The guarantee of full protection and security (FP&S) appears in the vast majority of investment protection treaties. Although its formulation varies (some treaties refer to 'full protection' or 'constant protection,' and yet others provide for 'continuous protection'), the key purpose of this guarantee is to protect the security and integrity of an investment.2
The FP&S standard requires states to refrain from actively interfering with foreign investments, and imposes on the state an obligation of due diligence and vigilance in protecting investments from actions of third parties. These two components are sometimes referred to as the duty to abstain and the duty to protect.3 The former is a negative obligation (i.e., the host state must not engage in actions that may jeopardise the security of aliens). The latter is a positive obligation (i.e., the state's obligation to protect foreign investments from unlawful activities carried out by third parties on its territory and to punish the wrongdoers).4
II Obligation Not To Injure
i Duty to abstain from interference
It is widely accepted that the FP&S standard imposes on a state hosting a foreign investment the duty to refrain from undue interference with the investment. 'The Arbitral Tribunal also does not consider that the “full security” standard is limited to a State's failure to prevent actions by third parties, but also extends to actions by organs and representatives of the State itself.'5 This duty can be breached when a state takes specific actions that harm the integrity of the investment, or fails to prevent another state organ from taking such action.6 One example of interference by the state is undue harm to an investment sustained as a result of raids undertaken by the state's military or police force.
However, not every claimed harassment purportedly at the hands of state officials immediately constitutes a breach of the FP&S clause. In Eureko v. Poland,7 the tribunal did not see sufficient evidence that the state was orchestrating the harassment8 and was not convinced that the 'disturbing' acts of harassment (which the award does not describe) 'breached the standard of the full security and protection of the Treaty'.9
ii Whose actions can lead to a breach of the host state's duty?
A necessary element of any claim for breach of the FP&S standard for affirmative actions taken by state parties (as distinct from omissions by the state from its duty to protect discussed below) is the determination that the action in question is legally attributable to the respondent state. Only conduct attributable to the state can form the basis of state responsibility and liability. Determinations of state attribution are made with reference to the rules of customary international law of state responsibility. These customary law rules have been codified in the International Law Commission's (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles).10 Under the ILC Articles, there are a handful of principal types of actors from whose conduct state responsibility arises.
First, under Article 4, state responsibility extends to all organs of the state, as well as any person or entity holding the status of state organ under domestic law.11 State organs are defined in the commentary as 'all the individual or collective entities which make up the organization of the State and act on its behalf', and includes organs of its central government and territorial units.12 Included within the scope of state organs are all branches of all levels of government. Notably, some tribunals have suggested that the involvement of acts by the judiciary engages a new dimension of the duty of non-interference. As the Frontier Petroleum v. Czech Republic tribunal elaborated:
In this Tribunal's view, where the acts of the host state's judiciary are at stake, “full protection and security” means that the state is under an obligation to make a functioning system of courts and legal remedies available to the investor. On the other hand, not every failure to obtain redress is a violation of the principle of full protection and security. Even a decision that in the eyes of an outside observer, such as an international tribunal, is “wrong” would not automatically lead to state responsibility so long as the courts have acted in good faith and have reached decisions that are reasonably tenable. In particular, the fact that protection could have been more effective, procedurally or substantively, does not automatically mean that the full protection and security standard has been violated.13
Second, Article 5 of the ILC Articles holds conduct of persons and entities empowered with and exercising elements of governmental authority to be attributable to the state. This includes state agencies, as well as certain state-owned enterprises exercising public, regulatory or other non-commercial governmental authority. Thus, in addition to the decisions and orders made by the military or police – which are state organs – the conduct of individual soldiers and officers is too attributable to the state.
Further, under Article 8 of the ILC Articles, state attribution applies to conduct by persons or groups of persons under the direction and control of the state.14 For example, paramilitary groups not officially affiliated with a state but acting under its specific direction or control are deemed to act on behalf of the state. The key determinant of attribution under Article 8 is the degree of control exercised by the respondent state.15 A paramilitary group's activities may still be attributable to a state even if it was not acting under the state's control. This may be the case if the state subsequently adopts the acts as its own,16 or if the acts took place in the context of a civil uprising and regime change.17
iii What is the relationship to other international standards of protection?
