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Malicorp v. Egypt

Type of decisionAward
Date of decision7 February 2011
Tribunal
Pierre Tercier (President)
Luiz Olavo Baptista
Pierre-Yves Tschanz
Legal instrumentBIT between Egypt and United Kingdom (1975)
Further information

Statements from this decision

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Good faith is a fundamental principle of international law and the law of investments
An allegation of expropriation already implies an unfair and inequitable treatment; thus, an additional allegation of breach of fair and equitable treatment has to be based on another state measure
A claimant cannot invoke a breach of contract as a treaty claim based on an umbrella clause while at the same time seeking enforcement of a commercial award, which deemed the same contract null and void
In case a state rejects settling contractual disputes by commercial arbitration, a breach of contract can constitute an alleged breach of an umbrella clause even if there is exclusive jurisdiction of commercial arbitration for contractual disputes
An allegation of expropriation already implies an unfair and inequitable treatment; thus, an additional allegation of breach of fair and equitable treatment has to be based on another state measure
Distinction between violation of a contract and a treaty
Only defects related to the consent to arbitrate deprive a tribunal of jurisdiction
A tribunal must rule on all conditions concerning its jurisdiction
Res judicata prohibits a party from reintroducing a new action that is similar regarding the parties, the claims and the factual/legal bases
A tribunal has a broad discretion regarding the allocation of costs and expenses
The outcome of the proceedings is the first factor a tribunal can and must take into account when allocating costs and expenses
A tribunal must rule on all conditions concerning its jurisdiction
Only defects related to the consent to arbitrate deprive a tribunal of jurisdiction
The "investment" definitions in IITs and Article 25 ICSID Convention are complementary
Whether there is an investment is subject to a two-part test in treaty-based ICSID proceedings
Costs incurred during negotiation do not constitute an investment; after the contract is concluded, this commitment constitutes an investment even according to the "Salini" criteria
Investments imply contributions, a certain duration of performance of the contract, participation in the risk of transaction, and contribution to economic development (so called Salini Test)
Costs incurred during negotiation do not constitute an investment; after the contract is concluded, this commitment constitutes an investment even according to the "Salini" criteria
Tribunals have to decide whether to address an alleged breach of good faith by the claimant at the jurisdictional stage or the merits
In case a state rejects settling contractual disputes by commercial arbitration, a breach of contract can constitute an alleged breach of an umbrella clause even if there is exclusive jurisdiction of commercial arbitration for contractual disputes
A tribunal must rule on all conditions concerning its jurisdiction

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