PT Ventures, SGPS, S.A. v. Republic of Cabo Verde

Case summary

At a glance

Parties: PT Ventures, SGPS, S.A. (Portugal) v. Republic of Cabo Verde
Case no.: ICSID Case No. ARB/15/12
Forum and rules: ICSID Convention; ICSID Arbitration Rules in force as of 10 April 2006; place of proceeding Paris
Treaty: Portugal–Cabo Verde agreement on the promotion and protection of investments (Articles 10 and 15 at issue)
Tribunal: Juan Fernández-Armesto (President), Fernando Mantilla-Serrano, Benfeito Mosso Ramos
Sector: Telecommunications
Outcome: The published texts are procedural orders only. The case list includes an order of 10 June 2019 taking note of the discontinuance of the proceeding, but its text is not provided.

The dispute

PT Ventures, SGPS, S.A. (at the time named Portugal Telecom Internacional, SGPS, S.A.) invested in Cabo Verde Telecom (CVT) in 1996. It brought ICSID claims against Cabo Verde under the Portugal–Cabo Verde investment protection agreement. The dispute concerned the scope of the Public Telecommunications Service Concession Contract and its exclusivity, including whether the exclusivity covered mobile telephony. Cabo Verde said the case was about the loss of the exclusive right, not about the loss of control over CVT. It contested jurisdiction and asked for the case to be suspended pending a parallel ICC arbitration (No. 20926/ASM/JPA). The published documents do not set out the claims or defences in more detail.

Key holdings

The Tribunal set the procedural rules. English and Portuguese are the procedural languages. Pleadings must be filed in Portuguese, and the Award is to be rendered only in Portuguese. Paris is the place of the proceeding. PO1 §§ 11–12
The Tribunal allowed claimant's counsel to be assisted by Dr. Zuzana Janeckova of NERA while her colleague, the claimant's expert Dr. Richard Hern, was examined. It found no breach of the right of defence or of equality of arms, noting that the respondent would also be assisted by an expert. Like Dr. Hern, she could not be in the hearing room before his examination. PO2 ¶¶ 24–34
The Tribunal refused to admit Dr. Hern's report of 27 August 2018 from the parallel ICC arbitration. The claimant had held the report for over two months before asking. The hearing began three days later, so the respondent would not have had sufficient opportunity to comment (PO1 ¶ 17.3.2), and postponing the hearing was not appropriate. PO3 ¶¶ 19–20
The Tribunal noted the respondent's protests that two of its decisions were null for violating the respondent's right of defence: the decision allowing Dr. Janeckova to attend, and the decision giving the respondent 9 business days to comment on the ICC report. PO3 ¶ 22
After the hearing, the Tribunal asked the parties to address five questions in their final submissions: the scope and exclusivity of the Concession Contract, PT Ventures' investments in CVT, its plans in 1996, how its entry into CVT was valued, and the drafting history of Articles 10 and 15 of the Treaty. It also asked Dr. Hern to supply CVT financial data for 2005–2018. PO4 ¶¶ 6, 12
The respondent had asked for a suspension pending the parallel ICC arbitration. The parties were to tell the Tribunal whether they agreed on the timing of the awards in the two arbitrations, including whether they should be issued at the same time. Failing agreement, the Tribunal would decide. PO4 ¶¶ 13–15