Date of dispatch to the parties: October 2, 2006
INTERNATIONAL CENTRE FOR
SETTLEMENT OF INVESTMENT DISPUTES
ICSID Case No. ARB/03/16
ADC Affiliate Limited
- and ADC
& ADMC Management Limited
Claimants
- v. The
Republic of Hungary
Respondent
Award of the Tribunal
TRIBUNAL
The Hon. Charles Brower
Professor Albert Jan van den Berg
Neil Kaplan CBE QC (President)
Secretary of the Tribunal
Ucheora Onwuamaegbu
Table of Content
I. THE PARTIES.................................................................................................3
A. The Claimants ....................................................................................................................3
B. The Respondent..................................................................................................................3
II. PROCEDURAL HISTORY............................................................................4
A. Arbitration Agreement and Constitution of Arbitration Tribunal...............................4
B. Proceedings.........................................................................................................................5
C. The Hearing......................................................................................................................10
III. FACTS.............................................................................................................14
A. THE PARTIES.................................................................................................................14
B. THE AIRPORT................................................................................................................15
C. THE TENDER PROCESS..............................................................................................16
1. First Phase ..................................................................................................................16
2. Second Phase ..............................................................................................................16
3. Third Phase.................................................................................................................17
D. NEGOTIATION OF THE AGREEMENTS.................................................................17
2. The Project Agreements............................................................................................19
3. Credit Agreement.......................................................................................................21
E. THE CLAIMANTS’ INVESTMENTS ..........................................................................22
1. ADC Affiliate’s Investment.......................................................................................22
2. ADC & ADMC Management’s Investment............................................................26
F. Construction of Terminal 2/B.........................................................................................27
G. Business Planning Process for the Project Company...................................................27
H. Project Company’s Financial Results............................................................................29
I. Project Company’s Operations from 1999 through 2001 ............................................30
J. Transformation of the ATAA, Legislative Amendments and the Decree...................31
K. Developments after the Decree .......................................................................................35
1. Separation of the Functions of the ATAA ...............................................................35
2. Passenger Traffic .......................................................................................................36
3. Parking Facility..........................................................................................................36
4. Terminal Expansion and Reconstruction................................................................36
L. The Privatization of Budapest Airport ..........................................................................36
M. Arbitration Proceedings Brought by the Project Company ........................................38
IV. CONTENTIONS OF THE PARTIES..........................................................38
A. Contentions of the Claimants...........................................................................................38
B. Contentions of the Respondent.......................................................................................40
V. RELIEF SOUGHT BY THE PARTIES ......................................................41
A. Relief Sought by the Claimants ......................................................................................41
B. Relief Sought by the Respondent....................................................................................42
VI. FINDINGS OF FACT....................................................................................43
A. Credibility of Witnesses...................................................................................................43
B. The Nature of the Claimants’ Investment .....................................................................44
C. Complaints about the construction of the Terminal.....................................................44
D. Attempted Reasons for and Justification of the Decree ...............................................45
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VII. ISSUES TO BE CONSIDERED IN THIS ARBITRATION.....................48
A. Applicable Law.................................................................................................................49
B. Jurisdiction.......................................................................................................................51
1. Is the Nature of the Dispute Governed by the BIT or Contractual in
Nature?........................................................................................................................55
2. Did the Claimants Make Any Investment in Hungary within the
Definition of the BIT and the ICSID Convention? .................................................58
3. Does the Dispute Arise “Directly” out of An Investment as Required
by the ICSID Convention?........................................................................................61
4. Does the dispute involve “investors” under the BIT who are
nationals of a Contracting State to the ICSID Convention?..................................63
5. Does the dispute fall within the scope of Art. 7 of the BIT?...................................69
6. Conclusion on Jurisdiction........................................................................................69
C. Expropriation...................................................................................................................69
D. Miscellaneous Points Raised by the Respondent...........................................................81
1. Is the Operating Period Lease Invalid “Due to the Inappropriate
Legal Form of the Project Company”?......................................................................81
2. Are the Project Agreements Invalid “Due to the Missing Approval”
of a Quotaholders’ Meeting of the Project Company?...........................................84
3. Is There “a Grossly Unfair Difference in Value” Regarding the
Service Rendered and Consideration for That Service?........................................85
4. Did the Conclusion of the Terminal Management Agreement Violate
the Public Procurement Act and Therefore Became “Unlawful”? .......................87
E. Conclusion on Matters Other Than Quantum..............................................................88
F. Quantum...........................................................................................................................88
1. The Applicable Standard for Damages Assessment ...............................................89
2. Discounted Cash Flow (DCF) Method v. Balancing Payment
Method ........................................................................................................................95
3. The Respondent’s Other Attacks on the LECG Reports.......................................96
4. Conclusion on Quantification ...................................................................................97
5. The Amount of Compensation Payable to the Claimants......................................98
G. Return of the Shares and Promissory Notes..................................................................99
H. Costs ..................................................................................................................................99
1. Principle....................................................................................................................100
2. Quantum...................................................................................................................101
THE AWARD.......................................................................................................103
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Award of the Tribunal
I. THE PARTIES
A. The Claimants
1. The Claimants (“Claimants”) are ADC Affiliate Ltd. (“ADC Affiliate”) and ADC &
ADMC Management Ltd. (“ADC & ADMC Management”). Both are companies
incorporated under the laws of the Republic of Cyprus.
2. In this arbitration, the Claimants are represented by:
Mr. Pierre Bienvenu
Mr. Martin Valasek
Mr. Jacques Demers
Ogilvy Renault SENC in Montréal;
Mr. René Cadieux
Mr. Daniel Picotte
Fasken Martineau DuMoulin LLP in Montréal;
Prof. Dr. Iván Szász
Squire Sanders & Dempsey LLP in Budapest; and
Prof. Dr. James R. Crawford SC
University of Cambridge and Matrix Chambers.
B. The Respondent
4. The Respondent (“Respondent”) is the Republic of Hungary and is a sovereign
State.
5. In this arbitration, the Respondent was originally represented by:
Mr. John Beechey
Mr. Audley Sheppard
Clifford Chance LLP, London; and
Mr. Peter Köves
Köves & Társai Ügyvédi Iroda, Clifford Chance LLP, Budapest.
6. By letter dated 12 August, 2005, Clifford Chance LLP informed the Tribunal and
ICSID that they no longer served as legal counsel for the Respondent in this arbitration.
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7. By letter dated 29 September, 2005, the Respondent advised ICSID that it had
appointed Prof. Dr. László Bodnár of the Bodnár Ügyvédi Iroda Law Firm (“Bodnár Law
Firm”) as its replacement legal counsel in this arbitration.
8. Subsequently, the Respondent informed ICSID that Mr. Jan Burmeister and Dr.
Szabo Levente Antal of BNT Budapest and Dr. Inka Handefeld of New York and Hamburg
were retained as Co-Counsel for the Respondent.
9. Hence throughout the hearing on the merits the Respondent has been represented by
Bodnár Law Firm and the Co-Counsel referred to above.
10. The Claimants and the Respondent are referred to hereinafter together as the
“Parties”.
II. PROCEDURAL HISTORY
A. Arbitration Agreement and Constitution of Arbitration Tribunal
11. This arbitration arises from an alleged unlawful expropriation by the Respondent of the
investment of the Claimants in and related to the Budapest-Ferihegy International Airport
(“Airport”) which expropriation, as alleged by the Claimant, constituted a breach of the
Agreement between the Government of the Hungarian People’s Republic and the
Government of the Republic of Cyprus on Mutual Promotion and Protection of Investment
(“BIT”), which entered into force on May 24, 1989.
12. Article 7 of the BIT provides:
“1. Any dispute between either Contracting Party and the investor of the other
Contracting Party concerning expropriation of an investment shall, as far as
possible, be settled by the disputing parties in an amicable way.
2. If such disputes cannot be settled within six months from the date either
party requested amicable settlement, it shall, upon request of the investor, be
submitted to one of the following:
(a) the Arbitration Institution of the Arbitral Tribunal of the Chamber of
Commerce in Stockholm;
(b) the Arbitral Tribunal of the International Chamber of Commerce in
Paris;
(c) the International Centre for the Settlement of Investment Disputes in
case both Contracting Parties have become members of the Convention of
18 March 1965 on the Settlement of Investment Disputes between States
and Nationals of Other States.”
13. The Claimants have invoked the ICSID arbitration provisions in the BIT.
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14. On May 7, 2003, the Claimants submitted their Request for Arbitration against the
Respondent in which they invoked the ICSID arbitration provisions in the BIT.
15. On July 17, 2003, the Acting Secretary-General of ICSID registered the Request for
Arbitration pursuant to Article 36(3) of the ICSID Convention and ICSID Institution
Rule(6)(1)(a).
16. Shortly thereafter, the Parties agreed that there should be three arbitrators in this case
and also agreed on the method of their appointment.
17. Further to that agreement, the Claimants appointed the Honorable Charles N. Brower,
a national of the United States of America, as arbitrator and the Respondent appointed
Professor Albert Jan van den Berg, a national of The Netherlands. The two partyappointed
arbitrators appointed Mr. Allan Philip, a national of Denmark, to serve as
President of the Tribunal.
18. By letter of January 26, 2004, the Acting Secretary-General of ICSID notified the
Parties and the above-appointed arbitrators that the Tribunal had been constituted and the
proceeding deemed to have begun on that day in accordance with ICSID Arbitration Rule
6(1).
19. On September 3, 2004, due to ill health, Mr. Allan Philip resigned from the Tribunal.
20. Immediately after Mr. Philip’s resignation, the two party-appointed arbitrators
appointed Mr. Neil T. Kaplan CBE, QC, a national of the United Kingdom, as President of
the Tribunal to fill the vacancy created.
21. On September 28, 2004, with Mr. Kaplan’s acceptance of the appointment, the
Tribunal was reconstituted and the proceedings continued in accordance with ICSID
Arbitration Rule 12.
B. Proceedings
22. On March 8, 2004, the Tribunal, as originally constituted, held its first session in The
Hague. Present at the session were the full Tribunal, the ICSID Secretary of the Tribunal,
Mr. Ucheora Onwuamaegbu (“Secretary”), and the legal counsel of the Claimants and the
Respondent and/or their representatives.
23. At this first session, the Tribunal considered a series of procedural matters together
with several other non-procedural matters as listed in the provisional Agenda circulated by
the Secretary prior to the session and adopted at the start of the session.
24. Specifically, the matters considered at the first session were, inter alia, the following:
(a) applicable arbitration rules;
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(b) apportionment of costs and advance payments to the Centre;
(c) quorum;
(d) decisions of the Tribunal by correspondence or telephone conference;
(e) place of arbitration;
(f) procedural language;
(g) pleadings: number, sequence, time limits; and
(h) production of evidence and examination of witnesses and experts.
25. On May 11, 2004, the amended Minutes of the First Session, dated March 8, 2004 as
signed by the President on behalf of the Tribunal and by the Secretary, were dispatched to
the Parties by the Secretary.
26. Paragraph 15.3 of the Minutes of the First Session set out a procedural timetable for
pleadings agreed by the Parties.
27. On July 30, 2004, in accordance with the agreed timetable, the Claimants submitted
to ICSID the following:
1) Memorial of the Claimants, dated July 30, 2004;
2) Witness Statement of Mr. Michael Huang, dated July 29, 2004;
3) Exhibits referred to in Witness Statement of Mr. Michael Huang Vol.1;
4) Exhibits referred to in Witness Statement of Mr. Michael Huang Vol.2;
5) Exhibits referred to in Witness Statement of Mr. Michael Huang Vol.3;
6) Exhibits referred to in Witness Statement of Mr. Michael Huang Vol.4;
7) Witness Statement of Mr. Tamás Tahy, dated July 25, 2004 but signed on 28 July,
2004;
8) Witness Statement of Mr. György Onozó, dated July 28, 2004, and English
translation thereof;
9) Expert Report by Manuel A. Abdala, Andres Ricover and Pablo T. Spiller of
LECG LLC, dated July 29, 2004, entitled Damage Valuation of Claimants’
Investment in the Airport (“LECG Report”);
10) Annexes to LECG Report Vol.1;
11) Annexes to LECG Report Vol.2;
12) Annexes to LECG Report Vol.3;
13) Annexes to LECG Report Vol.4;
14) Annexes to LECG Report Vol.5;
15) Annexes to LECG Report Vol.6;
16) Annexes to LECG Report Vol.7;
17) Authorities Vol. I;
18) Authorities Vol. II; and
19) Authorities Vol. III.
28. On August 19, 2004, the Secretary confirmed with the Parties an agreed adjusted
timetable for meetings and hearings which replaced the original timetable set forth in the
Minutes of the First Session.
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29. On January 17, 2005, in accordance with the pleading timetable agreed, the
Respondent submitted to ICSID the following:
1) Counter-Memorial of the Respondent, dated January 17, 2005;
2) Expert quantum report by NERA Consulting (“NERA Report”);
3) Witness Statement of Dr. László Kiss;
4) Witness Statement of Mr Gyula Gansperger;
5) Witness Statement of Mr. Gabor Somogyi-Tóth;
6) Exhibits of the Respondent’s Counter Memorial; and
7) Authorities.
30. On February 7, 2005, and in accordance with the agreed timetable, both Parties
served their Requests for Production of Documents on the other party.
31. As agreed at the First Session of the Tribunal, on February 14, 2005, a telephone
conference was held between the Parties and the Tribunal to assess the status of the
proceeding. At that telephone conference, the Respondent submitted to the Tribunal its
Application for Bifurcation of Jurisdiction from the Merits.
32. On February 15, 2005, the Tribunal issued its Decision on the Respondent’s
Application for Bifurcation of Jurisdiction from the Merits in which it rejected the
Respondent’s application for bifurcation.
33. On February 22, 2005, in accordance with the agreed procedural timetable, the Parties
submitted to the Tribunal their respective objections to the request by the other side for
production of documents. Replies to the objections were filed on March 7, 2005.
34. On March 10, 2005, a hearing was held by the Tribunal in London on the requests for
production of documents. At the hearing, the Tribunal granted certain of the Claimants’
requests, and with respect to the Respondent’s requests, it was agreed that the Respondent
would file a revised request by March 21, 2005; the Claimants would file their response
thereto by April 1, 2005; and the Tribunal would thereafter issue its decision on the revised
requests.
35. On March 22, 2005, the Respondent filed its amended request for production of
documents (“Amended Request”).
36. On April 5, 2005, as agreed by the Parties, the Claimants made their submission in
response to the Respondent’s Amended Request. In this submission, the Claimants agreed
to produce a number of documents requested by the Respondent but rejected the remaining
requests. The Claimants’ objections were mainly based on the argument that the remaining
requests still violated specific instructions and observations made by the Tribunal at the
hearing on March 10, 2005.
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37. On April 15, 2005, having considered the Amended Request by the Respondent and
the Claimants’ submission in response, the Tribunal, in its decision of that date, granted
several requests in the Amended Request and refused others.
38. On June 2, 2005, following correspondence between the Parties in regard to the
adjustment of the procedural timetable, the Tribunal agreed and confirmed a revised
schedule for the remaining written submissions, organizational meeting and main hearing.
39. On July 22, 2005, in accordance with the revised timetable, the Claimants submitted
to the Tribunal and the Respondent the following documents:
1) Claimants’ Reply, dated July 22, 2005;
2) Reply Witness Statement of Mr. Michael Huang, dated July 21, 2005;
3) Reply Witness Statement of Mr. Tamás Tahy, dated July 14, 2005;
4) Reply Witness Statement of Mr. György Onozó, dated July 20, 2005, and English
translation thereof;
5) Supplemental Expert Report by Manuel A. Adbala, Andres Ricover and Pablo T.
Spiller of LECG LLC, dated July 22, 2005, entitled Damage Valuation for the
Investment of ADC Affiliate Limited and ADC & ADMC Management Limited
in the Budapest-Ferihegy International Airport (“Supplemental LECG Report”).
40. As stated above, on August 12, 2005, the Tribunal was notified by Clifford Chance
LLP that the Respondent had terminated its engagement of the firm in this arbitration.
41. On September 15, 2005, in response to the Tribunal’s inquiries as to whether it
intended to appoint replacement legal counsel and to follow the fixed deadlines, the
Minister of Finance of the Republic of Hungary sent a letter to ICSID in which it was
stated that the Respondent was in the process of appointing new legal counsel. Further, the
Respondent requested that the Tribunal re-schedule the deadline for filing the Respondent’s
Rejoinder to January 2006 and adjust the ensuing deadlines accordingly.
42. On September 21, 2005, the Tribunal informed the Parties that it was not satisfied
with the grounds given by the Respondent for the postponement of the deadlines and that
the schedule of this arbitration would remain unchanged. It also confirmed its decision that
the organizational meeting, for which December 15, 2005 had been set aside, would be
held in London at a venue to be determined.
43. On September 29, 2005, the Respondent notified ICSID via fax that it had appointed
the Bodnár Law Firm as its counsel of record in this arbitration in replacement of Clifford
Chance LLP. A copy of the Power of Attorney was attached to the fax.
44. On October 4, 2005, Prof. Dr. László Bodnár of Bodnár Law Firm, as legal counsel
of the Respondent, sent a letter to the Tribunal requesting the deadline for service of
Respondent’s Rejoinder, Claimants’ Sur-Rejoinder on Jurisdiction and the date of the
Organizational Meeting be postponed while the date for final hearing should remain
unchanged.
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45. On October 6, 2005, the Tribunal informed the Parties that it had decided to amend
the schedule in this arbitration as follows:
November 4, 2005 Deadline for filing the Respondent’s Rejoinder;
December 9, 2005 Deadline for filing the Claimants’ Sur-Rejoinder on
Jurisdiction;
December 19, 2005 Organizational meeting in London, at 10a.m.;
January 17 to 27, 2006 Hearing on jurisdiction and merits in London or The
Hague.
46. On November 4, 2005, the Respondent’s counsel served its Rejoinder on the Tribunal
and the Claimants.
47. On December 11, 2005, the Claimants’ counsel served on the Tribunal and the
Respondent the following:
1) Sur-Rejoinder on Jurisdiction; and
2) Supplemental Reply Witness Statement of Mr. Michael Huang.
48. On December 19, 2005, a second organizational meeting was held in London. Mr.
Pierre Bienvenu, Mr. Martin Valasek, Mr. René Cadieux and Prof. Dr. Iván Szász appeared
on behalf of the Claimants. Prof. Dr. Lazlo Bodnár, Mr. Jan Burmeister, Dr. Inka Hanefeld
and Dr. Janka Ban appeared on behalf of the Respondent. Present at the meeting were the
full Tribunal and the Secretary of the Tribunal.
49. At this meeting, the Parties agreed to and confirmed a series of administrative matters
in regard to the conduct of the main hearing.
50. Also at the meeting, the Respondent informed the Tribunal and the Claimants that
Mr. Matthew, author of the NERA Report and key expert witness for the Respondent,
would be unavailable for cross-examination at the main hearing; instead, two new expert
witnesses recently appointed by the Respondent would be produced at the hearing for
cross-examination in regard to the NERA Report.
51. The Claimants’ counsel opposed such arrangement and requested that Mr. Matthew
be produced for cross-examination.
52. The Claimants also requested that the Respondent produce the transactional
documents entered into by British Airports Authority (“BAA”) a week previously in its
acquisition of the majority shares of the company owning Budapest Airport.
53. Having heard the Parties at the meeting, the Tribunal issued its Procedural Order
dated December 19, 2005, in which it was ordered, inter alia, that:
9
1) the Respondent shall use its best endeavours to procure Mr. Matthew to testify at
the hearing in January; if this proves impossible, the Respondent shall serve on
the Claimants and the Tribunal, before December 29, 2005, statements of the two
new expert witnesses who will state that they entirely agree with and adopt the
NERA Report;
2) the Respondent shall supply to the Claimants before December 23, 2005 various
versions of the bid requirements and tender documents together with the
agreement entered into by BAA in relation to BAA’s acquisition of the shares in
Budapest Airport; such production shall be subject to a Confidentiality Agreement
annexed to the Procedural Order.
54. In accordance with the above Procedural Order, on December 31, 2005, counsel for
the Respondent filed a CRAI Rebuttal Report issued and signed by its new expert witness,
Dr. Alister L. Hunt (“Hunt Report”).
55. In his Report, Dr. Hunt declared that he had “read, understood, analyzed” and,
subject to one exception, “agree(s) with the NERA Report.” However, in paragraph 10 of
this Report, Dr. Hunt made the important point that he concluded that the definition of the
financial contribution made by Airport Development Corporation (“ADC”) for the
purposes of calculating compensation was US$16.765 million and the Internal Rate of
Return (“IRR”) computations were to incorporate this initial cash infusion. This point
deviated from the NERA Report and as Dr. Hunt noted, “this deviation is in favour of the
Claimants’ position”.
56. On the same date, the Respondent’s counsel in its covering letter attached to the Hunt
Report informed the Tribunal and the Claimants that Dr. Kothari, its other proposed new
expert, would not be produced at the January hearing and therefore was withdrawn.
C. The Hearing
57. The hearing took place at the International Dispute Resolution Centre in Fleet Street,
London. It commenced on Tuesday January 17, 2006 and concluded on Wednesday
January 25, 2006. Audio recording of the hearing was made and verbatim transcripts were
also produced, the latter being concurrently available with the aid of LiveNote computer
software.
58. At the hearing, the following appeared as legal counsel for the Claimants: Messrs.
Pierre Bienvenu, Martin Valasek, Jacques Demers and Azim Hussein of Ogilvy Renault,
Mr. René Cadieux of Fasken Martineau Dumoulin, Prof. Dr. Iván Szász and Miss Judith
Kelman of Squire Sanders & Dempsey and Prof. Dr. James Crawford SC.
59. The following appeared as legal counsel for the Respondent: Prof. Dr. Bodnár of the
Bodnár Law Offices, Messrs. Jan Burmeister and Dr. Levente Szabo of B&T law firm of
Budapest and Dr. Inka Hanefeld, Dr. Ulf Renzenbrink and Mr. Daniele Ferretti of RRKH
law firm of Hamburg. Ms. Bernadette Marton also appeared at the hearing as a
representative of the Hungarian Ministry of Finance.
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60. Both sides made an oral presentation at the opening of the hearing. With regard to
post-hearing submissions, the Tribunal confirmed the dates set forth in its December 19,
2005 Procedural Order, namely, written closing submissions to be served on March 7, 2006
and the written rebuttals to be served by March 21, 2006.
61. At the hearing, the following witnesses gave evidence, in sequence, for the Claimants
and were cross-examined by the Respondent’s counsel:
Mr. Michael Huang
Mr. György Onozó
Mr. Tamás Tahy
Mr. Manuel A. Abdala, Mr. Andres Ricover and Mr. Pablo T. Spiller of LECG LLC
62. The following witnesses gave evidence for the Respondent and were cross-examined
by the Claimants’ counsel:
Dr. László Kiss
Mr. Gyula Gansperger
Mr. Gabor Somogyi-Tóth
Dr. Alister L. Hunt of CRA International
63. At the conclusion of his evidence, Mr. Gansperger asked the Tribunal for a copy of
the transcript of the proceedings and a copy of Mr. Tahy’s witness statement.
64. The Tribunal heard oral arguments on the issue of confidentiality and made its
decision on this issue in a letter to the Parties dated January 31, 2006. In this letter, the
Tribunal referred to ICSID Arbitration Rule 19 and Articles 44 and 48(5) of the
Convention.
65. Arbitration Rule 19 provides:
“The Tribunal shall make the orders required for the conduct of the
proceeding.”
66. Article 44 of the Convention provides:
“Any arbitration proceeding shall be conducted in accordance with the
provisions of this Section and, except as the parties otherwise agree, in
accordance with the Arbitration Rules in effect on the date on which the
parties consented to arbitration. If any question of procedure arises which
is not covered by this Section or the Arbitration Rules or any rules agreed
by the parties, the Tribunal shall decide the question.”
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67. Article 48 (5) of the Convention provides:
“The Centre shall not publish the award without the consent of the parties.”
68. Bearing in mind of these provisions, the Tribunal ruled in the above letter as follows:
“…
14. Having considered all the submissions on this matter, the Tribunal is
satisfied that confidentiality does attach to all the documents produced in
this ICSID arbitration. Confidentiality is important because parties to
ICSID arbitrations may not want the details of the dispute made public and
furthermore witnesses who come forward to assist the Tribunal in their
difficult task should do so with the knowledge that what they say is
confidential and cannot be released without an order of the Tribunal. Such
a rule is necessary to preserve the integrity of the arbitral process.
15. That confidentiality is desirable is made evident by the frank statement
of Mr. Gansperger that he wanted these documents for the purposes of
‘obtaining satisfaction’ against the statement made by Mr. Tahy.
16. Mr. Burmeister suggested that it was only fair to let a witness, who gave
evidence in his native language and was translated into English for the
benefit of the Tribunal, have the right to check the English translation of
what he said and how that was recorded in the transcript. It is clear that
Mr. Gansperger does speak English and therefore would be able to check
the accuracy of his words.
17. The Tribunal accepts that it is only fair that Mr. Gansperger should be
able to have access to the transcript to check the authenticity of the
translation.
18. However, for that purpose, he does not require to be given a copy of the
transcript of his evidence. What the Tribunal is prepared to allow is that
Mr. Gansperger may, only at the offices of the Bodnár law firm, be shown a
copy of the transcript of his evidence and be allowed to read it through and
check it for accuracy. On no account is he to be given a copy to be taken
away from the Bodnár law firm offices.
19. As to the request that Mr. Gansperger be given a copy of the statement
or extract of the statement of Mr. Tahy, this application is refused. This
refusal is based upon the importance of maintaining the confidentiality of
ICSID arbitrations which involves protecting witnesses who come forward
to assist the Tribunal. The Tribunal accepts that in ICSID arbitrations it is
difficulty for some witnesses to give evidence against their own State and
when this is coupled with a request for “satisfaction” from a co-national
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who is clearly a powerful figure in that country, the importance of
confidentiality looms large.”
This confidentiality issue was then closed.
69. On March 6, 2006, the Respondent’s counsel informed the Tribunal by email that by
mutual agreement, the Parties agreed to postpone the dates for post-hearing submissions to
March 10, 2006 and March 24, 2006 respectively.
70. On March 10, 2006, the Claimants served on the Tribunal their Post-Hearing Brief
together with an LECG Post-Hearing Report. On the same date, the Respondent served on
the Tribunal its Closing Submissions.
71. On March 16, 2006, Prof. Bodnár, on behalf of the co-counsel for the Respondent, by
a letter to the Tribunal, objected to the newly submitted LECG Post-Hearing Report and
claimed that said report and an updated electronic model therewith “constitute new
evidence”.
72. On March 24, 2006, the Respondent served on the Tribunal the Respondent’s Closing
Reply. On the same date, the Claimants served on the Tribunal Claimants’ Post-Hearing
Rebuttal.
73. On March 30, 2006, the Claimants’ counsel, by a letter to the Tribunal, denied that
the disputed report and model constituted new evidence.
74. In a letter to the Tribunal dated April 3, 2006, the Respondent reiterated its position
concerning the report and the model in question and further claimed that the report also
contained new factual allegations. The Respondent therefore requested the Tribunal to
disregard the LECG Post-Hearing Report as well as the electronic model submitted with it.
75. On April 7, 2006, after reviewing the relevant correspondence and careful
consideration of the issue, the Tribunal, through the Secretary, sent a letter to the Parties in
regard to the “new evidence” matter and directed the Respondent to specify its allegation
that “new evidence” was contained in the LECG Post-Hearing Report by May 1, 2006.
76. On May 1, 2006, in accordance with the Tribunal’s direction, the Respondent served
on the Tribunal a Supplemental Expert Report prepared by Dr. Hunt which addressed the
defects as the Respondent sees them in the LECG Post-Hearing Report.
77. On May 12, 2006, the Claimants’ co-counsel wrote a letter to the Tribunal in response
to the Supplemental Expert Report. In this letter, the Claimants acknowledged certain
minor calculation errors in the LECG Post-Hearing Report but maintained its position that
no new evidence was introduced therein and argued that Dr. Hunt’s criticism on LECG’s
methodology was unfounded.
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78. On May 19, 2006, the Tribunal, through its Secretary, wrote to the Parties with the
following ruling:
“After careful reading of the LECG Post-Hearing Report as well as Dr.
Hunt’s Supplemental Expert Report and thorough consideration of the issue,
the Tribunal is now satisfied that it can conclude that no new evidence was
introduced in the LECG Post-Hearing Report. Therefore, the objection
raised by the Respondent in this regard is rejected. The issue of new
evidence is closed.”
