Case Report (free download)
Case Report by Pilar Colomes Iess, Editor Ignacio Torterola
In 2009, Claimants, two French nationals, initiated negotiations with Respondent, the Republic of Mauritius, in relation to a Project consisting in the establishment of a laboratory in Mauritius. The negotiations culminated with Respondent's approval of the Project in 2014. Claimants commenced to implement the Project, which included making various expenditures as well as the setting up of three Companies in Mauritius. However, in 2016, after revising an updated business plan for the Project, Mauritius terminated it. Claimants brought an action against Respondent alleging violations of several provisions under the France-Mauritius BIT and invoking the arbitration agreement under Article 9 of Finland-Mauritius BIT, which they contended was applicable via the MFN clause contained in Article 8(2) of the France-Mauritius BIT. Respondent challenged the Tribunal's jurisdiction on the basis that Claimants' Project did not constitute a qualifying investment under the France-Mauritius BIT; that Respondent had not provided its consent to the arbitration; and that Claimants could not import Respondents' consent from a treaty between Mauritius and a third state via the MFN clause in the France-Mauritius BIT. The Tribunal agreed with Respondent, held that it did not have jurisdiction over the case, and ordered Claimants to pay the costs of the arbitration.
Whether Claimants made a qualifying investment under the BIT. Whether a host state's consent to arbitrate can be "imported" from a third-state BIT via the MFN clause in the main BIT.
Case report provided by International Arbitration Case Law (IACL)
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