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Oostergetel, Laurentius v. Slovakia

Type of decisionFinal Award
Date of decision23 April 2012
Tribunal
Gabrielle Kaufmann-Kohler (President)
Mikhail Wladimiroff
Vojtech Trapl
Legal instrumentBIT between Netherlands and Slovakia (1991)
Further informationFull text of the decision

Statements from this decision

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International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Protection of Investors under IITs
Expropriation and Standards of Protection
Expropriation
General Requirements of an Expropriatory Act
Further Problems
A claim for expropriation has to be substantiated; it is not sufficient if acts that have been previously characterized as constituting breaches of other standards are considered also as an expropriation in the technical sense of the word
Fair and Equitable Treatment
Case Groups
Denial of Justice
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
Denial of justice constitutes a violation of the standard of fair and equitable treatment
An erroneous judgement alone does not constitute a violation of the FET standard
The complexity of the case, the behaviour of the litigants involved, the significance of the interests at stake, and the behaviour of the courts themselves are factors to consider in the analysis of a claim of undue delay constituting a denial of justice
Legitimate Expectations
Bad faith on the part of the state is not required for determining a frustration of legitimate expectations
In the absence of specific assurance, an investor cannot legitimately expect to be relieved from tax liabilities
Stability of the legal and business environment does not equate immutability of the legal framework; legitimate expectations must be measures through a balancing test taking account of specific circumstances
Applicable Law / Choice of Law Clauses
If the domestic arbitration law governing the arbitration demands it, a tribunal is under an obligation to apply law ex officio (iura novit curia); a tribunal should not base its decision on a theory which the parties could not expect to be relevant
Investment Treaty Arbitration
Procedural Questions
Burden of Proof
It is difficult to bring positive proof of corruption, but it may be proven by circumstantial evidence
In UNCITRAL proceedings, the principle actori incumbat probatio pertains to procedure; the rules establishing presumptions or shifting the burden of proof are part of the lex causae, i.e. the IIT; if the IIT provides no rules in this regard, general principles of international law are applicable
Damages and Interest
Causation
The claimant must show a causal relationship between the host state’s actions and the asserted damages
UNCITRAL Arbitration Rules 1976
Article 24
In UNCITRAL proceedings, the principle actori incumbat probatio pertains to procedure; the rules establishing presumptions or shifting the burden of proof are part of the lex causae, i.e. the IIT; if the IIT provides no rules in this regard, general principles of international law are applicable

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