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You do not have access to this content. Extract Chapter 5 continues the analysis of legal authorities by discussing the role that judicial decisions play in various jurisdictions as well as structural issues relating to the types of tribunals that are found in different countries. The text concludes with an analysis of the use of judicial opinions in various legal systems, including the concept of precedent in English-speaking countries, and a discussion of the interpretive methods used by judges when analysing the law.
Subscriber Login. Forgot your password? Anejo IV. Spain - General provisions - Miscellaneous circular, directive, legal notice, instruction, etc. La citada ley regula la actividad del voluntariado. La citada ley establece el regimen de las Sociedades Laborales y Participadas. Aprueba el Reglamento de las empresas de trabajo temporal. Determina la normativa aplicable al trabajo penitenciario.
Las modificaciones se refieren a transparencia y lucha contra el fraude fiscal y en la Seguridad Social. Establece como objetivos prioritarios del citado Plan los siguientes: 1. Reducir la tasa de desempleo juvenil. Lucha contra el fraude. Spain - General provisions - Constitution. Sostenibilidad medioambiental. Spain - General provisions - International agreement. Tiene por objeto lograr una mayor proporcionalidad entre la respuesta sancionadora y la gravedad del hecho cometido.
Adoption : ESPL Incluye un anexo sobre proyectos o actuaciones subvencionales. Adoption : ESPR Comporta dos disposiciones transitorias relativas a los procesos penales iniciados antes de la entrada en vigor de la presente ley y a los efectos retroactivos de la misma. Adoption : ESPM En materia de deudas de la seguridad social es sujeto responsable el empresario. Estatuto de los trabajadores. Libro I. De los comerciantes y del comercio en general Libro II.
De los contratos especiales del comercio Libro III. Orden de 12 de julio de sobre contenido y formato del documento nacional de identidad. El Libro II trata "del proceso ordinario y de las modalidades procesales". El proceso se tramita por escrito. Queda derogado el texto refundido de la Ley de Procedimiento Laboral, de , en su tenor modificado. Adoption : ESPC Reformas relativas a las penas correspondientes a delitos relacionados con actividad de bandas armadas o de elementos terroristas. Reformas relativas en particular a las disposiciones en materia de delitos relacionados con bandas armadas o individuos terroristas o rebeldes.
El art. Este real decreto provee en particular al funcionamiento coordinado de dicho registro y el registro mercantil. Deroga, en particular, el art. Real decreto por el que se aprueba el texto refundido de la ley de procedimiento laboral. Revisa las reglas procesales sobre el despido, habida cuenta del nuevo tratamiento legal de esta materia en el estatuto, etc. Ley 8 del estatuto de los trabajadores. Han quedado derogadas todas las disposiciones que se opongan al Estatuto de los Trabajadores.
II: derechos y libertades art. El libro I contiene las disposiciones generales sobre los delitos y faltas, las personas responsables y las penas.
Las disposiciones sobre la huelga arts. Tipifica los delitos contra la seguridad en el trabajo arts. Deroga el reglamento de tribunales de amparo de 12 enero Sri Lanka - General provisions - Law, Act. Penal Code Amendment Act, No. Furthermore, it is for the Claimants to prove that such due diligence and care has not been exercised by the Respondents, thus constituting a breach of their obligation. Correspondingly, the Tribunal finds that no "reasonable commercial efforts" obligation exists under the Hamaca AA.
In particular, the Tribunal concludes that the language of Articles The Tribunal further concludes that the Claimants have failed to prove that the Respondents did not exercise "reasonable commercial efforts" as required under the Petrozuata AA. In this respect, the Tribunal considers that the "dual hats" worn by Mr. Ramirez and Dr. Even if Mr. Mommer had not held such positions in PDVSA, the Government would have nevertheless remained empowered to enact the various qualified measures and PDVSA would have remained obligated to implement such measures pursuant to its Articles of Incorporation and Bylaws.
Accordingly, in relation to the First Willful Breach Claim the Tribunal concludes that an obligation to exercise reasonable commercial efforts exists under the Petrozuata AA, but not under the Hamaca AA. However, the Tribunal also finds that the Claimants have failed to prove the breach of this reasonable commercial efforts obligation.
