Summary

Case Report (free download)

Case Report by Giacomo Gasparotti, Editor: Diego Luis Alonso Massa

Summary

Anglo American instituted arbitral proceedings against Venezuela under the Venezuela-UK BIT and ICSID Additional Facility Rules (2006) in order to obtain compensation for damages caused by Venezuela's supposed unlawful conduct with respect to Anglo American's investment in a local indirect subsidiary involved in the exploration and exploitation of an ore deposit under several mining concessions. Venezuela filed a counterclaim based on alleged violations of the obligations of Anglo American's local subsidiary as a concessionaire. Both parties challenged the Tribunal's jurisdiction over the respective claims. The Tribunal affirmed its jurisdiction over Anglo American's claims but dismissed such at the merits stage and denied its jurisdiction over Venezuela's counterclaim.

Main issues

definition of "investment" (in particular, whether indirect shareholding interests and indirect stakes in the assets of a subsidiary company qualify as a protected investment); arbitrability of disputes arising out of mining titles setting out forum selection clauses; notion of "reversionary" and "non-reversionary" assets and relevance thereof for the purposes of establishing whether there has been an expropriation; relation between fair and equitable treatment standard and minimum standard under customary international law; circumstances under which the conduct of the host-State's administrative authorities can give rise to a breach of the fair and equitable treatment standard; scope of the full protection and security obligation; burden and standard of proof with respect to alleged breaches of the obligation of no less favourable treatment.

Anglo American PLC v. Bolivarian Republic of Venezuela (ICSID Case No. ARB(AF)/14/1) - Award - 18 January 2019

Case report provided by International Arbitration Case Law (IACL)

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