AsiaPhos Limited and Norwest Chemicals Pte Ltd v People's Republic of China - ICSID Case No. ADM/21/1 - Award of the Tribunal incl. Dissenting Opinion Stanimir A. Alexandrov - 16 February 2023
The dispute concerns the alleged violation of Respondent's obligations under the Treaty with respect to alleged investments made by Claimants in the phosphate industry in the PRC. Prior to Respondent's alleged unlawful acts, Claimants held, through their wholly- owned Chinese subsidiary Sichuan Mianzhu Norwest Phosphate Chemical Co. ("Mianzhu Norwest"), mining and exploration licenses for two phosphate mines, i.e., the Cheng Qian Yan mine ("Mine 1") and the Shi Sun Xi mine ("Mine 2"). Claimants further own two plants which at the time of the impugned acts produced yellow phosphorus using phosphate rocks extracted from Mines 1 and 2. In addition, First Claimant directly or indirectly holds a 55% equity interest in Deyang Fengtai Mining Co. Ltd ("Deyang Fengtai"), a Chinese company which held an exploration license and exploration rights for the Yingxiongya barite mine ("Mine 3", together with Mine 1 and Mine 2 the "Mines"). The Mines and the downstream plants are located in Mianzhu City, Sichuan Province, PRC. The Mines are located in an area where the PRC's central government set up the pilot Giant Panda National Park (the "Panda Park") in 2017. Mines 2 and 3 are also situated in the Jiudingshan Nature Reserve, which the Sichuan provincial government established for giant panda conservation in 1999....
DECISION BY THE ARBITRAL TRIBUNAL
232. For the above reasons, the Tribunal hereby decides as follows:
I. the PRC's Bifurcated Jurisdictional Objection is granted. The Tribunal finds that it does not have jurisdiction over any of Claimants' claims.
II. Claimants shall bear the costs of the arbitration, i.e., the fees and expenses of the members of the Tribunal as well as ICSID's administrative fees and direct expenses, in the total amount of USD 560,818.02, in full. Consequently, Claimants shall reimburse to Respondent an amount of USD 280,409.01.
III. Claimants shall further bear the costs incurred by Respondent in connection with these arbitration proceedings and, thus, reimburse to Respondent an amount of CNY 6,351,402.48.
IV. Claimants shall pay to Respondent post-award interest on the amount of costs to be reimbursed under II and III as from the 90 th day following the date of dispatch of this Award until the date of payment at a rate corresponding to the US Prime Rate, compounded annually.
V. All further requests raised by the Parties are denied.
Dissenting Opinion Stanimir A. Alexandrov:
Although I have the greatest respect for my two colleagues (the "Majority"), it is my view that they have erred in interpreting the relevant provisions of the Agreement between the Government of the People's Republic of China and the Government of the Republic of Singapore on the Promotion and Protection of Investments (the "China-Singapore BIT" or "Treaty"), 1 and, in particular, the scope of Respondent's consent under Article 13(3) of the Treaty. The correct interpretation is that the scope of Respondent's consent to arbitration under the Treaty covers Claimants' claims for indirect expropriation.