As regards the Second Willful Breach Claim - alleging that the Respondents failed to perform the AAs "during " - the Tribunal finds that an obligation of performance of contractual obligation per se exists under Article of the VCC, such that non-performance amounts to a breach. Moreover, under Venezuelan law, an obligation of performance is characterized as an "obligation of result", such that non-performance creates a presumption of liability in contrast to an obligation of means, where liability needs to be proved. However, the Tribunal finds that the Claimants fall short of proving the entire extent of their Second Willful Breach Claim, in that the Claimants have only successfully proven non-performance of the AAs from the date of the Expropriation i.
Accordingly, in relation to the Second Willful Breach Claim, the Tribunal concludes that an obligation to perform the AAs exists under Venezuelan law i. Furthermore, even though the Respondents have breached their obligation to perform the AAs, the Tribunal finds that their liability is precluded for the following reasons.
First, the Respondents were acting pursuant to the Nationalization Decree. This Decree is a non-attributable external cause. Accordingly, the Respondents were acting in compliance with the law and their fault is precluded. In sum the Tribunal concludes that the Respondents are not liable for willfully breaching the AAs and the Willful Breach Claims are accordingly dismissed. Whoever intentionally, negligently or recklessly, has caused damage to another has the obligation to repair it.
Similarly, a party who has caused someone else damage, surpassing in the exercise of his rights the limits established by good faith, or by the object in light of which that right has been granted, is equally bound to repair it. The arbitration proceedings shall be bifurcated, with the panel first considering whether the [Claimants] had suffered a Material Adverse Effect as a result of one or more Discriminatory Actions in the relevant fiscal years, and, if the answer is affirmative, determining the [ During the second stage of the arbitration proceedings, the Parties shall continue or commence negotiations regarding the Amendments.
It is understood that the Affected Party must have exhausted all remedies conferred upon it by the laws to obtain the revocation of the discriminatory measures.
Yet, there are mounting preoccupations among political parties and civil society about corruption in the armed forces. But there are also, especially lately, more and more explicit works of comparative civil procedure. Furthermore, the Respondents also argue that the Claimants have failed to meet the notice requirements of the AAs 63 , as well as the requirement to exhaust legal and administrative remedies. Bribers, intermediaries and accessories are also subject to the same penalties set out in the CBL for each of the abovementioned offences. The critics of the system argue that it is strong in sanctions and punishments, but these may come too late to make a real difference in the process. The members of the Board of Transparency International Spain have repeatedly warned about the absence of a national agreed anti-corruption and integrity strategy. Repeals the Ukrainian Labour Code, as approved in its final form on 25 Oct.
The Company will be deemed to have paid the dividend or Cash Call Loan both principal and interest repayment, as the case may be, to the Class A Privileged Shareholder which corresponds to any compensation made hereunder. Any accumulated amount existing at the Termination Date shall be paid by the Class A Shareholder out of its own general funds. The Class A Privileged Shareholder may remedy the damage or settle the obligation through alternative means if the terms and conditions of such alternative remedy are acceptable to the Injured Shareholder.
Qualified measures must have caused the Claimants economic harm in any given fiscal year greater than USD 6. If not, then no compensation is owed by the Respondents. As established elsewhere, the harm suffered by the Claimants as a result of the Income Tax Increase and the Expropriation has crossed the aforementioned de minimis threshold. If the economic harm for a given fiscal year is between the minimum of USD 6.
In between these Brent prices i. If the economic harm suffered by the Claimants for a given fiscal year is greater than USD 75 million in Yr. If the harm is greater than USD 75 million in Yr. For the purposes of the definition of Brent Crude Oil, the "US Inflation Inde"x shall mean the annual percentage increase or decrease, if any, in the "Implicit Price Deflators for Gross Domestic Product" as published by the United States Department of Commerce, Bureau of Economic Analysis or a substitute source unanimously agreed by the Parties if such index shall cease to be published.