Much debate has arisen about the exact contours of the FP&S standard, especially in comparison with other international standards of protection. First, the FP&S standard's roots in the customary law of diplomatic protection and the state's obligation to protect foreign-owned property in its territory raise questions about whether the standard is equivalent to or greater than the international minimum standard of treatment. Second, the FP&S standard's at-times flexible interpretation and application by prior investment arbitration tribunals has raised questions about the distinctions between FP&S and other investment protection standards dealing with state actions interfering with foreign investments, such as, for example, the fair and equitable treatment (FET) standard.
iv Distinction from the international minimum standard
The distinction between the treaty-based FP&S standard from the customary law minimum standard of treatment has not always been viewed consistently. Given that the international minimum standard itself encompasses a duty to provide full protection and security, there has been a split of opinion as to whether the treaty-based standard reiterates the protection available in customary international law, or whether it promises an additional level of protection.
One reasoned approach advanced by commentators has been to distinguish standalone FP&S clauses in bilateral investment treaties (BITs) from those where the FP&S clause is subservient to an international minimum standard of treatment clause,18 as for example in the case of Article 1105(1) of NAFTA.19 Conversely, a standalone FP&S clause not stated in the context of the international minimum standard of treatment would carry with it a heightened 'BIT standard' that exceeded the customary international law standard.
Ultimately, the more material inquiry in most cases is not whether the FP&S clause provides protection beyond the international minimum standard, but what the international minimum standard itself provides. Whatever the gap between the BIT FP&S standard and the customary FP&S standard may have been before, it may now be more of an academic question than one with significant practical consequences. This is because tribunals have increasingly been finding that the traditional conception of the customary minimum standard of treatment has evolved substantially and moved towards the BIT standard.20
v Distinction from FET
The flexible interpretations of FET and FP&S clauses adopted by prior tribunals have in some ways blurred the distinction between FET and FP&S with regard to claims for interference or harm to an investment caused by the state's exercise of regulatory or other policing powers with the investment. For example, in Rusoro v. Venezuela, the tribunal suggested that the lack of any breach of the FET standard meant that 'such measures can never imply a breach of the FP&S standard, however widely interpreted'.21
The authors would posit that the FP&S protection is not necessarily subsumed within the broader FET protection, but rather that each of the two standards has its own sphere of operation, even though there is a high degree of overlap between them.22
Moreover, the principle of effectiveness counsels in favour of a meaning for FP&S distinct from FET. The principle of effectiveness is a principle of treaty interpretation according to which all provisions of a treaty shall be given effective meaning. However, if FP&S was indeed subsumed within FET, that would render the FP&S clause meaningless in the large majority of BITs in which it appears alongside the FET clause. If the state parties to the BIT believed that the FP&S standard was subsumed with the FET standard, there would have been no need to expressly include the FP&S clause in such a treaty.
III Obligation To Protect
i What does the obligation to protect comprise?
The unique feature of the FP&S standard is that it requires the host state to not only abstain from conduct that may interfere with the operation of foreign investment but also to affirmatively protect and secure such foreign investment from injurious acts by third parties.23 As noted above, the latter obligation is sometimes referred to as the duty to protect.
Under the umbrella of that duty, host states have an obligation to prevent injury to investment by third parties. Where the circumstances causing injury nevertheless occur, they have an obligation to take steps repressing the harmful conduct and punishing the perpetrators. These two obligations are sometimes referred to as the 'duty of prevention' and the 'duty of repression'.24 A failure to take appropriate steps in either regard may result in the host state's violation of its FP&S obligation.
ii Whose actions may give rise to international responsibility of the host state?
