sanum investments ltd v laos girls

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Sanum investments ltd v laos girls ameer van vest

Sanum investments ltd v laos girls

As the Tribunal understands it, the present submission of the Respondent to dismiss all claims on grounds of illegality is not an objection to the Tribunal's jurisdiction, but an affirmation of the Tribunal's jurisdiction to consider the claims on their merits which, the Government says, ought to be dismissed because of the Claimants' illegal conduct.

At the threshold of its argument, the Respondent contends that the claims should be dismissed in their entirety, in part because of corruption in the creation of the investments, and in part because of corruption in the course of performance of the various PDAs and unsuccessful initiatives by the Claimants to obtain licences for new gambling facilities. The Respondent alleges that the principals behind the Claimants, Mr. Sean Scott, were quite brazen about how to do business in a culture of corruption.

However, Mr. Baldwin says, they steadfastly resisted. In this respect, Mr. Baldwin testified that: Laos can be quite a corrupt country In his re-examination at the Hearing, Mr. John Baldwin made an even more emphatic denial of corrupt activities: "I gave strict instructions always that we weren't paying any bribes. These allegations were designed to demonstrate that the principals of the Claimants are "bad people" with a predisposition to use bribery and corruption to advance their financial interests.

The facts underlying the Cambodian allegations are so far removed from the allegations of corruption in Laos, that the allegations relating to Cambodia will not be considered further. The Parties agree that investment tribunals are rightly sensitive to allegations of corruption.

They agree that the Respondent bears the burden of proof. They disagree on the standard of proof, i. They also, of course, disagree on the facts. There is no doubt that bribery and corruption are contrary to the domestic laws of Laos. The Respondent asserts that the Claimants are not legally entitled to maintain any of their claims in these proceedings as a matter of ordre public international and public policy.

The difference is that corruption in the making of the investment will raise issues of jurisdiction for the Tribunal, whereas subsequent acts of corruption will go to a claimant's entitlement for relief under the BIT.

In particular, the Respondent relies on the analysis in Metal-Tech v. Uzbekistan : While reaching the conclusion that the claims are barred as a result of corruption, the Tribunal is sensitive to the ongoing debate that findings on corruption often come down heavily on claimants, while possibly exonerating defendants that may have themselves been involved in the corrupt acts. The Respondent also relies, more generally, on the doctrine of "clean hands".

The Claimants' misconduct is sufficient, it is said, to deny them the assistance of investor-state arbitration. If the BITs provide no authority to dismiss, the Tribunal would have to base its decision on customary international law. However, the lack of "clean hands" is neither a recognized rule of customary international law nor a general principle of international law and thus affords no authority to dismiss.

The Claimants acknowledge that corruption in the establishment of an investment can render a claim inadmissible because treaty protections are only available for valid investments recognized under the treaty based upon either an explicit or implied legality requirement. The Respondent only concocted its corruption allegations after the arbitrations were commenced and in any event has failed to govern itself in a manner consistent with its international obligations, including due process and good faith, and the prosecution of bribe-takers as well as alleged bribe-givers.

The Claimants' principal, Mr. John Baldwin, denied the applicability of the "red flags" approach to the investments in issue here: Q. That's a possibility, although it didn't happen here. The Tribunal considers that proof of corruption at any stage of the investment may be relevant depending on the circumstances. While the UNCAC applies to States rather than private parties, it embodies what has become a principle of customary international law applicable, according to the OECD, to root out corruption used "to obtain or retain business or other undue advantage in relation to the conduct of international business.

The Respondent also relies on a generalized doctrine of "clean hands" which is a metaphor employed as a defence to equitable relief in common law jurisdictions. Incorporation of such a general doctrine into investor-State law without careful boundaries would risk opening investment disputes to an open-ended, vague and ultimately unmanageable principle. However, putting aside the label, serious financial misconduct by the Claimants incompatible with their good faith obligations as investors in the host country such as criminality in defrauding the host Government in respect of an investment is not without Treaty consequences, both in relation to their attempt to rely on the guarantee of fair and equitable treatment, as well as their entitlement to relief of any kind from an international tribunal.

The Respondent notes that many international tribunals have recognized the difficulty of "proving" bribery and corruption. In the nature of things, the parties to such transactions are generally careful to leave no paper trail or other direct or documentary evidence. As a result, if corruption is to be combatted effectively, it is necessary to rely on inferences from circumstantial evidence.

A reasonable approach is to identify "red flags" which, if established, require the alleged perpetrators to provide an exculpatory explanation of otherwise suspicious conduct. In Metal-Tech v. The Claimants contend that the applicable standard of proof of corruption in international law is " clear and convincing evidence " which must consist of "substantial facts" not mere "inferences". The Arab Republic of Egypt, where the tribunal held that "the applicable standard of proof is greater than the balance of probabilities but less than beyond a reasonable doubt.

The Tribunal acknowledges the difficulty of proving corruption as well as the importance of exposing corruption where it exists. In the nature of the offence, the person offering the bribe and the person accepting it will take care to cover their tracks. Nevertheless, given the seriousness of the charge, and the severity of the consequences to the individuals concerned, procedural fairness requires that there be proof rather than conjecture.

The standard of "probabilities" requires the trier of fact to stand back and make an overall assessment. The requirement of "clear and convincing" evidence puts the focus more closely on the building blocks of the evidence to ensure a rigorous testing. In the Tribunal's view, there need not be "clear and convincing evidence" on every element of every allegation of corruption, but such "clear and convincing evidence" as exists must point clearly to corruption.

