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Unglaube v. Costa Rica

Type of decisionAward
Date of decision16 May 2012
Tribunal
Judd Kessler (President)
Bernardo M. Cremades
Franklin Berman
Legal instrumentBIT between Costa Rica and Germany (1994)
Further informationFull text of the decision

Statements from this decision

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If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
Due to its sovereign power, a state may expropriate property, subject to the requirements of international law and the IIT
The measure of compensation set out as a legality requirement in an IIT is binding only with respect to a lawful taking of property
Within the FET standard, it is not the tribunal's role to decide based on its own judgements of fairness
Interpretation of the FET standard must be made in light of the high measure of deference that international law generally extends to the right of domestic authorities to regulate matters within their own borders
The stability of the legal and business framework is an essential element of fair and equitable treatment
An investor has been discriminated against if he or she has been subjected to unequal treatment in circumstances where there appears to be no reasonable basis for such differentiation; while a discriminatory intent may be relevant, the fact of unequal treatment is key
If an IIT protects from "unjustified discrimination", this language does not shift the burden of proof from the claimants to the respondent regarding the justification of a discriminatory measure
The full protection and security standard may extend beyond the traditional standard of protection of the physical facilities and personnel
Violations of the FET standard may be so severe that they result in a taking of an investor's property, i.e. an expropriation
If domestic law empowers certain organs to give authoritative and final interpretations of domestic law, it is not appropriate for a tribunal to substitute an opinion of its own unless the organs have acted in an arbitrary, discriminatory, or otherwise shocking manner
A tribunal has to differentiate between questions of jurisdiction and admissibility
A party bears the burden of proof in establishing the facts that he or she asserts
A tribunal has to distinguish between the burden of proof and the standard of proof; a tribunal has to determine the probative force of the evidence
If an IIT protects from "unjustified discrimination", this language does not shift the burden of proof from the claimants to the respondent regarding the justification of a discriminatory measure
An appropriate interest rate may be based on the deposit rate commonly used in the country of the currency in which payment is to be made
The measure of compensation set out as a legality requirement in an IIT is binding only with respect to a lawful taking of property

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