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Decision on Application for Annulment INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES In the annulment proceeding between CORTEC MINING KENYA LIMITED, CORTEC (PTY) LIMITED AND STIRLING CAPITAL LIMITED Applicants and REPUBLIC OF KENYA Respondent ICSID Case No. ARB/15/29 – Annulment Proceeding DECISION ON APPLICATION FOR ANNULMENT Members of the ad hoc Committee Mr. D. Brian King, President Mr. Cavinder Bull, SC, Member Ms. Dorothy Ufot, SAN, Member Secretary of the ad hoc Committee Mr. Paul-Jean Le Cannu Date of dispatch to the Parties: 19 March 2021 REPRESENTATION OF THE PARTIES Representing Cortec Mining Kenya Limited, Representing the Republic of Kenya: Cortec (Pty) Limited and Stirling Capital Limited: Mr. Audley Sheppard QC Hon. Paul Kihara Kariuki Ms. Clementine Packer Mr. Kennedy Ogeto Clifford Chance LLP Ms. Njeri Wachira 10 Upper Bank Street Mr. Emmanuel Bitta London E14 5JJ Ms. Christine K. Omwakwe United Kingdom Ms. Kanini Nthiga Mr. Charles Wamwayi and Ms. Sheila Mammet Office of the Attorney-General and the Dr. Sam Luttrell Department of Justice Ms. Amelia Hirst Attorney General’s Chambers, 4th Floor Clifford Chance Harambee Avenue Level 7, 190 St Georges Terrace P.O. Box 40112-00100 Perth, Western Australia, 6000 Nairobi Commonwealth of Australia Republic of Kenya and and Dr. Romesh Weeramantry Mr. Michael Sullivan QC Clifford Chance Dr. Henry Forbes Smith 12 Marina Boulevard One Essex Court 25th Floor, Tower 3 Temple Marina Bay Financial Centre London EC4Y 9AR Singapore 018982 United Kingdom i TABLE OF CONTENTS REPRESENTATION OF THE PARTIES ...................................................................................... i TABLE OF CONTENTS ................................................................................................................ ii TABLE OF SELECTED ABBREVIATIONS/DEFINED TERMS .............................................. iv I. INTRODUCTION AND PARTIES ...................................................................................... 1 II. PROCEDURAL HISTORY................................................................................................... 2 III. THE AWARD IN THE ARBITRATION............................................................................ 14 A. The proceedings before the Tribunal ............................................................................ 14 B. The Claimants’ position before the Tribunal ............................................................... 16 C. The Respondent’s position before the Tribunal ........................................................... 19 D. The Tribunal’s Award .................................................................................................. 20 IV. THE ASSERTED ANNULMENT GROUNDS .................................................................. 27 A. Article 52(1)(b): Manifest excess of powers ............................................................... 27 1. Ground 1C: Alleged failure to apply the definition of “investment” in the BIT to SML 351 ............................................................................................................... 28 a) The Applicants’ case ..................................................................................... 28 b) The Respondent’s case .................................................................................. 30 c) The Committee’s analysis ............................................................................. 32 2. Ground 1A: Alleged failure to decide the Claimants’ claims concerning SPL 256 and other investments ........................................................................................... 41 a) The Applicants’ Case .................................................................................... 41 b) The Respondent’s case .................................................................................. 44 c) The Committee’s analysis ............................................................................. 45 3. Ground 1B: Alleged failure to apply the BIT definition of “investment” to SPL 256 ...................................................................................................................... 57 a) The Applicants’ case ..................................................................................... 57 b) The Respondent’s case .................................................................................. 58 c) The Committee’s analysis ............................................................................. 59 4. Ground 1D: Alleged failure to apply the law of state responsibility ................... 60 a) The Applicants’ case ..................................................................................... 60 b) The Respondents’ case .................................................................................. 62 c) The Committee’s analysis ............................................................................. 62 B. Article 52(1)(e): Failure to state reasons ..................................................................... 66 ii 1. Ground 2A: Allegedly ignoring evidence that the Ministry of Forestry and Wildlife consented to the issuance of SML 351 ................................................... 66 a) The Applicants’ case ..................................................................................... 66 b) The Respondent’s case .................................................................................. 67 c) The Committee’s analysis ............................................................................. 69 2. Ground 2B: Allegedly ignoring evidence that the Claimants asserted ownership of IP transferred to the State ................................................................................. 72 a) The Applicants’ case ..................................................................................... 72 b) The Respondent’s case .................................................................................. 74 c) The Committee’s analysis ............................................................................. 76 3. Ground 2C: Allegedly incoherent application of the Kim test in declining jurisdiction over SML 351 .................................................................................... 77 a) The Applicants’ case ..................................................................................... 77 b) The Respondent’s case .................................................................................. 79 c) The Committee’s analysis ............................................................................. 79 4. Ground 2D: Allegedly absent or incoherent reasons for rejecting the Claimants’ estoppel claim ....................................................................................................... 82 a) The Applicants’ case ..................................................................................... 82 b) The Respondent’s case .................................................................................. 84 c) The Committee’s analysis ............................................................................. 85 5. Ground 2E: Allegedly incoherent and contradictory reasons for the alternative ruling on the merits ............................................................................................... 86 a) The Applicants’ case ..................................................................................... 86 b) The Respondent’s case .................................................................................. 87 c) The Committee’s analysis ............................................................................. 88 C. The Parties’ other arguments ........................................................................................ 89 V. COSTS ................................................................................................................................. 89 VI. DECISION ........................................................................................................................... 93 iii TABLE OF SELECTED ABBREVIATIONS/DEFINED TERMS Applicants (in this annulment Cortec Mining Kenya Limited, Cortec (Pty) proceeding), or Claimants (in the Limited, and Stirling Capital Limited Arbitration) Applicants’ PHM Applicants’ Post-Hearing Memorial dated 30 October 2020 Application for Annulment Application for Annulment of the Award dated 21 July 2017, submitted by the Applicants on 15 February 2019 Arbitration Arbitration proceedings between Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya in ICSID Case No. ARB/15/29 Arbitration Rules ICSID Rules of Procedure for Arbitration Proceedings Award Award rendered by the Arbitral Tribunal on 22 October 2018 in Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya (ICSID Case No. ARB/15/29) BIT or Treaty Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Kenya for the Promotion and Protection of Investments, dated 13 September 1999 Committee The ad hoc Committee composed of Mr. D. Brian King (President), Mr. Cavinder Bull, S.C. and Ms. Dorothy Ufot, SAN Counter-Memorial on Annulment Respondent’s Counter-Memorial on Annulment dated 12 December 2019, resubmitted 6 January 2020 pursuant to the Committee’s letter dated 23 December 2019 Ex. A-[#] Factual exhibits filed by the Applicants Ex. ALA-[#] Legal authorities filed by the Applicants
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