Summary

Source: icsid.worldbank.org

Award and Dissenting Opinion by arbitrator Pierre Mayer

TABLE OF CONTENTS

I. INTRODUCTION AND PARTIES
II. PROCEDURAL HISTORY
III. SUMMARY OF FACTS
A. General Factual Background
(1) Dramatis Personae
a. Scan-Gambia Shrimp Ltd
b. West African Aquaculture Ltd
c. Mr. and Ms., and the ' Family
d. The Local Communities and the Village Development Committee (the "VDC")
e. Former President Yahya Jammeh and the Gambian National Intelligence Agency (the "NIA")
f. The "Special Task Force on the Pirang Fish Ponds"
(2) Chronology of the Claimants' Investment
a. The Making of the Claimants' Investment
b. The Operation of the Farm by WAA and Events Leading up to the Nationalization
c. The Seizure of the Farm
d. The Aftermath of the Seizure of the Farm
B. The Claimants' Business Strategy and The Potential of Their Investment
(1) The Claimants' Position
(2) The Respondent's Position
C. The Circumstances Surrounding the Nationalization of WAA in June 2015
(1) The Claimants' Position
(2) The Respondent's Position
D. The Failed Attempt to Compensate the Claimants Further to the Nationalization
(1) The Claimants' Position
(2) The Respondent's Position
E. Access to the Claimants' Business Records
(1) The Claimants' Position
(2) The Respondent's Position
IV. THE PARTIES' CLAIMS AND REQUESTS FOR RELIEF
A. The Claimants' Request for Relief
B. The Respondent's Request For Relief
V. JURISDICTION
A. Introduction
B. The Respondent's Jurisdictional Objections
(1) The Objection Ratione Voluntatis
a. Overarching Principles of Law
b. The GIEPAA (2015)
c. The GIEPAA (2010)
(2) The Objection Ratione Temporis
(3) The Objection Ratione Materiae
(4) No Objection Ratione Personae
C. The Claimants' Position on Jurisdiction
(1) Ratione Voluntatis
a. Overarching Principles of Law
b. The GIEPAA (2015)
c. The GIEPAA (2010)
(2) Ratione Temporis
a. The GIEPAA (2015)
b. The GIEPAA (2010)
(3) Ratione Materiae
a. Investment under the GIEPAA (2015)
b. Investment under the ICSID Convention
c. Claims of Breach of Customary International Law
(4) Ratione Personae
D. The Tribunal's Analysis
(1) Jurisdiction Ratione Voluntatis
a. Overarching Principles of Law Applicable to Determining Consent to Jurisdiction
b. Consent in Writing Under Article 25 of the ICSID Convention
c. The Law Applied to the Facts on Jurisdiction Ratione Voluntatis
(2) Jurisdiction Ratione Temporis
(3) Jurisdiction Rationae Materiae
a. Does Section 35 of the GIEPAA (2015) Contain the Respondent's Consent to Arbitrate Claims based on Customary International Law?
b. Does Article 42(1) of the ICSID Convention Provide a Basis of Jurisdiction Ratione Materiae for Claims under Customary International Law?
c. Does Section 32 of the GIEPAA (2015) Provide a Basis of Jurisdiction Ratione Materiae for Claims under Customary International Law?
(4) Jurisdiction Ratione Personae
VI. LIABILITY
A. Introduction
B. The Claimants' Position on Liability
(1) The Nationalization of WAA's Assets Is an Unlawful Expropriation
a. The Respondent did not Expropriate the Claimants' Investment in the "Pursuit of the Public Interest"
b. The Respondent Deprived the Claimants of Due Process
c. The Respondent Has Not Paid Any Compensation for the Expropriation of the Claimants' Investment
(2) The Respondent Failed to Comply with Principles of Customary International Law
a. The Respondent Violated the Minimum Standard of Treatment of Fair and Equitable Treatment
b. The Respondent Violated the Minimum Standard of Treatment of Full Protection and Security
C. The Respondent's Position on Liability
(1) The Nationalization of the Assets of WAA Was Undertaken in Compliance with the GIEPAA (2015)
a. The Nationalization of WAA's Assets Was Taken for a Valid Public Purpose b. The Claimants Were Not Denied Due Process Rights
c. The Claimants Frustrated the Respondent's Attempt to Offer Compensation
d. The Claimants' Right to Receive Compensation under the GIEPAA (2015) Is Not Yet Enforceable
(2) The Claimants' Claims Under Customary International Law Are Irrelevant and Without Consequence
D. The Tribunal's Analysis
(1) The Claim of Unlawful Expropriation
a. The "Public Purpose" Condition and Due Process Issues
b. The Joint Appointment of a Valuer and the Payment of Compensation
(2) The Claim of Breach of the Customary International Law Minimum Standard of Treatment
a. The Claim of Breach of Fair and Equitable Treatment
b. The Claim of Breach of Full Protection and Security
VII. DAMAGES
A. Applicable Laws and Principles
(1) The Parties' Positions
a. The Claimants' Position
b. The Respondent's Position
(2) The Tribunal's Analysis
a. Applicable Law and Standard
b. Principles
B. The Valuation of the Claimants' Alleged Damages
(1) The Parties' Positions
a. The Claimants' Position
b. The Respondent's Position
(2) The Tribunal's Analysis
a. Valuation Methods
b. Application of the Methods
C. Interests
(1) The Parties' Positions
a. The Claimants' Position
b. The Respondent's Position
(2) The Tribunal's Analysis
VIII. COSTS
A. The Claimants' Cost Submissions
B. The Respondent's Cost Submissions
C. The Tribunal's Decision on Costs
IX. AWARD

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 Gambia Investment and Export Promotion Act of 2015, which entered into force on 31 December 2015 (the "GIEPAA (2015)") 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" or the "Convention").

