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DATA SET: COST SHIFTING IN IINVESTMENT TREATY ARBITRATION
CATEGORIES OF VARIABLES
Case Name: Case identifying number, case title, date, nationality of investor(s), applicable treaty, institution, investment sector and key paragraphs
Phase: When the decision is rendered and relation to phase (jurisdictional, merits, damages or other procedural issue)
Who Won – Who Lost: Indication of which parties won which claims
Damages Recovered: Indication of what amount Claimant Claimed and what amount was actually recovered
Parties’ Legal Costs and Expenses: Which party is responsible for attorney fees for itself and/or the other party
Tribunal’s Costs and Expenses: Which party is responsible for tribunal and/or expert costs and expenses and to what extent
Basis for Cost Determination: Legal basis and reasoning of costs determination
NB: All awards were publicly available as at May 31, 2006
NB: Unless stated otherwise, conversions of currencies into U.S. Dollars from a foreign exchange currency were obtained from http://www.oanda.com/convert/classic using the
FXConverter using the interbank rate. The date chosen for the exchange is the date of the award.
NB: All translations verified at: http://babelfish.altavista.com/
NB: SDF has not included any proceedings related to procedural orders, annulment or set aside proceedings
NB: Color is yellow IF tribunal has a woman on it – and name of female arbitrator is underlined
NB: Sample consists of cases public sources at: (1) http://ita.law.uvic.ca/, (2) http://www.investmentclaims.com/, (3)
http://www.worldbank.org/icsid/cases/awards.htm#awardARB0317, (4) in the Westlaw database APPLETON-ISR, (5) the ICSID Review: Foreign Investment Law Journal, or (6)
the Stockholm International Arbitration Review.
NOTE: CCL v. Kazakhstan, CSOB v. Slovak Republic and Tradex Hellas S.A. v. Albania have jurisdictional awards based upon BITs. As there was some basis for jurisdiction –
but there was no BIT-based jurisdiction, final awards in these cases have been omitted from this sample.
Case Name Tribunal Phase Who Won and Lost Damages Parties’ Tribunal’s Basis for Determination
and Number Received Legal Costs Costs and
& Expenses Expenses
102. Suez, Sociedad 1:1 G. “Decision on Suez wins: there is Amount Not addressed Not addressed No reason given
General de Aguas de Kaufmann- Jurisdiction” jurisdiction (dispute Claimed:
Barcelona S.A., and Kohler arises out of Not
InterAguas Servicios investment there is a Available
Integrales del Agua S.A. 2:2 P. legal dispute, no
v. Argentine Republic Nikken waiver of BIT claims Amount
b/c of concession Received:
May 16, 2006 J. Salacuse contract, qualifying Not
(Chair) investment, MFN Applicable
Suez = France prevents from having
Sociedad = Spain to 1st bring claims b4
Interaguas = Spain local courts)
1 1 = Arbitrator appointed by or on behalf of the Claimant.
2 2 = Arbitrator appointed by or on behalf of the Respondent.
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France/Argentina BIT NB: One
Spain/Argentina BIT jurisdictional
objection became
ICSID moot b/c proceeding
was discontinued
“water distribution and
waste water systems”
¶¶ 23, 29, 31, 37, 40,
45, 51, 57—61, 66
101. Saluka Investments 2: P. “Partial Saluka wins: there is Amount Reserved for Reserved for Tribunal previously reserved question of costs
BV v. Czech Republic Behrens Award” – jurisdiction (lawful Claimed: later later
(Jurisdiction investment, “Damages consideration consideration “510. The Tribunal, bearing in mind Article 38 of the UNCITRAL
March 17, 2006 1: L. and Merits) qualifying investor), to be Rules, will address questions of costs within the framework of its
Fortier violation of F/E4 determined eventual decision at the conclusion of the second phase of this
Saluka = Netherlands (discriminatory by the arbitration.”
A. Watts response to bad debt Tribunal
Netherlands/Czech and (Chair) measure and didn’t based upon “511. For the foregoing reasons, the Tribunal unanimously renders the
Slovak Federal deal w/ S/H5 in further following decisions as its Partial Award in the present arbitration … f.
Republic BIT3 unbiased or even submission the Tribunal reserves questions of costs until final consideration can be
handed way – s” [Not given to the costs of this arbitration as a whole.”