For the purposes hereof, " Adjusted Price " shall mean that price for Commercial Production determined in accordance with a formula established by the Board from time to time pursuant to Section 4. Notwithstanding the foregoing, if the Board has not established the formula for determining the Adjusted Price on the date that is ninety 90 days prior to the anticipated start-up date of the Initial Upgrader, as set forth in the Phase II Business Plan, or at any time thereafter within ninety 90 days of the request of any Party, any Party may request that such formula be determined by an expert who is a reputable individual possessing expert knowledge and experience with respect to the pricing of crude oil.
All calculations will be based on FOB prices for each crude at the point of origin. Step 1: has the Material Adverse Effect threshold been met? Specifically, a Discriminatory Action will have caused a Material Adverse Effect if there is a five percent or greater difference between: i cash flows to Claimant CPH in the but-for scenario, assuming no Discriminatory Measures; and ii actual cash flows to Claimant CPH as reduced by the Measures. Step 2: determining the amount of indemnification.
The second step of the Hamaca indemnification analysis is to:. Notwithstanding the foregoing, if the Board has not established the formula for determining the Adjusted Price […] any Party may request that such formula be determined by an expert […]. Claimants insist that they can ignore any negative development that occurred in the Projects post-nationalization, whether on the cost side or relating to production and revenues, and calculate compensation as if the predispossession plans of over a decade ago were immutable and the Projects were insulated from any negative developments.
Their theory is that the models they rely on constitute the best evidence of what the parties hoped for at the time and that such predispossession plans have been accepted as such by other tribunals, including the ICC tribunal in the Mobil case. Claimants point to the Mobil ICC case as a model for calculating compensation based on ex ante business plans and other information, but they forget that the Mobil tribunal did that only because it was calculating compensation as of June 26, In this Arbitration, they want the Tribunal to use pre-nationalization data, but in the context of an ex post analysis that avoids the impact of discounting from the present to , when the loss was actually incurred, inflating compensation to astronomical heights which increase daily.
In other words, they want to mix and match facts, data and concepts to achieve a windfall.
That result would be a scandal. As explained at the Hearing, a proper ex post analysis would lead to much the same result as the Mobil ICC case, but if the Tribunal were to avoid entering into the morass of the ex post analysis, the amount determined by applying the Mobil ICC methodology should effectively be the maximum of any rational compensation in this case.
NOT The following term must not appear in document. AND Both terms must be in document. OR Either term must be in document. Exact search : exclude grammatical variations of your search terms. Search results International case. Petroleos De Venezuela, S. ICC Case No. Type of case: Investor-State. Date of introduction: Unknown. Status of the case: Decided in favor of investor.
Claimant's Country of Origin: Bermuda , Netherlands. Respondent: Venezuela. Documents of the case. Lawyers and other representatives. State Alfredo De Jesus O. Preziosi Jr. Claimants 1 and 2 collectively referred to as the "Claimants" , are all engaged in the business of exploration and production of oil and natural gas. Alfredo De Jesus O. The Arbitral Tribunal is composed of 1 : Dr. Box Geneva 4 Switzerland Tel.
A Secretary to the Tribunal has been appointed by the Arbitral Tribunal with the consent of the Parties, who have received her CV and her statement of independence. Project underlying the Association Agreement between Maraven S. The below summary gives an overview of the present dispute.
It does not include all facts which may be of relevance, particularly as they emerged from the extensive evidence gathered at the hearing. In light of these developments, Venezuela enacted certain measures, such as the Hydrocarbons Law, with the alleged objective of providing investors with a stable legal framework in order to incentivize investments. A policy shift from the late s resulted in Venezuela gradually reverting the oil assets to its own patrimony, until finally in , Venezuela enacted the Nationalization Law. Pursuant to this law all existing oil concessions in favour of foreign oil companies were cancelled and all activities related to the exploration, exploitation, manufacturing, refining and marketing of oil were "reserved to the State".
This provision allowed for the participation of private entities in the oil industry through the route of association agreements between PDVSA and its subsidiaries on the one hand and the private entities on the other, provided the associations had received the prior authorization of the Venezuelan Congress. However, it seems that the Government of the Bolivarian Republic of Venezuela "Government" or "Venezuela" and PDVSA were unsuccessful in fully exploiting these vast reserves, presumably because they lacked the financial and technical resources to do so on their own.
