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Libananco v. Turkey

Type of decisionAward
Date of decision2 September 2011
Tribunal
Michael Hwang (President)
Franklin Berman
Henri C. Alvarez
Legal instrumentEnergy Charter Treaty
Related decision(s)Decision on preliminary issues, 23 June 2008
Further information

Statements from this decision

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Article 26(3)(b) ECT could be treated as a fork-in-the-road provision
Within the denial of benefits provision of Article 17 ECT, the term "third state" has a well recognised ordinary meaning
If it is common ground between the investor and the respondent that domestic law is applicable for specific questions, the tribunal will apply domestic law to these questions even if the IIT's choice of law clause does not mention it
There is no principle of extensive or restrictive interpretation of jurisdictional provisions in treaties
Article 26(3)(b) ECT allows contracting states to limit their consent to arbitration; this limitation takes effect automatically and is not conditional on the statement required by Article 26(3)(b)(ii) ECT
It is doubtful whether the references to "the investor" and "the dispute" within Article 26(3)(b)(ii) ECT should be construed in the same way as in the context of the procedural rule of res judicata in domestic law
Whether a prima facie test should be applied at the jurisdictional stage is case-specific
Allegations of fraud do not require a tribunal to apply a heightened standard of proof
The principle of "costs follow the event" discourages unmeritorious actions and over-litigation
If it is common ground between the investor and the respondent that domestic law is applicable for specific questions, the tribunal will apply domestic law to these questions even if the IIT's choice of law clause does not mention it
Article 61(2) ICSID Convention grants a tribunal a discretionary power to award costs
A tribunal may examine whether costs incurred by a party have been reasonable and necessary for the purpose of the litigation

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