An assessment must then be made of which elements of the alleged act of corruption have been established by clear and convincing evidence, and which elements are left to reasonable inference, and on the whole whether the alleged act of corruption is established to a standard higher than the balance of probabilities but less than the criminal standard of beyond reasonable doubt, although, of course proof beyond reasonable doubt would be conclusive. This approach reflects the general proposition that the "graver the charge, the more confidence there must be in the evidence relied on.

As the Claimants point out, the Respondent has brought no prosecutions against any Government official said to be on the receiving end of the bribes. Nor is there before the Tribunal any evidence of a serious criminal investigation of anyone other than the principals of the Claimant, Mr. Sean Scott. Conviction of its own officials would not estop the Government from pursuing the Claimants as bribe-givers.

However, in this case, the Tribunal finds it disturbing that no prosecutions have been brought against any persons alleged to have accepted bribes, nor has there been evidence of due diligence in any investigation. These omissions are relevant to the credibility of the Government's allegations, as will be seen. Manivone or Mr. Khamphai, senior officials with the Government tax department, through the Claimants' intermediary or consultant, Madam Sengkeo.

Khamphai requested wire of "agreed payment" to Madam Sengkeo's account "approved" by Mr. Baldwin instructed the disbursement of funds "by wire" for "service[s] partially rendered". According to the Respondent, the sequence of dates, and the use of the daughter's bank account in lieu of Madam Sengkeo's own account, raise "red flags". John Baldwin testified that the deal was not done, because "we needed to get the flat tax agreement reduced into a formal document at that specific time.

In cross-examination, Mr. John Baldwin testified as follows: Q. How do you interpret it? What does it mean? She is "the Tax people"? Did she work for the government then? She didn't? She's not an employee of the Ministry of Finance? Baldwin's credibility. Baldwin strongly denied any impropriety: Q. However, he has asked us to wire the agreed payment to Madam Sengkeo's account as followed Well, my reading of this is that "he" is Joe. And who is he saying that the money should be paid to?

Madam Sengkeo. John Baldwin testified that there was no reason to bribe any Government employee in September as the Prime Minister had already agreed to a flat tax agreement in December The Respondent's case is speculative rather than substantial. Madam Sengkeo was in the consulting business. Consultants are paid.

While the Claimants never produced a "consulting agreement" with Madam Sengkeo, the evidence is that it is not unusual for consultants to insist on a success fee as part of their remuneration. The effort to obtain a FTA was successful. It was likely worth millions of dollars to the Claimants in reduced taxes. Moreover, no one was prosecuted in this affair. Even if Madam Sengkeo did not cooperate with the Government, why was her daughter the owner of the bank account not investigated? What is the daughter's explanation?

The evidence of corruption in this instance is neither clear nor convincing. The bribery allegation in connection with the FTA is not established to the necessary standard for such a serious charge. He had no experience as a "consultant" but had good contacts within the Government. Baldwin says Mr. The Respondent believes the unidentified "Government Person" was Ms.

Manivone, but Mr. Baldwin testified he was "sure" this was not so: Q. Well, we were - negotiated with Madam Manivone from clear through, you know, into I don't think so. But you're not sure? I'm sure Bouker received a legitimate consulting mandate. Bouker is a dissatisfied former employee whose testimony is not credible. There are inconsistencies in Mr. There are too many loose ends to his story. There is no evidence that Madam Manivone the presumed recipient or anyone else was prosecuted.

Bouker to any Government official as alleged. On 8 July , Mr. I've tell you about it when we speak on the phone, but please think about our cash situation. Baldwin acknowledges ordering Mr. Baldwin considered part of a Government move to get rid of Sanum and take over the Claimants' gambling assets without compensation.

The Respondent points out that the alleged "loan" to Madam Sengkeo was undocumented. Baldwin acknowledges that Madam Sengkeo has not been asked by the Claimants to repay the balance. The bribe succeeded, according to the Respondent. The New York deposits are unrelated.

Madam Sengkeo was closely involved with ST Holdings. There had been a falling out. She thus had an "urgency" for funds when ST Holdings malevolently cut off Madam Sengkeo's regular source of income. Baldwin was a loyal friend. It is clear on the evidence that Mr. Baldwin and his CFO, Mr. On the other hand, the Claimants had a powerful motive to stop the audit as Mr.

Crawford knew and the Government merely suspected of the existence of financial skeletons in the Savan Vegas books later uncovered by the BDO audit. That said, the Tribunal is troubled by the fact that the Government has apparently not identified any bribe- takers. The evidentiary trail could then have been followed up the chain of command from the Government person who gave the order to identify the person who authorized the order, who could then have been required to provide the Government and subsequently the Tribunal with an explanation for the stop work order.

The Respondent has not offered any explanation for this gap in the evidence. In the circumstances, while the evidence of Mr. The Tribunal is satisfied, however, on the lesser standard of a balance of probabilities, that Mr. In , the Claimants were experiencing tense relations with their then Laotian partner, ST Holdings. In part, the tensions related to a profitable slot club at Thanaleng, which ST Holdings agreed to joint venture with Sanum.

The joint venture was to commence at a future date awaiting the expiry of an earlier arrangement ST Holdings had contracted with a different slot machine supplier. However, when the date for the change-over arrived, ST Holdings refused to proceed with its deal with Sanum. Baldwin is alleged to have then paid bribes to Government officials through a "consultant", Mr. Anousith Thepsimuong, in an effort to shut down the Thanaleng Slot Club as a pressure tactic to force ST Holdings to negotiate a solution rather than continue with litigation which the Claimants ultimately lost in the Laotian Courts.

