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Award

FREQUENTLY USED ABBREVIATIONS AND ACRONYMS
Arbitration Rules ICSID Rules of Procedure for Arbitration Proceedings
CM The Claimants' Memorial dated 27 June 2014
Exh. C-Mxx The Claimants' Exhibits submitted with their Memorial dated 27 June 2014
Exh. C-Lxx The Claimants' Legal Authorities submitted with their Memorial dated 27 June 2014
CR The Claimants' Reply dated 7 January 2015
Exh. CRMxx The Claimants' Exhibits submitted with their Reply dated 7 January 2015
Exh. CLxx The Claimants' Legal Authorities submitted with their Reply dated 7 January 2015
First Award Award rendered on 8 May 2008 in the original arbitration proceedings
Decision on Annulment Decision rendered on 18 December 2012 in the annulment proceedings
ICSID Convention Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated March 18, 1965
ICSID or the Centre International Centre for Settlement of Investment Disputes
ILC International Law Commission
ND-xx The Claimants' Exhibits submitted with their new Request for Arbitration dated 18 June 2013
RCM The Respondent's Counter-Memorial dated 27 October 2014
RR The Respondent's Rejoinder dated 9 March 2015
Exh. R-xx The Respondent's Exhibits
Exh. RL-xx The Respondent's Legal Authorities
CPP Consorcio Periodístico y Publicitario S.A.
EPC Empresa Periodística Clarín, Ltda.
CDE Council for the Defence of the State
Decision No. 43 Decision of the the Santiago court dated 28 April 2000
Hearings, Day [x], p.[x] Transcript of the hearing held in London from 13 to 16 April 2015

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Historical Context and Relevant Facts

1.
The Tribunal finds it useful to begin this Award with a brief summary of the factual and procedural background. In doing so, the Tribunal notes that the underlying dispute between the Parties goes back four decades, and has been pending before ICSID since 1997. It is therefore conscious of its duty to bring a final end to this long-running proceeding.
2.
Mr Víctor Pey Casado was born in Spain in 1915, moved to Chile at the age of 24 in 1939, and lived there for 34 years until 1973. Though he has retained Spanish nationality, he acquired Chilean nationality by naturalization in 1958. Ms Coral Pey Grebe, his daughter, was born in Chile on 27 December 1953, and holds Spanish nationality.1
3.
Mr Salvador Allende, elected President of Chile on 4 September 1970, was a friend of Mr Pey Casado.
4.
During the early 1970s, Mr Pey Casado became associated with a Chilean newspaper, El Clarín. The newspaper had been founded by Messrs Darío Sainte-Marie and Merino Liana, and was under the control of the company, Consorcio Periodístico y Publicitario, S.A. ("CPP"), through a wholly owned subsidiary, Empresa Periodística Clarín, Ltda. ("EPC").
5.
El Clarín had a left-leaning political orientation and lent strong media support to the broadly socialist coalition led by President Allende. After Mr Sainte-Marie left Chile for Spain, Mr Pey Casado acquired 40,000 shares in CPP2 by purchase concluded on 2 October 1972.3
6.
On 11 September 1973, President Allende was overthrown in a coup d'état led by General Augusto Pinochet, and on the same day military troops occupied the premises of El Clarín, seizing papers located in Mr Pey Casado's office there.4
7.
On 8 October 1973, Decree-Law No. 77 declared unlawful and dissolved all ‘Marxist entities' and their affiliates, with their property passing to the Respondent.5 The property thereafter remained under complete control by the military, and was subsequently confiscated formally by means of Decree No. 165 in 1975.6
8.
On 27 October 1973, Mr Pey Casado was granted permission to leave Chile for Venezuela and went from there to Spain, where he remained until 1989, the year of the return of democratic government to Chile.
9.
On 16 January 1990, the Foundation Presidente Allende ("the Foundation") was established under Spanish law. Mr Pey Casado donated 90% of his stock holdings in CPP and EPC to the Foundation later that same year.7
10.
On 6 September 1995, Mr Pey Casado wrote to the President of Chile, asking for restitution of the assets of El Clarín.8 By letter dated 20 November 1995, the Chilean Minister of National Assets replied that the Government of Chile was developing a reparations programme that would compensate persons whose assets had been confiscated by the military government.9 On 10 January 1996, Mr Pey Casado wrote again to the President of Chile, asking for immediate restitution.10
11.
In October 1995, Mr Pey Casado filed in the First Civil Court in Santiago ("the Santiago court") a request for restitution for the confiscation of a Goss printing press that had been on the premises of El Clarín when the property was seized during the coup d'état.11 This claim is hereinafter referred to as "the Goss press case."
12.
On 23 July 1998, Chile duly initiated, under Law No. 19,568,12 a comprehensive reparations programme which was designed to compensate, through an administrative process, those persons who had suffered confiscations of property at the hands of the military government. Mr Pey Casado was notified of this programme by the Respondent and invited to participate in it.13
13.
In a letter dated 24 June 1999, Mr Pey Casado and the Foundation Presidente Allende notified the Chilean Ministry of National Assets that they expressly waived the right to seek compensation under Law 19,568 for the expropriation of CPP and EPC.14
14.
On 28 April 2000, the Chilean Ministry of National Assets issued Decision No. 43, by which it authorized compensation to four individuals (or, as applicable, their heirs) for the expropriation of CPP and EPC, on the basis that they had established, to the satisfaction of the Ministry, that they had owned assets belonging to these companies, and were thus entitled to reparations for the confiscation of El Clarín. The persons in question were Messrs Darío Sainte-Marie, Ramón Carrasco, Emilio González and Jorge Venegas.15

B. Previous Phases of the Dispute and Procedural History

15.

Mr Pey Casado and the Foundation Presidente Allende submitted a Request for Arbitration to ICSID on 7 November 1997, in reliance on the Agreement between the Kingdom of Spain and the Republic of Chile on the Reciprocal Protection and Promotion of Investments ("BIT") which had entered into force on 29 March 1994, Article 10 of which provides:

1. Any dispute concerning investments, as defined in this Agreement, which arises between a Contracting Party and an investor of the other Contracting Party shall, to the extent possible, be settled by means of friendly consultations between the two parties to the dispute.

2. If the dispute cannot be settled within six months of the time it was initiated by one of the Parties, it shall be submitted, at the discretion of the investor, to:

- The national jurisdiction of the Contracting Party involved in the dispute; or

- International arbitration in the conditions described in paragraph 3.

Once the investor has submitted the dispute to the jurisdiction of the Contracting Party involved or to international arbitration, the choice of one or the other procedure shall be final.

3. If the dispute is submitted to international arbitration, it may be brought before one of the following arbitration bodies, at the discretion of the investor:

- The International Centre for Settlement of Investment Disputes (ICSID), established by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which was opened for signature in Washington, D.C., on 18 March 1965, when each State Party to this Agreement has acceded to it. As long as this condition remains unmet, each Contracting Party gives its consent to submit the dispute to arbitration in accordance with the rules of the Additional Facility of ICSID;

- An ad hoc court of arbitration established under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL).

4. The arbitration body shall take its decision on the basis of the provisions of this Agreement, of the law of the Contracting Party that is a party to the dispute, including the rules relative to conflicts of laws, and of the terms of any specific agreements concluded in relation to investment, as well as of the principles of international law on the subject.

5. The arbitral awards shall be final and binding for the parties to the dispute.

6. The Contracting Parties shall refrain from dealing, through diplomatic channels, with matters concerning arbitration or judicial proceedings already under way until the relevant procedures have been completed, unless the parties to the dispute have not complied with the award of the court of arbitration or the decision of the ordinary court pursuant to the terms of compliance established in the award or decision.16

The Request was registered on 20 April 1998,17 and a Tribunal was constituted on 14 September 1998, which will be referred to in this Award as "the First Tribunal".

16.
On 1 February 1999, the Respondent lodged an objection to the jurisdiction of the First Tribunal.18 An oral hearing on the jurisdictional objection was held in May 2000,19 and in due course, by a Decision of 8 May 2002, the First Tribunal joined the jurisdictional objections to the merits.20
17.
On 6 May 2000, Dr Garcés wrote to the Minister of National Assets of Chile on behalf of Mr Pey Casado and the Foundation Presidente Allende asking the Ministry temporarily to suspend the execution of Decision No. 43.21 This letter was forwarded to the Contraloría General, which concluded on 22 November 2000 that the Ministry of National Assets had followed proper procedure, and that there was no legal basis for suspending execution of the Decision.22
18.
On 23 April 2001, Mr Pey Casado and the Foundation Presidente Allende submitted to the First Tribunal a request for the indication of provisional measures, seeking suspension of the execution of Decision No. 43 because of its incompatibility with the claim pending before ICSID.23 In a decision of 25 September 2001, the First Tribunal rejected this request, finding no incompatibility between Decision No. 43 and the expropriation-related claims at ICSID.24
19.
On 4 November 2002, Mr Pey Casado and the Foundation Presidente Allende submitted an ancillary request to the Santiago court, seeking to suspend proceedings pending a decision on their request to transfer to ICSID the claim asserted before the Santiago court in relation to the Goss press.25 The Santiago court rejected this request on 14 November 2002.26
20.
A hearing on jurisdiction and merits in the original arbitral proceedings was held in Washington in early May 2003. Following a number of changes to the composition of the First Tribunal and the rejection of a request from the Respondent for new written submissions,27 a further hearing was held on 15-16 January 2007 in Paris.
21.
On 8 May 2008, the First Tribunal issued its Award ("the First Award"), in which it decided, inter alia : 1) that the expropriation of El Clarín was not covered ratione temporis by the substantive protections under the BIT;28 2) that the Respondent had committed two BIT violations distinct from the expropriation of El Clarín ;29 3) that the absence for seven years of a decision on the merits in the Goss press case amounted to a denial of justice, in violation of Article 4 of the BIT;30 and 4) the award of compensation under Decision No. 43 to other persons but not to Mr Pey Casado and the Foundation constituted discrimination contrary to the guarantee of fair and equitable treatment under Article 4 of the BIT.31 The Tribunal ordered the Respondent to pay Mr Pey Casado and the Foundation Presidente Allende $10,132,690.18 (plus compound interest) in damages for the violations found, and in addition $2,000,000 in legal fees and costs and $1,045,579.35 in procedural costs, but rejected all other claims submitted by Mr Pey Casado and the Foundation Presidente Allende.32
22.
On 2 June 2008, Mr Pey Casado and the Foundation Presidente Allende submitted a request for revision of the First Award under Article 51 of the ICSID Convention, contending that certain new facts had emerged that would decisively affect the Tribunal's ruling and justify an increase in the amount of damages to $797,000,000. Mr Pey Casado and the Foundation Presidente Allende also requested the provisional suspension of the execution of the First Award.33
23.
On 24 July 2008, the Santiago court rendered its decision in relation to the Goss press case, in which it concluded that Mr Pey Casado did not have standing to sue, and that in any event his claim had become time barred.34 On 16 June 2009, a motion ex parte was filed by the Council for Defence of the State ("CDE") for the abandonment of the case,35 which was rejected by the Santiago court on 6 August 2009.36 On 12 August 2009, the CDE appealed against this decision,37 and on 18 December 2009, the Court of Appeal of Santiago declared the proceedings to have been abandoned.38
24.
On 5 September 2008, while the request for revision was still pending, the Respondent filed a request for annulment of the First Award, on the grounds that procedural irregularities had tainted the arbitral proceeding, and that there were unexplained conclusions and characterizations in the First Award.39 The Request was registered by the Secretary-General on 6 July 2009. An ad hoc Committee was constituted on 22 December 2009. On 4 May 2010, the ad hoc Committee issued a Decision rejecting Mr Pey Casado and the Foundation Presidente Allende's request to declare inadmissible the application for annulment. On 15 October 2010, Mr Pey Casado and the Foundation Presidente Allende put forward a request of their own for partial annulment,40 which the ad hoc Committee rejected as plainly time-barred.
25.
On 18 November 2009, the First Tribunal, ruling in the revision proceeding, denied the request for revision.41
26.
Mr Pey Casado and the Foundation Presidente Allende contend that they first became aware of the decision of the Santiago court in relation to the Goss press case on 27 January 2011.42 Three days later Mr Pey Casado requested the Santiago court to annul the decision to declare the proceedings before that court abandoned,43 which was rejected on 28 April 2011,44 a decision that was upheld by the Court of Appeal of Santiago on 31 January 2012;45 leave to appeal to the Supreme Court of Chile was denied on 11 July 2012.46
27.
On 18 December 2012, the ad hoc Committee rendered its Decision on Annulment, the dispositive part of which reads, in translation, as follows:

For the reasons set forth above, the Committee renders the following decisions:

1. Pursuant to Article 52(1)(d) and (e), decides to annul paragraph 4 of the dispositif of the Award of 8 May 2008 and the corresponding paragraphs in the body of the Award related to damages (Section VIII);

2. Rejects the other grounds of the Republic's Application for annulment;

3. Rejects the Claimants' request for the partial annulment of paragraph 8 of the dispositif of the Award;

4. Finds that paragraphs 1 to 3 and 5 to 8 of the dispositif as well as the body of the Award but for Section VIII are res judicata ;

5. Decides that there is no need to order the temporary stay of enforcement of the un-annulled portion of the Award.

6. Decides that each party shall bear one half of the ICSID costs incurred in connection with this annulment proceeding; and

7. Decides that each party shall bear its own litigation costs and expenses incurred with respect to this annulment proceeding.