UNCITRAL (ad hoc) inconsistency, Available]
transparency
“reorganisation and communication), Amount
privatisation of the A/D6 treatment Received:
Czech banking” (comments caused Not
run on bank) Applicable
¶¶ 1, 165, 205, 217,
221, 230, 238, 242-44, Czech Republic wins:
263, 281, 347, 407, 416, no expropriation, no
419, 427, 432, 441, F/E (failing to
451-56, 481, 490, 493, improve legal
496-505, 510-511 framework w/in time
Nomura wanted,
NB: Case related to provision of financial
Award 69 assistance, unjust
enrichment), no FPS7
(suspension of
3 The Czech Republic has agreed to be bound by this treaty.
4 F/E = the right to “Fair and Equitable Treatment”
5 S/H = shareholder
6 A/D = the right to be free from Arbitrary and Discriminatory Treatment
7 FPS = the right to full protection and security
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trading shares,
prohibition of
transferring shares,
police searches and
seizure of documents
– that were corrected
by local court)
100. Continental 2: M. “Decision on Continental wins: Amount Not addressed Not addressed No reason given
Casualty Company v. Nader Jurisdiction” there is jurisdiction Claimed:
Argentina (dispute rises directly Not
G. out of investment, Available
February 26, 2006 Sacerdoti corporation has ius [damages
(Chair) standi, dispute is arguably
Continental = US ripe) fluctuating]
1: V.
US/Argentina BIT Veeder MFN8 arguments Amount
irrelevant for Received:
ICSID jurisdictional phase Not
Applicable
“workers compensation
insurance services”
¶¶ 22, 27, 75, 85-86. 92,
93
99. EnCana J. Crawford “Award” – EnCana won: Amount Each party Ecuador pays: “201. Article XIII(9) of the BIT permits the Tribunal to award costs in
Corporation v. Republic (Chair) (Jurisdiction jurisdiction Claimed: bears own all costs accordance with the applicable arbitration rules. Article 40 of the
of Ecuador, + Merits + (nationality – “reimburse costs (100%) – UNCITRAL Arbitration Rules state: [quote deleted] … According to
1: H. Costs – Final) expropriation, Art ment of tax reimburse the general principle expressed in article 40(1), as the prevailing party
February 3, 2006 Grigera VIII) credits EnCana for its Ecuador is in principle entitled to the costs of the arbitration. However
Naón [Partial denied and half of this is not an inflexible rule and the Tribunal has a discretion to order
EnCana = Canada Dissent by Ecuador won: no which tribunal fees otherwise.”
2: J. Naón] jurisdiction for might be $330,267.44
Canada/Ecuador BIT Thomas failure to encourage denied in “202. In view of the events giving rise to this proceeding, the Tribunal
creation of favorable future. The (Total considers that it would not be equitable to require EnCana to pay
UNCITRAL [ad hoc] investment value of tax tribunal fees Ecuador’s costs of arbitration. Indeed, the Tribunal has considered
conditions, F/E or credits were US$ whether Ecuador should be required to meet EnCana’s costs, despite
“exploration and NT,9 (b/c exclusion already 685,788.04 – the fact that the limitations on its jurisdiction under the Treaty prevent
exploitation of oil and of tax matters); also denied was given existing the Tribunal from addressing most of EnCana’s complaints and despite
gas” won no expropriation put at payments to its having found that no expropriation was effected by the Respondent.
approximat LCIA – In the circumstances, the Tribunal considers that it would be just and
8 MFN = the right to be treated just as favorably as a “Most Favored Nation” (i.e. foreign investors from country A treated just as favorably as investors from
country B)
9 NT = the right to National Treatment (i.e. investors not treated less favorably than nationals)
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¶¶ 1, 23, 122, 132, 166- ely EnCana still equitable for Ecuador to bear the costs of the arbitration. Accordingly,
68, 177-78, 196-99, US$80m.” had to pay Ecuador shall be responsible for reimbursing EnCana for all sums it has
201-04, page 59 US$330,267.4 deposited with the LCIA as deposit-holder in connection with the costs
Amount 4 to pay for of the arbitration.”
Received: all costs)
0.00 "203. In fact the costs of the arbitration are as follows ... Total:
US$685,788.04. EnCana has lodged deposits and registration fee of
US$355,544.61, including interest accrued. Ecuador has lodged
deposits of US$355,520.60, including interest accrued. Total. Deposits
lodged by the parties amount, therefore, to US$711,065.21, of which
US$685,788.04 has been applied to the costs of the arbitration as
above. The US$25,277.17 held by the LCIA, being the residue of the
funds deposited, is to be refunded by the LCIA to EnCana.
