"This Law sets forth the main principles of the national investment policy aiming at improving the investment climate in the republic and promoting the flow of local and foreign investment by providing investors with a fair and equitable legal regime and guaranteeing protection of their investments made into the economy of the Kyrgyz Republic."

in the event of an inconsistency between the text of the Constitution and other normative legal acts of the Kyrgyz Republic in the state language and the text in the official language, the text in the state language shall be deemed to be original."

For their part the Defendants submit that Article 6(3) is either not triggered or does not assist on the basis that it cannot replace or terminate the interpretative process applying applicable Kyrgyz principles of statutory interpretation.

(1) The Republic’s cumulative measures amount to a de facto expropriation of their investments, comprised of Stans’ ownership interest in Kutisay and its assets (including the licences), as well as Kutisay’s own interest in its assets.

(2) The Republic’s conduct also breached the "fair and equitable treatment standard’, insofar as the Republic frustrated the legitimate expectations of the Defendants and acted arbitrarily.

(1) The licences were not granted in accordance with Kyrgyz law, and were procured by bribery;

(2) The Republic was entitled to cancel the licences as a result of breaches by the Defendants of their terms; and

(3) The licences were worthless in any event.

"3. Tribunal's Analysis

217. The Tribunal begins its analysis with the wording of Article 1 (6) of the 2003 Kyrgyz Investment Law. According to paragraph 48 of the Jorupbekova Report submitted by the Respondent, "[t]he Russian word "peanu3auun" (literally, 'realization') used in this provision can mean either 'implementation' or 'sale’" By contrast, the corresponding Kyrgyz word "camyy" can only mean "sale".

218. Even if one accepts, as stated by the Respondent's expert, that the literal approach is to be used in interpreting the phrase "arising in the course of sale of investments", that does not end the matter.

219. Statutory interpretation does not limit consideration of a word or words in isolation. The context of a phrase used in a definition in a statute must be taken into consideration.

220. In the view of this Tribunal, it is not inconsistent with the statutory references of the laws of Kyrgyzstan to which the Tribunal has been referred that they be read in statutory context and in their grammatical and ordinary sense harmoniously with the scheme of the 2003 Kyrgyz Investment Law.

221. The preamble to the 2003 Kyrgyz Investment Law reads as follows:

This Law sets forth the main principles of the national investment policy aiming at improving the investment climate in the republic and promoting the flow of local and foreign investment by providing investors with a fair and equitable legal regime and guaranteeing protection of their investments made into the economy of the Kyrgyz Republic.

222. Article I of the 2003 Kyrgyz Investment Law includes in the definition of "investments":

any right to engage in activity based on a license or other permit issued by government bodies of the Kyrgyz Republic.

223. The position of the Respondent based on its interpretation would result in an absurd situation, namely that a party has a right to engage in activity based on a license but cannot exercise a right to have access to the dispute resolution provided for in the statute unless a dispute regarding the license arises immediately as the license is issued.

224. In the view of this Tribunal, context would have regard to the derivation of the word which in this case would be to the Russian word (from which the Kyrgyz version was translated), which, according to the Respondent's expert, can mean both "implementation" and "sale", and which would then make both common and grammatical sense when read in the context of investment dispute.

225. Even if one were to accept the literal or plain meaning approach of the word "sale" within the definition of "investment dispute", it can include ongoing or continuing activity as opposed to past activity.

226. A "sale" that has ongoing terms and conditions with continuing rights and obligations on the part of the parties can still be considered an investment within the 2003 Kyrgyz Investment Law.

227. The Tribunal does not accept the position advanced by the Respondent, which puts forward an unduly restrictive definition of the word "sale" that, when considered in context, is not in accord with the widely accepted norms of statutory interpretation even when literal meaning is considered.

