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Published online by Cambridge University Press: 10 July 2017
This document was reproduced and reformatted from the text appearing at the ICSID website (visited May 10, 2005) www.worldbank.org/icsid/cases/plama-decision.pdf
* August Reinisch is professor of International and European Law at the University of Vienna and professorial lecturer at the Bologna Center of SAIS/Johns Hopkins University in Bologna.
page 720 note 1 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction of 8 February 2005.
page 720 note 2 Energy Charter Treaty, Annex 1 to the Final Act of the European Energy Charter Treaty Conference, 17 December 1994, 34ILM381 (1995).
page 720 note 3 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 4 ILM 532 (1965).
page 720 note 4 Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), 1996, ICJ Reports 803.
page 720 note 5 Vienna Convention on the Law of Treaties, 22 May 1969, 8 ILM 679 (1969).
page 720 note 6 The original submission of the United States of America to the jurisdiction of the ICJ according to Article 36(2) ICJ Statute purported to exempt from this submission: “disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America.” Washington, 14 August 1946, ICJ Yearbook 214 (1946/47).
page 720 note 7 Case of Certain Norwegian Loans (France v. Norway), 1957 ICJ Reports 9.
page 720 note 8 See also the similar issue arising under Article XXI GATT which provides: “Nothing in [the GATT] shall be construed [?](b) to prevent any contracting party from taking action which it considers necessary for the protection of its essential security interests [?].” General Agreement on Tariffs and Trade 1994, 15 April 1994, 33 ILM 1154 (1994).
page 720 note 9 Article 4.1 of the Bulgaria-Cyprus Bit provides: “The legality of the expropriation shall be checked at the request of the concerned investor through the regular administrative and legal procedure of the contracting party that had taken the expropriation steps. In cases of dispute with regard to the amount of the compensation, which disputes were not settled in an administrative order, the concerned investor and the legal representatives of the other Contracting Party shall hold consultations for fixing this value. If within 3 months after the beginning of the consultations no agreement is reached, the amount of the compensation at the request of the concerned investor shall be checked either in a legal regular procedure of the Contracting Party which had taken the measure on expropriation or by an international ‘Adhoc’ Arbitration Court.“
page 720 note 10 Article 3.1 of the Bulgaria-Cyprus Bit provides: “Each Contracting Party shall apply to the investments in its territory by investors of the other Contracting Party a treatment which is not less favorable than that accorded to investments by investors of third states.“
page 720 note 11 Emilio Agustsín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction of 25 January 2000, 40 ILM 1129(2001).
page 720 note 12 Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction of 3 August 2004, 44 ILM 138 (2005).
page 720 note 13 Salini Costruttori S.p.A and Italstrade S.p.A v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Decision on Jurisdiction of 15 November 2004, available at http:// www.worldbank.org/icsid/cases/salini-decision.pdf.
page 720 note 14 Nottebohm Case (Liechtenstein v. Guatemala), 1955 ICJ Reports 4.
page 720 note 15 Supra note 4.
page 720 note 16 Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgement No. 2, 1924, P.C.I.J. Series A. No. 2, 7, 16.
page 758 note 1 Bulgaria ratified the ECT on 15 November 1996 and Cyprus, on 16 January 1998.
page 758 note 2 Part III of the ECT provides for the treatment to be accorded bythe Contracting Parties to investments covered by the Treaty in their territory.
page 758 note 3 See paragraph 25 supra.
page 758 note 4 References to the Transcript of the Hearing on 20-21 September 2004 are to Day 1 or 2 followed by the page number of the transcript of that day's hearing.
page 758 note 5 Case concerning Oil Platforms (Islamic Republic of Iran v.United States of America), 1996, ICJ Reports 803, at 810).
page 758 note 6 Mavrommatis Palestine Concessions, Judgement N° 2, 1924, P.C.I.J., Series A. N° 2, p. 16.
page 758 note 7 Salini Costruttori S.p.A and Italstrade S.p.A v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/02/13, Award of 15 November 2004, http://www.worldbank.org/icsid .
page 758 note 8 Bamberger, Lineham and Wälde, The Energy Charter Treaty in 2000 (in Energy Law in Europe, ed Roggenkamp; 2000), pp. 11,31 and 32 (Legal Appendix to Reply, Exhibit 73).
page 758 note 9 Liechtenstein v Guatemala, 1955 ICJ 4.
page 758 note 10 As of the date of this Decision, the parties had not yet agreed on a transcript of either the original French or English translation of Mr. Vautrin's testimony, a fact which does not affect this Decision.
page 758 note 11 see also, Siemens v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision of 3 August 2004, at paragraphs 91-92, <http://www.asil.Org/ilib/Siemens_Argentina.pdf.>
page 758 note 12 Emilio Agustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction of 25 January 2000, reprinted in 16 ICSID Rev.-F.I.LJ. 212 (2001), at paragraph 54.
page 758 note 13 The Vienna Convention on the Law of Treaties, 2nd ed. 1984, at 130.
page 758 note 14 See footnote 11, supra
page 758 note 15 See, for example Article 10(1) of the Bulgaria-Morocco BIT and Article 9(1) of the Bulgaria-Tunisia BIT, referring to disputes relating to ‘ ‘failure to perform obligations under this Agreement” or obligations “arising from this Agreement”. Article 8 of the Bulgaria-Finland BIT on which Claimant relies is not entirely clear in that respect.
page 758 note 16 ICSID Case No. ARB/97/4, Decision on Jurisdiction of 24 May 1999, reprinted in 14 ICSID Rev.-F.l.L.J. 250 (1999).
page 758 note 17 152 I.C.J. Rep. 176, Judgment of 27 August 1952.
page 758 note 18 United Kingdom v. Iran, 1952 I.C.J. 39, Judgment on prelimnary objection of 22 July 1952.
page 758 note 19 Greece v. United Kingdom, 1953 I.C.J. 10, Judgment on the Obligation to Arbitrate, 19 May 1953.
page 758 note 20 Ambatielos Claim, Greece v. United Kingdom, XII U.N.R.I.A. A. 9, Award of 6 March 1956.
page 758 note 21 See footnote 12, supra.
page 758 note 22 See footnote 7, supra.
page 758 note 23 ICSID Case No. ARB(AF)/00/2, Award of 29 May 2003,reprinted in Spanish in 19 ICSID Rev.-F.l.L.J. 158 (2004).
page 758 note 24 See footnote 11, supra.
