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Published:
Last Updated:
22 Sep 2019

No Remedy for an Investor’s own Mismanagement: The award in the ICSID case Biwater Gauff vs Tanzania

Author: Epaminontas Triantafilou

On July 24, 2008, a panel of distinguished arbitrators (Gary Born, Toby Landau, Bernard Hanotiau) rendered an award in the case of Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania.1 The ICSID Tribunal refused to award damages to an Anglo- German consortium that filed a claim against the Republic of Tanzania under the UK-Tanzania Bilateral Investment Treaty (BIT). The Tribunal’s ruling came in the wake of an award in favor of Tanzania in an UNCITRAL arbitration initiated by the parties to resolve their purely contractual (i.e., non-treaty) differences. The main thrust of the Biwater Gauff decision, endorsed by the Tribunal’s majority,2 is that while Tanzania’s actions may have constituted prima facie violations of certain BIT provisions, they did not cause injury to the claimant’s venture. Consequently, the claimant was not entitled to compensation. In the course of its discussion, the Tribunal made some important observations with respect to the notion of legal injury and the proper conceptualization of “investment” in ICSID arbitration. It also offered a reminder that ICSID arbitration is not meant to be an insurance policy against an investors’ miscalculations and/or fiscal mismanagement. Finally, the Tribunal offered some remarks on the role of amici curiae in the arbitral proceedings.

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