228. If the words "arising in the course of sale" are interpreted in the same way in the context of the 2003 Kyrgyz Investment Law and in harmony with the provisions of the Arbitral Tribunals Law to provide a mechanism to resolve disputes as between investors and others, including the State, as provided for in Article 18(2), there is no need to involve the provisions of the Law on Normative Legal Acts to consider the priority or "originality" of the Kyrgyz version of Article 1(6).

229. In written submissions following the oral hearing in this matter on 23 September 2016, counsel for the Respondent elaborated on their position that the word "sale" is to prevail over the word "implementation" based on Article 6(3) of the Law on Normative Legal Acts.

230. The Tribunal has been provided with no authority for the proposition that, having regard to the meaning of a word in a statute even applying the plain or literal meaning, one is to ignore the context of the statute, particularly its stated purpose.

231. In the view of this Tribunal, the plain or a literal meaning of a single word in a statute should not be confined to the word itself in isolation.

232. In order to provide meaning, even plain or literal meaning, some context is appropriate. In this case context comes from:

1) the context of the preamble of the statute to be among other things facilitating equitable treatment as between investors in the State;

2) the context of the definition of "investment" in Article l, which can include a license;

3) the context of Article 1(6) as part of dispute resolution;

4) the fact that, while there is no conclusive evidence on the point based on the material filed, it appears likely that the word as it appears in the Kyrgyz language version originated from translation from the Russian language where the original word encompassed both "implementation" and "sale", neither of which words necessarily requires a restricted meaning.With the benefit of these contextual considerations, the Tribunal concludes that it does not lack jurisdiction as a result of the application of Article 1(6) of the 2003 Kyrgyz Investment Law to consider the merits of the dispute.

233. Given this conclusion, it is not necessary to review in detail the submissions of the Parties regarding various arbitral decisions involving the Kyrgyz Republic. Suffice it to say that the Tribunal has not been apprised of a previous decision consistent with the position now advanced by counsel for the Respondent in this case.

234. Given the conclusion above, it is not necessary to deal further with the submission regarding the role of provisions of the Law on Normative Legal Acts or indeed the provisions of the Arbitral Tribunals Law referred to.

235. As well, given the conclusion above, it is not necessary to find as submitted by the Claimants that the use of the word "sale" was either a drafting error or that the Russian or English versions of the 2003 Kyrgyz Investment Law are those that are more likely to be relied upon by foreign investors."

"45. Issues of foreign law are issues of fact. However, they are a special kind of fact. The Court is entitled to apply its own legal knowledge to determining the issue. However, it is confined to materials on foreign law which are exhibited to an expert report: Bumper Development Corporation v Commissioner of Police of the Metropolis [1991] 1 WLR 1362, 1369B.

46. Where evidence of foreign law is uncontradicted, the Court should not reject it unless it is patently absurd: Bumper Development at 1369B.

47. The Court may not ignore evidence of foreign law on the basis that a conclusion which is not supported by the evidence appears more coherent: Harley v Smith [2010] EWCA Civ 78."

"(1) Foreign law a fact

9-002

The principle that, in an English court, foreign law is a matter of fact has long been well established: it must be pleaded, and it must be proved...

…

(3) Mode of proof

Expert evidence

9-013

It is now well settled that foreign law must, in general, be proved by expert evidence. Foreign law cannot be proved merely by putting the text of a foreign enactment before the court, nor merely by citing foreign decisions or books of authority. Such materials can only be brought before the court as part of the evidence of an expert witness, since without his assistance the court cannot evaluate or interpret them.

…

Use of foreign sources

9-015

An English court will not conduct its own researches into foreign law; in the common law system, "the trial is not an inquisition into the content of relevant foreign law any more than it is an inquisition into other factual issues that the parties tender for decision by the court". But if an expert witness refers to foreign statutes, decisions or books, the court is entitled to look at them as part of his evidence. But the court is not entitled to go beyond this: thus if a witness cites a passage from a foreign law-book he does not put the whole book in evidence since he does not necessarily regard the whole book as accurate. Similarly, if the witness cites a section from a foreign code or a passage from a foreign decision the court will not look at other sections of the code or at other parts of the decision without the aid of the witness, since they may have been abrogated by subsequent legislation.