Attracting foreign investment to the Orinoco Oil Belt was not without its difficulties, particularly because of the nationalization in Foreign investors had concerns about another nationalization, expropriation or capricious State conduct more broadly, as well as the magnitude of the technical and commercial risks posed by the Projects. These incentives included a reduced income-tax rate and a reduced royalty, along with other legal protections against Government measures that might harm the investments.
The legal basis of the Apertura Petrolera was Article 5 of the Nationalization Law, as mentioned above. For ease of reference, all references herein are to the "Ministry". The Venezuelan Congress formed a Bicameral Commission 12 to define the structure and fiscal incentives for all foreign investment in the Orinoco Oil Belt. In , the Bicameral Commission issued a report making a number of recommendations for attracting foreign investment to the Orinoco Oil Belt. Over the following years, the Venezuelan Congress implemented the recommendations of the Bicameral Commission. Moreover, in accordance with the requirements of Article 5 of the Nationalization Law, the Venezuelan Congress also authorized the Petrozuata Project 16 and the Hamaca Project.
It was against this backdrop that the Parties negotiated the association agreements for the Petrozuata and Hamaca Projects. The Claimants assert that the aforesaid fiscal incentives i. The Claimants describe the Project structure as follows: "The Project was structured through an incorporated joint venture, Petrozuata C. CPZ owned Petrozuata AA, C-1 ; Section Hamaca AA, C ARCO later left the Project. Hamaca Guarantee, C Pertinently, the final text of the Hamaca AA was also approved by the Venezuelan Congress by way of another Congressional Authorization on 11 June Second Hamaca Congressional Authorization, C These provisions are referred to as the "Discriminatory Action provisions".
As part of his so-called "Bolivarian Revolution", he immediately expressed his dislike for the Apertura Petrolera. See Partial Amendment of Decree No. Law of Partial Reform of Decree No. SoC, Section IV. On 5 February , the Respondents submitted their Answer "Answer". On 1 April , the President of the Tribunal confirmed to the Parties that the Tribunal was duly constituted and issued some initial procedural directions in this arbitration. Eva Kalnina as the Secretary of the Tribunal and also indicated the scope of her duties in this capacity. In their respective communications of 14 and 17 April , the Claimants and the Respondents provided their observations on the draft ToR and PO1.
Eva Kalnina as the Secretary of the Tribunal. On 20 April , the President of the Tribunal informed the Parties of its proposal to hold an in-person first procedural meeting on 12 June in New York, subject to substitution by a telephone conference, if the outstanding issues did not justify the expenses involved for an in-person meeting.
The Parties confirmed their availability to attend the meeting by their emails of 20 and 21 April On 12 June , the Tribunal and the Parties signed the ToR during the first procedural meeting which took place in person in New York. In the course of this arbitration, the Parties filed several written submissions as well as exhibits, witness statements and expert reports.
On its part, the Tribunal issued a number of procedural rulings. Manuel A. A verbatim transcript of the Hearing was taken and distributed to the Parties and the Tribunal at the end of each day. On 14 December , the Tribunal issued Procedural Order 5 "PO 5" , setting out further procedural steps to be taken by the Parties, as well as the timeline for filing their post-hearing briefs "PHBs" and cost statements. In light of the fact that the Claimants did not raise any objections to same, the Tribunal permitted the Respondents to introduce these new exhibits on 22 December On 23 December , the Tribunal raised various questions in connection with the matters argued during the Hearing and invited the Parties to address them in their PHBs.
On 17 April , both Parties filed their respective Statements of Costs. On 5 January , pursuant to Prof. As discussed in more detail in Section V below, not all of the aforesaid amounts have been paid by the Parties in equal shares. Further, in accordance with Article 30 1 of the ICC Rules, the time limit for rendering the final award was 6 months from the date of the last signature of the ToR, namely, at 12 December For the sake of clarity, the Tribunal emphasizes that it has not provided a summary of each specific argument raised by the Parties in their submissions, as it would be both repetitive and unnecessary.
