|FREQUENTLY USED ABBREVIATIONS AND ACRONYMS|
|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings|
|BIT||Agreement on Encouragement and Reciprocal Protection of Investments between the Macedonian Government and the Government of the Kingdom of the Netherlands, signed on 7 July 1998 and entered into force on 1 June 1999|
|CCG||Capital Conservator Group LLC|
|CCSL||Capital Conservator Savings & Loan Limited, the former name of the Claimant|
|CCT||Capital Conservator Trustees Limited|
|Claimant||Guardian Fiduciary Trust Limited, or GFT, formerly known as Capital Conservator Savings & Loan Limited|
|Deed||Deed of Trust dated 1 October 2008 (Exhibit R-0003)|
|FYROM||The Former Yugoslav Republic of Macedonia, or the Respondent|
|GFT||Guardian Fiduciary Trust Limited, or the Claimant, formerly known as Capital Conservator Savings & Loan Limited|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|IN Asset Management||IN Asset Management Limited|
|Memorial on Jurisdiction||Respondent's Memorial on Jurisdiction dated 19 September 2014|
|Memorial on the Merits||Claimant's Memorial on the Merits dated 30 December 2013|
|Counter-Memorial on Jurisdiction||Claimant's Counter-Memorial on Jurisdiction dated 18 November 2014|
|Reply on Jurisdiction||Respondent's Reply on Jurisdiction dated 19 January 2015|
|Rejoinder on Jurisdiction||Claimant's Rejoinder on Jurisdiction dated 19 March 2015|
|Request for Arbitration||Request for Arbitration dated 2 August 2012|
|Respondent||The Former Yugoslav Republic of Macedonia|
|Treaty||Agreement on Encouragement and Reciprocal Protection of Investments between the Macedonian Government and the Government of the Kingdom of the Netherlands, signed on 7 July 1998 and entered into force on 1 June 1999|
|Vienna Convention||Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969|
(1) The Tribunal lacks jurisdiction ratione materiae because the Claimant has failed to demonstrate that it has made any "investment" in FYROM (the "Respondent's First Objection");2
(2) The Tribunal lacks jurisdiction ratione personae because the Claimant does not qualify as a national of the Netherlands within the meaning of Article 1(b)(III) of the BIT (the "Respondent's Second Objection");3 and
(3) The Tribunal lacks jurisdiction over the dispute insofar as it relates to the conduct of the Respondent towards third parties (the "Respondent's Third Objection").4
"The Tribunal does agree however that the Respondent's Second Objection, i.e., as to whether the Claimant qualifies as a national of the Netherlands within the meaning of Article 1(b)(III) of the BIT, is not inextricably linked to the merits and is therefore capable of preliminary determination. The Tribunal considers that this would also serve procedural economy since, if successful, the Second Objection would be capable of disposing of the entire case, without the Tribunal having to engage in a detailed review of the evidence relating to the merits, and if unsuccessful, would reduce the scope of the subsequent phase."7
For the Claimant:
Mr Petro Janura Advocate Petro Janura
Mr Juan F. Torres III (by telephone) Juan F. Torres III, P.A.
For the Respondent:
Mr Charles Claypoole Latham & Watkins LLP
Mr Sebastian Seelmann-Eggebert Latham & Watkins LLP
Mr Robert Price Latham & Watkins LLP
Ms Angela Angelovska-Wilson Reed Smith LLP
Ms Emilija Radojkova State Attorney's Office of the Former
Yugoslav Republic of Macedonia
Mr Zlato Uzunoski State Attorney's Office of the Former
Yugoslav Republic of Macedonia State
Mr Arlinda Zimeri State Attorney's Office of the Former
Yugoslav Republic of Macedonia
Memorial on Jurisdiction, para. 19. Article 9 of the BIT, Exhibit C-0005, provides:
"Each Contracting State hereby consents to submit any legal dispute arising between that Contracting State and a national of the other Contracting State concerning an investment of that national in the territory of the former Contracting State to the International Centre for Settlement of Investment Disputes for settlement by conciliation or arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington on 18 March 1965. A legal person which is a national of one Contracting State and which before such a dispute arises is controlled by nationals of the other Contracting State shall, in accordance with Article 25(2)(b) of the Convention, for the purpose of the Convention be treated as a national of the other Contracting State."
According to the Respondent, Article 1(b)(III) of the BIT, which defines the term "national," must be interpreted in accordance with the customary international law rules of treaty interpretation as set out in the Vienna Convention on the Law of Treaties (the "Vienna Convention"), in particular the general rule of treaty interpretation in Article 31(1) of the Vienna Convention, which provides that "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."13
The Respondent also argues that the operations of Stichting Intetrust are not transparent, and "[i]t is unclear how the foundation could have directed or controlled the corporate entities below it."159 The Tribunal should look for evidence of control rather than rely on a formal legal ownership, as ownership "is not synonymous with control, nor is it alone determinative of control."160 In support of its position, the Respondent argues that investment arbitral tribunals look increasingly at actual evidence of control rather than relying on formal legal ownership, in particular for purposes of Article 25(2)(b) of the ICSID Convention.161
Memorial on Jurisdiction, para. 149.
Reply on Jurisdiction, para. 75.
