Global Voice Group SA v. The Postal and Telecommunications Regulatory Authority of Guinea, and the Republic of Guinea
ICSID · Investment (ICSID and treaty) · Guinea · 18 Jul 2019
Why it matters
This case is notable for its detailed analysis of the Salini test for determining whether a contract constitutes an 'investment' under the ICSID Convention. The tribunal's rejection of the claim on jurisdictional grounds, despite finding that the contract contributed to Guinea's economic development, highlights the importance of the other Salini criteria. It also underscores the strict application of the 'in accordance with host state law' requirement for BIT protection.
Summary
Global Voice Group SA (GVG), a Senegalese company, entered into a contract with the Postal and Telecommunications Regulatory Authority of Guinea (ARPT) to implement a system for monitoring international telephone traffic and collecting taxes on incoming calls. The contract was governed by Guinean law and included an ICSID arbitration clause. GVG claimed that Guinea and ARPT breached the Guinea-Senegal Bilateral Investment Treaty (BIT) by failing to pay amounts due under the contract, expropriating its investment, and denying fair and equitable treatment. Guinea objected to jurisdiction, arguing that GVG's contract did not constitute an 'investment' under the ICSID Convention and that GVG was not a protected investor because it was not the beneficial owner of the investment. The Tribunal applied the Salini test, which requires a contribution, a certain duration, an element of risk, and a contribution to the host state's economic development. It found that GVG's contract satisfied the contribution and duration requirements, but failed the risk element because the contract allocated all commercial risk to Guinea. Additionally, the Tribunal held that GVG was not an 'investor' under the BIT because it did not own the investment; the beneficial owner was a third party. Consequently, the Tribunal declined jurisdiction and dismissed all claims. It also ordered GVG to bear the costs of the arbitration and pay 50% of Guinea's legal fees.
The detail
Parties: Global Voice Group SA v. The Postal and Telecommunications Regulatory Authority of Guinea, and the Republic of Guinea
Case number: ICC Case No. 22467/DDA
Outcome: The Tribunal dismissed all claims and ordered Claimant to pay all costs of the arbitration and 50% of Respondents' legal fees.
Applicable law: Agreement between the Government of the Republic of Guinea and the Government of the Republic of Senegal on the Reciprocal Promotion and Protection of Investments (1999); ICSID Convention; Arbitration Rules; Guinean law; international law
Issues in play: The case involved the interpretation of the fair and equitable treatment (FET) standard, expropriation, and the umbrella clause under the Guinea-Senegal BIT, as well as jurisdictional objections based on the definition of 'investment' and 'investor'.
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