SGS asserted that the Tribunal had a broad jurisdiction that encompassed
both the alleged breaches of the BIT and the PSI Agreement. SGS submitted
that Pakistan’s violations of the Switzerland–Pakistan BIT included a failure
to promote SGS’s investment, impairment of the enjoyment of its
investments, failure to accord fair and equitable treatment, and
expropriation without compensation. SGS also argued that Pakistan had
breached its obligations under Article 11 (the “umbrella clause”) of the
Switzerland–Pakistan BIT by violating the PSI Agreement. According to
SGS, the umbrella clause had the effect of elevating violations of the PSI
Agreement, which were contract claims, into treaty claims.
Pakistan argued against ICSID jurisdiction on the ground that the parties
had previously agreed to arbitration in Pakistan under the PSI Agreement,
which pre-dated the ICSID arbitration request. Pakistan submitted, in the
alternative, that the Tribunal had no jurisdiction because SGS’s claims were
contract and not treaty-based claims. Pakistan also asserted that SGS’s
conduct in the Swiss legal proceedings and Pakistan Arbitration amounted
to a waiver of its right to bring ICSID arbitration under the BIT and that,
in any event, SGS’s request for ICSID arbitration was premature because
the BIT required a 12-month consultation period prior to arbitration.
Pakistan also contested that SGS had failed to make an investment under
the BIT.
SGS asserted that the Tribunal had a broad jurisdiction that encompassedboth the alleged breaches of the BIT and the PSI Agreement. SGS submittedthat Pakistan’s violations of the Switzerland–Pakistan BIT included a failureto promote SGS’s investment, impairment of the enjoyment of itsinvestments, failure to accord fair and equitable treatment, andexpropriation without compensation. SGS also argued that Pakistan hadbreached its obligations under Article 11 (the “umbrella clause”) of theSwitzerland–Pakistan BIT by violating the PSI Agreement. According toSGS, the umbrella clause had the effect of elevating violations of the PSIAgreement, which were contract claims, into treaty claims.Pakistan argued against ICSID jurisdiction on the ground that the partieshad previously agreed to arbitration in Pakistan under the PSI Agreement,which pre-dated the ICSID arbitration request. Pakistan submitted, in thealternative, that the Tribunal had no jurisdiction because SGS’s claims werecontract and not treaty-based claims. Pakistan also asserted that SGS’sconduct in the Swiss legal proceedings and Pakistan Arbitration amountedto a waiver of its right to bring ICSID arbitration under the BIT and that,in any event, SGS’s request for ICSID arbitration was premature becausethe BIT required a 12-month consultation period prior to arbitration.Pakistan also contested that SGS had failed to make an investment underthe BIT.
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