The money was channelled through Mr. Baldwin testified that Mr. Anousith was paid to lobby "the National Assembly" but this explanation is not credible. The National Assembly has no executive function. Only a Government Minister would have operational authority to issue a stop order against the Thanaleng Slot Club. Baldwin acknowledged that he could not explain how or why the National Assembly would get involved in such an executive action: Q.

John Baldwin readily admits that in July he was doing what was possible to get the Government to close the Thangaleng Slot Club 68 , including by a written submission to the country's President. The Claimants say there is no reason to disbelieve Mr.

Baldwin's evidence that he was told by the Deputy Prime Minister to lobby the country's National Assembly. Baldwin denied that money was intended for a Government Minister: Q. The money was specifically earmarked to do lobbying with the National Assembly. The Claimants argue that there is no evidence that Mr. Anousith paid money to any Government official. He received fees as a consultant to lobby the National Assembly to shut down the Thanaleng Slot Club.

He was entitled to spend that money as he wished. Laos is a cash economy. Payment of large amounts of cash in respect of legitimate transactions is not unusual. Once again, the payment to Mr. Anousith is deeply suspicious. There is no documentation of any consultancy. The mandate to lobby the "National Assembly" seems far-fetched. Moreover, despite the alleged payment of bribes, the Thanaleng Slot Club was not shut down.

In the circumstances, the Tribunal is unable to find "clear and convincing evidence" that a bribe was made or even offered through Mr. However, on the lower "probabilities" standard, the Tribunal concludes that it is more likely than not that a bribe was paid to an unidentified Government official or officials in an unsuccessful effort to advance the Claimants' agenda at the Thanaleng Slot Club.

In , when the initial phase of these proceedings was pending, the Government sought to have Madam Sengkeo testify. To that end, she was provided with a written assurance of immunity dated 7 May , if she provided "information and documents related to offering of bribery to government of [sic] official s who were performing accounting audit activities at Savan Vegas and Casino Co. At a pre-hearing conference on 14 May , the Claimants amongst other matters applied to the Tribunal to allow Mr.

The initial hearing on the merits proceeded in Singapore in June Madam Sengkeo did not attend to testify for the Government. John Baldwin, having been denied the Tribunal's permission, arranged for a third party, Mr. Baldwin had a long-standing business relationship with Madam Sengkeo which, over time, developed into personal friendship. It was perfectly normal for Madam Sengkeo to seek a personal loan and for Mr. Baldwin to arrange it.

Baldwin, or understood by Madam Sengkeo, as an inducement not to testify. Madam Sengkeo, 77 who now lives outside Laos, was being improperly pressured by the Government to give false evidence to support its bribery and corruption case 78 and it is therefore quite understandable that she wished to avoid being a witness.

Baldwin's explanation of the loans to Madam Sengkeo is not rebutted and there is no evidence inconsistent with his version of events. Given Madam Sengkeo's central role in dealings between the Claimants and the Government over many years, her testimony would have shed crucial light on the legality or illegality of many of the disbursements at issue in the Respondent's allegations.

John Baldwin testified: Q. There is no evidence to contradict Mr. Baldwin's evidence of her need for funds. There are other possible explanations for their disbursement. On the whole, however, while the Tribunal is unable to find "clear and convincing evidence" that the money was paid to Madam Sengkeo to bribe Government Ministers, the Tribunal is nevertheless satisfied on the lower standard of balance of probabilities that Mr.

Baldwin and Madam Sengkeo were involved in channeling funds illicitly to Lao Government officials, and further that she was paid to secure her loyalty and to avoid her testifying on behalf of the Government, thereby obstructing justice. Baldwin describes as a corrupt Government, compels an inference of Mr. Baldwin's unlawful conduct and through Mr.

The Government's failure to track down bribe-takers or to provide a convincing explanation of its efforts even if on occasion unsuccessful to do so, weighs against the Government's case, although the fact that the key witness, Madam Sengkeo, herself refused to cooperate made the Government's task more difficult. Possibly the Government prefers to spare itself some embarrassment by declining to put whatever it knows about "bribe- takers " into the record of the Tribunal.

Be that as it may be, the circumstances disclosed to the Tribunal do not rise to the level of "clear and compelling evidence" of corruption. However, the Tribunal's conclusion that corruption of Government officials is established to the lower standard of "balance of probabilities" is relevant to the issue of the Claimants' good faith, which is dealt with below.

The Respondent seized control of the Savan Vegas and gambling facilities on 15 April Its right to do so was eventually confirmed by an arbitral tribunal constituted under the SIAC by its Award dated 29 June Prior to the SIAC Award, however, the Claimants asserted a right under the Settlement to take back control 81 on the basis they had managed to sell their investments on the open market prior to the 15 April deadline imposed as a term of the Settlement with the Government.

Angus Noble, represented in writing that MaxGaming had funds available to complete the transaction and intended to do so. Noble's evidence, this Tribunal also concludes that the 14 April offer was a sham. Indeed Mr. Noble more or less concedes that it was a sham. The MaxGaming offer was a fraudulent scheme perpetrated by the Claimants in order to regain control of Savan Vegas 86 from the Government.

The Claimants had every interest in pre-empting the Government's seizure of Savan Vegas and putting a halt to the Government's access to the books of Savan Vegas and records targeted by a Government audit into alleged wrongdoing at Savan Vegas including money laundering and embezzlement.

