Petrobart Limited v. The Kyrgyz Republic - Chapter 7 - Investment Arbitration Decisions

Subject Matters:
(1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?
(2) Are the conditions for application of Article 17(1) of the ECT present?
(3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.
(4) Doctrine of collateral estoppel
(5) Whether Petrobart qualifies as an investor under the ECT?
(6) Did Petrobart make an investment in the Kyrgyz Republic?
(7) Whether the Kyrgyz Republic violated its obligations under Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.

Findings:
(1) The Entergy Charter Treaty (ECT) is applicable on a provisional basis to investors in and from Gibraltar, despite the fact that the United Kingdom’s ratification does not cover Gibraltar.

(2) The Tribunal attached weight to the information provided by Petrobart confirming that it is a company owned or controlled by citizens or nationals of a state other than the United Kingdom and that Petrobart has substantial business in the United Kingdom. The conditions for application of Article 17(1) of the ECT were not present in this case.

(3) Domestic litigation and a previous UNCITRAL arbitration did not have res judicata effect preventing Petrobart from raising ECT claims.

(4) There is no estoppel in the present case since domestic litigation was not initiated by Petrobart and, therefore, did not reflect a choice of procedure by the claimant. The UNCITRAL Arbitration was Petrobart’s choice, but its aim was to have only domestic issues decided, and the proceeding did not result in an examination of the merits of the claim.

(5) A right conferred by contract to undertake an economic activity concerning the sale of gas condensate is an investment qualifying for protection pursuant to the ECT.

(6) Kyrgyzstan failed to respect Articles 10(1) and 10(12) of the ECT in relation to Petrobart’s investment, and in particular its actions were unfair and inequitable.

Table of Contents:

VII. Petrobart Limited v. The Kyrgyz Republic 469

(1) SCC Case 126/2003 Final Arbitral Award Rendered on 29 March 2005

SUBJECT- MATTERS:

1) Is the Energy Charter Treaty (ECT) applicable to a company registered in Gibraltar?

2) Are the conditions for application of Article 17 (1) of the ECT present?

3) The potential res judicata effect after the domestic litigation and the UNCITRAL Arbitration.

4) Doctrine of collateral estoppel.

5) Whether Petrobart qualifies as an investor under the ECT?

6) Did Petrobart make an investment in the Kygryz Republic?

7) Whether the Kyrgyz Republic violated its obligations under Articles 10(1), 10(12), 13(1) and 22(1) of the ECT.

Observations by Georgios Petrochilos and Noah Rubins

(2) Case No. T 3739-03 Decision of the Svea Court of Appeal, Judgment Rendered on 13 April 2006

SUBJECT- MATTER:

Action for amendment of an arbitral award

(3) Case No. T 5208-05 Decision of the Svea Court of Appeal Judgment Rendered 19 January 2007

SUBJECT- MATTER:

Challenge to an arbitral award

(4) Case No. T 2113-06 Decision of the Swedish Supreme Court Judgment Rendered 28 March 2008

SUBJECT- MATTERS:

1) Challenge of an arbitral award terminating the arbitration for lack of jurisdiction.

2) The scope of application of the so-called "doctrine of assertion" in arbitration.

(5) The Petrobart Saga

By Erik Karlsson

(6) Comments on the Swedish Supreme Court’s Recent Judgment on the So-Called "Doctrine Of Assertion" and the Arbitrators' Jurisdiction in Investment Disputes

By Paulo Fohlin

(7) Comments on the Petrobart Limited v. The Kyrgyz Republic Case

Anonymous