The Tribunal has reproduced only what it views as the most important arguments for its decision. In the ToR, the Claimants summarized their position as follows: Under the Association Agreements, the Claimants performed their part of the bargain: their large investments of money, technology and know-how succeeded in creating highly profitable joint ventures, which in still had approximately 30 years to run.
Royalty Reduction Agreement, C The Claimants underline that such indemnification is supplemental to any other recourse available to the Claimants. The Claimants argue that PDVSA and its subsidiaries are the direct beneficiaries of the expropriation and have enjoyed billions of dollars in revenues from the full in the case of Petrozuata and majority in the case of Hamaca interests in the Projects that they illicitly obtained. As a direct result of these qualified measures, the Claimants claim to have lost the entire value of their investment in the Projects.
The Claimants contend that the Respondents took these adverse actions in utter disregard of their legal and contractual obligations to the Claimants under the AAs and the Guarantees. The Discriminatory Action provisions. As to the amount of damages, the Claimants allege that under the contractual formulae for Discriminatory Actions, the cumulative damages exceed many billions of US Dollars.
The Claimants also note that, in response to the measures enacted by the Government, they repeatedly communicated their complaints to the Respondents and then pursued the only other practical remedy, ICSID arbitration, against Venezuela for more than seven years. The Claimants underline that Venezuela is not a signatory to the AAs or Guarantees, nor is it a named party to these ICC proceedings, whilst it is the sole respondent in the ICSID Arbitration where its obligations arise under the Dutch-Venezuelan bilateral investment treaty and international law.
Finally, the Claimants have clarified that they do not seek double recovery for the damage suffered. To the extent that they or related entities are awarded damages for the same injuries in the ICSID Arbitration and receive payment of such an award, the Claimants affirm that the Respondents will receive an appropriate set-off from their obligations arising from an award in these proceedings, and vice versa.
In their Reply, the Claimants sought the following relief: As to the first category of claims, the Respondents observe that it seeks to hold them liable for allegedly collaborating, participating or assisting in, or implementing, the Royalty Measure, the Extraction Tax, the Income Tax Increase, and the Nationalization Decree.
They argue that these claims are not only unsustainable as a matter of law, but are also non-arbitrable and beyond the jurisdiction of this Tribunal, particularly as the Venezuelan Congress never authorized arbitration of such claims, whether against the parties to the Association Agreements or PDVSA as guarantor, and the scope of the guarantees does not cover such claims.
They further submit that what makes the first category of claims - namely, the claims pertaining to willful breach - "truly incomprehensible" is that all parties to the AAs understood very well when they entered into the Projects that the Government may take action adversely affecting the Projects, including fiscal measures and even outright seizure of assets or expropriation. The Respondents emphasize that this was the focal point of the negotiation for the Projects in the s: while the investors were seeking "full compensation" for any adverse governmental action and "fiscal stability", such requests were "flatly rejected" by the Government.
Likewise, compensation should be excluded for the Income Tax Increase, as this too is not a Discriminatory Action. Furthermore, the Respondents also argue that the Claimants have failed to meet the notice requirements of the AAs 63 , as well as the requirement to exhaust legal and administrative remedies.
In other words, the Respondents are seeking a declaration of the right to exercise the buy-out option enshrined in Articles Conclusion A. First Category of Claims Second Category of Claims Counterclaim Costs These conclusions were confirmed by the Respondents in their PHB. The Tribunal has not provided a summary of each and every submission, argument or objection raised by the Parties. Instead, it has reproduced only what it views as the most important arguments determinant for its decision. Section 4 of the Petrozuata Guaranty provides as follows: Section 4.
Governing Law and Arbitration. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the Republic of Venezuela. Arbitration a Any dispute arising out of, or relating in any way to this Agreement shall be settled exclusively and finally by arbitration. Expert Determinations a Disputes submitted to an expert pursuant to Sections 9. Pre-Judgment Attachment Except as otherwise specified in Article XI, each Party agrees that it shall not, and waives any right it might have to, seek to attach assets of any other Party prior to issuance of a final arbitral decision pursuant to this Article XVII.
