Summary

Partial Award on Jurisdiction

TABLE OF CONTENTS

INTRODUCTION
The Parties
The Dispute
Background

PROCEDURAL HISTORY
Commencement of the Arbitration
Constitution of the Tribunal
Adoption of the Terms of Appointment and Procedural Order No. 1 (Rules of Procedure)
Memorial
Request for Disclosure of Funding Agreement (Procedural Order No. 2)
Decision on Bifurcation (Procedural Order No. 3)
Written Submissions on Preliminary Objections
Non-Disputing Party Submission
Hearing on Preliminary Objections (Procedural Order No. 4)
Post-Hearing Matters
Requests for Relief

OBJECTION UNDER ARTICLE 10.20.4 OF THE TREATY (OBJECTION 1)
Summary of Factual Allegations Relevant to Objection 1
The Respondent's Position
1. Preconditions for a Direct Negotiation as a Matter of Peruvian Law
2. Whether a Direct Negotiation was Ever Commenced
3. Right to a Contract
4. Protection of Expectations
5. Whether Declaratory Relief is an Available Remedy Under the USPTPA
The Claimant's Position
1. Preconditions for a Direct Negotiation as a Matter of Peruvian Law
2. Whether a Direct Negotiation was Ever Commenced
3. Right to a Contract
4. Protection of Expectations
5. Whether Declaratory Relief is an Available Remedy Under the USPTPA

THE TRIBUNAL'S ANALYSIS OF OBJECTION 1
1. The Direct Negotiation Procedure
2. The Legal Experts are Agreed that the Direct Negotiation Procedure is Started by
An Applicant's "Letter of Interest"
3. The Respondent's Expert, Mr. Vizquerra, Acknowledged that After Receipt of a "Letter of Interest" the Direct Negotiation Procedure 8 Obliged PeruPetro to Take a Number of Administrative Steps
4. In the Circumstances, the Respondent's Argument that PeruPetro Never Issued a "Qualification Certificate" to Mr. Amorrortu or Baspetrol Would Not Prevent an Award in the Claimant's Favor
5. The Respondent Contends that PeruPetro's President, Mr. Ortigas, Did Not Have the Authority to Give the Instructions Alleged by Mr. Amorrortu
6. The Respondent Contends that Direct Negotiations Never Actually Began
7. The Respondent Contends that the Facts Alleged by Mr. Amorrortu Concerning the International Public Tender, Even if Established, Do Not Constitute a Claim for Which an Award in his Favor May be Made Under USPTPA Article 10.26
8. Conclusion with Respect to the Respondent's Application Under Article 10.26.4 of the USPTPA

OBJECTION UNDER ARTICLE 10.18.2 OF THE TREATY (OBJECTION 4)
The Respondent's Position
1. Formal Requirements
2. Substantive Requirements
3. Whether the Waiver May Be Cured
4. Estoppel
The Claimant's Position
1. Formal Requirements
2. Substantive Requirements
3. Whether the Waiver May Be Cured
4. Estoppel
The Position of the United States of America

THE TRIBUNAL'S ANALYSIS OF OBJECTION 4 BASED ON NON-COMPLIANCE WITH ARTICLE 10.18.2

The Formal and Substantive Requirements for a Valid Waiver
Has the Claimant Provided a Valid Waiver?
Decision of the Tribunal Majority Professor Bernard Hanotiau and Mr. Toby Landau, Q.C.
Upholding the Respondent's Objection 4 Based on the Claimant's Invalid Waiver
Dissenting Opinion of the Honourable Ian Binnie, C.C., Q.C., on Objection 4

DECISION

...

THE DISPUTE

5. The dispute concerns the Respondent's alleged frustration of the Claimant's legitimate expectations to obtain a contract to perform oil drilling and extraction operations in oil Blocks III and IV of the Talara Basin, in the Province of Talara, Piura Region, Peru. In particular, the Claimant asserts that Peru ignored the rights he acquired directly to negotiate the contracts for Blocks III and IV ("Direct Negotiation(s)), and instead initiated a "rigged" public bidding process to favor another company, Graña y Montero S.A.A. ("Graña y Montero"), based on corrupt motives

6. The Claimant claims that, through this conduct, the Respondent violated its fair and equitable treatment ("FET") obligations under the United States-Peru Trade Promotion Agreement, ratified by Peru in June 2006, signed by the United States on December 14, 2007 and entered into force on February 1, 2009 (the "USPTPA" or the "Treaty").

7. The Respondent has advanced one objection under Article 10.20.4 of the Treaty and five jurisdictional objections under Article 23(3) of the Arbitration Rules of the United Nations Commission on International Trade Law, as revised in 2013 (the "UNCITRAL Rules").2 By its Decision on Bifurcation, dated January 21, 2021 (the "Decision on Bifurcation") the Tribunal ordered the bifurcation of the proceedings, such that two of those objections would be decided as preliminary questions: (i) the Respondent's objection under Article 10.20.4 of the Treaty ("Objection 1"); and (ii) the Respondent's objection that Mr. Amorrortu did not submit a valid waiver as required under Article 10.18.2(b) of the Treaty ("Objection 4").3 In this Partial Award, the Tribunal decides Objections 1 and 4 (together, the "Preliminary Objections").

8. For the reasons that follow, Objection 1 is dismissed but, by majority of the Tribunal, Objection 4 is upheld and the claim is dismissed for lack of jurisdiction.

....

DECISION

289. For the reasons outlined above, the Tribunal by majority:

(i) finds that the Claimant has failed to comply with the requirement of Article 10.18.2(b) of the USPTPA by not providing a compliant waiver within the deadline specified in Article 10.16.4 of the USPTPA;

(ii) finds that the Claimant has failed to establish the requirements for the Respondent's consent to arbitrate under the USPTPA;

(iii) rejects the Claimant's request for leave to amend his Notice of Arbitration in order to attempt to cure his defective waiver;

(iv) dismisses the Claimant's claims for lack of jurisdiction; and

(v) reserves the issue of costs pending receipt of the submissions from the Parties, after which the Tribunal will render a Final Award.

...

Footnotes omitted.