TMA Australia Pty Ltd and others v. Republic of the Philippines

Case summary

At a glance

Parties: TMA Australia Pty Ltd, TMA Philippines Joint Venture Investment Vehicle Pty Ltd, TMA Group of Companies Ltd, Anthony Karam, Corriene Karam and TMA Group Philippines, Inc. v. the Republic of the Philippines
Case no.: ICSID Case No. ARB/24/41
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules in force as of 1 July 2022
Treaty: Australia–Philippines BIT (in force 8 December 1995)
Tribunal: Ms. Meg Kinnear (President), Dr. Bernardo M. Cremades, Mr. J. Christopher Thomas KC
Sector: Thermal paper manufacturing and supply under a joint venture with the Philippine Charity Sweepstakes Office
Outcome: Pending. The Tribunal bifurcated only the objection on written consent under Article 13 of the BIT and joined the other nine objections to the merits. The published documents do not show a ruling on the bifurcated objection.

The dispute

The claimants, Australian companies, two individuals and a Philippine-incorporated company, concluded a Contractual Joint Venture Agreement (CJVA) on 4 December 2009 with the Philippine Charity Sweepstakes Office (PCSO) for the supply of thermal paper, with a thermal paper plant in the Philippines. They allege that politically motivated measures after a change of government in 2010 destroyed their investment, and that the Philippines repeatedly disregarded decisions of its own courts. They claim breach of fair and equitable treatment, unlawful expropriation and breach of an umbrella clause imported through the MFN clause from the Philippines–Switzerland BIT. The Philippines raised ten objections to jurisdiction and admissibility. These included that Article 13(3)(a) of the BIT requires a separate written consent by the State, which was never given, and that the CJVA was illegal under Philippine procurement law. It also argued that PCSO's contract obligations are not the State's, that there was no protected investment or investor, that the claimants failed to negotiate in good faith, that the claims are an abuse of process, and that the dispute is purely contractual.

Key holdings

Objection 1 is bifurcated. Whether Article 13(3)(a) of the BIT requires a separate written consent by the State is a pure question of treaty interpretation on undisputed facts. If upheld, it would dispose of the whole case, and it appears serious and substantial. PO4 ¶¶ 94–99, 146
The objections on attribution of PCSO's contract obligations, illegality and fraud, protected investment (legality requirement, Salini criteria, critical date of 4 December 2009) and the contractual character of the dispute are not bifurcated. Each depends on characterising the claim and on facts intertwined with the merits. PO4 ¶¶ 100–108, 117–122, 134–136
The good-faith negotiation objection is not bifurcated. It is doubtful that it is substantial, since at least one settlement meeting took place and the Respondent's own witness called the talks cordial, and it would require subjective evidence tied to the parties' business relationship. PO4 ¶¶ 109–116
The nationality objection is not substantial enough to bifurcate. Passports and incorporation documents are prima facie evidence of nationality, and the Respondent gave no concrete reason to doubt them. PO4 ¶¶ 123–127
The abuse of process, MFN/umbrella clause and CJVA exclusive jurisdiction clause objections are not bifurcated. The fair and equitable treatment and expropriation claims would remain in any event, so bifurcation would not save time or cost. Costs of the bifurcation request are deferred. PO4 ¶¶ 128–146
The Respondent may file two documents found in the National Archives of Australia on 17 June 2026: a 1990 letter from Australia's Attorney-General's Department and a 1994 letter from ICSID Counsel. The application was timely in the circumstances, the documents are potentially relevant under Article 32 VCLT, and the claimants no longer objected. PO7 ¶¶ 31–36
Transparency: the award will not be published by ICSID unless the parties agree, though excerpts may be published. Orders and decisions are published subject to a redaction procedure. The hearing on the bifurcated objection was closed to the public because a party objected. PO2 ¶¶ 10–12; PO6 ¶ 18