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Mining Arbitration in Africa

Mining represents a significant proportion of economic output and inbound investment in Africa, accounting for the vast majority of export revenues in a number of sub-Saharan countries. Given perceived shortcomings of African domestic court systems, international arbitration is the dispute resolution mechanism of choice for mining investments in Africa. Mining disputes therefore represent a significant portion of international arbitration involving African parties or projects in Africa.

Given this prominence, there is much that could be said in an article about mining arbitration in Africa. One could address the development of arbitration law and institutions in Africa – for example, the growing role of the OHADA Uniform Arbitration Act, which governs arbitration proceedings in 17 west African countries.1 One could consider corruption, which is still endemic to the African mining sector,2 and the evolving arbitral case law on how corruption may be relevant to issues of jurisdiction and the merits in arbitral proceedings.3 In light of the declining security situation in many parts of Africa, and the recent attacks involving Areva’s Arlit uranium mine in Niger and the Tigantourine gas facility in Algeria,4 one could consider how security issues might play out in arbitration. We note, for instance, the cases concerning the ‘full protection and security’ standard involving investments in Africa.5

There is, however, one phenomenon that will no doubt overwhelmingly define the nature of any disputes in the African mining sector in the near term, and that is the dramatic and sustained downturn in metals and minerals prices that has occurred over the past three years. Since their peak in 2012, metals prices have dropped significantly, with, for example, gold falling from a peak of US$1,800 per oz in July 2012 to a current price of US$1,240 per oz, manganese prices dropping from US$3.5 per kilo in March 2012 to US$1.85 per kilo now; iron ore pellets falling from a peak of US$180 per tonne in April 2012 to a current price of US$84.50 per tonne.6

This recent evolution has put significant pressure on both states and investors, in particular in that it follows an extended period of exceptionally high prices that spawned a surge in investment. With government budgets and economic growth highly dependent on metals and minerals earnings, and, in some instances, major infrastructure and community service projects left to investors, host states are under pressure to take measures that limit the budget shortfall and ensure that commitments are met. Mining investors, for their part, are contending with significantly altered project economics, as well as increasing security concerns, and may as a consequence be seeking to decrease obligations or suspend investments altogether.

We consider the arbitration to which it might give rise involving the African mining sector from these two perspectives – that of host states and that of investors – in turn.

Host state perspective

Although the mechanisms by which states earn revenues from mining investments vary – with legal, licence and contractual arrangements providing for a variety of revenue streams (upfront payments, royalties, various forms of taxes, etc) – lower metals and minerals prices will invariably mean that state revenues from investments decrease. African states that rely on mining revenues to fund their budgets and finance their socio-economic development are under considerable pressure to limit the budget shortfall caused by falling prices.

Faced with this kind of economic and political pressure, some governments may take measures to augment their share of more limited revenues from mining investments. The mechanisms that may be used to achieve this goal may include unilateral tax increases, as well as contract reviews that may be more or less consensual.

In the past few years, various African governments have passed legislation and taken other measures that may be understood from this perspective. For example, in August 2014, Mozambique enacted a new Mining Law and Mining Tax Law, which introduces new taxes (including a 10 per cent special tax on mining exploration and a 32 per cent capital gains tax on transfer of mining titles, which secure early revenues for the state),7 and also provides for the government’s right to revoke mining title if the holder is indebted to the state.8 In January 2015, Zambia adopted a new mining regime that increased royalty rates to 8 per cent for underground mining (from 6 per cent) and to 20 per cent for open pit mining (from 6 per cent), and now applies the 30 per cent income tax to tolling and processing (rather than just to production as before).9 New legislation that increases the government’s share of revenues has also been introduced or announced in the past few years in Zimbabwe, Kenya and Namibia.10

In particular given the financial pressure faced by investors, it is possible that such state measures will give rise to challenge through arbitration. Typically, investment contracts governing investments in Africa will provide for arbitration of any contractual disputes. Most investors in the African mining sector will also have the possibility of investor–state dispute settlement, should a dispute arise, given the hundreds of investment treaties linking African host states with typical capital-exporting countries (including the United States, the United Kingdom, China, Singapore and the Netherlands).11

Here, we discuss the substantive claims that may be advanced by mining investors in the contractual and investment treaty contexts, and the procedural questions to which this possibility of parallel contractual and investment treaty proceedings gives rise.

