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Jochem Bernard Buse v. Republic of Panama (ICSID)

Why it matters

This case reaffirms that states can regulate highly regulated markets without violating investment treaties, especially when the investor has a history of legal violations. It clarifies that legitimate exercises of public authority, based on factual findings and due process, do not constitute expropriation or unfair treatment. The award strengthens the defense of host states against investor claims arising from regulatory enforcement actions.

Summary

Jochem Bernard Buse, a Dutch investor and majority shareholder of Panama Wall Street (PWS), a brokerage house, sued Panama under the Netherlands-Panama Bilateral Investment Treaty. He claimed that the Superintendency of the Securities Market (SMV) violated fair and equitable treatment and due process by inspecting, intervening, and liquidating PWS without proper notice, seeking at least $60 million in damages. The tribunal, after a multi-year arbitration including hearings in 2021 and 2022, dismissed all claims. It found that Buse could not have legitimate expectations to continue operating PWS given its history of securities law violations. The SMV's actions were consistent with Panamanian law and based on factual findings, and due process was satisfied because the SMV provided sufficient notice. The award, dated June 3, 2024, confirms Panama's right to protect the public interest in regulated markets, and that foreign investors cannot challenge legitimate regulatory actions when they have violated local law.

The detail

Parties: Jochem Bernard Buse v. Republic of Panama

Case number: ICSID Case No. ARB/17/12

Outcome: The tribunal dismissed all of Buse's claims and denied compensation.

Applicable law: Netherlands-Panama Bilateral Investment Treaty; Panamanian Securities Market Law

Issues in play: The case involved a collision between the investor's right to fair and equitable treatment under the BIT and Panama's regulatory authority to enforce its securities laws to protect the public interest.

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