Nachingwea U.K. Limited (UK), Ntaka Nickel Holdings Limited (UK) and Nachingwea Nickel Limited (Tanzania) v United Republic of Tanzania - ICSID Case No ARB/20/38 - Award - 14 July 2023
Country
Year
2023
Summary
AWARD
Members of the Tribunal
Mr. Cavinder Bull SC, President
Mr. Doak Bishop
Justice Sanji Mmasenono Monageng
TABLE OF CONTENTS
I. INTRODUCTION AND PARTIES
II. PROCEDURAL HISTORY
III. FACTUAL BACKGROUND
A. The development of the Project
B. Measures adopted by Tanzania from 2017
IV. THE PARTIES' CLAIMS AND REQUESTS FOR RELIEF
V. JURISDICTION
A. Nationality requirements under the BIT and the ICSID Convention
B. Whether the Claimants' claims arise directly out of their investment in Tanzania
(1) Parties' Positions
(2) The Tribunal's Analysis
C. Whether the Claimants' investment has to be "actively" made
(1) Parties' Positions
(2) The Tribunal's Analysis
a. Whether an investment must be "actively made"
b. In any event, whether the Claimants made an "active" investment
D. Whether the proper forum is the Tanzanian courts
(1) Parties' Positions
(2) The Tribunal's Analysis
E. Conclusion on jurisdiction
VI. LIABILITY
A. Overview
B. Whether there was expropriation
(1) Substantial deprivation
a. Parties' Positions
b. The Tribunal's Analysis
(2) Of a permanent nature
a. Parties' Positions
b. The Tribunal's Analysis
(3) Without justification under the police powers doctrine
a. Parties' Positions
b. The Tribunal's Analysis
C. Lawfulness of the expropriation
(1) In accordance with due process of law
a. Parties' Positions
b. The Tribunal's Analysis
(2) Public purpose
a. Parties' Positions
b. The Tribunal's Analysis
(3) Non-discriminatory basis
a. Parties' Positions
b. The Tribunal's Analysis
(4) Prompt, adequate and effective compensation
a. Parties' Positions
b. The Tribunal's Analysis
D. Conclusion on expropriation
E. Other issues
VII. DAMAGES
A. The cost approach
B. Costs to be included
(1) Parties' Positions
(2) The Tribunal's Analysis
C. Application of a multiple
(1) Parties' Positions
(2) The Tribunal's Analysis
D. Valuation date
(1) Parties' Positions
(2) The Tribunal's Analysis
E. Interest
(1) Parties' Positions
(2) The Tribunal's Analysis
F. Conclusion on damages
VIII. COSTS
A. Claimants' Costs Submissions
B. Respondent's Costs Submissions
C. Parties' Comments on their respective Cost Schedules
D. The Tribunal's Decision on Costs
IX. AWARD
I. INTRODUCTION AND PARTIES
1. This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United Republic of Tanzania for the Promotion and Protection of Investments which entered into force on 2 August 1996 (the "BIT" or "Treaty") and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").
2. The claimants are Nachingwea U.K. Limited ("NUKL"), a company incorporated in the United Kingdom, Ntaka Nickel Holdings Limited ("NNHL"), a company incorporated in the United Kingdom, and Nachingwea Nickel Limited ("NNL"), a company incorporated in the United Republic of Tanzania (together, the "Claimants").
3. The respondent is the United Republic of Tanzania ("Tanzania" or the "Respondent").
4. The Claimants and the Respondent are collectively referred to as the "Parties". The Parties' representatives and their addresses are listed above on page (i).
II. PROCEDURAL HISTORY
5. On 25 September 2020, ICSID received a request for arbitration from the Claimants against Tanzania (the "Request").
6. On 5 October 2020, the Secretary-General of ICSID registered the Request in accordance with Article 36(3) of the ICSID Convention and notified the Parties of the registration. In the Notice of Registration, the Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible in accordance with Rule 7(d) of ICSID's Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings.
7. In the absence of an agreement between the Parties on the method of constituting the Tribunal, the Tribunal was constituted in accordance with the formula set forth in Article 37(2)(b) of the ICSID Convention.
8. The Tribunal is composed of Mr. Cavinder Bull SC, a national of Singapore, President, appointed by his co-arbitrators; Mr. Doak Bishop, a national of the United States of America, appointed by the Claimants; and Justice Sanji Mmasenono Monageng, a national of the Republic of Botswana, appointed by the Respondent.