9-016

If the evidence of the expert witness as to the effect of the sources quoted by him is uncontradicted, "it has been repeatedly said that the court should be reluctant to reject it," and it has been held that where each party’s expert witness agrees on the meaning and effect of the foreign law, the court is not entitled to reject such agreed evidence, at least on the basis of its own research into foreign law. But while the court will normally accept such evidence it will not do so if it is "obviously false," "obscure," "extravagant," lacking in obvious "objectivity and impartiality", or "patently absurd," or if "he never applied his mind to the real point of law", or if "the matters stated by [the expert] did not support his conclusion according to any stated or implied process of reasoning"; or if the relevant foreign court would not employ the reasoning of the expert even if it agreed with the conclusion. In such cases the court may reject the evidence and examine the foreign sources to form its own conclusion as to their effect. Or, in other words, a court is not inhibited from "using its own intelligence as on any other question of evidence". Similarly, the court may reject an expert’s opinion as to the meaning of a foreign statute if it is inconsistent with the text or the English translation and is not justified by reference to any special rule of construction of the foreign law. It should, however, be noted in this connection that quite simple words may well be terms of art in a foreign statute.

9-017

If the evidence of several expert witnesses conflicts as to the effect of foreign sources, the court is entitled, and indeed bound, to look at those sources in order itself to decide between the conflicting testimony...

…

9-018

Since the effect of foreign sources is primarily a matter for the expert witness, it is desirable, when proving a foreign statute, also to obtain evidence as to its interpretation...

…

9-019

The function of the expert witness in relation to the interpretation offoreign statutes must be contrasted with his function in relation to the construction of foreign documents. In the former case, the expert tells the court what the statute means, explaining his opinion, if necessary, by reference to foreign rules of construction. In the latter case, the expert merely proves the foreign rules of construction, and the court itself, in the light of these rules, determines the meaning of the documents.

…

(4) Burden of proof

9-025

The burden of proving foreign law lies on the party who bases his claim or defence on it. If that party adduces no evidence, or insufficient evidence, of the foreign law, the court applies English law. This principle is sometimes expressed in the form that foreign law is presumed to be the same as English law until the contrary is proved. But this mode of expression has given rise to uneasiness in certain cases. Thus in one case the court refused to apply the presumption of similarity where the foreign law was not based on the common law, and in others it has been doubted whether the court was entitled to presume that the foreign law was the same as the statute law of the forum. In view of these difficulties it is better to abandon the terminology of presumption, and simply to say that where foreign law is not proved, the court applies English law."

"(2) "If the evidence of several expert witnesses conflicts as to the effect of foreign sources, the court is entitled, and indeed bound, to look at those sources in order itself to decide between the conflicting testimony:" Dicey & Morris, vol. 1, p. 223. See Earl Nelson v. Lord Bridport, 8 Beav. 527, 537, per Lord Langdale M.R.:

"Such I conceive to be the general rule; but the cases to which it is applicable admit of great variety. Though a knowledge of foreign law is not to be imputed to the judge, you may impute to him such a knowledge of the general art of reasoning, as will enable him, with the assistance of the bar, to discover where fallacies are probably concealed, and in what cases he ought to require testimony more or less strict. If the utmost strictness were required in every case, justice might often have to stand still; and I am not disposed to say, that there may not be cases, in which the judge may, without impropriety, take upon himself to construe the words of a foreign law, and determine their application to the case in question, especially, if there should be a variance or want of clearness in the testimony.""

