“The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“1. 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. 2. The context for the purpose of the interpretation of the treaty shall comprise, in addition to the text, including its Preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.”
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
“Thus the court’s task, as set out in article 31 of the Vienna Convention, is to ascertain the ordinary meaning of the terms used in their context and in the light of the Convention’s object and purpose, with recourse to supplementary means of interpretation either to confirm the meaning thus ascertained or, in the strictly limited cases identified in art 32(a) and (b), to determine the meaning.”
“It would be wrong to read article 31 as reflecting something like the so-called ‘golden rule’ of statutory interpretation where one starts with the ordinary meaning of the words and then moves to other considerations only if the ordinary meaning would give rise to absurdity. That is not international law. The International Law Commission made clear in its commentary to the draft treaty, at p 219, that, in accordance with the established international law which these provisions of VCLT codified, such a sequential mode of interpretation was not contemplated: ‘The commission, by heading the article ‘General rule of interpretation’ in the singular and by underlining the connection between paras 1 and 2 and again between para 3 and the two previous paragraphs, intended to indicate that the application of the means of interpretation in the article would be a single combined operation.’”
“if the Court holds that the Tribunal was right that there was a protected investment, the Tribunal’s findings of quantum … are not with respect to that investment and accordingly should be set aside and/or declared to be of no effect”
“For the purpose of this Agreement: (1) The term “investor” refers with regard to either Contracting Party to (a) natural persons who are nationals of that Contracting Party in accordance with its laws; (b) legal entities, including companies, corporations, business associations and other organizations, which are constituted or otherwise duly organized under the law of that Contracting party and have their seat, together with real economic activities, in the territory of that same Contracting Party; (c) legal entities established under the law of any country which are, directly or indirectly, controlled by nationals of that Contracting Party or by legal entities having their seat, together with real economic activities, in the territory of that Contracting Party. (2) The term “investments” shall include every kind of assets and particularly: (a) movable and immovable property as well as any other rights in rem such as servitudes, mortgages, liens, pledges; (b) shares, parts or any other kinds of participation in companies; (c) claims and rights to any performance having an economic value; (d) copyrights, industrial property rights (such as patents, utility models, industrial designs or models, trade or service marks, trade names, indications of origin), know-how and goodwill; (e) concessions under public law, including concessions to search for, extract or exploit natural resources as well as all other rights given by law, by contract or by decision of the authority in accordance with the law. (3) The term “returns” means the amounts yielded by an investment and in particular though not exclusively includes profit, interest, capital gains, dividends, royalties and fees.”
“The present Agreement shall apply to investments in the territory of one Contracting State by investors of the other Contracting State, if the investments have been made later than1st January 1950 in accordance with the laws and regulations of the former Contracting Party.”
“[t]he notion of investment must be understood from theperspective of the objectives sought by the Agreement and the ICSID Convention.They are there to ‘promote’ investments, that is to say, to create the conditions thatwill encourage foreign nationals to make contributions and provide services in the hostcountry, but also, and to that end, to ‘protect’ the fruits of such contributions andservices … The two aspects are thus complementary. Theremust be ‘active’ economic contributions, as is confirmed by the etymology of theword ‘invest,’ but such contributions must ‘passively’ have generated the economicassets the instruments are designed to protect … Both aspects are reflected in the two underlying texts, but in a complementary manner.Clearly Article 1(a) of the Agreement emphasises the fruits and assets resulting from the investment, which must be protected, whereas the definitions generally used inrelation to Article 25 of the ICSID Convention lay stress on the contributions that havecreated such fruits and assets. It can be inferred from this that assets cannot be protected unless they result from contributions, and contributions will not be protectedunless they have actually produced the assets of which the investor claims to havebeen deprived.”
“Taken together the Agreements not only provided for sales, services and loans transactions between two commercial partners but they also provided for the establishment of a long-term business relationship which included the provision of credit, spare parts and machinery to the local partner of Mytilineos in Serbia and Montenegro, RTB-BOR, for the purpose of modernizing the latter’s production facility. The planned modernization would have entailed a significant contribution to Serbia and Montenegro’s development. During the intended seven-year duration of all of the Agreements Claimant expected various returns and profits. This engagement, which was made with a view to eventual equity participation after privatization, was substantial in monetary terms and also not without risks.”
“It may be objected that some types of economic transactions simply cannot be called ‘investments’ no matter what a BIT may say … The typical argument given is that of a ‘pure’ sales contract. There is force in the argument. Yet it may quickly lose transaction in the reality of economic life. It is admittedly hard to accept that the free-on-board sale of a single tractor in country A could be considered an investment in country B. But what if there are many contractors and payments are substantially deferred to allow cash-poor buyers time to generate income? Or what if the first tractor is a prototype developed at great expense for the specifications of country B on the evident premise of amortisation?”