Accordingly, the Tribunal decides that Ecuador shall reimburse EnCana
in the amount of US$330,267.44."
“204. Having regard to article 38 of the UNCITRAL Arbitration Rules,
the Tribunal concludes that each party must bear its own costs of
representation and assistance.”
Page 59: “For the foregoing reasons, the Tribunal … (3) unanimously
holds that Ecuador shall be responsible for reimbursing EnCana the
sums it has deposited with the LCIA as deposit-holder in connection
with the costs of the arbitration, in the amount of $330,267.44, and that
otherwise each party shall bear its own costs of representation in these
proceedings.”
98. Salini Costruttori 1: B. “Award” – Jordan won: no EI of Amount Each party Salini pays “101. The Respondent submits that the Jordanian side has been put to
S.p.A. and Italstrade Cremades (Merits + failure to submit K10 Claimed: bears own 50% very considerable expense in the present phase of the proceedings by a
S.p.A. v. Jordan: Costs – Final) dispute to AAG11 US$28 costs claim which is ‘entirely unmeritorious.’ In its last submission, the
G. (i.e. no umbrella million “or Jordan pays Respondent therefore asks that ‘all the costs of the Tribunal ... and all
January 31, 2006 Giullaume [Separate clause breach) the more 50% of Jordan’s costs in preparing this phase of the proceedings should be
(Chair) Declaration precise borne by the Claimants.’ (footnote omitted) For their part, the
Salini = Italy by Sinclair] amount to Claimants stress that they acted and behaved in good faith and invite
Italstrade = Italy 2: I. be Tribunal to be ‘fair and equitable’ and to reject the submissions of
Sinclair determined Jordan on that point.”
Italy/Jordan BIT during the
proceeding “102. Article 61 (2) of the ICSID Convention provides that the
ICSID ” Tribunal shall decide how and by whom the costs of the proceedings,
(excluding including the expenses incurred by the parties, the fees and expenses of
“Construction of the interest and the members of the Tribunal and the charge for the use of the facilities
Karameh Dam Project” financing of the Centre shall be paid. This Article confers a discretionary power
10 K = contract
11 AAG = arbitration agreement
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charges) on the Tribunal (Mine v. Guinea – Decision on Annulment – 22
¶¶ 22, 43, 52, 89-100, December 1989 – 4. ICSID Report 109). Moreover, ICSID Tribunals
101-04 Amount and more generally International Arbitral Tribunals, have not followed
Received: a uniform practice with respect to the award of costs and fees (see
NB: Case related to 0.00 Gotonda – Awarding costs and attorney’s fees in International
Award 77 Commercial Arbitration – Michigan Journal of International law – 1-25
(199) [sic] and Christoph M. Schreuer, the ICSID Convention, pp. 1220
to 1232).”
“103. In the present case, the Claimants did not prove that, during the
meeting of February 2000, an oral binding agreement had been
concluded between the Prime Ministers of Italy and Jordan to submit
the dispute between Salini Costruttori S.p.A. and JVA to arbitration.
However, nor is it clear that during that meeting it was only agreed to
try to settle the dispute by negotiation and failing such a settlement, to
submit the question of arbitration to the Council of Ministers. In fact,
the Tribunal has not been able to determine what decision, if any, had
been taken by the two Prime Ministers. It is because the burden of
proof is on the Claimants that their claim is to be rejected.”
“104. In those circumstances and in the exercise of its discretion, after
taking into account all pertinent factors, the Tribunal decides that each
side shall bear its own expenses for the proceedings and that the two
sides shall bear equally the fees and expenses of the members of the
Tribunal and the charges for the use of the facilities of the Centre.
Since the parties have each made equal advance payments to ICSID,
the Tribunal need not award the payment of any amount on account of
such fees, expenses and charges.”
“105. For the foregoing reasons, the Tribunal unanimously … (b)
dismissing the claim relating to fees, expenses and charges presented
by the Hashemite Kingdom of Jordan.”
SINCLAIR DECLARATION [pages 37-38]:
“ In my view, a distinction should have been made between the costs
and expenses of the jurisdictional phase of the proceedings and the
costs and expenses of the merits phase of the proceedings. As far as the
costs and expenses of the Tribunal during the jurisdictional phase of the
proceedings are concerned, I agree that these costs and expenses should
be shared equally between the parties, and that, for the rest, each Party
should bear its own expenses for the proceedings during this phase.,
[sic] There were clearly major differences between the Parties over the
jurisdictional issues, and it seems only right that the costs and expenses
of the Tribunal during this phase of the proceedings should be shared
equally between the Parties, with each Party otherwise bearing its own
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expenses.
