|Frequently Used Abbreviations and Acronyms|
|ASEP||Ente Regulador de los Servicios Públicos|
|BIT||Treaty between the United States of America and the Republic of Panama Concerning the Treatment and Protection of Investments, signed on October 27, 1982, as amended on June 1, 2000.|
|Claimants’ Memorial||Claimants’ Memorial on the Merits, August 14, 2015.|
|CL-||Claimants’ Legal Authority.|
|ICSID, or the Centre||The International Centre for Settlement of Investment Disputes.|
|ICSID AFR||ICSID Administrative and Financial Regulations.|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965.|
|ICSID Rules, or Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings.|
|MOU||Memorandum of Understanding of December 17, 2010, between TGGE and Mr. Lisac.|
|PTA||Partnership and Transfer Agreement of September 30, 2011, between TGGE and Mr. Lisac.|
|Request or RFA||Request for Arbitration, September 19, 2013.|
|Respondent’s Memorial||Respondent’s Memorial on Jurisdiction, December 18, 2015.|
|RL-||Respondent’s Legal Authority.|
|TGGE||Transglobal Green Energy, LLC, a company incorporated under the laws of the State of Texas, U.S.A., with its seat in Houston.|
Attending on behalf of Claimants
Mr. David Weiss, King & Spalding LLP
Mr. Enrique Reyes, Transglobal Green Energy, LLC
Mr. Jeffrey Carlitz, Transglobal Green Energy, LLC
Attending on behalf of Respondent
Mr. Whitney Debevoise, Arnold & Porter LLP Ms. Gaela K. Gehring Flores, Arnold & Porter LLP Mr. Pedro Soto, Arnold & Porter LLP
Ms. Natalia Giraldo-Carrillo, Arnold & Porter LLP
Ms. Laura Castro, Legal Director, Embassy of the Republic of Panama
Observing via video conference on behalf of Claimants
Mr. Roberto Aguirre Luzi, King & Spalding LLP
Mr. Don Stringham, CFO Transglobal Green Energy, LLC
Observing via video conference on behalf of Respondent
Ms. Betzy Castro, Jefa de Gabinete, Viceministerio de Economía, Ministerio de Economía y Finanzas
Mr. Roberto Meana, Director Ejecutivo, Autoridad de los Servicios Públicos Ms. Noemi Tile, Directora Asesoría Legal, Autoridad de los Servicios Públicos Mr. Victor Urrutia, Secretario Nacional de Energía
Mr. Aristides Valdonedo, Gerente de Metas, Ministerio de Economía y Finanzas Ms. Mariel Núñez, Gerencia de Metas, Ministerio de Economía y Finanzas
"1. To determine the jurisdictional objections of Respondent as a preliminary question and, hence, to suspend the proceedings on the merits.
2. To fix a time limit of 60 days as of the date of this order for Claimants to file their Counter-Memorial on Jurisdiction to the extent Claimants wish to supplement their submissions on jurisdiction already in the record of the proceeding.
3. To confirm that, as provided in Procedural Order No. 1, the Tribunal will decide whether another round of submissions on jurisdiction is warranted after it lias had the opportunity to review Claimants’ Counter-Memorial on Jurisdiction."
"a. To deny the Suspension Request.
b. That the Tribunal is ready to decide the Respondent’s objections to its jurisdiction on the basis of the current written record.
c. To invite the Parties to inform the Tribunal by no later titan April 4, 2016 whether they agree to limit the proceeding on jurisdiction to the written phase.
d. If the Parties do not agree to limit the proceeding on jurisdiction to the written phase, to consult with the Parties on potential dates for the hearing on Respondents' objections.
e. To reserve its position on the allocation of costs related to the Suspension Request."
