In a recent decision under Rule 41(5) of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID), an insolvent Italian company’s claims against the Italian Republic (Italy or the State) under the Energy Charter Treaty (the ECT) were found not to be “manifestly without legal merit”.1 While the Tribunal’s decision is the product of a summary process in which a very high standard of proof applies, and does not therefore amount to a final analysis of the issues raised by Italy, it does provide a useful illustration of the temporal aspect of “foreign control” in cases where a locally incorporated company participates as a foreign claimant through Article 25(2)(b) of the ICSID Convention (the Convention).

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Ishbel McLachlan, Law Graduate, Clifford Chance

Michael Dias, Paralegal, Clifford Chance