transfer to the Concessionaire the right to use and manage the entire state shareholding of 87.9 % of PNPZ JSC and to cause the right to possess and manage PNPZ to be transferred. The issue of a power of attorney by the Department to the Concessionaire shall constitute the transfer of said rights.
• The expiry of the five year period, unless the Parties agree on an extension;
• by mutual agreement of the Parties;
• if the Concessionaire fails to comply with its obligations to make investments, and is given a 30 days’ written notice, but fails to eliminate the reasons described as grounds for the termination before the end of the 30 days’ period.
7.2 In the event of the premature termination of this Agreement, the culpable party must reimburse the other Party for all the losses suffered by such Party as a result of such termination....
7.3 In the event of the unilateral termination of this Agreement by the Department, all the amounts invested by the Concessionaire [etc.]... must be fully refunded nothin one month as of the date of the termination of the Agreement.
‘The Department guarantees:
4.2.6 unconditional compliance with Chapter II of the Law of the Republic of Kazakhstan ‘On Foreign Investment’ dated 27 December 1994, during the entire period of validity of the Agreement. "
7.1 In the event of a failure to perform, or the improper performance of, their obligation thereunder, the Parties shall be held liable in accordance with legislation of the Republic of Kazakhstan and the provisions of international law.
CLAUSE 4. RIGHTS AND OBLIGATIONS OF THE PAR TIES
4.2 Obligations and guarantees of the Department The Department undertakes to:
4.2.4 Give the Concessioner a priority right to buy out the state shareholding of AO shares (or a portion thereof).
CLAUSE 12. SPECIAL CONDITIONS
12.3 Following revaluation of the authorized capital stock on the basis of results of an independent auditing expert examination, the volume of the authorized capital stock shall be changed and the shares value shall be fixed to be used as the base for selling the shares to the Concessioner. The authorized capital stock shall be changed within 6 months after the date when this Contract comes into force.
CLAUSE 4. RIGHTS AND OBLIGATIONS OF THE PARTIES
4.2 Rights and guarantees of the Department The Department undertakes to:
4.2.4 vest the Concessionaire with the right of first refusal in respect of the state shareholding in [the Refinery] (or any part thereof) if a decision is taken on the sale (privatization) thereof...
CLAUSE 12. SPECIAL CONDITIONS
12.3 Following the charter fund having been re-evaluated based upon the results of an independent audit examination, the amount of the charter capital shall be changed. Such change shall be made within 6 months as of the effective date of this Agreement.
3. For its claim for lost profits [Claimant-investor] appears to be referring to Clause
4.2.4 of the Agreement, stating that:
The Department undertakes to:... vest the concessionaire with the right of first refusal in respect of the shareholding in [the Refinery](or any part thereof) if a decision is taken on the sale (privatisation) thereof.
Apart from a remark in... [Claimant-investor’s] the Statement of Claim that "It was [Claimant-investor]’s understanding that [Respondent- Kazakhstan]’s intention was to privatise [the Kazakh Company] and to do so within a time period of approximately 18 months, " the Tribunal notes-without taking any position at this time on the relevance thereof-that [Claimant-investor] cannot be found to have documented or explained the further basis for its expectation that the option to buy the shares in [the Kazakh Company] would materialize.
If this is relevant for [Claimant-investor]’s claim for lost profit, [Claimant-investor] is invited to submit further documentation or explanation thereof not later than....
• Mandatory deliveries of oil products to the state owned agricultural companies.
• The court proceedings between [Company X] and [the Kazakh Company] which resulted in the transfer of ownership of a substantial part of the property of [the Kazakh Company] to (Company X].
• The Refusal in the spring of 2000 to extend the Power of Attorney.
• The proceedings initiated and pursued by the General Prosecutor resulting in the, procedurally and materially unlawful termination of the Agreement.
• The subsequent re-transfer of the management of [the Kazakh Company] from [Claimant-investor] to [Respondent-Kazakhstan],
Article 7. Guarantees Against Expropriation
1. Foreign investments may not be nationalized, expropriated, or subjected to other measures having the same consequences as nationalization and expropriation (hereinafter: expropriation) [the Tribunal’s note], except for instances when such expropriation is effectuated in social interests in compliance with proper legal order and is done without discrimination and with payment of prompt, adequate and effective contributory compensation.
2. Contributory compensation must be equal to the fair market value of the investment being expropriated at the moment when the expropriation thereof became known to the investor.
3. Contributory compensation must include interest...
1. The claims of [Claimant—investor], brought under the arbitration clause of the Agreement... are dismissed.
2. The claims of [Claimant-investor], brought under the arbitration of the Foreign Investment Law of 27 December 1994 of the Republic Kazakhstan, are dismissed.
3. arbitrators and the Arbitration Institute shall be entiled to fees and compensation for expenses...
a) Arbitrators’ fees:
b) Arbitrators’ expenses
c) The Arbitration Institute fee
4. As between the Parties, [Claimant—investor] shall be responsible for 50 per cent and [Respondent-Kazakhstan] shall be responsible for 50 per cent of the amounts due in this arbitration to the arbitrators and the Arbitration Institute.
In relation to the arbitrators and the Arbitration Institute, the Parties shall be jointly and severally liable for the payment of the amounts due to the arbitrators and the Arbitration Institute.