A. GENERAL FACTUAL BACKGROUND

79. The dispute relates to Mr. and Ms. 's (thereafter "the ") investment in WAA.3 WAA is a Gambian company the acquired in the early 2000s which was used to operate a shrimp farm business across two sites in The Gambia (the "Farm"): (i) the Sanyang site, where the shrimp hatchery was located; and (ii) the Pirang site, next to the village of Pirang where the shrimp ponds are located.4 The Pirang site was constituted of an approximately 580-hectare network of ponds (used to grow the harvested shrimp) and several processing facilities.5 According to one of the Claimants' witnesses, due to its size and location, the Farm had the potential to be one of the biggest aquaculture farms in Africa.6

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IX. AWARD

767. For the reasons set forth above, the Tribunal by majority decides as follows:

(1) That it has jurisdiction under Section 35 of the GIEPAA (2015) over the current dispute;

(2) That the Respondent has breached Schedule I Part I of the GIEPAA (2015) that protects investors against expropriation without compensation, in accordance with the Constitution and in compliance with The Gambia's customary international law obligations. Specifically, the Tribunal concludes that the expropriation was unlawful on account of lacking public purpose, due process and compensation;

(3) That the Claimants' claims for breach of Fair and Equitable Treatment and Full Protection and Security are denied;

(4) To order the Respondent to pay compensation to the Claimants in the amount of GBP 8,700,233;

(5) To order the Respondent to pay interest on the amount referred to in para. 767(4) above at the rate of 8% compounded annually from 3 June 2015 to the date of payment;

(6) To order the Respondent to bear the costs of this arbitration in the amount of USD 1,265,961.90, in full. As a result, the Respondent shall reimburse to the Claimants an amount of USD 835,307.35;

(7) To order the Respondent to further bear an amount of GBP 3,279,980.61 for the legal costs of the Claimants; and

(8) All other claims and requests raised by the Parties are denied.

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DISSENTING OPINION OF PROFESSOR PIERRE MAYER

1. In this Dissenting Opinion I set out my main points of disagreement with the Majority, concerning both the Tribunal's jurisdiction (I) and liability (II).

I. ON JURISDICTION

2. The Majority concludes that our Arbitral Tribunal, constituted under the ICSID Convention, has jurisdiction. For the reasons set out in this Dissenting Opinion, I consider that there is no legal basis in this case for ICSID jurisdiction.

3. The first question is whether the applicable provisions of Gambian laws are, ratione temporis, those of the Gambia Investment and Export Promotion Act of 2010 ("the 2010 Act") or those of the Gambia Investment and Export Promotion Act of 2015 ("the 2015 Act"). I conclude, as the Claimants had expressly done in their correspondence with the ICSID Secretariat at the start of the arbitration, that they are exclusively those of the 2015 Act (A). The next question is whether the 2015 Act contains a provision granting ICSID jurisdiction to the Claimants. I conclude that it does not (B). Lastly, I ask myself whether certain considerations might justify that the Claimants could rely on the more favorable provisions of the 2010 Act, in spite of the fact that their request for arbitration was introduced more than two years after the 2010 Act had been repealed by the 2015 Act (C).

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41. This conclusion has two corollaries.

First, time having been lost solely due to the passivity of the Claimants, no interest should be granted to them for the period starting on 3 June 2015 until the date of the award. There is no reason to suppose that an agreement on the name of an expert would not have been found if the Claimants had accepted to discuss it with the Government, or had proposed names, instead of only pretending to impose a name, more than three years after the expropriation. And no arbitral proceedings would have taken place.

Second, for the same reason, the costs of these proceedings should be borne by the Claimants.

42. Since the Majority considers that our Tribunal has jurisdiction over the case, the question arises whether it has the power to substitute its assessment of the value of the enterprise to the valuation which should have been made by an agreed valuer. My position is that our Tribunal does not have jurisdiction (see supra, I), but if it had I would find it difficult for it not to determine the value of the expropriated enterprise and compensate the Claimants' loss on that basis. A legal argument to that effect may be found in Article 22(1)(c)(ii) of the Gambian Constitution, which provides that the law must "[secure] to any person having an interest in or right over the property a right of access to a court or other impartial and independent authority for the determination of his or her interest or right [...] and the amount of any to which he or she is entitled [...]" (emphasis added). Our Tribunal, if it had jurisdiction, might be considered as such an impartial and independent authority.

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