Memorial on Jurisdiction, paras. 152-165 and Reply on Jurisdiction, paras. 60-73, citing Caratube International Oil Company LLP and Devincci Salah Hourani v. Republic of Kazakhstan, ICSID Case No. ARB/13/13, Award, 5 June 2012, paras. 382-407, Exhibit RLA-0006; Vacuum Salt Products Limited v. Government of the Republic of Ghana, ICSID Case No. ARB/92/1, Award, 16 Feb. 1994, para. 43, Exhibit RLA-0021; TSA Spectrum de Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/05/5, Award, 19 Dec. 2008, paras. 147-161, Exhibit RLA-0020; National Gas S.A.E. v. Arab Republic of Egypt, ICSID Case No. ARB/11/7, Award, 3 Apr. 2014, para. 135, Exhibit RLA-0026; Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador, ICSID Case No. ARB/08/6, Decision on Remaining Issues of Jurisdiction and Liability, 12 Sept. 2014, paras. 216-223 and 522-529, Exhibit RLA-0027; and Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005, Final Award, 26 March 2008, paras. 66-67, Exhibit RLA-0013.
"(i) dismiss all the Claimant's claims for lack of jurisdiction; and
(ii) order the Claimant to bear the costs of this arbitration, including all fees and expenses of ICSID and the Tribunal as well as the Respondent's costs (including but not limited to its legal fees and expenses), with interest calculated on a compound basis, payable forthwith."166
"(i) Declare that Arbitral Tribunal [sic] has jurisdiction over the present dispute;
(ii) Deny Respondent's objection to the jurisdiction of the Tribunal;
(ii) Order the Respondent to bear the costs of this arbitration, including all fees and expenses of ICSID and the Tribunal as well as the Claimant's costs (including but not limited to its legal fees and expenses), with interest calculated on a compound basis, payable forthwith."167
"For the purposes of this Agreement:
(b) the term 'nationals' comprises with regard to either Contracting State:
(II) legal persons constituted under the law of that Contracting State;
(III) legal persons not constituted under the law of that Contracting State but controlled, directly or indirectly, by natural persons as defined in (I) or by legal persons as defined in (II)."169
"(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State... and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre..
(2) 'National of another Contracting State' means:
(b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration...."
"By [IN Asset Management] (herein called the Trust Company) being the holder of the number and class of shares stated in Part 3 of the Schedule hereto (herein called the Shares) in [Capital Conservator Trustees Limited] (herein called the Company) declares and covenants that:
1. The Shares in the Company are held by it as Trustee for and on behalf of [Capital Conservator Group LLC, Marshall Islands] (herein called the Beneficial Owner).
2. The Shares will not be encumbered, transferred, assigned or dealt with in any way by the Trustee without the consent in writing of the Beneficial Owner being first held and obtained.
3. The Trustee will account to the Beneficial Owner in respect of all income earned, derived or received from the said Shares and all other benefits in respect thereof in such manner as the Beneficial Owner may from time to time direct.
4. The Trustee acknowledges that the Beneficial Owner may from time to time appoint a new or additional Trustee and remove any Trustee so appointed subject to the special provisions and conditions as contained in the letter of engagement as accepted by the beneficial owner."
|Legal Fees and Expenses (Latham & Watkins LLP)||1,153,508.51 USD|
|Legal Fees and Expenses (Reed Smith LLP)||182,493.89 USD|
|Fees and expenses of Mr Francis Barlow QC||£40,999.50|
|ICSID and Tribunal Fees and Expenses||175,000 USD|
|Costs of the representatives of the Republic of Macedonia for (i) hotel fees for meetings in Skopje with Latham & Watkins in March 2013; and (ii) travel and subsistence costs attending the first session of the tribunal (23 July 2013) and the hearing (6 May 2015), both in Paris.||4,882.60 USD (travel and subsistence)|
"4. The legal fees of Mr. Torres are specified as follows:
JUAN F. TORRES III, ESQUIRE LEGAL FEES AND COSTS FOR JURISDICTION
From 30 January 2014 until the present:
Fees Out of Court/Arbitration/Hearings: $100,305.00 USD
Fees In Court/Arbitration/Hearings: $1,260.00 USD
Total Fees: $101,565.00
5. The legal fees of Mr. Petro Janura - Attorney at law are specified as follows:
PETRO JANURA - ATTORNEY AT LAW LEGAL FEES AND COSTS FOR JURISDICTION
From 30 January 2014 until the present:
Fees Out of Hearings: 76,500,oo EUR
Fees In Hearings: 3,000,oo EUR
Total Fees: 79,500,oo EUR"
The relevant rules covering the award of costs of the proceedings can be found in Chapter VI of the ICSID Convention, and in particular in Article 61(2) of the Convention, which provides:
"In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award."
The Tribunal notes, as recognized by the Respondent which addressed the issue in its cost submissions, that the practice of ICSID tribunals in awarding costs is not entirely consistent, some tribunals ordering the parties to bear their own costs and others applying the "costs follow the event" approach. The divergent practice reflects the considerable degree of discretion that ICSID tribunals enjoy under Article 61(2) of the Convention, which does not prescribe any particular approach, in making costs awards.
a. The Claimant's claims are dismissed for lack of jurisdiction ratione personae ;
b. The Claimant shall pay the Respondent the amount of US$ 1,072,708 and £ 32,800 as reimbursement of the Respondent's legal fees and expenses;
c. The Parties shall bear and equally share the fees and expenses of the Tribunal and the costs of the ICSID facilities; and
d. All other claims and requests for relief by either Party are dismissed.
Accédez à la source d'information la plus complète et la plus fiable en arbitrageDEMANDEZ UN ESSAI GRATUIT
Déjà enregistré ?