Known unknowns

One difficulty in studying investment treaty arbitration is that the arbitral awards are not necessarily made public. This is confounding to scholars, leading Emilie Hafner-Burton and her colleagues at University of California-San Diego to put out a  study theorizing how and when awards are made public. (Spoiler alert: they find that disputes involving investments with long time horizons may be more likely to be undisclosed, as are cases involving frequent claimants and losing government respondents.) They look, however, at only cases registered at the World Bank’s arbitration arm (ICSID), and they look at non-investment treaty cases as well. Thanks to specialized reporting outlets like the Investment Arbitration Reporter, as well as the work of UNCTAD (the UN investment arm) and scholars like Lauge Poulsen, we can construct a more complete list of the “known unknowns” in investment treaty arbitration. As Donald Rumsfeld would say, that still leaves the “unknown unknowns”, but this list (which I’ll update over time) is an improvement over what we have currently. As you can see from the list below, former Soviet bloc countries are the real culprits in not releasing their awards, something Investment Arbitration Reporter has been trying to remedy through Freedom of Information Act requests. States’ reluctance to make some of their awards public is doubly bizarre, since states appear to prevail more in their unpublished awards (60% of the time) than in their published awards (43% of the time). (If you break apart those awards that culminated in merits determinations, the numbers are 65% and 35%. For jurisdiction determinations, it’s 45% and 54%.) States might therefore be able to further alleviate any reputational harm from having been hit with the challenge by simply disclosing these victories. (UPDATE 2.14.14: I don’t have much of a theory for why states might not disclose these successes, but attentive reader and scholar Jonnathan Bonnitcha offered one to me: “otherwise confidential awards sometimes become public when the investor seeks enforcement of the award. This is because enforcement proceedings in national courts normally require disclosure of the underlying award.”) Here’s the list, as I’ve tallied it. Please let me know if I’m missing any, or if any of these have been made public, or if you want to make one of these public by sending it to me. (UPDATE, 2.14.14: When I add new items to the list, I’ll put them in bold. When I remove items that have been made public, I will cross them out. I’ll just reiterate also that the lion’s share of reporting on and digging for these awards has come from IAR, which is well worth subscribing to.)

(UPDATE, 11.4.14: I have gone through and market out a couple of merits and a couple of jurisdiction awards that are now public. Unfortunately, two more have taken their respective places! )

(UPDATE, 6/1/15: Since the last update of this list, Invesmart, Binder, Intertrade, Euram, ECE, InterTrade, Vocklinhaus, and Konsortium have surfaced, thanks to IAR’s FOIA requests.)

(UPDATE, 7/14/15: Newly available awards: European Media Ventures,

Non-public merits awards (26) Abengoa, S.A. y COFIDES, S.A. v. United Mexican States, ICSID Case No. ARB(AF)/09/2

1. Adria Beteiligungs GmbH v. The Republic of Croatia, UNCITRAL STILL, 2010
2. AES Corporation and Tau Power B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/10/16. STILL, 2013
3. Ahmonseto, Inc. and others v. Arab Republic of Egypt, ICSID Case No. ARB/02/15. STILL, 2007
4. Biedermann International, Inc. v. The Republic of Kazakhstan, SCC Case No. 97/1996. STILL, 1999 Binder v. Czech Republic, UNCITRAL
5. Cargill v. Poland, UNCITRAL, STILL 2008
6. Cementownia “Nowa Huta” S.A. v. Republic of Turkey, UNCITRAL. 2009, STILL. NOTE THAT THERE IS AN ICSID CASE BY SAME NAME FROM LATER IN 2009
7. Cesare Galdabini SpA v. Russian Federation, UNCITRAL. STILL, 2011
8. Compagnie International de Maintenance (CIM) v. Ethiopia, UNCITRAL. STILL, Convial Callao S.A. and CCI – Compañía de Concesiones de Infraestructura S.A. v. Republic of Peru, ICSID Case No. ARB/10/2
9. Crespo and others v. Poland, ICC. STILL, 2005 ECE Projektmanagement v. The Czech Republic, UNCITRAL European Media Ventures SA v. The Czech Republic, UNCITRAL.
10. France Telecom v. Lebanon, UNCITRAL. STILL, 2005
11. H & H Enterprises v. Egypt, ICSID (2014). STILL
12. Intersema Bau AG v. Libya, UNCITRAL. STILL,  Intertrade Holding GmbH v. Czech Republic, UNCITRAL Invesmart v. Czech Republic, UNCITRAL
13. Karmer Marble Tourism Construction Industry and Commerce Limited Liability Company v. Georgia, ICSID Case No. ARB/08/19. STILL, 2012 Konsortium Oeconomismus v. Czech Republic. Note this not really a merits award.
14. Les Laboratoires Servier, S.A.A., Biofarma, S.A.S., Arts et Techniques du Progres S.A.S. v. Republic of Poland, UNCITRAL. STILL. A HEAVILY REDACTED VERSION IS AVAILABLE. 2012
15. Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14. STILL. ONLY EXCERPTS AVAILABLE. 2010
16. Luigiterzo Bosca v. Lithuania, UNCITRAL. STILL 2013
17. Mercuria Energy Group Limited v. Republic of Poland, SCC. STILL 2011
18. Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/04/16. STILL, 2013
19. Mytilineos v. Serbia, UNCITRAL (See IAR story.) STILL, 2009 Peter Franz Vocklinghaus v. Czech Republic
20. Pren Nreka v. Czech Republic, UNCITRAL. STILL, 2007
21. Sky Petroleum, Inc. v. Ministry of Economy, Trade, and Energy of Albania et al, UNCITRAL. STILL, 2013
22. Stans Energy v. Kazakhstan (2014). STILL
23. Swiss Businessman v. South Africa, UNCITRAL. (See IAR story.) STILL, 2003
24. TRACO Deutsche Travertin Werke GmbH v. Poland, UNCITRAL. STILL, 2012
25. TS Investment Corp. v. Republic of Armenia, LCIA. STILL, 2011
26. Ulemek v. Croatia, UNCITRAL. STILL, 2008