III. FACTS
79. At a fairly early stage in these proceedings, the Tribunal requested the Parties to agree
a non-contentious narrative statement of the background facts of this case. The Tribunal’s
intention was to incorporate such agreed text in this Award. After much delay, doubtless
caused by the change of counsel and through no fault of the Respondent’s able and new
legal team, all that was provided was the Claimants’ version. The Respondent’s legal team
had, by the end of the hearing, not been able to agree this text although they were not in a
position to state with what they disagreed. The Tribunal gave the Respondent a period of
two weeks following the conclusion of the hearing to either agree the Claimants’ text or to
make suggested amendments. The text contained in paragraph 80 to 213 represents the
Claimants’ version with some textual change made by the Tribunal. The Tribunal has also
taken into account the Respondent’s version which was finally received on March 10,
2006.
A. THE PARTIES
80. The Claimants are companies incorporated under the laws of the Republic of Cyprus.
81. The Claimants were established on February 25, 1997 for the sole purpose of the
Airport Project as defined in paragraph 94 below.
82. ADC Affiliate’s shareholders are:
Class A Voting Shares: 51% ADC, incorporated in Canada
Class A Voting Shares: 49% Aeroports de Montreal Capital
Inc (“ADMC”), incorporated in
Canada
Class B Participating Non-Voting Shares: 100% ADC Financial Ltd,
incorporated in the British Virgin
Islands
Class C Participating Non-Voting Shares: 100% ADMC
14
83. ADC & ADMC Management’s shareholders are:
Class A Voting Shares: 50% ADMC
Class A Voting Shares: 50% ADC Management Ltd,
incorporated in the British Virgin
Islands
Class B Participating Non-Voting Shares: 100% ADC Management Ltd,
incorporated in the British Virgin
Islands
Class C Participating Non-Voting Shares: 100% ADMC
84. The controlling shareholders, directors and ultimate beneficiaries of ADC were two
Canadians, Mr. Huang and Mr. Danczkay. ADC was a fully owned subsidiary of Huang &
Danczkay Properties, a general partnership of Huang & Danczkay Limited and Huang &
Danczkay Development Inc. organised under the laws of Ontario, Canada. The British
Virgin Islands companies were also ultimately owned by Mr. Huang and Mr. Danczkay
(and their relatives).
85. The directors of the Claimants are Cypriot lawyers and Canadian lawyers.
B. THE AIRPORT
86. The Airport is located approximately 18 km south-east of Budapest, the capital of the
Republic of Hungary.
87. The Airport is the principal airport in Hungary for both domestic and international
scheduled passenger flights.
88. The Airport also plays a military role, and, for example, was used during the Balkans
War by NATO Member States for transporting military personnel, supplies and equipment.
89. In 1992, the Airport comprised of two passenger terminals. Terminal 1 had been built
in 1950, and had a capacity of two million passengers a year, but it no longer met the then
current commercial and security standards. Terminal 2/A, which had an additional capacity
of two million passengers a year, had been built in 1985.
90. The Airport is an exclusive and non-negotiable asset of the State, as stated in Section
36/A of the Air Traffic Act (Act XCVII of 1995) and the Hungarian Civil Code. However,
pursuant to Decree No. 12/1993 of the Minister of Transport and Water Management
(“Ministry of Transport”), the Air Traffic and Airport Administration (“ATAA”) had the
authority to transfer revenue generating usage and revenue collection rights relating to the
operation of certain facilities at the airport.
15
91. The Airport was held, managed and operated by ATAA, a Hungarian state entity,
which was under the auspices of the Ministry of Transport. As from 1 January 1988, the
Director of the ATAA had been Mr. Tamás Erdei. Before that he had been the Technical
Deputy Director.
92. In 1992, United States and Hungarian advisors concluded that to accommodate future
passenger requirements, the Airport would need to be expanded.It was also considered that
the Airport had the potential to be developed into a hub with a much higher passenger
turnover.
93. It was further concluded that it would be preferable financially to construct a new
terminal, rather than renovate Terminal 1. Accordingly, the ATAA initiated a tender
process for expansion of the Airport.
C. THE TENDER PROCESS
94. In September 1992, ATAA initiated a three-phase process to select a partner to
renovate Terminal 2/A and to design a new Terminal 2/B at the Airport. The invitation to
tender also involved the design of the adjoining public road and traffic entrance areas and
related infrastructure, as well as the financing, construction, leasing and operation of
Airport facilities (“Airport Project” or “Project”).
95. The ATAA was, at the time, an agency of the Hungarian Ministry of Transport and
wholly under the control of the Respondent.
96. The first phase of the tender process involved the ATAA’s selection of qualified
bidders. Only qualified bidders were allowed to participate in the second phase, which
involved the ATAA’s selection of two “Preferred Tenderers”. The third and final phase
involved the ATAA’s selection of the “Selected Tenderer”.
1. First Phase
97. The first phase began in September 1992 with the issuance by the ATAA of an
“International Prequalification” document containing information relating to the Airport
Project and an “Application”, including an Invitation to Prequalification, a description of
the prequalification procedure and the Applicant’s Questionnaire, or “Request for
Qualification” (“RFQ”).
98. ATAA received a total of 17 RFQs. On November 23, 1992, ADC submitted a RFQ
to the ATAA.
99. The ATAA brought the first phase of the tender process to a close by announcing its
short list of qualified tenderers. The ATAA's short list of qualified tenderers included
ADC and five other bidders.
2. Second Phase
16
100. In the second phase of the tender process, each qualified bidder was invited to submit
a tender to the ATAA for the Airport Project. The invitation also included a tender on the
construction of a covered and open air parking facility, a hotel and a business centre.
101. The ATAA’s tender documentation, which was issued between December 13, 1993
and January 17, 1994, consisted of two parts in eleven volumes (“Tender Documentation”).
Part A contained, inter alia, the Invitation to Tender and Instructions to Tenderers, as well
as the Project Conditions and Requirements. Part B contained technical documents such as
drawings, technical specifications, Bills of Quantities and Technical Descriptions.
102. The Tender Documentation required bidders to include in their tenders a “Basic
Tender” conforming strictly to the conditions set forth by the ATAA. Bidders were also
invited, but not obligated, to submit an “Alternative Tender”, which did not need to
conform to all of the conditions set out in the Tender Documentation.
103. On April 29, 1994, ADC, acting as an individual corporation, not as a consortium,
submitted its tender (“ADC’s Tender”) to ATAA. ADC’s Tender included both a Basic
Tender, submitted in compliance with the Tender Documentation, and an Alternative
Tender. ADC’s Alternative Tender proposed an alternative concept for Terminal 2/B based
on the same footprint as the Basic Tender building, but with more cost-effective and
efficient design, reduced capital costs and lower operating expenses. It also increased the
maximum passenger handling capacity of the terminals by one million passengers per year
over the Basic Tender.
104. As part of its tender, ADC agreed to procure that the Canadian Commercial
Corporation (“CCC”), a Canadian Crown corporation and agent of the Government of
Canada, would enter into a turnkey fixed price contract for the construction of Terminal
2/B and the renovation of Terminal 2/A.
105. The ATAA received proposals from at least three other qualified bidding teams or
consortia, led respectively by Siemens, Schiphol (Amsterdam) Airport and Lockheed.
106. The second phase of the tender process ended when ATAA selected ADC and
Lockheed as Preferred Tenderers.
3. Third Phase
107. The third and final phase of the tender process went from May 1994 to August 1994,
culminating in August 1994 with the selection of ADC as the Selected Tenderer.
108. ADC was selected as the Selected Tenderer on the basis of a unanimous
recommendation from a selection jury of eleven persons. It is ADC’s Alternative Tender
that was chosen by the ATAA.
109. In specific, ADC was awarded contracts by the ATAA to (a) renovate Terminal 2/A,
(b) construct Terminal 2/B, and (c) participate in the operation of Terminals 2/A and 2/B.
D. NEGOTIATION OF THE AGREEMENTS
17
110. Following ADC’s selection as the Selected Tenderer, negotiations with the ATAA
with respect to the legal documentation were officially launched. ATAA had reserved the
right to enter into negotiations with the second Preferred Tenderer (i.e., Lockheed).
111. ADC’s negotiating team consisted of Mr. Huang and Mr. Béla Danczkay. ADC’s
legal advisers were Meighen Demers, since merged with Ogilvy Renault, and local
Hungarian counsel. For its part, the ATAA was represented in the negotiations by a team
led by Mr. Tamás Erdei, its General Director, and they were assisted by the global law firm
Debevoise & Plimpton LLP, by local Hungarian counsel and by Lehman Brothers, as
financial adviser.
112. The parties proceeded by first negotiating a “Master Agreement”, which set out the
fundamental terms and conditions of the transaction and provided the framework under
which all the other agreements would be negotiated and ultimately executed.
1. The Master Agreement and the Incorporation of the Project Company
113. The negotiations of the Master Agreement began in August 1994 and it was executed
on March 31, 1995. Parties to the Master Agreement are ADC and the ATAA. On the same
day a Guarantee Agreement between Huang & Danczkay Properties and the ATAA was
executed (“Huang & Danczkay Guarantee”).The Master Agreement is a legal instrument
that laid down the fundamental structures of the whole Project. As stated in Article 2 of the
Master Agreement, the purpose of the Master Agreement
“is to set forth the agreements among the parties as to the terms and
conditions with respect to the following subjects:
2.1 the obligations and the satisfaction of the obligations of ADC and the
ATAA in connection with the Project prior to the Construction
Commencement Date;
2.2 the obligations of ADC, the Project Company and the ATAA in
connection with the Project after the Construction Commencement
Date;
2.3 the Operating Rights of the Project Company following the Operations
Commencement Date;
2.4 the rights and obligations of the Project Company and the ATAA during
the Operating Period;
2.5 the participation by ADC and the ATAA, provided that the necessary
approvals are obtained, in the equity capital of the Project Company;
2.6 the management of the Project Company; and
2.7 the nature of other agreements to be entered into in connection with the
Project.”
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114. In particular, the Master Agreement provided, inter alia, for the formation under
Hungarian law of a wholly-owned subsidiary of ADC (“Project Company” or “FUF”) for
the sole purpose of:
“(a) incurring the Project Debt and funding the Construction work following
the Initial Drawdown.
(b) preparing operation and asset management plans and engaging in other
preparatory work for the Terminal Operations prior to completion of the
Construction work; and
(c) conducting the Terminal Operation on and after the Operations
Commencement Date and servicing the Project Debt until expiration of
the Term.[…]”
115. The Master Agreement also provided that the ATAA and the Project Company would
enter into an operating period agreement, which would grant to the Project Company,
subject to certain conditions, the right to conduct the terminal operations and to collect the
terminal revenues. It was also intended that the initial term (“Initial Term”) of the Master
Agreement would be twelve years from the operations commencement date (“Operations
Commencement Date”), which would be extended under certain conditions up to six
additional years.
116. The Master Agreement also provided that the Project Company could establish the
fees and charges to be levied at the terminals, but only in accordance with the regulatory
framework (“Regulatory Framework”). That framework set forth the policies and
procedures for preparing the Annual Business Plan, and became Schedule C to the
Operating Period Lease.
117. The Master Agreement and the Regulatory Framework also refer to the concept of
ADC’s “IRR”. The parties agreed on a target IRR on ADC’s initial equity investment of
15.4% (“Target IRR”), and an absolute ceiling of 17.5%.
118. Concurrently with the execution of the Master Agreement on March 31, 1995, ADC
formed the Project Company, which was registered as a one-member limited liability
company on June 15, 1995, with legal effect as of March 31, 1995. The Project Company
was established by ADC for the limited purposes of the Project. Its objects included
incurring and servicing Airport Project debt, funding construction of the Airport Project,
preparing operation and asset management plans prior to completion of construction, and
operating the terminals following construction. Under the terms of its Charter, the Project
Company was established for an initial term of fourteen years. This term could be
extended, on one occasion, by no more than four years.
2. The Project Agreements
119. The “Project Agreements”, as defined by the Master Agreement, means all those legal
instruments as required in order to implement the contractual structure of the Project and to
19
set out the terms and conditions of all parties’ participation in, and involvement with, the
Project Company.
120. The Master Agreement set a target date for the execution of the Project Agreements
as of six months after execution of the Master Agreement. The complexities of the Project
did not permit the completion of the Project Agreements and the commencement of the
Project by the initial target date. The parties mutually agreed to extend the target date with
the final target date being set at March 31, 1997.
121. In its tender, ADC had proposed that the ATAA would receive its share in the Project
Company in return for providing the Project Company with an in-kind contribution
consisting of its rights to operate the airport terminals. This concept was accepted by the
ATAA in the Master Agreement, but conditional on the ATAA receiving Government
authorization, as required by Hungarian law, to acquire its quota in the Project Company.
122. Subsequently, ADC was advised that the Government had come to the conclusion
that, for legal reasons, ATAA needed to make a cash contribution to the Project Company
to receive its quota and that the proposed in-kind contribution by the ATAA would not
entitle it to receive its 66% quota of the Project Company. In order to address this problem
to the satisfaction of the ATAA, the parties agreed to the terms ultimately set out in the
Project Agreements, namely that of the US$16.765 million contributed by ADC to the
equity of the Project Company, 66% or US$11.065 million would be contributed by ADC
to the Project Company on behalf of the ATAA in return for equivalent value from the
ATAA, in the form of rental payments from the Project Company that would otherwise be
due to ATAA under the Operating Period Lease. These rental payments were in turn
converted into a stream of payments under a promissory note (“Promissory Note”).
123. Among all the Project Agreements concluded, those executed in February 1997
(concurrently with the execution of the Credit Agreements described in the section below)
included the following:
(1) Quotaholders Agreement among ADC, the ATAA and the Project Company,
executed on February 17, 1997;
(2) Quota Transfer Agreement between ADC and the ATAA, executed on February
18, 1997;
(3) Association Agreement between ADC and the ATAA, executed on February 18,
1997;
(4) Subscription Agreement among ADC, the ATAA and the Project Company,
executed on February 27, 1997;
(5) Receipt and Acknowledgment among ADC, the ATAA and the Project
Company, executed on February 27, 1997;
(6) Release and Note Agreement between ADC and the Project Company, executed
on February 27, 1997;
20
(7) Assignment and Assumption Agreement between ATAA, ADC and ADC
Affiliate, executed on February 27, 1997;
(8) Operating Period Lease between the ATAA and the Project Company, executed
on February 27, 1997;
(9) Terminal Management Agreement for entrepreneurial operations among the
ATAA, the Project Company and ADC & ADMC Management Limited,
executed on February 27, 1997; and
(10) ATAA Services Agreement between the ATAA and the Project Company,
executed on February 27, 1997.
124. The Claimants contend that, at the end of the day (i.e., referred to in the Subscription
Agreement as the Equity Closing Date), through the simultaneous execution and operation
of the Operating Period Lease, the Receipt and Acknowledgment and the Release and Note
Agreement, ADC held a 34% quota in the Project Company and the Promissory Note from
the Project Company, representing collectively a single investment in, and capital
contribution to, the Project Company, in the amount of US$16.765 million. The
Respondent originally contested this but abandoned the point at the hearing in the light of
Dr. Hunt’s inability to support it.
3. Credit Agreement
125. From the outset of the tender process, the ATAA made it clear that the Project should
be financed on a non-recourse project basis, and that all tenders should assume that neither
the ATAA nor any other entity of the Government of Hungary would guarantee any debt
incurred in connection with the Airport Project. These conditions were listed as the first
“fundamental objective” and the first “financial assumption” in the Tender Documentation.
126. As part of its tender, ADC had secured letters of interest from the International
Finance Corporation (IFC) and the European Bank for Reconstruction and Development
(EBRD), each of which was prepared to lead a syndicate of lenders to finance the debt
portion of the Airport Project. During the negotiations of the Credit Agreements, EBRD
emerged as the front-runner to lead the lending syndicate. EBRD offered to provide the Aloan
portion of the financing at an interest rate of LIBOR plus 2.5%. The negotiations
proceeded on this basis through 1995 and through the better part of 1996.
127. In the course of 1996, Mr. Péter Medgyessy, who at the time was Hungary’s Finance
Minister, involved himself personally in the negotiations of the credit facility. Mr.
Medgyessy wanted the Airport Project debt to be financed by a syndicate of commercial
banks only and he thus rejected the EBRD loan offer. To this end, the Government was
willing to provide a guarantee of the Airport Project debt in order to secure a precedent in
the international commercial banking community for a long term Hungarian Government
guaranteed debt of ten years at a favourable interest rate.
128. This was a significant departure from the financing conditions that the Government of
Hungary had earlier set out in the Tender Documentation, where it was specified that there
21
would be no sovereign guarantee of debt. In connection with the higher profile and greater
risk the Government of Hungary was now taking in the Airport Project, the ATAA took the
position that its share of the voting capital in the Project Company should be increased
from 49% to 66%, matching the ATAA's share capital, and the Project Agreements were
amended accordingly.
129. The Credit Agreement (the “Facility Agreement” as the document was titled) was
executed on February 27, 1997 in Budapest. Mr. Medgyessy himself signed the guarantee
(“Guarantee”), on behalf of the Government, on the very same day. The syndicate of
lending banks had agreed to provide US$103 million of financing to the Project Company
to realize the Project at an interest rate of LIBOR plus 0.95% to be paid over a period of ten
years.
F. THE CLAIMANTS’ INVESTMENTS
130. The Claimants’ investments in the Project Company are set out below.
1. ADC Affiliate’s Investment
131. From the very beginning of this transaction, the parties shared the assumption that
ADC's capital contribution to the Project Company would be made through an affiliate, so
as to allow the investment to benefit from the tax treaty regime between Hungary and the
jurisdiction of the affiliate's incorporation. Accordingly, Section 3.2(a) of the Master
Agreement, for example, provided that the cash equity contribution would be made by
ADC or by an “Affiliate” of ADC.
132. Having chosen Cyprus for its advantageous tax regime (among other reasons), ADC
incorporated ADC Affiliate in Cyprus on February 25, 1997 in advance of the execution of
the Subscription Agreement and the closing of the equity contribution. (ADC & ADMC
Management was incorporated at the same time.)
133. Pursuant to a Shareholders' Agreement dated February 21, 1997 between ADC
Financial Ltd., ADC and ADMC, ADC Financial Ltd. contributed US$6.765 million and
ADMC contributed US$10 million to the equity capital of ADC Affiliate. These funds,
totalling US$16.765 million, were intended by ADC Affiliate and its shareholders to be
used to fund the capital increase of the Project Company through a direct contribution of
cash. This was reflected in Section 2.1(a)(ii) of the ADC Affiliate Shareholders'
Agreement:
“[ADC Affiliate's] principal activities will be (i) to purchase and hold 100%
of the Quotas currently owned by ADC in the Project Company; (ii) to
subscribe for and purchase additional Quotas in the Project Company such
that [ADC Affiliate's] holding of registered capital in the Project Company
shall be 34%; and (iii) in accordance with Article 4.4(ii) of the Quotaholders'
Agreement, to be jointly and severally bound with ADC towards ATAA for the
performance of the obligations of ADC and the Project Company as
contemplated in the Project Agreement.”
22
134. As the Parties approached the closing date, there were two options available to
complete the transaction:
i. the relevant Project Agreements could all be amended to refer to ADC Affiliate,
and ADC Affiliate could participate directly in the closing by making the
US$16.765 million capital contribution itself, in exchange for the Quota and
Note; or
ii. the transactions could be completed through ADC (without needing to amend the
relevant Project Agreements), followed by an assignment of the Quota and Note
to ADC Affiliate.
135. It was decided to pursue the second option. In order to do so, ADC needed (i) to
borrow the US$16.765 million from ADC Affiliate, (ii) to agree to subscribe for the capital
increase in the Project Company with those funds and, finally, (iii) to agree to transfer and
assign all rights and interests associated with the quota and the Promissory Note to ADC
Affiliate. This was accomplished through a Loan and Transfer Agreement dated
27 February 1997 between ADC Affiliate and ADC (“Loan and Transfer Agreement”) and
a Quota Purchase Agreement dated February 28, 1997 between ADC and ADC Affiliate
(“Quota Purchase Agreement”).
136. Pursuant to the Loan and Transfer Agreement:
• ADC acknowledged receipt of a loan in the principal sum of US$16.765 million
from ADC Affiliate;
• ADC agreed to assign, transfer and convey to ADC Affiliate all of its rights, title
and interest in and to the ADC quotas and the Promissory Note as soon as
practical following the giving by ATAA of the ATAA’s consent; and
• ADC Affiliate agreed to accept such assignment, transfer and conveyance.
137. Furthermore, ADC and ADC Affiliate agreed in Section 1 of the Quota Purchase
Agreement as follows:
“Upon the terms and subject to the conditions contained herein, the Parties
agree that in consideration of the loan which ADC Affiliate provided to
ADC in the amount of US$ 16,765,000 (the “Loan Amount”) pursuant to the
Loan and Transfer Agreement referred to above:
(a) ADC hereby sells and delivers to ADC Affiliate, and ADC Affiliate
hereby purchases the Sale Quotas together will all rights and interest
in the Sale Quotas; and
(b) ADC hereby assigns, transfers and conveys to ADC Affiliate, all of its
rights, title and interest in the Fixed Rate Promissory Note issued by
the Project Company to ADC pursuant to the Release and Note
Agreement dated February 27, 1997 entered into between the Project
23
Company and ADC, which assignment is accepted by ADC Affiliate
hereby.”
138. The assignment was completed for all purposes when ADC assigned to ADC
Affiliate, and ADC Affiliate assumed, the rights and obligations of ADC under the
Quotaholders' Agreement pursuant to the Assignment and Assumption Agreement dated
February 27, 1997 between the ATAA, ADC and ADC Affiliate.
139. Each of ATAA and the Project Company consented in writing to the assignment by
ADC to ADC Affiliate of the quota, the note and the Quotaholders' Agreement and all
associated rights, titles and interests. Such written consent was granted in Section 4.2 of
the Receipt and Acknowledgement dated February 27, 1997:
“4.2 Assignment. Except as otherwise expressly provided herein, neither
this Agreement nor any right or obligation arising hereunder or by reasons
hereof shall be assignable by any party hereto without the prior written
consent of the other parties hereto. Notwithstanding the foregoing, (a) the
ATAA may assign its rights and obligations under this Agreement to any
successor entity entrusted with the operation of the Airport that is a legal
successor to the ATAA and assumes such rights and obligations in writing
and (b) each of the ATAA and the Project Company hereby consent to the
proposed assignment by ADC to ADC Affiliate Ltd. of all of the Quotas
owned by ADC in the Project Company, all of ADC's rights under the
Quotaholders' Agreement and all of ADC's right, title and interest in and to
the Note [emphasis added], provided that ADC guarantees the obligations
of ADC Affiliate Ltd. under the Quotaholders' Agreement by instruments
reasonably satisfactory to the ATAA.”
140. ADC guaranteed the obligations of ADC Affiliate under the Quotaholders'
Agreement in Section 2 of the Assignment and Assumption Agreement. Finally, ADC
Affiliate's status as Quotaholder in the Project Company since 28 February 1997 is
confirmed by Hungary's Company Register.
141. As a quotaholder of the Project Company, ADC Affiliate’s return on its investment
was governed by the Regulatory Framework adopted by ATAA and the Project Company
as Schedule C to the Operating Period Lease. Section 4.1 of the Regulatory Framework
defines the IRR as follows:
“4.1 Definition
The Internal Rate of Return (“IRR”) is defined as the discount rate that
equates the discounted value of a stream of cash flows to the cost of the
investment that produced the cash flows, calculated over the entire life of
the investment.
Calculations of IRR shall be made by reference to each Quotaholders'
initial equity investments (US$ 16,765,000 in the case of the ADC
Parties), with any dividend, interest or other distribution or payment
24
(including return of capital, redemption of note or repayment of principal
on the note) or rentals payable pursuant to the Operating Period Lease
being treated as part of such Quotaholders' return and not as reducing the
base reference amount on which the return is to be calculated. […]”
142. Section 4.1 of the Regulatory Framework thus provided that “[c]alculations of the
IRR shall be made by reference to each Quotaholders’ initial equity investments
(US$16,765,000 in the case of the ADC Parties) …”, with payments under the Promissory
Note being treated as part of ADC Affiliate’s return. The Claimants contend that, at the
time, the Parties considered the Promissory Note as part of one single equity investment in
the Project Company, and that this equity investment was in the amount of US$16.765
million. The Respondent originally disputed this contention but following Dr. Hunt’s
Report (see below), this is no longer disputed.
143. In addition, the Regulatory Framework established a Target IRR of 15.4% (in Section
4.2) with an upper limit of 17.5% (Section 7.0). It also set out a procedure for devising the
Business Plan for the Project Company so that the Target IRR would be met through the
adjustments of Regulated Rates and Charges (Section 5.0), and committed the ATAA to
implement such adjustments (Section 6.0).
144. The Regulatory Framework further provided that the Annual Business Plan for the
first year of operation would set the initial Regulated Rates and Charges to yield an IRR of
15.4%. In subsequent years, if the IRR turned out to be higher than 15.4% but not
exceeding 17.5%, the initial Regulated Rates and Charges would remain unchanged.
145. Finally, the Quotaholders' Agreement, like the Regulatory Framework, considered the
payment of dividends, rental payments and payments under the Promissory Note as
equivalent for purposes of calculating the IRR:
“7.2 Limitation on Dividends, Rental Payments and ADC Notes
(a) The Quotaholders in the Project Company shall be entitled to receive
dividends in proportion to their Quotas from the after-tax profits of the
Project Company determined by the Quotaholders' Meeting, provided that
when the actual receipts by the Quotaholders which are ADC Parties,
collectively, of dividends after any required withholding or other applicable
tax (Net Dividends), any refund of withholding tax or other distributions and
loan payments (including distributions of capital and payments of the
principal of or interest (after withholding tax) on any ADC notes) and
payments of rentals, if any, reach an amount representing an IRR (as defined
in the Regulatory Framework) of 17.5% on their collective initial equity
investment (i.e., initially US$16,765,000), calculated as described in the
Regulatory Framework, all additional future distributions that would
otherwise accrue to the ADC Parties and their Affiliates or their transferees
shall be waived by them and shall be retained by the Project Company and set
aside as an asset reserve fund to be used for the improvement or renovation of
the Terminals. […][emphasis added]”
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2. ADC & ADMC Management’s Investment
146. ADC's Tender provided for management fees payable to ADC (in the event, ADC &
ADMC Management), calculated as 3% of Airport Project revenues (net of interest
income). These fees were designed to compensate ADC (ADC & ADMC Management)
for the provision of management expertise to the Airport Project. The Project Company
entered into the Terminal Management Agreement with ADC & ADMC Management as
part of the Project Agreements executed in February 1997. It is pursuant to this agreement
that ADC & ADMC Management provided Management Services (as defined in the
Terminal Management Agreement) to the Project Company.
147. The Terminal Manager was obligated to provide Management Services both before
and after the Operations Commencement Date. The term of this agreement commenced on
the date of execution and not on the Operation Commencement Date. This distinction is
important:
• The Management Services that the Terminal Manager was obligated to provide
before the Operations Commencement Date were performed on its behalf by
Mr. Huang and his associates, between February 1997 and December 1998.
• The Management Services that the Terminal Manager was obligated to provide
after the Operations Commencement Date were performed on its behalf by the
employees of the wholly-owned Hungarian subsidiary of ADC & ADMC
Management, an entity named ADC & ADMC Management Hungary Ltd.
148. The management fee of 3% payable in each calendar year commencing on and after
the Operations Commencement Date (pursuant to Section 4.1(a) of the Terminal
Management Agreement) was designed in large part to compensate the Claimants for the
services that had been rendered by the Terminal Manager (by Mr. Huang and his associates
on its behalf) before the Operations Commencement Date, and otherwise served as an
incentive payment linked to the performance (i.e., the revenues) of the Project Company.
149. With respect to the Management Services provided after the Operations
Commencement Date, the Terminal Manager incurred only minimal overhead costs and
expenses associated with the on-going supervision and knowledge transfer it provided,
inasmuch as the salaries and benefits of the employees in Hungary who provided the
on-site Management Services during the Operating Period were paid by the Project
Company, pursuant to Section 4.1(b) of the Terminal Management Agreement.