"The Convention of 1956 is in two languages, English and French, each text being equally authentic. The English text alone appears in the Schedule to the Act of 1965 and is by that Act (section 1) given the force of law. Moreover the contract of carriage seems to have incorporated contractually this English text. It might therefore be arguable (though this was not in fact argued) - by distinction from a case where the authentic text is (for example) French and the enacted text an English translation - that only the English text ought to be looked at. In my opinion this would be too narrow a view to take, given the expressed objective of the Convention to produce uniformity in all contracting states. I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation: Stag Line Ltd. v. Foscolo, Mango and Co. Ltd. [1932] A.C. 328, per Lord Macmillan, at p. 350. Moreover, it is perfectly legitimate in my opinion to look for assistance, if assistance is needed, to the French text. This is often put in the form that resort may be had to the foreign text if (and only if) the English text is ambiguous, but I think this states the rule too technically. As Lord Diplock recently said in this House the inherent flexibility of the English (and, one may add, any) language may make it necessary for the interpreter to have recourse to a variety of aids: Carter v. Bradbeer [1975] 1 W.L.R. 1204, 1206. There is no need to impose a preliminary test of ambiguity.

My Lords, I would not lay down rules as to the manner in which reference to the French text is to be made. It was complained - by reference to the use of the French text made by Roskill L.J. and Lawton L.J. - that there was no evidence as to the meaning of the French text, and that the Lords Justices were not entitled to use their own knowledge of the language. There may certainly be cases when evidence is required to find the exact meaning of a word or a phrase; there may be other cases when even an untutored eye can see the crucial point (cf. Corocraft Ltd. v. Pan American Airways Inc. [1969] 1 Q.B. 616 (insertion of "and" in the English text)). There may be cases again where a simple reference to a good dictionary will supply the key (see per Kerr J. in Fothergill v. Monarch Airlines Ltd. [1978] Q.B. 108, on "avarie"). In a case, such as I think the present is, when one is dealing with a nuanced expression, a dictionary will not assist and reference to an expert might also be unhelpful, for the expert would have to direct his evidence to a two-text situation rather than simply to the meaning of words in his own language, so that he would be in the same difficulty as the court. But I can see nothing illegitimate in the court looking at the two texts and reaching the conclusion that both are expressed in general or perhaps imprecise terms, so as to justify rejection of a narrow meaning."

(my emphasis)

"28 We accept Mr Greenwood's submission that the object and purpose of a BIT (including this BIT) is to provide effective protection for investors of one state (here OEPC) in the territory of another state (here Ecuador) and that an important feature of that protection is the availability of recourse to international arbitration as a safeguard for the investor. In these circumstances it is permissible to resolve uncertainties in its interpretation in favour of the investor: see e.g. the views of the arbitrators in paragraph 116 of their award in SGS v Philippines (2004) 8 ICSID Reports 515."

"23 The Court of Appeal in Ecuador v. Occidental (No.1) [2006] QB 432 at §§14-20 and 32-35 described the nature of the legal relationship created and the rights generated by BITs. Under these treaties investors are given substantive and procedural rights, which may be pursued in their own right rather than by the State on their behalf. BITs give rise to consensual agreements to arbitrate between an investor and a State, arising out of (but distinct from) the treaty itself. In these circumstances it seems to me plain that in interpreting a BIT the Court is entitled to take into account that one of the objects of the treaty was to confer rights on an investor, including a valuable right to arbitrate. If the suggestion made in Ecuador v. Occidental (No.2) at §28, that it is permissible to resolve uncertainties in the interpretation of a BIT in favour of an investor, who is not a party to the treaty, is said to amount to a rule of interpretation, the suggestion goes rather further than appears to be justified in International law"

