The Estate of Julio Miguel Orlandini-Agreda and Compañía Minera Orlandini Ltda. v. Bolivia
PCA · Investment (ICSID and treaty) · Bolivia · 19 Dec 2024
Why it matters
This case is significant for its detailed analysis of dual nationality under a US BIT, holding that a dual national can bring a claim against one of his national states if the treaty does not expressly exclude dual nationals. It also clarifies the scope of the publication standard in BITs, limiting it to adjudicatory decisions of general application. The dissenting opinion highlights potential arbitrary state conduct in mining concession disputes.
Summary
The arbitration concerned mining concessions in Bolivia. Claimants, the estate of Julio Miguel Orlandini-Agreda (a US-Bolivian dual national) and his Bolivian company CMO, alleged that Bolivia expropriated their concessions through corrupt judicial proceedings and administrative actions benefiting state-owned COMIBOL and its joint venture partners. The Tribunal rejected Bolivia's jurisdictional objections, finding that Mr. Orlandini was a US national at birth and that the BIT did not exclude dual nationals. On the merits, the Tribunal dismissed all claims, finding that Claimants failed to prove that Bolivia's actions breached the BIT's standards, including expropriation, fair and equitable treatment, full protection and security, and denial of justice. The Tribunal held that Claimants did not properly exhaust domestic remedies to establish their subsurface rights, and that the judicial auction of concessions was not shown to be corrupt or arbitrary. The dissenting opinion argued that the conduct of Bolivian authorities was arbitrary and violated the BIT. The Tribunal ordered each party to bear its own costs, with Bolivia reimbursing Claimants for advance payments.
The detail
Parties: The Estate of Julio Miguel Orlandini-Agreda and Compañía Minera Orlandini Ltda. v. Bolivia
Case number: PCA Case No. 2018-39
Outcome: The Tribunal dismissed Bolivia's objections to jurisdiction and admissibility, but dismissed all of Claimants' claims on the merits. Each party bears its own costs and 50% of arbitration costs; Bolivia must reimburse Claimants for advance payments of USD 680,432.04 plus interest.
Applicable law: Treaty between the Government of the United States of America and the Government of the Republic of Bolivia concerning the Encouragement and Reciprocal Protection of Investment (1998); UNCITRAL Arbitration Rules (2010); Bolivian law; customary international law
Issues in play: The case involved dual nationality under the US-Bolivia BIT, specifically whether a US-Bolivian dual national could bring a claim against Bolivia. The Tribunal interpreted the BIT's definition of 'national' and 'covered investment' under the VCLT, rejecting the importation of the ICSID Convention's prohibition on dual national claims.
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