9. On 23 February 2021, the Secretary-General, in accordance with Rule 6(1) of the ICSID Rules of Procedure for Arbitration Proceedings (the "Arbitration Rules"), notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. Ms. Aurélia Antonietti, ICSID Senior Legal Counsel, was designated to serve as Secretary of the Tribunal. Ms.
Patricia Rodríguez Martín, ICSID Legal Counsel, was further designated Secretary of the Tribunal on 28 February 2022, until 20 December 2022, when Ms. Antonietti resumed her functions.
10. On 24 February 2021, the Centre requested that each Party make an initial advance payment of USD 150,000. The Centre subsequently acknowledged receipt of the Claimants' payment on 25 March 2021.
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III. FACTUAL BACKGROUND
51. This dispute arises in connection with the Ntaka Hill Nickel Project (the "Project"), comprising the exploration for and development of nickel sulphide deposits in a large tenement package called the Nachingwea property.
A. THE DEVELOPMENT OF THE PROJECT
52. The Claimants are three companies forming part of a larger group which invested in the Project over a period of about 20 years. The Claimants' parent company is Indiana Resources ("Indiana"), a company listed on the Australian Stock Exchange. From 2000 until the events which form the subject of the present dispute, the Project was developed under various corporate structures which were ultimately owned by Indiana. The Claimants refer to Indiana and its subsidiaries and joint venture partners that owned the Project over the course of the Project's life collectively as the "Claimants' affiliates".
53. Indiana (at the time operating under the name Goldstream Mining NL) first invested in the Project in 2000 through its Tanzanian subsidiary, Warthog Resources Limited ("Warthog"). Indiana applied, through Warthog, for prospecting licences for preliminary reconnaissance periods covering the Nachingwea property, in accordance with the then-applicable Mining Act 1998. In 2004, Tanzania granted four new prospecting licences for preliminary reconnaissance periods to Warthog covering the entire 7,269 square kilometre Nachingwea exploration area.1 The Claimants say that this completed Indiana's acquisition of the Project.2
54. Under these licences, Indiana conducted further research and exploration work as well as its first drilling programme at the Project.3 This drilling led to the discovery of considerable ultramafic-hosted nickel sulphide deposits at Ntaka Hill, which became the focal point of nickel sulphide exploration at the Project.4
55. From 2006 onwards, the Claimants' affiliates conducted exploration activities under prospecting licences. In this regard, the Project area had to be divided into smaller areas, as prospecting licences had a smaller maximum size than those under a preliminary reconnaissance period. The key prospecting licence that this dispute relates to is the prospecting licence over the Ntaka Hill area, PL No. 4422/2007 issued on 7 April 2007 (the "NH Prospecting Licence").5 This was the Project's core licence area and eventually contained the whole mineral resource defined by the Claimants.
56. As expenditure for the Project grew, Indiana also decided to access more funding opportunities, including by incorporating a new Canadian subsidiary, Continental Nickel Limited ("CNI"), to hold the Project in joint venture with Indiana through a new Tanzania subsidiary, Ngwena Limited ("Ngwena"). Warthog transferred its beneficial interest in the Project prospecting licences, including the NH Prospecting Licence, to Ngwena.6
57. In August 2007, CNI was listed on the Toronto Stock Exchange via an initial public offering ("IPO"). As part of the listing process, CNI published a technical report on the Project, compliant with Canadian National Instrument 43-101 ("NI 43-101") standards for disclosure for mineral projects. The technical report concluded that the Project held significant potential to host nickel sulphide mineralization and should be subjected to continued and detailed exploration.7
58. Thereafter, the Claimants' affiliates continued exploration work at the Project, with a focus on Ntaka Hill.8 The first NI 43-101 compliant mineral resource estimate for the Project was published in June 20099 and updated in April 2011.10 The first preliminary economic assessment ("PEA"), based on the April 2011 mineral resource estimate, was published on 28 October 2011 (the "2011 PEA") and estimated the net present value ("NPV") of the Project to be USD 207 million.11
59. The Claimants continued with the exploration and development of Ntaka Hill as well as the wider Nachingwea area. Indiana also re-acquired CNI in September 2012 and thereafter became dual-listed on the Australian and Toronto Stock Exchanges.
