EDF (Services) Limited v. Romania

Abstract

118Procedure – Provisional measures – Confidentiality – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Whether the investor’s actions undermined the integrity of the arbitral process or aggravated the dispute between the parties – Whether the disclosure of witness statements by the State to its anti-corruption authorities violated a previous order on confidentiality of the proceedings – Whether disclosure of information regarding the case to the public aggravated the dispute between the partiesProcedure – Admissibility – Evidence – ICSID Arbitration Rule 34(7) – Authenticity – Delay – Whether the new evidence presented by the investor was admissible – Whether the new evidence was authentic – Whether admission of the new evidence violated the principles of good faith and fair dealing – Whether the request for the admission of new evidence was made without delayState responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – Whether a financial regulator was a State organ – Whether commercial entities were State organsState responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – State-owned entity – Governmental authority – Control – Whether the State-owned commercial entities were acting as agents of the State and exercising governmental authorityState responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Whether the State-owned commercial entities were acting under the instruction, direction or control of the StateFair and equitable treatment – Legitimate expectation – Corruption – Evidence – Contract – Investigation – Whether there was sufficient proof of the solicitation of a bribe by the State’s officials – Whether the investor had a right to legitimately expect that the duration of the investments would be extended – Whether the State’s challenge of the registration of the share transfer in the joint venture to the investor was in bad faith – Whether the State’s refusal to conclude further lease agreements with the joint venture was justified – Whether the organisation and conduct of auctions for leasing commercial spaces at the airport was justified – Whether the investigation by the State’s financial regulator and confiscation of revenues was proportionate, transparent and in good faith – Whether the enactment of an ordinance reorganising the duty-free regime violated the State’s obligation to accord fair and equitable treatmentArbitrary or discriminatory measures – Whether the State applied the measures without a legitimate purposeExpropriation – Creeping expropriation – Whether the State’s measures, either individually or in aggregate, constituted creeping expropriation119Umbrella clause – Contract – State-owned entity – Whether the State had assumed the obligations of the State-owned commercial entities under their respective contracts with the investors – Whether there was a breach of the contracts under their governing law and international lawCosts – Loser pays – Good faith – Whether the loser-pays principle is accepted in investment arbitration – Whether the dispute had been brought by the investor in good faith