Substantive claims to which state measures may give rise

The claims to which measures to augment to a state’s share of mining revenues may give rise will be similar but distinct in the contractual and investment treaty contexts. The difference arises notably from the different causes of action – in the contractual context, it will be breach of contract, whereas in the investment treaty context, it will be breach of the treaty. However, there will be considerable overlap between the matters that are considered in either context: notably, the merits of any dispute as to changed investment terms will often turn on the existence and extent of stabilisation commitments.

In the contractual context, the arguments available to the investor seeking to challenge measures affecting the fiscal or other terms of its investment will depend on the terms of the contract. In particular, the investor will point to stabilisation provisions, if these exist (and they typically will exist in some form in African mining investment contracts), and claim that they have been breached by the state measures. There are few publicly available awards addressing stabilisation clauses in the commercial context. That said, we know from leading cases such as Lena Goldfields v Soviet Government, the so-called ‘Libyan cases’, Aramco v Saudi Arabia, Sapphire Petroleum v National Iranian Oil Co and Aminoil v Kuwait that an attempt by a state to escape a stabilisation commitment by invoking sovereign prerogatives will fail, and that there is no reason in principle why such a commitment will not be given effect by a tribunal.12 What information is available on other more recent cases confirms these general principles.13 Beyond these general principles, the success of a claim will depend on the specific factual matrix, including the terms of the commitment, related terms of the contract, and how it interacts with the applicable law more broadly.

In the investment treaty context, the arguments available to the investor seeking to challenge measures affecting the fiscal or other terms of its investment will depend on the terms of the applicable treaty. Thus, for example, an investor might seek to argue that the measures breach the fair and equitable treatment standard (assuming the application of that standard to the measures in question is not subject to a carve-out), or even constitute expropriation. The case law in relation to so-called ‘windfall profits’ taxes – taxes introduced by states with the intention of recouping a larger share of profits in high-return situations – may be instructive in this regard.

As a general matter, it is settled international law that taxation is an essential prerogative of state sovereignty, and that the imposition of taxes is an appropriate exercise of the state’s regulatory powers as long as the taxes are neither discriminatory nor confiscatory.14

There have, however, been a number of cases in which investors have argued that ‘windfall profits’ taxes violate investment treaties, including the fair and equitable treatment standard and protections against expropriation.

The former cases have largely turned on the existence and extent of stabilisation commitments. Specifically, tribunals have found that stabilisation commitments can create a ‘legitimate expectation’ on the part of an investor that the fiscal regime applicable to the concerned investment will remain stable, and that ‘windfall profits’ taxes violate the fair and equitable treatment standard insofar as they are inconsistent with those commitments. Thus, for example, the Occidental v Ecuador tribunal observed that Occidental had made investments in Ecuador based upon explicit representations during the negotiation of the investment contract, and upon provisions in the contract itself, to the effect that Occidental’s participation would not vary with price.15 On this basis, the tribunal found that Occidental was justified in expecting that this contractual framework would not be modified unilaterally by the state, that Ecuador’s 99 per cent windfall profits tax violated that expectation, and therefore that it breached the fair and equitable treatment standard.16

While the absence of an express contractual stabilisation provision will not necessarily be fatal to a fair and equitable treatment claim, the arbitral case law illustrates that it will be difficult to establish a protected expectation of stability in the absence of one. Thus, the Paushok v Mongolia tribunal found that the lack of a stabilisation agreement did not preclude a treaty claim relating to ‘windfall profits’ taxes. To prevail, however, the claimants still needed to demonstrate that they had legitimate expectations that were violated; in the event, the tribunal found that the claimants had failed to establish this.17