Significantly, the host state's responsibility may be implicated under this rubric even without attribution of the injurious conduct to the state. That is because the internationally unlawful conduct that the state is responsible for in such circumstances is its own inaction that allowed third parties to loot or otherwise injure the investment.25
iii What level of protection is required from the host state?
The level of protection required from the host state is not absolute. Absent a specific treaty provision obligating the host state to protect foreign investment against 'any possible loss of value' caused by persons whose acts could not be attributed to such state, the host state is not responsible for preventing 'each and every injury' to foreign investment.26 Rather, it is required to exercise due diligence in its efforts to protect and secure the investment.
The concept of due diligence has a long pedigree in international law. Coined by jurist Hugo Grotius in the seventeenth century, it has received wider recognition due to its frequent use in the mixed claims commissions jurisprudence in the nineteenth century.27
In the Cutler case (US v. Italy), an American citizen complained about the destruction of his property that resulted from a mob attack in Florence. Italy accepted that it had an obligation of vigilance but not an obligation from preventing any harm. The United States conceded that, to state a claim, it would have to argue that the Italian authorities 'had knowledge, or should have had knowledge, of the impending attack, or failed to take precautions to thwart it'.28 The arbitrator agreed with the United States's position, noting:
[I]t cannot be said with absolute confidence that the State is responsible merely because the event could have been averted if sufficient police had been present. It must be established that the situation caused for more police which could have been provided in time and were not. Obviously there will be disagreement about the judgment that was made, and that might have been made, and the most that can be said is that a prima facie case exists when it is established that the facts were known to the authorities and that the action which they took, if any, proved inadequate.29
In Sambiaggio (Italy v. Venezuela), the case's umpire held that Venezuela could not be found responsible for acts of uncontrolled revolutionists in the absence of any evidence that the state had 'failed to exercise due diligence to prevent damages'.30 In Youmans (US v. Mexico), the US–Mexican mixed claims commission held that a state may be responsible for damage caused by mob violence where the state failed to punish the persons implicated in the crime.31
Although the early decisions have not defined all the contours of this due diligence obligation, they have identified a series of factors to be considered by tribunals, including the degree of effectiveness of the state's control over parts of its territory, the degree of predictability of harm and the significance of the interest to be protected.32
This obligation of due diligence was subsequently developed further in modern investment treaty jurisprudence. Investment arbitration tribunals have sometimes characterised this obligation as one calling for 'vigilance',33 'prudence',34 'reasonable care',35 'best efforts'36 or responsiveness.37 But, tribunals have generally agreed that the host state is to exercise reasonable care to protect and secure foreign investment. Some tribunals held that the host states are required to use 'all possible measures that could be reasonably expected' for purposes of protection and security of investment.38 Others noted that the obligation of due diligence is 'nothing more nor less than the reasonable measures of prevention which [a] well administered government could be expected to exercise under similar circumstances'.39 In determining the parameters of such 'reasonable measures,' some tribunals considered it appropriate to take into account the state's particular circumstances, including factors such as its level of development and stability, and availability of resources and capacity to deal with the circumstances that give rise to the injury.
For example, in Pantechniki v. Albania, the claimant, a contractor selected for infrastructure works in Albania, complained that violent riots taking place over several days had damaged its investment, and that Albania had breached its FP&S obligation by failing to prevent the damage.40 The sole arbitrator held that the state's FP&S obligations depend on the state's ability to accord protection. The arbitrator compared the standard for denial of justice (which traditionally is not calibrated to the host state's particular circumstances) with that for FP&S, concluding that the two standards are substantially different. The proportionality factor has not been accepted in the context of denial of justice claims because the state's compliance with those obligations does not depend on physical infrastructure – 'states are not liable for denial of justice because they cannot afford to put at the public's disposal spacious buildings or computerized information banks', instead what matters is 'the human factor of obedience to the rule of law'.41 To apply the same reasoning to the FP&S protection would be 'parlous'.
