Almås and Almås v. Republic of Poland. (2022)

• Record Type: Journal Article
• Editors: Viñuales, Jorge E.; Waibel, Michael; Hailes, Oliver
• Is Part Of: ICSID reports. Volume 20(2022)
• Page Start: 294
• Page End: 325
• Publication Date: 2022
• Subjects: Jurisdiction -- State responsibility -- Evidence -- Contract -- Costs; Permanent Court of Arbitration; Investments, Foreign (International law) -- Cases; Arbitration and award, International -- Cases; 341.752
• DOI: 10.1017/ixd.2021.55
• Languages: English
• ISSNs: 2633-9005

Abstract

Abstract : 294 Jurisdiction – Foreign investor – Investment – Contractual rights – Whether shareholders had standing to protect the contractual rights of the corporate vehicle for their investment State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – De facto State organ – Municipal law – Whether an agricultural property agency qualified as a de jure State organ under municipal law – Whether an agricultural property agency qualified as a de facto State organ State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Contract – Bad faith – Evidence – Whether an agricultural property agency terminating a contract constituted an exercise of governmental authority – Whether the agricultural property agency had genuine commercial concerns – Whether the contractual termination was motivated by State policy – Whether the contractual termination was motivated by a hidden political agenda – Whether there were grounds to terminate the contract – Whether the contract was terminated in bad faith Evidence – Bad faith – Contract – Whether procedural mistakes in the termination of a contract amounted to bad faith State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Contract – Instructions – Whether an agricultural property agency was acting on the instructions of the State in terminating a contract Contract – Puissance publique – Fair and equitable treatment – Expropriation – Umbrella clause – Whether treaty claims arising from contractual termination required acts performed in the exercise of puissance publique to constitute breach Costs – UNCITRAL Rules – Agreement – Costs follow the event – Reasonable conduct – Whether a tribunal should order the successful party to pay certain costs of the arbitration because of unreasonable conduct despite prior agreement that costs follow the event – Whether each party should bear its own costs – Whether the unsuccessful party should reimburse the successful party for its advance on costs