"I readily accept Mr Eder's submission that the starting point of the process of interpretation must be the language of the contract. But Mr Eder went further and said that, if the meaning of the words is clear, as he submitted it is, the purpose of the contractual provisions cannot be allowed to influence the court's interpretation. That involves approaching the process of interpretation in the fashion of a black-letter man. The argument assumes that interpretation is a purely linguistic or semantic process until an ambiguity is revealed. That is wrong. Dictionaries never solve concrete problems of construction. The meaning of words cannot be ascertained divorced from their context. And part of the contextual scene is the purpose of the provision. In the field of statutory interpretation the speeches of the House of Lords in Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 showed that the purpose of a statute, or part of a statute, is something to be taken into account in ascertaining the ordinary meaning of words in the statute: see Viscount Simonds' speech, at p. 461, and Lord Somervill of Harrow's speech, at p. 473. It is true that such a purpose may also be called in aid at a later stage in the process of interpretation if the language of the statute is ambiguous but it is important to bear in mind that the purpose of the statute is a permissible aid at all stages in the process of interpretation. In this respect a similar approach is applicable to the interpretation of a contractual text. That is why in Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 Lord Wilberforce, speaking for the majority of their Lordships, made plain that in construing a commercial contract it is always right that the court should take into account the purpose of a contract and that presupposes an appreciation of the contextual scene of the contract."

"My Lords, the contention of the Attorney-General was, in the first place, met by the bald general proposition that where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble, and a large part of the time which the hearing of this case occupied was spent in discussing authorities which were said to support that proposition. I wish at the outset to express my dissent from it, if it means that I cannot obtain assistance from the preamble in ascertaining the meaning of the relevant enacting part. For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use "context" in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy."

Whilst Lord Somervell stated at pages 473-474:-

"A question of construction arises when one side submits that a particular provision of an Act covers the facts of the case and the other side submits that it does not. Or it may be agreed it applies, but the difference arises as to its application. It is unreal to proceed as if the court looked first at the provision in dispute without knowing whether it was contained in a Finance Act or a Public Health Act. The title and the general scope of the Act constitute the background of the contest. When a court comes to the Act itself, bearing in mind any relevant extraneous matters, there is, in my opinion, one compelling rule. The whole or any part of the Act may be referred to and relied on. It is, I hope, not disrespectful to regret that the subject was not left where Sir John Nicholl left it in 1826. "The key to the opening of every law is the reason and spirit of the law - it is the 'animus imponentis,' the intention of the law-maker, expressed in the law itself, taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connexion with its whole context - meaning by this as well the title and preamble as the purview or enacting part of the statute." (Sir John Nicholl in Brett v. Brett. He proceeds in the next sentence to attach in that case special importance to the preamble. We were referred to other statements minimizing the importance of the preamble."

"10 In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. In this area as in the area of contractual construction, "the notion of words having a natural meaning" is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391 c, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme."

At the risk over over-repetition, however, what is permissible as a matter of Kyrgyz statutory interpretation is to be found from a consideration of the expert evidence on Kyrgyz law, and there is conflicting evidence from the experts as to the extent to which the statutory context and statutory purpose can be had regard to as a matter of Kyrgyz statutory interpretation. I will accordingly need to make findings on that.

"8.5 Literal interpretation is widely used in Kyrgyz law not just for interpretation of legal provisions, but also for contracts as pursuant to Article 392 of the Civil Code while interpreting the terms of the contract the court shall take into account the literal meaning of the words and expressions.

8.6 If the literal meaning of the contract is not clear, the Civil Code prescribes the courts to determine such meaning taking into account "all relevant circumstances". No such wider considerations are prescribed for or apply to interpretation of legal acts by the courts".

"64. I agree that the Kyrgyz practice in statutory interpretation is to use the plain (or literal) meaning to understand what the drafters intended by using that law. But the interpretation is not limited to identifying the plain or literal meaning. One further analyses it to identify the drafters’ intentions.

65. There are also other tools for identifying that intention: as Ms Jorupbekova further notes (para 9.10), "a word should not be considered in isolation when interpreting meaning". One must analyse the surrounding statutory context and the statutory purpose in order to understand the lawmaker’s intentions.

66. This might require interpreting a provision of a normative legal act consistently with a provision in another normative legal act, in order to ensure that the law is coherent and consistent. This is provided for in Article 31(5) of the 2009 Normative Legal Acts Law, which provides that normative legal acts should be interpreted "in accordance with the Constitution, constitutional laws, codes and laws."