Since many investment treaties include ‘carve-outs’ precluding fair and equitable treatment claims based on taxation measures, a number of investors seeking to impugn ‘windfall profits’ taxes have had to argue that such measures constitute expropriation. Here, the analysis turns less on the whether the measure is inconsistent with a stabilisation commitment. Rather, it is well established that a finding of expropriation requires a demonstration of ‘substantial deprivation’,18 and it is this principle that has been applied to determining whether ‘windfall profits’ taxes are expropriatory.
Thus, both the Perenco v Ecuador and Burlington Resources v Ecuador tribunals, who were considering the same 99 per cent Ecuadorian ‘windfall profits’ tax discussed above, found that a tax would constitute an expropriation if it effected a ‘substantial deprivation’, meaning that that the ‘investment’s continuing capacity to generate a return has been virtually extinguished’.19 Both tribunals found that this was not the case with Ecuador’s 99 per cent tax, which was a tax on profits. In this respect, the majority of the Burlington tribunal noted that, by definition, a ‘windfall profits’ tax would be unlikely to qualify as an expropriation because ‘by definition’, such a tax would appear to apply only to a portion of the profits (the ‘windfall’).20

The analysis in relation to measures adopted in the present price context may, of course, look quite different. In particular, it may very well be that certain measures adopted by states to recoup a greater share of diminishing revenues do, for certain investments, ‘virtually extinguish’ the investment’s capacity to generate a return.

Procedural questions to which the possibility of parallel proceedings gives rise

As seen above, mining investors may have available to them both contractually agreed dispute resolution provisions and investor–state dispute settlement mechanisms, creating at least the theoretical possibility of parallel proceedings. A number of issues arise in this regard.

First, to what extent can parallel proceedings be brought? That issue will turn, among other things, on whether there is some kind of ‘fork in the road’ provision in the applicable investment treaty. Such provisions come in various guises, but their common feature is that they are intended to prevent an investor from litigating the same dispute in multiple fora. Tribunals have typically found that such provisions will preclude parallel proceedings where there is a ‘triple identity’ between the parallel proceedings, that being an identity between parties, object and cause of action. Thus, for example, many tribunals have allowed treaty claims to be brought despite ongoing contractual arbitration or domestic litigation on the basis that the ongoing proceedings were brought by different parties (eg the local project company, as opposed to the parent investor) or were founded on different causes of action (eg, breach of contract rather than breach of the treaty).21

Second, if parallel proceedings are permitted, how should they be managed as a procedural matter – eg, when should a principle of lis pendens apply? Tribunals have considered that they have discretion to stay their proceedings if the dispute is being heard in another forum.22 In determining whether to exercise this discretion, tribunals have tended to apply some form of the above-noted triple identity test.23

Third, should factual determinations in one proceeding bind in subsequent proceedings, and by virtue of what principle? Tribunals have applied the principle of res judicata in investment arbitration. However, they have typically found that the principle applies only where some form of the triple identity test is met, thus severely constraining its application (although earlier determinations by another tribunal or domestic court may, depending on the circumstances, bind by other legal means or as a matter of fact). Thus, the TECO v Guatemala tribunal found that decisions of the Constitutional Court of Guatemala did not have res judicata effect in international arbitration or dispose of the dispute, as the parties to the domestic and international proceedings were different, and the treaty tribunal was mandated to resolve a different dispute on the basis of different legal rules.24 Similarly, in Desert Line v Yemen, the tribunal held that while a domestic commercial arbitration award had res judicata effect, it nevertheless did not preclude the treaty claim, which was based on a different cause of action.25