150. The management team employed by the Terminal Manager was composed of 10
individuals, namely:
A. Mr. Mihaly Farkas, who replaced Mr. Tamás Tahy as Managing Director of the
Terminal Manager beginning in September 1999;
B. Ms. Krisztina Meggyes, chief accountant;
26
C. Ms. Edina Tiszai and Ms. Krisztina Törteli, accountants;
D. Mr. György Onozó, technical manager;
E. Ms. Orsolya Bárány, commercial and technical assistant;
F. Ms. Noémi Devecseri and Mr. Levente Tordai, commercial assistants;
G. Ms. Mariann Bördös, who served as Mr. Huang’s assistant; and
H. Dr. Béla Keszei, financial and administration manager.
151. Dr. Keszei is an economist who served in a role equivalent to the company’s
controller. Dr. Keszei, together with Ms. Meggyes and the two accountants, were
responsible for all financial accounting, reporting and taxation matters (billing, accounts
receivable, accounts payable, etc.). They and the other members of the staff were under the
supervision and direction of Mr. Tahy.
152. Mr. Onozó and Ms. Bárány were in charge of managing the relationship with Airport
tenants as well as the various departments of the ATAA on all technical aspects of the
operation of the Terminals. Mr. Tordai and Ms. Devecseri used data received from the
airport to develop the statistics that served as the basis for billing and certain commercial
arrangements at the airport, such as number of passengers on each flight and the time each
airplane spent on the tarmac.
F. Construction of Terminal 2/B
153. The Project Company and the ATAA entered into a turnkey contract with CCC for
the construction of Terminal 2/B on December 19, 1996. When the credit facility
transaction closed in February 1997, monies were disbursed to the Project Company in
order to fund the construction. CCC broke ground in March 1997 and construction
proceeded through 1997 and 1998.
154. Terminal 2/B was commissioned and transferred to the Government of Hungary on or
about December 25, 1998. Both the ATAA and the Project Company signed the
Taking-Over Certificate dated November 25, 1998. The completed Terminal 2/B was
opened to the public on or about 19 December 1998.
G. Business Planning Process for the Project Company
155. The original business plan for the Airport Project was contained in ADC’s Tender
dated April 29, 1994. This business plan was developed by ADC in cooperation with
KPMG. In order to carry out the financial analysis of the project, KPMG developed a
computerized financial model which generated projections for the duration of the Project.
The original and subsequent business plans projected the Project Company’s financial
results for the entire twelve year operating period (1997-2009), subject to further extension.
27
156. An updated version of the business plan was prepared by KPMG in December 1996.
The parties referred to this updated business plan as the “feasibility study,” and it was
defined in the Master Agreement as the “KPMG Feasibility Study”.
157. Pursuant to Section 2.0 of Schedule C to the Operating Period Lease, the KPMG
Feasibility Study served as the basis for the Project Company’s initial “Annual Business
Plan,” as defined in Section 4.1 of the Operating Period Lease. Section 2.0 of Schedule C
to the Operating Period Lease defines the procedure to be followed in order to develop
subsequent Annual Business Plans for the Project Company. The highlights of that
procedure are as follows:
• Prior to each operational year of the Project Company, the Terminal Manager was
to prepare and submit to the ATAA a new draft Annual Business Plan covering
each financial year, or portion thereof, for the remainder of the Term;
• The ATAA had twenty days, following submission of such first draft, to comment
in writing on the draft;
• If no comments were made, such draft Annual Business Plan was to be submitted
to the Quotaholders’ meeting for approval;
• If comments were made, a second (or third) draft would be produced by the
Terminal Manager following consultations between the ATAA, the Terminal
Manager and the Project Company; and
• The agreed draft of the Annual Business Plan would be submitted to the
Quotaholders’ meeting for approval.
158. In keeping with the procedure set out in Schedule C of the Operating Period Lease,
the Annual Business Plans for the years 1999 through 2002 were each approved by the
Quotaholders as follows:
• The Quotaholders approved the Annual Business Plan for the year 1999 on
October 9, 1998;
• The Quotaholders approved the Annual Business Plan for the year 2000 on
September 13, 1999; and
• The Quotaholders approved the Annual Business Plan for the year 2001 on
October 2, 2000.
159. Regarding the Annual Business Plan for the year 2002, the first paragraph of the 2002
Business Plan describes the drafting and review process for the document as follows:
“Pursuant to the Regulatory Framework, the Terminal Manager is required
to prepare and submit to the ATAA a new draft Annual Business Plan by
May 31 of each year. Accordingly, ADC & ADMC Management Ltd. (the
“Terminal Manager”) submitted the first draft of the Annual Business Plan
28
dated May 29, 2001. The ATAA provided its comments on the first draft by
letter dated June 20, 2001. The Terminal Manager submitted the second draft
on June 30, 2001. Based on the request by the ATAA, the Terminal Manager
submited the third draft on August 23, 2001. On September 21, 2001, the
ATAA requested further modifications to the third draft. The Terminal
Manager submitted the Fourth Draft on October 12, 2001. Upon receipt of
comments on November 15, 2001, the terminal manager submits this Fifth
Draft for approval of the Quotaholders.”
160. The Claimants contend that the Quotaholders approved the Annual Business Plan for
the year 2002 on December 11, 2001. The Respondent disputes this contention. By letter
dated December 11, 2001 from Mr. Somogyi-Tóth, Acting Director of ATAA, addressed to
Mr. Tamás Tahy, the Commercial Director of Ferihegy ADC Limited, it was stated as
follows:
“We have received the 5th
version of the Business Plan for 2002. Thank you
very much for your taking into consideration our comments when revising it.
We inform you that we accept the 5th
version of the Business Plan and we ask
you to do your best to perform all the tasks defined in the plan.
At the same time we ask you again to consult with MALÉV regarding the
planned parking (bridge) fee structure and please to inform us about the
results of this discussion at your earliest convenience. In addition we ask you
to update the exchange rate forecast for the whole project period when
preparing the next year plan.”
In the light of this letter, the Tribunal fails to see how it could be contended that the Annual
Business Plan for the year 2002 was not approved. The Tribunal is satisfied that it was.
H. Project Company’s Financial Results
161. The Project Company began reporting its financial results as of its establishment in
1995. The Project Company’s results from 1995 through 2001 were presented in audited
financial statements as follows:
• Independent auditors’ report on Project Company’s 1995 Annual Report dated
May 30, 1996;
• Independent auditors’ report on Project Company’s 1996 Annual Report dated
February 4, 1997;
• Independent auditors’ report on Project Company’s 1997 Simplified Annual
Report dated May 4, 1998;
• Independent auditors’ report on Project Company’s 1998 Simplified Annual
Report dated May 31, 1999;
29
• Independent auditors’ report on Project Company’s 1999 Annual Report dated
March 31, 2000;
• Independent auditors’ report on Project Company’s Financial Statements for
2000, dated March 14, 2001; and
• Independent auditors’ report on Project Company’s 2001 Annual Report dated
August 27, 2002.
162. Two types of distributions were made by the Project Company to ADC Affiliate. The
first consisted of payments on the Promissory Note. These payments were made semiannually.
The second consisted of dividends from the profit of the Project Company,
which were paid around March of each year (based on the profit of the previous year). The
management fees payable to ADC & ADMC Management were paid semi-annually, after
the semi-annual payments of debt service.
163. The Claimants contend that the financial results of the Project Company generally
show that it was performing over and above the projections in the Business Plans. The
Tribunal accepts that this was so.
I. Project Company’s Operations from 1999 through 2001
164. The primary objective of the Project Company, after completion of the construction
of Terminal 2/B and modifications of Terminal 2/A, was to perform or arrange for the
performance of what the Operating Period Lease defined as Entrepreneurial Operations,
and it was entitled to collect the revenues accruing from these Entrepreneurial Operations
(defined in the Operating Period Lease as Terminal Revenues). These included passenger
terminal usage fees, passenger handling activity fees, aircraft parking fees, ground handling
fees, space rentals within the Terminals, retail activity fees, including duty-free outlets,
revenues from advertising, within and on the exterior walls of the Terminals, revenues from
business centre and VIP lounges, etc.
165. Section 4 of the Operating Period Lease set out the covenants of the Project
Company, which included:
(a) submitting annual business plans (prepared by the Terminal Manager in
consultation with the Project Company) to the Quotaholders of the Project
Company for their final approval;
(b) conducting the Entrepreneurial Operations and the design, financing and
construction of any Terminal improvement authorized in any Annual Business
Plan or otherwise undertaken by it in a diligent workmanlike and commercially
reasonable manner in accordance with Hungarian law;
(c) using its best efforts to promote and optimize commercial revenues at the
Terminals;
30
(d) promoting the airport internationally so as to maximize potential air traffic and
in connection therewith using its best efforts to create overseas hub operations
at the airport; and
(e) after soliciting bids, awarding retail franchises and entering into contracts for
goods and services on a prudent and businesslike basis with the view to the
profitable operation of the Terminals.
166. Project Company staff consisted of the two Managing Directors appointed by the
Quotaholders, the Commercial Managing Director appointed by ADC Affiliate, and the
Operations Managing Director appointed by the ATAA.
167. The Project Agreements gave the Terminal Manager (i.e., ADC & ADMC
Management) primary day-to-day responsibility for managing, administering, coordinating
and ensuring the proper and efficient performance, on behalf of the Project Company, of
most of the Entrepreneurial Operations, and for collecting the Terminal Revenues.
168. ADC & ADMC Management Hungary Kft. had a staff of ten individuals as of
December 31, 2001. All of these individuals were Hungarian nationals.
169. In keeping with industry practice, the Project Company's operations and performance
were closely monitored, notably by the syndicate of banks lending to the Project, the
Project Company's auditors, and the Ministry of Finance in its capacity as the guarantor of
the project loan. Pursuant to the Credit Agreement, the Ministry of Finance appointed CIB
Bank as its “financial adviser” to review and monitor the financial performance of the
Project Company during the term of the Facility.
170. There were at least three audits or inspections of the Project Company:
• In 1998, the Government Control Office investigated the Project's contractual
system to determine whether it was lawful, and concluded that it was.
• In 2000, Ernst & Young was retained by the ATAA to perform a financial and
business audit of the Project Company, and concluded that the Project was
“particularly favourable” for the ATAA.
• In March 2001, the Supervisory Board of the Project Company retained its own
outside expert to conduct “a comprehensive review” of the Project Company.
171. In 2001, the ATAA launched an investigation whose objective was to gather detailed
information concerning many aspects of the Project Company.
J. Transformation of the ATAA, Legislative Amendments and the
Decree
172. In 1999, the Ministry of Transport prepared a Proposal for the Government's Air
Transportation Strategy, which requested that plans be drawn up to transform the ATAA.
The ATAA was a State budgetary organ. The ATAA had two principal tasks: air traffic
31
control and the operation of the Airport. There had been concern that these two functions
should be separated to prevent possible conflicts in decision-making and to ensure
transparency in financial matters. It was also necessary to separate these two functions to
comply with international and regional requirements and standards.
173. On November 25, 1999, a Ministerial Commissioner was appointed by the Ministry
of Transport to prepare a plan for transformation of the ATAA.
174. The Government developed a national aviation strategy, embracing the entire aviation
sector, of which part of its programme was to align with and implement EU law within the
aviation sector in preparation for accession to the EU.
175. This national aviation strategy was adopted on April 14, 2000, when the Government
passed Resolution No. 2078/2000 on The Strategic Tasks of the Development of Air
Transport. The Resolution was published in the official Gazette “Collection of
Resolutions”. This set out a 9-point programme to implement the national aviation strategy
and harmonise the aviation sector with EU law. The plan included transformation of the
ATAA. The Minister of Transport was in charge of the transformation. The Government
Resolution required transformation to be complete by January 31, 2002.
176. The Ministry of Transport appointed a Management Committee to prepare, discuss,
and implement proposals for transformation of the ATAA.
177. From autumn 2001, a change took place in the management of the ATAA in order to
prepare for its transformation: Mr. Somogyi-Tóth remained Acting Director in charge of
the day-to-day operations; Mr. Gansperger became responsible for starting up Budapest
Airport Rt (the new company) (“BA Rt”) and the commencement of its operations; and Mr.
Istvan Mudra became responsible for starting up HungaroControl (Mr. Mudra had been the
Deputy Director of Air Traffic Control).
178. On September 20, 2001, BA Rt was established. On October 25, 2001, BA Rt was
registered in the Court of Registration in Budapest.
179. Decree No. 45/2001 (XII.20) KöViM (“Decree”) was issued on December 20, 2001,
by the Minister of Transport (“KöViM Minister”). It was issued with the agreement of the
Minister of Finance, the Minister of the Prime Minister’s Office, the Minister of the
Interior, the Minister of Health, the Minister of Defence and the Minister of Environment
Protection.
180. The Decree was adopted under the authority of the Act No. XCVII of 1995 on Air
Traffic (“Air Traffic Act”), following amendments made to the Air Traffic Act by Act No.
CIX of 2001 on the Amendment of Various Traffic-Related Laws (“Amending Act”).
181. The Amending Act was introduced in Parliament in the form of a Government Bill in
September 2001, and, following a series of amendments to the Bill, it was adopted on
18 December 2001. Section 19 of the Amending Act introduced an amendment to Section
45 of the Air Traffic Act by adding thereto, among others, Section 45(5). Section 45(5) of
the Air Traffic Act contains the prohibition, repeated in Section 1(5) of the Decree, against
32
the transfer by ATAA (or its successor) of the activities of the type previously performed
by the Project Company and the Terminal Manager (“Project Company Activities”) to any
third party, e.g., the Claimants.
182. Section 45(5) of the Air Traffic Act found its way into the Bill due to a subsequent
Amendment Motion introduced by a Government MP, Dr. Dénes Kosztolányi. The
Amendment Motion, introduced on November 8, 2001, advanced as justification, the
following reasoning:
“Reasoning
The activities listed in Section (1) have substantial influence on the operation
and development of Budapest-Ferihegy International Airport, and thus the
State has such strategic interest connected to these activities that the law itself
specifies that the operator performing such activities may only be an
organization in which the State is the majority owner, or if it is a minor
shareholder then it owns preference shares, or the organization is a
concession company. If any of the activities specified in Section (1) may be
transferred to a third party under a contract it may not be ensured that the
strategic requirements of the State are fulfilled, in other words, the limitations
and restrictions established under Section (1) may be circumvented pursuant
to a contract concluded with a third party.”
183. On November 28, 2001, the same MP who had submitted the Amendment Motion
submitted a “Supplementary Amendment Motion” in which he recommended that
Section 45 of the Air Traffic Act be amended by the addition of two more paragraphs,
paragraphs (6) and (7), in addition to paragraph (5). The reasoning for this Supplementary
Amendment Motion reads as follows:
“Reasoning
The aim of the amendment motion is to implement the Community
liberalization of air transport with respect to the ground service market when
our country joins the European Union.
The amendment establishes the obligation for service providers with
significant market power to enter into a contract. Pursuant to the Civil Code
conclusion of a contract can be rendered obligatory by a legal regulation.”
184. The plenary session of the Hungarian Parliament considered the Amendment Motions
on December 11, 2001. There were a total of seventeen Amendment Motions relating to the
Bill. Parliament accepted the Motion of Dr. Kosztolányi as contained in the Supplementary
Amendment Motion. On December 18, 2001, two days before the issuance of the Decree,
the Hungarian Parliament voted in favour of the consolidated text of the Bill.
185. On December 21, 2001, the Project Company was informed of the Decree upon
reception of a copy of same by Mr. Tahy. On Saturday, December 22, 2001, the Project
Company received a letter from Mr. Gansperger and Mr. Gábor Somogyi-Tóth further
33
notifying it of the Decree. Mr. Gansperger signed the letter in his capacity as
representative of the new Budapest Ferihegy International Airport Management Ltd.
(“Joint Stock Co.”) and statutory successor of ATAA, and Mr. Somogyi-Tóth signed as
representative of ATAA.
186. The letter stated that all operations and related activities of the Airport would be taken
over effective January 1, 2002, by the Joint Stock Co. The translated text of this letter
reads as follows:
“Dear Mr. Tahy,
As you probably know, issued No.149 of the Hungarian Official Gazette,
2001, published Transport and Water Management Ministry Order
No.45/2001 (XII.20) of the Minister of Transport and Water Management on
the abolition of the Air Traffic and Airport Directorate and on the creation of
HungaroControl Hungarian Air Traffic Service. Said ministerial order
designates the Budapest Ferihegy International Airport Management JointStock
Co. (hereinafter referred to as “JS Co.”) and HungaroControl
Hungarian Air Traffic Service as the legal successors to the Air Traffic and
Airport Directorate as regards all operations and management activities and
all related rights and obligations, as well as all contracts made with the State
Treasury Asset Management Directorate. Furthermore, paragraph (5) of
Article 1 of the order unequivocally states that as of January 1, 2002, the JS
Co. may not cede or transfer to any third parties any of the operations or
activities performed up till now by the Ferihegy Passenger Development Ltd.
Co. pursuant to the lease agreement concluded on February 27, 1997 between
the Air Traffic and Airport Directorate and the Ferihegy Passenger
Development Ltd. Co (“FUF”).
The effect of said ministerial order naturally also extends to the Terminal
Management Agreement signed on February 27, 1997 by the ATAD, the FPD
Ltd. Co., and the ADC&ADC Management Ltd. Co., as well as to the
contracts held by the FPD Ltd. Co. concerning the operations and leasing of
Terminal II/A and II/B.
In view of the above, therefore, we hereby notify you pursuant to the
provisions of paragraph (1) of Article 312 of the Civil Code that the further
performance of the above contracts have been rendered impossible, and thus
the leasehold deed, the Terminal Management Agreement, the ATAD Service
Agreement concluded between the FPD Ltd. Co. and the ATAD, and the lease
agreements – including all Appendices and Supplements – shall lapse and
become void as of January 1, 2002.
The activities covered by the leasehold deed, the Terminal Management
Agreement and the Service Agreement will be wholly taken over as of January
1, 2002 by the JS Co. with full competence. We respectfully suggest that the
appropriate executive officers of the JS Co. and the FPD Ltd. Co. should meet
34
in view of carrying out the appropriate consultations in the matter for the
purpose of closing off business in progress and for the settlement of accounts.
Please be further informed of the fact that in the interest of carrying on with
normal business operations, we are also sending notice to all contractual
partners of the FPD Ltd. Co. concerning the developments and the resulting
impossibilities to continue with the performance of said contracts so as to
facilitate a smooth and speedy changeover.”
187. Also on December 22, 2001, ADC & ADMC Management received a similar letter
from the Joint Stock Co. notifying it of the Decree and its principal provisions, including
Article 1(5). The letter concluded that the Terminal Management Agreement between the
Project Company, ATAA and ADC & ADMC Management:
“... shall similarly lapse and become void, and the activities performed by
your company will be taken over and performed by the JS Co. as of January 1,
2002, with full competence. In order to facilitate the maintenance of normal
business operations, it is respectfully suggested that we should begin
consultations on the transfer without delay.”
188. On December 27, 2001 (the first business day following Christmas), Mr. Tahy was
informed that the Project Company’s offices in Terminal 2/B had to be vacated within three
business days, namely by 2 January 2002.
189. As a result of the Amending Act, the Decree and the actions taken in reliance thereon,
the Project Company was no longer able to operate the Terminals and collect the associated
revenues.
190. Since the Decree, ADC Affiliate has received no dividends on its Quota and no
payments on the Promissory Note from the Project Company (including dividends due
from the Project Company’s 2001 profit), and ADC & ADMC Management has received
no management fees from the Project Company (including management fees due for the
second part of 2001).
K. Developments after the Decree
1. Separation of the Functions of the ATAA
191. On January 1, 2002, ATAA’s function were separated and allocated to BA Rt and
HungaroControl as a result of the Amendment to the Air Traffic Act and the subsequent
Decree. HungaroControl, according to the Decree, became “the legal successor with
respect to the management of air traffic, the performance of other aviation services and
related activities”. BA Rt, on the other hand, became “the legal successor with respect to
the operation of the Budapest Ferihegy International Airport and related activities”.
192. The separation of the ATAA’s functions and the establishment of HungaroControl
were deemed to be necessary to modernize Hungary’s aviation industry and to harmonize
the aviation sector with EU law.
35
2. Passenger Traffic
193. Since 2001, passenger traffic at the Airport has increased substantially year over year,
and is projected to continue to grow:
Period
Total Passengers
(million)
2002 4.5
2003 5.0
2004 6.5
2005 7.5
2008 10
2010 Above 11
194. Data for the first quarter of 2005 show an increase in passenger traffic of 35.6% over
the same period in 2004. This is triple the average growth in passenger traffic in Europe.
195. According to IATA, Hungary will be the world’s third-fastest growing market during
the period 2004 through 2008, behind only China and Poland, with a projected annual
growth rate of 9.6%.
3. Parking Facility
196. Prior to the Decree, the Government hired a consultant to develop plans for a parking
garage. A request for proposals for architectural services in connection with a parking
facility dated April 23, 2004 was followed by a feasibility study for a parking facility
prepared by PricewaterhouseCoopers dated September 2004.
4. Terminal Expansion and Reconstruction
197. Reconstruction of Terminal 1 started in October 2004 and was completed on July 15,
2005. According to a press release from Budapest Airport, this is the "first stage" in the
"long-term development" of the Airport.
198. According to statements reported in the March 30, 2005 issue of the Budapest
Business Journal, the deputy CEO of Budapest Airport, Mr. Balazs Bella, acknowledged
that the Airport will soon be facing terminal capacity problems. He noted that "further
extension [of Terminal 1] is hindered by the fact that [Terminal 1] is listed as a building
under national monument protection." He confirmed that the Airport plans to "inaugurate"
a new Terminal 2/C in 2009. Mr. Bella also indicated that plans were under way to
improve public transit and road accessibility to the Airport.
L. The Privatization of Budapest Airport
199. In anticipation of privatization, on June 1, 2005, Hungary amended Section 45(1) of
the Air Traffic Act so that the majority shares in the Joint Stock Co. could be owned by a
36
foreign entity. On June 6, 2005, the Government of Hungary issued an invitation to tender
for Budapest Airport Rt. The subject of the tender was the sale of shares representing 75%
minus one vote of the registered capital of Budapest Airport Rt., which is currently
wholly-owned by the Hungarian Privatization and State Holding Company Ltd. (“ÁPV
Rt.”).
200. Pursuant to Article 5.2 of the invitation to tender, eleven interested parties submitted
written non-binding expressions of interest to ÁPV Rt. by the deadline of June 28, 2005.
201. On July 12, 2005, ÁPV Rt. announced that all but one of these parties were invited to
participate in the first round of the tender, namely the submission of non-binding bids by
August 9, 2005. On August 26, 2005, ÁPV Rt. invited five bidders from among those who
had submitted timely non-binding bids to participate in the second round of the tender,
namely the submission of legally binding bids by November 2, 2005.
202. In the first round, the financial bids of the bidders were between HUF 202 billion
(US$1.01 billion) and HUF 390 billion (US$1.96 billion).
203. On September 29, 2005, the Budapest Metropolitan Court invalidated the tender
process on the grounds that the workers at Budapest Airport Rt. were not given a sufficient
opportunity for input into the process. On October 20, 2005, ÁPV Rt. recalled the call for
final binding bids from the five bidders it had invited into the second round of the
invalidated process.
204. On October 28, 2005, ÁPV Rt. announced a closed, single-round tender for the sale
of Budapest Airport Rt. (75% minus one vote) to replace the cancelled process. The
bidders invited to participate in the restricted tender were those that had been selected for
the second round of the previous tender, namely:
• Fraport AG Frankfurt Airport Worldwide (Germany) – operator of the Frankfurt
and Frankfurt-Hahn airports, among others;
• BAA international Ltd. (United Kingdom) – operator of Heathrow, Gatwick and
Standsted airports in London, among others;
• Hochtief Airport GmbH and Hochtief AirPort Capital (Germany) – operators of
the Düsseldorf, Hamburg and Athens airports, among others;
• Macquarie Airports (Australia) – operator of the Rome, Brussels, Birmingham
and Sydney airports, among others; and
• Copenhagen Airports (Denmark) – operator of Copenhagen airport, among others.
205. The five bidders were invited to make their bids by November 14, 2005. Three
bidders submitted binding bids by the deadline: BAA, Hochtief and Fraport. The highest
bid was submitted by BAA, which offered more than HUF 400 billion (US$1.86 billion).
On 8 December 2005, ÁPV Rt. announced its ranking of the bids based on technical and
financial criteria. BAA was ranked first.
37
206. On December 18, 2005, ÁPV Rt. announced that it had signed a privatization contract
for Budapest Airport Rt. with BAA (International Holdings) Ltd., for US$ 2.23 billion (£
1.26 billion).
207. On December 22, 2005, BAA (International Holdings) Ltd. closed the deal with BA
Rt. Under the terms of the deal, BAA acquired a 75% minus one share stake in the Airport
as well as moveable assets and agreed on a 75-year asset management contract with
Hungary.
208. The press in Hungary has reported that Hungary’s opposition Fidesz party has said
that it would renationalize the Airport if it wins power in the elections to be held in the
spring of 2006.
209. An illustration of the relevant contracts was set out in Claimants’ Chart 3 which was
submitted at the hearing and helpfully agreed by the Respondent. For ease of
understanding the complex structure relevant to this case, the Tribunal sets this out as
Appendix 1 to this Award.
M. Arbitration Proceedings Brought by the Project Company
210. In November and December 2005, the Project Company commenced four arbitration
proceedings against the Joint Stock Co., which is the legal successor of the ATAA.
211. In the arbitration proceedings initiated on November 29, 2005, the Project Company
seeks additional relief amounting to approximately US$ 19.3 million in compensation for
advance lease payments under the Operating Period Lease allegedly paid by the Project
Company to the ATAA in excess of the actual utilization period of the Terminals.
212. In the arbitration proceedings initiated on December 15, 1005, the Project Company
claims compensation for certain development and repair works under the Operating Period
Lease in an amount of approximately US$ 145,000.
213. The other two arbitration proceedings were both initiated on December 21, 2005. In
one of these two proceedings, the Project Company claims damages in a preliminary
amount of approximately US$ 101.5 million on the grounds of an alleged breach of the
Operating Period Lease by the Joint Stock Co. and consequential losses of income
emanating from rights under the Operating Period Lease. In the other, the Project
Company demands refund of VAT allegedly charged erroneously by the ATAA in an
amount to be determined following submission of an itemised accounting.
IV. CONTENTIONS OF THE PARTIES
A. Contentions of the Claimants
214. The Claimants contend that the construction phase of the Project was completed
without any significant problems or delays. The Project Company operated Terminal 2/A
and 2/B efficiently, effectively and profitably.
38
215. The Claimants claim that under the business structure set forth in the Project
Agreements, they constructed and operated Terminals of world class standards.
216. The Claimants claim that the parties put in place a business planning process that was
rational, consensual and conservative. The annual business plans for the Project Company
were subject to discussion and revision before, in each case, being expressly approved by
the ATAA and ADC Affiliate, the Project Company’s two quotaholders.
217. The Claimants contend that the distributions to ADC Affiliate and the management
fees paid to ADC & ADMC Management were strictly in accordance with the agreements
in place between the parties and were reasonable in light of the risks assumed by the
Claimants and the value of the know-how transferred to the Airport and the Government
partners.
218. The Claimants contend that the Respondent’s issuance of the Decree and the
following taking-over of all activities of the Project Company in the airport by BA Rt
constitute an expropriation of the Claimants’ investments in Hungary.
219. The Claimants contend that the Respondent’s expropriation of the Claimants’
investments, in December 2001, was unexpected, unjustified and uncompensated. As a
result of the expropriation, the Project Company has been unable to pursue the sole purpose
for which it has been established, namely the operation of the Terminals.
220. The Claimants contend that by reason of such expropriation, ADC Affiliate has been
deprived of the stream of dividends on its quota and the payments due on the Promissory
Note from the Project Company, and ADC & ADMC Management has been deprived of
the management fees payable to it by the Project Company.
221. The Claimants also contend that had the expropriation not occurred, the Project
Company would have benefited from the improvements in the market for commercial air
travel, and the Project Company would have had the opportunity to participate in the
financing, building and operation of the proposed new Terminal 2/C or in the renovation
and reopening of Terminal 1, as well as in the construction and operation of a new parking
facility.
222. The Claimants contend that the expropriation of the Claimants’ interest constituted a
depriving measure under Article 4 of the BIT and was unlawful as: (a) the taking was not in
the public interest; (b) it did not comply with due process, in particular, the Claimants were
denied of “fair and equitable treatment” specified in Article 3(1) of the BIT and the
Respondent failed to provide “full security and protection” to the Claimants’ investment
under Article 3(2) of the BIT; (c) the taking was discriminatory and (d) the taking was not
accompanied by the payment of just compensation to the expropriated parties.
