NEWSLETTER-2017

186 NEWSLETTER 2017 requirement. The arbitral tribunal examined the Russian, English, and Turkish versions of the BIT, and also heard the Turkish state employ- ees who took roles in drafting the BIT in order to determine the exact will of the state parties. The majority of the tribunal considered such requirement as to admissibility of the claims, ruled that the requirement to submit to local courts under Article VII(2) is mandatory, and that Içkale had not satisfied the requirement; however, the case is admissible since the Turkmen state entities for which Ickale served as contractor had initi- ated claims before the local courts. According to the majority of the tribunal, it is sufficient to have the dispute referred to local courts by either party. In his partial dissenting opinion, Phillippe Sands, QC, opined that the claimant’s failure to comply with the requirement ren- ders the tribunal without jurisdiction. The Nature of the Works as “Investment” and the Claims as “Contractual Claims” or “Treaty Claims” As to the jurisdiction of the tribunal, it is also examined whether the works performed would qualify as investments within the meaning of Article 25 of the ICSID Convention and Article I(2) of the Turkey – Turkmenistan BIT, and whether the claims are “contractual claims” or “treaty claims.” Departing from the three criteria identified by the decision on jurisdiction of the Salini Costruttori S.p.A., and the Italstrade S.p.A. v. Kingdom of Morocco case that are the contribution of capital, certain duration and assumption of risk, and considering the scale, duration, and number of the projects, and the commitment of capital by the Claimant in their performance, the Tribunal concluded that the Claim- ant must be considered to have made an “investment” in Turkmenistan. However, the Tribunal did not explicitly decide whether the claims are contract claims or treaty claims. Instead, the Tribunal considered these issues with the merits of the claims of Ickale.