“corporate assets [a shareholding in a local company] also include, by their very nature, investments for purposes ofArticle 25(1) of the Convention . The ICSID Convention was enacted precisely to promote and protect these types of investments. The Preamble of the Convention invokes, as the first justification for the Treaty, the need for “international cooperation for economic development.”
“Many investments are complex operations. They may consist of preparatory studies, licences, government permits, financing arrangements, real estate transactions, various contractual arrangements and a variety of other legal dispositions. Each of these elements has its own legal existence but in economic terms they are united to serve a common purpose. Typically, investment tribunals have treated the various assets and activities that make-up an investment as a unity. In most cases they have not dissected investments into their individual legal components but have treated them as an integral whole.”
“Investment can mean the contribution of resources, usually capital, to acquire an asset, as in ‘he made an investment of US$1m in acquiring a painting by Monet’. But an investment can also mean the asset which is acquired by the act of investing, as in ‘he exhibited his investment (the painting by Monet) at his stately home’.”
“I asked the Claimants to identify where in the arbitral record they had identified a contract with Novo Nordisk not simply as a relevant fact, but as an investment said to have been made in the Czech Republic. An aspirational list of alleged references, including headings, sub-headings, footnotes and witness evidence followed. I am confident that the irony of the stylistic resemblance between this list, and the Czech Republic’s much-criticised list of references where they say that jurisdictional objects were taken, was not lost on those who prepared it. I have diligently followed those references up. The existence of a commercial relationship with Novo Nordisk and its importance to the Claimants’ business enterprises generally (including in the Czech Republic) were asserted, as was the contention that the Czech Republic’s breaches had wiped that relationship out. However, I have been unable to find a particularly clear assertion that any cooperation agreement was itself an investment for jurisdictional purposes. This may well be because the relationship was central to the means by which the Claimants were intending to carry out the Czech business, rather than an investment in Czechoslovakia in its own right, but that is an issue for another day.”
“The Treaty applies to ‘investments in the territory of one Contracting Party by investors of the other Contracting Party.’ It is denied that there is any ‘collaboration agreement’ which was an investment in Czech territory.”
“Where the document providing the basis of consent refers to investments made in the territory of the State, a certain degree of flexibility will be appropriate. Not all investment activities are physically located in in the host State. This is particularly true for financial instruments and many other contractual arrangements.”
“if one approaches this chronologically and asks how things looked shortly after the Bojar Letter was sent and whether the parties’ relationship was markedly different or simply a changed version?”
“The Court recorded in para 6.a of its Order of11 April 2024 (sealed9 May 2024 ): ‘Permission to appeal is granted in respect of: (a) The Claimant’s First Ground of Appeal subject to the Claimant’s undertaking that, if the appeal succeeds, it will be bound by the fact findings made in the “post-June 2011” challenge to the award in favour of the First Defendant; …’. The Parties hereby confirm they both provide this undertaking, i.e., to be bound by the fact findings made at the Second Hearing (which for the avoidance of doubt covers facts relating to both ownership and control).”
“(1) The term “investor” refers with regard to either Contracting Party to (a) natural persons who are nationals of that Contracting Party in accordance with its laws; (b) legal entities, including companies, corporations, business associations and other organizations, which are constituted or otherwise duly organized under the law of that Contracting party and have their seat, together with real economic activities, in the territory of that same Contracting Party; (c) legal entities established under the law of any country which are, directly or indirectly, controlled by nationals of that Contracting Party or by legal entities having their seat, together with real economic activities, in the territory of that Contracting Party.”