In the context of a denial of justice claim, the two standards are fundamentally different in that:
[t]he minimum requirement is not high in light of the great value placed on the rule of law. There is warrant for its consistent application. A failure of protection and security is to the contrary likely to arise in an unpredictable instance of civic disorder which could have been readily controlled by a powerful state but which overwhelms the limited capacities of one which is poor and fragile.42
The sole arbitrator ruled that it is necessary to take into account the state's actual circumstances and, in particular, its ability to prevent or contract the complained-of damage to the investment. The sole arbitrator reasoned that 'it seems difficult to maintain that a government incurs international responsibility for failure to plan for unprecedented trouble of unprecedented magnitude in unprecedented places.'43 Having found that Albania police was 'unable' to intervene in the riots, which is 'crucially different from a refusal to intervene', the sole arbitrator held that Albania was not in breach of its FP&S obligation.44
In a similar vein, the Tulip v. Turkey tribunal noted similarly that '[t]he question of whether the State has failed to ensure FP&S is one of fact and degree, responsive to the circumstances of the particular case.'45
In sum, when considering the host state's obligation, 'tribunals will likely consider the state's level of development and stability as relevant circumstances in determining whether there has been due diligence.'46 An investor investing in an area with endemic civil strife and poor governance cannot have the same expectation of physical security as one investing in London, New York or Tokyo.47
iv What types of measures are required from the host state?
The nature of measures required of the host state will vary depending on the circumstances giving rise (or threatening to give rise) to the injury. Because this standard requires host states to act with vigilance and due diligence, it also provides these states with a substantial latitude in deciding what actions to take to prevent or repress unlawful and injurious actions. A wide spectrum of measures is available to host states, from 'preventive'48 to 'coercive'49 or 'restorative' measures,50 among others.
IV Scope of Substantive Protections
The scope of FP&S protection remains an open question even today. Specifically, there is a split of opinion as to whether the FP&S standard accords protection to physical security alone, or whether legal security is covered as well. Though some tribunals – for example, those in Siemens v. Argentina, Azurix Corp. v. Argentine Republic, Biwater Gauff (Tanzania) Ltd v. Tanzania and CME v. Czech Republic51 – have been willing to extend the FP&S standard to legal protection, others – for example, those in Gold Reserve v. Venezuela, Saluka v. Czech Republic and AWG v. Argentina – have been reluctant to do so.52 Political and economic volatility frequently impacts a state's legal framework as much as its physical infrastructure, and therefore it is expected that more arbitral decisions addressing this issue will become available in the near future.
Once one of the lesser-developed standards of international investment law, FP&S has now become a hallmark of that law. As this investment protection gains greater recognition, it also opens new horizons. For example, historically, FP&S has been viewed as a standard providing for exclusively physical protection to foreign investment, but nowadays many tribunals hold that it also promises legal protection. Though it remains to be seen whether, going forward, the already-broad purview of the FP&S protection will be expanded even further, the authors posit that the standard has the potential to assume an even more prominent role in investment law. Cyberattacks, environmental pollution and health crises threaten modern life and investments. The FP&S standard has the capacity to address many of these threats.
1 Ulyana Bardyn is a senior managing associate and Levon Golendukhin is a managing associate at Dentons US LLP.
2 Merryl Lawry-White, 'International Investment Arbitration in a Jus Post Bellum Framework', 16 J. World Inv. & Trade 633 (2015), page 647.
3 Riccardo Pisillo-Mazzeschi, 'The Due Diligence Rule and the Nature of the International Responsibility of States,' 35 German Yearbook of International Law 9 (1992), page 22.
5 Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, (22 July 2008), paragraph 730.
6 Frontier Petroleum Services Ltd. v. Czech Republic, UNCITRAL, Final Award (12 November 2010), paragraph 261 ('[T]he host state is under an obligation to take active measures to protect the investment from adverse effects that stem from private parties or from the host state and its organs.').
7 Eureko B.V. v. Republic of Poland, Partial Award (19 August 2005).
8 id., paragraph 237. See also below for a discussion of attribution of conduct of state officials and other individuals and entities.
