Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
ICSID · Investment (ICSID and treaty) · Ghana · 18 Jun 2010
Why it matters
This award is significant for its detailed analysis of attribution under the ILC Articles, particularly regarding state entities like Cocobod. It also provides important guidance on the scope of umbrella clauses, holding that contractual obligations of a separate entity are not automatically elevated to treaty obligations unless the state itself assumed them. The decision reinforces the distinction between contract and treaty claims in investment arbitration.
Summary
The dispute arose from a joint venture between German investor Hamester and Ghana Cocoa Board (Cocobod) to process and trade cocoa beans. Hamester claimed that Ghana breached the Germany-Ghana BIT through actions of Cocobod and state authorities, including a 2001 price agreement, non-delivery of beans in 2002, and expropriation in 2003. The Tribunal first upheld jurisdiction over the dispute but rejected Ghana's fraud objection. On attribution, the Tribunal found that Cocobod was not a state organ under Article 4 of the ILC Articles, nor a state entity under Article 5, because its functions were commercial, not governmental. The acts of Cocobod were therefore not attributable to Ghana. Regarding the acts of Ghanaian authorities (police investigation, meeting with Ministry of Finance, export ban), the Tribunal found they were attributable but did not violate the BIT. The export ban was a legitimate regulatory measure, not expropriatory. The Tribunal also rejected Hamester's claim under the umbrella clause (Article 9(2) of the BIT), holding that Cocobod's contractual obligations were not assumed by Ghana and thus not elevated to treaty obligations. Ghana's counterclaim was dismissed for lack of jurisdiction and failure to substantiate losses. The award was unanimous.
The detail
Parties: Gustav F W Hamester GmbH & Co KG v. Republic of Ghana
Case number: ICSID Case No. ARB/07/24
Outcome: The Tribunal dismissed all of Claimant's claims and rejected Respondent's counterclaim. Each party bears its own costs and half of the arbitration costs.
Applicable law: Germany-Ghana BIT (1995); ICSID Convention; ILC Articles on State Responsibility; Ghanaian law
Issues in play: The case involved the distinction between contractual claims against a state entity (Cocobod) and treaty claims against the state, and the interpretation of the umbrella clause in the BIT. The key issue was whether acts of Cocobod were attributable to Ghana under international law.
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