“any juridical person which had the nationality of the Contracting State party to the dispute on [the relevant] date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention”
“The Tribunal notes, and itself confirms, that ‘foreign control’ within the meaning of the second clause of Article 25(2) (b) does not require, or imply, any particular percentage of share ownership. Each case arising under that clause must be viewed in its own particular context, on the basis of all of the facts and circumstances. There is no ‘formula.’ It stands to reason, of course, that 100 percent foreign ownership almost certainly would result in foreign control, by whatever standard, and that a total absence of foreign shareholding would virtually preclude the existence of such control. How much is ‘enough,’ however, cannot be determined abstractly. Thus, in the course of the drafting of the Convention, it was said variously that ‘interests sufficiently important to be able to block major changes in the company’ could amount to a ‘controlling interest’ (Convention History, Vol. II, 447); that ‘control could in fact be acquired by persons holding only 25 percent of’ a company’s capital (id., 447-48); and even that ‘51% of the shares might not be controlling’ while for some purposes ‘15% was sufficient’ (id., 538). As Amerasinghe has said, ‘the concept of ‘control’ is broad and flexible.... [T]he question is... whether the nationality chosen represents an exercise of a reasonable amount of control to warrant its choice on the basis of a reasonable criterion.’ Nonetheless, it must be true that the smaller is the percentage of voting shares held by the asserted source of foreign control, the more one must look to other elements bearing on that issue. As one authority has said, ‘a tribunal... may regard any criterion based on management, voting rights, shareholding or any other reasonable theory as being reasonable for the purpose.’ … It is on this basis that Claimant has strongly advanced, and Respondent has sharply contested, arguments as to control based on the role Mr. Panagiotopulos personally played in Vacuum Salt on22 January 1988 .”
“Given the context of defining the scope of eligible claimants, the word ‘controlled’ is not intended to act as an alternative to ownership since control without an ownership interest would define a group of entities not necessarily possessing an interest which could be the subject of a claim. In this sense, ‘controlled’ indicates a quality of the ownership interest.”
“As stressed by the Tribunal in United Utilities v Estonia in the context of Art.25(2)(b), ‘control is a flexible concept, which can only be determined case by case in the light of particular facts.’ While it can be grounded on formal, legal control through ownership, it can also derive from other factors such as operational management and expertise.”
“Overall, the case law on these various provisions dealing with the concept of control demonstrates that arbitral tribunals have shown a high degree of flexibility. In order to determine control, they have, in addition to formal ownership, looked at criteria such as powers of management and operation of the investment, as well as expertise. What matters to establish control are not formal parameters, like the existence or amount of ownership, but the actual ability to direct the action of the controlled investment.”
“The question is then how to define ‘control’ for the purposes of satisfying the requisite nexus between the claimant and the investment. In giving effect to the ordinary meaning of the word ‘control’ or the implicit requirement that mirrors it, reference must be had to general principles of property law and company law ...”
“These trusts are very hard to defend, because, as the Court of Appeal pointed out, what they are trying to do is to enable people to have control over assets that they don’t control. You only have to state the goal to see the problem: it’s not one that can be drafted out of.”
“In part it’s because of the inherent confusion in these trusts: the settlor has given something away; but doesn’t think s/he has. The recipient of the gift has been led to believe it’s his or hers; but it often isn’t fully, and there is a hidden bungee cord that can pull it back when the family have a row. Relationship counsellors spend a lot of time talking about the importance of having clear communication of expectations. Discretionary trusts do precisely the opposite: they blur the lines. Advisors should say clearly: you have a choice. You can give your fortune away, or you can see it taxed. But you can’t do both. It is a nonsense, really, to think that some people, who’ve devoted their lives to building up a fortune, often by controlling everything they can and at some expense to their personal lives, actually want to give their fortune away to an accountant they’ve never met on an island they don’t visit unless they have to, for the accountant to decide on a broad discretion where it should go.”
“Trusts test the somewhat laggard abilities of investment treaties to entertain the complexity of modern-day investment practices. At the same time the findings of the tribunals in such cases as [Saba] Fakes, EMELEC, Guardian Fiduciary and Blue Bank reveal that the relevant enquiry is one of substance and not form.”
“That case is not authority for any such proposition, which would be contrary to the principles reflected in Fidelitas and to the whole scheme of speedy finality provided for in the Act in cases where the parties have invited the tribunal to determine jurisdiction. Dallah was a case in which the English court was considering an application by Dallah to enforce an award made under the auspices of the ICC in Paris under Part III of the Act, which gives effect to the New York Convention. The Government of Pakistan resisted an enforcement order on the grounds that it was not party to the arbitration agreement so that the tribunal lacked jurisdiction. Dallah’s contention that the Government was precluded from advancing the argument because it had failed to challenge the tribunal’s ruling as to its own jurisdiction in the French courts with supervisory jurisdiction was rejected. The decision was that where a party seeks to enforce a foreign award under s.103 of the Act, a person who denies being party to the arbitration agreement has no obligation to participate in the foreign arbitration or take steps in the country of the seat of what he maintains is an invalid arbitration leading to an invalid award against him, and can resist enforcement by denying the validity of the award, irrespective of the tribunal’s decision that it has jurisdiction: see per Lord Mance at paragraphs [23] and [30]. In this case SFI is not seeking enforcement, let alone enforcement of a foreign award under s.103 of the Act. If it were to seek enforcement in the UAE or elsewhere, the status of the Final Award would be a matter for the foreign court applying its own conflicts rules. ETA is seeking to mount a challenge to the validity of the award under s.67 of the Act before the English court exercising its supervisory jurisdiction as the curial court. There is nothing in the decision or reasoning in Dallah which suggests that on such an application the principles of issue estoppel do not apply.”
