US public policy, which (Venezuela said) recognized states’ rights to regulate the environmental impacts of industry. However, the DC court rejected this, doubting that Venezuela’s expropriation of the investment was truly motivated by environmental concerns. In any case, the court viewed itself merely as holding Venezuela to the terms of its treaty, which did not violate any basic US notions of justice.106 Meanwhile, Venezuela also lost its bid to set aside another (p. 172) (later settled) ICSID Additional Facility award worth $700 million, in the Gold Reserve case before the Paris Court of Appeal in February 2017. Taking a slightly more substantive approach to review of the jurisdictional issues in that award, the Paris court held that it agreed with the tribunal’s decision that there had been no abuse of process in the claimant’s acquisition of its investment in Venezuela. As for the merits, the court held simply that the tribunal’s decision fell within its mandate.107

9.56  In June 2017, the same DC court that ruled in Crystallex v Venezuela also dismissed a challenge to the 2016 decision in Mesa Power v Canada, which had rejected the investor’s claim. The court noted that a mere disagreement with the tribunal’s merits decision would not be enough for set-aside. In particular, the court observed that a dissenting arbitrator in the case had used the same interpretive tools as the majority, but had come to a different view, suggesting that there was no underlying flaw with the tribunal’s reasoning methods but purely differences of appreciation.108

9.57  Two other notable set-aside claims—one successful, the other not—arose during 2017. In July, the Hague Court of Appeal upheld a lower court judgment dismissing Ecuador’s challenge to several awards issued by a tribunal in the ongoing Chevron v Ecuador case. The appeal court was satisfied that the tribunal had properly accepted jurisdiction in the case, and held that its review powers did not extend to second-guessing the merits of the tribunal’s decisions. Most notably, the Dutch court disagreed with Ecuador’s argument that the tribunal’s interim measures order—directing the state to prevent enforcement of the multi-billion-dollar ‘Lago Agrio’ judgment against Chevron—interfered with the state’s sovereignty. According to the court, Ecuador had agreed to the application of the UNCITRAL rules when it consented to arbitration in the underlying BIT, and this entailed agreement to be subjected to any interim measures ordered by UNCITRAL rules tribunals. As well, by definition, the interim measures might be revoked later. Thus, the court found no conflict with public policy in upholding this element of the tribunal’s decisions.109

9.58  Lastly, the Singapore High Court ruled in August 2017 in a complex case brought by South African investors against the Kingdom of Lesotho, relying on the Finance and Investment Protocol (FIP) of the Southern African Development Community (SADC). In April 2016, an UNCITRAL rules tribunal had held (by majority) that Lesotho breached the FIP when it participated in the process of shutting down the supposedly-permanent SADC Tribunal, which at the time was (p. 173) hearing a claim of expropriation against Lesotho, brought by the South African investors. No compensation was awarded, but Lesotho was ordered to establish a new ad hoc tribunal to hear the expropriation claim again.110 Reviewing the Swissbourgh v Lesotho award, the Singapore court focused on the FIP tribunal’s finding that the right to bring a claim to the SADC Tribunal was indeed an investment protected by the FIP. Analysing this jurisdictional finding de novo under Singaporean law, the court doubted that the right to bring a claim fit the FIP definition of investment—which, it noted, was narrower than most equivalent definitions in BITs. Firstly, the court considered that the claimed investment was not grounded in Lesotho’s territory, nor governed by its domestic law, as (the court said) was required by the FIP (contrary to the tribunal, which had held that the investment did not need to meet these requirements). Secondly, the court saw an insufficient connection between the right to bring a claim and the ‘bundle of rights’ forming the actual investment in the case, namely, the claimants’ mining rights in Lesotho. Thirdly, the court noted that the FIP required an investment to be ‘admitted’ into the host state; in the court’s view, a right to bring a claim before an international tribunal was simply not capable of being ‘admitted’ in the manner envisaged by the FIP. Ultimately, the court held, the right to bring a claim was not itself an investment, but was a protection granted by the FIP in respect of the actual investment—the underlying mining project.111 On a separate issue, the court also examined the FIP’s (unusual) requirement of exhausting local remedies before pursuing a claim under that instrument. The tribunal had concluded that a particular remedy in the Lesotho legal system did not offer effective redress for the lost opportunity to claim before the SADC Tribunal, and therefore did not need to be pursued by the claimants. The Singapore court entered into a substantive review of this finding, ultimately disagreeing with the FIP tribunal. Noting the importance of permitting respondent states an opportunity to correct errors within their own systems before being subjected to international claims, the court held that the investors should have pursued this remedy, even if it was unclear whether it would be successful.112 While the Swissbourgh case is atypical in many respects, the Singapore court challenge offers some useful discussion of the definition of investment and the exhaustion of local remedies rule, which has at times displayed complicated interactions with investment treaty jurisprudence.113


2  ibid paras 622–24.

3  ibid para 718.

5  Urbaser (n 1) paras 845–47.

6  ibid paras 1155.

7  ibid paras 1193–221.

8  ibid para 1210.

11  ibid paras 400–16, 442–49.

13  Bear Creek (n 10) para 473.

15  Bear Creek (n 10) para 477.

17  ibid para 7.

18  ibid para 36.

19  ibid para 39.

22  See eg Rusoro v Venezuela, Roussalis v Romania or Urbaser v Argentina.

24  See eg the claimants’ allegations of a denial of justice inflicted by the Ecuadorian court system in Chevron Corporation v Ecuador, UNCITRAL, Claimant’s Supplemental Memorial on the Merits (20 March 2012).

29  Eli Lilly (n 27) para 221.

30  ibid paras 222–25.

31  ibid para 310.

32  ibid para 387.

33  ibid para 429.

40  Valores Mundiales (n 38) para 479.

41  ibid para 586.

42  ibid para 582.

43  Koch (n 37) para 8.62.

44  ibid para 7.28.

45  ibid para 7.23.

46  ibid para 7.20.

47  Valores Mundiales (n 38) para 639.

48  Koch (n 37) para 8.46.

49  Teinver (n 39) para 905.

54  ibid para 409.

57  ibid para 703.

58  Valores Mundiales (n 38) paras 556–63.

61  PL Holdings (n 55) para 375.

62  ibid para 355.

63  Blusun (n 53) para 318.

65  ibid para 121.

67  ibid para 257.

68  ibid para 365.

70  ibid para 275.

71  ibid para 226. Ultimately, the tribunal held that the entities in question were prima facie not connected to the Russian state, making an order against Russia in relation to the entities’ conduct even less justifiable: ibid para 227.

72  Nova Group (n 66) para 301.

74  Pugachev (n 69) paras 319, 332.

81  Unless, of course, the emergency order was obtained within the final thirty days of the BIT’s negotiation period; or unless the claimant is able to plead a ‘futility’ exception, contending that the envisaged negotiations with the respondent would have anyway been futile, such that an ordinarily premature notice of arbitration is effective.

84  Rizzani de Eccher (n 82) para 148.

85  Igor Boyko v Ukraine, PCA Case No 2017-23, Procedural Order No 3 on Claimant’s Application for Emergency Relief (3 December 2017).

86  Bear Creek (n 10) para 604.

87  Valores Mundiales (n 38) para 790.

89  Koch (n 37) para 9.193.

90  Burlington (n 21) para 337.

91  ibid.

92  PL Holdings (n 55) para 648.

94  Koch (n 37) para 9.206.

101  The same facts had also underpinned several other unsuccessful challenges against Ms Kaufmann-Kohler in other cases.

105  ibid para 188.

112  ibid 140–56.