28.
Following on from the above,47 Mr Pey Casado and the Foundation Presidente Allende ("the Claimants") lodged on 18 June 2013, pursuant to Article 52(6) of the ICSID Convention, a new Request for Arbitration ("the New Request"). The New Request was registered by the Centre on 8 July 2013. In accordance with the terms of Article 52(6), a new Tribunal was constituted on 24 December 2013 ("the Tribunal") composed of Sir Franklin Berman (President), appointed by the Chairman of the Administrative Council of ICSID in accordance with Article 38 of the ICSID Convention, Mr Philippe Sands, appointed by the Claimants, and Mr Alexis Mourre, appointed by the Respondent. Following a challenge by the Respondent, Professor Sands informed the Centre by letter of 10 January 2014 that, while rejecting the grounds for the challenge, he took the view that the proper course was to allow the proceedings to continue without distraction, and accordingly relinquished his appointment as arbitrator. On 13 January 2014, following the resignation of Professor Sands, the ICSID Secretary-General notified the vacancy to the Parties and the proceeding was suspended pursuant to Arbitration Rule 10(2). On the same date, the Tribunal consented to the resignation of Professor Sands pursuant to ICSID Arbitration Rule 8(2), and on 31 January 2014 Mr V V Veeder was appointed to fill the vacant place on the Tribunal in accordance with Arbitration Rule 11(1) and the Tribunal was reconstituted on that date. Mr Paul-Jean Le Cannu was appointed Secretary of the Tribunal on the same date, and was later replaced in that office on 13 May 2014 by Mr Benjamin Garel. Following a proposal by the President, and with the agreement of the Parties, Dr Gleider Hernández was appointed as Assistant to the President on 12 December 2014.
29.

On 11 March 2014, the Tribunal held its first session with the Parties by telephone. In addition to the Tribunal and its Secretary, the following participated:

For the Claimants:

Dr Juan E. Garcés Garcés y Prada, Abogados
Ms Carole Malinvaud Gide, Loyrette, Nouel
Ms Alexandra Muñoz Gide, Loyrette, Nouel

For the Respondent:

Mr Paolo Di Rosa Arnold & Porter LLP
Ms Gaela Gehring Flores Arnold & Porter LLP
Ms Mallory Silberman Arnold & Porter LLP
Mr Juan Carlos Riesco Carey
Ms Victoria Fernández-Armesto Republic of Chile
Mr Juan Banderas Casanova Republic of Chile

30.
On 18 May 2014, the Tribunal issued Procedural Order No. 1 laying down the procedure for the written and oral phases of the proceeding.
31.
In accordance with the provisions of Procedural Order No. 1, the following written submissions were filed: the Claimants' Memorial on 27 June 2014, the Respondent's Counter-Memorial on 27 October 2014, the Claimants' Reply on 9 January 2015, and the Respondent's Rejoinder on 9 March 2015.
32.
On 10 November 2014, the Claimants submitted to the Tribunal a request for the production of documents under Procedural Order No. 1, to which the Respondent replied on 1 December 2014. A further response by the Claimants was received on 3 December 2014, to which the Respondent responded (with the leave of the Tribunal) on 8 December 2014. On 16 December 2014, the Tribunal issued Procedural Order No. 2, containing its reasoned decision on the document production requests.
33.
On 9 February 2015, the Claimants sought the Tribunal's authorization to produce (a) two decisions rendered on 10 January and 3 February 2015 by the Santiago court, (b) the documents obtained through the search ordered by the Santiago court in these decisions, and (c) comments on such documents. On 13 February 2015 the Respondent expressed its consent to the Claimants' requests, and indicated that it would respond to the Claimants' comments in its Rejoinder. On 16 February 2015, the Tribunal granted leave to the Claimants to produce the documents in question, together with comments upon them, by 20 February 2015. On 20 February 2015, the Claimants submitted the documents in question and comments upon them.
34.
On 2 April 2015, the Tribunal issued Procedural Order No. 3 laying down the arrangements for the oral hearing and communicating the hearing schedule.
35.

From 13 to 16 April 2015, the Tribunal held an oral hearing in London. In addition to the Tribunal, its Secretary, and the President's Assistant, the following participated:

For the Claimants:

Dr Juan E. Garcés Garcés y Prada, Abogados
Mr Michel Stein Garcés y Prada, Abogados
Mr Hernán Garcés Garcés y Prada, Abogados
Ms Carole Malinvaud Gide, Loyrette, Nouel
Ms Alexandra Munoz Gide, Loyrette, Nouel
Ms Natasha Peter Gide, Loyrette, Nouel
Ms Astrid Westphalen Gide, Loyrette, Nouel
Ms Coral Pey Grebe Foundation Presidente Allende
Ms Francisca Durán Ferraz de Andrade Foundation Presidente Allende
Ms Marie Ducrocq Foundation Presidente Allende
Mr Christophe Schmit Accuracy
Mr Eduard Saura Accuracy

For the Respondent:

Mr Paolo Di Rosa Arnold & Porter LLP
Ms Gaela Gehring Flores Arnold & Porter LLP
Ms Mallory Silberman Arnold & Porter LLP
Ms Shepard Daniel Arnold & Porter LLP
Mr Kelby Ballena Arnold & Porter LLP
Mr Jorge Carey Carey
Mr Gonzalo Fernández Carey
Mr Juan Carlos Riesco Carey
Ms Liliana Machiavello Republic of Chile
Ms Victoria Fernández-Armesto Republic of Chile
Mr Brent C. Kaczmarek, CFA Navigant Consulting, Inc.
Mr Andrew Preston Navigant Consulting, Inc.
Dr Marcos Libedinsky Tschorne

36.
At the conclusion of the hearing, the President laid down the procedure to be followed by the Parties for the submission of statements of costs for the purposes of Arbitration Rule 28(2). On 18 and 29 May 2015 respectively, the Claimants and the Respondent filed statements of costs and the Claimants a supplemental statement of costs.
37.
On 9 June 2015, the Tribunal took note of certain agreed corrections to the hearing transcripts, and decided on the remaining corrections on which the Parties could not agree.
38.
On 18 September 2015, the Claimants sought the Tribunal's authorization to introduce into the record a judgment rendered by the Supreme Court of Chile on 14 September 2015, and on 28 September 2015 the Respondent submitted its comments on this request. On 9 October 2015, the Tribunal authorized the introduction of the judgment into the record.
39.
On 17 March 2016, the Tribunal declared the proceeding closed under Arbitration Rule 38(1).
40.
On 18 July 2016, the Tribunal informed the Parties that, in accordance with ICSID Arbitration Rule 46, it had extended for a further 60 days the period to draw up and sign the Award.

II. SUMMARY OF PARTIES' POSITIONS

A. Approach of the Tribunal

41.
The account that follows of the Parties' arguments provides the essential background for the Tribunal's findings in the subsequent Sections of this Award. It is intended however as a summary only of the arguments both of fact and of law that the Tribunal has found to be of greatest relevance to the issues before it. At various times, accusations were put forward from both sides of bad faith or improper conduct on the other side. The Tribunal has not found these relevant to the issues before it and does not propose to consider them further. The Tribunal wishes to emphasize however that it has given full attention to all of the submissions put to it by the Parties both orally and in writing.

B. Overview of the Claimants' Submissions

42.
The Claimants' submissions can be divided into two broad categories. The first represents their opposition to the Respondent's jurisdictional arguments in respect of Ms Pey Grebe. The second category goes to determining the nature and quantum of the compensation due for the denial of justice and for the failure to accord fair and equitable treatment. The Claimants expressly disclaim any request for compensation under Article 5 of the ChileSpain BIT (expropriation), as foreclosed by the res judicata nature of the First Award in the light of the Decision on Annulment.48

(1) Jurisdiction and Admissibility

a. Ms Pey Grebe is the assignee of all the rights of Mr Pey Casado in the present resubmission proceeding

43.
The Claimants submit that the First Tribunal recognized Mr Pey Casado in his quality of ‘investor' under the Chile-Spain BIT.49 They further submit that the First Tribunal recognized the nature of the ‘investment' as broad, encompassing the shares in CPP and EPC held by Mr Pey Casado and the Foundation.50
44.
The Claimants argue that the jurisdictional conclusions in the First Award should apply to Ms Pey Grebe in her capacity as assignee of Mr Pey Casado's shares in El Clarín and all rights in this arbitration.51 They point to the assignment of rights effected on 15 March 2013 between Mr Pey Casado and Ms Pey Grebe for the totality of his rights relating to his holding of the shares (10%) in CPP, as well as his position and his rights in the pursuance of the present arbitration, as well as any claims that flow from his ownership of shares in CPP and EPC.52 This assignment accordingly includes the right to reparation arising from the First Award.53
45.
The Claimants contend that the Respondent never objected to the assignment in 2013 and 2014, despite having been notified of it on 13 June 2013 and having since had several opportunities to do so.54 They also contend that, because her situation is governed by the Chile-Spain Convention on dual nationality and the Chile-Spain BIT does not explicitly exclude dual nationals from the scope of its protection, the conditions in the First Award concerning application of the BIT are not opposable to Ms Pey Grebe.55
46.
The Claimants contend that, because the assignment of rights was effected after the date on which the First Tribunal established its jurisdiction over the dispute, the Tribunal need not re-examine its jurisdiction simply because rights have been assigned from one person to another.56 According to Article 25(2)(a) of the ICSID Convention, jurisdiction is established at the moment that the parties have consented to submit the application to arbitration, by reference to the date on which proceedings are instituted;57 because Ms Pey Grebe is only acting as an assignee of assets, and did not put in a claim of her own, no legal question exists.58 The Claimants contend that, where an assignee becomes a claimant during the course of arbitral proceedings, it is an established principle of international law that the assignee can be considered as the successor to a party to a dispute,59 and that the same principle would apply in a resubmission proceeding following an annulment.60
47.
The Claimants further submit that the assignment of rights from Mr Pey Casado to Ms Pey Grebe is a juridically valid act opposable to the Respondent which should be upheld by the Tribunal. They recall that the earlier assignment of rights from Mr Pey Casado to the Foundation Presidente Allende was confirmed by the ad hoc Committee, and should thus be considered res judicata.61 They contend that the Respondent's objections to Ms Pey Grebe's standing would deprive Mr Pey Casado of his rights under the First Award.62
48.
The Claimants maintain that the assignment of rights was valid under Spanish law and does not require authorization under Chilean law to be opposable to the Respondent,63 and that Chilean domestic law allows the assignment of rights relating to moral damages.64 The Respondent's objection to Ms Pey Grebe's standing is a repetition of an unsuccessful objection to the First Tribunal's jurisdiction, in respect of an assignment which used similar wording and was upheld in the First Award.65

b. The Claimants' requests do not impinge on the unannulled portions of the First Award and are admissible