“However, in my view, different considerations apply to the allocation
of the costs and expenses of the Tribunal during the merits phase of the
proceedings. The Claimants no doubt devoted considerable thought to
what course of action they should follow in the circumstances – in
other words, whether or not they should proceed further with this case
on the limited issues left open to them by the Tribunal’s decision on
jurisdiction. Their legal advisers no doubt advised them that the
burden of proof would be on them, as Claimants, to prove the existence
and precise content of the agreement between the two Prime Ministers
allegedly reached at the crucial meeting held between them at Amman
in February 2000.”
“It may also be assumed that the legal advisers to the Claimants would
have warned the Claimants that, if they failed to prove the existence of
this alleged agreement reached between the two Prime Ministers, they
would run the risk of having the whole or part of the costs and expenses
of the Tribunal and of the Defendants during the merits phase awarded
against them.
“Against this background, I am not wholly convinced that the
considerations set out in paragraph 103 of the Award on the merits
fully warrant the conclusion set out in paragraph 104. In my view, a
more equitable solution would have been to allow some limited weight
to ‘the loser pays’ principle by apportioning the costs and expenses of
the Tribunal for the merits stage of the proceedings in the proportion of
one-third to the Respondent and two-thirds to the Claimants, with each
Party bearing its own costs for the merits phase. This would ensure
that some slight account at least is taken of the risk which the
Claimants knew they would be undertaking in seeking to satisfy the
Tribunal of the existence and precise content of the alleged agreement
between the two Prime Ministers of February 2000, given their
knowledge that these allegations were fiercely denied by the
Respondent.”
“I would have rallied more enthusiastically to such a solution on costs,
believing it to be more equitable as between the parties, in the sense
that the Claimants should be reminded that their inability to satisfy the
burden of proof could result in the payment of heavier costs than might
otherwise have been the case.”
“However, my two co-arbitrators think otherwise, and I am Décision
sur le Compétence bound to acknowledge that they have more
experience of practice in the field of international commercial
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arbitration than I have. Furthermore, I freely acknowledge that I am in
full and unqualified agreement with the decision on the merits in this
case and fully accept that the lawyers acting for the Claimants
presented their arguments on the merits of the case professionally and
in full good faith. In all the circumstances, and despite my misgivings
on the handling of the issue of costs in this case, I am persuaded that I
can, in the final analysis, vote in favour of the decision recorded in
paragraph 105 of this Award, subject to the publication of this
Declaration together with the Award.”
97. International 2: A. “Award” – Thunderbird wins: Amount Thunderbird Thunderbird “212. Pursuant to Article 1135 of the NAFTA, a tribunal may ‘award
Thunderbird Gaming Ariosa (Jurisdiction jurisdiction and Claimed: pays: ¾ of pays: ¾ (US$ costs in accordance with the applicable Arbitral Rules,’ i.e., the
Corporation v. Mexico, + Merits + evidentiary issues not less Mexico’s 378, 939.06 – UNCITRAL Rules. Pursuant to Article 38 of the UNCITRAL Rules,
A. van den Costs – Final) than costs – pay its half of the ‘arbitral tribunal shall fix the costs of arbitration in its award.’
January 26, 2006 Berg Mexico wins: no US$100 US$ fees + Article 38 (e) includes within the scope of the definition of the ‘costs of
(Chair) [Separate LE,13 no NT, no million 1,126,549.38 reimburse arbitration’ the ‘costs for legal representation and assistance of the
Thunderbird = Canada Opinion by exprop,14 no CIL15 (claimed US$ Mexico for successful party if such costs were claimed during the arbitral
(with PPB12 in CA, 1: T. Wälde Wälde] violations Amount 1,163,375.20) ¼) proceedings, and only to the extent that the arbitral tribunal determines
USA) Received: that the amount of such costs is reasonable’. Articles 40 (1) and (2) of
0.00 Mexico pays: Mexico pays: the UNCITRAL Rules provide as follows: (quotation omitted)”
NAFTA nothing – gets ¼ of costs
¾ of costs (US$ “213. The majority view in S.D. Myers v. Canada believed that there is
UNCITRAL [ad hoc] reimbursed 126,313.02 – a “subtle distinction” between these two paragraphs, the first
(claimed US$ gets emphasizing “success,” and the second ‘the circumstances of the case.’