9 id., paragraph 236. The Eureko tribunal, however, noted that a repetition of such harassment at the hands of state officials could establish a failure on the part of the state to prevent undue interference with the investment by state representatives. id., paragraph 237.
10 ILC Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, U.N. Doc. A/56/10, art. 4 (2001), available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
12 id., art. 4(1) & comment (1).
13 Frontier Petroleum Services Ltd. v. Czech Republic, UNCITRAL, Final Award (12 November 2010), paragraph 273. See also Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award (11 September 2007), paragraphs 360–361.
14 ILC Articles, art. 8.
15 id., art. 8 comments (2), (4), (5).
16 id., art. 11.
17 For a more detailed discussion of questions of attribution in the civil unrest context, see Meriam Al-Rashid et al., 'Investment Claims Amid Civil Unrest: Questions of Attribution and Responsibility', 3 B.C.D.R. Int'l Arb. Rev. 181, 183–197 (2016).
18 See, e.g., Nartnirun Junngam, T'he Full Protection and Security Standard in International Investment Law: What and Who Is Investment Fully Protect and Secured From', 7 Am. U. Bus. L. Rev. 1, 48-49 (2018).
19 North American Free Trade Agreement, 32 I.L.M. 289, 605 (1993), art. 1105(1) ('Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security').
20 See, e.g., Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award (22 September 2014), paragraph 567.
21 Rusoro Mining Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/12/5, Award (22 August 2016), paragraph 548.
22 Mamidoil Jetoil Greek Petroleum Products Societe Anonyme S.A. v. Republic of Albania, ICSID Case No. ARB/11/24, Award (30 March 2015), paragraphs 819–820.
23 AES Summit Generation Limited v. Republic of Hungary, ICSID Case No. ARB/07/22, Award (September 23, 2010), paragraph 13.3.2; Oxus Gold v. Republic of Uzbekistan, UNCITRAL, Final Award (December 17, 2015), paragraph 353.
24 Paushok and others v. Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability (April 28, 2011), paragraph 324; Oxus Gold v. Republic of Uzbekistan, UNCITRAL, Final Award (December 17, 2015), paragraph 353; Ulysseas, Inc. v. Republic of Ecuador, UNCITRAL, Final Award (June 12, 2012), paragraph 272; El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, paragraphs 522–523.
25 Ampal-American Israel Corp. and others v. Arab Republic of Egypt, ICSID Case No. ARB/12/11, Decision on Liability and Heads of Loss (February 21, 2017), paragraph 245.
26 Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (November 30, 2012), paragraph 7.83; see also, Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Award, 27 August 2008, paragraph 181; Allard v. Government of Barbados, PCA Case No. 2012-06, Award (June 27, 2016), paragraph 244; Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003), 19 ICSID Rev.-FILJ 158 (2004), paragraph 177; Von Pezold v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (July 28, 2015), paragraph 596; Ampal-American Israel Corp. and others v. Arab Republic of Egypt, ICSID Case No. ARB/12/11, Decision on Liability and Heads of Loss (February 21, 2017), paragraph 241; Copper Mesa Mining Corporation v. Republic of Ecuador, PCA Case No. 2012-2, Award (Mar. 15, 2016), paragraph 6.81; Vanessa Ventures Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/04/6, Award (January 16, 2013), paragraph 223.
27 International Law Association Study Group on Due Diligence in International Law, First Report (March 7, 2014), page 2, available at http://www.ila-hq.org/index.php/study-groups (last visited March 8, 2019).
28 Krista Nadakavukaren Schefer, International Investment Law: Text, Cases and Materials (Edward Elgar Publishing, 2d edition, 2016), page 364.
30 Sambiaggio (Italy v. Venezuela), 10 R.I.A.A. 499 (1903), page 524.
31 Youmans (US v. Mexico), 6 R.I.A.A. 100 (1926), page 115.
32 International Law Association Study Group on Due Diligence in International Law, First Report (March 7, 2014), page 3, available at http://www.ila-hq.org/index.php/study-groups (last visited March 8, 2019).