In light, among other things, of this possibility of parallel proceedings relating to the same dispute, with the attendant possibility of conflicting decisions, certain authors have criticised such a ‘strict’ application of the triple identity test.26 For the time being, however, to the extent that African governments adopt measures to recoup a greater share of dwindling mining revenues, there is a real possibility of arbitral challenge in multiple fora.27

Mining sector investor perspective

Low metals and minerals prices have significantly altered the economics of many mining projects in Africa (as elsewhere). In response, some mining companies have sought (or will seek) to curtail production or suspend projects altogether. That said, given mining companies’ unprecedented recourse to debt financing in recent years, there may be quite a few African mining investors who are actually forced to maintain or even increase production, despite unfavourable economics, to meet repayment obligations.

At the very least, investors will be looking to cut costs, and may be particularly eager to shed commitments not directly required for the extraction and development of the resource. Over the past decade, increased attention to the sustainability of extractive resource investments and their impact on overall development has meant that mining investment contracts now frequently contain important commitments to build or finance infrastructure or otherwise contribute to community development. This has been a particular characteristic of mining contracts with Chinese companies, and there have been a number of umbrella agreements between China or Chinese state-owned companies and African governments that contemplate the provision of infrastructure as the means of payment for the resource.28

Thus, African host states are faced with a double potential loss in the present low-price context: not only may they be receiving less revenue from production, but also they may not be receiving ancillary infrastructure and community development benefits. To the extent that negotiated arrangements cannot be found to accommodate the needs of both investors and host states in this context, and host states are faced with investor non-performance, states may resort to termination of mining rights. This may give rise to arbitration, the claims that may be made in which we discuss below. However, termination of rights may not address the issue faced by states – specifically, if there is no investor willing to assume obligations under terminated arrangements. The question therefore arises as to whether states have other recourse in the face of investor non-performance, and could, for example, sue for damages. This is also addressed below.

Termination of mining rights for failure to perform

Faced with investor non-performance, a host state may wish to terminate the investment contract or licence. A state may seek a declaration that it is entitled to terminate rights from an arbitral tribunal.29 More typically, however, a state will simply proceed to terminate rights if it feels it is entitled to do so under the applicable contract or law. An investor may then seek recourse from an arbitral tribunal if it feels this termination is unjustified;30 as with challenges to other state measures, this may be brought before a tribunal constituted under an investment contract or treaty.

In the contractual context, the question of whether a termination was justified will turn on the contractual and legal framework governing the project. What information there is on recent arbitral awards suggests that tribunals will not hesitate to find that termination for failure to perform agreed commitments can be justified. Thus, for example, in August 2015 an ICC tribunal reportedly dismissed a US$200 million claim filed by two mining companies against Ghana seeking to challenge Ghana’s termination of a gold mining agreement relating to the Dunkwa region for failure to perform.31 Another tribunal reportedly rendered an award in favour of Senegal, who had sought a declaration that a series of contracts with ArcelorMittal to develop an iron mine in Falémé and to construct a new port near Dakar as well as a 750km railway line connecting the two should be terminated for material breach. ArcelorMittal had suspended the project in 2009, citing its lack of viability in a low-price environment.32

In the treaty context, depending on the treaty, an investor might argue that termination violates various provisions. It might be a breach of the fair and equitable treatment standard. For example, the Occidental v Ecuador tribunal found that Ecuador’s decision to terminate its contract with Occidental in response to Occidental’s failure to obtain authorisation for the transfer of an interest in the contract was in breach of the fair and equitable treatment standard.33 It may be in violation of an ‘umbrella clause’ if there is one in the applicable treaty, although there is debate as to when a contract breach can also constitute a breach of an umbrella clause. For example, the EDF v Argentina tribunal held that although not all contractual breaches necessarily rise to the level of a treaty breach, a serious repudiation of concession obligations by the host state breached the applicable umbrella clause.34 A termination may also be expropriatory. Finally, to the extent that domestic courts have pronounced on the termination, there may be scope for arguing denial of justice.35

Claim for damages, whether for lost revenue or otherwise

As noted, termination of an investor’s rights may not be a fully effective remedy for a state faced with non-performance, notably if there is no investor willing to assume rights and obligations under cancelled contracts or licences. The question, then, is whether states have other remedies in these circumstances. For example, can a state claim damages, whether for lost revenue or otherwise, from an investor who has not performed his or her obligations?