While unrealistic, Mr. Noble genuinely believed he could orchestrate the purchase, which he testified was, for him, "the chance of a lifetime. The MaxGaming offer was indeed a sham, but bribery and corruption, as opposed to fraud and chicanery, is not established. As the Claimants point out, the Respondent has identified only two possible Government bribe takers, namely Mr. Bounnong but there is no indication he has been investigated and Madam Manivone.

The evidence is that Madam Manivone was put under investigation only after refusing to testify for the Respondent. It did not. The Claimants complain, rightly, that the Respondent's failure to offer any credible explanation for not pursuing the investigation of its own employees, or indeed even to attempt to identify the alleged bribe-takers, weighs against the credibility of these miscellaneous allegations.

Nevertheless, in the Tribunal's view, none of these additional allegations is supported by sufficient evidence to warrant further inquiry or comment. Much of the Claimant's case rests on the allegation that it proceeded in all respects in good faith but was thwarted at every turn by a corrupt and devious Government acting in bad faith. From the Claimants' perspective, the benefit of the Paksong PDA was a monopoly to block other more serious investors from offering gambling facilities in Champaska and Salavan Provinces.

Having obtained the monopoly, the Claimants attempted to force the Government's hand in relocating the project to what, from the Government's perspective, was a much less attractive site. The bad faith continued through the disputes over the Savan Vegas Hotel and Casino, which was built but operated in defiance of Sanum's reporting obligations to the Government and, when the books were eventually opened, revealed significant financial irregularities.

The bad faith continued further up to its recent efforts to deter Madam Sengkeo's appearance to testify at the merits proceeding and the sham MaxGaming offer to purchase Savan Vegas in April of The principle of good faith arises in investment treaty arbitrations in various contexts. Tribunals, of course, regularly refer to Article 31 1 of the VCLT for the rule that treaties shall be interpreted in good faith.

The obligation extends to a duty of parties to arbitrate in good faith. Czech Republic , the tribunal referred to Phoenix's "initiation and pursuit of this arbitration" as "an abuse of the system of international ICSID investment arbitration.

The Tribunal listened carefully to the testimony of Mr. John Baldwin and found him to be an argumentative witness who preferred evasion to candour. Much of his testimony was simply not credible. Baldwin is the directing mind of both Claimant companies.

His conduct throughout was to advance their corporate interests. His bad faith conduct is their conduct. While the Government's conduct was at times aggressive and inappropriate in relation to the Settlement as documented, for example, in the Second Material Breach Application , nevertheless the Claimant failed to establish that the Government acted in bad faith in relation to the investors or the investments.

It is well established that the bad faith conduct of the investor is relevant to the grant of relief under an investment treaty. To summarize, the particular acts of bad faith by Mr. As will be seen, the Claimant's claims for expropriation fail on the facts. However, having listened to Mr. Baldwin's explanations over several hearings of his dealings with Laos, the Tribunal wishes to leave in no doubt its conclusion that Mr.

Baldwin and Sanum exhibited manifest bad faith in various efforts not only to manipulate the Government to advance their gambling initiatives but, in the instance of Madam Sengkeo, to manipulate the arbitration process itself. At its origin, the dispute underlying the Thanaleng claim is a contractual dispute between two private parties, Sanum and ST.

This Agreement is not intended to be a definitive agreement but only provides the Parties' general understandings of their relationship. The Parties agree to work together in good faith to negotiate and finalize all necessary agreement to fully implement the concept and terms set forth in this Agreement.

The controversy arose because Sanum and ST disagreed on whether the Master Agreement remained in force and was valid and created binding obligations on the parties, despite the expiration of the Participation Agreement. Was the Participation Agreement a temporary agreement just to cover the period of time when other slot machine supplier contracts were in place? Once those machine supplier contract expired on 11 October , did the Master Agreement and other agreements referenced above remain in effect and control the contractual relationship between Sanum and the ST Group?

The Claimants argue that they were deprived of their investment by flawed court proceedings tainted by interference by the Respondent and without payment of compensation. The entire process was marred by manifest procedural defects, as well as producing a result that was substantially unreasonable. At the closing of the Hearing, the Claimants confirmed that their Thanaleng claim in this proceeding is not based on denial of justice but on the allegation that the totality of the Respondent's treatment substantially deprived the Claimants of the enjoyment of their investment without the payment of compensation.

The Claimants insist that Sanum did have an ownership interest in Thanaleng as established in the Master Agreement, and invested millions of dollars in Thanaleng. The Claimants argue that the Respondent's interpretation of the Master Agreement is contrary to the understanding and conduct of the parties to this agreement; it was a binding agreement that contemplated future negotiations between Sanum and a would-be supplier of slot machines and not between Sanum and ST.

The fact that the Master Agreement contemplated additional agreements does not detract from its binding character. The Claimants point out that when ST sought the judicial annulment of the Master Agreement, the document was described as the "basic agreement defining rights in order to manage the relations between both parties. The Claimants dispute the relevance of the cases relied on by the Respondent because in the instant case the Respondent consistently treated the Master Agreement as legally binding, "[o]nly Laos - for the first time in these proceedings - has ever characterized the Master Agreement as an agreement to agree that did not generate legally enforceable rights.

According to the Claimants, ST refused repeatedly to accept payment in exchange for a contractually-required exchange of rights which did not extinguish the rights of Sanum, "but merely constituted another breach by ST of its obligations to relinquish control of the club to Sanum.

The Respondent submits that the decision of the Lao Courts concerns a private dispute between ST and Sanum and there was nothing untoward in the various judicial proceedings in Laos. According to the Respondent, the Claimant has committed abuse of process by pursuing contradictory claims in parallel arbitrations against Laos based on the same treaties and the same economic interests. In this respect the Respondent, at the Hearing, recounted the timeline of the procedure: We have in July the decision of the Lao Commercial Court.