49.
The Claimants maintain that their requests do not require the Tribunal to pronounce on points unaffected by the partial annulment of the First Award, and in particular on the jurisdiction of the Tribunal.66 The sole purpose of the resubmission proceeding is to establish the damages due as a result of the denial of justice and the discrimination suffered by the Claimants.67 The Claimants equate the harm suffered as a result of these two BIT violations with the harm suffered for the expropriation of El Clarín.68 The appropriate remedy would be for the Tribunal to restore the situation the Claimants would have been in, had they been in a position to avail themselves of the judgment of the Santiago court in the Goss press case prior to the publication of the First Award, or in a situation where they would not have suffered from discriminatory treatment vis-à-vis other Chilean investors.69
50.
The Claimants submit that the behaviour of representatives of the Respondent during earlier phases of the case, and in particular during the post-First Award phase and relating to the Goss press, constitute a new violation of Article 4, and possibly Article 5, of the BIT.70 Because the owners of other media companies were compensated for the expropriation of their assets, the fact that the Claimants were not compensated for the expropriation of El Clarín constitutes a violation of the obligation to guarantee ‘national treatment'.71

c. In the alternative, the Claimants submit that they are entitled to compensation for the unjust enrichment that has benefited the Respondent

51.
The Claimants submit that res judicata does not apply in this proceeding to their claim for unjust enrichment, because that was not the subject matter of a finding by the First Tribunal.72 They recall that they had already made submissions on unjust enrichment in their first memorial before the First Tribunal in March 1999.73
52.
The Claimants base their claim of unjust enrichment on the 1970s dissolution of El Clarín and the Respondent's forcible seizure of the assets of CPP and EPC.74 Unjust enrichment is prohibited both under Chilean domestic law75 and under customary international law.76 They maintain that, though unjust enrichment can also constitute a violation of the obligation to provide fair and equitable treatment, unjust enrichment is routinely awarded by international tribunals when the conditions for its existence are met.77 Since in the present case the Respondent illicitly appropriated for itself the investment of a Spanish national and the benefits of that investment, without compensation, the unjust enrichment created by that seizure opens a right to reparation.78

(2) The Claimants' submissions on the calculation of damages for the denial of justice

a. Compelling reasons exist for revisiting and overturning certain unannulled portions of the First Award

53.
The Claimants recall that the denial of justice found in the First Award concerned the absence for seven years of a decision on the merits on the Goss press case, which was confirmed by the First Tribunal and the ad hoc Committee, and is res judicata.79 The Claimants contend that the failure to decide deprived the Claimants, and also the First Tribunal, of a judgment on the merits that would have established both the nullity ex tunc under public law of Decree No. 165; and that Respondent committed this violation in full knowledge of its consequences.80 The Claimants argue that the Santiago court had its judgment on the merits ready as early as the start of 2001, but that its paralysis for several years deprived the Claimants of a crucial fact,81 and that the Respondent's recollection of events had struck out or omitted key facts in order to expunge this fact.82
54.
During the oral proceedings, the Claimants further submitted that the fact that constitutes the denial of justice, that is, depriving the First Tribunal and the Claimants of the evidence that the Santiago court had avoided applying Decree No. 165, can be distinguished from the consequences of that denial of justice, which was that the First Tribunal could not take into account the nullity of the Decree.83
55.
The Claimants acknowledge that unannulled parts of the First Award are res judicata and cannot be revisited, in particular those on the competence of the Tribunal to be seized of the dispute between the parties, and on the violations of the Respondent of its obligations under the BIT.84 The Claimants maintain, however, that so long as there are no new requests, the introduction of new information or facts arising after publication of the First Award (‘intervening effects') would be permissible.85

b. The Claimants' submissions as to the validity of Decree No. 165

(i) Decree No. 165 is null under Chilean public law

56.
The Claimants submit that the decision of the Santiago court took note of the reality of the nullity ex tunc under public law of Decree No. 165, and that this finding constitutes sufficient evidence of the fact that the decree is null and void.86 The Claimants rely on Chilean domestic case law to establish that under Chilean law, nullity operates ipso jure and no judicial recognition is needed to constitute it.87 The Claimants further submit that the nullity of Decree No. 165 operates ex tunc as a matter of Chilean public law, citing Chilean court judgments that have repeatedly taken note of the nullity of decree-laws issued pursuant to Decree No. 77.88 According to the Claimants, Mr Pey Casado had already raised in 1995 the question of the nullity of Decree No. 165 before the Santiago court, which took note of the reality of the nullity of the decree under public law.89
57.
The Claimants contend that the Santiago court was duty bound to pronounce on the reality of the nullity of Decree No. 165, because of the judicial obligation to respond to extensive submissions by the Claimants and organs of the Respondent (the ‘Fisc') before it.90 Reacting to the Respondent's expert report by Dr. Libedinsky, the Claimants deny that the matter was raised only as a subject to be resolved with respect to the debate over the prescriptibility period (‘statute of limitations') of the nullity under public law action.91
58.
The Claimants contend that, when the Santiago court decided explicitly that only CPP and EPC had the requisite standing in that case,92 it necessarily must have concluded that Decree No. 165 was null under public law, as there could be no other reason for the Santiago court to conclude that EPC remained in existence;93 for them, such a finding entailed the continuity of the legal personality of CPP and EPC.94

(ii) The Claimants' submissions as to the effects on the First Award of the taking note of the nullity under public law of Decree No. 165

59.
The Claimants contend that both the absence of a decision for seven years by the Chilean courts with respect to the Goss press case, and the absence of a decision with respect to the validity of Decree No. 165, constitute the denial of justice found by the First Tribunal in the First Award.95
60.
The Claimants maintain that, but for the denial of justice they have suffered, the nullity of Decree No. 165 would have been established before the First Tribunal, which would not have been able to conclude, as it did in the First Award, that the expropriation of CPP and EPC had been consummated with the entry into force of Decree No. 165, and that the said Decree was still in force.96 The Claimants submit that, owing to the denial of justice, they were precluded from fully substantiating their claims for the injuries that continued to subsist for the de facto withholding of their investment after the entry into force of the BIT.97 They take the view that the First Tribunal would not have dealt with compensation as it had done, as it would have regarded the expropriation claim as falling within the ‘continuing act' exception at the time of the entry into force of the BIT.98
61.
The Claimants dispute the Respondent's argument that paragraph 608 of the First Award extends also to the validity of Decree No. 165.99 The Claimants submit that the validity of Decree No. 165 is to be distinguished from its legality, which concerns the respect of considerations such as public utility, due process, the absence of discrimination and the existence of compensation. The Claimants instead submit that paragraph 78 of the First Award demonstrates merely the awareness of the First Tribunal that to its knowledge, the validity of Decree No. 165 had never been put into question before the Chilean courts.100
62.
Finally, because the nullity of Decree No. 165 would have entailed its inexistence ex tunc and the invalidity also of the expropriation de jure, the Claimants argue that the expropriation de facto that had existed from 1973 would have continued until after the entry into force of the Chile-Spain BIT, and that the appropriate remedy to erase the effects of the denial of justice would not be to speculate as to what the First Tribunal would have concluded, but for the Tribunal to decide in the place of the First Tribunal.101 The Claimants further maintain that in the absence of the denial of justice, the First Tribunal would have made determinations with respect to the expropriation de facto of CPP and EPC; the Claimants maintain that this approach would not call into question the principle of res judicata, as it would serve to acknowledge the consequences of the withholding of evidence with respect to the denial of justice.102 The Claimants suggest that case law from the European Court of Human Rights supports the idea that a denial of justice can be constituted through the operation of a continuously unlawful act.103

(iii) The Claimants' objections with respect to the reliability of the testimony of the expert for the Respondent in relation to Decree No. 165

63.
The Claimants submit that expert for the Respondent, Dr Marcos Libedinsky, has already participated in two judicial pronouncements in the Pey Casado v. El Fisc case, even participating in the denial of justice against the Claimants, and thus demonstrating a lack of independence. The Claimants further submit that Dr Libedinsky, by applying the 1977 autoamnesty Decree so as to protect Chilean civil servants who had perpetrated international crimes, demonstrated the intention to uphold the impunity of the Respondent for its seizure of the Claimants' investment.104
64.
The Claimants suggest that Dr Libedinsky's expert report does not take into account the specificities of Decree-Laws No. 77 and 1726, the latter of which was confirmed as null by the Chilean Supreme Court. According to the Claimants, the nullity attaching to these two decrees, and any decrees made pursuant to them, differs from the administrative acts cited within his expert report as these are tainted with nullity ipso jure, the effects of which operate ex tunc and require no judicial intervention in order for the nullity to operate with full effect. The Claimants note that on 20 October 1999, Dr Libedinsky, then a judge on the Supreme Court, participated in a decision that made a general statement to the effect that if nullity operates ipso jure, it may be ‘observed and declared indistinctly by a tribunal or administrative authority'.105
65.
The Claimants observe that Dr Libedinsky's expert report cited three cases from appellate tribunals in Chile that did not concern the nullity of confiscatory decrees taken in pursuance of Government Decree No. 77 and Supreme Decree No. 1726; according to the Claimants, abundant case law exists that takes note of the nullity ex tunc of these decrees, and which also notes the imprescriptibility of actions in nullity under public law. The Claimants highlight a distinction between, on the one hand, the nullity of administrative or legislative acts, and on the other hand, civil or patrimonial actions which flow from the taking note of the nullity. They contend that, with respect to the former category, the passage of time can never cure nullity under public law.106

c. The discontinuance proceedings are immaterial as regards the denial of justice

66.
The Claimants contend that the claimed discontinuance by Mr Pey Casado, or the purported eradication of the judgment of 24 July 2008 and of its case file from the records of the Santiago court by the Respondent, do not affect the denial of justice resulting from the absence of decision in the Goss press case, as consummated by the First Award of 8 May 2008.107 Though the Respondent has maintained that such discontinuance was purely for administrative ends, the Respondent in fact sought to paralyse the execution of the Santiago court's judgment.108
67.
The Claimants submit that the conditions for discontinuance prescribed under Article 152 of the Chilean Code of Civil Procedure, namely, that all parties must have ceased to participate for at least six months in a proceeding, and where the tribunal must also notify all concerned parties personally or by official act, have not been met in the present case.109 The abandonment of proceedings, in such cases, is a sanction that arises from the passivity, lack of interest or inactivity of a party, and does not arise in cases where it falls to a tribunal to take the next steps towards resolving the dispute. The Claimants accordingly submit that no abandonment could arise before the Santiago court, as the case before it was ready for decision, and Mr Pey Casado was merely awaiting notification.110

d. The Respondent's acts subsequent to the First Award constitute a new denial of justice under the BIT

