Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

I. INTRODUCTION

1. The present dispute has been submitted to the International Centre for Settlement of Investment Disputes ("ICSID") on the basis of the Agreement between the Government of Canada and the Government of the Arab Republic of Egypt for the promotion and Protection of Investments, which entered into force on 11 March 1997 (the "BIT")1 and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").

2. In this Award, the Tribunal first introduces the Parties (Section II) and provides an overview of the factual background to the dispute (Section III). Section IV sets out the procedural history leading up to this Award, and Section V recalls the Parties' requests for relief. The Tribunal then addresses the objections to jurisdiction and admissibility (Section VI), before turning to the claims on the merits (Section VII). The Parties' requests for costs are considered in Section VIII.

3. Ultimately, the Tribunal holds that it has jurisdiction over all claims except the national treatment claim. On the merits, the Tribunal dismisses the remaining claims. The Tribunal's Award is set forth in Section X.

4. In reaching the decisions contained in this Award, the Tribunal has carefully reviewed and considered all the arguments presented by the Parties in both their written and oral submissions. The fact that a specific argument is not expressly referenced in this Award does not mean that it has not been considered, as the Tribunal includes only those points which it considers most relevant for its decisions.

II. THE PARTIES

5. The claimant is Global Telecom Holding S.A.E. ("GTH" or "Claimant"), a joint stock company incorporated under the laws of the Arab Republic of Egypt ("Egypt") and listed on the Egyptian Stock Exchange.2 GTH, which was formerly known as Orascom Telecom Holding S.A.E., operates mobile telecommunications networks in several markets around the world. Its registered office is 2005 Nile City Towers, North Tower, Cornish El Nile, Ramlet Beaulac, 11221 Cairo, Egypt.3

6. The respondent is Canada (also referred to as the "Respondent"), a sovereign State. Canada has been an ICSID Contracting State since 1 December 2013.

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IV. PROCEDURAL HISTORY

111. On 28 May 2016, GTH submitted to ICSID a Request for Arbitration, including exhibits 1 to 36 and Annexes A to I.

112. On 6 June 2016, in accordance with Article 36 of the ICSID Convention, the Secretary- General of ICSID registered the Request for Arbitration and so notified the Parties. In the Notice of Registration, the Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible pursuant to Articles 37 to 40 of the ICSID Convention.

113. By correspondence of 12 and 13 August 2016, the Parties informed ICSID of their agreed method of constituting the Tribunal. The Parties agreed that the Tribunal would be composed of three members, with each Party appointing one arbitrator, and third, presiding arbitrator to be appointed pursuant to a list procedure. In this regard, the Parties specified that they would exchange lists of candidates for the President of the Tribunal without copying ICSID.

114. In accordance with the Parties' agreed method of appointment, GTH appointed Mr. Gary Born, a national of the United States of America, as arbitrator. Canada then appointed Professor Vaughan Lowe, a national of the United Kingdom, as arbitrator. Professor Lowe accepted his appointment on 19 August 2016, and Mr. Born accepted his appointment on 25 August 2016.

115. On 30 August 2016, the Parties informed ICSID that they had agreed to an amended schedule for the list procedure by which the presiding arbitrator was to be appointed.

116. On 19 January 2017, the Parties jointly requested ICSID's assistance in appointing the President of the Tribunal. Specifically, the Parties asked ICSID to provide them with a list of seven candidates, which had been pre-screened for conflicts and availability. Upon receipt of the list, each Party had the option to agree to appoint a candidate from the other Party's previously exchanged lists of candidates. Otherwise, each Party would be permitted to strike two names from the list and rank the remaining candidates from one to five, with one being the most preferred. The candidate with the lowest total score would be appointed.

117. At ICSID's request, the Parties specified on 25 January 2017 that in the event of a tie among candidates, the candidate with the lowest difference between the points assigned by each Party would be appointed. If the tie were still not resolved, the Parties would attempt to agree on one of the candidates with the lowest total score. In the absence of agreement, the Secretary- General would select and appoint the President from among those candidates.

118. On 6 February 2017, ICSID provided the Parties with the requested strike-and-rank list.

119. Pursuant to the Parties' agreed procedure, considering the results of the Parties' rankings, the Secretary-General appointed Professor Dr. Georges Affaki, a national of France and Syria, as President of the Tribunal. Professor Affaki accepted his appointment on 21 February 2017.

120. On the same date, in accordance with ICSID Arbitration Rule 6(1), the Secretary-General notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. The Parties were provided copies of the declarations required under ICSID Arbitration Rule 6(2) signed by Professor Affaki, Mr. Born and Professor Lowe, as well as the accompanying statements of Mr. Born and Professor Lowe.

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138. On 26 February 2018, Canada filed its Counter-Memorial on Merits and Damages, including exhibits R-079 to R-264 and legal authorities RL-164 to RL-242, the Expert Report of The Brattle Group, and the Witness Statements of Jennifer Aitken, Peter Hill and Iain Stewart ("Merits Counter-Memorial").

139. In accordance with Section 15.1 of PO1 and the Procedural Timetable, on 28 March 2018, each Party served on the other Party a request for the production of documents. Subsequently, each

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IX. AWARD

727. For the reasons set forth above, the Tribunal:

728. DECIDES that it has no jurisdiction to entertain GTH's claim that Canada breached its national treatment obligations under Article IV(1) of the BIT in respect of GTH's investment;

729. DECIDES that it has jurisdiction under the BIT and the ICSID Convention to entertain GTH's claims that Canada breached the following obligations under the BIT:

(i) The fair and equitable treatment standard in Article II(2)(a) of the BIT,

(ii) The full protection and security standard in Article II(2)(b) of the BIT, and

(iii) The unrestricted transfer guarantee in Article IX(1) of the BIT;

730. DECIDES that the claims mentioned in paragraph 729 are admissible;

731. DISMISSES GTH's claims that Canada breached its obligations under the BIT, specifically:

(i) The fair and equitable treatment standard in Article II(2)(a) of the BIT,

(ii) The full protection and security standard in Article II(2)(b) of the BIT, and

(iii) The unrestricted transfer guarantee in Article IX(1) of the BIT;

732. DISMISSES GTH's request for damages;

733. ORDERS the Parties to bear the arbitration costs in equal parts;

734. HOLDS that each Party shall bear its legal costs and expenses without contribution by the other Party; and

735. DISMISSES all other claims or defences by either Party.

[signed]

Gary Born, Vaughan Lowe, Georges Affaki

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Dissenting Opinion of Gary Born

1. I agree in a number of respects with the Tribunal’s factual and legal analysis, and with many of the conclusions in its Award. I write separately, however, on one issue as to which I disagree fundamentally with both the Tribunal’s decision and reasoning.

2. Preliminarily, I emphasize my high regard for my colleagues on the Tribunal, and for the care and diligence with which they have approached this matter, both in the Award and otherwise. Nonetheless, I am unable to join the Tribunal’s conclusion that GTH’s national treatment claim is outside the Tribunal’s jurisdiction because it is assertedly excluded from the scope of the BIT’s national treatment protections by an exception under Article IV(2)(d) and the Annex to the BIT. In my view, the Tribunal’s interpretation of Article IV(2)(d) on this issue is impossible to reconcile with either the language of the BIT or the evident object and purpose of the Treaty.

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Footnotes omitted.