60. On 5 November 2012, an updated PEA, based on the April 2012 mineral resource estimate, was published (the "2012 PEA"). The 2012 PEA estimated the Project's NPV to be USD212 million based on a mixed open pit and underground mine development scenario and using the 2011 PEA nickel pricing assumptions.12 The 2012 PEA further recommended that steps be taken to start applying for a mining licence.13
61. By that stage, the Claimants' affiliates had already started work to prepare a feasibility study, which was one of the requirements to apply for a special mining licence under Tanzania's Mining Act 2010. The Claimants' affiliates also continued with exploration and development work, all the while renewing the Project's prospecting licences as and when necessary. In accordance with Tanzanian law, the Claimants' affiliates relinquished 50% of each prospecting licence area upon each renewal. The NH Prospecting Licence therefore reduced in size from an initial 200 square kilometre exploration area to a focused 48.81 square kilometre area covering the identified mineral resource at Ntaka Hill.
62. In 2013 and 2014, Indiana formed joint ventures with MMG, a Hong Kong-listed major mining company, and Fig Tree, an investment vehicle of a Mauritius-based private equity fund, to advance exploration and development of the Project. Through these joint venture arrangements, the Claimants became owners of the Project: NNL directly and NNHL and NUKL indirectly through their shareholding in NNL.
63. In January 2015, the Claimants' affiliates completed a draft feasibility study for the Project (the "Draft Feasibility Study").14 As part of the Draft Feasibility Study, the Claimants' affiliates conducted an economic analysis for the Project's development, which indicated that based on the assumptions in the Claimants' affiliates' development plan, the low nickel price as of early 2015 did not justify the significant capital expenditure required to develop the Project.
64. As the NH Prospecting Licence was due to expire in April 2015, the Claimants' affiliates applied for a retention licence to replace the NH Prospecting Licence.15 They did so pursuant to section 37(1) of Tanzania's Mining Act 2010, which provided that "[t]he holder of a prospecting licence other than a prospecting licence for building materials or gemstones may apply to the Minister for the grant of a retention licence on the grounds that - (a) he has identified a mineral deposit within the prospecting area which is potentially of commercial significance; and (b) the mineral deposit cannot be developed immediately by reason of technical constraints, adverse market conditions or other economic factors which are, or may be, of a temporary character."16
65. As part their application, the Claimants' affiliates submitted an explanation of the reasons the retention licence was required and appended various documents, including the Draft Feasibility Study.
66. Tanzania granted the application on 9 April 2015 and the retention licence no. RL 0017/2015, covering the same area as the NH Prospecting Licence, was issued on 21 April 2015 for a period of five years (the "NH Retention Licence").17 The NH Retention Licence was transferred to NNL on 25 June 2015.18 From this point onwards, the Claimants all owned the Project and the mineral rights which they held through the NH Retention Licence.
67. Thereafter, the Claimants continued the development of the Project, including by completing a desktop scoping study in July 2017 (the "2017 Scoping Study") which estimated a Project NPV of USD 20 million assuming a nickel price of USD 10,000 per tonne, while noting upside potential of an NPV of USD 217.7 million if the nickel price rose to USD 20,000 per tonne.19 The 2017 Scoping Study also indicated a schedule anticipating completion of a definitive feasibility study by the end of Q3 2018, at which point the Claimants could apply for a special mining licence.20
B. MEASURES ADOPTED BY TANZANIA FROM 2017
68. Tanzania's Mining Act 1998 introduced an investor-friendly licensing regime, which was modernized without any significant changes in the Mining Act 2010.
69. From 2017, however, Tanzania overhauled its existing mining regime by, among other things, introducing new legislation.
70. In June 2017, news reports stated that Tanzania's then-president, Dr John Pombe Magufuli, had commissioned an "investigating committee" in relation to the mining sector, which concluded that several mining companies had evaded tax payments. The investigating committee also recommended that Tanzania's mining legislation be revised.21
71. On 28 June 2017, the Government of Tanzania published three draft bills (the "Draft Bills"). On 29 June 2017, the Tanzanian Parliament invited stakeholders to provide their opinion on the Draft Bills by 1 July 2017, a Saturday.
72. On 1 July 2017, the Tanzanian Chamber for Minerals and Energy (the "TCME") submitted a letter stating that the process was done "hurriedly and without due consultation", unlike the extensive consultation which preceded the enactment of the Mining Act 2010.22
73. Shortly thereafter, on 3 and 4 July 2017, the parliament passed three additional pieces of legislation (the "Amending Legislation") under an emergency procedure, which received presidential assent and entered into force on 10 July 2017.
