Reproduced from www.worldbank.org/icsid with permission of ICSID.
Case report (free download)
Case Report by Diego Rafael Barrera, Editor Diego Luis Alonso Massa
The Tribunal dealt with a claim made under the China-Korea BIT and the ICSID Convention concerning Ansung's investment in a golf course and condominium development project in Sheyang-Xian, China. Before the First Session, China filed "Respondent's Objection Pursuant to ICSID Arbitration Rule 41(5)", contending that Asung's claim is manifestly without legal merits given that it is time-barred. Following preliminary observations on the objection, the Tribunal decided that the start date for the three-year limitation period as set out in Article 9(7) begins with the investor's first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. The tribunal considered that, based on Article 9(7) of the China-Korea BIT, the end date is the date on which an investor deposits its request for arbitration with ICSID, which must occur before that three years have elapsed from the date on which the investor first acquired knowledge that it had incurred loss or damage.
Therefore, the Tribunal held that the claim is time-barred and, as such, is manifestly without legal merits since the Claimant submitted its dispute before the ICSID and made its claim for purposes of Article 9(3) and (7) of the Treaty after more than three years had elapsed from the date on which the Claimant first acquired knowledge of loss or damage.
lack of jurisdiction of the centre and its own competence - lack of legal merit - lack of temporal jurisdiction - time-barred under Article 9(7) of the China-Korea BIT - Article 3 of the China-Korea BIT ("Most-Favoured-Nation Treatment") - Article 41(5,6) of ICSID Convention.
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