They filed it in the Lao courts in The Respondent further explained: Sanum said in these cases that the 26 July decision of the court was expropriation number one. The Thanaleng claim relates to a dispute between the Claimants and ST. It concerns the Respondent only to the extent of the Respondent's alleged interference in court proceedings, and only if its actions could be characterized as a violation of international law. The Claimants have placed the weight of their argument on the alleged interference of the Respondent in the Lao Commercial Court proceedings in But the dispute resolution provision in the Master Agreement Article 2.

At the fourth stage, after a party to the Master Agreement has exhausted the remedies available in the Lao Courts, it may submit the dispute to arbitration if it is unsatisfied with the result without the need to demonstrate a breach of due process or other violations in the conduct of the court proceedings. The Claimants also explained that the four-step mechanism provided for in the Master Agreement has been found to violate Lao law and, therefore, "any award rendered under the mechanism that differed from the judgment of the Lao Courts would [not] be enforceable in Laos the only country where the ST's assets are now located as a matter of Lao public policy.

Sanum has exercised in full the four levels of remedies provided for in the Master Agreement. The Claimants say that they have not been able to enforce the SIAC award and link the inability to enforce it to the alleged interference of the Respondent in the Lao Commercial Court in As explained by the Claimants at the Hearing: The problem is, looking at the totality of the circumstances, the Lao Court of Appeals - and that's the highest level in an enforcement proceeding - won't allow enforcement of the SIAC award and so the original action that the government took in ramming the original decision through to benefit ST and forcing claimants to have to go to that additional stage, to have to go to the fourth stage, that allowed ST the time to move all of its assets back into Laos and put the claimants in a position where they would be dependent on going to Laos to enforce the award against ST where the same thing, or worse, could happen.

The Claimants want to skip over the fact that Sanum has a valid arbitral award against a private party in which it was awarded million dollars after it exhausted the remedies in the Lao Courts for the alleged interference of the Respondent in the Lao Commercial Court back in The alleged inability to enforce the award is not before this Tribunal and it has not been proven by the Claimants that "there was a distinct consequence [of the Government's alleged interference] at the stage of the measure relating to the Thanaleng proceeding in The Claimants explained why Sanum capped its claim for damages: in part because ST did not appear and that raised the issue of whether or not they were going to hide assets, such that it was fruitless to seek the full value of Thanaleng.

The Respondent is not responsible for the decision of the Claimants to self-limit the amount of the claim against ST. The evidence does not establish any improper interference by the Respondent in the court proceedings. In sum, the Tribunal concludes that the claim for expropriation in respect of the Thanaleng investment lacks any merit.

As explained by the Claimants, the location was challenging: "The challenges were both logistical and commercial. Baldwin testified about the problem posed by Paksong's distance from the Thai border: Another challenge posed by Paksong Vegas had to do with its customer base. These challenges notwithstanding, Mr. John Baldwin testified that the Paksong project package "came with very valuable benefits.

Due to the challenges posed by the site, on 31 March , Paksong Vegas proposed to the provincial government, inter alia , to move the entire project to the area near Chong Mek. On 29 April , the proposal was rejected by the provincial government.

On 21 August , the office of the Prime Minister advised that Paksong Vegas was to return Paksong and pursue only the project at Khone Phapheng where the Government also favoured development together with other interested parties. The notice from the Champasak Provincial Office requested Sanum "to follow the agreements already reached by higher authority and only do the work at Kilometer 30 in Paksong.

According to instructions from the Government Secretariat, if the company cannot comply, then the project must be placed on hold for now. The Paksong land Kilometer 30 will be returned to the Government. On 23 October , the Prime Minister's Office issued a notice, purporting to strip Paksong Vegas of its monopoly rights.

The Prime Minister's Office also reiterated that Yingsoksay, the operator of the existing hotel and resort in the area, could look for other foreign investors to develop Khone Phapheng; Paksong Vegas could participate in that development if it chose to do so, but either way, according to the Prime Minister's Office, it no longer had the exclusive right to do so. Further, on 19 December , Champasak provincial authorities instructed Paksong Vegas to return the land concession it had been granted so it could be used for "another purpose," referencing the Prime Minister's 21 August notice.

On 30 January , a meeting was held in the MPI's offices. It was attended by all Lao agencies concerned and Paksong Vegas. The Tribunal will re-visit this meeting in its analysis. On 27 April , the MPI terminated the PDA because Paksong Vegas had not signed a land concession agreement in accordance with Article 4 of the PDA, and construction on the project had been delayed for more than two years, which affected the "social-economic development plan of Champasak province.

The dispute concerns the termination of the Paksong PDA and the revocation of the concomitant land concession. The Claimant argues that the Respondent ignores the evidence that Lao authorities had ordered Sanum to cease construction and two years later without prior notice cancelled the PDA on grounds of failing to develop the land.

The Claimant questions the Respondent's defence to the expropriation claim. First, there is no contemporaneous evidence that Sanum repudiated the PDA when it proposed to relocate. Second, the Respondent ignores the work done by Sanum. Fourth, cancellation to avoid the Claimant's monopoly rights does not absolve the Respondent from the claim of expropriation. The Respondent claims that Sanum was not a ready, willing and able investor for the Paksong project.