74. The Amending Legislation included:
a. The Natural Wealth and Resources (Permanent Sovereignty) Act, 2017 (the "2017 PSA");23
b. The Natural Wealth and Resources Contracts (Review and Re-Negotiation of Unconscionable Terms) Act, 2017 (the "2017 CRA");24 and
21 The Economist Intelligence Unit, Government under fire over mineral export ban, 10 April 2017 (Exhibit C- 225).
c. The Written Laws (Miscellaneous Amendments) Act, 2017 (the "2017 Act").25
75. First, the 2017 PSA, among other things:
a. prohibited the export of raw resources, including mineral resources; and
b. provided that "permanent sovereignty over natural wealth and resources shall not be a subject of proceedings in any foreign court or tribunal" and that "disputes arising from extraction, exploitation or acquisition and use of natural wealth and resources shall be adjudicated by judicial bodies or other organs established in the United Republic and in accordance with laws of Tanzania."
76. Secondly, as for the 2017 CRA, this mandated the National Assembly of Tanzania to initiate a review and renegotiation of any resources contract deemed prejudicial to the interests of Tanzania or containing unconscionable terms.
77. Thirdly, the 2017 Act amended the Mining Act 2010 by, among other things, repealing the retention licence classification. Specifically, section 16 of the 2017 Act provided as follows:
"The [Mining Act 2010] is amended by repealing sections 37 and 38."
78. Sections 37 and 38 of the Mining Act 2010 were the relevant legislative provisions governing retention licences. Accordingly, by repealing these sections, section 16 of the 2017 Act removed the retention licence classification under Tanzanian law. However, the 2017 Act did not specify the impact of the removal of sections 37 and 38 of the Mining Act 2010 for existing retention licence holders.
79. Section 16 of the 2017 Act did not appear in the Draft Bills. As at 28 June 2017, the Draft Bills included only minor amendments to sections 37 and 38 of the Mining Act 2010. It was only on 4 July 2017 that the repeal of sections 37 and 38 of the Mining Act 2010 was introduced by way of an amendment to the Draft Bills.
80. Further, section 27F(3) of the 2017 Act provided that mineral right holders shall submit to the Geological Survey of Tanzania ("GST"), an agency of the Ministry of Minerals, various "accurate mineral data".26
81. After the Amending Legislation was enacted, President Magufuli held a rally on 24 July 2017 where he reportedly stated, among other things, that his government had "launched an economic war" against mining companies.
82. The immediate impact of the Amending Legislation on the Claimants' mineral rights under the NH Retention Licence was unclear to the Claimants. The Claimants therefore sought to obtain clarification concerning the impact of the Amending Legislation.
Meanwhile, the Claimants decided to suspend all operations in Tanzania.27
83. On 10 January 2018, Tanzania passed the Mining (Mineral Rights) Regulations 2018 (the "2018 Regulations"), which sought to implement the 2017 Act.28 Regulation 21 of the 2018 Regulations states:29
"(1) All retention licences issued prior to the date of publication of these Regulations are hereby cancelled and shall cease to have legal effect.
(2) Consequent upon cancellation of retention licence under sub-regulations (1), rights over all areas which were subject of retention licences are hereby and without further assurances reverted to the Government."
84. The publication of the 2018 Regulations made it clear to the Claimants that Tanzania had cancelled all existing retention licences altogether.30
85. Shortly thereafter, Indiana requested the Australian Stock Exchange to suspend the trading of its shares until it could understand the impact of the situation.31 Indiana also stated in a press release dated 19 January 2018 that "[g]iven that there has been no breach of the conditions of the Ntaka Hill Retention Licence or failure to comply with the Mining Act or the applicable regulations, Indiana would be surprised if it was not offered an alternative class of licence."32 Indiana also stated that none of the Claimants had "received any formal notification from the Government of Tanzania on the cancellation of the Ntaka Hill Retention Licence" and that "a process of engagement with the Ministry of Minerals has commenced".33
86. Following the 2018 Regulations, the Claimants sought to engage with the Tanzanian authorities on a substitute licence for the NH Retention Licence.34
87. On 28 February 2018, NNL made a submission to the Ministry of Minerals seeking authorization to apply for a special mining licence.35 NNL also sought confirmation from the Government that its title over the NH Retention Licence area would be maintained.36 However, Tanzania initially responded that NNL should wait for the Minister of Minerals to return from maternity leave, and later stated that NNL's submission had not been considered pending the constitution of a new mining commission, which was supposed to be constituted following the 2018 Regulations (the "Mining Commission").37
31 First WS Bronwyn Barnes, paragraph 37. See also ASX Market Release, Indiana Trading Halt, 17 January 2018 (Exhibit C-91).