Consolidation; Joinder If any Party or any party to any Related Agreement or any other Person who is bound to this or another similar arbitration agreement in connection with the Project or activities conducted in the Project Area initiates multiple arbitration proceedings, the subject matters of which are related by common questions of law or fact and which could result in conflicting awards or obligations, the Parties hereby agree that all such proceedings may be consolidated into a single arbitral proceeding at the request of any Party.
Waiver of immunity The Parties agree that the activities contemplated by this Agreement and the Related Agreements are commercial in nature. Alternative Resolution of Disputes In the event that any arbitration or award pursuant to an arbitration conducted according to the provision of this Article XVII is found invalid or unenforceable in Venezuela for any reason, the Parties agree, at the election of any Party, to submit any dispute arising out of or relating in any way to this Agreement to binding arbitration before the International Centre for Settlement of Investment Disputes "ICSID" in accordance with its arbitration rules as in effect at the time of such dispute.
Article 13 of the Hamaca Guarantee provides as follows: The ToR provides that all proceedings shall take place in New York unless all Parties agree otherwise, or the Tribunal decides otherwise, upon request of one of the Parties or on its own motion, by showing of good cause. The Tribunal recorded this agreement in PO 4.
The applicable substantive law is Venezuelan law, pursuant to Article This arbitration is governed by in the following order of precedence : a The mandatory rules of the law on international arbitration applicable at the place of the arbitration; b The ICC Rules of Arbitration of ; c The ToR and the procedural rules issued by the Arbitral Tribunal, as reflected in PO 1, and any amendments thereof. As set forth in the ToR, if the provisions therein do not address a specific procedural issue, the applicable procedural issue is to be determined by agreement between the Parties or, in the absence of such agreement, by the Arbitral Tribunal.
The Parties have agreed that the language of the arbitration shall be English. The Claimants argue that, under Section 9. The Claimants submit that the following measures by the Government constitute DAs for which compensation is due: i. Discriminatory Action is defined at Section 1. Significant Economic Damage is defined at Section 1.
Material Adverse Effect is defined at Article The Claimants initially argued that all the "value-reducing measures that preceded the nationalization, i. Subsequently, however, the Claimants were emphatic that there are only two DA Claims at issue: the Income Tax Increase, on the one hand, and the Expropriation, on the other Tr. While the Respondents concede that the Expropriation constitutes a DA, 81 they contest the Overall Expropriation argument raised by the Claimants.
R-PHB, fn. They submit that the Income Tax Increase applied to "all Venezuelan taxpayers deriving income from the production of hydrocarbons, including the mixed companies emerging from the migration process for the operating services agreements and the migration process for the associations". Hence, it does not constitute a DA. Moreover, the Respondents submit that the Claimants have forfeited their right to pursue the DA Claim as a result of their failure to i notify the Respondents of the occurrence of a DA in accordance with the specific notice requirements under each AA; 89 and ii exhaust all local and administrative remedies, as stipulated by the AAs.
Petrozuata AA, C-1 , Section 9. Section 1. Petrozuata AA, C-1 , Section 1. With due regard to the above provisions, Section 9. In particular, Section 9. Sections 9. These are not relevant in the present analysis on liability. Hence, to the extent necessary, they will only be referred to in the Quantum section below.
Subsequently, Section 9. It provides as follows: d [CPZ] shall, to the fullest extent practicable, commence and exhaust all available legal and administrative actions which may provide a remedy from the application of such Discriminatory Actions. Finally, Section 9. Hamaca AA, C-3 , Article In particular, Article Articles As in the case of their equivalent in the Petrozuata AA, Articles In this context, the Tribunal first notes that the Parties agree that the Income Tax Increase, the Royalty Measure, the Extraction Tax and the Expropriation all represent either: i "actions, decisions, or changes in law, adopted by [Venezuelan] national, state, or municipal, administrative, or legislative authorities"; or ii "change[s] of Venezuelan national, state or municipal law, or [acts] or action[s] with force of law, act[s] of government actos de gobierno , or action[s] or decision[s] of any Venezuelan national, state or municipal legislative or administrative authority including any such action or decision resulting in a change in interpretation or application of Venezuelan law ".