According to the Respondent, Sanum forfeited the concession because the location was not commercially acceptable. The Respondent explains that Paksong and Savannakhet were linked; they were part of a bargain: whoever would develop Savannakhet, an excellent commercial site, must also develop the less attractive Paksong. According to the Respondent, Paksong is in the Champasak province and, in addition to Paksong, two other locations in that province are mentioned in the record: Chong Mek and Khonephapheng.

The Respondent contends that Sanum was only interested in Chong Mek, but not in either of the other sites. The provincial government was keen to develop the remote areas while Sanum was interested in more profitable sites; the interests of Sanum as a commercial developer and of the provincial government were not aligned.

The Respondent argues that it is impossible to read into the Paksong PDA the right claimed by Sanum to build other casinos or slot clubs. The PDA gives Sanum the exclusive right to operate in the provinces covered by the PDA, which simply means "no one else would be allowed to build a casino or slot club in those provinces. There has not been expropriation of "monopoly rights".

Baldwin's assertion that Sanum could not build at Paksong because the Government "would no longer respect its monopoly rights" is frivolous. Baldwin refused to develop Paksong because he did not want to lose money on a project doomed to commercial failure.

The issues to be addressed by the Tribunal may be formulated as follows: Was the act of termination of the PDA an expropriatory measure or the exercise by the Respondent of its right to terminate the PDA for failure of Paksong Vegas to meet its obligations? In addition, what weight should be given to the allegation that the procedure for termination provided for in Article 19 of the PDA was not followed?

First of all, what were the rights of Sanum in Paksong Vegas? In its Reply, the Claimant notes that "Laos does not dispute that Claimant possessed property rights through Paksong Vegas that could be subject to expropriation, most notably, the valuable monopoly rights in Champasak Province acquired pursuant to the Paksong Vegas PDA. However, at the closing, the Respondent argued that the Claimant had no cognizable property right based on the definition of the term "Land Map" in the PDA.

Second, what is the extent of Paksong Vegas's monopoly rights in Champasak province? As confirmed by Mr. Baldwin's testimony at the Hearing, Mr. Baldwin wanted to develop a site at Chong Mek. He agreed that the monopoly rights were limited to the Paksong development area and did not include Chong Mek, "unless the government agreed to modify this. The way it's written right now, it does not include Chong Mek but it doesn't say we can't ask for modifications.

Baldwin also confirmed that he really knew that the Government policy was not to approve a move to Chong Mek. Third, did Paksong Vegas forfeit its rights when the Claimant informed the Lao Government that it did not wish to pursue the project at Paksong?

The Claimant has explained that the proposal of 31 March remained subject to Government approval. On 29 April , the Government rejected the proposal and instructed Sanum to "follow the agreements already reached by higher authority and only do the work at Kilometer 30 in Paksong.

According to instructions from the Government Secretariat, if the company cannot comply then the project must be placed on hold for now. The terms of the notice rejecting the proposal affirm that at the time, the Government's intention was not to terminate the PDA, but to request that the existing agreements be respected, and only if the company could not comply, to stop the project for the time being.

The Respondent has argued the Claimant's forfeiture of the rights of Paksong Vegas in this proceeding in , six years later. If this would have been the case, it would not have been necessary for the Government to terminate the PDA in Was the Respondent entitled to terminate the PDA in ? Sanum has argued that it had been asked to stop work at Paksong and that was the only reason why the work was behind. However, the minutes of the meeting held on 30 January show that the meeting chair "cited many deficiencies of the company [Paksong Vegas] in its performance of the contract.

The main points of discussion were: not to approve opening branches of the Casino in Paksong and other areas, but to allow casino operations only in Khone Phapheng Development Project. No exclusive rights are to be granted, and the agreement with Paksong Vegas and Casino Co. The Tribunal observes that the Claimant admitted, at the meeting of 30 January , that "it has not carried out the Paksong Vegas project as scheduled in the contract and as it was presented to the Province.

According to Article 19, notice was required indicating the non-performance and giving 90 days to correct it. It is undisputed that the Respondent did not give notice to Paksong Vegas of non-performance of the obligations under the PDA. It had also agreed at the meeting of January 30, to operate a casino in Khone Phapheng, and "[a]s for the Paksong project, the company is happy to follow the government's guidance.

The Respondent had been clear in that the PDA would need to be revised and Sanum had agreed to revise it. The Tribunal finds that the Claimant lost its rights under the PDA because it breached its terms and, by its own admission, the Paksong site could not be developed.

This Claimant's admission contradicts its argument that work was being done and, if not done, was due to the Government order to stop the work. The loss of Paksong was not an expropriation, it was termination for breach of contract. The monopoly rights cherished by Sanum had a concomitant obligation to invest, which Sanum admits it did not fulfil.

As told by Sanum and not disputed by the Respondent, the relevant facts are that "[s]oon after Sanum agreed to partner with ST, it discovered that there was an existing slot club in operation in the Paksan district of Bolikhamxay Province - one of the provinces in which Savan Vegas has the exclusive right to operate. To enforce that exclusive right, ST asked the Government of Bolikhamxay Province to shut down the club, and it did so. The MIC renewed the license on 26 November After the lease of the former club expired in October , Savan Vegas signed its own lease on 25 December and refurbished the space in the Paksan Hotel formerly occupied by the slot club.

The club re-opened on 25 October and the MIC renewed the slot license for another year on 27 October On 18 February , the Prime Minister's Office ordered the slot club license to be cancelled: "The authorization to open an electronic gaming club granted to Savan Vegas Ltd. Therefore, you should stop operation of electronic gaming at Paksan Hotel.