68.
The Claimants contend that, in breach of the principles of a fair hearing and due process, the Respondent sought to erase from the record the judgment of 24 July 2008 so preventing the First Tribunal and the Claimants from being informed of the existence of that judgment, thus committing a new violation of Article 4 of the Chile-Spain BIT.111 Specifically, the Claimants point to a motion submitted by the Council for the Defence of the State to the Santiago court on 16 June 2009, which called for the proceeding to be declared abandoned so as to invalidate the judgment rendered.112 The motion was denied on 6 August 2009, on the grounds that Mr Pey Casado had not been notified of the judgment, at which point the CDE appealed ex parte to the Court of Appeal of Santiago, which on 18 December 2009 acceded to the CDE's request, again ex parte.113 The Claimants contend that, despite the annulment proceedings having been in train since 5 September 2008, at no point did the Respondent notify the Claimants that the Santiago court had given judgment on the merits in the Goss press case.114 The Claimants were only notified of the existence of the judgment on 31 January 2011.115
69.
These acts, taken together, constituted a further denial of justice and a new breach of Article 4(1) of the BIT, as they demonstrate a lack of good faith, and a breach of the obligation to maintain the existing position as far as possible for the duration of a dispute.116 The Claimants further contend that the decisions of the Chilean domestic courts, which have attempted to eradicate the Santiago court ruling, cannot produce legal effects on the international plane; and if they constitute a breach of international law, the principle of restitutio in integrum would apply to nullify their effects.117

e. Reparation for the damage resulting from the denial of justice

70.
The Claimants submit that, though Article 4 of the BIT does not specify that reparation becomes due in case of breach, they may rely on the ‘most-favoured-nation' (MFN) clause embodied in Article 7, and give as an example the Chile-Australia BIT (Articles 6-7) to justify a claim for reparation.118
71.
The Claimants, recalling their argument that the consequence of concealing the ruling of the Santiago court was that the First Tribunal could not take note of the reality of the nullity of Decree No. 165, point to the fact that the objection based on extinctive prescription raised on 17 April 1996 by the CDE was not mentioned in paragraph 78 of the First Award.119 For the Claimants, this objection, upheld by the Santiago court, was only valid in relation to actions under the Chilean civil code, but was inapplicable before the First Tribunal.120
72.
Under international law, the dies a quo for the prescription of a claim may be extended in cases where the claimant has sound reasons for failing to raise such claims, and has not been negligent.121 The Claimants recall that Mr Pey Casado fled Chile to seek asylum in Venezuela, was banned from Chile between 1973 and 1989, and was only able to recover the share certificates proving his ownership of CPP and EPC through a judicial decision of 29 May 1995, which was the dies a quo.122
73.
The Claimants maintain that, because Mr Pey Casado filed an action for restitution of the Goss press on 4 October 1995, some four months after the dies a quo, the decision of the Santiago court—which concluded that extinctive prescription had run pursuant to Articles 2226, 2227 and 2236 of the Chilean Civil Code—is not opposable before the present Tribunal.123 The Claimants contend that reparation for the denial of justice which prevented them from putting forward claims after the entry into force of the BIT, should be calculated on the basis of the fair market value of CPP and EPC prior to their de facto confiscation.124
74.
With respect to the moral injury suffered, the Claimants contend that during the seizure of CPP and EPC's assets in 1973, Mr Pey Casado's inclusion on a list of persons who needed to surrender immediately to the Ministry of National Defence, put him at serious risk of internment, torture, assassination or disappearance, which led him to seek asylum in Venezuela.125 The Claimants further contend that since 1973, Mr Pey Casado has been subjected to continuous humiliation, injustice and uncertainty owing to the Respondent's refusal to provide reparation.126

f. The Respondent attempted to subvert the arbitral proceedings through fraud

75.
The Claimants assert that the Respondent's representatives have sought to frustrate the First Award in bad faith and to cause injury to the Claimants' investment, in further violation of Article 4 of the Chile-Spain BIT.127 The annulment of Section VIII and clause 4 of the dispositif of the First Award opens the possibility for the Tribunal to take full cognizance of the Respondent's conduct, both prior and subsequent to the First Award.128
76.
The Claimants contend that, beyond the moral injury caused at the moment of the seizure of CPP and EPC in 1973 and thereafter, Mr Pey Casado has been subject to defamation through measures taken by Chilean authorities;129 the reference to the Claimants as ‘liars and impostors' in El País on 23 June 1999, upon publication of Decision No. 43;130 insults to the Claimants and their counsel by the Chilean Ministry of National Assets;131 and the refusal by the Minister of the Interior to issue to Mr Pey Casado leave to enter in his capacity as a Spanish national, thus imposing on him Chilean nationality de facto.132 The Claimants submit that because of the element of intentional misconduct that is inherent in fraud, arbitral tribunals may find indirect or circumstantial evidence of fraud to be sufficient.133
77.
The Claimants submit that the Respondent introduced into the case file of the First Tribunal a gravely misleading translation of Mr Pey Casado's Demande of 1995 which would have altered the causa petendi by omitting the claim that Decree No. 165 was null ex tunc, and by mistranslating a term in such a way that it was read to refer to the building where the Goss press was located, rather than to the press itself.134 The Claimants maintain that these mistranslations were repeated exactly in the judgment of the Santiago court of 24 July 2008,135 and that, in relation to Decision No. 43 of 28 April 2000, the Respondent falsely argued that ownership of the Goss press was attributed to EPC, rather than to CPP.136
78.
The Claimants further contend that the submissions of the Respondent before the First Tribunal were fraudulent in relation to the nullity ex tunc of Decree No. 165, as the Respondent was aware of Mr Pey Casado's request for restitution of the Goss press, and yet paralysed the progress of the proceeding before the Santiago court until the First Award had been rendered and attributed the ownership of CPP and EPC to third parties through Decision No. 43. This paralysis was particularly evident given the Respondent's argument that the First Tribunal lacked jurisdiction ratione temporis after Decree No. 165 was issued in 1975, and amounted to a wilful misconstrual of the framework in which the First Tribunal was to consider the Claimants' claims.137

g. The Respondent's deceptive conduct persisted throughout the Revision Proceeding, the Annulment Proceeding and the present Resubmission Proceeding

79.
The Claimants contend that the Respondent and its representatives deliberately withheld knowledge of the Santiago court judgment throughout the Revision Proceeding in which the continued absence of decision from the Santiago court figured prominently. The Claimants point to the Respondent's Response of 1 October 2008,138 in which the Respondent rejected submissions as to the effects of the nullity under public law of Decree No. 165. The Claimants maintain that the fraudulent concealment of the domestic court judgment by the Respondent constituted a denial of justice, as it prevented them from submitting a request for annulment under Article 52, paragraph 2, of the ICSID Convention.139
80.
The Claimants maintain that the Respondent continues to act fraudulently in the present Resubmission Proceeding. The Claimants submit that from 22 May 2014, representatives of the Respondent successfully managed to unarchive the original case file in the Santiago court, and resorted to measures to conceal the file from the Claimants throughout 2014 through false pretences .140 The Claimants allege that the Santiago court repeatedly ignored or refused Mr Pey Casado's requests for access in order to prevent the Claimants from demonstrating coordination between the Santiago court and agents for the Respondent in the present Resubmission Proceeding.141 The Claimants further complain that the Respondent has actively denied them access to the Goss file at the Santiago court.142
81.
The Claimants contend that, taken as a whole, the Respondent's fraudulent conduct and bad faith amounts to a further violation of Article 4 of the Chile-Spain BIT, as, for this reason, the First Tribunal could not properly establish the quantum of damages because of the presumption that the Respondent still had title over the investment.143

(3) The Claimants' submissions on the injury resulting from the violation of the obligation to provide fair and equitable treatment resulting from DecisionNo. 43

a. The Claimants have suffered from discrimination arising from the breach of the obligation to provide fair and equitable treatment

(i) The finding by the First Tribunal of the discrimination violation by the Respondent is res judicata

82.
The Claimants contend that the First Tribunal's finding, that Decision No. 43 constituted a violation by the Respondent of the obligation to provide fair and equitable treatment under Article 4 of the BIT,144 is res judicata, and constitutes recognition by the First Tribunal of both the existence of an investment by them which is protected under the fair and equitable treatment rule, and the breach of that rule.145
83.
The Claimants recall that the ad hoc Committee has already rejected the Respondent's request for annulment of that finding, concluding that i) it did not constitute a manifest excess of powers by the First Tribunal;146 ii) that the First Tribunal had found that the violation of fair and equitable treatment consisted not only in the payment of compensation to third parties, but in the paralysis of the Claimants' requests for reparation;147 and iii) that although the First Tribunal declined to order provisional measures with respect to the execution of Decision No. 43, that decision nevertheless represented a violation of Article 4 of the BIT.148

(ii) The Respondent cannot deny the obligation to pay compensation

84.
The Claimants reject the Respondent's argument that it is under no obligation to pay compensation to them because the Claimants voluntarily waived their rights under Law No. 19,568 through the exercise of the ‘fork-in-the-road' clause in the BIT. The Claimants contend that the Respondent's paralysis of their claims in domestic proceedings was such that they had no choice but to turn to international arbitration, and that Law No. 19,568 was not the exclusive source of their right to compensation.149 They point to the optional character of Law No. 19,568, which provides in its Article 1, paragraph 6, for alternative proceedings, for example for restitution or compensation under Article 7 of the Chilean Constitution.150 The Claimants also contend that, through Decision No. 43, the Respondent exhausted its obligation under Law No. 19,568, thus precluding the Claimants from being able to seek compensation, as the Respondent could not be forced to compensate twice for an asset.151
85.
The Claimants invoke various provisions of Chilean domestic law, including Articles 10 and 18 of the Constitution which entrench the right to property and the obligation to pay compensation for the deprivation of property;152 Articles 2314 and 2329 of the Civil Code likewise provide for an obligation to pay reparation for injury caused by administrative acts;153 and Article 1556 of the Civil Code, stipulates that compensation for injuries comprises both lucrum cessans and damnum emergens.154 The Claimants assert that these provisions of domestic law also grant them a right to restitutio in integrum, irrespective of any specific protections in place at the time of the seizure.155

(4) The quantum of damages

a. Compensation due for the breaches of Article 4 of the BIT

(i) Fair market value is the appropriate standard of compensation for the injury inflicted upon the Claimants by the Respondent

86.
The Claimants submit that the aim of compensation is to undo material harm inflicted by a breach of an international obligation, and that in the present case, damages and interests should be calculated on the fair market value of the investment, taking into account damnum emergens, lucrum cessans and moral damages.156 The Claimants submit accordingly that as the injury to them consisted in their loss of the right to compensation for the seizure of CPP and EPC, compensation should be equivalent to the fair market value of these two companies just prior to their seizure, and that the resulting sum must be adjusted up to the date of the present Award.157
87.
The Claimants argue that the reference in the dispositif to their entitlement to ‘compensation' is a general reference to a right of reparation, and precludes neither reparation for moral injury nor a claim of unjust enrichment.158
88.
The Claimants point to domestic Chilean case law where compensation has been paid in situations where the relevant expropriatory decrees have been declared to be null under public law, and submit that similar treatment ought to apply to them.159 The Claimants submit that the consequence of the seven-year delay in the Goss press case and resulting denial of justice was to deprive them of their ability to assert their rights against Chile.160 They argue that, but for the concealment of the Santiago court judgment of 2008, the First Tribunal could not have concluded as it did in the First Award that Article 5 of the BIT was inapplicable ratione temporis to the expropriation,161 but would have accepted their ‘continuing act' theory.162
89.
The Claimants contend that, in cases of expropriation, the critical date from which damages are calculated is the date of deprivation of the rights of ownership, in this case 11 September 1973.163 Where successive violations of a BIT have occurred, the Claimants contend that the Tribunal may choose to fix a date other than the starting date of the expropriation in order to make fully operative the right to restitutio in integrum.164 They submit that, in the present case, the multiple violations committed by the Respondent favour the selection of the date of the First Award, 8 May 2008, as the critical date for establishing the fair market value of the companies.165
90.
The principal injury suffered by the Claimants remains, according to them, the value of the expropriated assets of CPP and EPC, both of which were ‘going concerns' which were in full development, and thus more valuable than the value of their discrete tangible assets.166
91.
The Claimants contend that the appropriate standard to be used in calculating damages in the present proceedings is one based in international law, and not the law of the host State; therefore Law No. 19,568 and the value paid to investors under it would not be relevant for the calculation of damages here.167 They reject the Respondent's contentions on the burden of proof for establishing damages, pointing out that paragraph 689 of the First Award, which deals with the burden of proof in establishing damages, was annulled by the ad hoc Committee.168

