Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius
PCA · Investment (ICSID and treaty) · Mauritius · 23 Aug 2019
Why it matters
This award is significant for its detailed analysis of the definition of 'investment' under a BIT, applying the Salini criteria. It also examines the limits of MFN clauses in importing dispute resolution provisions, particularly where the basic treaty lacks consent to arbitrate. The tribunal's strict interpretation may influence future investor-state disputes involving pre-investment expenditures and MFN clauses.
Summary
The case concerns a claim by French nationals, Professor Christian Doutremepuich and his son Antoine, against the Republic of Mauritius. The Claimants alleged that Mauritius breached the France-Mauritius BIT by rejecting their project to establish a DNA analysis laboratory in Mauritius. They sought damages of EUR 11.6 million. The Respondent challenged the Tribunal's jurisdiction on two grounds: first, that the Claimants had not made a qualifying 'investment' under the BIT; second, that the MFN clause in the France-Mauritius BIT could not import the arbitration clause from the Finland-Mauritius BIT. The Tribunal, composed of Professors Maxi Scherer (presiding), Olivier Caprasse, and Jan Paulsson, agreed with the Respondent. It held that the Claimants' pre-investment expenditures and planned future investments did not meet the Salini criteria for a qualifying investment, particularly lacking contribution to the host state, sufficient duration, and risk. The Tribunal also found that the MFN clause in Article 8(2) of the France-Mauritius BIT did not extend to dispute resolution because the basic treaty itself did not contain consent to arbitrate, and the ejusdem generis principle limited the MFN clause to matters of the same genus. The Tribunal therefore declined jurisdiction and ordered the Claimants to bear the arbitration costs, though each party bore its own legal costs.
The detail
Parties: Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius
Case number: PCA Case No. 2018-37
Outcome: The Tribunal decided it lacks jurisdiction to hear the claims; Claimants ordered to pay EUR 195,846 to Respondent for arbitration costs; each party bears its own legal costs.
Applicable law: France-Mauritius BIT (1973), Finland-Mauritius BIT (2007), UNCITRAL Arbitration Rules 1976
Issues in play: The case involved whether the Claimants' planned laboratory project constituted a qualifying 'investment' under the France-Mauritius BIT, and whether the MFN clause in that BIT could import the Finland-Mauritius BIT's arbitration clause to establish jurisdiction.
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