Final Arbitral Award rendered in 2003 in SCC case 49/2002 - SAR 2004 - 1
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Observations by Sarah François-Poncet & Caline Mouawad
(1) Interpretation of a Bilateral Investment Treaty.
(2) Whether the Claimant had an asset which constituted an investment under the Bilateral Investment Treaty.
(3) Period of limitation under the Bilateral Investment Treaty.
(4) Costs incurred by the Respondent for legal representation
(5) Apportionment of the arbitration costs as between the parties
(1) Legal terms in an international treaty should be considered to have an autonomous meaning appropriate to the contents of the
specific treaty, not necessarily being the same as similar terms in the domestic law of the contracting parties.
(2) Rights derived from a co-operation agreement between the Claimant and a state owned enterprise were not deemed by the Arbitral Tribunal to have a financial value, and therefore did not constitute an investment in the meaning of the Bilateral Investment Treaty.
(3) The limitation rules of domestic law are not directly relevant in respect of a claim arising from an international treaty; international standards apply.
(4) The Arbitral Tribunal found the amount claimed by the Respondent in legal fees to be remarkably high and awarded an amount 30 % lower.
(5) The Arbitral Tribunal found that some costs and expenses of the Respondent related to specific objections raised by the Respondent which were rejected by the Tribunal, and therefore awarded the Claimant to reimburse only 80 % of the Respondent’s costs, in spite of the fact that the Arbitral Tribunal had reached the conclusion that the Claimant’s claims were to be dismissed in their entirety. In view of the outcome, the Arbitral Tribunal found that the Claimant should be ultimately responsible for 90 % and the Respondent for 10 % of the arbitration costs.
Claimant: Mr X (United Kingdom)
Respondent: The Republic (in Central Europe)