Investor Presentaiton
The arbitral tribunal resorted to international law and investment
case law to establish the legal consequences of forgery. It
conducted a large review of cases and concluded that, depending
on the circumstances of each case, fraud could affect the tribunal's
jurisdiction (as in Phoenix v. Czech Republic, Inceysa v. El
Salvador and Europe Cement v. Turkey), could affect the
admissibility of the claim (as in Plama v. Bulgaria) or could be
addressed in the merits (as in Cementownia v. Turkey, Malicorp v.
Egypt and Minnotte v. Poland). Relying on Venezuela Holdings v.
Venezuela, Phoenix v. Czech Republic, Europe Cement v.
Turkey and Hamester v. Ghana, the tribunal reasoned that
fraudulent behaviour configures abuse of right (or, under certain
circumstances, abuse of process), which is contrary to the principle
of good faith, because an investor cannot benefit from treaty
protection when her underlying conduct is deemed improper
The arbitral tribunal WDF v. Kenya and Metal-Tech v. Uzbekistan,
have been held as contrary to international public policy. Following
that train of thought, it reasoned that "claims arising from rights
based on fraud or forgery which a claimant deliberately or
unreasonably ignored are inadmissible as a matter of international
public policy"View entire presentation