39
B. Contentions of the Respondent
223. The Respondent denies the Claimants’ claims and contentions in their entirety.
224. The Respondent claims that the Airport is an exclusive and non-negotiable asset of
the State, as stated in Section 36/A of the Air Traffic Act (Act XCVII of 1995) and the
Civil Code.
225. According to the Respondent, the Airport was managed by the ATAA, which was
under the administration of the Ministry of Transport, Communications and Water
Management.
226. The Respondent claims that ADC and the Claimants have not established a Terminal
of “world class standards”. They have not made it a hub airport, or attracted new carriers.
They have not provided management services. They have made minimal investment and
have taken on minimal risk.
227. The Respondent claims that neither ADC nor the Claimants took on any risk during
the construction phase.
228. The Respondent claims that the Claimants and ADC have received back to date
amounts in the order of US$20 million.
229. The Respondent claims that ADC recovered its bidding and preparation costs during
the construction phase.
230. The Respondent contends that the construction of Terminal 2/B was not completed on
schedule nor on budget and there were also problems with the renovation of Terminal 2/A.
231. The Respondent claims that ADC & ADMC Management did not fulfil its obligations
as the Terminal Manager. Rather, it was the ATAA that in reality managed and operated
the Airport.
232. The Respondent contends that following the legislative changes, especially the
issuance of the Decree, BA Rt has managed and operated the Airport.
233. The Respondent claims that BA Rt has offered to settle the accounts of the Project
Company, but ADC and the Claimants have failed to cooperate.
234. The Respondent claims that the Claimants mischaracterized the dispute between the
parties. Specifically the Respondent claims that the Claimants’ claims are claims for
damages for breach of contract and should be pursued against the Project Company,
through the dispute resolution procedures prescribed in the applicable agreements.
40
235. The Respondent contends that the Claimants have not been deprived of their rights in
the Project Company or under the Project Agreements. Nor have the Claimants been
deprived of theirs rights to seek redress from the Project Company.
236. Without prejudice to its contention that this Tribunal lacks jurisdiction, the
Respondent denies that it has violated the BIT.
237. In particular, the Respondent claims that it has not taken a measure that deprives the
Claimants of their investments.
238. In the alternative, the Respondent claims that even if the Respondent’s measure
deprived the Claimants of their investments, any such measure was lawful, in that it was in
the public interest, under due process of law, not discriminatory, and accompanied by
provision for the payment of just compensation.
239. In any event, the Respondent claims that it has not violated any other standards of
protection in the BIT, namely fair and equitable treatment, reasonable or nondiscriminatory
measure, and full security and protection (Article 3(1) and (2)).
240. The Respondent therefore claims that the Claimants are not entitled to the damages
claimed.
V. RELIEF SOUGHT BY THE PARTIES
A. Relief Sought by the Claimants
241. The Claimants claim that they are entitled to damages measured under the
international law standard of compensation for an unlawful taking.
242. The Claimants contend that due to the fact that actual restitution of the contractual
rights confiscated by the Respondent is impractical and considering Article 4 of the BIT in
the context of the relevant rules of international customary law, the Claimants are entitled
to (a) the consequential damages of the taking, plus (b) the greater of:
a. the market value of the expropriated investment at the moment of expropriation;
and
b. the sum of (x) the market value of the expropriated investment at the date of the
award, calculated with the benefit of post-taking information and (y) the value of
the income that the Claimant would have earned from the expropriated
investments between the date of the taking and the date of the award.
243. Based on the LECG Report, the LECG Supplemental Report and the LECG PostHearing
Report, all produced by Messrs. Abdala, Ricover and Spiller of LECG LLP, the
Claimants submit that the damages to which they are entitled under each calculation
approach as of 30 September, 2006 (including interest) as follows:
41
damages under the Time of Expropriation Approach US$ 68,423,638
damages under the Restitution Approach US$ 76,227,279
damages under the Unjust Enrichment Approach US$ 99,722,430
plus further interest as of October 1, 2006 until the date of payment.
244. The Tribunal notes that while the Claimants have continued to reserve their right to
claim consequential damages caused by the expropriation, which include, as submitted by
the Claimants, administrative and overhead costs and damages to the Claimants’ reputation,
such claims were never substantiated and pursued in the course of these proceedings. The
Tribunal therefore deems it appropriate to treat these claims as being effectively withdrawn
by the Claimants.
B. Relief Sought by the Respondent
245. The Respondent’s requests to the Tribunal are threefold.
246. First, the Respondent requests the Tribunal to dismiss the Claimants’ claims in their
entirety on grounds of lack of jurisdiction and/or inadmissibility and/or their lack of merit.
247. Second and alternatively, the Respondent requests a stay of the arbitration to allow
the Claimants to pursue their contractual remedies.
248. Third, in the event that the Tribunal should award compensation to the Claimants, the
Respondent requests as a condition of any payment to the Claimants and ADC, on its
behalf and on behalf of any companies controlled by ADC, that they first waive in writing
any and all rights they may have under the Project Agreement (including Promissory Note)
and transfer the 34% Quota in the Project Company to the Respondent (including any
rights to unpaid dividends, and any rights to share in the assets of the Project Company). In
a letter dated January 13, 2006 from Ogilvy Renault to the Bodnár Law Firm copied to the
Tribunal, Ogilvy Renault stated in response to the argument that the FUF arbitration
proceedings could lead to a double recovery:
“…this Tribunal has the discretion to fashion a remedy that would avoid any
risk of double recovery. For example, as was done in other ICSID cases, the
Tribunals award can provide that upon payment of the sum awarded by the
Tribunal to the Claimants in this case, ADC Affiliate must surrender its quota
in the Project Company to the Respondent. Indeed, paragraph 488 of the
Respondent’s Rejoinder contemplates precisely such an approach.”
249. On Day 1 of the Oral Hearing, at the end of his helpful opening submission, Mr.
Burmeister stated as follows:
“I may conclude with our prayers for relief, but only very briefly addressed.
They have been set out in the submissions and briefs.
42
I only want to stress one point, again, and this is basically the last one. In the
event that any award would be granted to the Claimants, this may only be
conditional upon the transferring back the share in the Project Company to
the Respondent, giving back the Promissory Notes they have received and
waiving any future rights in relation to the Project Agreements.”
Judge Brower then said he “expected those conditions would be agreeable to the
Claimants”.
Mr. Bienvenu then stated:
“You have seen the statement in our letter of January 13, 2006 subject to
payment.”
VI. FINDINGS OF FACT
A. Credibility of Witnesses
250. The Tribunal has no difficulty in accepting the evidence of the Claimants’ witnesses
of fact, Messrs Huang, Tahy and Onozó. They gave their evidence in such a way as to give
the Tribunal confidence that they could be relied upon. They all had intimate knowledge
with this matter - in Mr. Huang’s case, from inception of the Project to this arbitration.
Their oral evidence was consistent with their written statements and, to be fair, their
evidence was not seriously challenged in cross-examination.
251. The Respondent called three witnesses. Unfortunately for the Respondent, one of
these witnesses, Mr. Somogyi-Tóth, cast considerable doubt on the testimony of Messrs.
Gansperger and Kiss.
252. Dr. Kiss was asked when he first heard that the Project Company would be displaced
and its operations taken over. Given his then position as the General Director of the
General Directorate of Civil Aviation, which was at the time part of the Ministry of
Transport, he gave the surprising answer that it was not until January 2002.
253. Mr. Gansperger also denied that he had any prior knowledge of the takeover. He
maintained that the first he learned of the decision was when the legislation was adopted on
December 18, 2001. He was asked specifically whether he knew that the legislation was
contemplated prior to that date. He denied any such knowledge.
254. Mr. Somogyi-Tóth, on the other hand, told the Tribunal that all through the autumn
and early winter months of 2001 talk was in the air about the impending changes. He
confirmed that this possibility was being discussed between, inter alia, Messrs. Gansperger
and Kiss from the Transport Department. He further confirmed that both these gentlemen
were advocating in favour of the takeover.
43
255. It is the clear view of the Tribunal that Mr. Somogyi-Tóth’s evidence is obviously
correct and the Tribunal accordingly accepts it.
256. Even without his testimony, it would seem most unlikely that figures so involved as
Messrs. Gansperger and Kiss were not aware of such major impending changes. With the
evidence of Somogyi-Tóth, the Tribunal can be convinced that Messrs. Gansperger and
Kiss were well aware of what was being planned.
257. Having considered the evidence of Messrs. Gansperger and Kiss in the light of the
testimony not only of the witnesses of the Claimants but also that of Mr. Somogyi-Tóth, the
Tribunal has no doubt that the evidence of the Claimants’ witnesses is to be preferred when
there is any conflict with the Respondent’s witnesses. The Tribunal will deal with the
expert witnesses under the quantum section of this award.
B. The Nature of the Claimants’ Investment
258. The Tribunal is satisfied that Mr. Huang was the most competent witness to explain
the tender process and the negotiation of the Project Agreements. The Tribunal accepts his
evidence. The Tribunal is satisfied that the essence of this transaction never changed. The
deal discussed and agreed in 1995 was the same deal as executed in the suite of agreements
in 1997. The Tribunal accepts that the 1997 agreements involved a more complex
structure. However, it was proposed by the Hungarian side for reasons which they thought
necessary.
259. The Tribunal accepts that the return on equity contribution and management fees
were part of one package deal. The Tribunal accepts the evidence of Messrs Huang and
Ricover that this approach is prevalent in the airport industry.
260. It is worth noting that the competing Lockheed bid also contained such features. The
Claimants’ bid was the lowest and it is not now open to the Respondent to challenge these
matters which were voluntarily agreed at that time.
261. The Tribunal accepts that it was understood and agreed that expenses would be
incurred and work executed prior to the Operation Commencement Date because without it
the Project would have been delayed. The annual management fee was an integral part of
the return which the Hungarian party agreed to return to the Claimants. The Tribunal is
satisfied that a management contribution was made by ADC & ADMC Management. If the
management fee represented in part deferred compensation the Tribunal can see nothing
wrong with this. It seems clear from the management agreement that this would be the
case.
C. Complaints about the construction of the Terminal
262. Poor performance in the construction of Terminal 2B and the renovation of Terminal
2A has been hinted at as a possible reason why the agreements were terminated. It is clear
to the Tribunal that this was not the reason. The contemporary documents do not support
44
such a conclusion and the Respondent’s witnesses got no where near to establishing this as
a justification. At the best, it was a half-hearted ex post facto attempt at justification. The
Tribunal is satisfied that any problem that existed whether arising from construction or
management was sorted out in the normal course of events.
263. Finally, it is not without significance that the third-party consulting firm of BoozAllen
Hamilton referred to Terminal 2B shortly before the events of December 2001 as
“one of Europe’s safest and most modern establishments, which the Ministry of Transport
can deservedly be proud of” (sic).
Effect of takeover
264. The Tribunal accepts that since the Decree was issued ADC Affiliate Limited has
received no dividends on its quota and no payment under the Note. Further, the Terminal
Manager has received no management fees. Even dividends and management fees due
prior to the Decree have not been paid.
265. To add insult to injury, the Respondent caused, permitted or allowed BA Rt to claim
debt repayment from the Project Company. Even the Ministry of Finance has refused to
clarify the status of the project loan until this arbitration has been concluded.
266. It is also clear beyond any doubt that as from the date of the Decree the rights of the
Claimants ceased to exist (the very language used in the Information Memorandum
prepared for the purposes of the recent tender exercise that eventuated in the sale to BAA)
and that the Decree has resulted in a total loss of the Claimants’ investment in the Airport
Project.
D. Attempted Reasons for and Justification of the Decree
267. During the course of this arbitration, the Respondent has sought to rely on the
following justifications for the Decree:
(a) compliance with EU law;
(b) strategic interests;
(c) contractual non-performance by the Claimants;
(d) lack of operating license; and
(e) financial interest in terminating the Project Agreements.
(a) EU Law
268. As noted by the Claimants in their written closing submissions, two points have been
raised under this head. The first is that ground handling at the Airport had to be
harmonized with EU Directive 96/97 and the second is that air traffic control had to be
separated from airport operation services pursuant to EU law.
45
269. As to ground handling, the Tribunal accepts the evidence of Mr. Tahy, who told the
Tribunal that although the Project Company had responsibility for ground handling, it had
discharged this responsibility by entering into contracts with ATAA as well as Malév, who
were the actual ground handling providers. Furthermore, Mr. Tahy told the Tribunal, and
the Tribunal accepts, that the EU Directive was never mentioned by Mr. Gansperger as a
reason for the expropriation and that the Project Company was never asked to consider
ground handling services being carried out by any third party. It is also not without
significance that the position up to the BAA acquisition at the end of 2005 remains the
same - ground handling is still in the hands of BA Rt (the legal successor of ATAA) and
Malév.
270. As to the separation of air traffic control, it was never made clear to the Tribunal why
ATAA could not have been reorganized to meet EU requirements relating to the separation
of air traffic control from the commercial operation of the airport without the need for
taking over the activities of the Project Company and without the need of the Decree. Mr.
Somogyi-Tóth told the Tribunal that the transformation of ATAA did not require the
exclusion of the Project Company.
271. Dr. Kiss was somewhat contradictory on this issue. However, he accepted that
neither the Government Resolution of April 14, 2000 nor the May 2000 Draft Strategy
paper contemplated the cancellation of the Operating Period Lease and the takeover of the
activities of the Project Company. Mr. Gansperger’s evidence on this point was also
unconvincing because the Tribunal fails to see how the transformation of ATAA into a
company limited by shares was in any way related to the takeover of the activities of the
Project Company as in fact occurred.
272. The Tribunal does not accept that compliance with EU law mandated the steps
actually taken by the Respondent, the subject matter of this arbitration.
(b) Strategic Interests
273. The term “strategic interests” finds it origins in the Amendment Motion dated
November 8, 2001 put forward by Dr. Kosztolany. The same sort of phraseology appears
in the Respondent’s memorials, Dr. Kiss’ witness statements and the Respondent’s opening
statement.
274. Two points satisfied the Tribunal that this argument is groundless. First, it is a fact
that the airport was privatized in December 2005 by the sale to BAA. Second, Mr.
Gansperger in his attempt to minimize the role played by the Project Company said in
terms “I did not see that FUF would have dealt with activities of strategic importance…it
did nothing”. It seems to the Tribunal that the Respondent cannot have it both ways. If it
wishes to minimize the Project Company’s role and allege non-performance, it cannot in
the same breath justify its actions by the mantra of “strategic interests”, economic or
security.
(c) Contractual Non-performance
46
275. This has already been touched on by the Tribunal above. Three areas of contractual
non-performance were mentioned. Terminal management issues, hub development and
North American expertise.
276. The problem with all three grounds, in so far as they are relied upon as a justification
for the Decree, was that neither the Respondent nor any other Hungarian instrumentality
ever put the Claimants on notice that they were allegedly in breach of their contractual
obligations. No written notice was ever given and Mr. Tahy stated, and the Tribunal
accepts, that no suggestion was ever made to him that the Project Company was derelict in
its contractual obligations.
277. The Tribunal has already referred to the favourable comments in the Booz-Allen
Report. Dr. Kiss attempted to dismiss these conclusions by simply stating that he did not
agree with them without stating why these conclusions were incorrect. It should be noted
that this report was financed by the US Trade and Development Agency at the specific
request of the Ministry of Transport and, significantly, was not made available to
Parliament when it was considering the bill that resulted in the Decree.
278. As to complaints concerning terminal management, the Tribunal does not believe that
Messrs Kiss and Gansperger had much knowledge as to what the Project Company actually
did. However, Mr. Somogyi-Tóth did have such knowledge and was in regular contract
with Messrs Tahy and Onozó. He did accept that there had been some construction
problem at Terminal 2B but the Tribunal accepts the evidence of Mr. Huang that all such
problems were dealt with under the contractual warranty provisions of the contract and that
ATAA ultimately approved such work. Doubtless this was why no notice of default was
ever served.
279. As to the allegation that the Claimants were in breach by not providing North
American experience, the Tribunal is satisfied that there is nothing in the point. Mr. Huang
was from Canada. Mr. Tahy had experience with Malév in the USA. Mr. Huang had
satisfied himself that there was sufficient talent within Hungary and, absent complaint at
the time, this just cannot stand as a reason for the extreme measures taken by the
Respondent.
280. As to the allegation that the Claimants were somehow in breach of their contractual
obligations by not developing a hub development at the airport, this simply cannot be
accepted because obviously it is for the airline, not the airport operator, to decide where to
hub. This was confirmed by the Claimants’ aviation expert Mr. Ricover, whose testimony
and expertise the Tribunal accepts.
281. The Tribunal accepts that the Project Company performed at the very least in
accordance with the projections contained in the business plans agreed from time to time.
It is highly significant that the 2002 Business Plan was signed off by Mr. Somogyi-Tóth on
behalf of ATAA on December 11, 2001 just days before the events complained of in this
arbitration. Further, Mr. Somogyi-Tóth fairly confirmed that his deputy at ATAA, Mr.
47
Vertes (also a member of the Supervisory Board), must have reviewed the 2002 business
plan prior to Mr. Somogyi-Tóth signing it.
(d) Lack of Operation License
282. This point was raised for the first time at the hearing in London by Messrs Kiss and
Gansperger. Furthermore, as Mr. Gansperger admitted, it was not stated at the time as a
reason for the takeover. Still further, as is indicated by the discussion on this point during
the evidence of Mr. Gansperger on Day 4, it was never satisfactorily explained why the
authorizations contained in the Operating Period License did not of themselves constitute
the necessary license. It was never explained why, if this was a valid reason, the
Respondent accepted the position and never raised it until January 2006. On any basis this
point is unconvincing to the Tribunal.
(e) Financial Interest in Terminating the Project Agreements
283. The absence of primary evidence as to the reasons for the takeover is, to say the least,
surprising. If Hungarian law did in fact require these extremes steps to be taken, one might
have expected some evidence from ministerial level.
284. The Claimants invite the Tribunal to draw the inference that the Respondent was
simply unhappy with the contractual arrangement with the Project Company and wished to
determine them unilaterally. Mr. Somogyi-Tóth told the Tribunal that there was talk that
the current contractual arrangements were disadvantageous to Hungary’s interests. It goes
without saying that one option open to the Hungarian Government, if the contracts were
truly disadvantageous to Hungary’s interests, was to buy the Claimants out. There is no
evidence before the Tribunal to suggest that Hungary ever considered doing this. The
Claimants seek to rely upon contemporaneous newspaper articles quoting Mr. Gansperger
and others. Mr. Gansperger denied making the statements attributed to him and the
Tribunal does not think it necessary to resolve this factual issue.
285. The Tribunal concludes that no satisfactory explanation has ever been given for the
takeover and none of the reasons now sought to be relied upon are tenable.
VII. ISSUES TO BE CONSIDERED IN THIS ARBITRATION
286. Having considered all the submissions and evidence in this arbitration, the Tribunal is
being asked to decided the following main issues:
a. Applicable Law
b. Jurisdiction
Does the Tribunal have jurisdiction to hear the present case? If it has, should the
Tribunal limit its jurisdiction to certain claims of the Claimants and if so which
ones?
c. Breach of the BIT
48
Has the Respondent breached any provision of the BIT by depriving the
Claimants of their investments? If so, what are the consequences?
d. Quantum of compensation
If the Respondent’s deprivation of the Claimants’ assets breached the BIT, what
compensation are the Claimants entitled to receive from the Respondent? In
calculating the appropriate compensation due to the Claimants, what
compensation standard should the Tribunal use? Is it the one set forth in the BIT
or is the matter to be dealt with under customary international law? When
deciding the quantum of the compensation, what should be the appropriate
assessment approach? Is the Discounted Cash Flow (“DCF”) approach the
appropriate one? If it is not, what other approach is appropriate?
287. The Tribunal will decide each of these main issues as well as sub-issues arising
thereunder. The Tribunal will refer to the main arguments put forward by each side in
relation to the material arguments. However, the Tribunal will not mention each and every
argument raised by the Parties although the Parties can rest assured that all of their
arguments have been carefully considered by each member of the Tribunal and are
subsumed in the reasons set forth below. Furthermore, because the Tribunal has attempted
to do justice to the Parties’ submissions, it proposes to give its decision on each material
issue as succinctly as possible.
A. Applicable Law
288. The Parties have engaged in a traditional discussion about the applicable law in
investor-State arbitration. In essence, Claimants contend that the BIT is a lex specialis
governed by international law, while Respondent argues that Hungarian law applies.
289. Article 42(1) of the ICSID Convention provides:
“The Tribunal shall decide a dispute in accordance with such rules of law as
may be agreed by the parties. In the absence of such agreement, the Tribunal
shall apply the law of the Contracting State party to the dispute (including its
rules on the conflict of laws) and such rules of international law as may be
applicable.”
290. In the Tribunal’s view, by consenting to arbitration under Article 7 of the BIT with
respect to “Any dispute between a Contracting Party and the investor of another
Contracting Party concerning expropriation of an investment . . .” the Parties also
consented to the applicability of the provisions of the Treaty, and in particular those set
forth in Article 4 (see, MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile,
Award, 25 May 2004, ICSID Case No. ARB/01/7, at ¶ 87). Those provisions are Treaty
provisions pertaining to international law. That consent falls under the first sentence of
Article 42(1) of the ICSID Convention (“The Tribunal shall decide a dispute in accordance
with such rules of law as may be agreed by the parties”). The consent must also be deemed
to comprise a choice for general international law, including customary international law, if
and to the extent that it comes into play for interpreting and applying the provisions of the
49
Treaty. This is so since the generally accepted presumption in conflict of laws is that
parties choose one coherent set of legal rules governing their relationship (which is the case
here as it will be seen below), rather than various sets of legal rules, unless the contrary is
clearly expressed. Indeed, the State Parties to the BIT clearly expressed themselves to this
effect in Article 6(5) of the BIT which Article pertains to disputes between the Contracting
Parties concerning the interpretation and application of the BIT, as follows:
“Article 6
…
5. The arbitral tribunal shall decide on the basis of respect for the law,
including particularly the present Agreement and other relevant agreements
existing between the two Contracting Parties and the universally
acknowledged rules and principles of international law.”
For example, where a term is ambiguous, or where further interpretation of a Treaty
provision is required, the Tribunal will turn to Articles 31 and 32 of the Vienna
Convention on the Law of Treaties of 1969.
291. That analysis also comports with the primary conflict of laws provisions in the
various instruments listed in Article 7(2) of the BIT. Those appear to be similar by
referring to party autonomy in the choice of law. In contrast, the subsidiary conflict of
laws rules in those instruments differ, at least textually. For example, Article 42(1) of the
ICSID Convention requires a tribunal to “apply the law of the Contracting State party to
the dispute (including its rules on the conflict of laws) and such rules of international law
as may be applicable,” while Article 17(1) of the ICC Arbitration Rules (another option
under Article 7(2) of the BIT) requires a tribunal to “apply the rules of law which it
determines to be appropriate.” The application of those subsidiary conflict rules may give
differing results, which in turn may affect the manner in which the Treaty provisions, in
particular the substantive ones, are to be interpreted and applied. It cannot be deemed to
have been the intent of the States Parties to the BIT to have agreed to such a potential
disparity.
292. The sole exception to the foregoing is Article 4(3) of the BIT which provides: “The
amount of this compensation may be estimated according to the laws and regulations of the
country where the expropriation is made.” In the present case, that law is Hungarian law.
As the reference to domestic law is used for one isolated subject matter only, it must be
presumed that all other matters are governed by the provisions of the Treaty itself which in
turn is governed by international law.
293. The Parties to the present case have also debated the relevance of international case
law relating to expropriation. It is true that arbitral awards do not constitute binding
precedent. It is also true that a number of cases are fact-driven and that the findings in
those cases cannot be transposed in and of themselves to other cases. It is further true that
a number of cases are based on treaties that differ from the present BIT in certain respects.
However, cautious reliance on certain principles developed in a number of those cases, as
50
persuasive authority, may advance the body of law, which in turn may serve predictability
in the interest of both investors and host States.
B. Jurisdiction
294. The first main issue this Tribunal must decide is whether it has jurisdiction to hear all
the claims made in the present case in the light of Art.25(1) of the ICSID Convention.
While Article 25 of the Convention refers to the “jurisdiction of the Centre” and Article
41(1) to the “competence” of the Tribunal, the Tribunal will use the term “jurisdiction” and
“competence” of the Tribunal interchangeably.
The BIT Provisions and the ICSID Convention
295. The following articles of the BIT are applicable or relevant in deciding the Tribunal’s
jurisdiction. They read as follows:
“ Article 1
For the purpose of this Agreement:
1. The term “investments” shall comprise every kind of asset connected
with the participation in companies and joint ventures, more particularly,
though not exclusively:
(a) movable and immovable property as well as any other property rights in
respect of every kind of asset;
(b) rights derived from shares, bonds and other kinds of interests in
companies [emphasis added];
(c) title to money, goodwill and other assets and to any performance having
an economic value;
(d) rights in the field of intellectual property, technical processes and know-
how.
These investments shall be made in compliance with the laws and regulations
and any written permits that may be required thereunder of the Contracting
Party in the territory of which the investment has been made.
A possible change in the form in which the investments have been made does
not affect their substance as investments, provided that such a change does
not contradict the laws and regulations and written permits of the Contracting
Parties.
2. The term “income” means those net amounts received from the
investments for a certain period of time [emphasis added], such as shares of
profits, dividends, interest, royalties and other fees, proceeds from total or
partial liquidation of the investments, as well as any other sums emanating
51
from such investments which are considered as income under the laws of the
host country.
3. The term “investor” shall comprise with regard to either Contracting
Party:
i. natural persons having the citizenship of that Contracting Party in
accordance with its laws;
ii. legal persons constituted or incorporated in compliance with the law
of that Contracting Party [emphasis added],
who, in compliance with this Agreement are making investments in the
territory of the other Contracting Party.
Article 2
…
3. In cases of approved reinvestments, the incomes ensuing therefrom
enjoy the same protection as the original investments. [emphasis added]
Article 3
1. Each Contracting Party shall ensure fair and equitable treatment to the
investments of investors of the other Contracting Party and shall not impair,
by unreasonable or discriminatory measures, the operation, management,
maintenance, use, enjoyment or disposal thereof by those investors
[emphasis added].
2. More particularly, each Contracting Party shall accord to such
investments full security and protection which in any case shall not be less
than that accorded to investments of investors of any third State.
…
Article 4
1. Neither Contracting Party shall take any measures depriving, directly
or indirectly, investors of the other Contracting Party of their investments
unless the following conditions are complied with:
(a) the measures are taken in the public interest and under due
process of law;
(b) the measures are not discriminatory;
(c) the measures are accompanied by provision for the payment of just
compensation.[emphasis added]
52
2. The amount of compensation must correspond to the market value of
the expropriated investments at the moment of the expropriation. [emphasis
added]
3. The amount of this compensation may be estimated according to the
laws and regulations of the country where the expropriation is made.
4. The compensation must be paid without undue delay upon completion
of the legal expropriation procedure [emphasis added], but not later than
three months upon completion of this procedure and shall be transferred in
the currency in which the investment is made. In the event of delays beyond
the three-months’ period, the Contracting Party concerned shall be liable to
the payment of interest based on prevailing rates.
Article 5
1. In compliance with its regulations in force, either Contracting Party will
permit the investors of the other Contracting Party to transfer, in any
convertible currency, income from investments and proceeds from total or
partial liquidation of the investments.
Article 7
1. Any dispute between either Contracting Party and the investor of the
other Contracting Party concerning expropriation of an investment shall, as
far as possible, be settled by the disputing parties in an amicable way.
2. If such disputes cannot be settled within six months from the date either
party requested amicable settlement, it shall, upon request of the investor, be
submitted to one of the following:
(a) the Arbitration Institute of the Arbitral Tribunal of the Chamber of
Commerce in Stockholm;
(b) the Arbitral Tribunal of the International Chamber of Commerce in
Paris;
(c) the International Centre for the Settlement of Investment Dispute in case
both Contracting Parties have become members of the Convention of 18
March 1965 on the Settlement of Investment Dispute between State and
Nationals of Other States.”
296. The governing provision in the ICSID Convention in regard to jurisdiction of the
Centre is Article 25, which reads as follows:
“(1) The jurisdiction of the Centre shall extend to any legal dispute arising
directly out of an investment, between a Contracting State (or any
constituent subdivision of agency of a Contracting State designated to the
53
Centre by that State) and a national of another Contracting State [emphasis
added], which the parties to the dispute consent in writing to submit to the
Centre. When the parties have given their consent, no party may withdraw its
consent unilaterally.