The answer to this question will depend on whether the non-performance constitutes a breach of contract (which might very well be the case to the extent that the contract provides for minimum levels of resource development, or infrastructure or community development projects), and what remedies are available for breach under the law applicable. Virtually all legal systems contemplate damages as the principal remedy for breach of contract.36 The question is: what damages are compensable?

In civil law systems, damages are said to be due for the loss a claimant has suffered and the profit of which he has been deprived as a result of the breach.37 To be awarded, damages must be foreseeable,38 must be calculated with reasonable certainty, and must result directly from non-performance of the agreement.39

The approach is not dissimilar in result, if expressed somewhat differently, in common law systems. Damages are intended to place the injured party in the position that it would have been in ‘but for’ the breach. For damages to be awarded, there must be a causal connection between the defendant’s breach and the claimant’s loss,40 and damages must have been reasonably foreseeable at the time of the contract.41 Damages must also be proven with reasonable certainty.42 Both ‘reliance losses’ (expenses incurred by the claimant in reliance on proper performance) and ‘expectation losses’ (gains the claimant expected to receive from performance) are compensated.43

Therefore, it seems entirely possible that there could be cases where states – whether in Africa or otherwise – could seek damages from mining investors who fail to perform under investment contracts. The question would be what amounts could be claimed, whether lost state revenues, lost benefits of infrastructure or community projects, or otherwise. Issues of foreseeability and certainty would likely be the limiting factors, although much will depend on the facts of the case.

We are aware of at least one recent case in which such an argument has been made, in the event as a counterclaim by a state to an investor claim under a contract. Chinese energy investor PetroTrans has reportedly filed a claim against the Ethiopian Ministry of Mines challenging the 2012 termination of an oil and gas exploration agreement following PetroTrans’ alleged failure to begin exploration work as scheduled. There was reportedly a counterclaim for damages for breach of the agreement. Both claim and counterclaim were reportedly dismissed.44

