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Antoine Goetz & Others and S.A. Affinage des Metaux v. Republic of Burundi (ICSID)

Why it matters

This case is a landmark in ICSID jurisprudence for its detailed analysis of indirect expropriation and the calculation of damages in a complex, long-running dispute. It also illustrates the interplay between treaty protections and domestic regulatory measures, and the tribunal's approach to assessing damages when precise valuation is difficult. The case is notable for its procedural history, including a prior award and a settlement protocol that failed.

Summary

The dispute arose from Burundi's revocation of a free zone certificate for AFFIMET in 1995, leading to a prior ICSID award in 1999 that ordered Burundi to restore the certificate or pay damages. A 1998 protocol and special convention were signed to settle that dispute, but Burundi later took further measures against the claimants' investments, including closing ABC (a bank) and interfering with AFFIMET, CCA, and CCA Maintenance. The claimants brought a second ICSID arbitration under the Belgium-Luxembourg-Burundi BIT. The tribunal found that Burundi's actions constituted indirect expropriation of ABC and violated the BIT's fair and equitable treatment standard. It awarded USD 1 million for ABC and EUR 175,000 for the other companies, with interest at 8% (pre-2007) and 3% (post-2010), but no interest for 2007-2009 due to delays in the succession of Antoine Goetz. The counterclaim was dismissed. The case is significant for its treatment of indirect expropriation and damages in a long-running investment dispute.

The detail

Parties: Antoine Goetz & Others and S.A. Affinage des Metaux v. Republic of Burundi

Case number: ICSID Case No. ARB/01/2

Outcome: Burundi ordered to pay USD 1 million for ABC and EUR 175,000 for AFFIMET, CCA, and CCA Maintenance, with interest; counterclaim dismissed.

Quantum: USD 1,000,000 and EUR 175,000

Applicable law: Belgo-Luxembourg Economic Union-Burundi BIT (1989), ICSID Convention, and 1998 Protocol and Special Convention

Issues in play: The case involved the BIT's fair and equitable treatment and expropriation provisions, and whether Burundi's measures (revocation of free zone status, closure of bank, etc.) constituted indirect expropriation and violated the BIT.

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