III. JURISDICTIONAL OBJECTIONS
5.1) and the power plant be completed and commence operations within 24 months (Clause
5.2). The State had the right to terminate the Concession Contract if the concessionaire failed to meet these deadlines (Clauses 26.1 and 26.2).5
"[A] vehicle for the legal rights and property rights contained therein—it does not necessarily represent ownership or control of an investment in the respondent State. As a result, such an agreement between two parties is not of itself an "investment;" rather only the rights contained therein may constitute an "investment" should they meet the definition of "investment" under the ICSID Convention and the relevant BIT".17
According to Respondent, since the rights subject of the PTA are not themselves "investments" within the meaning of the ICSID Convention or the BIT, it follows that the PTA itself is not an investment.
"the purpose of our entry into this arbitration to begin with was to have the Bajo de Mina concession in TGGE's name, we felt it would not be in the best interest for TGGE to expend more money, time or resources in the arbitration at this moment since we believe the ruling will now be executed. Instead we consider that with this recent Supreme Court ruling by the plenum, we should then achieve justice in Panama through the contract we have with our Panamanian Partner. TGGE again requests a suspension of the proceedings from the Tribunal until the Supreme Court Plenary of Panama orders are executed or resolved in Panama. Upon execution we will terminate these proceedings."46
"If it were accepted that the Tribunal lias jurisdiction to decide Phoenix's claim, then any pre-existing national dispute could be brought to an ICSID tribunal by a transfer of the national economic interests to a foreign company in an attempt to seek protections under a BIT. Such transfer from the domestic arena to the international scene would ipso facto constitute a "protected investment" - and the jurisdiction of BIT and ICSID tribunals would be virtually unlimited. It is the duty of the Tribunal not to protect such an abusive manipulation of the system of international investment protection under the ICSID Convention and the BITs. It is indeed the Tribunal's view that to accept jurisdiction in this case would go against the basic objectives underlying the ICSID Convention as well as those of bilateral investment treaties."47
The procedural developments related to the pursuit by Mr. Lisac of the execution of the Third Chamber Judgment in Panama prompted Claimants twice to request the suspension of this arbitration. Both suspension requests reveal the intimate relationship of the ongoing court proceedings in Panama and this proceeding, and confirm the intent of Mr. Lisac to internationalize his domestic dispute with Panama. On April 21, 2015, the Third Chamber of the Supreme Court ordered the execution of its judgment of November 11, 2010. This prompted Claimants to attempt to justify their application for suspension by reference to Mr. Lisac's request to ASEP
"to confirm if intend [sic] to comply with this final judgment from Panama's highest court, and made himself available to collaborate in this process and are working with their local partner to make sure the concession is transferred in the most efficient manner."
These developments are at the core of Claimants' treaty claims and affect the preparation of Claimants’ case in this arbitration".
"The Supreme Court lias once again ordered the execution of its own judgment of 11 November 2010. As this would lead to the fulfillment of the contract between Mr. Lisac and TGGE, and the ability of TGGE to complete its investment, which is why this arbitration was started; TGGE respectfully requests a suspension of these proceedings until the first and most recent orders of the Supreme Court are executed or until the Panamanian state decides, once again, to illegally intervene."57
"Accordingly, our request for temporary suspension of the arbitral procedure is based on the fact that there should be reasonable time granted to ensure that the procedures provided for at the national level for the execution of the judgment of the Supreme Court and corresponding contractual rights, both of which have a direct impact on the process and result of this arbitration, so that both the parties and the tribunal will be able to bring all their actions in this regard should it be necessary. Hopefully, the government of Panama will allow the unfettered execution of the judicial orders of the Supreme Court and no further action will be necessary in this arbitration,"58
i) To uphold Respondent’s objection of abuse of process, without needing to consider the other objections to its jurisdiction.
ii) To award Respondent (i) the costs of the arbitration, comprising the fees and expenses of the Tribunal members and ICSID’s administrative fees and expenses, as determined by ICSID in the final financial statement of this case, and (ii) legal fees and expenses of Respondent in the amount of US$2,209,532.70.
iii) That Claimants shall pay post-award interest on the aggregate amount resulting from subparagraph ii) supra, at the rate of LIBOR plus two percentage points, compounded annually, calculated from the date of the Award until full payment.
iv) To rej ect Respondent’s request for an award of any funds remaining in the administrative account for this case.
v) To dismiss all other requests for relief.
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