I’d include as a borderline non-public case the following: Patrick Mitchell v. Congo. This was pretty heavily redacted in its public version, although you can get much of the most important detail from what ICSID has published. Non-public quantum awards

1. Total S.A. v. Argentine Republic (ICSID Case No. ARB/04/1) (Thanks to Omar Garcia-Bolivar for publishing work that showed this). STILL.

Non-public jurisdiction awards (10) 

1. Adem Dogan v. Turkmenistan, ICSID Case No. ARB/09/9 (2012). STILL
2. Agility for Public Warehousing Company K.S.C. v. Islamic Republic of Pakistan, ICSID Case No. ARB/11/8 (2013). STILL
3. Alapli Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13 (2012). STILL
4. CIT Group Inc. v. Argentine Republic, ICSID Case No. ARB/04/9 (Thanks to Omar Garcia-Bolivar for publishing work that showed this). STILL European American Investment Bank AG (EURAM) v. Slovak Republic, UNCITRAL (2014) Hesham T. M. Al Warraq v. Republic of Indonesia
5. Highbury International AVV and Ramstein Trading Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/1 (2013). STILL
6. Kaliningrad Region v. Lithuania, ICC (2009). STILL Khan Resources Inc., Khan Resources B.V., and Cauc Holding Company Ltd. v. The Government of Mongolia, UNCITRAL (2012)
7. Nova Scotia v. Venezuela, ONLY EXCERPTS AVAILABLE.
8. Oxus Gold plc v. Republic of Uzbekistan, UNCITRAL (2012. STILL) Rafat Ali Rizvi v. Republic of Indonesia, ICSID Case No. ARB/11/13
9. Stephane Benhamou v. Uruguay, UNCITRAL (2002). STILL
10. Turkcell v. Iran, UNCITRAL. STILL

For completeness, here are non-public jurisdiction awards that went onto merits phase (not separately counted in percentages above)

1. Binder v. Czech Republic, UNCITRAL
2. EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic, ICSID Case No. ARB/03/23
3. European Media Ventures SA v. The Czech Republic, UNCITRAL
4. Les Laboratoires Servier, S.A.A., Biofarma, S.A.S., Arts et Techniques du Progres S.A.S. v. Republic of Poland, UNCITRAL
5. Mercuria Energy Group Limited v. Republic of Poland, SCC
6. Middle East Cement Shipping and Handling Co. S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/99/6
7. Sistem Mühendislik In?aat Sanayi ve Ticaret A.?. v. Kyrgyz Republic, ICSID Case No. ARB(AF)/06/1
8. Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau Ag (In Liquidation) v. The Kingdom of Thailand, UNCITRAL

Caveats and assumptions:

1. I assume that states have discretion over whether to release the award, which may not be true in all contexts.
2. I am looking in the above list at disputes that produced awards on the merits and/or jurisdiction, not disputes that ended in settlement before that time.
3. I am looking only at cases where an arbitral panel claimed jurisdiction (or decided it didn’t have jurisdiction) under an investment treaty with investor-state dispute settlement, not investor-state cases purely under contracts or domestic statutes. I am also not looking at state-state cases.
4. I include heavily redacted awards like Servier and Liman in the category ‘non-public’.
5. “Losing” for a state (in my definition) means (for merits cases) losing on at least one substantive count (even if little to no money was ordered paid) or (for cases that as of yet only ruled on jurisdiction) losing on jurisdiction. This is an imperfect measure, to be sure, but the counterfactual would be not having ISDR at all.
6. I disregard annulments. Things look slightly rosier for states if you adjust the totals for total annulments and set-asides, but not by much on net: states lost one and gained four of these.
7. I don’t factor in dissents, which don’t alter the ultimate disposition of the published majority award.