33 Paushok and others v. Government of Mongolia, UNCITRAL, Award on Jurisdiction and Liability (April 28, 2011), paragraph 323; El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (October 31, 2011), paragraph 522; Ulysseas, Inc. v. Republic of Ecuador, UNCITRAL, Final Award (June 12, 2012), paragraph 272.
34 OI European Group B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/25, Award (March 10, 2015), paragraph 577.
35 Allard v. Government of Barbados, PCA Case No. 2012-06, Award (June 27, 2016), paragraph 243.
36 Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/09/2, Award (October 31, 2012), paragraph 537.
37 Wena Hotels Limited v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award (December 8, 2000), 41 ILM 896 (2002), paragraph 84.
38 See Asian Agricultural Products Ltd. v. Republic of Sir Lanka, ICSID Case No. ARB/87/3, Final Award (June 27, 1990), paragraph 85(b); Saluka Investments B.V. (the Netherlands) v. The Czech Republic, UNCITRAL, Partial Award (March 17, 2006), paragraph 484 (holding that the host state was under an obligation to 'adopt all reasonable measures to protect assets and property from threats or attacks'); Al Tamimi v. Sultanate of Oman, ICSID Case No. ARB/11/33, Award (November 3, 2015), paragraphs 449, 451; Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003), 19 ICSID Rev.-FILJ 158 (2004), paragraph 177; AES Summit Generation Limited v. Republic of Hungary, ICSID Case No. ARB/07/22, Award (September 23, 2010), paragraph 13.3.2.
39 Asian Agricultural Products Ltd. v. Republic of Sir Lanka, ICSID Case No. ARB/87/3, Final Award (June 27, 1990), paragraph 77; Al-Warraq v. Republic of Indonesia, UNCITRAL, Final Award (December 15, 2014), paragraph 625; AES Summit Generation Limited v. Republic of Hungary, ICSID Case No. ARB/07/22, Award (September 23, 2010), paragraph 13.3.3.
40 Pantechniki S.A. Contractors & Engineers (Greece) v. The Republic of Albania, ICSID Case No. ARB/07/21, Award (July 30, 2009), paragraphs 12–13.
41 id.,, paragraph 76.
42 id., at 77.
44 id., at 82.
45 Tulip Real Estate Investment and Development Netherlands B.V. v. Republic of Turkey, ICSID Case No. ARB/11/28, Award (March 10, 2014), paragraph 430.
46 Andrew Newcombe and Luis Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer Law International 2009), page 310.
48 OI European Group B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/25, Award (March 10, 2015), paragraph 580; Toto Construzioni Generali S.P.A. v. Republic of Lebanon, ICSID Case No. ARB/07/12, Award (June 7, 2012), paragraph 229; El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (October 31, 2011), paragraph 523; Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award (September 11, 2007), paragraph 355.
49 OI European Group B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/25, Award (March 10, 2015), paragraph 580; Pantechniki S.A. Contractors & Engineers (Greece) v. The Republic of Albania, ICSID Case No. ARB/07/21, Award (July 30, 2009), paragraph 82.
50 WENA Hotels Limited v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award (December 8, 2000), 41 ILM 896 (2002), paragraph 84; Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award (September 11, 2007), paragraph 355.
51 Siemens A.G. v. Argentine Republic, ICSID Case No. ARB02/8, Award (February 6, 2007), paragraph 303; Azurix Corp. v. Argentine Republic, ICSID Case No. ARB/01/12, Award (June 23, 2006), paragraphs 406–408; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (July 24, 2008), paragraph 729; CME Czech Republic B.V. v. Czech Republic, UNCITRAL Arbitration Rules, Partial Award (September 13, 2001), paragraph 613.
52 Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award (September 22, 2014), paragraphs 622–23; Saluka Investments B.V. (the Netherlands) v. The Czech Republic, UNCITRAL, Partial Award (March 17, 2006), paragraphs 483–484; AWG Group v. The Argentine Republic, UNCITRAL Arbitration Rules, Decision on Liability (July 30, 2010), paragraph 179.