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White Industries v. India

Type of decisionFinal Award
Date of decision30 November 2011
Tribunal
William Rowley (President)
Charles N. Brower
Christopher Lau
Legal instrumentBIT between Australia and India (1999)
Further informationFull text of the decision

Statements from this decision

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International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Further Problems
Regarding the application of an international convention by domestic courts, an investor has to align his or her expectations with the prevalent practice of the host state's courts, not international standards
Law of State Responsibility
Attribution of Acts
General Remarks
Within Article 8 ILC Articles, the organisational structure of the group supposed to act under instructions of a state is irrelevant; the test is whether a state controls or directs the acts and omissions in question
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
The "Salini Test" is not applicable to the investment definition in an IIT
As long as the IIT does not explicitly provide for such a limitation, it is not necessary that an investment is a right "in rem" or features certain economic characteristics
A bank guarantee does not constitute an investment
Arbitral Awards and Right to Arbitration
Rights under an arbitral award constitute part of the original investment, e.g. a contract
Contracts
It is well established that rights arising from contracts may constitute an investment
Expropriation and Standards of Protection
Expropriation
Scope of Protection
Contractual rights, whether tangible or intangible, are capable of being expropriated
General Requirements of an Expropriatory Act
Further Problems
A delay in court proceedings does not amount to an expropriation
Fair and Equitable Treatment
Case Groups
Denial of Justice
Undue delay to rule on a dispute may amount to a denial of justice
Legitimate Expectations
Contrary to the Tecmed tribunal's statement, it is not sufficient that the "basic expectations taken into account by the investor" were frustrated to determine a breach of the FET standard; legitimate expectations have to be based on the conditions in the host state at the time of the investment and an investor can rely on state conduct only if it was specific and unambiguous
To establish a legitimate expectation of payment, there must be an unconditional promise by the state
Regarding the application of an international convention by domestic courts, an investor has to align his or her expectations with the prevalent practice of the host state's courts, not international standards
Most-Favoured-Nation Treatment (MFN)
General Remarks
An investor can invoke an MFN clause to incorporate substantive standards of other IITs
Effective means of asserting claims
"Effective means of asserting claims" provisions set a lower threshold than the prohibition of denial of justice
After having determined that an undue delay of domestic court proceedings amounted to a breach of the "effective means of asserting claims" standard and that the claimant eventually would have prevailed in those domestic proceedings, a tribunal may restore the claimant to the position he or she would have enjoyed if the domestic courts had decided in a timely manner and in the claimant's favour
Further Problems
An obligation to create favourable conditions for investors does not create a substantive right for individual investors
Investment Treaty Arbitration
Damages and Interest
Further Problems
After having determined that an undue delay of domestic court proceedings amounted to a breach of the "effective means of asserting claims" standard and that the claimant eventually would have prevailed in those domestic proceedings, a tribunal may restore the claimant to the position he or she would have enjoyed if the domestic courts had decided in a timely manner and in the claimant's favour

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