(2) “National of another Contracting State” means:
(a) any natural person who had the nationality of a Contracting State other
than the State party to the dispute on the date on which the parties consented
to submit such dispute to conciliation or arbitration as well as on the date on
which the request was registered pursuant to paragraph (3) of Article 28 or
paragraph (3) of Article 36, but does not include an person who on either date
also had the nationality of the Contracting State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting State
other than the State party to the dispute on the date on which the parties
consented to submit such dispute to conciliation or arbitration and any
juridical person which had the nationality of the Contracting State party to
the dispute on that date and which, because of foreign control, the parties
have agreed should be treated as a national of another Contracting State for
the purpose of this Convention.
(3) Consent by a constituent subdivision or agency of a Contracting State
shall require the approval of that State unless that State notifies the Centre
that no such approval is required.
(4) Any Contracting State may, at the time of ratification, acceptance or
approval of this Convention or at any time thereafter, notify the Centre of the
class or classes of disputes which it would or would not consider submitting to
the jurisdiction of the Centre. The Secretary-General shall forthwith transmit
such notification to all Contracting States. Such notification shall not
constitute the consent required by paragraph (1). ”
297. The Respondent also refers to Article 26 of the ICSID Convention in support of its
rebuttals concerning the Tribunal’s jurisdiction:
“Consent of the parties to arbitration under this Convention shall,
unless otherwise stated, be deemed consent to such arbitration to the
exclusion of any other remedy. A Contracting State may require the
exhaustion of local administrative or judicial remedies as a condition of
its consent to arbitration under this Convention.”
298. The Claimants contend in their submissions that all jurisdictional requirements in the
ICSID Convention and the BIT have been satisfied and therefore the jurisdiction of the
Tribunal has been duly established. The Respondent denies the Claimants’ claims and
contends that the Tribunal lacks jurisdiction to hear the matter.
54
299. In order to do justice to all the points on jurisdiction raised by the Respondent, it is
necessary to break the submissions down into a list of sub-issues. This involves breaking
down the component parts of the Convention and the BIT. These sub-issues are:
a. Is the nature of the dispute governed (a) by the BIT or (b) is it simply
contractual in nature?
b. If the answer to (a) is that it is governed by the BIT, did the Claimants make any
investment in Hungary within the definition of the BIT and the ICSID
Convention?
c. Does the dispute arise “directly” out of an investment as required by the
Convention?
d. Does the dispute involve “investors” under the BIT who are nationals of a
Contracting State to the ICSID Convention?
e. Does the dispute fall within the scope of Art. 7 of the BIT?
1. Is the Nature of the Dispute Governed by the BIT or Is It Simply Contractual in
Nature?
300. The Claimants claim that the dispute between the Parties in this arbitration arose from
Respondent’s breach of its BIT obligations towards the Claimants. The present dispute,
therefore, is one between the investor and the host State where the investor made
investments.
301. The Respondent, however, claims that all the claims brought by the Claimants are
contractual in nature rather than those that arise between investors and host States. Further,
the Respondent contended that due to the fact that the legal recourse for breach of contracts
was fully available to the Claimants, the commencement of this arbitration was premature.
302. In its Rebuttal, the Claimants contended that the Respondent’s “contractual in
nature” argument was a mischaracterization of their claims. In support, the Claimants
referred to the ICSID case of SGS Société Générale de Surveillance S.A. v. The Republic of
the Philippines (ICSID Case No. ARB/02/06), in which the Tribunal confirmed its
jurisdiction to hear the case based on the fact that the Claimants in that case “fairly raise
questions of breach of one or more provisions of the BIT”. The Claimants claimed that the
facts in this case raised questions about the breach of the Respondent’s BIT obligations.
On this basis, the Tribunal would have jurisdiction to hear the case.
303. At this point, it is necessary to have regard to the allegation of expropriation which
the Claimants actually make. Professor van den Berg specifically raised the question as to
what was expropriated and when, and on Day 7 of the Oral Hearing, Professor Crawford
SC at pages 76 to 80 of the transcript answered as follows:
“The first question asked by Professor van den Berg was the question: what
was taken? What was expropriated? He associated that with the question:
when was it expropriated? The information memorandum which was issued
55
on the authority of the privatization agency in October 2005 stated,
paragraph 11.1.2 of the privatization agency information memorandum to
which you have of course been taken numerous times, and I quote:
‘Pursuant to legislative changes introduced with effect from 1st
January 2002, certain rights of the project company to operate, use
and exploit Terminal 2A and 2B ceased to exist.’
That is a Hungarian statement operative as of now. That is the view taken by
the Hungarian Government persistently in December -- from the date of
notice to the Project Company in December 2001 up to the present day.
There has been no resiling from that statement. Thus the rights of the Project
Company disappeared as a result of legislative acts attributable to the
Hungarian state.
We do not have to ask who procured them, there is no problem of attribution
here. This had the effect, direct and intended, of destroying the enterprise in
which the claimants were directly involved and which was their investment,
and of doing so without any compensation.
The Booz-Allen report, paragraph D.10, puts it this way:
‘The right of use of the property assets earmarked for FUF’, was
transferred to Hungary without compensation.
‘Under the BIT a stakeholder with a legal right or a legitimate
expectation of income flows and other benefits under an investment
agreement which has its investment destroyed or nullified in value as
a direct result of such a transfer has been expropriated.’
That is plain hornbook law of expropriation. The fact it is indirect in the
sense that the rights themselves were held by the Project Company is
irrelevant, the BIT clearly contemplates that sort of situation. So that is the
short answer.
The Chorzów case is fascinating because it prefigures so much of this and
there is a very nice account of what constitutes the enterprise, as they put it,
which you will find at page 17 of judgment A6, where it says -- it was actually
referring to the phrase ‘undertaking’…:
‘An undertaking as such is an entity entirely distinct from the lands
and buildings necessary for its working.’
…
The question here is: what was the undertaking? And it had to do in this case
with the certain complications relating to who owned the actual land, not
56
entirely dissimilar from what we have here of course because we are talking
about rights of use which can constitute an investment under the BIT:
‘But an undertaking as such is an entity entirely distinct from the
lands and buildings necessary for its working, and in the present
case, it can hardly be doubted that, in addition to the real property
which belonged to the Reich, there were property, rights and
interests, such as patents and licenses, probably of a very
considerable value, the private character of which cannot be
disputed.’
That carried right through the case up to the questions that were asked to the
experts; what they were asked to value was the undertaking, in this case we
would say the investment. So the short answer is that what was expropriated
was that bundle of rights and legitimate expectations.
As to the date of expropriation, well, expropriations can take a few minutes or
a few days or they can be a bit more protracted, we do not have to put a
precise hour of the day on it, but it happened somewhere between 22nd
December and 1st January, nothing turns on which particular date you
choose within that very short window. That would be our response to the first
question.” [sic]
The Respondent’s position as regards taking and expropriation is summarized in
paragraphs 234 to 236 above.
Discussion
304. As will be explained later in the section dealing with liability, it is the opinion of the
Tribunal that Professor Crawford articulated the matter correctly. There can be no doubt
whatsoever that the legislation passed by the Hungarian Parliament and the Decree had the
effect of causing the rights of the Project Company to disappear and/or become worthless.
The Claimants lost whatever rights they had in the Project and their legitimate expectations
were thereby thwarted. This is not a contractual claim against other parties to the Project
Agreements. An act of state brought about the end of this investment and, particularly
absent compensation, the BIT has been breached. It is common ground that no
compensation was offered in respect of this taking. Further, the Tribunal is satisfied that no
case has been made out that the taking was in the public interest. The subsequent
privatization of the airport involving BAA and netting Hungary US$ 2.26 billion renders
any public interest argument unsustainable. In the opinion of the Tribunal, this is the
clearest possible case of expropriation.
57
2. Did the Claimants Make Any Investment in Hungary within the Definition of the
BIT and the ICSID Convention?
305. The issue of whether Claimants actually made investments in Hungary and therefore
qualify as “investors” as defined in the ICSID Convention and the BIT was heavily debated
by the Parties.
306. In their Memorial, the Claimants state that since the ICSID Convention does not
provide a specific definition of “investment”, it is “necessary to refer to the CyprusHungary
BIT” to find what an “investment” is. After a brief review of Article 1 of the BIT,
the Claimants conclude that their investment in the Airport and their corresponding returns,
i.e., ADC Affiliate’s 34% quota-holding in the Project Company, ADC & ADMC
Management’s entitlement to 3% of each year’s net revenue of the Airport, “qualify as
‘investments’” under the BIT and the Convention. The Claimants further state that these
investments are “at the very least ‘assets’ connected with the participation in the Project
Company.”
307. The Respondent denies the Claimants’ above assertion vigorously and claims, in its
Counter-Memorial, that the Claimants did not make any investment and cannot qualify as
“investors” under the BIT and the Convention standards.
308. The Respondent lists four claims of the Claimants in relation to their “alleged”
investments, namely:
1. ADC Affiliate’s claim in relation to its lost dividends derived from its 34% quotaholding
in the Project Company;
2. ADC Affiliate’s claim in relation to non-payment under the Promissory Note;
3. ADC & ADMC Management’s claim of lost Terminal Management fees; and
4. the Claimants’ claim in relation to future development of the Airport.
309. In regard to the first claim of ADC Affiliate, the Respondent claims that it was ADC
rather than ADC Affiliate who made the equity contribution in the amount of US$5.7
million to the Project Company. The Respondent also claims that there is no evidence that
ADC Affiliate paid any consideration when it received ADC’s assignment of its rights and
obligations under the Quotaholders’ Agreement.
310. In line with the above claims, the Respondent raised the argument that in order to
meet the BIT “investment” criteria, not only must the Claimants make investments in the
host country, but also such investments must be “fresh”. Because ADC Affiliate merely
received ADC’s rights and obligations via assignment, ADC Affiliate cannot be deemed to
have made any “fresh” investment in Hungary.
311. Moreover, the Respondent further contends that under Article 25(1) of the ICSID
Convention, only those investors who bear “risk” can claim they made an investment in the
host State. Since ADC Affiliate did not bear much risk as a quotaholder of the Project
Company, it cannot claim they made an investment in Hungary.
58
312. In regard to the other three claims listed above, the Respondent contends, in
sequence, a) that ADC Affiliate did not make any investment through the Promissory Note,
b) ADC & ADMC Management did not make any investment nor provide management
services during the Operating Period and c) “contractual provisions to which the Claimants
are not a party does not constitute investment under the BIT.”
313. The Claimants rebut each of the above claims of the Respondent in their Reply.
314. The Claimants contend that ADC Affiliate’s shareholding in the Project Company
and its right under the Promissory Note fell well within the scope of “investment” as
defined in the BIT. The Claimants refer in this regard to Generation Ukraine, Inc. v.
Ukraine (ICSID Case No. ARB/00/9) where the Tribunal concluded that a shareholding
interest is an “investment” when “investment” was defined to include “shares of stock or
other interest in a company”.
315. The Claimants deny that there is a “fresh” investment requirement under the BIT and
contend that the argument that an investment must be “fresh” in order to establish the
Centre’s jurisdiction has been rejected by “ICSID jurisprudence”. In support of this
assertion, the Claimants refer to Fedax NV v. Venezuela (ICSID Case No. ARB/96/3) and
quote the Tribunal’s statement that:
“[…] the investment itself will remain constant, while the issuer will enjoy a
continuous credit benefit until the time the notes become due. To the extent
that this credit is provided by a foreign holder of the notes, it constitutes a
foreign investment which in this case is encompassed by the terms of the
Convention and the [BIT] Agreement. […]”
316. In regard to the Promissory Note, the Claimants deny the Respondent’s claim that it is
a loan to the ATAA. After a review of the economics of the Airport Project, the Claimants
reaffirm that the Promissory Note is a finance instrument that constitutes a form of
investment.
317. The Claimants deny that there is a “risk-bearing” requirement under Article 25 (1) of
the ICSID Convention. The Claimants contend that the cases and legal literature relied
upon by the Respondent in its Counter-Memorial were misread. The Claimants argue that
rather than supporting the Respondent’s “risk-bearing requirement” conclusion, Professor
Christopher Schreuer said in the same article which was relied upon by the Respondent that
“risk” is only a factor for the Tribunal to consider when deciding jurisdiction, rather than a
legal requirement under the ICSID Convention. The Claimants cite Professor Schreuer’s
writing in regard to “risk” that:
“These features should not necessarily be understood as jurisdictional
requirements but merely as typical characteristics of investments under the
Convention.”
59
318. The Claimants deny that no investment was made by ADC & ADMC Management.
The Claimants contend that ADC & ADMC Management’s entitlement of the 3% net
revenue qualifies as “property rights” and the Terminal Management Agreement qualifies
as “title to money […] and to any […] performance having an economic value” under the
BIT.
319. In response to the Respondent’s claim that the Management Fees are “income” rather
than “investment” under the definition in Article 1(2) of the BIT, the Claimants refer to
Article 1(2), Article 2(3) and Article 5(1) of the BIT and contend that the BIT protects both
“original investments and approved re-investments and all income derived therefrom”. As
a result, the Respondent’s characterization of the Management Fees as “income” will not
change the fact that they are protected by the BIT.
320. In regard to the Respondent’s future development claims, the Claimants reply that the
Respondent misunderstood their claims. As the Claimants put it, “ADC Affiliate does not
claim rights as an investor in lieu of the Project Company, but rights in the Project
Company”. The Claimants also contend that arguments made by the Respondent in this
regard are more quantum-related rather than jurisdiction-related.
321. Another round of debate on this “investment” issue followed between the Parties in
their further submissions of the Rejoinder and the Sur-Rejoinder. Besides the reiteration
and affirmation of certain arguments made in their previous submissions, a new point has
been raised and argued by the Parties.
322. In the Respondent’s Rejoinder submitted by its new legal counsel, it is argued that
that the wording of Article 1(3) of the BIT that “who…are making investments in the
territory of the other Contracting Party [emphasis added]…” indicates that only those who
are taking active actions of investment are qualified to claim for BIT protection. The
Respondent claims that since ADC Affiliate did not take any action of investment and at
most could be said to be “holding” some investment in Hungary, it cannot claim for BIT
protection.
323. In rebuttal to this point, the Claimants argue that the Respondent’s argument is
“unavailing” because Article 1(3) was drafted to limit the BIT’s application to investments
made “in the territory of the other Contracting Party [emphasis added]” and was not
intended to and does not set another threshold for the injured party to seek BIT protection.
Moreover, the Claimants contend that even if another test is imposed as argued by the
Respondent, the fact that ADC Affiliate paid consideration for the assignment from ADC
would pass such test.
324. In support of the above rebuttal, the Claimants, in their Sur-Rejoinder, again refer to
Fedax v. Venezuela (Ibid.), which was challenged by the Respondent in its Rejoinder. The
Claimants argue that the Tribunal should consider the substance of the transaction and
examine whether any investment was made and should not be prevented from finding its
jurisdiction by the wording of the relevant BIT.
60
Discussion
325. The Tribunal is in favour of the Claimants’ “substance” approach in considering this
issue. Whilst attention need to be paid to the wording of the BIT with respect to
“investment”, the Tribunal believes it is the substance of the transaction that reveals the
answer as to whether any investment was made. Based on a thorough examination of the
facts and careful consideration of the applicable law, the Tribunal concludes that the
Claimants did make investments in Hungary and therefore the present dispute does arise
out of an investment made as contemplated in the BIT and the ICSID Convention. Again it
is necessary to have regard to the effect of all the Project Agreements. The Project
Documents are clear that an investment in the sum of US$16.765 million had been made.
As for the argument relating to the Management Fees, the Tribunal is satisfied, on the
evidence it has heard and on the law, that the income stream derived from the Management
Services Agreement was protected by the BIT and also falls within the ICSID Convention.
The Tribunal is also satisfied that it was intended by the parties to these agreements that the
Management Services Agreement was meant to reimburse the Claimants for work and
services carried out prior to the Operation Commencement Date. The argument relating to
the amount of the investment has been abandoned. It is thus common ground that if an
investment was made, as the Tribunal so concludes, then the amount of it was US$16.765
million. As stated above, the Respondent has withdrawn the argument that the investment
should be valued excluding the value of the Promissory Note.
3. Does the Dispute Arise “Directly” out of An Investment as Required by the
ICSID Convention?
326. The Parties dispute the meaning of the phrase “arising directly” in Article 25 (1) of
the ICSID Convention.
327. The Claimants claim that the current dispute arose directly out of their investments in
Hungary. In the Claimants’ contention, a direct cause of action was rendered available to
the Claimants by the Respondent’s issuance of the aforementioned Amending Act and the
Decree, which, according to the Claimants, breached the obligation under the BIT and
affected the investments made by the Claimants in Hungary. The Claimants also claimed
that the jurisdiction of the Centre is established as long as the actions of the Respondent
breached its BIT commitments of investment protection, even if such actions can be
characterized as general economic measures.
328. Among all the cases the Claimants relied upon in support of their proposition in this
regard, the Tribunal found the following passages of the following cases to be of particular
relevance. In CMS Gas Transmission company v. The Republic of Argentina (ICSID Case
No. ARB/01/8), the Tribunal held that:
“27. It follows that, in this context, questions of general economic policy not
directly related to the investment, as opposed to measures specifically
addressed to the operations of the business concerned, will normally fall
outside the jurisdiction of the Centre. A direct relationship can, however, be
61
established if those general measures are adopted in violation of specific
commitments given to the investor in treaties, legislations or contracts. What
is brought under the jurisdiction of the Centre is not the general measures in
themselves but the extent to which they may violate those specific
commitments.” [emphasis added]
329. In Enron Corporation, et al. v. The Argentine Republic (ICSID Case No.
ARB/01/03), the Tribunal wrote:
“60. The Tribunal has noted above that the right of the Claimants can be
asserted independently from the rights of TGS [the local project company] or
CIESA [an intermediate holding company]. As the Claimants have a separate
cause of action under the Treaty in connection with the investment made, the
Tribunal concludes that the present dispute arises directly out of the
investment made and that accordingly there is no obstacle to a finding of
jurisdiction on this count.” [emphasis added]
330. The Respondent denied that the Claimants met the “directness requirement” in
Article 25(1) of the ICSID Convention. In its submissions, the Respondent claimed that
the Claimants’ claims arose from contractual disputes under the Project Agreements and
therefore do not pertain to disputes that arise “directly” out of an investment for the
purpose of Article 25. The Respondent further challenged the Claimants “directness”
arguments by saying that it is the rights of the Project Company which are “directly”
affected and those of the Claimants can only be said as “indirectly” affected. The
Respondent claimed that cases referred to by the Claimants were irrelevant.
Discussion
331. In considering whether the present dispute falls within those which “arise directly out
of an investment” under the ICSID Convention, the Tribunal is entitled to, and does, look at
the totality of the transaction as encompassed by the Project Agreements. The Tribunal
does not find the “commercial” argument of Hungary to be availing. The Tribunal is not
concerned whether the Claimants have rights against ATAA. This claim is posited on the
basis that Hungary took action which had the effect of depriving the Claimants of their
investment and that no compensation was offered or paid in respect thereof. The Tribunal
fails to see how it can be contended that this dispute does not arise directly out of an
investment. It plainly does. The fact that this case involved a complex series of carefully
drafted agreements does not detract from the fact that the Claimants invested US$16.765
million into the Hungarian Airport Project. By the Claimants making this investment,
Hungary was relieved of having to find these funds for itself. This was a direct investment
in Hungary within the terms contemplated in the BIT. The investment was no less direct
because it was channelled through the Project Company. It would be absurd to argue that
only cases where an investor transfers funds directly to the Hungarian Government would
be covered by the Convention and the BIT. Further, when one reviews the Master
Agreement which was executed by ATAA as early as March 1995, it can be seen that the
62
parties envisaged that a project structure of this sort actually executed. In one of the
Recitals of the Master Agreement, it is clearly stated that
“the parties wish to set forth the terms and conditions of the development of
the Project by ADC and operation of the Terminal by the Project Company
with the cooperation of the ATAA.…”
As a “roadmap”, this Master Agreement set forth the blueprint of how the Airport
Project should be structured and financed. It was the Respondent who later
demanded the adjustment of the project structure and who was furnished with a
revised structure which met its needs. Nevertheless, it was still under the umbrella of
the Master Agreement that the Project Agreements were executed. In the light of
these facts, the Tribunal has to conclude that the Respondent was a willing party to
the setting up of the structure through which the investments of the Claimants in
Hungary were made. In this context, substance must be preferred over form.
4. Does the dispute involve “investors” under the BIT who are nationals of a
Contracting State to the ICSID Convention?
332. It is clearly set forth in Article 25 of the ICSID Convention that the Centre’s
jurisdiction shall only extend to disputes arising “between a Contracting State…and a
national of another Contracting State”. Under the circumstances of the present case, the
task of the Tribunal is to find out whether the Respondent is a “Contracting State” and
whether, at the same time, each Claimant qualifies as “a national of another Contracting
State”.
333. The Claimants contend in their Memorial that it is established that the Respondent is
a “Contracting State” and the Claimants are “nationals of another Contracting State”. The
Claimants contend that Hungary is a Contracting State to the ICSID Convention, which
entered into force as to Hungary on March 6, 1987. On the other hand, the Claimants
contend that both of them, namely ADC Affiliate and ADC & ADMC Management, are
legal persons duly incorporated under the law of the Republic of Cyprus, which is also a
Contracting State to the ICSID Convention. Moreover, since Article 25(2)(b) of the
Convention states that the phrase “national of another Contracting State” includes “any
juridical person which had the nationality of a Contracting State other than the State party
to the dispute on the date on which the parties consented to submit such dispute to
conciliation or arbitration”, and since the Claimants obtained their Cypriot nationality via
due incorporation under the law of Cyprus prior to the date on which the Parties consented
to submit their dispute to the Centre, the nationality requirement is fully met. In relation to
the above claims, the Claimants also refer to the definition of “investor” set forth in Article
1(3)(b) of the BIT, which covers “legal persons constituted or incorporated in compliance
with the law” of Cyprus.
334. The Respondent denies entirely in its Counter-Memorial that the Claimants’ case
meets the “nationality” requirement under the Convention. The core arguments made by
the Respondent are that:
63
1. the disputed investments in this case should in no way be deemed to be
investments made by Cypriot nationals; instead, if any investment was ever made
in Hungary, it was made by Canadian companies;
2. the claims made by the Claimants are not Cypriot pursuant to the object and
purpose of the BIT and are not made by a Cypriot national pursuant to the BIT;
and
3. the claims do not belong to a national of a Contracting State of the ICSID
Convention.
335. The Respondent claims that the Claimants are nothing but two shell companies
established by Canadian investors and all the facts, including those related to the
structuring of the project, operation of the Project Company and even the involvement of
the Canadian Government when the dispute initially arose, indicate that the investments
were made by Canadian companies rather than Cypriot ones.
336. The Respondent further contends that the Claimants cannot establish their Cypriot
nationality because the simple fact that they were incorporated in Cyprus under its law fails
to meet the “fundamental requirement of the rules of international law” that there must be a
genuine connection “between the corporation and the State of its claimed nationality”.
337. The Respondent cites in support of its argument the Barcelona Traction Case from
the International Court of Justice. In that case Belgium sought relief on behalf of Belgian
shareholders of the Barcelona Traction Company from Spain for actions taken against that
company in Spain. The Court ruled, however, that as a matter of general international law
only the State of the company's incorporation, namely Canada, would have standing to
assert the company's rights against Spain, and that Belgium, not being the place of
incorporation of the company, lacked such standing, in consequence of which the case was
dismissed.
338. The Respondent also quotes from Professor Brownlie’s well-recognized international
law treatise that:
“On the whole the legal experience suggests that a doctrine of real or genuine
link has been adopted, and, as a matter of principle, the considerations
advanced in connection with the Nottebohm case apply to corporations.” (Ian
Brownlie, Principle of Public International Law (6th
ed, 2003))
339. The Respondent states, in the alternative, that if a presumption of the Claimants’
Cypriot nationality can be established, such presumption must be disregarded “when the
corporate form is used to benefit from a connection with a jurisdiction that is not genuine
and is only a matter of convenience.” The Respondent argues that the legal principle of
“piercing the corporate veil” shall apply to the present case and cites the following passage
from another international law treatise, Oppenheim’s International Law:
64
“In many situations, however, it is permissible to look behind the formal
nationality of the company, as evidenced primarily by its place of
incorporation and registered office, so as to determine the reality of its
relationship to a State, as demonstrated by the national location of the control
and ownership of the company.” (Oppenheim’s International Law, (9th
ed,
1992) vol I, p. 861)
340. The Respondent also borrows the following statement of the ICJ in its Barcelona
Traction judgment to strengthen its “piercing the corporate veil” argument:
“[T]he process of lifting the veil, being an exceptional one admitted by
municipal law indicates that the veil is lifted, for instance, to prevent misuse
of the privileges of legal personality.”
341. The Respondent thus contends that Cypriot nationality is being misused by the
Claimants and therefore should be disregarded.
342. Additionally, the Respondent argues that when deciding the nationality of the
investor, the origin of the capital must be considered by the Tribunal. It refers to the recent
ICSID case of Tokios Tokelés v. Ukraine (ICSID Case No. ARB/02/18). In that case,
Professor Prosper Weil, President of the Tribunal, dissented from the majority opinion,
which held that the origin of the capital was irrelevant to the investor’s nationality and
concluded that such majority opinion runs counter to “the object and purpose of the ICSID
Convention and system as explicitly defined both in the Preamble of the Convention and in
the Report of the Executive Directors”. (Ibid.)
343. The Respondent therefore contends that due to the fact that the origin of the capital in
the present case is Canadian and Canada is not a Contracting State to the ICSID
Convention, the Tribunal should reject the Claimants’ claims for the reason that the claims
do not belong to nationals of a Contracting Party.
344. In their Reply, the Claimants countered each of the Respondent’s arguments.
345. Besides arguments previously raised in the Memorial, in response to the “genuine
connection” argument, the Claimants contend that the general international law principle in
this regard is that, in Professor Brownlie’s words, there is “no certainty as to the criteria
for determining [the] connection” (Ian Brownlie, Principle of Public International Law (6th
ed, 2003)) between the corporation and the State. While some treaties require the
corporation to prove a “genuine link”, the Cyprus-Hungary BIT does not require so. The
Claimants then compare the BIT at issue with five other BITs to which Hungary is a party.
One of these five BITs was concluded before the one at issue and the rest of the BITs were
concluded afterwards. The Claimants state that whether entered into before or after the
Cyprus-Hungary BIT, these BITs all require that the relevant corporation not only was
incorporated but also has business activities in the State the nationality of which the
corporation claims. The Claimants conclude that had the parties to the BIT intended to
require a “genuine link” requirement in the Cyprus-Hungary BIT, they could and would
65
have done so. The fact that there is no such requirement indicates that the parties to this
BIT did not intend to set any limitation on the definition of an “investor”.
346. The Claimants reject the Respondent’s “origin of capital” argument. The Claimants
first claim that ADC Affiliate, a Cypriot legal person and the lender of the US$16.765
million which in turn was injected into the Project Company by ADC, is the “real source”
of the investment.
347. The Claimants proceed to argue that the origin of the capital is irrelevant in the
present case because, unlike other BITs, the Cyprus-Hungary BIT at issue does not address
concerns about the origin of the capital. They claim that “as long as one is a covered
‘investor’, one benefits from the provisions of the BIT, irrespective of the origin of the
investment made.” In support of this argument, the Claimants refer to Olguin v. Republic
of Paraguay (ICSID Case No. ARB/98/5), where the ICSID Tribunal did not find an
express “origin of investment” requirement in the Paraguay-Peru BIT and rejected
Paraguay’s argument based on the assumption of such a requirement.
348. The Claimants also argue that the fact that Cyprus was chosen as the state of the
Claimants’ incorporation was not a result of the Claimants’ “arbitrary choice of
jurisdiction” but rather a “commercially sensible” decision of which the Respondent was
fully aware.
349. In reply to the Respondent’s claim, which the Claimants labelled as the “core
assertion”, that the real interests underpinning this dispute are Canadian rather than
Cypriot, the Claimants argue that the nationality of the Claimants’ shareholders is not a
“relevant consideration” under the Cyprus-Hungary BIT. The Claimants also argue that
the alleged “intervention” of the Canadian Government does not prevent this Tribunal from
finding jurisdiction.
350. In their Rejoinder, the Respondent’s new legal counsel re-emphasized the argument
that there is no “genuine link” between the Claimants and Cyprus. They also reiterate that
it is a Canadian interest, rather than one of Cyprus, that stands behind this dispute.
