Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya

Abstract

Evidence — Corruption — Bad faith — Bribery — Whether the State may prove allegations of bad faith or corruption without putting the allegations to witnesses — Whether the review of mining licences was a response to the refusal to pay a bribeJurisdiction — Dispute — ICSID Convention, Article 25(1) — Whether there was no dispute because the State had merely suspended rather than revoked the mining licenceJurisdiction — Consent — ICSID Convention, Article 25(1) — Cooling-off period — Whether each party had consented to arbitration — Whether the investors had satisfied the three-month cooling-off period required under the BIT through negotiations and municipal legal proceedingsJurisdiction — Investment — Foreign investor — ICSID Convention, Article 25 — Origin of capital — Salini test — Bad faith — Whether there was no protected investment because the investors were shell companies for investment from a third State — Whether the investment satisfied the criteria of risk, duration and contribution to the economic development of the host State — Whether jurisdiction should be declined due to allegations of bad faithJurisdiction — Investment — Legality — Municipal law — Intangible assets — Environmental impact assessment — Proportionality — Bad faith — Whether there was an implied requirement that investments be in accordance with the laws of the host State — Whether a prospecting licence and data generated thereunder qualified for protection if the licence did not legally permit the investor to generate revenue in the host State — Whether licences acquired contrary to the requirement of an environmental impact statement and other municipal protections were void ab initio under municipal law — Whether the tribunal should accept rulings of the municipal courts — Whether it was proportionate to decline jurisdiction in the light of the significance of the legal obligations, the seriousness of the investor’s conduct and whether those factors resulted in a sufficiently significant violation of the interests of the host State — Whether protection of a mining licence would have been denied on the merits for want of legality and good faith in the exercise of a State official’s discretion even if it was not void ab initio under municipal lawCosts — Costs follow the event — Reduction — Whether the claim for costs was manifestly excessive — Whether the conduct of the party seeking costs warranted a reduction due to unproven claims of corruption