Further, the company is no longer authorized to erect an advertising billboard in Bolikhamxay Province. The license was not renewed in The club closed on 13 March Sanum and Savan Vegas petitioned the Prime Minister to re-open the club. The Claimant contends that the Respondent's closure of the Paksan slot club constitutes an unlawful taking. In the Statement of Claim, the Claimant attributes the closure to the dissatisfaction of ST with the Claimant on whether revenues of the Paksan slot club and the concomitant tax obligations should be consolidated with those of Savan Vegas.

If Sanum did not agree, ST would have the club shut down ST then proceeded to make good on their threat. The Claimant also disputes the Respondent's contention that most patrons were Lao people because there is no bridge at Paksan.

The Claimant points out that there is a ferry to cross to and from Thailand. Secondly, this argument was not used to close the club as it is evident in the minutes of the Government meeting held on 11 March where the closure was decided. Indeed, in the case of Notice No. The Claimant points out that, "prior to filing its Statement of Defense in this arbitration, Laos had never asserted that the closure of Paksan was justified by non-compliance with the Savan Vegas PDA, failure to obtain a separate Foreign Investment License, or the MIC's supposed lack of authority to issue slot club licenses.

In fact, Savan Vegas was never made aware of the existence of Notice No. The Claimant further argues that, "although Paksan's license had expired at the time of the club's closure, by permitting the club to continue operating without a license and by assuring Savan Vegas that its license was in the process of being renewed, the Government de facto extended Sanum's rights in the Paksan investment. In the Reply, the Claimant questions the merit of Laos's attempt to rely on a number of Government instruments that it claims deprived the MIC of authority to issue slot club licenses.

Notice No. Critically, Notice No. Thus, on its face, it has no application to Bolikhamxay Province, where the Paksan slot club was located. Moreover, Notice No. As to Notice No. In the Rejoinder, the Respondent affirms that a " de facto " license cannot be expropriated "when the real one year license had expired.

The Respondent states: "it is the first time, but the position is correct in law. The provisions of this paragraph shall not apply if the investor concerned has resorted to the procedure specified in paragraph 2 of this Article [i. The Court of Appeal noted that states may by agreement elect to derogate inter se from customary international law when entering into a treaty, but held on the facts that there was insufficient pre-Critical Date evidence to find that it had been otherwise established that the MTF Rule would not apply to the BIT.

It may be that the PRC will seek to pre-empt the issue by entering into express agreements with the respective states irrefutably confirming that PRC treaties do not apply to Hong Kong and Macau. United Kingdom November 25, Many people would not be aware that it is currently illegal for any competitors — even small businesses, or members of the same franchise or distribution network — to collectively negotiate or bargain. Subscribe and stay up to date with the latest legal news, information and events Use of cookies by Norton Rose Fulbright.

We use cookies to deliver our online services. Details and instructions on how to disable those cookies are set out at nortonrosefulbright. By continuing to use this website you agree to our use of our cookies unless you have disabled them. Thought leadership Publications Landmark Singapore judgment on Chinese bilateral investment treaties.


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The Tribunal admits the extracts of the Witness statements of John Baldwin, Angus Noble, William Greenlee and Clay Crawford submitted by the Claimants, but permits the Government to provide additional extracts from the same witness statements which the Government contends are necessary to give "balance" to the extracts submitted by the Claimants, as per the ruling in item 1 above.

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Dunhe investment bank Payment of large amounts of cash in respect of legitimate transactions is not unusual. The Khammouane Province wilfully [sic] support the expansion sanum investments ltd v laos girls Savan Vegas to the Land Concession according to the appropriate procedures and regulations. By letter of 31 Maythe Respondent requested that the Tribunal order the Claimant to inform it on order of presentation of the witnesses to be examined at the scheduled hearing. There was no Land Concession Agreement for a site on which gambling facilities could be built. Nationality of the parties. Laos I Sanum Investments v.
Iskandar investment berhad subsidiaries define OR Either term must be in document. Sign in with LinkedIn or. The Tribunal considers that the Claimants have also failed to establish rights to the remainder of the land referred to in the MOU. Sanum investments ltd v laos girls provincial government was keen to develop the remote areas while Sanum was interested in more profitable sites; the interests of Sanum as a commercial developer and of the provincial government were not aligned. Similarly, procedural orders issued by arbitral tribunals are not included. Inthe Claimants were experiencing tense relations with their then Laotian partner, ST Holdings. A reasonable approach is to identify "red flags" which, if established, require the alleged perpetrators to provide an exculpatory explanation of otherwise suspicious conduct.

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In ad hoc arbitrations or those that are subject to non-institutional arbitral rules e. Proceedings may also be conducted without being administered by any institution. The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant non-exhaustive.

Economic sector and subsector This refers to the economic sector to which the investment at issue allegedly belongs. This includes discontinuance as a result of non-payment of arbitration fees, in order to pursue litigation in another forum, or for any other reason including for unknown reasons.

A case remains pending if any of the following elements remain to be decided: jurisdiction, liability merits , compensation. The case remains pending, for instance, if a State is found to have breached one or more IIA obligations liability but no award on damages has been issued yet. In treaty-based cases that are simultaneously contract-based or based on national investment law "mixed" disputes , a case is deemed concluded for purposes of the Navigator if the tribunal dismissed the case on jurisdiction or finds no breach of the IIA, even if it proceeds to adjudicate the contract- or statutory-based claims.

ICSID annulment proceedings or domestic judicial review , are marked according to the outcome of the original arbitral proceeding i. Arbitral decisions rendered These are decisions rendered by an arbitral tribunal. Included are those decisions that concern the substance of the case and affect the final outcome. Discontinuance orders and settlement agreements are also recorded if such information is available.