351. The Claimants further rebut the Respondent’s jurisdictional challenges in the SurRejoinder
based on an analysis of case law and the international law literature.
Discussion
352. The fact that Cypriot entities were to be used was known at the time to Hungary and
consented to by it. The phrase “a national of another Contracting State” contained in Art
25 (1) of the Convention is defined in Art 25(2)(b) as “any juridical person which had the
nationality of a Contracting State other than the State party to the dispute on the date
which the parties consented to submit the dispute to conciliation or arbitration”. The
definition of “investor” under Article 1 (3)(b) of the BIT also includes “legal persons
constituted or incorporated in compliance with the law of that Contracting Party”.
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353. The Tribunal also found the following facts through the submissions of the Parties
and the hearing:
• It is not in dispute that Hungary and Cyprus are parties to the relevant BIT.
• It is not in dispute that ADC Affiliate was incorporated according to the laws of
Cyprus on February 25, 1997, a date prior to the execution of the Project
Agreements.
• It is not in dispute that ADC Affiliate has paid taxes in Cyprus since incorporation
and has engaged Cypriot auditors to audit its financial statements. Furthermore,
the Respondent admits that the Project Company has paid dividends to ADC
Affiliate, one of its quotaholders in Cyprus.
• ADC Affiliate loaned US$16.765 million to ADC for the project pursuant to the
Loan Agreement. It also purchased the quota and the Note from ADC in
exchange for the loan. By purchasing the quota it assumed rights and obligations
under the Quotaholders Agreement as a quotaholder pursuant to the terms of the
Assignment and Assumption Agreement. Finally, ADC Affiliate received
payment pursuant to the Note and payment of dividends in accordance with the
relevant Project Agreements and based on the business plan of the Project
Company.
• It is not in dispute that ADC & ADMC Management was incorporated according
to the laws of Cyprus on February 25, 1997. It is not in dispute that it has paid
taxes in Cyprus since its incorporation and has engaged auditors to audit its
financial statements since its incorporation.
• The Respondent admits that the Project Company has paid management fees to
ADC & ADMC Management in Cyprus.
• It is contended, and not effectively denied, that ADC & ADMC Management had
a perfectly lawful and legitimate role in the Project. It entered into the Terminal
Management Agreement with ATAA and the Project Company in February 1997;
it provided pre-billing services and supervision to the project through the efforts
of Mr. Huang and others; it submitted annual reports and invoices from Cyprus
relating to the performance of the Management Services; it was paid Management
Fees in accordance with the Terminal Management Agreement and it owned a
Hungarian subsidiary “ADC & ADMC Management Hungary Limited” which
employed the staff of the Terminal Manager who undertook the day-to-day work
of the Terminals. Some eight people were employed by the Hungarian subsidiary.
354. In light of the above, the Tribunal has before it two parties which fit into the
definitions under the Convention and the BIT.
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355. The Respondent’s jurisdictional argument is however posited on the contention that
the source of funds and the control of the Claimants rest with Canadian entities, thus
preventing the Cyprus-Hungary BIT from being applicable.
356. The Tribunal cannot agree with the Respondent in this regard.
357. In this respect the BIT is governing, and in its Article 1(3)(b) Cyprus and Hungary
have agreed that a Cypriot “investor” protected by that treaty includes a “legal person
constituted or incorporated in compliance with the law” of Cyprus, which each Claimant is
conceded to be. Nothing in Article 25(2)(b) of the ICSID Convention militates otherwise,
as it grants standing to “any juridical person which had the nationality” of Cyprus as of the
time the Parties consented to this arbitration. As the matter of nationality is settled
unambiguously by the Convention and the BIT, there is no scope for consideration of
customary law principles of nationality, as reflected in Barcelona Traction, which in any
event are no different. In either case inquiry stops upon establishment of the State of
incorporation, and considerations of whence comes the company's capital and whose
nationals, if not Cypriot, control it are irrelevant.
358. The Respondent makes reference to the principle of “piercing the corporate veil”.
Although that principle does exist in domestic legal practice in some jurisdictions, it is
rarely and always cautiously applied. Further, it would be inapplicable in this case. The
reason is that this principle only applies to situations where the real beneficiary of the
business misused corporate formalities in order to disguise its true identity and therefore to
avoid liability. In this case, however, Hungary was fully aware of the use of Cypriot
entities and manifestly approved it. Therefore, it is the opinion of the Tribunal that the
Respondent’s “source of funds” and “control” arguments as well as the “piercing the
corporate veil” argument cannot stand.
359. The Tribunal cannot find a “genuine link” requirement in the Cyprus-Hungary BIT
either. While the Tribunal acknowledges that such requirement has been applied to some
preceding international law cases, it concludes that such a requirement does not exist in the
current case. When negotiating the BIT, the Government of Hungary could have inserted
this requirement as it did in other BITs concluded both before and after the conclusion of
the BIT in this case. However, it did not do so. Thus such a requirement is absent in this
case. The Tribunal cannot read more into the BIT than one can discern from its plain text.
360. The legal authority the Respondent heavily relies upon in its objection is the famous
Dissenting Opinion of Professor Prosper Weil in the Tokios Tokelés case. In that case,
Professor Weil opined, in the minority, that to ignore the origin of capital when
determining the nationality of the corporation claimant would run against “the object and
purpose of the ICSID Convention”. This Tribunal, however, concurs with the majority
opinion in Tokios Tokelés and holds that the origin of capital is not a relevant factor in
determining the Claimants’ nationality. This is not only because the majority opinion in
Tokios Tokelés still represents good international law, but also because, in essence, the fact
pattern in Tokios Tokelés differs substantially from the facts in this case and thus renders
Professor Weil’s conclusion, be it reasonable or not, inapplicable. In Tokios Tokelés, the
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Tribunal was asked to deal with the situation where the corporate claimant of one BIT State
Party was effectively owned and controlled by the nationals of the other BIT State Party.
But this is not the case here. In the present case, nationals of a third State, with substantial
business interests and the express consent of the Hungarian Government, incorporated the
Claimants in Cyprus. In the light of these facts and the above reasons, the Tribunal
concludes that the Dissenting Opinion of Professor Weil is not applicable and must be
disregarded at least on the facts of this case.
361. With regard to the Respondent’s argument concerning the Canadian Government’s
involvement in the early stages of this dispute, the Tribunal cannot see how it can affect the
application of the well-established international law rule applicable in this case. The BIT
applies or it does not. It cannot be made to disapply simply because, rightly or wrongly,
the Claimants’ shareholders appealed for help to Canada.
362. In conclusion, the Tribunal is of the opinion that the Claimants are nationals of
Cyprus and this dispute is between a Contracting State and nationals of another Contracting
State under the ICSID Convention and there is nothing in the Cyprus-Hungary BIT that
requires any different result.
5. Does the dispute fall within the scope of Art. 7 of the BIT?
363. Article 25(1) of the ICSID Convention requires the parties’ “consent in writing” to
arbitration before the Centre. The consent of Hungary to the institution of the proceedings
before ICSID can be found in Article 7(2)(c) of the Treaty. The Claimants consented to
ICSID arbitration by their letter of consent dated November 29, 2002 which consent was
confirmed by their lodging of their Request for Arbitration with the Centre on July 27,
2003.
6. Conclusion on Jurisdiction
364. Based on a thorough consideration and careful analysis of the facts found through the
arbitration proceedings and the terms of the Convention, the Hungary-Cyprus BIT and
applicable customary international law, the Tribunal is satisfied that it has full jurisdiction
to hear all of the claims made in this case.
C. Expropriation
365. The Tribunal now proceeds to consider the legal issues at the very heart of the present
dispute, i.e., has the Respondent breached any provision of the BIT by depriving the
Claimants of their investments? And if so, what are the consequences?
366. The Parties’ positions submitted in different rounds of submissions in this regard are
summarized as follows.
367. As mentioned in paragraphs 210 to 218 above, the Claimants’ fundamental positions
as set forth in their Memorial are that the Claimants’ investment and the benefits to be
69
derived therefrom in and related to the Airport and the Airport Project were unlawfully and
unjustifiably deprived by the Respondent through its unexpected, unjustified, illegal and
non-compensatory appropriation in December 2001.
368. The Claimants contend that the Amending Act, the Decree and the actions taken in
reliance thereon by the Respondent constitute a deprivation measure under Article 4 of the
BIT, which, for the ease of reading, is set out again below:
“ Article 4
1. Neither Contracting Party shall take any measures depriving, directly or
indirectly, investors of the other Contracting Party of their investments unless
the following conditions are complied with:
(a) The measures are taken in the public interest and under due process of
law;
(b) The measures are not discriminatory;
(c) The measures are accompanied by provision for the payment of just
compensation.
2. The amount of compensation must correspond to the market value of the
expropriated investments at the moment of the expropriation.
3. The amount of this compensation may be estimated according to the
laws and regulations of the country where the expropriation is made.
4. The compensation must be paid without undue delay upon completion of
the legal expropriation procedure, but not later than three months upon
completion of this procedure and shall be transferred in the currency in which
the investment is made. In the event of delays beyond the three-months’
period, the Contracting Party concerned shall be liable to the payment of
interest based on prevailing rates.
5. Investors of either Contracting Party who suffer losses of their
investments in the territory of the other Contracting Party due to war or other
armed conflict or state of emergency in the territory of the other Contracting
Party, shall be treated, with respect to the compensations for these losses, as
Investor of any third State.”
369. The Claimants emphasized that the wording of Article 4(1), compared with that in
many other BITs, has a “very broad reach” so the Decree and the actions taken in reliance
thereon by the Respondent fall well into the orbit of this provision.
370. The Claimants further contend that Article 4 of the BIT above stipulates four
conditions for the deprivation measures to be deemed lawful. They are, respectively, (a)
that the measures are taken in the public interest; (b) that the measures are taken under due
process of law; (c) that the measures are non-discriminatory and (d) that the measures are
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accompanied by provision for the payment of just compensation. The Claimants claim that
the measures taken by the Respondent met none of these conditions and therefore are
unlawful.
371. The arguments made by the Claimants with respect to each of these four conditions in
their Memorial are as follows:
372. With regard to the first condition that the deprivation measures must be taken in the
public interest, the Claimants contend that nowhere in the Amending Act or in the Decree
were public interest even proffered or articulated. Neither has the Respondent ever
articulated any public interest justification to the Claimants before, during or after the
taking. Nor is the financial purpose backing the expropriation reported in the Hungarian
press and attributed to officials of the Hungarian Government sufficient to be a “public
interest” justification.
373. Further, the Claimants contend that while the stated purpose of the initial overall
statutory amendments was to harmonize Hungarian law with European Union law and
policy, the intended purpose of the inclusion of a prohibition of transfer provision was in
fact to exclude foreign investors from the operation of the Airport. Moreover, although it
was mentioned in the Amendment Motion presented by Dr. Kosztolányi which resulted in
the Amendment Act that the prohibition was for the “strategic interest connected” of
Hungary, the meaning of said “strategic interest of the State” was never specified.
374. The Claimants conclude therefore that no “public interest” justification can be found
and the Respondent fails to meet this first condition in Article 4 of the BIT.
375. The Claimants’ contention that the taking was not made under due process of law
expands in two steps under the headings of “Minimum Treaty Standard” and “Additional
Treaty Requirements”.
376. Under the heading of “Minimum Treaty Standard”, after referring to some
international law literature discussing the meaning of “due process of law” in the
expropriation context, the Claimants contend that in order for the Respondent to effect the
taking under due process of law, it should have provided the Claimants with an opportunity
to seek judicial review of the Amending Act and the Decree. At least, the Claimants
proceed to argue, a “legal expropriation procedure” as mandated by Article 4 of the BIT
should have been set up by the Respondent and such a procedure should have at a
minimum provided the Claimants reasonable notice and the right to a fair hearing and an
impartial adjudicator.
377. The Claimants contend that in contrast, however, the self-evident facts in the instant
case indicate that the Respondent provided for the Claimants no procedure at all.
378. Under the second heading of “Additional Treaty Requirements”, the Claimants refer
to Article 3 of the BIT which, for the ease of reading, is set out in part below again:
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“ Article 3
1. Each Contracting Party shall ensure fair and equitable treatment to
the investment of investors of the other Contracting Party and shall not
impair, by unreasonable or discriminatory measure, the operation,
management, maintenance, use, enjoyment or disposal thereof by those
investors.
2. More particularly, each Contracting Party shall accord to such
investment full security and protection which in any case shall not be less than
that accorded to investments of investors of any third State.
…”
379. The Claimants contend, in light of Article 3, that the Respondent failed to provide the
Claimants “fair and equitable treatment”. According to the Claimants, the Amending Act,
the Decree and the actions taken in reliance thereon destroyed the Claimants’ basic
expectation to have their contractual rights honoured and were imposed on the Claimants to
their total surprise. The Claimants further claim that the lack of “due process” amounts to
a denial of justice which in turn constitutes a breach of the “fair and equitable treatment”
requirement. The Claimants also argue that the Respondent failed to accord “full security
and protection” to the Claimants’ investment as required under Article 3(2) of the BIT.
380. In regard to the third condition of non-discrimination, the Claimants contend that the
Amending Act, the Decree and the actions taken in reliance thereon were discriminatory in
that all are specifically targeted at the Claimants and the Claimants only.
381. Finally, the Claimants contend that the measures taken by the Respondent were not
accompanied by “provision of just compensation” and no compensation was ever paid, “let
alone ‘without undue delay’”. In so arguing, the Claimants claim that an expropriation not
accompanied by provision for the payment of just compensation is unlawful per se under
the BIT.
382. As a result of the above, the Claimants conclude that the Decree and the actions taken
in reliance thereon were illegal and constituted an internationally wrongful act.
383. The Respondent denies the Claimants’ allegations above entirely and vigorously. In
its Counter-Memorial, the Respondent asserts that it has not violated the BIT and it has not
taken a measure that deprives the Claimants of their investments. It contends that even if
such a measure was found to have been taken, it was lawful because the measure met all of
the conditions specified in Article 4 of the BIT. The Respondent also denies that any of the
other standards of protection specified in Article 3 of the BIT has been violated, which are
(a) fair and equitable treatment, (b) no discriminatory measure and (c) full security and
protection.
384. At the outset of its rebuttal, the Respondent raises the argument that the Claimants
argument as to unlawful expropriation is “misconceived” in that it denies the Respondent’s
inherent and essential international law right to “regulate its own economy, to enact and
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modify laws, to secure the proper application of law and to accede to international
organizations”. The Respondent refers to international investment law jurisprudence and
contends that when an investor invests in a State, it subjects itself to the regulatory regime
of and assumes the risk of being regulated by the host State.
385. Next the Respondent contends that the BIT’s deprivation standard is narrower in
scope and that it should be interpreted “consistently with Hungarian law.” It asserts that
the BIT in this case is narrower in scope than other investment treaties and the term
“deprivation” is narrower than the term “expropriation”.
386. The Respondent proceeds to argue that because Article 4 of the BIT refers to
“depriving measures” only, the cases relied upon by the Claimants that apply the wider
concept of expropriation are not relevant to the present case.
387. The Respondent then contends that in order for there to be an expropriation, two
conditions must be present at the same time, namely (a) that the measures taken constitute a
substantial deprivation and (b) that the measure is permanent.
388. The Respondent concludes, however, that neither of these two conditions is met in
this case.
389. The Respondent agues that the Claimants have not been substantially deprived of
their contractual rights, nor has there been any permanence in the effect of the Decree on
their rights. According to the Respondent, the Claimants still possess said rights and the
remedies to enforce those rights in the form of UNCITRAL Rules arbitration still exist.
Therefore, it cannot be said that there has been an expropriation of those rights. The
Respondent asserts that due to the fact that the Claimants failed to use the remedies agreed
upon in the Project Agreements, any deprivation which might have taken place is neither
substantial nor permanent.
390. The Respondent also argues that while the implementation of the Decree “impacted”
the Project Company’s operation, because there has been no substantial deprivation of the
Claimants’ rights caused by the Decree, there is no causal link between the Decree and any
loss suffered by the Claimants.
391. After establishing the above preliminary defence, the Respondent proceeds to build
its second level of defence by arguing that even if the Tribunal finds that there was an
expropriation of the Claimants’ investments, the depriving measure taken by the
Respondent was lawful in that the measure was in the public interest, under due process of
law and was not discriminatory.
392. With respect to public interest, the Respondent contends that the actions amending
the transport legislation and enacting the Ministerial Decree were important elements of the
harmonization of the Government’s transport strategy, laws and regulations with EU law in
preparation of Hungary’s accession to the EU in May 2004. The Respondent also contends
73
that the legislative changes were in “the strategic interests of the State” though it does not
continue to substantiate this argument with details.
393. With respect to due process of law, the Respondent firstly contends that the actions
taken by the Respondent were not arbitrary but were carefully considered and formulated in
accordance with Hungarian laws and policies as well as EU regulations in the light of
Hungary’s accession to the EU.
394. Secondly, the Respondent claims that contrary to the Claimants’ case that they were
in a complete surprise when being notified of the legislative changes, the Claimants were
fully aware of these proposed changes well before actions were taken to effect them. The
Respondent also contends that the Claimants were also fully aware of the activities of BA
Rt which was established in October 2001 for the sole purpose to operate the Airport as a
result of the Decree.
395. The Respondent further contends that contrary to the Claimants’ allegation that no
procedure at all was provided, Hungarian law does provide the Claimants a number of
methods to review the expropriation in question. The Respondent also refers to the
argument it made before that the Claimants retained their contractual rights for dispute
resolution.
396. In conclusion, the Respondent claims that the actions taken by the Hungarian
Government were not unfair, unreasonable, nor unjustifiable.
397. With respect to discriminatory treatment, the Respondent rebuts the Claimants’
contention that they were the only targets under the Amending Act and the Decree by
saying that no other foreign parties were involved in the operation of the Airport. It also
contends that the prohibition set forth in the Amending Act and the Decree applies against
all persons and business entities other than the statutorily appointed operator and therefore
cannot be said to be discriminatory against the Claimants.
398. With respect to compensation, the Respondent contends that ATAA did seek to settle
the accounts of the Project Company but it was the Claimants who failed to cooperate. In
addition, the Respondent claims that in any event, provision for obtaining just
compensation for expropriation is available under Hungarian law by applying to the
Hungarian courts.
399. Concerning the Claimants’ contention that the Respondent by taking the depriving
actions also breached other standards of protection stipulated in Article 3 of the BIT, the
Respondent firstly denies that the Tribunal has jurisdiction to hear these claims. The
Respondent then claims that if the Tribunal finds its jurisdiction in this regard, all
allegations of breach of Article 3 of the BIT are denied.
400. In particular, the Respondent claims that Article 3 of the BIT does not provide
definitions of “fair and equal treatment”, “unreasonable or discriminatory measures” or
“full security and protection” and the meaning of these key phrases can only be determined
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under the specific circumstances of each specific case. In this case, the Respondent
contends that the Claimants failed to establish a prima facie case that the Respondent
breached any of these requirements.
401. The second round of arguments concerning the Respondent’s liability in its depriving
actions starts with the Claimants’ Reply.
402. In response to the Respondent’s argument that by taking the depriving actions it is in
fact exercising its inherent and essential international law right to regulate its own economy
and to enact and modify its laws, the Claimants assert that such a claim is “nonsense” in
that the State’s right to regulate is not absolute and is subject to the duty to compensate in
the event of an expropriation. The Claimants contend that it is a “truism” that a State’s
right to regulate is subject to respect for the rule of law, including treaty obligations, as
well as obligations imposed by customary international law. Where a State fails to act in
accordance with the rule of law or breaches a treaty obligation, it shall be liable and must
compensate a party who suffers prejudice as a result thereof.
403. The Claimants contend that it is not enough for the Respondent to justify its depriving
actions with a broad-brush argument of “right to regulate” and neither the BIT nor
customary international law supports such a contention. The Claimants then refer to the
awards in a number of expropriation-related cases and assert that the obligation to
compensate in the event of expropriation is widely recognized. The Claimants contend that
the issue to be determined in the present case is not whether the Respondent felt justified to
take the actions in question, but whether the measures taken fall within the terms of Article
4 of the BIT. To this question, the Claimants again emphasise their answer in the
affirmative.
404. The Claimants then proceed to make their defence against the Respondent’s claims in
respect of the scope of Article 4 of the BIT.
405. The Claimants contend in the first place that Hungarian laws do not apply to the
interpretation of the BIT’s deprivation standard and there is no legal basis for the
Respondent to argue that the BIT should be read to be consistent with Hungarian domestic
law.
406. Second, the Claimants argue that the Respondent has failed to find any case to
support its contention that the BIT is narrower in scope than other investment treaties and
that the term “deprivation” is narrower than the term “expropriation.” Contrarily, the
Claimants quote a recent OECD report on this topic and contend that these two expressions
are frequently used in conjunction with one another. The Claimants therefore
reemphasised that the Respondent’s Decree and related actions are the direct cause of the
Claimants’ loss of their investment, and accordingly they squarely fall within the scope of
Article 4.
407. Next the Claimants rebut the Respondent’s contention that, due to the reason the
Claimants still possess the right to UNCITRAL Rules arbitration under the Project
75
Agreements, the “conditions of expropriation” have not been met. The Claimants’
response to this argument is that in nature the present case is a State-investor expropriation
case rather than a contractual dispute as mischaracterized by the Respondent. As a result,
the Claimants contend that the case law relied upon by the Respondent is not applicable to
this case.
408. Regarding the Respondent’s denial of its failure to meet the requirements for a lawful
expropriation in Article 4, besides points already made in the first round of debate, the
Claimants’ further rebuttal arguments are listed as follows:
409. In respect of public interest, the Claimants contend that no evidence has been offered
by the Respondent to explain how public interest was served and the “harmonization with
EU law” and “strategic interests of the State” arguments remain hollow.
410. In respect of due process of law, the Claimants contend that the Respondent’s version
of the story that the Claimants were well aware of the forthcoming legislative changes in
advance is groundless. The Claimants emphasized by referring the Tribunal to the witness
statements of Messrs. Huang and Onozo that the Claimants were never made aware of the
fact and never suspected that the transformation of the ATAA would entail the
expropriation of their investment and the frustration of the Project Agreements. The
Claimants also claim that the Respondent does not provide any evidence of a connection
between the alleged “need to transform the ATAA” and the frustration of the Project
Agreements. According to the Claimants, such a connection does not exist.
411. In respect of non-discrimination, the Claimants contend that the Respondent’s
argument that not only the Claimants but all foreign investors are prohibited from operating
the Airport in fact helps the Claimants’ position that as foreign investors, the Claimants are
specifically targeted by the Amending Act, the Decree and the actions taken in reliance
thereupon.
412. In respect of just compensation, the Claimants reiterate that no expropriation
procedures were even in place and contend that the arguments such as “accounts
settlement” or “resort to Hungarian courts” do not in any way provide evidence of
compliance with the obligation to provide for the payment of just compensation to the
Claimants.
413. As regards other protection requirements in Article 3 of the BIT, the Claimants
reiterate their position that the actions taken by the Respondent violated these obligations.
414. The Respondent, as represented by its new counsel, raises some further arguments in
response to the Claimants’ rebuttal above in its Rejoinder.
415. As to the State’s right to regulation under international law, the Respondent claims
that if the state discerns that the beneficiary of the concession right operates in several areas
not in line with the legal regulations, then the State has the right to restore order of its law.
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416. The Respondent also contends by referring to awards in prior expropriation-related
cases that the recourse to national remedies was necessary in order to substantiate an
alleged deprivation.
417. For the first time, the Respondent raises the point that the Claimants could have
sought legal remedies before the Hungarian Constitutional Court by contesting the legality
of the Amending Act and the Decree but failed to do so.
418. With respect to public interest, the Respondent refers to a provision in the Hungarian
Expropriation Act which reads as follows:
“Public interests…
Section 4(1) Real estate properties may be expropriated for the following
purposes:…
f) transportation.”
The Respondent then concludes that measures taken by the Respondent in dispute were
actually for the public interest.
419. With respect to due process of law, the Respondent argues that the legislative process
was public and the Claimants were able to inform themselves about the content of the
amendment at any time. Further, the Respondent denies the allegation that no procedure
was provided at all by saying that the Constitutional Court of Hungary was specifically
established for a discontented party to request for judicial review of whatever it believes to
be in conflict with the Constitution.
420. With respect to non-discrimination, the Respondent claims that since discrimination
can only be argued when a comparable party which was treated differently exists, it is not
possible to refer to discrimination in the present case due to the fact no such comparable
parties exist.
421. With respect to just compensation, the Respondent claims that the Claimants have
obtained significant benefits through the Project and such benefits meet the “just
compensation” requirement. In any event, the Respondent claims, just compensation can
be obtained by the Claimants by applying to the Hungarian courts under Hungarian law.
422. Finally, the Respondent again denies that it breached any other standard of protection
in Article 3 of the BIT.
Discussion
(a) State’s Right to Regulate
423. The Tribunal cannot accept the Respondent’s position that the actions taken by it
against the Claimants were merely an exercise of its rights under international law to
regulate its domestic economic and legal affairs. It is the Tribunal’s understanding of the
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basic international law principles that while a sovereign State possesses the inherent right
to regulate its domestic affairs, the exercise of such right is not unlimited and must have its
boundaries. As rightly pointed out by the Claimants, the rule of law, which includes treaty
obligations, provides such boundaries. Therefore, when a State enters into a bilateral
investment treaty like the one in this case, it becomes bound by it and the investmentprotection
obligations it undertook therein must be honoured rather than be ignored by a
later argument of the State’s right to regulate.
424. The related point made by the Respondent that by investing in a host State, the
investor assumes the “risk” associated with the State’s regulatory regime is equally
unacceptable to the Tribunal. It is one thing to say that an investor shall conduct its
business in compliance with the host State’s domestic laws and regulations. It is quite
another to imply that the investor must also be ready to accept whatever the host State
decides to do to it. In the present case, had the Claimants ever envisaged the risk of any
possible depriving measures, the Tribunal believes that they took that risk with the
legitimate and reasonable expectation that they would receive fair treatment and just
compensation and not otherwise.
425. The Respondent’s contentions as to a State’s right to regulate and the investor’s
assumption of risk are therefore rejected.
(b) The Scope of Article 4 of the BIT
426. It is obvious to the Tribunal that the measures taken by the Respondent against the
Claimants fall well within the scope of Article 4 of the BIT. The logic in the Respondent’s
argument that the deprivation standard set out in Article 4 should be interpreted
“consistently with Hungarian law” is hard for the Tribunal to see and follow. Neither is the
Tribunal attracted by the Respondent’s effort in differentiating the meaning and scope of
the terms of “deprivation” and “expropriation”. In the Tribunal’s view, the plain language
(“any measure depriving…directly or indirectly…investors…of their investment”) of
Article 4 says what it says and there is no room for the Respondent to challenge its broad
scope of coverage nor to read it down.
427. The Respondent’s arguments on the issue of the scope of Article 4 are therefore
rejected.
428. The Tribunal now proceeds to examine each requirement specified in Article 4 of the
BIT.
(c) Public Interest
429. The Tribunal can see no public interest being served by the Respondent’s depriving
actions of the Claimants’ investments in the Airport Project.
430. Although the Respondent repeatedly attempted to persuade the Tribunal that the
Amending Act, the Decree and the actions taken in reliance thereon were necessary and
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important for the harmonization of the Hungarian Government’s transport strategy, laws
and regulations with the EU law, it failed to substantiate such a claim with convincing facts
or legal reasoning.
431. The reference to the wording “the strategic interest of the State” as used in the
Amendment Motion by Dr. Kosztolányi does not assist the Respondent’s position either.
While the Tribunal has always been curious about what interest actually stood behind these
words, the Respondent never furnished it with a substantive answer.
432. In the Tribunal’s opinion, a treaty requirement for “public interest” requires some
genuine interest of the public. If mere reference to “public interest” can magically put such
interest into existence and therefore satisfy this requirement, then this requirement would
be rendered meaningless since the Tribunal can imagine no situation where this
requirement would not have been met.
433. With the claimed “public interest” unproved and the Tribunal’s curiosity thereon
unsatisfied, the Tribunal must reject the arguments made by the Respondent in this regard.
In any event, as the Tribunal has already remarked, the subsequent privatization and the
agreement with BAA renders this whole debate somewhat unnecessary.
(d) Due Process of Law
434. The Tribunal concludes that the taking was not under due process of law as required
by Article 4 of the BIT.
