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Joseph Charles Lemire v. Ukraine

Type of decisionAward
Date of decision28 March 2011
Tribunal
Juan Fernández-Armesto (President)
Jan Paulsson
Jürgen Voss (dissenting)
Legal instrumentBIT between Ukraine and USA (1996)
Related decision(s)
Further information

Statements from this decision

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Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Different treatment of foreign and domestic investors is a natural consequence of an IIT
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
Exceptions have to be applied restrictively
A settlement agreement can extinguish existing claims; however, the underlying factual occurrences may still be taken into account by a tribunal concerned with different claims
A settlement agreement can extinguish existing claims; however, the underlying factual occurrences may still be taken into account by a tribunal concerned with different claims
If a proposal for the disqualification of an arbitrator is dismissed, the proponent should bear the full costs and expenses incurred by this incident
Definition of damage suffered by a claimant
Reparation can take the form of restitution or compensation
There must be a common sense correlation between the amounts invested and the damages claimed
Improper inspections by a regulator for the purpose of intimidation constitute an abuse of power, which can cause extreme stress and have implications for the health of the supervised; thus, it may entitle the supervised to be compensated for moral damages
Claimant must prove damages with reasonable certainty; however, a different standard of certainty has to be applied to the conclusion that damages have been caused and their precise quantification
Recovery of loss of opportunity
Moral damages can be awarded under exceptional circumstances, provided that a state's actions implied physical threat, caused deterioration of health, and were grave or substantial
The claimant must show a causal relationship between the host state’s actions and the asserted damages
Causal links have a positive and negative aspect; furthermore, one can distinguish pure and transitive causal links
Causation requires that the damage or disadvantage deriving from the state measure is foreseeable and occurs in a normal sequence of events
Interest should be accumulated periodically to the principal
Interest should accrue with LIBOR as the rate of reference, where the rate is increased by an appropriate margin to reflect the surcharge included for loans to customers
Interest should start to accrue from the date of delivery of the award
If an IIT only specifies the calculation of compensation for expropriations, this does not imply that a violation of other treaty standards may be left without redress
The standard of compensation according to the fair market value of the asset on expropriation does not apply to breaches of other standards of protection
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Dismissing a claim on the basis of a jurisdictional objection not pleaded by the respondent amounts to a serious departure from fundamental rules of procedure

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