(my emphasis)

"I acknowledge that a word should not be considered in isolation when interpreting meaning. By this I meant that words should not be read singularly, in isolation, as each word is part of a sentence, and article and a law"

(my emphasis)

(1) Words should not be read singularly in isolation, but rather

(2) as part of (a) a sentence, (b) an article, and (c) a law (which here must be the 2003 Investment Law).

"However, a word shall be understood as it literally means and there shall not be attempts to interpret it differently than its literal meaning, or to negate its literal meeting, by reference to the law’s perceived purpose or context. One must read the whole sentence and consider the literal meaning of the words used."

"230. The Tribunal has been provided with no authority for the proposition that, having regard to the meaning of a word in a statute even applying the plain or literal meaning, one is to ignore the context of the statute, particularly its stated purpose.

231. In the view of this Tribunal, the plain or a literal meaning of a single word in a statute should not be confined to the word itself in isolation.

232. In order to provide meaning, even plain or literal meaning, some context is appropriate."

"8.11 In my opinion preambles to the normative legal acts shall not be taken into account when interpreting the normative legal act by the courts, unless the preamble itself is the subject of interpretation. Interpreting a provision of law based on the preamble or in the context of the preamble of the law will not meet the requirement of literal interpretation of the law, especially taking into account that the preamble to the law is "an independent, not binding, section of the normative legal act containing information about reasons, conditions, and purpose of its adoption (issuance) sets out the position. Inclusion of binding provisions in the preamble is prohibited."

(my emphasis)

"84. I cannot agree with the assertion made by Ms Jorupbekova to the effect that "preambles shall not be taken into account in interpreting certain provisions of the law."

85. As stated in Article 12(2) of the Law on Normative Acts, "The preamble (introduction) is an independent, non-mandatory part of the normative legal act, which contains information about the reasons, conditions, and purpose of adoption (publication). It is not allowed to include the legal prescriptions in the preamble."

86. This provision means that the inclusion of the Preamble in a law is not mandatory, meaning that some laws include Preambles, but most laws do not. This provision also makes it clear that a Preamble must contain information about the reasons, conditions and purposes of the adopted law. Thus, if indeed there is a Preamble in the law, the lawmaker considers it necessary and important to identify and to emphasise the reasons and purposes of the law. On that basis, the norms contained in the law must correspond with the purposes of the laws and must be directed towards their achievement."

"Article 18. Settlement of Investment Disputes

1. The investment dispute shall be settled in accordance with any applicable procedure preliminarily agreed upon by an investor and the authorized government bodies of the Kyrgyz Republic which does not preclude the investor from seeking other legal remedies in accordance with Kyrgyz laws.

2. Failing such agreement, the investment dispute between the authorized government bodies of the Kyrgyz Republic and the investor shall be settled by consultations between the parties. If the parties do not settle amicably within 3-month period from the day of the first written request for such consultation, any investment dispute between the investor and the government bodies of the Kyrgyz Republic shall be settled in judicial bodies of the Kyrgyz Republic, unless in case of a dispute between the foreign investor and the government body, one of the parties requests the dispute to be considered in accordance with one of the following procedures by submitting the dispute to:

a) the International Center for Settlement of Investment Disputes (ICSID) under the Convention on the Settlement of Investment Disputes between States and Citizens of Other States or the rules regulating the use of additional remedies for conducting the hearings by the Secretariat of the Center; or

b) arbitration or an international temporary arbitral tribunal (commercial court) formed in accordance with the arbitration rules of the UN Commission on International Trade Law.

3. In the event that an investment dispute is submitted to arbitration mentioned in sub-points "a" and "b" of point 2 of this Article, the Kyrgyz Republic shall waive its right to invoke internal administrative procedures or judicial proceedings prior to submitting the dispute to international arbitration.

4. Any investment dispute between the foreign and domestic investors shall be considered by the judicial bodies of the Kyrgyz Republic unless the parties agree on any other dispute settlement procedure, including national and international arbitration.