88. After the Mining Commission was constituted, the Claimants obtained indication from the Ministry of Minerals that they should apply for a prospecting licence as a replacement and proceeded to do so in May 2018.38
89. Various meetings between the Claimants' representatives and representatives from the Mining Commission and the Ministry of Minerals took place over the next months. The Claimants say that during these meetings, they were reassured that their title over the Project would be restored.39 For example, the Claimants' Mr Robert Adams recounts meeting with the Deputy Minister of Minerals, Mr Stanslaus Nyongo, on 28 March 2019, where Deputy Minister Nyongo emphasized that former retention licence holders would not be disadvantaged or discriminated against.40 Mr Adams also recounts attending a meeting with the Minister of Minerals, Mr Doto Biteko, on 19 August 2019, following which Mr Adams was of the view, based on the overall tone of the meeting, that Tanzania would return some form of tenure over the Project to the Claimants.41 The Respondent has denied the Claimants' version of what transpired during these meetings but has not put forward its own version of what was discussed.
90. Mr Adams also states that at the meeting on 19 August 2019, the Minister requested that the Claimants hand over the drill core and associated geological data for the Project.42 This was followed by an official request from the GST dated 11 September 2019,43 which was reiterated on 11 October 2019 and 22 October 2019.44
91. In October 2019, Indiana's Chairman, Ms Bronwyn Barnes, travelled to Tanzania where she attended meetings with Mr Edwin Igenge, the Director of Legal Services of the Ministry of Minerals, as well as Professor Shukrani Manya, the head of the Mining Commission. Ms Barnes was informed that subject to the Claimants and their affiliates proving that they had made investments in the Project, the Claimants would receive an alternative title and their rights as investors would be respected.45 Ms Barnes also provided Mr Igenge and Professor Manya with a formal submission summarizing the Project's history and the Claimants' development plans.46
92. On 15 November 2019, the Claimants responded to the GST's request for geological data and stated that it was in the process of selecting documents for submission to the GST by mid-December 2019.
93. Further meetings also took place in November and December 2019. Ms Barnes recounts that at one such meeting on 5 December 2019, Minister Biteko confirmed to her that former retention licence holders would be given a right of first refusal with respect to former licence areas.47
94. On 9 December 2019, NNL submitted a letter to the Minister of Minerals stating that it was ready, and had detailed plans, to resume the development of the Project on very short notice, subject to confirmation of its tenure.48
95. On 19 December 2019, the Mining Commission published a "Request for pre qualification for joint development of reverted areas under formerly retention licences in Kagera (Ngara), Shinyanga (Kahama), Mbeya (Chunya), Simiyu (Bariadi and Busega), Morogoro and Lindi (Nachingwea)" (the "Invitation to Tender"). This Invitation to Tender included the Claimants' NH Retention Licence area.
96. The Invitation to Tender, which was addressed to all "eligible companies with Technical and Financial records in mining sector", sought "a joint operation from a [sic] financial and technical companies to develop 10 area mentioned above which were under Retention Licences of which according to Section 29 of Mining Act Cap 123 and its Regulation has been reverted to Government." The joint operation was to take the form of a joint venture with State Mining Corporation ("STAMICO") and interested bidders were required to, among other things, agree that the State, directly or through STAMICO, would hold at least 36% to 46% of shares in the new project. In addition, interested bidders were to "commit willingness to work with small scale miners or re- allocate portion of area for small scale miners".49
97. The Invitation to Tender also contained the following provision on compensation:50
"Successful Bidder shall commit to compensate previous licence holder for the exploration costs incurred and the Commission will facilitate the process."
98. One day after the Invitation to Tender was published, on 20 December 2019, the Mining Commission replaced the Invitation to Tender with a new version (the "Revised Invitation to Tender"). The Revised Invitation to Tender is identical to the Invitation to Tender, save that the provision on compensation was removed.
99. Following the Revised Invitation to Tender, the Claimants delivered to the Respondent a notice that a dispute had arisen under the BIT in relation to the Project on 14 January 2020 (the "Notice of Dispute").51 The Claimants did not receive any response to the Notice of Dispute within six months.
100. The Claimants submitted their Request for Arbitration on 25 September 2020.
101. The Tribunal notes that many of the facts above are not in serious dispute between the Parties. Instead, the Parties disagree about the correct characterization of the facts.