Notes

  1. Organisation pour l’Harmonisation en Afrique du Droit des Affaires (OHADA), Acte Uniforme Relatif au Droit de l’Arbitrage, adopted 11 March 1999 and effective 11 June 1999.
  2. See eg, BSG Resources Limited v Republic of Guinea (ICSID Case No. ARB/14/22); BSG Resources (Guinea) Limited and BSG Resources (Guinea) SÀRL v Republic of Guinea (ICSID Case No. ARB/15/46); Rio Tinto PLC v Vale SA, 14 Civ. 3042, NYLJ 1202743648065 (SDNY, Decided 20 November 2015).
  3. See eg, World Duty Free Company Limited v The Republic of Kenya, ICSID Case No. ARB/00/7, Award, 4 October 2006; Metal-Tech Ltd v Republic of Uzbekistan, ICSID Case No. ARB/10/3, Award, 4 October 2013. See also, gen., Constantine Partasides, ‘Proving Corruption in International Arbitration: A Balanced Standard for the Real World’, Transnational Dispute Management 3 (2013).
  4. See eg, France 24, Islamist groups claim twin attacks on Niger targets, 24 May 2013; Statoil, Publication of the investigation report on the In Amenas terrorist attack, 12 September 2013.
  5. See eg, American Manufacturing and Trading, Inc v Zaire, ICSID Case No. ARB/93/1, Award, 21 February 1997; AngloGold v Ashanti, ICSID Case No. ARB/16/15.
  6. Precious metals trading firm Kitco Metals Inc maintains a comprehensive metals and mineral prices database, available at www.kitco.com.
  7. Mining Tax Law No. 28/2014 of 23 September 2014. See also KPMG, Mozambique Fiscal Guide 2013/14 (2014), pp. 2, 5.
  8. Mining Law No. 20/2014 of 18 August 2014.
  9. Deloitte, State of Mining in Africa (2015), p. 6.
  10. Deloitte, State of Mining in Africa (2015), p. 6.
  11. The United Nations Conference on Trade and Development (UNCTAD) maintains and regularly updates an online database of investment agreements. Available at: http://investmentpolicyhub.unctad.org/IIA.
  12. See eg, Lena Goldfields Limited v USSR, Award, (1929-1930) 5 ADIL 3 (Case No. 1); Libyan American Oil Co (LIAMCO) v Libya, Award on Jurisdiction, Merits and Damages, 20 ILM (1981) 1, 62 ILR 140, 12 April 1977; Saudi Arabia v Saudia Arabian Oil Co (Aramco) (1958) 27 ILP 117; Sapphire International Petroleums Co v National Iranian Oil Co, 35 ILR 136 (1967); Kuwait v American Independent Oil Co (AMINOIL), Award, 21 ILM 976 (1982), 24 March 1982.
  13. See eg, P Cameron, International Energy investment Law – The Pursuit of Stability (Oxford, 2010), pp. 91-92 (discussing a case concerning a concession agreement between an African state and a foreign investor, in which the tribunal rejected an attempt to evade the stabilisation commitment by arguing that the state was not able to fetter its future discretion).
  14. For one leading statement of this principle, see Draft Convention on the International Responsibility of States for Injuries to Aliens, prepared by the Harvard Law School, 1961. For an example of its more recent confirmation, see Burlington Resources Inc v Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, paragraphs 39–92.
  15. See eg, Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador, ICSID Case No. ARB/06/11, Award, 5 October 2012, paragraph 526.
  16. See eg, Occidental Petroleum Corporation and Occidental Exploration and Production Company v The Republic of Ecuador, ICSID Case No. ARB/06/11, Award, 5 October 2012, paragraph 527.
  17. Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Government of Mongolia, Award on Jurisdiction and Liability, 28 April 2011, paragraphs 301-02.
  18. For a leading statement of this principle, see Pope & Talbot Inc v Canada (NAFTA (UNCITRAL)), Interim Award, 26 June 2000, paragraph 102.
  19. Burlington Resources Inc v Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, paragraph 399.
  20. Burlington Resources Inc v Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, paragraph 404.
  21. See eg, Alex Genin, Eastern Credit Limited, Inc and AS Baltoil v The Republic of Estonia, ICSID Case No. ARB/99/2, Award, 25 June 2001, paragraph 31; CMS Gas Transmission Company v The Republic of Argentina, ICSID Case No. ARB/01/8, Decision of the Tribunal on Objection to Jurisdiction, 17 July 2003, paragraph 80.
  22. See, Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, ICSID Case No. ARB/84/3, Decision on Jurisdiction, 14 April 1988, 3 ICSID Rep. 101, 129 (ICSID, 1985).