The Claimants put forward two sets of qualified measures that, in their view, constitute DAs: the Income Tax Increase and the Overall Expropriation, the latter being comprised of the Royalty Measure, the Extraction Tax and the Expropriation. The Tribunal now turns to the discussion of each of these issues. For the Claimants the issue is clear: the Overall Expropriation constitutes a compensable DA pursuant to which the Respondents are required to indemnify the Claimants for the losses suffered.
Hence, it will assess the alleged discriminatory nature of the Overall Expropriation under each AA separately. The Tribunal will, however, make certain necessary cross references to the Hamaca AA when dealing with the Petrozuata AA, and vice-versa. See infra, fn. The Claimants allege that they were subjected to "one deliberate, coordinated campaign […] designed […] to lead to the burial of the AAs […]".
First, the chapeau of Section 1. Relying on Mr. Day 3 , van Wageningen. The Claimants thus explain that the Royalty Measure, the Extraction Tax, and the Expropriation, jointly, constitute an Overall Expropriation falling under the definition of DA because: i each of these measures were intended to progressively affect the value of the Projects, paving the way for the Expropriation to take place a qualified measure that the Respondents concede constitutes a DA ; and ii the terms "in combination" and "analysing globally" contained in Section 1.
According to the Respondents, the Claimants have misconstrued the way qualified measures can be aggregated for the purposes of obtaining compensation for the harm caused by a DA. In support of their argument, the Respondents rely in particular on the definition of SED set forth in Sections 9. As to Section 9. With the foregoing in mind, the Respondents point next to Section 1. In support of their argument, the Respondents also rely on Mr. The Respondents further refer to the letter quoted therein, sent by Mr. The relevant full paragraph of that letter and not only the excerpt quoted in Mr.
On the basis of the above testimony, the Respondents conclude that, in accordance with both the text and negotiating history of the Petrozuata AA, the cumulative approach suggested by the Claimants is only germane to facilitate surpassing the de minimis threshold required for establishing SED. Hence, while the aggregation of damages from qualified measures is permitted, the said measures must first and foremost satisfy the conditions to constitute a DA. Therefore, the characterization of the Overall Expropriation as a compensable DA must be rejected.
The chapeau of Section 1. The last paragraph of Section 1. As to the issue of what comprises "discriminatory" treatment, it is considerably less straightforward, as it appears to be contingent on the type and scope of the qualified measure in question. If the qualified measure is general and does not fall within any of the categories below, then treatment shall be considered discriminatory only if the measure is not "applicable to all enterprises in Venezuela".
It is with the foregoing in mind that the Tribunal can properly assess the allegedly "express terms" on which the Claimants rely as the basis for their cumulative approach to DAs. Given the explicit link between the term "unjust" and the notion of SED, the same logic should extend to the latter, namely, a series of qualified measures can be considered in the aggregate to determine whether SED has taken place, and thus whether the de minimis threshold of USD 6.
The key issue is hence whether the chapeau of Section 1. The cumulative approach to discriminatory treatment foreshadowed in the chapeau of Section 1. No other part of Section 1. The Claimants themselves admit that their argument is mostly based on the reference to "in combination" in the chapeau and the reference to "analyzing globally" in Section 1.
It follows that, while the chapeau indeed suggests that all qualified measures can be considered "in combination", Section 1. In other words, as discussed further below, Section 1. Such a construction is in line with the overall structure of Section 1. In turn, if the purpose is to draw a distinction between those qualified measures that, on their face, "equally appl[y] to the enterprises within the oil industry" which, in principle, "shall not be considered discriminatory" , from those measures that do not entail equal treatment even within the Venezuelan oil industry, then taking all the relevant qualified measures in the aggregate is entirely sensible.
Nevertheless, it is not accurate to say that a qualified measure must first be deemed a DA before assessing whether it has caused a SED. As already established, a qualified measure may constitute a DA precisely because it is "unjust" and, as such, entails SED.