(ii) The injury suffered by reason of the violation of the obligation to provide fair and equitable treatment

92.
Citing the Chorzów Factory case,169 the Claimants submit that compensation is due for the expropriation value of El Clarín as, but for the discrimination suffered, they would have received reparation for the confiscation of the assets of CPP and EPC.170 They contend that they should be placed in the situation in which they would have been but for the commission of the internationally wrongful act.171 The Claimants also suggest that the Tribunal enjoys the discretionary power to determine which standard of reparation is the most appropriate.172 They further contend that under ICSID case law, compensation can also be calculated on fair market value for BIT violations not constituting expropriation.173 Finally, they reject the Respondent's contention that no harm resulted from the discrimination, on the ground that to do so questions the very existence of the violation, which is res judicata.174
93.
The Claimants contend that Decision No. 43 was in fact adopted as a deliberate manoeuvre by the Respondent during proceedings before the First Tribunal, with the sole purpose of constructing evidence that the Claimants were not the legitimate owners of CPP and EPC.175 Recalling that Chilean domestic law recognizes that legal persons can also seek moral damages for injuries caused by administrative acts, the Claimants submit that the correct calculation of compensation for the violation of the obligation of fair and equitable treatment is the payment of the compensation that would be due to investors for the seizure of CPP and EPC, as well as the moral damages resulting to Mr Pey Casado and the Foundation.176
94.
The Claimants maintain that they are not bound by the calculation of the quantum of damages under domestic law, which under Decision No. 43 only awarded damnum emergens and omitted lucrum cessans entirely.177 They contend that Law No. 19,568 was in any event only one particular means to implement the obligation to respect property, or to receive restitution and reparation for the deprivation of property, as embodied in the Chilean Constitution.178 The Claimants further contend that they cannot be bound by the calculations issued pursuant to Decision No. 43, as they had no opportunity to make observations during the proceedings leading to that decision.179

(iii) In the alternative, damages should be calculated on the basis of the Respondent's unjust enrichment

95.
The Claimants submit that the Respondent's unjust enrichment should be used as the basis to calculate the compensation due to them, on the general principle in international law that no State has the right to enrich itself to the detriment of another State or legal person.180 Accordingly, the Claimants' alternative contention is that they should be awarded the value of the unjust enrichment enjoyed by the Respondent through 40 years' use of the seized assets.181
96.
The Claimants rebut the Respondent's argument that a claim for unjust enrichment represents a new claim, as it represents only a basis for the calculation of damages once liability has been established;182 moreover, new evidence may be introduced if it is for the sole purpose of calculating damages to be awarded.183
97.
According to the Claimants, the mention of compensation in the un-annulled portions of the First Award need not exclude other such forms of reparation, as the term refers to harm that is financially quantifiable.184 They point out that the only passages in the First Award that excluded certain types of reparation are those passages where moral damages were excluded, which were however in the annulled sections of the First Award and cannot be considered before the present Tribunal.185 The Claimants moreover contend that the term ‘compensation' refers to all forms of financial reparation for the injury suffered, be it moral or material, and that the International Law Commission reached the same conclusion.186
98.
The Claimants also contend that, even if the Respondent's conduct was not fraudulent, and even if Decree No. 165 is not null under public law ex tunc, the Respondent must still disgorge all the fruits of the confiscation of assets held in bad faith, on the basis that there exists a delictual act to the detriment of the Claimants and benefiting the Respondent.187 The Claimants submit that aggravated damages arising out of the bad faith of the Respondent are also permitted under Chilean civil law.188

b. The Accuracy expert report

99.
The Claimants contend that the figures presented by Accuracy are pertinent and accurate, and take into account the differences between El Clarín and the chosen comparators, in particular through the use of the 20% discount.189 The Claimants further contend that the facts subsequent to the critical date of 10 September 1973 are not relevant in the present case, as the objective of a comparative approach is to determine what the reasonable and well-informed businessman would have been prepared to pay on the critical date, using knowledge available at the time.190
100.
The Claimants recall that Accuracy considered that the analogical method was the most reliable method to establish the fair market value of CPP and EPC, and accordingly to substantiate an expropriation-based calculation of damages. They submit that the ‘Discounted Cash Flow method' (‘DCF') cannot be used in cases where there was insufficient financial information, and that, owing to the Respondent's systematic refusal to produce the financial documents sought by the Claimants, it would not have been possible to use this method.191 Accuracy states that the method of assessment using fair market value is not expropriation-based, but applicable to a wider range of assessments.192 The Claimants further contend that in any event, the ad hoc Committee annulled Section VIII of the First Award, in which the First Tribunal rejected the use of expropriation-based damages, and therefore there would be no violation of res judicata in calculating compensation based on fair market value.193
101.
The Claimants submit that in calculating the compensation due for the expropriation of CPP, the price paid by Mr Pey Casado cannot be relevant, as fair market value is an abstract concept that does not take into account the particularities of a given situation.194 They point to the fact that the price paid by Mr Pey Casado to Mr Sainte-Marie reflected the ‘fair value', but not the ‘fair market value', of CPP and EPC, as it reflected the specific positions of the two parties to the transaction, who were friends and long-standing colleagues, rather than the fair market value of the assets sold.195
102.
The Claimants defend the use by Accuracy of the US dollar in its calculations, on the basis that a prudent investor at that time would have used that currency, and that any differences in inflation between the US and Chile would have been counter-balanced by changes in the exchange rates between the two currencies. The exchange rate used by Accuracy was the average annual exchange rate published by the Bank of Chile, which corresponds to the rate that would have been applied to businessmen seeking to purchase United States dollars during that period.196 With respect to the capitalization rates used, the Claimants defend Accuracy's choice of the mid-rate of American ten-year Treasury Bonds, augmented by a national risk premium of 2% corresponding to the rate assigned to Chile from 1974 to 2000 and subjected to annual review from 2000-2014.197
103.
The Claimants contend that the expert report submitted by Navigant in support of the Respondent's claim is based on an incorrect interpretation of the dispute as directed by the Respondent, and that Navigant's entire report is outside its field of expertise, being based on a legal analysis of the consequences of a treaty violation and not on financial matters.198
104.
The Claimants suggest that Accuracy's damages assessment should be used by the Tribunal as Navigant, the Respondent's expert, has not proposed an alternative damages assessment,199 and because the Respondent has failed to produce the documents requested by the Claimants in their March and November 2014 requests for document production.200 The expert reports of Accuracy are reliable and trustworthy, even if a measure of uncertainty is present in the calculations, as there exists an inherent uncertainty in damages calculations, and the Tribunal possesses the discretion to make an approximate calculation as to the amount recoverable.201
105.
Moreover, given the particularly violent character of the expropriation in the present case, and the inability of the Claimants to obtain key information from the Respondent, Accuracy was only able to obtain incomplete information relating to its calculations. The Tribunal should give the Claimants the benefit of the doubt and consider the value range submitted by Accuracy.202
106.
The Claimants explain that the EBITDA adjustment undertaken by Accuracy, which aims to establish the fair market value of the companies concerned, used a number of comparators from the American press sector: a high average of 12 x EBITDA, which excludes the New York Times and the Washington Post, and a low average of 9.9 x EBITDA, which includes them; the period under study is from 1988-2013, including a particular emphasis on the transactions of these comparator companies from 2000-2013.203 The Claimants recommend that the high average of 12x be retained, arguing that the New York Times and Washington Post present a notably different corporate profile of activity.204 Accuracy have also applied a 20% discount (décote) by reason of the absence of similar data for the press sector in Latin America, and using a range of multiples in line with the practice of other forecasters; after the discount, the 12x multiple would be converted to 9.6 x EBITDA.205 They reject the Respondent's contention that the New York Times and the Washington Post should not have been excluded, as these two comparators are the least close to the situation of El Clarín.206 The Claimants contend that the EBITDA adjustment has been confirmed in the First Award and has the character of res judicata, and that the Respondent's objections to this adjustment are unfounded.207
107.
The Claimants explain that Accuracy analysed the financial data of the seized companies prior to their seizure from 1970 to 1972, so as to determine the profitability of the operational activity of the group.208 Accuracy has concluded that the aggregate value (normalized EBITDA value) of the Group El Clarín was, in 1972, either US$738,000 or US$1,222,000.209 The Claimants contend that two figures were necessary given the claimed concealment by the Respondent of figures relating to 1973, and that the higher figure should be preferred.210 Taking into consideration the El Clarín Group's debt of US$535,000, the Claimants calculate that, according to the normalized EBITDA value of (US$1,222,000 -US$535,000), the value of the shares in CPP and EPC on the eve of their seizure de facto was US$11,200,000.211
108.
The Claimants contend that the material injury to the Claimants must be capitalized up to the date of the First Award, 8 May 2008, after which compound interest should apply until the date of payment.212 Capitalization should be at the rate of American 10-year Treasury bonds augmented by the risk premium pertaining to Chile, namely, fixed at 2% from 19731999 and revised each year from 2000-2008.213 From 8 May 2008 until 27 June 2014, compound interest of 5% has been applied.214 The injury suffered by the Claimants, valued on 27 June 2014, is thus US$329,700,000.
109.
The Claimants' request for relief, drawn from the second Accuracy Report, is therefore US$338.3 million, which is equal to the compensation that would be due from the Respondent to the Claimants for the shares of CPP and EPC Ltda.215

(i) The compensation calculation for unjust enrichment

110.
With respect to the unjust enrichment calculation, the Claimants' alternative claim is for: 1) the value of the rents saved by the Respondent between 11 September 1973 and 22 April 2013, assessed at US$3,800,000;216 2) the value of real estate and moveable property seized by the Respondent in 1973, adjusted for rises in property values,217 assessed at US$17,800,000;218 3) the Respondent's enjoyment and use of premises in Santiago, Viña del Mar and Concepción claiming the benefits of the savings accrued by the Respondent since 11 September 1973,219 assessed at US$1,500,000;220 and 4) the Respondent's enjoyment and use of the moveable property owned by CPP and EPC, in particular, the Goss and Plamag presses.221 The Claimants contend that to achieve restitutio in integrum these should be capitalized annually, so that on 27 June 2014, the reparation due for unjust enrichment was US$91,600,000.222 Given the fact of confiscation, no evidence is required as to the actual use of the assets made by the Respondent.223
111.
The Claimants conclude that, on the basis of unjust enrichment, they are entitled to the sum of US$94.1 million,224 having regard to the profits or savings made by the Respondent from the seizure of the assets of CPP and EPC.225

c. The calculation of moral damages

112.
The Claimants claim for the moral injury suffered by Mr Pey Casado and the Foundation Presidente Allende, for the injury endured by Mr Pey Casado through the seizure of CPP and EPC's assets and subsequently, as well as for the Respondent's misconduct during the arbitral proceedings.226
113.
The Claimants submit that it falls outside the expertise of Accuracy to calculate moral damages, and that it is for them to provide detail as to the basis for compensation for such damages.227 Moral damages are not excluded by the dispositif of the First Award since ‘compensation' refers simply to indemnification, whether for material or moral damages.228
114.
The Foundation Presidente Allende and Ms Pey Grebe have standing to claim moral damages, because they are not claiming for any direct injury to them, but for the violation of Article 4 of the BIT, which includes moral injury, given the character assassination of Mr Pey Casado since 11 September 1973.229 The Claimants further submit that a causal link exists between the moral damages suffered and the violation of Article 4 recognized by the First Tribunal, as well as by the Chilean Supreme Court in its judgment of 21 June 2000.230
115.
Given the gravity and recurring nature of the moral injuries suffered by Mr Pey Casado,231 the Claimants have assigned the value of US$10,000,000 to Ms Pey Grebe, and US$500,000 to the Foundation Presidente Allende for this harm.232

d. Tax gross-up

116.
The Claimants contend that any compensation must take into account the difference between the tax rate that would be paid at the time of any eventual award, and the tax rate applicable on the capital gains that would have been paid had compensation been awarded in 1973.233 They thus request a tax gross-up on the damages awarded, so as to restore fully to them their patrimony had there been no violation of fair and equitable treatment.234 They calculate that the tax gross-up should be between US$10 and 13 million (Accurracy's Approach A), or between US$18 and 22 million (Accurracy's Approach B) for the principal claim, and more than US$6 million for the ancillary claim.235
117.
During the oral proceedings, the Claimants sought to introduce into the record new tax calculations, with respect to the rates of taxation applicable in Chile in 2015, on the basis that these were a simple update of document CM-48.236 The Respondent objected to the introduction of this new documentation, on the basis that these constituted an entirely new document that they have not had the opportunity to assess, rebut, or show to experts.237 By email dated 16 May 2015, the Tribunal informed the Parties that it would "rule on the Claimants' request as and when it reaches the point of deciding on the relevance of tax rate schedules to its Award."

