Thomas Gosling and others v. Republic of Mauritius
ICSID · Investment (ICSID and treaty) · Mauritius · 18 Feb 2020
Why it matters
This case is significant for its detailed analysis of what constitutes an 'investment' under the ICSID Convention and a BIT, particularly regarding contractual rights and expenditures prior to obtaining permits. It also clarifies the standard for fair and equitable treatment in the context of government discretion under lease agreements, and the importance of transparency and due process in administrative decisions.
Summary
The case concerns two real estate and tourism development projects in Mauritius: Le Morne and Pointe Jérôme. The Claimants, UK and Mauritian entities, alleged that Mauritius violated the UK-Mauritius BIT by expropriating their investments and denying fair and equitable treatment. For Le Morne, the Claimants had a lease to develop a hotel but failed to obtain necessary permits and start construction. The government terminated the lease after multiple extensions. For Pointe Jérôme, the Claimants had a lease for a residential and tourism project; the government denied a further extension and terminated the lease. The Tribunal found that the Claimants did not have protected investments under the BIT because their contractual rights were not sufficiently concrete (e.g., no building permits, no construction) and the expenditures were not made in Mauritius for the Le Morne project. For Pointe Jérôme, the Tribunal held that the termination was within the government's contractual rights and did not breach the BIT. The Tribunal dismissed all claims. A dissenting arbitrator argued that the government's process was arbitrary and discriminatory, violating fair and equitable treatment.
The detail
Parties: Thomas Gosling and others v. Republic of Mauritius
Case number: ICSID Case No. ARB/16/32
Outcome: The Tribunal dismissed all claims. Each party bore its own costs and half of the arbitration costs.
Applicable law: UK-Mauritius BIT (1986), ICSID Convention, Mauritian law
Issues in play: The case involved the interaction between contractual rights under Mauritian leases and the BIT's protections for investments. The Tribunal examined whether the termination of leases by the government constituted expropriation or a breach of fair and equitable treatment.
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