  23. See eg, Azurix Corp v The Argentine Republic, ICSID Case No. ARB/01/12, Decision on Jurisdiction, 14 July 2006, paragraph 88; EDF International SA, SAUR International SA and León Participaciones Argentinas SA v Argentine Republic, ICSID Case No. ARB/03/23, Award, 11 June 2012, paragraph 1132.
  24. TECO Guatemala Holdings, LLC v Republic of Guatemala, Award, 19 December 2013, paragraphs 516-517.
  25. See eg, Desert Line Projects LLC v The Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008, Award, paragraphs 136, 204 and 2015.
  26. See eg, Audley Sheppard, Res Judicata and Estoppel, in Parallel State and Arbitral Procedures in International Arbitration, pp. 219-42, 233 (ICC Dossiers, 2005) at 235, 237 (arguing that ‘[s]trict application of the test can put ‘form over substance’ and ignore the underlying realities and be inconsistent with the strong policy grounds giving rise to the doctrine of res judicata (in particular, the avoidance of double jeopardy and of inconsistent decisions).’)
  27. See eg, Tom Jones, ‘First Quantum defends claim over Zambian mine’, Global Arbitration Review, 11 November 2016 (discussing claims brought by a state-owned mining company in arbitration and before the Zambian High Court); ‘First Quantum Minerals Provides Update on ZCCM-IH Arbitration and High Court Claims.’ First Quantum Minerals, 9 November 2016; Lacey Yong, ‘Botswana mining deal leads to LCIA claim’, Global Arbitration Review, 6 December 2016 (noting that the claimant mining company had commenced proceedings before the courts of Botswana as well as in arbitration).
  28. See eg, Tanneke Heersche, Asian Investment in Africa: A Snapshot, Rocky Mt. Min. L. Fdn., 2013.
  29. See eg, the case reportedly brought by Senegal against ArcelorMittal discussed in Douglas Thomson, ‘ArcelorMittal settles with Senegal’, Global Arbitration Review, 9 June 2014.
  30. Recently, for example, in 2015, Pan African Minerals, a South Africa-based mining company, brought a claim against Burkina Faso seeking compensation for improper termination of the company’s permit to exploit manganese deposits pending review by the incoming presidential administration. See, Tom Jones, ‘Burkina Faso faces multibillion dollar mining claim’, Global Arbitration Review, 30 November 2016.
  31. Lacey Yong, ‘Ghana defeats gold mine claim’, Global Arbitration Review, 24 August 2015.
  32. Douglas Thomson, ‘ArcelorMittal settles with Senegal’, Global Arbitration Review, 9 June 2014.
  33. Occidental Petroleum Corporation and Occidental Exploration and Production Company v Republic of Ecuador, ICSID Case No. ARB/06/11, Award, 5 October 2012, paragraphs 452, 527. See also, Occidental Petroleum Corporation and Occidental Exploration and Production Company v Republic of Ecuador, ICSID Case No. ARB/06/11, Decision on Annulment of the Award; 2 November 2005.
  34. EDF International SA, SAUR International SA and León Participaciones Argentinas SA v Argentine Republic, ICSID Case No. ARB/03/23, Award, 11 June 2012, paragraph 940. Cf. SGS Société Générale de Surveillance SA v Republic of Paraguay, ICSID Case No. ARB/07/29, Award, 10 February 2012, paragraphs 89-91.
  35. See generally Jan Paulsson, Denial of Justice in International Law (Cambridge University Press, 2005).
  36. In relation to civil law systems, see eg, article 1147 of the French Civil Code; article 1147 of the Belgian Civil Code; article 1123 et seq. of the Italian Civil Code. In relation to common law systems, see eg, Chitty on Contracts, Vol 1 (General Principles), 30th ed. (London, UK: Sweet & Maxwell, 2008), Chapter 26 (‘Damages’).
  37. See eg, article 1149 of French Civil Code.
  38. See eg, article 1150 of French Civil Code.
  39. See eg, article 1151 of French Civil Code.
  40. The Monarch Steamship v Karlshamns Oljefabrika [1949] AC 196; Malik v Bank of Credit and Commerce International SA [1998] A.C. 20, 51, citing Addis v Gramaphone Co [1909] A.C. 488.
  41. Hadley v Baxendale (1854) 9 Ex Ch 341; Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 K.B. 528; Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 A.C. 350.
  42. Chaplin v Hicks [1911] 2 K.B. 786 CA; Ratcliffe v Evans [1892] 2 Q.B. 524 CA.
  43. Attorney-General v Blake [2001] 1 A.C. 268.
  44. Tom Jones, ‘Ethiopia defeats claim by Chinese energy investor’, Global Arbitration Review, 20 January 2016.

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