The Tribunal declined jurisdiction over a dispute brought by Australian companies.
The case arose out of agreements for the supply of high speed fuel and diesel generators. The Claimants’ argued that the State consented to ICSID arbitration through incorporation by reference, signed agreements of an ICSID arbitration clause contained in their Standard Terms. They alleged that the Respondent received a copy of the Standard Terms on three occasions, one time during a meeting and two times via e-mails with the Terms attached.
The State claimed that the e-mails and the account of the meeting had been fabricated. The claimants denied the manipulation of evidence.
The Tribunal did not expressly establish fraud against Claimants, but neither did it accept their evidence. Furthermore, the Tribunal stressed that even if these facts were proven, provision of the Standard Terms (without evidence of acceptance of such a clause) is insufficient to establish the consent to ICSID arbitration. Claimants could not rely on the offer of ICSID arbitration contained in the Foreign Investment Law, as they did not qualify as
foreign investors. Under the law, they should have applied for a foreign investor’s certificate.