435. The Tribunal agrees with the Claimants that “due process of law”, in the
expropriation context, demands an actual and substantive legal procedure for a foreign
investor to raise its claims against the depriving actions already taken or about to be taken
against it. Some basic legal mechanisms, such as reasonable advance notice, a fair hearing
and an unbiased and impartial adjudicator to assess the actions in dispute, are expected to
be readily available and accessible to the investor to make such legal procedure
meaningful. In general, the legal procedure must be of a nature to grant an affected
investor a reasonable chance within a reasonable time to claim its legitimate rights and
have its claims heard. If no legal procedure of such nature exists at all, the argument that
“the actions are taken under due process of law” rings hollow. And that is exactly what
the Tribunal finds in the present case.
436. One of the Respondent’s defences in this regard is that the Claimants were aware of
the depriving actions well before the legislative changes were adopted in December 2001.
The Tribunal finds this assertion groundless. To recall, Dr. Kiss testified at the hearing that
it was not until January 2002 that he first heard that the Project Company would be
displaced and its operations taken over. Similarly, Mr. Gansperger denied at the hearing
that he had any knowledge that the legislative changes were contemplated prior to the date
they were adopted. Assuming these statements are true and correct, which the Tribunal
does not accept, they would contradict the logic in the Respondent’s argument. For if
persons at the very centre of the decision making body had no prior knowledge of the
79
contemplated legislative changes, how could it be expected and argued that a foreign
investor should have had such knowledge well in advance? Setting this evidence aside, the
accepted evidence of Mr. Somogyi-Tóth indicates that the discussions of the takeover
stayed well within governmental circles. The Tribunal therefore does not believe, as the
Respondent has suggested, that Mr. Huang and his colleagues should have known the
content of such discussions before the legislative changes were adopted on December 18,
2001.
437. The Respondent also failed to establish a connection between the “need to transform
the ATAA” and the deprivation of the Claimants investments in the Airport Project.
438. As to Respondent’s argument that Hungarian law does provide methods for the
Claimants to review the expropriation, the Tribunal fails to see how such claim was
substantiated and in any event cannot agree in the light of the facts established in this case
that there were in place any methods to satisfy the requirement of “due process of law” in
the context of this case.
439. The Respondent’s argument that the Claimants still retain their contractual rights for
dispute resolution is also unacceptable to the Tribunal due to the non-contractual nature of
the current dispute.
440. The Respondent’s arguments in respect of “due process of law” are therefore rejected.
(e) Non-discrimination
441. The Tribunal cannot accept the Respondent’s argument that as the only foreign
parties involved in the operation of the Airport, the Claimants are not in a position to raise
any claims of being treated discriminately.
442. It is correct for the Respondent to point out that in order for a discrimination to exist,
particularly in an expropriation scenario, there must be different treatments to different
parties. However and unfortunately, the Respondent misses the point because the
comparison of different treatments is made here between that received by the Respondentappointed
operator and that received by foreign investors as a whole.
443. The Tribunal therefore rejects the contentions made by the Respondent and concludes
that the actions taken by the Respondent against the Claimants are discriminatory.
(f) Just Compensation
444. It is abundantly obvious to the Tribunal that no just compensation was provided by
the Respondent to the Claimants and feels no need to expand its discussion here.
(g) Protection Standards under Article 3 of the BIT
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445. As regards other investment protection standards set out in Article 3 of the BIT, the
Tribunal has no objection to the approach suggested by the Respondent that the meaning of
“fair and equitable treatment”, “unreasonable or discriminatory measures” and “full
security and protection” are to be determined under the specific circumstances of each
specific case. However, in the light of the facts established in this case and under the above
approach, the Tribunal is satisfied to conclude that these requirements under Article 3 have
all been breached by the Respondent.
D. Miscellaneous Points Raised by the Respondent
446. In the Respondent’s Rejoinder, under the heading “Legal Risks of the Project” in subsection
B of Section VI Quantum, the Respondent raises the following points for the first
time:
a. the Operating Period Lease is invalid “due to the inappropriate legal form of
the Project Company”;
b. the Project Agreements are invalid “due to the missing approval” of a
quotaholders’ meeting of the Project Company;
c. the Project Agreements, especially the Operating Period Lease and Terminal
Management Agreement, are subject to challenges because there is “a grossly
unfair difference in value” regarding the service rendered and consideration for
that service;
d. the Terminal Management Agreement is “unlawful” since conclusion of this
agreement violated the Public Procurement Act.
447. The Claimants set forth their rebuttal to each of these points in their Sur-Rejoinder.
448. Although these arguments are raised as arguments in response to Claimants’ claim for
damages, it seems appropriate for the Tribunal to deal with them at this point and of course,
if they are valid, take them into account when accessing quantum.
1. Is the Operating Period Lease Invalid “Due to the Inappropriate Legal Form of
the Project Company”?
449. The Respondent contends that the Operating Period Lease is invalid “due to
inappropriate legal form of the Project Company”. The Respondent’s legal basis of this
argument is Section 45 of Act No. XCVII on Air Traffic (the “Air Traffic Act”). The
relevant parts of Section 45 are as follows1
:
“(1) For the establishment, development, renovation, maintenance and
operation of Budapest Ferihegy International Airport, and within this scope,
1
The translation of this Section 45 by the Claimants differs from that by the Respondent. However, the
Tribunal notes that the discrepancies in translation only exist at a linguistic level and the substance of both
translations is the same. The translation quoted here is from that provided by the Claimants in their Sur-
Rejoinder.
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for the construction and operation of ground service facilities (hereinafter
“operation”), the State shall:
a) establish a business organization (Section 685(c) of the Hungarian Civil
Code) operating with majority interest of the State or shall found a budgetary
agency; or
b) shall transfer the temporary right of operation within the framework of a
concession agreement.
(2) The Minister shall be entitled to announce and evaluate the tender for the
concession and to conclude the concession agreement.
…
(4) The winner of the tender shall establish the concession company as a
company limited by shares, which shall be entitled to construct and operate
commercial and catering facilities.”
450. It is contended by the Respondent that due to the fact that the Project Company
received from the Government of Hungary certain operational rights by means of a
concession, the Project Company is in nature a concessionaire. As such, in order to comply
with Section 45, the Project Company should have been incorporated as a company limited
by shares (Rt.). The Project Company, however, was incorporated in contravention of the
requirement in Section 45 as a limited liability company (Kft.).
451. The Respondent goes on to contend that according to the Hungarian Civil Code (Act
IV/1959), Section 200(2), “contracts in violation of legal regulations and contracts
concluded by evading a legal regulation shall be null and void”. The conclusion it reaches,
therefore, is that since the Project Company’s incorporation was in violation of a relevant
legal requirement, i.e. Section 45 of the Air Traffic Act, “any person is thus entitled to
plead the invalidity of the agreement due to violation of legal regulations without any time
limit”. Accordingly, the Respondent claims that the Operating Period Lease concluded by
the Project Company is invalid.
452. On the other hand, the Claimants contend that Section 45(1)(b) is not applicable in
this case. The reason is that the ATAA, the majority quotaholder of the Project Company,
is a budgetary agency under Section 45(1)(a) and maintains the right of operation of the
Airport. The Project Company, under the Operating Period Lease, only has the right to
perform entrepreneurial operations and such operation is subject to the monitoring and
supervision of ATAA. In addition, Hungary has a majority interest in the Project Company
via ATAA’s majority quotaholding. Thus the legal requirement under Section 45(1)(a) has
been fully met and the application of Section 45(1)(b) is not applicable .
453. The Claimants also contend that ATAA, as a budgetary agency of the Hungarian
Government, has provided a full warranty in the Operating Period Lease as to its
competence to enter into the same as well as the validity thereof. Further, after almost nine
years since the execution of the Operating Period Lease, the argument made by the
Respondent that the Operating Period Lease is invalid should be time-bared.
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454. The Claimants further contend that even if the Respondent were correct in its
contentions concerning Section 45(1)(b) and Section 45(4), if any breach of the legal
requirement thereof exists, it is the Respondent, rather than the Claimants, who should bear
the legal consequence of the breach because it is the duty of the Respondent under Section
45 to adopt appropriate measures to comply with it. The Claimants refer to Section 4 of
the Hungarian Civil Code, which states that “no person shall be entitled to refer to his own
actionable conduct in order to obtain advantages”. They also refer to the statement of
official commentators on the Hungarian Civil Code that “if any entity caused invalidity by
its own actionable conduct the same entity is not entitled to refer to the invalidity of the
agreement”.
Discussion
455. The Tribunal finds the arguments of the Claimants convincing. It is established that
ATAA, at the time of the execution of the Operating Period Lease, was a budgetary agency
of the Hungarian Government. It is also established that ATAA is a majority quotaholder
in the Project Company with a quotaholding of 66%. Given these established facts, it
appears to the Tribunal that the project structure, which was under the mandate of the
Respondent and features ATAA as a majority quotaholder in the Project Company, falls
squarely within the situation specified in Section 45(1)(a). Since the key word connecting
Section 45(1)(a) and (b) is “or”, as appeared in translations from both Parties, the Tribunal
is satisfied that Section 45(1)(b) does not apply to this case as the legal requirement in
Section 45(1)(a) was fully met.
456. Even if the Tribunal were wrong in concluding the above, the Respondent would still
be time-barred to challenge the validity of the Operating Period Lease. In considering this
contention, the Tribunal cannot ignore the fact that the whole structure of these complex
interwoven agreements was insisted upon and voluntarily entered into by organs of the
Hungarian Government. The Hungarian Government provided a guarantee. Still
furthermore, the Respondent was represented by eminent external and internal legal and
financial advisors. It is difficult for the Tribunal to conclude that such a defect as is alleged
would not have been noticed. However, this point is only taken at a very late stage in these
proceedings which themselves commenced many years after the matters complained of.
Even though the Respondent contends that there is no time limit on the right to contest the
validity of the Operating Period Lease, it is the opinion of the Tribunal that the “five-year
time bar” rule generally accepted by Hungarian judicial practice applies on the facts of this
case. As was stated in the Concept of the New Hungarian Civil Code:
“It is disputed and will remain so what the term ‘without time limit’ means.
In the monograph written by Emilia Weiss about invalid contracts, she
correctly stated more than three decades ago that there is no reason why the
five-year limitation period applicable for all contractual claims shall not
apply to invalid agreements as specified in the Civil Code (the same is
confirmed in the following rulings of the Supreme Court: Pf. IV. 21768/1993:
83
BH 1994/666, Gf. V. 30398/1981:BH 1982/298.). The proposal recommends
that these principles shall be prescriptively set out in legislation.”
2. Are the Project Agreements Invalid “Due to the Missing Approval” of a
Quotaholders’ Meeting of the Project Company?
457. The Respondent contends that in accordance with Item 8.2.7. of the Articles of
Association of the Project Company and the Hungarian Company Act effective at the time
of the incorporation of the Project Company, when a company is concluding a contract
with a member of that company, the approval of a quotaholders’ meeting was necessary to
make such a contract valid. The Operating Period Lease in the Project, the Respondent
submits, is a contract between the Project Company and ATAA, a quotaholder and member
of the Project Company. Accordingly, the approval of the Quotaholders’ Meeting of the
Project Company “would have been necessary for all Project Agreements as well as for
valid issuance of the Promissory Note”.
458. At this point, the Respondent refers to a published decision of the Hungarian Supreme
Court which reads as follows:
“I. Establishment of a sale and purchase agreement of the company with its
own Quotaholder is not to be regarded as being part of the regular activities
of the Company, thus in case the Quotaholders’ Meeting has not approved of
such an agreement in its decision, invalidity of the agreement may be
ascertained.”
459. Given the Hungarian Supreme Court’s attitude expressed above and due to the fact
that the said approvals were missing, the Respondent contends that the Project Agreements
concluded by the Project Company are invalid.
460. The Claimants’ rebuttal to this argument is threefold. The Claimants firstly point out
that not all of the Project Agreements were concluded between the Project Company and a
member thereof. Rather, a number of the Project Agreements are between two members of
the Project Company in which cases there is no need for an approval of a quotaholders’
Meeting.
461. Secondly, the Claimants argue that in the same paragraph of the Hungarian Company
Act (ignored by the Respondent), it is clearly stated that where the conclusion of the
contract “is part of the regular activity of the company”, the approval from a quotaholders’
meeting is unnecessary.
462. The Claimants then refer to the Master Agreement and the constitutional document of
the Project Company and argue that the Project Company was established for the sole
purpose of the Project and the conclusion of the Operating Period Lease fell well within its
“regular activity”. Therefore, there was no need for the Project Company to obtain
quotaholders’ meeting approval to conclude the Operating Period Lease.
84
463. Thirdly, the Claimants argue that a quotaholders’ meeting of the Project Company did
approve the conclusion of all of the Project Agreements. In this regard, the Claimants refer
to the minutes of the quotaholders’ Meeting dated February 26, 1997 as follows:
“Authorization for the Company and the management to sign various
agreements and documents, to take all actions that are necessary or desirable
in connection therewith, and to fulfil all of the Company’s obligations arising
from these agreements and the related documents.”
464. The Claimants contend that the above indicates that approval of the Project
Agreements was on the agenda of a quotaholders’ meeting and a resolution concerning the
approval under [the No.4/1997] has been duly and unanimously adopted and registered in
the Book of Resolutions.
Discussion
465. In the light of the documentary evidence before it and the applicable sections of the
Hungarian Company Act, the Tribunal sees no basis for the Respondent’s “lack of
necessary approval” argument.
466. It appears clear to the Tribunal that the Quotaholders have granted their approval to
the execution of the Project Agreements. It is also clear to the Tribunal that the Project
Company, as a company vehicle in a complex investment project, was incorporated for the
sole purpose of taking part in the Project.
3. Is There “a Grossly Unfair Difference in Value” Regarding the Service Rendered
and Consideration for That Service?
467. The Respondent argues that there is “a grossly unfair difference in value” between
the service provided by the Claimants and the “counter performance” provided by ATAA.
Under Section 201 of the Hungarian Civil Code, when such a “grossly difference in value”
exists, ATAA as the “injured party” in this case, “was entitled to raise objection against
Claimants under the Project Agreements”. The Section reads as follows:
“Section 201
(1) Unless the contract or the applicable circumstances expressly indicate
otherwise, a consideration is due for services set forth in the contract.
(2) If at the time of the conclusion of the contract the difference between the
value of a service and the consideration due, without either party having the
intention of bestowing a gift, is grossly unfair the injured party shall be
allowed to contest the contract.”
468. There are thus three conditions which have to be met before this section of the Code
bites. They are:
85
a) at the time of the conclusion of the contract;
b) a grossly unfair difference in value must exist between the service and the
consideration due for the service; and
c) the aggrieved party shall not have the intention of bestowing a gift.
469. The Claimants contend that such conditions are not established and that the
Respondent’s argument is unfounded. The Claimants refer to Decision No. PK 267 of the
Civil Law Department of the Hungarian Supreme Court, which the Claimants contend are
the “guidelines” for Hungarian judicial practice in this regard. Decision No. PK 276 states:
“If a contract is challenged due to the grossly unfair difference in value
between the service and the consideration due, in order to determine whether
such difference is unfair the courts shall examine the circumstances of
concluding the contract, the full content of the contract, the relation between
the market values, the characteristics of the given transaction, the method of
defining the services and the consideration due.
…
Section 201(2) grants the right to challenge a contract only if the difference
between the service and the consideration due is grossly unfair. […] Thus
only after evaluating all of the circumstances of the case can it be stated that
there is not only a difference between the value of the service and the
consideration but that difference is also grossly unfair.”
470. Based on the observations quoted above from Decision No. PK 267, the Claimants
contend that considering all the circumstances of the structuring of the Project and the
conclusion of the Project Agreements, no grossly unfair difference in value existed.
Additionally, the Claimants make the following arguments in response to the Respondent’s
claim as well:
a) there was no legal risk at the time of expropriation since the ATAA did not
challenge the Project Agreements;
b) the ATAA did not challenge the Operating Period Lease and the Terminal
Management Agreement; and
c) the Respondent never had a right to challenge the Project Agreements and that
right was only available to ATAA.
Discussion
471. The Tribunal is clearly of the view that section 201 of the Hungarian Civil Code
could not have been intended to apply to the facts of this case. This is not a case involving
parties with markedly different bargaining power – a situation for which most legal systems
attempt to provide. ATAA, backed by the Hungarian State, entered into these agreements
with full knowledge of all the facts and for good and genuine reason. The Tribunal does
not think it necessary to analyse the benefits received by ATAA because they were, in the
opinion of the Tribunal, real and substantial. No challenge to any of the Project
Agreements was ever made until well into these proceedings. These arguments are far
86
removed from the thinking of the parties at the relevant time. It is also noted that ATAA
has never challenged these agreements. It is only Hungary now that seeks to do so as a
shield to fend off this claim under the BIT. For all of the above reasons, the Respondent’s
submissions to this point are rejected.
4. Did the Conclusion of the Terminal Management Agreement Violate the Public
Procurement Act and Therefore Became “Unlawful”?
472. The Respondent contends that due to the fact that the Claimants “had exclusive
licenses to provide national public services”, according to the Act XL/1995 on Public
Procurement, the Project Company cannot validly enter into the Project Agreements
without going through public procurement proceedings. Since the Project Company failed
to go through such proceedings, the Project Agreements it concluded are unlawful.
473. The Claimants in response state that such argument is entirely baseless. The
Claimants firstly challenge the Respondent’s contention by stating that “it is not up to the
Claimants or the Respondent to decide what qualifies as national public service” and the
statutory provision pursuant to which the Claimants may be deemed to have an exclusive
right to provide national public services does not exist and no public procurement
proceeding was required in this case. The Claimants then argue that the ATAA not only
was fully aware of the contents of the relevant Project Agreements, but also “represented
and warranted that the agreement constitutes a valid, legal and binding obligation…”
Discussion
474. This contention is unsustainable. Again an attempt is being made to challenge the
validity of an agreement which was entered into with the full approval of the Respondent
and which formed part of a complex structure of agreements. The whole corporate
structure was insisted upon and/or fully approved by those representing the Respondent.
ATAA took the benefits conferred by the Terminal Management Agreement and made no
complaint about it at the time, nor at the time of the Decree, nor when the first round of
Memorials had been completed. This point was only raised very late in these proceedings.
If in fact the Project Company should have gone through some public procurement system,
it can only be the fault of ATAA and the Respondent that they did not. ATAA went further
and gave representations and warranties set out above and it would, in the opinion of the
Tribunal, be unconscionable to permit them, at this very late stage, to resile from these
representations and warranties. Furthermore, it is far too late now to complain of a matter
of this nature given the factual scenario set out above.
Hungary’s Conduct
475. Even if the Respondent was correct in any of its submissions on the miscellaneous
points dealt with in Section D above, they would nevertheless fail on them simply because
they have rested on their rights. These Agreements were entered into years ago and both
parties have acted on the basis that all was in order. Whether one rests this conclusion on
the doctrine of estoppel or a waiver it matters not. Almost all systems of law prevent
87
parties from blowing hot and cold. If any of the suite of Agreements in this case were
illegal or unenforceable under Hungarian law one might have expected the Hungarian
Government or its entities to have declined to enter into such an agreement. However
when, after receiving top class international legal advice, Hungary enters into and performs
these agreements for years and takes the full benefit from them, it lies ill in the mouth of
Hungary now to challenge the legality and/or enforceability of these Agreements. These
submissions smack of desperation. They cannot succeed because Hungary entered into
these agreements willingly, took advantage from them and led the Claimants over a long
period of time, to assume that these Agreements were effective. Hungary cannot now go
behind these Agreements. They are prevented from so doing by their own conduct. In so
far as illegality is alleged, they would in any event be seeking to rely upon their own
illegality. This matter is put to rest by Section 4 of the Hungarian Civil Code which states:
“4. §(1) In the course of exercising civil rights and fulfilling obligations, all
parties shall act in the manner required by good faith and honesty, and they
shall be obliged to cooperate with one another.
…
(4) Unless this Act prescribes stricter requirements, it shall be necessary to
proceed in civil relations in a manner deemed reasonable under the given
circumstances. No person shall be entitled to refer to his own actionable
conduct in order to obtain advantages. Whosoever has not proceeded in a
manner deemed reasonable under the given circumstances shall be entitled to
refer to the other party’s actionable conduct.”
E. Conclusion on Matters Other Than Quantum
476. The conclusion of the Tribunal on matters other than quantum are as follows:
a) the Tribunal has jurisdiction to hear and consider all the claims made by the
Claimants in this case;
b) all of Hungary’s jurisdictional arguments are rejected;
c) all of the points raised by Hungary as set out in paragraph 446 above (whether
going to liability or quantum) are rejected;
d) the expropriation of the Claimants’ interest constituted a depriving measure under
Article 4 of the BIT and was unlawful as: (a) the taking was not in the public
interest; (b) it did not comply with due process, in particular, the Claimants were
denied of “fair and equitable treatment” specified in Article 3(1) of the BIT and
the Respondent failed to provide “full security and protection” to the Claimants’
investment under Article 3(2) of the BIT; (c) the taking was discriminatory and
(d) the taking was not accompanied by the payment of just compensation to the
expropriated parties.
F. Quantum
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477. Having reached the conclusions in the foregoing paragraph, the Tribunal now feels
ready to consider the challenging issue of quantum. To recall and for the purpose of the
discussion below, the “date of expropriation” and the “date of taking” both refer to January
1, 2002.
478. The Claimants’ claims for damages are set forth in paragraphs 242 and 243 above.
1. The Applicable Standard for Damages Assessment
479. The applicable standard for assessing damages has given rise to considerable debate
between the Parties.
480. The principal issue is whether the BIT standard is to be applied or the standard of
customary international law. The Claimants argue that the Respondent’s deprivation of its
investments was a breach of the BIT and as an internationally wrongful act is subject to the
customary international law standard as set out in Chorzów Factory (Claim for Indemnity)
(Merits), Germany v. Poland, P.C.I.J. Series A., No. 17 (1928). The Respondent contends
that the BIT standard is a lex specialis which comes in lieu of the customary international
law standard.
481. There is general authority for the view that a BIT can be considered as a lex specialis
whose provisions will prevail over rules of customary international law (see, e.g., Phillips
Petroleum Co. Iran v. Iran, 21 Iran-U.S. Cl. Trib. Rep. at 121). But in the present case the
BIT does not stipulate any rules relating to damages payable in the case of an unlawful
expropriation. The BIT only stipulates the standard of compensation that is payable in the
case of a lawful expropriation, and these cannot be used to determine the issue of damages
payable in the case of an unlawful expropriation since this would be to conflate
compensation for a lawful expropriation with damages for an unlawful expropriation. This
would have been possible if the BIT expressly provided for such a position, but this does
not exist in the present case.
482. The standard set forth in Article 4(1)(a) of the BIT refers to “just compensation.”
Article 4 further provides:
“2. The amount of compensation must correspond to the market value of the
expropriated investments at the moment of the expropriation. 3. The amount
of this compensation may be estimated according to the laws and regulations
of the country where the expropriation is made.”
The latter refers to Hungarian law in the present case. Section 132 of the Hungarian
Constitution provides that expropriation of ownership must be accompanied by “full,
unconditional and prompt compensation” (Respondent’s Counter-Memorial at
para.584).
89
483. Since the BIT does not contain any lex specialis rules that govern the issue of the
standard for assessing damages in the case of an unlawful expropriation, the Tribunal is
required to apply the default standard contained in customary international law in the
present case.
484. The customary international law standard for the assessment of damages resulting
from an unlawful act is set out in the decision of the PCIJ in the Chorzów Factory case at
page 47 of the Judgment which reads:
“reparation must, as far as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed.”
In the same case at page 21, the PCIJ also pointed out that “reparation therefore is
the indispensable complement of a failure to apply a convention.”
485. Moreover, the PCIJ considered that the principles to determine the amount of
compensation for an act contrary to international law are:
“Restitution in kind, or, if this is not possible, payment of a sum corresponding
to the value which a restitution in kind would bear; the award, if need be, of
damages for loss sustained which would not be covered by restitution in kind
or payment in place of it.” (Page 47 of the Judgment.)
486. This statement of the customary international law standard has subsequently been
affirmed and applied in a number of international arbitrations relating to the expropriation
of foreign owned property. Due to the considerable disagreement between the Parties on
the continued existence of this standard it is necessary to recite the authorities in this area
in some detail.
487. In S.D. Myers, Inc. v. Canada, UNICTRAL (NAFTA) Award (Merits), 13 November
2000, the Tribunal stated at para.311:
“The principle of international law stated in the Chorzów Factory (Indemnity)
case is still recognised as authoritative on the matter of general principle”.
488. The Tribunal in Metalclad Corporation v. Mexico, ICSID Case No. ARB(AF)/97/1,
Award, 30 August 2000, held at paragraph 122 of its Award that:
“[t]he award to Metalclad of the cost of its investment in the landfill is
consistent with the principles set forth in Chorzów … namely, that where the
state has acted contrary to its obligations, any award to the claimant should,
as far as is possible, wipe out all the consequences of the illegal act and reestablish
the situation which would in all probability have existed if that act
had not been committed (the status quo ante).”
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489. Moreover, in CMS Gas Transmission Company v. The Argentine Republic, ICSID
Award, Case No. ARB/01/8, 12 May 2005, the ICSID Tribunal stated in para.400 of its
Award the following:
“Restitution is the standard used to re-establish the situation which existed
before the wrongful act was committed, provided this is not materially
impossible and does not result in a burden out of proportion as compared to
compensation.”
490. Similarly, in Petrobart Limited v. The Kyrgyz Republic, Arbitration No. 126/2003,
Arbitration Institute of the Stockholm Chamber of Commerce (Energy Charter Treaty), 29
March 2005, the Tribunal held at pages 77 and 78 of its Award the following:
“Petrobart refers to the judgment of the Permanent Court of International
Justice in the Factory at Chorzów case and to the International Law
Commission’s Draft Articles on State Responsibility for Internationally
Wrongful Acts in order to show that the Kyrgyz Republic is obliged to
compensate Petrobart for all damage resulting from its breach of the Treaty.
The Arbitral Tribunal agrees that, in so far as it appears that Petrobart has
suffered damage as a result of the Republic’s breaches of the Treaty,
Petrobart shall so far as possible be placed financially in the position in
which it would have found itself, had the breaches not occurred.”
491. The Chorzów Factory case has also been generally accepted by Oppenheim’s
International Law which states:
“The principle is clear: out of an international wrong arises a right for the
wronged state to request from the wrong-doing state the performance of such
acts as are necessary for reparation of the wrong done. What kind of acts
these are depends upon the merits of the case. For perhaps the majority of
cases the guiding principle is as laid down in the Chorzów Factory
(Indemnity) case, in the following terms: [the quotation omitted here is of the
passage reproduced above from page 47 of the Judgment]. It is obvious that
there must be pecuniary reparation for any material damage … .” (R.
Jennings and A. Watts, Oppenheim’s International Law (9th
ed., 1996), pages
528-529.)
492. For additional cases affirming and applying the Chorzów Factory standard for the
assessment of damages in the context of expropriation of foreign owned property, see
Amoco International Finance Corporation v. Iran, 15 IRAN–U.S. C.T.R. p.189 at p.246
(paras.191-194); and MTD Equity Sdn Bhd and MTD Chile SA v. Chile, ICSID Case No.
ARB/01/7, 25 May 2004, para.238.
493. Finally, the International Court of Justice itself, the PCIJ's successor, in recent years
repeatedly has reconfirmed the validity, indeed the primacy, of Chorzów Factory as the
standard of compensation for acts by States unlawful under international law. Thus in 1997
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in the Case Concerning the Gabcíkovo-Nagymaros Project, (Hung. v. Slovakia), 1997
I.C.J. 7 (Sept. 25), the Court, having found both Hungary and the Slovak Republic to have
acted wrongfully in connection with a dam project, had been asked to “indicate on what
basis they should be paid,” id. para.152, and in answering such petition referred in the first
instance to Chorzów Factory, quoting the same phrase from that case as is set forth in
paragraph 484 above. In 2001 the Court again, in the LaGrand Case, (Ger. v. U.S.), 2001
I.C.J. 466 (June 27), relied (at para.125) on the Chorzów Factory principle. In its 2002
Judgment in the Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Rep.