e. Interest

118.
The Claimants submit that the awarding of interest is an accepted practice in international dispute settlement,238 and that abundant international case law supports the award of compound interest from the date of the award.239 They recall that the rate used by Accuracy reflects the rate used by the First Tribunal and the ad hoc Committee of 5%,240 and deny any responsibility for the lapse of time since the Award, given the concealment by the Respondent of the Santiago court judgment.241
119.
The Claimants further request that, in the case of default, interest of 10% should be levied after 90 days from the date of the eventual Award.242 They point to previous refusals by the Respondent voluntarily to execute the Award as justifying any forward-looking measures to establish post-Award interest.243

f. Incidental damages, costs and fees

120.
The Claimants maintain that compensation may be claimed for the incidental costs of acts taken to remedy or mitigate the original injury, including the cost of pursuing judicial proceedings.244 They contend that the First Award in fact made provision for such costs in paragraphs 719 and 730,245 and that costs and fees, including legal fees, can be regarded as damages caused by the unlawful act, and thus as consequential damages under international law.246 The Claimants estimate the incidental costs of all acts taken to remedy or mitigate the original injury, including the total costs of arbitral and judicial proceedings, at €11,156,739 and $US517,533 plus interest.247
121.
Based on the same principle, the Claimants seek compensation for the additional costs imposed on them by the Respondent's refusal to execute the First Award without delay, namely €102,734.75 for the legal fees of Me Manuel Murillo, and €8,890.72 for those of Mr Bordallo.248 The Claimants recalled that, pursuant to the decision of 16 December 2014 of the Spanish tribunal, a portion of those sums, €69,545.67, may allow for enforced recovery against assets held jure gestionis by the Respondent in Spain. By letter of 22 April 2015, the Claimants took note of the fact that the Respondent had paid this sum, and in a written communication addressed to the Parties of 16 May 2015, the Tribunal took note of the Claimants' abandonment of their claim for that specific sum.
122.
The Claimants' full request for costs totals € 11,156,739.44 and US$517,533.249 With respect to costs and fees relating specifically to the Resubmission Proceeding, the Claimants submitted figures of US$4,534,826.60 and €33,332.19 in legal costs and translation costs.250

C. Overview of the Respondent's Submissions

123.
The Respondent's submissions can be divided into three broad sections: challenges to the standing of Ms Pey Grebe, and to the admissibility of the Claimants' requests for relief; challenges to the Claimants' theory of damages, and in particular, the damages calculations presented by their expert; and challenges to the Claimants' requests for a tax gross-up, interest, and costs and fees.
124.
The Respondent's principal submission in response to the Claimants' submission is that ‘each and every one of the Claimants' requests for relief' exceeds the Tribunal's authority to award relief in the present proceedings,251 as they contravene the two fundamental principles that characterize ICSID resubmission proceedings: first, the parties must be in complete identity with those that participated in both the original arbitration that yielded the award and the annulment proceeding that vacated the award in full or in part; and secondly, the parties and the resubmission tribunal remain bound by the un-annulled portions of the award, with the competence of the resubmission tribunal confined to deciding issues raised in the annulled portion(s) of the First Award.252

(1) Jurisdiction and Admissibility

a. The Tribunal lacks jurisdiction over Ms Pey Grebe and her claims

125.
The Respondent considers that the Claimants' decision to substitute Ms Coral Pey Grebe for Mr Pey as Claimant generates three specific jurisdictional problems. The Respondent suggests instead that Mr Pey Casado be reinstated as Claimant in the proceeding, in lieu of Ms Pey Grebe, and that, in the light of Mr Pey Casado's advanced age, Ms Pey Grebe be regarded as her father's representative.253
126.
In the Respondent's contention Ms Pey Grebe is not a proper party to the Resubmission Proceeding, since Article 52 of the ICSID Convention provides that only the same ‘parties' who participated in both the arbitration and the annulment proceedings are entitled to seek resubmission of a dispute following the full or partial annulment of an award.254 The Respondent argues that because the First Award did not make any jurisdictional findings on claims of Ms Pey Grebe, she lacks standing to assert rights on the basis of the First Award's findings, as ICSID rules do not allow for representative claims.255
127.
The Respondent further submits that the Tribunal lacks jurisdiction ratione materiae over Ms Pey Grebe as she does not have a qualifying ‘investment'. Investors must not only hold some type of protected asset, but the asset must, under Article 1(2) of the BIT,256 have been obtained as a result of a personal contribution; the cession from Mr Pey Casado to his daughter does not qualify, as it was made without consideration (à titre gratuit). Moreover, the object of the cession is precisely what the First Award found to have been expropriated definitively during the 1970s.257
128.
The Respondent further submits that jurisdiction has not been, and in all likelihood cannot be, established with respect to Ms Pey Grebe, as Article 25(2)(a) of the ICSID Convention prohibits claims by dual nationals if one of the nationalities is that of the respondent State; the Claimants have not denied that Ms Pey Grebe is a dual Spanish-Chilean national, was born in Chile, and continues to bear Chilean nationality.258
129.
Finally, the Respondent maintains that the Tribunal is not empowered to award relief to Ms Pey Grebe for an injury sustained by another party, in particular those which by their nature are in personam, or for an injury occurring prior to her claimed investment.259 Because Ms Pey Grebe was not a party to the Chilean court proceeding that was the subject of the finding of a denial of justice in the First Award, the Respondent concludes that Ms Pey Grebe cannot recover any damages for that finding. In the alternative, the Respondent argues that even if the violations of the BIT found in the First Award relate only to the investment and not to the investor as such, Ms Pey Grebe cannot recover for harm caused before her claimed acquisition of the investment in March 2013.260
130.
As to the more specific arguments made by the Claimants in support of Ms Pey Grebe's status as Claimant in the Resubmission Proceedings: (a) although it is right that jurisdiction is to be established at the moment that proceedings are instituted, the Respondent submits that if a new claimant joins the case, the Tribunal must evaluate its jurisdiction anew as to each such claimant; (b) the assignment of Mr Pey Casado's shares in El Clarín and rights in this arbitration does not suffice to establish Ms Pey Grebe's standing, because the requirement of the identity of the parties is not satisfied merely by virtue of a transfer of rights; (c) although the Claimants contend that the assignment constitutes a valid legal agreement that must be respected by the Tribunal, to uphold the Claimant's argument would be to permit a private agreement to supersede the limitations on jurisdiction imposed by the ICSID Convention; (d) the Respondent denies that it is merely repeating its earlier objection to the First Tribunal's jurisdiction over the Foundation, since the situation of Ms Pey Grebe has to be distinguished on the grounds set out above; (e) the Respondent denies that it is precluded from raising jurisdictional objections in the Counter-Memorial, as ICSID Arbitration Rule 41(1) allows a party to identify jurisdictional deficiencies until ‘the expiration of the time limit fixed for the filing of the counter-memorial'; no ICSID tribunal has ever refused to examine jurisdictional deficiencies identified in a respondent's countermemorial, but the Tribunal must in any event evaluate sua sponte any jurisdictional defects posed by Ms Pey Grebe's role as Claimant; (f) finally, the Respondent denies that its objections are designed to deprive Mr Pey Casado of the benefits of the First Award, since the problems arise out of the Claimants' own unwillingness to reinstate Mr Pey Casado as Claimant.261

b. The damage calculations offered by the Claimants and their expert are inadmissible, as they do not relate specifically to the two BIT violations identified in the First Award

131.

The Respondent recalls that Procedural Order No. 1 identifies the scope of the Tribunal's authority as the matters identified in paragraph 359.1 of the Decision on Annulment, and submits that all the Claimants' requests for relief, in particular those relating to claimed postFirst Award violations of Article 4 of the BIT, exceed the Tribunal's authority, as they either represent a variety of new claims or revisit prior failed claims.262 The Respondent rejects in particular the following: the freestanding expropriation claim; the claim that various post First Award events relating to the Goss press constitute a violation of Article 4 of the BIT; the claim that the behaviour of its representatives amounts to a new violation of Article 4 of the BIT; the claim that national treatment was denied to the Claimants when the owners of most other media companies were compensated for the expropriation of their assets; and the claim based on unjust enrichment.263

132.
The Respondent contends that the Claimants' requests for relief are improper because they are inconsistent with the nature and scope of the Resubmission Proceeding, and directly contradict prior decisions which are res judicata.264 The Respondent points, in particular, to the three requests corresponding to the expropriation value of El Clarín, the requests for costs and legal fees that were declined by the First Tribunal and ad hoc Committee, and the request for moral damages;265 all of these are insufficiently connected to the two violations of the BIT that fall within the scope of the Resubmission Proceeding, and in any event Chile has already paid some of these costs and fees.266 The Respondent further contends that, because paragraph 3 of the First Award's dispositif was not annulled and remains binding, it precludes the Tribunal from ordering restitution or satisfaction; accordingly, it may not consider any claims for unjust enrichment or moral damages, as these are not requests for compensation, compensation being understood as financially assessable damages.267

c. The claims based on expropriation value contradict unannulled portions of the First Award and are outside the scope of the Resubmission Proceeding

133.
With respect to the requests corresponding to the expropriation value of El Clarín, the Respondent submits that un-annulled portions of the First Award preclude any assessment of damages that equates injury from the BIT violations with the injury from the expropriation of El Clarín. The Respondent submits that the un-annulled portions of the First Award declare that none of the BIT's substantive protections applied to the expropriation of El Clarín, and that the two BIT violations are distinct from any expropriation-based violation.268 Liability for a breach being a prerequisite for an award of damages as compensation, the Respondent concludes that the Claimants' request would entail it being obliged to pay damages for a BIT violation not found by the First Tribunal.269
134.
The Respondent denies that any unjust enrichment gained by it can be awarded by the Tribunal, primarily because, whether or not unjust enrichment was argued before the First Tribunal but not considered in the First Award, the First Tribunal ‘unambiguously concluded' that none of the BIT's substantive protections could apply either to the taking of control over the assets of El Clarín, or to the depriving of the Claimants of the benefits of them.270 The Respondent therefore submits that to grant any compensation for unjust enrichment would be ‘completely arbitrary, inconsistent with binding conclusions from the Award, contrary to the Annulment Decision's clear and explicit guidance on the issues and findings that had been annulled... and at odds with the... tenet of international law that a State can be condemned to pay damages for particular conduct only if there has been a finding of liability for such conduct'.271
135.

