Summary

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Case Report (free download)

Case Report by Agata Zwolankiewicz, Edited by Ignacio Torterola

Summary

The Claimant brought an action against Venezuela under the Agreement between the Government of Barbados and the Republic of Venezuela for the Promotion and Protection of Investments ('Treaty' or 'BIT'). The Claimant alleged that the Respondent violated its obligations under the BIT, namely the fair and equitable treatment ('FET') obligation and prohibition against arbitrary or discriminatory conduct. The Claimant also alleged that the Respondent breached its obligations under the BIT's umbrella clause and that the Respondent's actions led to the effect equivalent to nationalization or expropriation. Tribunal found that the acts alleged by the Claimant (except for refusal to give consent to the transfer of the Claimant's shares in Petroritupano by the Minister of Energy and Petroleum) are not attributable to the Respondent and, thus, the Claimant's claim concerning the breach of FET obligation by Respondent could not be upheld. Furthermore, Tribunal determined that the fact that no dividends were paid for 2008 and 2009 was discriminatory, and therefore Respondent had violated its obligations under the BIT. As to the breach of the umbrella clause contained in the BIT, the Tribunal concluded that since the Respondent did not enter into any contractual relationship with the Claimant regarding its investment in Petroritupano, the Respondent could not have breached such a clause. Finally, the Tribunal determined that the lack of payment of dividends could not amount to an indirect expropriation.

Main issues

attribution to the State, discriminatory conduct, umbrella clauses

Venezuela US, S.R.L. v. The Bolivarian Republic of Venezuela (PCA Case No. 2013-34) - Partial Award (Jurisdiction and Liability) - 5 February 2021

Case report provided by International Arbitration Case Law (IACL)

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