“gaming facilities” 1,310.943.78 reimbursed (footnote omitted) The present Arbitral Tribunal does not see the
+ 191,122.06 the US$ distinction between the two paragraphs in that way. The first paragraph
¶¶ 8, 41, 95, 108-10, = 126,313.02 by too refers to “the circumstances of the case” whilst the second, as
117-18, 158-67, 178-83, 1,502,065.84) Thunderbird) conceded by the majority view in S.D. Myers, also implies success.
195-201, 208, 210-22, Rather, the difference between the two paragraphs is that the first
TOTAL costs paragraph sets forth a rule with an exception to that rule, whereas the
= second paragraph gives an arbitral tribunal unfettered discretion.
$505,252.08 According to the first paragraph, the costs of the arbitration ‘shall in
(US$ 405,620 principle be borne by the unsuccessful party,’ whilst according to the
for arbitrators second paragraph, an arbitral tribunal ‘shall be free’ to determine which
fees and US$ party bears the costs of legal representation (or may apportion such
99,632.08 for costs). In the present case, the Arbitral Tribunal does not see a reason to
hearing rely on that distinction, as the more objective benchmark for both types
rooms, travel, of costs is the rate of success of a party.”
etc)
“214. It is also debated whether ‘the loser pays’ (or ‘costs follow the
12 PPB = principal place of business.
13 LE = the Legitimate Expectations doctrine (i.e. investors treated according to their legitimate expectations at the time of making the investment).
14 Exprop = the right to be free from uncompensated expropriations
15 CIL = the right to be treated in accordance with Customary International Law.
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NET event’) rule should be applied in international investment arbitration. It
IMPACT: is indeed true that in many cases, notwithstanding the fact that the
Thunderbird investor is not the prevailing party, the investor is not condemned to
pays US$ pay the costs of the government. The Tribunal fails to grasp the
1,505,488.44 rationale of this view, except in the case of an investor with limited
even though it financial resources where considerations of access to justice may play a
lost claim – role. Barring that, it appears to the Tribunal that the same rules should
apply to international investment arbitration as apply in other
Mexico has to international arbitration proceedings.”
spend
501,829.48 to “215. It may be added that Article 1135 of the NAFTA explicitly
successfully contemplates the possibility for a tribunal to award costs: ‘[a] tribunal
defend may also award costs in accordance with the applicable arbitration
(375,516.46 + rules.’ The treaty does not contain any limitation in regard of the award
126,313.02) of costs.”
“216. The parties to the present case have themselves each claimed an
award of costs (citations omitted). Although Thunderbird has
contended that it is rarely appropriate for costs to be awarded to an
unsuccessful NAFTA claimant, it has at the same time recognized:
‘[n]o Nafta provisions exist which would modify the application of
[Articles 38 and 40 of the UNCITRAL] arbitration rules. Accordingly,
it lies within the discretion of this Tribunal to award costs in the
manner it determines to be the most appropriate and reasonable in the
circumstances.’”
“217. The Tribunal is mindful of other NAFTA awards such as the
decision in Azinian v. Mexico, (footnote omitted) in which the tribunal
considered four factors for deciding that the losing investor need not
pay the costs of the respondent (state party):
The claim has failed in its entirety. The Respondent has been
put to considerable inconvenience. In ordinary circumstances
it is common in international arbitral proceedings that a
losing claimant is ordered to bear the costs of the arbitration,
as well as to contribute to the prevailing respondent’s
reasonable costs of representation. This practice serves the
dual function of reparation and dissuasion.
In this case, however, four factors militate against an award
of costs.
First, this is a new and novel mechanism for the resolution of
international investment disputes. Although the Claimants
have failed to make their case under the NAFTA, the Arbitral
Tribunal accepts, by way of limitation, that the legal
constraints on such causes of action were unfamiliar.
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Secondly, the Claimants presented their case in an efficient
and professional manner. Thirdly, the Arbitral Tribunal
considers that by raising issues of defective performance (as
opposed to voidness ab initio) without regard to the notice
provisions of the Concession Contract, the Naucalpan
Ayuntamiento may be said to some extent to have invited
litigation. Fourthly, it appears that the persons most
accountable for the Claimants’ wrongful behaviour would be
the least likely to be affected by an award of costs; Mr.
Goldenstein is beyond this Arbitral Tribunal’s jurisdiction,
while Ms. Baca – who might as a practical matter be the most
solvent of the Claimants – had no active role at any stage.”