The Respondent submits in the alternative that even if the First Award had failed to address a claim for unjust enrichment, the appropriate proceeding would have been the filing of a request for supplementation pursuant to Article 49(2) of the ICSID Convention, but subject to a fixed time limit of 45 days after the date on which an award is rendered; having failed to observe that, the Claimants must now be deemed to have waived their rights to make such a claim.272

d. The Claimants' request for costs incurred in prior phases of the dispute is impermissible

136.
The Respondent argues that the Claimants' request for costs incurred in prior phases of the dispute is outside the scope of the Resubmission Proceeding. The Respondent also contends that the Tribunal cannot entertain costs claims relating to violations of Article 3 of the BIT and of Articles 53(1) and 54(1) of the ICSID Convention, as it has not been found in breach of these provisions by any ICSID panel.273 As to claims for prior costs linked to the violation of Article 4 of the BIT, the Respondent maintains that these must be rejected in the present Resubmission Proceeding, as the First Tribunal, the Revision Tribunal, the ad hoc Committee, and the Spanish court in the enforcement proceeding in Spain had already ruled on the Claimants' costs requests in the context of each proceeding.274 Finally, the Respondent notes that it has already paid the cost amounts owed to the Claimants pursuant to the cost awards in the First Award and Supplementation Decision of 19 June 2013.275 The sum of US$2,634.83 noted by the Claimants as missing is due to a commission that the Claimants' bank had deducted from the amount transferred by Chile.276

e. The Claimants' claim for moral damages is improper

137.
The Respondent submits that it would be impermissible to award moral damages, whether for the seizure of El Clarín or in compensation for any claimed misconduct on its part during the arbitration proceedings, on the basis that neither of them relates to the two BIT violations found in the First Award; it recalls in particular that the First Tribunal expressly rejected the Claimants' submissions concerning any misconduct during the arbitration proceedings. The Respondent contends that the Claimants are only entitled to compensation for the BIT violations, and then only to compensation which corresponds to ‘financially assessable damage'; by contrast, moral damages cannot be quantified, so that the Claimants' request for US$10.5 million in moral damages is arbitrary. Even if the Tribunal were authorized to award moral damages, it could still not do so for the benefit of Ms Pey Grebe or to the Foundation for injuries suffered by Mr Pey Casado , as the ICSID system only allows for claims for losses suffered personally, and the interests of Ms Pey Grebe and the Foundation were not acquired until 2013 and 1990 respectively, thus much later than when the purported injuries were sustained.277

f. The Claimants have failed to satisfy their burden of proving their damages, and thus are entitled to no compensation

138.
The Respondent submits that, inasmuch as the Claimants have failed to identify any relief that can be granted by the Tribunal, no compensation can be awarded. The Claimants have instead claimed for the expropriation value of El Clarín, which is excluded by the unannulled conclusions of the First Award, and have neglected to advance any damages calculations or theories with respect to the BIT violations upheld by the First Award.278 The Respondent takes the view that even if a BIT violation is found to exist, a tribunal may decline to award any damages to a claimant if the claimant fails to meet its burden of proving them.279
139.
The Respondent further submits that the Claimants' brought the harm on themselves by their own actions, by knowingly and voluntarily declining to participate in the relevant Chilean reparations process established by Law No. 19,568, instead opting to pursue their expropriation claims in an international forum, which, through the ‘fork-in-the-road' clause in the Chile-Spain BIT, made it impossible for the Respondent to compensate them under Chilean law for the expropriation of El Clarín.280

(2) Merits: calculating the quantum of damages

a. All the Claimants' arguments on damages are ill-founded

140.
The Respondent disputes all of the Claimants' arguments on damages, on the basis that they are irrelevant to the Resubmission Proceeding and exceed its scope. They create the risk of a contradiction between the First Award and the present Tribunal's Award, or would represent a serious departure from a fundamental rule of procedure. The Respondent recalls its earlier submission that there is no causal link between the denial of justice and discrimination violations and the ability of the Claimants to obtain compensation for the expropriation of El Clarín, but that it was the Claimants' own decision to eschew Chilean legal mechanisms in favour of an international claim.281

b. The Claimants' theory of damages for the denial of justice violation is untenable

141.
The Respondent contends that, despite bearing the burden of proving causation, quantum and the recoverability of the loss claimed by the denial of justice violation, the Claimants have not presented any damages calculation that relates specifically to it, but instead, have presented a theory of damages that has already been rejected by the First Tribunal.282
142.
The Respondent recalls that the First Tribunal confined the denial of justice purely to the absence of a decision on the merits in the Goss press case between September 1994 and 4 November 2002, and not the underlying issue relating to the confiscation itself;283 to accept the Claimants' ‘continuing expropriation' theory of compensation would, however, be to rule upon the substance of the confiscation claim, and to overturn or contradict the unannulled conclusions in the First Award.284 The Respondent also contends that the denial of justice is limited only to the absence of decision by the Chilean tribunals for more than seven years, and not to any other conduct by them;285 the only effect of the seven-year delay is that that court would have ruled earlier, but still against Mr Pey Casado, and in any event the Santiago court could not possibly have granted Mr Pey Casado the full expropriation value of El Clarín, as he was only asking for the value of the Goss printing press.286
143.
Moreover, to substantiate their claim the Claimants would have had to prove that the denial of justice had prevented the First Tribunal from awarding compensation to the Claimants in the amount of the expropriation value of El Clarín, yet this is in fact the very portion of the First Award that was annulled.287 However, the First Tribunal based its conclusion purely on its determination that the expropriation of El Clarín was an instantaneous act, and the status of Decree No. 165 under Chilean law had no bearing on the issue of when the expropriation was consummated .288 Accordingly, the First Tribunal's reference to Decree No. 165 concerned its timing, and had no bearing on the legal status or validity of that document.289

(i) The Claimants' submissions amount to the overturning of binding conclusions from the First Award

145.
The Respondent submits that the Tribunal has no authority to grant either the Claimants' request to apply the BIT's substantive provisions to the expropriation of El Clarín, or their request for compensation in the amount of the expropriation value of El Clarín.295 To do so would require overturning several binding conclusions from the un-annulled portions of the First Award: (a) the inapplicability ratione temporis of the BIT's substantive provisions; (b) that the seizure and transfer of assets from CPP and EPC to the Chilean State were constitutive of a consummated fact that was distinct from violations occurring after the entry into force of the BIT; (c) that the Claimants' ancillary request of 4 November 2002 was not a request for restitution for the seizure of the Goss press, but a request for reparation for the injury suffered by Mr Pey Casado for the denial of justice. The Respondent reiterates that under Arbitration Rule 55(3), the present Tribunal cannot revisit any of the un-annulled passages of the First Award, which are res judicata.296
146.
The Respondent further submits that, under Article 2.2. of the BIT, an investment may have been made prior to its entry into force, but must still be existing at the time of the entry into force; if the investment has already disappeared, it cannot be covered by the BIT.297
147.
The Respondent argues that new evidence, e.g. in the form of the Santiago court ruling, allows for the reopening of an Award only in the context of a revision proceeding pursuant to Article 51 of the ICSID Convention, but not that of a resubmission proceeding under Article 52.298
148.
According to the Respondent, the acts and omissions now complained of by the Claimants fall outside the temporal and substantive scope of the denial of justice found by the First Tribunal, which extends from 1995 and ended in 2002.299 In response to the allegations centring on the translation of the 2008 judgment of the Santiago court, the Respondent points to the original version of the document where there was a stamp over the three missing words, and suggests that this was the reason for the omission, not fraud.300 The Respondent further argues that the denial of justice found by the First Tribunal included only the conduct of Chilean domestic courts, and excluded any alleged misconduct by Chile's executive authorities in the prior phases of the present dispute.301
149.
The Respondent submits that the claim for restitution for the Goss press was dealt with in the Claimants' Ancillary Request of 2002, and that the finding that none of the substantive provisions of the Chile-Spain BIT applied to any of the expropriation-related claims, also encompasses claims relating to the Goss press, and is res judicata.302
150.
The Respondent further submits that the Claimants have neglected to provide any evidence or argument to identify the compensation that was due for the denial of justice resulting from the seven-year delay in the Santiago court proceeding, and that in any event the delay did not cause any compensable injury to the Claimants, as they would not have received compensation for the restitution value of the Goss press or for the expropriation value of El Clarín had there been no delay.303 The Respondent rejects the allegation that it had denied access to the Goss press case file at the Santiago court, in view of the evidence it has submitted that the Claimants only requested access to a small handful of pages from the case file, which they received.304

c. The Claimants' theory of damages for the discrimination violation is unfounded

151.
The Respondent contends that the Claimants' theory of damages for the discrimination violation encounters the identical objections to the theory put forward for the denial of justice; in both cases, the compensation demanded is for the expropriation value of El Clarín.305 The Respondent accordingly submits that because the Claimants have not identified any injury caused by the discrimination, no compensation can be awarded.
152.
The Respondent maintains that Mr Pey Casado was duly notified of the comprehensive reparations programme for military-era expropriations promulgated through Law No. 19,568, and invited to participate in it,306 but, under the ‘fork-in-the-road' provision in the BIT that required a choice between international and domestic remedies, Mr Pey Casado and the Foundation chose to notify the Chilean Ministry of National Assets that they would not pursue any claims through the 1998 programme.307
153.
With respect to Decision No. 43, which authorized the payment of compensation to the successors and representatives of four individuals who had established that they had owned assets belonging to CPP,308 the Respondent submits that the Claimants have mischaracterized the procedural history leading to the finding of discrimination; according to the Respondent, no quantifiable injury stems from the events that constituted the discrimination violation.309
154.
The 1998 Reparations Law was the only source of any right to compensation for the Claimants, but the right was extinguished by the express waiver of participation in the reparations programme;310 once a decision had been made on a particular asset, it was no longer possible for other claims to be filed over that asset under the Law.311 The letter sent by Mr Pey Casado to the President of Chile in September 1995 did not create a ‘freestanding' right to compensation for the expropriation of El Clarín ; on that reasoning, a respondent State would be in violation of its BIT obligations every time it were to reject or deny any compensation request made by any claimant, regardless of the merits of any such request.312
155.
The Respondent also rejects the argument that, but for the paralysis and rejection of their claims within the Chilean domestic system, the Claimants would have received compensation for the expropriation of El Clarín.313 According to the Respondent, the Claimants' actions were confined to efforts to stop the execution of Decision No. 43, and did not at any point include any affirmative request for compensation for the full expropriation value of El Clarín.314 The Respondent suggests that to put the Claimants in the position of there having been no violation of the BIT would only result in the suspension of Decision No. 43, and that no compensation for the expropriation value of El Clarín would have been awarded.315

d. The Claimants cannot identify any injury caused by the discrimination violation

156.
The Respondent argues further that, because Decision No. 43 does not address Mr Pey Casado's rights, nor did it conflict with the then ongoing Goss press case or affect the ICSID dispute between the parties, it cannot be said to have caused any injury to the Claimants;316 any injury that might be said to exist was caused by the Claimants' own conscious decision not to participate in the 1998 reparations programme.317 Even if the administrative process that led to Decision No. 43 had been suspended, no benefit would have accrued to the Claimants.318 Decision No. 43 was not issued with the aim of frustrating the Claimants' rights, notably the right to arbitration, and the First Tribunal has already rejected the Claimants' arguments on this point.319
157.
Finally, the Respondent submits that, though the ad hoc Committee did not annul the First Tribunal's conclusion that the Claimants are entitled to compensation, that does not endow the present Tribunal with a general discretion to award compensation, unless the Claimants can meet the usual requirements to prove causation and quantum.320 The Respondent recalls the finding of the First Tribunal that Decision No. 43 could only be considered a violation of Article 4 of the BIT, and not a violation of Articles 3 and 5.321 As the Claimants had expressly waived their right to assert claims under the 1998 reparations programme, no harm is attributable to the discrimination engendered by Decision No. 43; therefore, no compensation is to be awarded.322

