Infinito Gold Ltd v Costa Rica - ICSID Case No. ARB/14/5 - Award - Separate Opinion on Jurisdiction and on the Merits by Professor Brigitte Stern - Decision on Jurisdiction (4 December 2017) - English - 3 June 2021
Reproduced from www.worldbank.org/icsid with permission of ICSID.
I. INTRODUCTION AND PARTIES
1. This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Agreement between the Government of Canada and the Government of the Republic of Costa Rica for the Promotion and Protection of Investments, signed March, entered into force on 29 September (the "BIT" or "Treaty") and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on October (the "ICSID Convention").
2. The Claimant is Infinito Gold Ltd. ("Infinito" or the "Claimant"), acompany incorporated under the laws of the Province of British Columbia, Canada. The Claimant is represented in this arbitration by:
3. The Respondent is the Republic of Costa Rica ("Costa Rica" or the "Respondent").
The Respondent is represented in this arbitration by:
4. This dispute arises out of the development of a gold mining project in the area of Las Crucitas, in Costa Rica (the "Crucitas Project").
VIII. OPERATIVE PART
799. For the foregoing reasons, the Tribunal:
a. DECLARES that it has jurisdiction over the claims before it and that, with the exception noted in paragraph (b) below, the claims are admissible;
b. DECLARES that the claim arising from the reinitiation in 2019 of the TCA damages proceeding is premature and thus inadmissible at the present stage;
c. DECLARES that, by enacting the 2011 Legislative Mining Ban and implementing it through the 2012 MINAET Resolution, the Respondent has breached its obligation under Article II(2)(a) of the BIT to accord to the Claimant’s investments fair and equitable treatment;
d. DETERMINES that it can award no damages from this breach;
e. ORDERS that each Party bear 50% of the Costs of the Proceeding and its own legal fees and other costs;
f. DISMISSES all remaining claims and requests for relief.
SEPARATE OPINION ON JURISDICTION AND ON THE MERITS - Professor Brigitte Stern, Arbitrator
1. Although I greatly respect and esteem my distinguished colleagues, I cannot concur with them on several important legal findings, both on jurisdiction and on the merits. I specify that I do not disagree with the overall solution given to the case, but it is impossible for me to subscribe to some of the analyses and reasonings, especially when they involve public international law interpretation. As stated by Lao-Tseu, “le but n'est pas seulement le but, mais le chemin qui y conduit” (“the aim is not only the goal but the way to it”). In a nutshell, I would have reached the same overall conclusion to the dispute, but through significantly different avenues. Although it might appear superfluous, as I agree with the final outcome of the case, I feel important to describe these avenues.
2. My main disagreement concerns the existence of jurisdiction ratione temporis: in my view, according to the statute of limitations included in Article XII(3)(c) of the BIT, the Tribunal has no jurisdiction over the claims presented by Infinito. Of course, my comments could thus have stopped at that point since, without jurisdiction, there is no need to deal with the merits. However, as the majority of the Tribunal decided that it had jurisdiction and dealt with the merits, I consider it as my Arbitrator’s duty to point - briefly - to what I analyze as misinterpretations in the application of public international law to the interpretation of the standard of FET in the BIT between the Government of Canada and the Government of the Republic of Costa Rica.
DECISION ON JURISDICTION (4 December 2017)
364. For the reasons set forth above, the Arbitral Tribunal:
a. Joins to the merits phase the Respondent’s jurisdictional objections under Article XII(3)(c); under Annex I, Section III(1); and under Article IV of the BIT; as well as the determination of whether the Claimant’s investment complies with Article I(g) of the BIT.
b. Denies the Respondent’s other preliminary objections.
C. Declares that it will take the necessary steps for the continuation of the proceedings toward the merits phase by way of a procedural order to be issued after consultation with the Parties.
d. Reserves the decision on costs for subsequent decision.