“It is not open to Westland to deploy as a basis for their case that the arbitrator had no jurisdiction to award interest the submission that there was no jurisdiction to award the capital sum by reference to which such interest was awarded. This is because there is an issue estoppel in respect of the award as to the capital sum.”
“The situation in the present case is not completely analogous to that in Westland Helicopters or C v D1. In both of those cases, the finding by which the claimant was held to be bound (even in the context of a jurisdiction challenge) was a pure merits finding to which no jurisdiction objection had been taken at all. In the present case, the arbitrator’s conclusion that PDSA remained a Shareholder (a) is the subject of a jurisdiction challenge, at least before this court, and (b) was regarded by the arbitrator as a jurisdictional finding in relation to the Breaches Claims. However, I do not see why the underlying principle should not equally apply here. If an arbitrator has made a finding on a substantive issue between the parties, it is difficult to see why its binding effect in the context of a jurisdiction challenge to some other part of the arbitrator’s award should depend on whether (a) no jurisdiction objection has ever been made to the finding on the substantive issue or (b) there has been a challenge but the court has concluded that the arbitrator had jurisdiction. Either way, the arbitrator has made a finding on an issue between the parties that the arbitrator had jurisdiction to determine. In principle one would expect that finding to be binding for all purposes, following the logic of the two cases discussed above, even if the finding also has relevance to a jurisdiction issue (regarding some other part of the case) which prima facie would ultimately be for the court to determine.”
“That analysis assumes that the preclusive effect of a prior determination in a subsequent dispute is a legal incident of rights arising from the original determination, rather than the result of a rule of law applicable by the second tribunal as to the legal effect of that original determination. However, the doctrine of issue estoppel appears to me to depend on a rule of law of the ‘receiving’ tribunal rather than the rights adjudicated on by the ‘transmitting’ tribunal: (i) The traditional justifications of issue estoppel offered by English authorities identify it as a substantive rule of law which gives effect to a general rule of public policy that there should be finality in litigation (e.g., Diplock LJ Mills v Cooper[1967] 2 QB 459 , 469, and Lord Wilberforce in The Ampthill Peerage[1977] AC 547 , 569). (ii) While the position under foreign law will be relevant to whether the foreign judgment meets the English law requirement of finality, the doctrine of estoppel is part of the law of the forum, not a legal attribute of the foreign judgment (see Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)[1967] 1 AC 835 , 919). (iii) When a foreign arbitration award or judgment is relied upon to establish an issue estoppel in English court proceedings, it is English law which determines, for example, whether the estoppel extends to collateral matters or whether the special circumstances exception is engaged. More pertinently, in the present context, the issue of whether a foreign judgment binds privies of the parties in English proceedings is a matter for English law. At least it was so treated in cases such as Carl Zeiss at pp.928-929, 936-937 and 945-946, and Seven Arts Entertainment Ltd v Content Media Corp plc[2013] EWHC 588 (Ch) . The position is not, as Mr Rabinowitz submitted to me, that when looking at foreign judgments or awards, ‘one has to look at the foreign law and see … how, under that foreign law, it deals with which parties are to be bound and why’.”
“In my judgment the answer to these questions lies in the nature of a section 67 application as established by the cases cited above. In principle, this is no different from other contested applications where the court has to determine disputed questions of fact and/or law. Arbitration and the existence of an award which is the subject of the challenge provide the context in which the question arises, but do not fundamentally transform the nature of what the court has to decide or the way in which it should decide it.”
“It is not accepted that Mr Stava was telling the truth, or all of the truth, about …the Lawbook Transaction never having been intended to be carried through and its origins.”
“Bearer shares are negotiable securities … A Liechtenstein law core principle of securities is that the physical paper not only evidences the holder’s ownership rights or clams, but the claim is transferred only with the physical paper and can only be exercised by the person possessing the paper.”
“Dr Batliner, you agreed with Mr Dunning that rights in bearer shares are indivisible under Liechtenstein law. In 2012 in Liechtenstein, in general, how would you transfer ownership of bearer shares”? (emphasis added). Dr Batliner replied, “handing them over”
“Well, one remark. I mean handing them over, it would be distinguished between an obligation or a contract; it’s the basis and disposal is the handing over. There are two transactions, one is --- you need to have a contractual basis and the one is the handing over.”