(3) The calculation of damages

a. Accuracy's damages calculations cannot be regarded as reliable

158.
The Respondent asserts that, as shown by the Navigant Expert Reports, Accuracy's damages calculations cannot be relied upon, as they are methodologically and logically unsound, speculative and contrary to explicit determinations in the First Award and Annulment decision,323 particularly in that they have not calculated separately damages for the discrimination violation or the denial of justice violation.324 The damages assessment presented by Navigant, the Respondent's expert, is thus entirely appropriate as an alternative assessment. In any event it is the Claimants who bear the burden of proof in demonstrating, for damages purposes, the situation that would have obtained but for the relevant violations of the BIT established by the un-annulled portions of the First Award.
159.
The Respondent argues that adverse inferences cannot be drawn against it for the nonproduction of documents requested by the Claimants in March and November 2014; the IBA Rules on the Taking of Evidence in International Arbitration only permit adverse inferences to be drawn ‘[i]f a Party fails without satisfactory explanation to produce any Document requested in a Request to Produce to which it has not objected in due time or fails to produce any Document ordered to be produced by the Arbitral Tribunal.' but here the Tribunal had rejected the Claimants' requests in their entirety.325
160.
The Respondent regards Accuracy's damages calculation as speculative because the Claimants have quantified the same injury with figures that have diverged substantially: US$515 million in their Request for Arbitration;326 US$397 million in their CounterMemorial on Merits and Jurisdiction;327 US$797 million during the Revision Proceeding;328 and in the present proceeding, US$338 million.329 The Respondent suggests that these figures vary by more than 692 percent, and Accuracy provides five different damages estimates which range from US$91,669,220 to US$329,678,000.330
161.
The Respondent contests the legitimacy of Accuracy adjusting their "Main Claims" calculations even though they know the actual figures for El Clarín 's earnings in 1970-1972; this ‘adjustment' amounts to 90% of the amount claimed.331 Moreover, Accuracy improperly relies on a comparison of El Clarín with large United States media conglomerates, including an adjustment of 20% achieved by eliminating from the calculation two United States conglomerates that, according to the Respondent, were the most comparable to El Clarín.332
162.
The Respondent further submits that Accuracy has ignored the particular circumstances of the economy of Chile in the 1970s by assuming that the Claimants would have been paid in US dollars and ignoring the rapid decrease in value of the assets of El Clarín that would have resulted in an economic environment in which inflation was as high as 341% from 1974 to 1975.333
163.
The Respondent rejects the Claimants' argument that fair market value can serve as the standard of compensation for breaches of fair and equitable treatment and suggests that the application of the fair market value standard is not always an appropriate or logical measure of compensation for non-expropriation violations.334 The Respondent submits that the case law of investment tribunals shows that compensation based on fair market value has always involved a deprivation of the entire investment, or its value.335 The Respondent asserts that the Claimants have failed to established any causal link between the compensation they seek and the two violations declared in the First Award.

b. The Claimants are not entitled to compensation on the basis of unjust enrichment

164.
The Respondent submits that unjust enrichment is not a legitimate methodology for the quantification of damages in this proceeding, as it exceeds the scope of the Tribunal's authority,336 but also as a general matter of damages under international law.337 The Respondent submits, in the alternative, that even if a causal link did exist between the BIT violations found in the First Award and the damages assessments submitted by the Claimants, the Respondent has disgorged whatever enrichment it might have derived from the expropriation of El Clarín in virtue of the payment made to Messrs Sainte-Marie, Carrasco, González and Venegas under Decision No. 43.338 In any case, the Respondent challenges the Claimants' estimates as involving several levels of conjecture, including the calculation of rental amounts from 1973 to 2013 using inappropriate valuation methodology, and in some cases the fact that the rental properties no longer existed.339

c. A tax gross-up would not be appropriate

165.
The Respondent contends that a tax gross-up in any amount would be improper and unprecedented;340 any potential domestic tax obligations of the Claimants cannot be considered ‘losses' for purposes of damage recovery under international investment arbitration, as they are not directly attributable to the opposing party in the investment dispute.341 In the alternative, the Respondent argues that neither the Claimants nor their experts have invoked any legal provision currently in force in Chile or any other jurisdiction to sustain the proposition that the Claimants would be taxed on an eventual award in this case,342 and have failed to account for the potential implications of multi-jurisdictional tax treatment.343 However, the Respondent submits that in any event the few tribunals that have addressed claims for a tax gross-up have uniformly rejected them.344

d. Interest cannot be added to any award of damages

166.
The Respondent rejects outright any entitlement to interest on an award of damages in this case. The Claimants' claim to pre-award interest from September 1973 bears no relationship to the dates of the Article 4 BIT violations found in the First Award.345 The calculations are based on US dollars, despite the fact that the El Clarín Group's revenues and expenses were earned and incurred in Chilean escudos. The interest rate proposed is moreover an artificially inflated one.346
167.
With respect to the post-Award phase, the Respondent contends that most of the time elapsed since the issuance of the First Award has been spent by the parties addressing issues raised or proceedings commenced by the Claimants, or awaiting the decisions of the First Tribunal and the ad hoc Committee, and that to allow interest to accrue during that period would reward the Claimants for their unsuccessful invocation of remedies while punishing the Respondent for its successful request for annulment.347 The Respondent also challenges the Claimant's request for a compounded interest rate of 10% on any future Award issued by the Tribunal, which has no basis in the actual purpose, intent or conventions regarding the application of interest rates. To propose, as the Claimants do, that post-Award interest compound on a monthly basis deviates from compounding convention, which requires that the compounding periodicity be dictated by the interest rate.348

e. The Respondent seeks an award of costs and fees, including legal fees.

168.
The Respondent requests the Tribunal to order the Claimants to reimburse all costs and fees, including legal fees, incurred by it in this Resubmission Proceeding.349 It contends that the Claimants have distorted the contents of the Santiago court ruling to an extent that seems designed to mislead the Tribunal, and thus constitutes an abuse of process warranting penalization in the form of an award of costs.350
169.
The Respondent further argues that the Claimants have resorted to improper and unduly convoluted claims and arguments; have publicly accused the Respondent's counsel of bad faith, by uploading pleadings and correspondence in which they challenged the impartiality of Dr Libedinsky and the conduct of Ms Macchiavello and Mr Di Rosa;351 in addition, they have belaboured procedural points and improperly appealed certain issues; and generally have exacerbated the dispute through vexatious litigation tactics. In the circumstances, and in the light of these tactics, the Tribunal should order the Claimants to meet all the Respondent's costs and expenses, including legal and expert fees.352
170.
The Respondent's costs claim in respect of the present Resubmission Proceeding totals US$3,919,887.56.353

III.ANALYSIS

A. Introduction: the Role of a New Tribunal

171.
In coming to its decision on this case, the Tribunal is all too conscious (as it has been throughout the earlier phases of this resubmission proceeding) of how long it is since the events took place that gave rise to the dispute between the Parties, and indeed of the quite unusual length of the totality of the arbitral proceedings since their inception all of nineteen years ago. The Tribunal is aware, too, of the passion with which the case has been fought on both sides, and of the way in which the facts underlying the case entwine high politics with the personal fate of individuals, and commercial and economic relations with personal connections and family relationships.354 The Tribunal has therefore done its utmost to listen with careful and sympathetic attention to all of the arguments that have been brought before it by the Parties in writing and orally, without seeking to apply in advance any a priori criterion of selection as to which of them would ultimately prove relevant and material to its Award.
172.
The time has however now come for these arbitral proceedings to be brought to their final end; reipublicae interest ut finis sit litium. The Tribunal will now proceed to do so, with an expression of gratitude to all Parties and their counsel for the thoroughness of their arguments, but a reminder that its function, as an arbitration tribunal under the ICSID Convention and the ICSID Arbitration Rules, is to decide according to the applicable law, in its relation to the established facts. In the absence of any agreement to that effect between the Parties, the Tribunal has no power to decide their dispute ex aequo et bono.
173.
The Tribunal thinks it as well to recall at the outset the limited nature of its task. These are resubmission proceedings, following the partial annulment of the First Tribunal's Award. They are thus governed by Article 52(6) of the ICSID Convention, which provides that: "If the award is annulled, the dispute shall, at the request of either party, be submitted to a new Tribunal constituted in accordance with Section 2 of this Chapter." The present Tribunal is of course that ‘new Tribunal' and will address below what is to be understood as ‘the dispute' in the context of the partial annulment of the First Award. For good measure, and because of its direct relevance to that question, it is noted that Rule 55(3) of the ICSID Arbitration Rules provides specifically: "If the original award had only been annulled in part, the new Tribunal shall not reconsider any portion of the award not so annulled." The Tribunal will also address below what is meant by ‘reconsider' in the circumstances of the present case.
174.
It remains to recall, as the framework for what is to follow, the exact terms in which the ad hoc Committee brought about the partial annulment of the First Award, in its Decision of 18 December 2011:

Par ces motifs, le Comité rend les décisions suivantes :

1. décide d'annuler le paragraphe 4 du dispositif de la Sentence du 8 mai 2008 et les paragraphes correspondants dans le corps de la Sentence relatifs aux dommages-intérêts (Section VIII) conformément à l'article 52(1)(d) et (e) ;

2. rejette les autres fondements de la Demande en annulation de la République ;

3. rejette la demande des Demanderesses tendant à l'annulation partielle du paragraphe 8 du dispositif de la Sentence ;

4. estime que les paragraphes 1 à 3 et 5 à 8 du dispositif ainsi que le corps de la Sentence, à l'exception de la Section VIII, ont autorité de chose jugée.355

175.
To understand the import of this Decision, it is of course necessary to recall as well the dispositif of the First Award to which it refers. This reads as follows:

1. décide qu'il est compétent pour connaître du litige entre les demanderesses et la République du Chili ;

2. constate que la défenderesse a violé son obligation de faire bénéficier les demanderesses d'un traitement juste et équitable, en ce compris celle de s'abstenir de tout déni de justice

3. constate que les demanderesses ont droit à compensation356 ;

4. ordonne à la République du Chili de payer aux demanderesses le montant de USD 10,132,690.18, portant intérêt au taux de 5%, composé annuellement, à compter du 11 avril 2002 jusqu'à la date d'envoi de la présente sentence ;

5. met à la charge de la défenderesse une contribution aux frais et dépens exposés par les demanderesses, d'un montant de USD 2,000,000,- (deux millions) ;

6. décide que les frais de procédure seront supportés par les parties dans la proportion de : 3/4 du montant total (soit USD 3,136,893.34) pour la défenderesse et 1/4 du montant total (soit 1,045,631.11) pour les demanderesses ; ordonne en conséquence à la défenderesse de payer aux demanderesses la somme de USD 1,045,579.35 ;

7. ordonne à la République du Chili de procéder au paiement dans un délai de 90 jours à compter de la date d'envoi de la présente sentence, des sommes figurant dans le présent dispositif (points 4, 5 et 6), faute de quoi le montant portera intérêts composés annuellement au taux de 5%, à compter de la date d'envoi de la présente sentence jusqu'à celle du parfait paiement ;

8. rejette toutes autres ou plus amples conclusions.

179.
The Tribunal will therefore confine itself strictly to noting and analysing the First Tribunal's finding of breach, and the principles of compensation that follow from that finding, and, having done so, to applying those findings so as to arrive, in the light of the arguments put before it by the Parties, at the proper compensation that is due, as well as any consequential matters which hinge on that.

B. The Claimants in the Present Resubmission Proceedings

180.
Before proceeding to do so however, it will be convenient for the Tribunal to establish who should be understood as the Parties before it. In a normal situation, this question seldom arises; that it does so now is because of the doubts raised by the Respondent in respect of the appearance of Ms Coral Pey Grebe among those for whom counsel for the Claimants state that they are acting in these proceedings.
181.
To recapitulate: the original Request for Arbitration was brought against the Republic of Chile in the name of Mr Victor Pey Casado and the Foundation ‘President Allende'; it was registered by the Centre under that name as ARB/98/2, and that is the way it was known throughout the original proceedings. The First Award specifies that Mr Pey Casado and the Foundation are the Claimants in the proceedings, from which it necessarily follows that they are the beneficiaries of paragraphs 1, 2, and 3 of the dispositif of the First Award cited above. To be more precise, the finding in paragraph 1 must be understood as a determination of the Tribunal's jurisdiction over claims brought by Mr Pey Casado and the Foundation; and the findings in paragraphs 2 and 3 as to the existence of a breach, and the consequential entitlement to compensation, establish rights which vest in Mr Pey Casado and the Foundation.
182.