5. Disputes between foreign investors and individuals and legal entities of the Kyrgyz Republic may be settled by an arbitral tribunal of the Kyrgyz Republic, as well as a foreign arbitral tribunal, by agreement of the parties. Failing such agreement, the disputes will be settled in a manner provided by Kyrgyz laws."

(my emphasis)

The Kyrgyz version of Article 18 is not in evidence, and no point is taken by the Republic by reference to it.

"1. "Investments" means tangible and intangible contributions of all kinds of assets, owned or controlled directly or indirectly by an investor, into objects of economic activity with the aim of deriving a profit and (or) achieving another beneficial result in the form of:

- money;

- movable and immovable property;

- property rights (mortgages, liens, pledges and others);

- stock and other forms of participation in a legal entity;

- bonds and other debt obligations;

- non-property rights (including intellectual property rights including goodwill, copyrights, patents, trade marks, industrial designs, technological processes, trade names and know-how);

- any right to engage in activity based on a license or other permit issued by government bodies of the Kyrgyz Republic.

- Concessions based on laws of the Kyrgyz Republic including concessions to prospect for, explore, develop or exploit natural resources of the Kyrgyz Republic;

- profit or income derived from investments and re-invested in the Kyrgyz Republic;

- other forms of investment not prohibited by the laws of the Kyrgyz Republic.

3. "Foreign investor" means any individual or legal entity, other than domestic investor, investing in the economy of the Kyrgyz Republic."

The Kyrgyz version of Article 1 is not in evidence, and no point is taken by the Republic by reference to it.

"This Law sets forth the main principles of the national investment policy aiming at improving the investment climate in the republic and promoting the flow of local and foreign investment by providing investors with a fair and equitable legal regime and guaranteeing protection of their investments made into the economy of the Kyrgyz Republic."

(1) First, and despite acknowledging in her second report that a word is not to be construed in isolation but as part of a sentence, an article and a statute, Ms Jorupbekova fails so to construe the words of Article 1(6) in the context of Article 1, Article 18 and the Preamble (on both the Russian and Kyrgyz versions of Article 1(6)), yet on her own evidence she should have construed the word as part of a sentence, an article and a statute. Indeed, she does not go beyond reading the word in the Kyrgyz version singularly, in isolation (an approach she herself disavows at paragraph 4.3 of her second report). This undermines fundamentally the weight to be given to her evidence, as all relevant principles of Kyrgyz statutory interpretation identified by her, were not considered, and applied by her.

(2) If Ms Jorupbekova had done so, it would have been readily apparent from the Russian version, and the Kyrgyz version viewed in the context of the 2003 Investment Law (in particular the Preamble and Article 18) and from the discernable statutory intention based on the purpose of the statutory provisions, as identified by Ms Galliamova from the Russian text, Article 18 and the Preamble, that "investment dispute", whether in Russian or Kyrgyz is to be interpreted as a dispute arising in the course of the implementation of investments (as Ms Galliamova concludes, and I so find).

(3) Thirdly, and for the reasons that I have already given, I have rejected Ms Jorupbekova’s evidence that regard may not be had to context or purpose when interpreting what a word or phrase within a statute means as a matter of Kyrgyz statutory interpretation. Not only does this undermine Ms Jorupbekova’s evidence, and her relative credibility in consequence, but it means that she has never undertaken the exercise of statutory interpretation that I have found should have been undertaken as a matter of Kyrgyz statutory interpretation by reference to the context of purpose of the statute (as identified by Ms Galliamova).

(4) Fourthly, Ms Jorupbekova’s approach to interpretation is purely grammatical, and whatever language one is concerned with, as Steyn LJ rightly said in Arbuthnott v Fagan "Dictionaries never solve concrete problems of construction. The meaning of words cannot be ascertained divorced from their context. And part of the contextual scene is the purpose of the provision." This has nothing to do with English principles of statutory interpretation, it is part of the exercise performed by any qualified translator or linguist, and for the reasons I have found it also reflects Kyrgyz principles of statutory interpretation which do have regard to context and purpose in identifying statutory intent.