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D. THE TRIBUNAL'S DECISION ON COSTS
403. The Tribunal has a wide discretion to allocate the arbitration costs between the Parties.
Article 61(2) of the ICSID Convention reads:
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.
404. Rule 28(1) of the Arbitration Rules further provides:
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. .. with respect to any part of the proceeding, that the related costs. .. shall be borne entirely or in a particular share by one of the parties.
405. The Tribunal is of the view that the "costs follow the event" approach is the most appropriate in this case. This approach is consistent with the principle in Chorzow Factory that an injured party be restored to the position it would have been in, had the breach not occurred.290 Both Parties also accept that this would be the appropriate approach.291
406. As the Claimants are the successful party in this arbitration, the Tribunal finds that it is reasonable for the Respondent to bear the full sum of the Claimants' arbitration costs, as set out at paragraph 394 above.
407. The Tribunal considers the Claimants' costs of legal representation to be in line with the level of fees normally charged by major international law firms. The Tribunal does not accept the Respondent's submission that the professional fees incurred by BSF should be disregarded and that allowing such costs would unjustly enrich the Claimants.292 The Tribunal notes that the Respondent and Tribunal were duly informed that Mr. Timothy L. Foden had moved to BSF and would continue to act as co-counsel for the Claimants in his new capacity (see paragraphs 22 and 23 above).
408. However, the Tribunal does not consider it reasonable to award the Claimants the additional funding costs it seeks pursuant to the funding agreement entered into between the Claimants and their third party funder, LCM (see paragraph 393 above). The Tribunal agrees with the Respondent that the Claimants have failed to provide sufficient information to establish that their claim for 3 or 3.5 times the amount of the outstanding funding amount is either reasonable or compensable. The Tribunal does not accept the Claimants' position that they have established in their Memorial that they are entitled to recover inter alia reasonable funding costs.293
409. For completeness, the Tribunal is not persuaded by the Respondent's other objections to the Claimants' claim for funding costs at paragraphs 402.b to 402.g above. While the Claimants have not disclosed the third party funding agreement between them and LCM or Indiana, the Tribunal's view is that the Claimants are not obliged to do so. Further, it is not accurate for the Respondent to claim that the arrangement was not communicated to either the Tribunal or the Respondent. The Tribunal notes that the Respondent's counsel in fact questioned the Claimants' Ms Bronwyn Barnes on the Claimants' litigation funding arrangement at the Hearing.294 The Respondent's allegation that the Claimants failed to comply with Rule 14 of the Arbitration Rules 2022 is also irrelevant since the Arbitration Rules 2022 do not apply and the Claimants are not relying on the same.
410. The costs of the arbitration, including the fees and expenses of the Tribunal, ICSID's administrative fees and direct expenses, amount to (in USD):
Arbitrators' fees and expenses
President, Mr. Cavinder Bull SC : 108,621.91
Co-arbitrator, Mr. Doak Bishop : 71,041.21
Co-arbitrator, Justice Sanji Mmasenono Monageng : 147,700.32
ICSID's administrative fees : 126,000
Direct expenses (estimated) : 55,476.70
Total : 508,840.14
411. The above costs have been paid out of the advances made by the Parties.295 As a result, each Party's share of the costs of arbitration amounts to USD 254,420.07.
412. Accordingly, the Tribunal orders the Respondent to pay the Claimants USD 254,420.07 for the expended portion of the Claimants' advances to ICSID and USD 3,859,161 to cover the Claimants' legal fees and expenses.
IX. AWARD
413. For the reasons set forth above, the Tribunal unanimously decides as follows:
(1) The Tribunal has jurisdiction over the dispute submitted to it in this arbitration;
(2) The Respondent unlawfully expropriated the Claimants' investment in Tanzania, in breach of Article 5 of the BIT;
(3) The Respondent shall pay the Claimants USD 76,704,461.76 in damages and additional losses;
(4) The Respondent shall pay the Claimants compound interest at the rate of 2% above the USD Prime rate on the amount awarded in (3) above, such compound interest to run from 10 January 2018 until the date upon which payment is made;
(5) The costs of the arbitration, including the fees and expenses of the Tribunal and ICSID, shall be borne by the Respondent. The Respondent shall accordingly pay the Claimants USD 254,420.07 as reimbursement for the Claimants' share of the costs of the arbitration;
(6) The Respondent shall pay the Claimants USD 3,859,161 in respect of the Claimants' legal costs and expenses;
(7) All other claims are dismissed.
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