PART 26 - JURISDICTIONAL ISSUES ON WHICH THE CLAIMANTS ARE
SUCCESSFUL
JURISDICTIONAL ISSUES ON WHICH THE CLAIMANTS ARE
SUCCESSFUL
(a) Ratione Personae
263. The protections granted pursuant to Articles 2, 3, 4, 5 and 6 of the UK-Kenya BIT are
expressed to be in favour of “nationals or companies of either Contracting Party.”
264. The Republic of Kenya is a Contracting State to the ICSID Convention. As Cortec UK
and Stirling are nationals of the UK – also a Contracting State to the ICSID Convention. CMK is
a Kenyan company.
(i) The Claimants’ Position
265. Article 1(d) of the BIT defines “companies” as (in the case of the UK) “corporations, firms
and associations incorporated or constituted under the law in force of any part of the United
Kingdom.” Cortec UK was incorporated as a private limited company under the law of England
and Wales on 13 March 2007;
285
Stirling was incorporated as a private limited company under the
284
Phoenix Action, Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award, 19 April 2009, CL-27, para. 114.
285
Certificate of Incorporation of a Private Limited Company, Company No. 6156667, Cortec (Pty) Ltd, 13 March 2007,
Exhibit C-3.
100
law of England and Wales on 24 April 2007.
286
Cortec UK and Stirling are therefore “companies”
of the UK for the purposes of the BIT. The Government raises the alleged sale of shares to Uppal
(a company wholly owned by Cortec UK and Stirling) but the evidence is that no such sale took
place.
287
266. The Government’s argues that for a time, Cortec UK and Stirling were temporarily struck
off the English Companies Register, and that this discontinuity is fatal to their status as qualified
investors. The Claimants have demonstrated that under the UK Companies Act restoration to the
Registry cures the default.
288
There was therefore, as a matter of UK law, no discontinuity. Cortec
UK and Stirling meet the criteria for qualified investors.
267. In the case of CMK, a Kenyan company, jurisdiction ratione personae arises from the
specific regime of Article 8(2) of the BIT, which provides as follows:
A company which is incorporated or constituted under the law in force
in the territory of one Contracting Party and in which before such a
dispute arises the majority of shares are owned by nationals or
companies of the other Contracting Party shall in accordance with
Article 25(2)(b) of the [ICSID] Convention be treated for the
purposes of the [ICSID] Convention as a company of the other
Contracting Party.
289
268. CMK was incorporated on 4 July 2007. On 31 July 2007, Cortec UK and Stirling each
acquired 35% of the shares of CMK. Together, Cortec and Stirling therefore hold the majority
286
Certificate of Incorporation of a Private Limited Company, Company No. 6224835, Stirling Capital Limited, 24 April
2007, Exhibit C- 4.
287
See Claimants’ Rejoinder on Preliminary Objections dated 10 November 2017, para. 266.
288
See Claimants’ Rejoinder on Preliminary Objections dated 10 November 2017, paras. 273-277.
289
BIT, 13 September 1999, Exhibit C-17Article 8(2). |