(5) Fifthly, Ms Galliamova has greater experience of statutory drafting, and with that, no doubt great experience of Kyrgyz statutory interpretation. I found her evidence to be credible, and her conclusions to be justified by reference to the principles of Kyrgyz statutory interpretation that she has identified and applied, having regard to the translations that are before me of the 2003 Investment Law, and its apparent purpose by reference to the Preamble, Article 1 and Article 18.

(6) As a reality check (and only as a reality check) the conclusions of Ms Galliamova and the meaning of Article 1(6) identified by Ms Galliamova, give Article 1(6) a meaning and effect which results in all investment disputes within the scope of the 2003 Investment Law being subject to the dispute resolution regime in Article 18 (for both foreign and domestic investors) in relation to all investments (within Article 1) whereas on Ms Jorupbekova’s interpretation the scope of Article 18 would be very narrow indeed, and would only be available in a very small number of scenarios, which could be contrasted with the breadth of the Preamble, and the width of range of investments in Article 1, which would seem an unlikely statutory intent (having regard to admissible context and purpose). As Mr. Montagu-Smith candidly acknowledged in the context of the Republic’s interpretation of the Kyrgyz text compared to the Russian text, "it’s an oddity and it’s a curiosity, and in the sense that something has gone wrong on my case" though he pointed out that this would not be the first or last time this has happened in Kyrgyz law. I bear his qualification well in mind, but I consider that one starts from the proposition that one would expect, as a matter of statutory intent, that two language texts of a statute are intended to have the same meaning. Expert evidence which leads to the conclusion that they do is consistent with that expectation, and readily accepted if justified by the applicable principles of statutory interpretation and their application to the facts (as it is in the present case by reference to the evidence of Ms Galliamova).

"(2) "If the evidence of several expert witnesses conflicts as to the effect of foreign sources, the court is entitled, and indeed bound, to look at those sources in order itself to decide between the conflicting testimony:" Dicey & Morris, vol. 1, p. 223. See Earl Nelson v. Lord Bridport, 8 Beav. 527, 537, per Lord Langdale M.R.:

"Such I conceive to be the general rule; but the cases to which it is applicable admit of great variety. Though a knowledge of foreign law is not to be imputed to the judge, you may impute to him such a knowledge of the general art of reasoning, as will enable him, with the assistance of the bar, to discover where fallacies are probably concealed, and in what cases he ought to require testimony more or less strict. If the utmost strictness were required in every case, justice might often have to stand still; and I am not disposed to say, that there may not be cases, in which the judge may, without impropriety, take upon himself to construe the words of a foreign law, and determine their application to the case in question, especially, if there should be a variance or want of clearness in the testimony.""

"4. A proper legal procedure means that investors shall have a right to prompt consideration of the case based on the complaint about the impact of the expropriation, including the evaluation of their investments and payment of compensation in accordance with the provisions of this Article, by a judicial body or any other competent authority of the Kyrgyz Republic without prejudice to the procedure for compensation of damages to investors pursuant to Article 18 hereo f"

(my emphasis)

"... in the event of an inconsistency between the text of the Constitution and other normative legal acts of the Kyrgyz Republic in the state language and the text in the official language, the text in the state language shall be deemed to be original."

"101. I have also been asked to give my opinion on the meaning of the words "in the course of" which are contained in Article 1(6) of the 2003 Investment Law.

102. In my understanding, the preposition "in the course of" in the definition of "investment dispute" must be considered in the context of the phrase, "arising in the course of realisation of investments", which, in my view, means "connected to the implementation of investments". This reflects the essence of the definition of "investment dispute" which was assigned to the term during the drafting stage of the law."

The Defendants’ case is that if the words "in the course of" mean, "connected to" they are wide enough to encompass the events the subject matter of the arbitration.