Judgments:

1. Waguih Elie George Siag & Clorinda Vecchi v/s The Arab Republic of Egypt &
2. White Industries Australia Limited v. The Republic of India
    

Waguih Elie George Siag & Clorinda Vecchi v. The Arab Republic of Egypt

Facts:
The claimants in the case were Principal investors in two Egyptian Corporations, Touristic Investments and Hotels Management Company (SIAG) S.A.E. and Siag Taba Company. Both the investors were natural citizens of Italy and not Egypt. In 1989, a large parcel of oceanfront land was sold by the Egyptian Ministry on the Red Sea's Gulf of Aqaba to SIAG to develop a tourist resort. SIAG subsequently transferred a portion of the property to Siag Taba Company. It was alleged by the investors that in 1995, Egypt had unlawfully expropriated their investment. Also, Egypt violated its obligations under the Italy-Egypt BIT:
It failed to protect the investor's investments;

1. No Fair and Equitable Treatment was provided to the investors; and
2. No Most Favoured Nation Principle was applied.

Egypt provided two claims:

1. The investors were not nationals of Italy but of Egypt. Therefore, it negates the nationality requirement under Article 25(2)(a) of the ICSID Convention; and
2. The investors became bankrupt in 1999, therefore, they could not arbitrate the dispute.

Issues:

1. Whether the Tribunal had the jurisdiction of the case?
2. Whether Egypt had unlawfully expropriated the claimant's investments?
3. Whether the claimant's nationality violates the BIT?

Held:

1. The Tribunal held that Egypt's objection to the Tribunal's jurisdiction crossed the limitation period which is given under ICSID Rules 41 and 26 wherein the objection to the jurisdiction should be done as early as possible.
2. The Tribunal held that Egypt did unlawfully expropriate the claimant's investment as it failed to provide full protection to their investments. It also failed to provide fair and equitable treatment to the claimants.
3. The Tribunal dismissed the claim of Egypt. It held that the claimants had acted in good faith when they tried to obtain their Egyptian passports when they were business dealing with Egypt. They are estopped from availing of their Egyptian nationality.

The contribution of this award was in two folds:

• Firstly, the importance of nationality in BIT. It depicted how nationality can play an important role in any claim. It can be questioned, accepted, and rejected by the Tribunal and varies from case to case.
• Secondly, to raise the question of the jurisdiction of the Tribunal, it becomes essential to note down the time span within which the objection to it is required to be raised as it can be rejected solely on the basis of that reason.

White Industries Australia Limited v. The Republic of India

Facts:
White Industries Australian Ltd. was a company incorporated in Australia that entered into a contract with the Indian government-owned company Coal India Ltd for the development of Piparwar Coal mines. Disputes arose between them about bonuses, penalty payments and the quality of coal. Coal India Ltd. refused to pay the bonuses to White Industries and cashed in the bank guarantee. This initiated arbitration proceedings in the Court of Arbitration where the award was passed in favour of the White Industries.
Two applications were filed subsequently:

• White Industries Ltd. in the Delhi High Court to enforce the arbitral award; and
• Coal India Ltd. in the Calcutta High Court asserting to set aside the arbitral award where the White Industries filed an appeal to the Supreme Court when its application to set aside the application of Coal India Ltd. was dismissed. It remained pending for 5 years in the Supreme Court. Due to this delay, White Industries invoked the arbitration clause of the BIT between Australia and India, claiming a breach of obligations by India under the treaty.

Issue:

• Whether White Industries Ltd. was an investor in India?
• Whether the Tribunal has jurisdiction over this matter?
• Whether India has violated the fair and equitable standard?
• Whether White Industries is entitled to compensation under the BIT?

Held:

1. The Tribunal held that White Industries were "investors" under the BIT. It mentioned that the definition of investment so provided by the contracting parties in the BIT concludes that the parties intended to involve investment in a broad sense and "right to money" and "to performance having financial value" comes under investment.
    
2. The Tribunal did have jurisdiction over the matter as White Industries did satisfy the saline test that defines investment. The industry financed its services, provided funds to Coal India, and also maintained and trained staff in India.
    
3. The Tribunal rejected the claim of White Industries that India violated the fair and equitable treatment principle. White Industries should not have had any expectation regarding the time span for passing the award and that India would apply the New York Convention when it is a known fact that a developing country's courts are overburdened with cases.
    
4. The claim of expropriation of the White Industries was rejected by the Tribunal because the investment of White Industries was not affected as the case was still pending in the Indian court. But it was held that the delay in passing the award did amount to a breaching of the obligation of India towards White Industries. Because the provision was included in the BIT, it made India obligated. The White Industries did everything in their reach to receive justice, but no effective course was made available to them over 10 years.

The contribution of this award was in two-folds:
Firstly, it was India's first-ever Investment Treaty Arbitral Award. It paved the way for investment arbitration in the country. It aided India to deal with BIT-related case matters and to know what should be avoided when such cases come in hand.

Secondly, it showed how overburdening of cases in the courts harmed India at an international level. Just because the case was delayed and justice was not provided timely to the White Industries, it made India obligated towards them under BIT. Hence, it was well understood that such cases should be given priority.