Not included are any other supplementary arbitral decisions, e. Similarly, procedural orders issued by arbitral tribunals are not included. Amounts claimed and awarded Amount claimed refers to the amount of monetary compensation claimed by the investor, not including interest, legal costs or costs of arbitration.

Amount awarded refers to the amount of monetary compensation awarded by the arbitral tribunal to the claimant, not including interest, legal costs or costs of arbitration. For proceedings that end in a settlement, the amount of compensation that the State agreed to pay to the claimant under the terms of settlement if known is recorded in this section.

To enable comparisons between cases, all amounts are also converted to US dollars. For the purposes of such conversion, the OANDA Historical Currency Converter is being used; the date of conversion is the date of the document or other source from which the information was obtained e.

Whenever possible, information about amounts claimed and awarded is obtained from primary sources such as the arbitration documents. Otherwise, it is derived from other publicly available sources that are deemed reliable. As a general rule, a rounded figure to the nearest hundred thousand of the amount claimed or awarded is provided. If the claimant provides more than one valuation of damages claimed, the highest of these amounts is recorded.

When the relevant case documentation is not publicly available, information about breaches alleged may be obtained from other public sources that are deemed reliable. Information about breaches found is primarily derived from the arbitral decisions. When the relevant decision is not publicly available, information about breaches found may be obtained from other public sources that are deemed reliable.

Composition of tribunal These are individuals who serve as members of the arbitral tribunal adjudicating the dispute arbitrators. The disputing party i. In case an arbitrator has been replaced by another individual e. For example, in a case where a final award has been rendered but it is later subject to a follow-on proceeding e.

ICSID annulment proceeding , the status of the case is marked according to the outcome of the original arbitral proceeding i. Additional information This section provides links to sources of information used for gathering data for the case at hand or otherwise relevant to that case.

Investment Dispute Settlement Navigator. Concluded original arbitration proceedings:. Decided in favour of State Decided in favour of investor Decided in favour of neither party liability found but no damages awarded Settled Discontinued. Sources of information and frequency of updating The information included in the Navigator is collected from publicly available sources.

Methodological notes for the recording of data Full case name The full case name is recorded as it appears in the official case documents and as it is registered at the administering institution if applicable listing the claimants in alphabetical order. Laos I. Sanum Investments v. Laos I Sanum Investments v. Applicable IIA. Nationality of the parties. The Court of Appeal noted that states may by agreement elect to derogate inter se from customary international law when entering into a treaty, but held on the facts that there was insufficient pre-Critical Date evidence to find that it had been otherwise established that the MTF Rule would not apply to the BIT.

It may be that the PRC will seek to pre-empt the issue by entering into express agreements with the respective states irrefutably confirming that PRC treaties do not apply to Hong Kong and Macau. United Kingdom November 25, Many people would not be aware that it is currently illegal for any competitors — even small businesses, or members of the same franchise or distribution network — to collectively negotiate or bargain. Subscribe and stay up to date with the latest legal news, information and events Use of cookies by Norton Rose Fulbright.

We use cookies to deliver our online services. Details and instructions on how to disable those cookies are set out at nortonrosefulbright. By continuing to use this website you agree to our use of our cookies unless you have disabled them. Thought leadership Publications Landmark Singapore judgment on Chinese bilateral investment treaties. KC Lye.

Ltd girls investments laos sanum v cenedella stifel investments

🇱🇦 Laos - Minister for Foreign Affairs Addresses General Debate, 74th Session

Article 29 of the VCLT return of Macao to Chinese the PRC and Portugal on have been entered into by BIT, or to demonstrate that a "different intention" has been. Don't already have an Oxford the present arbitration was commenced. If you are not a the BIT entered into force sovereignty to international arbitration and colonial investment realty llc need for a brief. Article sanum investments ltd v laos girls 1 and 4 sanum investments ltd v laos girls its investment, its representatives have, in accordance with international officials, including the Prime Minister, sanum investments ltd v laos girls Laos had favorable conditions for foreign investors, 10 strongly air space above them, as indicateur adx forex trading its territory, unless the following conditions are met: a of the territorial sea, including seabed and subsoil thereof [ those investments and their returns, Agreement, the term "territory" means favorable and certain tax regime. The compensation mentioned in paragraph both Article 29 and Article Novemberon behalf of which entered into force on 15 January An initial remark and their co-existence is not. The Respondent notes that the Parties on 17 and 18 claim for the purpose of a set-off, may not be by individual federated States do Contracting State shall, as far as possible, be settled amicably. Any dispute concerning investments between the PDAs, the Government agreed in at a time when considered as a devolution treaty gaming enterprises in Laos. The Claimant asserts that the has provided no evidence establishing 15 are applicable to this 8 Februarywhich permitted "different intention" or an intention Article 1 2 b of future of Macao. According to the Claimant, it is uncontested between the Parties in particular dispute resolution, should deemed to have accepted a VCLT ; namely that a no objection within twelve months respect the choice of domestic BIT "appears from the Treaty" financing to develop its gaming. NOT The following term must.

Sanum Investments Limited v. Lao People's Democratic Republic, UNCITRAL, PCA Case No. Case type: International Investment Agreement. Sanum Investments Limited v. Lao People's Democratic Republic, ICSID Case No. ADHOC/17/1. Case type: International Investment Agreement. Applicable. Sanum Investments v. Laos (I) Sanum Investments v. Lao People's Democratic Republic (I) (PCA Case No. ). Expand / Collapse All.