“218. With respect to the first factor, investment arbitration in general
and NAFTA arbitration in particular have become so well known and
established as to diminish their novelty as dispute resolution
mechanisms. Thus, this factor is no longer applicable when considering
apportionment of costs in international investment disputes. As for the
second factor, although it may be said that the Parties here presented
their case in an efficient and professional manner, the Tribunal does not
find it a decisive factor for awarding costs in deviation of the general
principle. Finally, the third and fourth Azinian factors are not applicable
in the present case.”
“219. In the present case, the Tribunal has found that Mexico is the
successful party, except on issues of jurisdiction and/or admissibility.”
“220. Accordingly, the Tribunal finds that Mexico may in principle
recover an appropriate portion of the costs of its legal representation
and assistance. In this regard, the amount of US$ 1,502,065.84 claimed
by Mexico appears to be reasonable in light of the scope and length of
the present arbitral proceedings. Mexico did not however prevail on all
issues. In consideration of this fact, the Tribunal shall exercise its
discretion and allocate the costs on a 3⁄4-1⁄4 basis. Accordingly, the
Tribunal hereby determines that Thunderbird shall reimburse Mexico in
the amount of US$ 1,126,549.38 in respect of the costs of legal
representation for this arbitration.”
“221. As regards the fees of the arbitrators, the Arbitral Tribunal has
determined the fees of the Arbitrators to be US$405,620. The
disbursements of the arbitration, including rent of hearing rooms,
travel, hotel accommodation and court reporters amount to
US$99,632.08. Consequently, the costs of the arbitration amount to
US$505,252.08 and will be paid out of the deposits made by the
Parties. For the same reasons as expressed in the preceding paragraph,
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the costs referred to in this paragraph shall be allocated between
Thunderbird and Mexico on a 3⁄4-1⁄4 basis. Accordingly, the Arbitral
Tribunal hereby determines that Thunderbird shall reimburse Mexico in
the amount of US$126,313.02 in respect of the aforementioned deposits
made by Mexico.”
“222. FOR THE FOREGOING REASONS, the Arbitral Tribunal
renders the following decisions … 3) DETERMINES the costs of the
arbitration referred to in ¶ 221 above at US$505,252.08, and further
DETERMINES that these costs are to be shared by the Thunderbird
and Mexico on a 3/4-1/4 basis, and are to be paid out of the deposits
made by the Parties; 4) DETERMINES that Thunderbird shall
reimburse Mexico in the amount of US$ 1,126,549.38 in respect of the
costs of legal representation and US$126,313.02 in respect of the
deposits made by Mexico for the fees and disbursements of the Arbitral
Tribunal.”
WÄLDE OPINION ¶¶ 124-47: disagrees with interpretation of
UNCITRAL Rule 40 + reliance on SD Myers – suggests not
appropriate given “established jurisprudence” about role of cost-
shifting that should only be where bad-faith – focuses on cost-shifting
in favor of governments and not in favor of investors [also contains
chart about assessment of costs against investors]
96. Compañiá de Aguas NA:16 C. “Decision on Claimants win: there Amount Deferred for Deferred for “115. Each of the parties in their written submissions sought an award
del Aconquija S.A. and Bernal Jurisdiction” is jurisdiction Claimed: subsequent subsequent of costs and attorneys fees in connection with these proceedings.”
Vivendi Universal, S.A. Verea (previous decision is Not determination determination
v. Argentine Republic res judicata b/c still Available “116. During the course of the oral hearing, the Tribunal asked the
NA: G. same parties and still parties whether they sought an award of costs and legal fees to be made
November 14, 2005 Kaufmann- has French Amount now and payable now in the event of a finding in its/their favour.”
Kohler nationality, complied Received:
Compañiá de Aguas = w/ formalities, ad hoc Not “117. Counsel for Claimants confirmed that this was the case and that
France (established J. Rowley Committee’s Applicable their application for costs persisted.”
under Argentinean law) (Chair) annulment doesn’t
Vivendi = France prevent jurisdiction) “118. Counsel for the Argentine Republic requested the ability to take
instructions overnight and, at the conclusion of its Reply arguments,
Argentina/France BIT withdrew its claim for Claimants to pay costs and legal fees if the
Argentine Republic was successful on its objections. Instead, it
ICSID advised the Tribunal that it now felt it would be inappropriate for the
Tribunal to assess costs to either party, given that
“water and sewage
systems” We are faced with a case that is being looked at during a
historic stage in ICSID’s history. It’s a new submission of a
16 Information about party making appointment is not available.
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other words, whether or not they should proceed further with this case.
