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Ulysseas v. Ecuador

Type of decisionFinal Award
Date of decision12 June 2012
Tribunal
Piero Bernardini (President)
Brigitte Stern
Michael Pryles
Legal instrumentBIT between Ecuador and USA (1997)
Related decision(s)Interim Award, 28 September 2010
Further informationFull text of the decision

Statements from this decision

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International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Law of State Responsibility
Attribution of Acts
Attribution of Acts by State Entities
The fact that state entities are subject to a system of controls by the state does not make them organs of the state
Protection of Investors under IITs
Expropriation and Standards of Protection
Expropriation
General Requirements of an Expropriatory Act
Further Problems
Expropriation requires an act by the state; a separate entity's exercise of the power recognized under a contract cannot constitute an expropriatory act inasmuch as it was the ordinary behaviour of a contractual counterpart
Indirect Expropriation / Regulations
Determining Whether a Regulation Constitutes an Indirect Expropriation
When determining whether regulatory changes constitute an indirect expropriation, the investor's expectations based on past experiences have to be taken into account
Fair and Equitable Treatment
Relationship to Public International Law
The minimum international standard is a floor below which treatment of foreign investors must not fall
Character and Scope
The full protection and security standard on the one hand and the fair and equitable treatment standard on the other hand cannot be considered together
Case Groups
Legitimate Expectations
There is a conflict between the expectations of the investor regarding the stability of the legal environment and the regulatory interests of a host state
Legitimate expectations can only be created at the moment of the investment
Arbitrary and Discriminatory Measures
For a measure to be discriminatory it is sufficient that two similar situations are treated differently; discrimination may disregard nationality
Definition of arbitrary
Full Protection and Security
Character and Scope
The full protection and security standard on the one hand and the fair and equitable treatment standard on the other hand cannot be considered together
Relationship of Standards of Protection Within a Single IIT
The full protection and security standard on the one hand and the fair and equitable treatment standard on the other hand cannot be considered together
Applicable Law / Choice of Law Clauses
The law applicable to an IIT dispute is the IIT and public international law
UNCITRAL Arbitration Rules 1976
Article 33
The law applicable to an IIT dispute is the IIT and public international law

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