Subject-Matter:

 

Whether the arbitral tribunal has subject-matter jurisdiction under Articles 10 and 5 of the Spain/Russia BIT, whether it has personal jurisdiction over the seven claimants, whether the claimants had made investments and, if so, whether their claims are admissible:

 

(i) Whether Article 10 of the Spain/Russia BIT, which creates arbitral jurisdiction over any “dispute between one Party and an investor of the other Party relating to the amount or method of payment of the compensation due under article 6 of this Agreement” includes the jurisdiction to decide on matters other than quantum for established expropriation?
(ii) Whether Article 5 of the Spain/Russia BIT, which provides most favoured nation guarantees of fair and equitable treatment, permits the expansion of jurisdiction under Article 10 of the Spain/Russia BIT.
(iii) Whether certain Claimants qualified as “investors” under Article 1 of the Spain/Russia BIT?
(iv) Whether American Depository Receipts qualified as “investments” under Article 1 of the Spain/Russia BIT?
(v) Whether the Claimants had sufficiently demonstrated ownership over their investments?
(vi) Whether the claims were admissible?

 

Findings:

 

The arbitral tribunal held that it had subject-matter jurisdiction under Article 10 of the Spain/Russia BIT but not under Article 5, that it had jurisdiction over four claimants who had investments and that the claims of these four claimants we admissible:

 

(i) Jurisdiction under Article 10 of the Spain/Russia BIT includes examination of whether an expropriation occurred for which compensation would be due under Article 6 of that BIT because “the existence of the basic predicate of a remedy under Article 10 cannot be deemed outside the purview of a tribunal constituted under that very Article.”
(ii) Article 5 of the Spain/Russia BIT did not affect the Russian Federation’s obligations under Article 10 of that BIT because the subject matter of Article 10, investor-State arbitration, is not a constituent part of the Russian Federation’s obligation to accord fair and equitable treatment and hence there was no most favoured nation guarantee provided to Claimants.
(iii) Three Claimants, not being corporate bodies under Spanish law, did not qualify as investors under Article 1 of the Spain/Russia BIT.
(iv) American Depository Receipts issued by the Russian company Yukos were investments under Article 1 of the Spain/Russia BIT.
(v) Depository Statements issued on behalf of the Claimants were sufficient to demonstrate their beneficial ownership over American Depository Receipts, which ownership was protected under Article 1 of the Spain/Russia BIT.
(vi) The claims were admissible.