Of Congo v. Belg.), 2002 I.C.J. 3 (February 14), the Court again invoked (at para.76) the
very same passage from Chorzów Factory it had cited in the Case Concerning the
Gabcíkovo-Nagymaros Project as noted above (and which is quoted in paragraph 484
above) in connection with its finding that Belgium had committed an internationally
wrongful act and its associated discussion of remedies. Just two years ago, in 2004, the
Court twice had occasion to reconfirm Chorzów Factory's principles. First, the Case
Concerning Avena and other Mexican Nationals, (Mexico v. U.S.), 2004 I.C.J. 12 (March
31) at paras.119-121, relied on the same principle quoted from Chorzów in the GabcíkovoNagymaros,
LaGrand and Arrest Warrant Judgments (and set forth in paragraph 484 above)
in fashioning the relief ordered in its Judgment. Then, in its Advisory Opinion on the
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
2004 I.C.J. 136 (July 9), the Court, after finding the “Wall” in question to be in breach of
various international obligations incumbent on Israel, “recall[ed] that the essential forms of
reparation in customary law were laid down by the Permanent Court of International
Justice in the following terms” and then proceeded in paragraph 152 to invoke the same
passage from Chorzów Factory (as set forth in paragraphs 484 and 485 above) on which it
had relied in the Gabcíkovo-Nagymaros, LaGrand, Arrest Warrant and Avena Cases.
The Court then went on to prescribe actual restitution as the preferred remedy, and in
default thereof equivalent compensation:
“Israel is accordingly under an obligation to return the land, orchards, olive
groves and other immovable property seized from any natural or legal person
for purposes of construction of the wall in the Occupied Palestinian Territory.
In the event such restitution should prove to be materially impossible, Israel
has an obligation to compensate the persons in question for the damage
suffered.” (para.153)
Thus there can be no doubt about the present vitality of the Chorzów Factory principle, its
full current vigor having been repeatedly attested to by the International Court of Justice.
494. It may also be noted that the International Law Commission's Draft Articles on
Responsibility of States for Internationally Wrongful Acts, concluded in 2001, expressly
rely on and closely follow Chorzów Factory. Article 31(1) provides:
“The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.”
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The Commission's Commentary (at (2)) on this Article states that “The general principle of
the consequences of the commission of an internationally wrongful act was stated by the
Permanent Court in the Factory at Chorzów case” and then quotes the identical passage
quoted by the International Court of Justice in all of the cases cited above (and set forth in
paragraph 484 above). The Commission continues in Article 35 of the Draft Articles to
conclude that restitution in kind is the preferred remedy for an internationally wrongful act,
providing in Article 36 that only where restitution cannot be achieved can equivalent
compensation be awarded.
495. The remaining issue is what consequence does application of this customary
international law standard have for the present case. It is clear that actual restitution cannot
take place and so it is, in the words of the Chorzów Factory decision, “payment of a sum
corresponding to the value which a restitution in kind would bear”, which is the matter to
be decided.
496. The present case is almost unique among decided cases concerning the expropriation
by States of foreign owned property, since the value of the investment after the date of
expropriation (1 January 2002) has risen very considerably while other arbitrations that
apply the Chorzów Factory standard all invariably involve scenarios where there has been a
decline in the value of the investment after regulatory interference. It is for this reason that
application of the restitution standard by various arbitration tribunals has led to use of the
date of the expropriation as the date for the valuation of damages.
497. However, in the present, sui generis, type of case the application of the Chorzów
Factory standard requires that the date of valuation should be the date of the Award and not
the date of expropriation, since this is what is necessary to put the Claimants in the same
position as if the expropriation had not been committed. This kind of approach is not
without support. The PCIJ in the Chorzów Factory case stated that damages are “not
necessarily limited to the value of the undertaking at the moment of dispossession” (Page
47 of the Judgment. This passage being cited with approval in Amoco International
Finance Corporation v. Iran, 15 IRAN–U.S. C.T.R. p.189 at p.247 (para.196).) It is
noteworthy that the European Court of Human Rights has applied Chorzów Factory in
circumstances comparable to the instant case to compensate the expropriated party the
higher value the property enjoyed at the moment of the Court's judgment rather than the
considerably lesser value it had had at the earlier date of dispossession. In
Papamichalopoulos and Others v. Greece ((1966) E.H.R.R. 439) (available also on
Westlaw at 1995 WL 1082483 (ECHR)) the Greek Government in 1967 had expropriated
unimproved real estate for the purpose of building housing for Greek Navy personnel, and
in 1993 the Court had ruled that “the applicants de facto…have been expropriated in a
manner incompatible with their right to the peaceful enjoyment of their possession” ((1993)
16 E.H.R.R. 440, paras.35-46 and points 1 and 2 of the operative provisions). In the
remedies stage the Court ruled (para.36), just as in the case here, that “[t]he act of the
Greek Government…contrary to the Convention was not an expropriation that would have
been legitimate but for the failure to pay fair compensation.” The Court continued
(para.36):
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“The unlawfulness of such a dispossession inevitably affects the criteria to be
used for determining the reparation owed by the respondent State, since the
pecuniary consequences of a lawful expropriation cannot be assimilated to
those of an unlawful dispossession.”
Then, citing the oft-quoted passage from Chorzów Factory set forth in paragraph 484
above and repeated by the International Court of Justice on numerous recent occasions as
noted earlier, the Court concluded (para.37):
“In the present case the compensation to be awarded to the applicants is not
limited to the value of their properties at the date [1967] on which the Navy
occupied them. . . For that reason [the Court had] requested the experts
[appointed by the Court] to estimate also the current value of the land in
issue.”
The Court ordered restitution of the land, including all of the buildings and other
improvements made over the intervening years by the Greek Navy, and further (para. 39),
that if restitution would not be made:
“[T]he Court holds that [Greece] is to pay the applicants, for damage and
loss of enjoyment since the authorities took possession of the land in 1967, the
current value of the land, increased by the appreciation brought about by the
existence of the buildings and the construction costs of the latter.”
498. Moreover, Sole Arbitrator Dupuy in Texaco Overseas Petroleum Company v.
Government of the Libyan Arab Republic 53 ILR p.389 cited a number of authorities on the
contours of the principle of restitutio in integrum as set out in the Chorzów Factory case.
Dupuy cited in particular the view of former ICJ President Jiménez de Aréchaga, writing
extra-judicially, who stated:
“The fact that indemnity presupposes, as the PCIJ stated, the ‘payment sum
corresponding to the value which a restitution in kind would bear’, has
important effects on its extent. As a consequence of the depreciation of
currencies and of delays involved in the administration of justice, the value of
a confiscated property may be higher at the time of the judicial decision than
at the time of the unlawful act. Since monetary compensation must, as far as
possible, resemble restitution, the value at the date when indemnity is paid
must be the criterion.”
499. Based on the foregoing reasons, the Tribunal concludes that it must assess the
compensation to be paid by the Respondent to the Claimants in accordance with the
Chorzów Factory standard, i.e., the Claimants should be compensated the market value of
the expropriated investments as at the date of this Award, which the Tribunal takes as of
September 30, 2006.
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500. Consequently, the Tribunal rejects the Claimants’ claim for damages under the unjust
enrichment approach, which, in the Tribunal’s opinion, has not been substantiated by the
Claimants with either sufficient facts or law.
2. Discounted Cash Flow (DCF) Method v. Balancing Payment Method
501. The next focus of the legal debate between the Parties is the appropriate method to
compute the fair market value of the expropriated investments of the Claimants. The
Claimants submit, based on their expert reports, i.e., the LECG reports, that the DCF
method is appropriate in the present case. The Respondent contends that, based on the
NERA Report and the later Hunt Report, a Balancing Payment method is to be followed.
502. Like many other tribunals in cases such as the present one, the Tribunal prefers to
apply the DCF method, although it is mindful of the Respondent’s admonishment that:
“international tribunals have exercised great caution in using the [DCF] method due to its
inherently speculative nature.” (Counter-Memorial at para.590).
503. The Respondent’s Balancing Payment method “is the sum required to provide the
Claimants with an IRR return of 17.5% at the date of termination, after accounting for the
payments already made.” (Counter-Memorial at para.739). In the Tribunal’s view, the
Balancing Payment method does not take into account, at least not sufficiently, the
remaining term of the investments. In this connection, the Regulatory Framework specifies
in Section 4.1 that the term “IRR” is:
“discount rate that equates the discounted value of a stream of cash flows to
the costs of the investment that produced the cash flows, calculated over the
entire life of the investment.” (emphasis added)
Moreover, the Balancing Payment method would imply that investors entering into
an agreement can be excluded therefrom almost the morning after signing. Article 4.5
of the Quotaholders’ Agreement appears not to support Respondent’s proposed
method either because it provides that ATAA
“. . . undertakes that during the Term, it shall not vote its Quotas in favour of
expulsion from the Project Company of any ADC Party that is a Quotaholder
in the Project Company.”
Dr. Hunt also testified that he did not rely on Article 4.5. Rather, one should rely on
Article 4.6 of the Agreement which requires the parties to cooperate in good faith and
act to implement fully the terms of the Agreement. In addition, the Claimants have
demonstrated to the satisfaction of the Tribunal that the Project Company had
insufficient funds, and was unable to obtain those funds externally without the
consent of ADC Affiliate, to effect the Balancing Payment. Consequently, it would
have been impossible for ATAA to have unilaterally accelerated distributions to
bring ADC Affiliate’s IRR to 17.5% as of December 31, 2001.
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504. The Respondent’s argument that the Balancing Payment method shall be used instead
of the DCF method is therefore rejected.
3. The Respondent’s Other Attacks on the LECG Reports
505. Except for the Respondent’s attack on the DCF approach, the Respondent and its
experts also criticize the LECG Reports on many other grounds, which the Tribunal will
now consider in turn.
506. One of the Respondent’s main criticisms concerns LECG’s reliance on the 2002
Business Plan of the Project Company (subject to minor adjustments) as a basis for the
DCF calculations, as incorporated in its own models (the “2002 LECG Model”, “2004
LECG Model” and “2005 LECG Model”), because it would not provide a reliable basis on
which to base projections as to the future performance of the Project Company for the
purposes of assessing damages.
507. The Tribunal disagrees since the 2002 Business Plan was approved by ATAA in a
letter of December 11, 2001, a few days before the Decree was issued that led to the
expropriation and after five drafts had been discussed between the Quota Shareholders.
The 2002 Business Plan, therefore, constitutes the best evidence before the Tribunal of the
expectations of the parties at the time of expropriation for the expected stream of cash
flows. The Respondent has not convincingly shown to the Tribunal that the 2002 Business
Plan was limited to ascertaining whether in the short term Regulated Rates and Charges
were to be changed or that LECG has failed to undertake scenario analysis or sensitivity
testing (which LECG actually did).
508. The estimation of timing and magnitude of cash distributions to ADC Affiliate is,
contrary to Dr. Hunt’s criticism, based on a correct evaluation by LECG of
contemporaneous forecasts of cash distributions as they are derived from the 2002 Business
Plan. Dr. Hunt raised the question why ATAA would defer cash flows to later periods if
the IRR of expected cash flows to ADC Affiliate is likely to be 17.5% maximum. That is
conjecture which is contradicted by projections in the 2002 Business Plan. The same
applies to the two alternative responses to better-than-expected Project Company
performance (i.e., tariff adjustment and dividend waiver).
509. The Respondent further criticises the IRR used by LECG. Schedule C to the
Agreement establishes a target IRR of 15.4% with an upper limit of 17.5%. In the
Tribunal’s view, LECG was justified in using the upper limit. As it is shown by the
Claimants and it is borne out by the events subsequent to the expropriation, the Budapest
Airport is indeed one of the fastest growing airports in the world. That increase in traffic
would certainly have caused an IRR superior to the contractual cap of 17.5%. Furthermore,
the fact that the 2002 Business Plan forecast substantially increased projected dividends in
2010 and 2011 is due to the fact that the Project Loan was scheduled to be repaid by the
beginning of 2009, thereby decreasing the costs of the Project Company and increasing the
revenues that were available for distribution as dividend in 2010 and 2011.
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510. The Respondent’s other criticism relates to the discount factor used by LECG. The
Tribunal notes that the difference between the use of the cost of equity to discount
dividends and promissory notes payments (9.11%) and of the WACC to discount the
Management Fees (8%) is explained by the fact that the Management Fees have seniority
over dividends. Revenue streams from dividends and promissory notes payments are
indeed subordinate to other Project Company cash flows and therefore subject to increased
risk. In this connection, BAA used an identical WACC of 8% for its acquisition in
December 2005.
511. According to LECG, the cost of equity is equal to the return on risk-free securities,
plus systemic risk of the investment (Beta), multiplied by the market risk premium. For a
number of countries, an adjustment for country risk is also made. The Respondent’s
criticism of the use by LECG of the Beta is unfounded. It appears that LECG used a Beta
of various representative airports, and not just one. The Respondent’s assertion that the
market risk premium as used by LECG “may not be conservative” falls short of any
substantiation. The use of the geometric mean estimate rather than the arithmetic mean is
professionally justified. Finally, the Respondent’s contention that the country risk “may be
understated” comes within the same category.
512. The Respondent also contends that LECG should have discounted the present value
of the distributions for illiquidity and absence of control of ADC Affiliate’s interest. The
Tribunal cannot accept these contentions. As is correctly pointed out by Dr. Spiller of
LECG, an illiquidity discount is usually associated with privately held companies that have
erratic or volatile cash flows. Regulated entities, such as the Project Company, do not
typically attract an illiquidity discount because of the relatively stable cash flows associated
with them. This is also shown by BAA’s acquisition of Budapest Airport Rt. on December
22, 2005 which did not involve an illiquidity discount. With respect to the alleged minority
discount, no such discount is required to be applied since ADC Affiliate had adequate
shareholder protections in the Project Agreements.
513. As regards the Management Fees, the Tribunal has already found that they are in
essence deferred compensation for services rendered prior to the Operations
Commencement Date. The Respondent asserts that LECG’s compensation estimate is
extreme as it is close to zero marginal cost. The evidence before the Tribunal shows,
however, that the costs of the ongoing services provided in exchange for the management
fees were approximately 2-3% of the overall fees. As a result, LECG was justified in
making a corresponding deduction in its calculation of damages.
4. Conclusion on Quantification
514. In the light of all of the above, the Tribunal is fully satisfied that (a) the standard of
compensation established in the Chorzów Factory case is the appropriate standard
applicable to this case; (b) the restitution approach claimed by the Claimants shall
accordingly be followed; (c) LECG’s adoption of the DCF method is fully justified; and (d)
the calculations carried out by LECG in line with the foregoing standard, approach and
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method are reasonable and reliable and are endorsed by the Tribunal in calculating the final
amount of damages.
515. With respect to Claimants’ claim relating to Lost Future Development Opportunities
(i.e., the parking garage facility and the additional terminal capacity), the Tribunal is of the
view that they cannot be awarded since the Claimants had no firm contractual rights to
those possible projects. Moreover, Claimants have been unable to quantify, with any fair
degree of precision, the damages that would have resulted from the loss of those alleged
opportunities.
516. The Tribunal would like to point out here that the LECG reports are, in the Tribunal’s
view, an example as to how damages calculations should be presented in international
arbitration; they reflect a high degree of professionalism, clarity, integrity and
independence by financial expert witnesses. LECG’s valuation is fully validated by the
amount of the acquisition by BAA of Budapest Airport Rt. on December 22, 2005, being
US$ 2.23 billion (£1.26 billion) for 75% minus one share and a 75-year assets management
contract plus moveable assets.
5. The Amount of Compensation Payable to the Claimants
517. As dictated by the nature of the restitution approach, an award date has to be
determined in order to calculate the damages. In its first report dated July 29, 2004, LECG
assumed July 31, 2004 as the award date and reached its first total amount of compensation
under the restitution approach of US$66.1 million. In its Supplemental Report dated July
22, 2005, this benchmark date is brought forward to July 2005 and the updated figure is
US$69.7 million. In its Post-Hearing Report, LECG lists the updated amounts of damages
as of different assumed award dates month by month from July 2005 to December 2006.
For the purpose of this Award, the Tribunal takes September 30, 2006, as the likely date of
the Award.
518. The claim for damages under the restitution approach fall into two parts: (a) the
estimated value of the Claimants’ stake in the Project Company as of the award date; and
(b) all unpaid dividends and management fees from the date of expropriation until the date
of the award.
519. Taking September 30, 2006 as the date of the Award, the Tribunal notes that the
Supplemental Report of LECG arrives at a total amount of damages payable to the
Claimants by the Respondent in the sum of US$76.2 million.
520. Since the calculation is based on the value of the expropriated investments as of the
date of the award, no pre-award interest has accrued.
521. The Tribunal is of course grateful to the experts on both sides for their enormous help
on the issue of damages. However the Tribunal feels bound to point out that the
assessment of damages is not a science. True it is that the experts use a variety of
methodologies and tools in order to attempt to arrive at the correct figure. But at the end of
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the day, the Tribunal can stand back and look at the work product and arrive at a figure
with which it is comfortable in all the circumstances of the case. In the light of all of the
above and in the light of the admission that there was a very minor error in LECG’s final
figure (See Ogilvy Renault’s Letter dated May 12, 2006), the Tribunal awards ADC
Affiliate US$55,426,973 and ADC & ADMC Management US$20,773,027 both sums to
carry interest at 6% per annum with monthly rests until payment. Such interest rate is the
same as the interest rate agreed by the parties in the Promissory Note.
522. As to post-Award interest, contrary to Respondent’s submission, the current trend in
investor-State arbitration is to award compound interest. Respondent relies on the
statement “[t]here are few rules within the scope of the subject of damages in international
law that are better settled than the one that compound interest is not allowable” by
Marjorie Whiteman in Damages in International Law (1943) Vol. III at 1997. While the
Iran-U.S. Claims Tribunal echoed Ms. Whiteman’s statement, tribunals in investor-State
arbitrations in recent times have recognized economic reality by awarding compound
interest (see, e.g., Middle East Cement Shipping Co. S.A. v. Arab Republic of Egypt, Final
Award, 12 April 2002, ICSID Case No. ARB/99/6, at paras.174-175). In paragraph 104 of
the award in Compañía del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica
(ICSID Case No. ARB/96/1), the Tribunal recognized that the reason for compound
interest was not “to attribute blame to, or to punish, anybody for the delay in the payment
made to the expropriated owner; it is a mechanism to ensure that the compensation
awarded the Claimant is appropriate in the circumstances”. Accordingly, the Tribunal
determines that interest is to be compounded on a monthly basis in the present case.
G. Return of the Shares and Promissory Notes
523. As previously noted, Claimant ADC Affiliate has undertaken to return its shares in
the Project Company (i.e., 34%) to Respondent upon payment of the sum awarded by the
Tribunal (see paras.248-249 supra). Accordingly, the Tribunal orders ADC Affiliate to
transfer the unencumbered ownership in those shares to Respondent immediately after
receipt of payment in full of the sum awarded in this Award (including interest and cost).
The promissory notes shall be deemed to have ceased to have any legal force and effect
upon payment in full of the sum awarded in this Award (including interest and costs).
524. For the sake of completeness, the Tribunal rules that all claims raised by the
Claimants but not specifically dealt with in this Award are dismissed and that all defences
raised by the Respondent not specifically dealt with in this Award are likewise rejected.
H. Costs
525. Both Parties sought the costs of this arbitration in the event that they were successful.
526. The Tribunal ordered the Parties to set out their claims for costs in a brief schedule.
527. By letter dated August 21, 2006, Ogilvy Renault presented the Tribunal and the
Respondent with a schedule claiming US$7,623,693 in respect of the Claimants’ costs and
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expenses of this arbitration which included the sum of US$350,000 paid to ICSID as
deposit towards the fees and expenses of the arbitral Tribunal.
528. On the same date the Tribunal received a letter from the Bodnár Law Firm with a
schedule claiming US$4,380,335 in respect of the Respondent’s costs and expenses of this
arbitration which included the sum of US$350,000 paid to ICSID as deposit towards the
fees and expenses of the arbitral Tribunal.
529. The Claimants’ counsel filed their comments on the Respondent’s schedule of costs
on September 6, 2006, and on September 18, 2006, the Tribunal received from the
Respondent’s counsel comments on the Claimants’ claims for costs. The Respondent
contended that the amount of the Claimants’ costs and expenses was excessive and should
be reduced. The Respondent noted that the Claimants’ costs and expenses exceeded the
Respondent’s costs and expenses by approximately 74%. The Respondent makes the point
that such a difference was incomprehensible. Accordingly, the Respondent requests the
Tribunal to reduce the recoverable amounts of the Claimants’ costs to a reasonable degree
taking into account the costs and expenses of the Respondent.
1. Principle
530. It is clear from Article 61(2) of the ICSID Convention and Rule 28 of the ICSID
Arbitration Rules that the Tribunal has a wide discretion with regard to costs.
Article 61(2) states:
“in the case of arbitration proceedings the Tribunal shall, except as the
parties otherwise agree, assess the expenses incurred by the parties in
connection with the proceedings, and shall decide how and by whom those
expenses, the fees and expenses of the members of the Tribunal and the
charges for the use of the facilities of the Centre shall be paid. Such decision
shall form part of the award.”
Rule 28 provides:
“(1) Without prejudice to the final decision on the payment of the cost of the
proceeding, the Tribunal may, unless otherwise agreed by the parties, decide:
(b) at any stage of the proceeding, the portion which each party
shall pay, pursuant to Administrative and Financial Regulation 14, of
the fees and expenses of the Tribunal and the charges for the use of the
facilities of the Centre;
(c) with respect to any part of the proceeding, that the related costs
(as determined by the Secretary-General) shall be borne entirely or in a
particular share by one of the parties.
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(2) Promptly after the closure of the proceeding, each party shall submit to
the Tribunal a statement of costs reasonably incurred or borne by it in
the proceeding and the Secretary-General shall submit to the Tribunal
an account of all amounts paid by each party to the Centre and of all
costs incurred by the Centre for the proceeding. The Tribunal may,
before the award has been rendered, request the parties and the
Secretary-General to provide additional information concerning the cost
of the proceeding.”
531. Further, it can be seen from previous awards that ICSID arbitrators do in practice
award costs in favour of the successful party and sometimes in large sums (see for example
CSOB v. Slovakia – US$10 million).
532. In a recent article titled Treaty Arbitration and Investment Dispute: Adding up the
Costs by M. Weiniger & M. Page, 2006 1:3 Global Arb. Rev.44), the authors state that
“[r]ecently, … some tribunals [in investment arbitration] have adopted a more robust
approach, seeing no reason to depart form the principle that the successful party should
have its costs paid by the unsuccessful party, as adopted in commercial arbitration.”
533. In the present case, the Tribunal can find no reason to depart from the starting point
that the successful party should receive reimbursement from the unsuccessful party. This
was a complex, difficult, important and lengthy arbitration which clearly justified
experienced and expert legal representation as well as the engagement of top quality
experts on quantum. The Tribunal is not surprised at the total of the costs incurred by the
Claimants. Members of the Tribunal have considerable experience of substantial ICSID
cases as well as commercial cases and the amount expended is certainly within the
expected range. Were the Claimants not to be reimbursed their costs in justifying what
they alleged to be egregious conduct on the part of Hungary it could not be said that they
were being made whole.
2. Quantum
534. At the outset it is worth recalling the wise comments of Howard Holtzmann who said:
“A test of reasonableness is not, however, an invitation to mere subjectivity.
Objective tests of reasonableness of lawyers’ fees are well-known. Such tests
typically assign weight primarily to the time spent and complexity of the case.
In modern practice, the amount of time required to be spent is often a gauge
of the extent of the complexity involved. Where the Tribunal is presented with
copies of bills for services or other appropriate evidence, indicating the time
spent, the hourly billing rate, and a general description of the professional
services rendered, its task need be neither onerous nor mysterious. The range
of typical hourly billing rates is generally known and, as evidence before the
Tribunal in various cases including this one indicates, it does not greatly
differ between the United States and countries of Western Europe, where both
claimants and respondents before the Tribunal typically hire their outside
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counsel. Just how much time any lawyer reasonably needs to accomplish a
task can be measured by the number of issues involved in a case and the
amount of evidence requiring analysis and presentation. While legal fees are
not to be calculated on the basis of the pounds of paper involved, the Tribunal
by the end of a case is able to have a fair idea, on the basis of the submissions
made by both sides, of the approximate extent of the effort that was
reasonably required.
Nor should the Tribunal neglect to consider the reality that legal bills are
usually first submitted to businessmen. The pragmatic fact that a businessman
has agreed to pay a bill, not knowing whether or not the Tribunal would
reimburse the expenses, is a strong indication that the amount billed was
considered reasonable by a reasonable man spending his own money, or the
money of the corporation he serves. That is a classic test of reasonableness.”
(Separate opinion of Judge Holtzmann at 7; reported in Iranian Assets
Litigation Reporter 10, 860, 10, 863; 8 Iran-US C.T.R. 329, 332-333.)
535. In addition to the obvious good sense of the passage cited above there are a number of
features in this case which justify the Tribunal in ordering the Respondent to reimburse the
Claimants the full amount of their legal and other expenses of this arbitration. However, at
the outset, the Tribunal should make clear that it is quite satisfied that the amount claimed
for costs by the Claimants is reasonable in amount having regard to all the circumstances of
this case. The Tribunal rejects the submission that the reasonableness of the quantum of
the Claimants’ claim for costs should be judged by the amount expended by the
Respondent. It is not unusual for claimants to spend more on costs than respondents given,
among other things, the burden of proof. Although at the outset both sides were
represented by top class international law firms, the Respondent changed counsel before
the hearing and took on an able and dynamic younger legal team. The Respondent also
engaged Dr. Hunt at the very last minute in place of its former expert firm NERA
Consulting. All these factors can explain the discrepancy between the two sides’ costs and
expenses.
536. The other factors are as follows. Firstly, the Tribunal has concluded that Hungary
made no attempt to honour its obligations under the BIT. Hungary acted throughout with
callous disregard of the Claimants’ contractual and financial rights.
537. Secondly, the Respondent took every conceivable point and put the Claimants to
strict proof of every aspect of their case. Some of the points taken were unarguable but
nevertheless they added to the time and cost of this arbitration.
538. Thirdly, the Respondent put forward an overly burdensome document request which
the Tribunal ordered should be completely re-cast and which was.
539. Fourthly, not only did the Respondent change counsel in mid-arbitration thereby
causing some extra expense, but it also changed experts at the very last minute. On change
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of counsel, the Respondent sought an adjournment of the long fixed hearing dates which
were properly opposed by the Claimants and rejected by the Tribunal.
540. Fifthly, the Tribunal can find no evidence of duplication of effort as between the cocounsel
engaged by the Claimants. In fact, to the contrary, the division of labour at the
hearing seemed most appropriate and was conducive to a smooth hearing.
541. The Tribunal hastens to add that no criticism whatsoever can be leveled at the new
legal team which conducted the actual hearing with ability, clarity, expedition and above all
extreme courtesy.
542. In the light of the foregoing, the Tribunal has no hesitation in concluding that it would
be wholly appropriate, as well as just, in the exercise of its discretion to order the
Respondent to reimburse the Claimants the sum of US$7,623,693 in respect of their costs
and expenses in this arbitration.
THE AWARD
543. Having heard and read all the submissions and evidence in this arbitration, the
Tribunal AWARDS AND ORDERS AS FOLLOWS:
1) within 30 days of the date of this Award, the Respondent shall pay to ADC
Affiliate Ltd. the sum of US$55,426,973 together with interest thereon calculated
from the 30th day following the date of this Award at the rate of 6% per annum
compounded with monthly rests until payment;
2) within 30 days of the date of this Award, the Respondent shall pay to ADC &
ADMC Management Ltd. the sum of US$20,773,027 together with interest
thereon calculated from the 30th day following the date of this Award at the rate
of 6% per annum compounded with monthly rests until payment;
3) within 30 days of the date of this Award, the Respondent shall pay to the
Claimants the sum of US$7,623,693 in full satisfaction of both Claimants’ claims
for costs and expenses of this arbitration together with interest thereon calculated
from the 30th day following the date of this Award at the rate of 6% per annum
compounded with monthly rests until payment;
4) immediately upon receipt of all of the sums referred to in paragraphs 1), 2) and 3)
above, ADC Affiliate Ltd. shall transfer the unencumbered ownership in all its
shares in the Project Company to the Respondent and to its order.
544. The Tribunal wishes to make clear that it has read and taken into account all of the
voluminous material submitted to it in this arbitration even if not every point has been
replicated herein. Finally, the Tribunal would like to thank and pay tribute to both legal
teams for their clear, concise, able and courteous submissions at all stages of this difficult
arbitration and particularly at the hearing.
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________Signed_______
Professor Albert Jan van den Berg
Dated this 25th
day of September 2006
_________ Signed _______
The Honorable Charles N. Brower
Dated this 22nd
day of September 2006
_______Signed ____
Neil T. Kaplan CBE, QC
President
Dated this 27th
day of September 2006
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Appendix 1 Claimants’ Chart 3
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