NEWSLETTER-2017

187 ARBITRATION LAW Availability of the Substantive Protection Standards As to the merits, the arbitral tribunal analyzed the allegations of the Claimant based on the substantive protection standards, such as fair and equitable treatment, full protection and security, non-discrim- ination and umbrella clause, as well as protection against unlawful expropriation. The Claimant argues that by operation of the most fa- voured nation clause in Article II of the Turkey – Turkmenistan BIT, and the non-derogation clause in Article VI of the BIT, it can rely on such standards set out in other bilateral investment treaties concluded by Turkmenistan. The Respondent objects to the claims for implemen- tation of such standards, since the said BIT does not contain them, except for the protection against unlawful expropriation. The majority of the arbitral tribunal rejected the claims of Ickale “ in their entirety for lack of merit. ” In her dissenting opinion, Carolyn B. Lamm disagreed with the majority regarding one specific expro- priation claim of Ickale, and concluded that the directive of Supreme Court of Turkmenistan was excessive and resulted in unlawful expro- priation considering the seizure of all of Claimant’s machinery and equipment in Turkmenistan significantly in excess of any penalties. According to her, the Supreme Court’s directive was “ beyond what was necessary to recover the delay. ” Conclusion Consequently, the Tribunal concluded that the claims of Ickale fall within the Tribunal’s jurisdiction and are admissible, and that the Claimant has made an “investment” within the meaning of Article 25 of the ICSID Convention and Article I(2) of the Turkey-Turkmenistan BIT; however, the claims are dismissed in their entirety for lack of merit. Furthermore, the Tribunal ordered the Claimant to pay 20% of the legal and expert fees and expenses of Turkmenistan, which amounts to approximately USD 1.75 million. Considering the discus- sions made by the arbitral tribunal, this decision will be considered as an important jurisprudence regarding the files to which Turkish inves- tors are party.