By: Rita Halabi
1. Introduction
Most people are risk averse. That explains why thirty-day return policies and free flight cancellations exist. That bungee-jumping and sky diving are considered “extreme” rather than “mainstream” sports equally supports the conclusion that by and large, people tend to avoid risk.
As it happens, the same is true for investors, who often try to protect themselves from risk by doing business in the corporate form. Should the business fail, corporate limited liability promises investors to lose no more than their actual investment. Since investors are risk averse, incentivizing investment requires protecting this investment structure. Along these lines, should a dispute arise, a company’s investors should not be forced to arbitrate without actual and unequivocal consent.
Whether or not to force non-consenting shareholders to arbitrate lies at the heart of the arbitration case, Manta Port Authority v. Terminales Internacionales de Ecuador S.A.-En Liquidación. The Quito Chamber of Commerce administered the case in Spanish, with Panama as the arbitral seat. Manta Port Authority involved a dispute over a concession contract for the development of Ecuador’s Port of Manta. The arbitral tribunal forced the concessionaire company’s Hong Kong-based shareholders to arbitrate and found them jointly and severally liable for the concessionaire’s breaches. However, the Panama court partially annulled the award in their favor because they never consented to arbitrate.
With Manta Port Authority as its centerpiece, this case note proposes that requiring consent to arbitrate promotes infrastructure investment by (1) upholding investor confidence in international arbitration; and (2) limiting investor liability to the local investment. To that end, the paper is organized as follows. The first section describes the infrastructure sector’s relationship to economic development and establishes international arbitration’s importance to that sector. Then, the section that follows summarizes Manta Port Authority and the Panama Court’s partial annulment with respect to the non-consenting shareholders. Finally, the last section discusses Manta Port Authority’s implications to foreign investors and the people in Latin America.
2. Sector
a. Overview
Infrastructure empowers individuals to “seize the opportunities of the future economy”.[1] As the foundation upon which society operates,[2] infrastructure includes the following systems: (1) public utilities (i.e. power, telecommunications, & piped water supply); (2) public works (i.e. roads, dams, & canals); and (3) transport facilities (i.e. urban transport, ports, & airports).[3] In developing countries especially, these structures and facilities lead to economic development and poverty alleviation.[4] Obvious examples of how infrastructure improves lives include access to clean water and sanitation.[5] For further illustration, in the agricultural powerhouse of 18th Century France, its citizens frequently died from famine because transporting food further than fifteen kilometers from origin was too costly.[6] Paved roads would have reduced transportation costs, thus incentivizing farmers and merchants to allocate their products according to the demand for them.
Historically, governments undertook infrastructure projects, partly due to the belief that “governments could succeed where markets appeared to fail.”[7] That belief eventually changed when population growth increased the demand for infrastructure far beyond government’s capacity to meet it.[8] Industrialization also played a significant role; as countries industrialize, people urbanize, requiring roads and utilities to accommodate population shifts.[9] Notice, for instance, the sudden emergence of Chinese megacities in the last three decades.
At any rate, by the 1980s, governments opened their doors to private investment and participation in the infrastructure sector.[10] Even Latin American countries, once hostile to foreign investment due to the Calvo Doctrine,[11] enacted legal reforms to create a secure investment climate by the 1990s.[12] Of note, Latin America was first region to extensively liberalize the infrastructure sector.[13] Its demand for infrastructure development will continue to rise, as Latin and Caribbean countries have an estimated population growth of 148 million between 2015 and 2050.[14] Will governments be able to meet that rising demand?
To that point, the World Bank stresses that market forces can resolve the inefficiencies and lack of incentives, accountability, and competition that governments face with respect to infrastructure development.[15] In fact, the 2018 G20 Summit, focused on sustainable development, called for private investment in developing countries’ infrastructure.[16] The Summit brought to light the discrepancy between the $5.5 trillion projected global infrastructure gap between 2017 and 2035 and institutional investors’ $80 trillion in assets, urging private investors to close that gap.[17] Fortunately for investors, infrastructure projects have high potential for returns.[18] However, investors are risk averse.[19] For foreign investors in infrastructure, dispute resolution poses considerable risk because this sector is known for complications and peculiarities.[20] Therefore, attracting foreign investment to infrastructure projects requires a dispute resolution mechanism that circumvents as much risk as possible. As will be discussed in the next few paragraphs, that mechanism is international arbitration.
b. Dispute Resolution in Infrastructure Sector
Due to their long-term and complex character,[21] infrastructure projects are highly dispute-prone.[22] Decades-long contractual relationships entail risky changes to project profitability, bargaining power, and government needs.[23]
Litigation, the traditional mechanism, may not be appropriate to resolve these unique disputes, whether related to private projects or public-private partnerships.[24] For starters, parties to infrastructure contracts hail from diverse cultures and backgrounds.[25] In cross-border disputes, foreign parties may face a lack of judicial impartiality, especially in countries with weak civil justice systems.[26] This is particularly disconcerting in disputes arising from concession contracts between foreign parties and state-owned entities. Further, litigation disadvantages foreign parties by requiring them to familiarize themselves with local procedure, hire local counsel, and inform counsel in the local language about the case’s complex issues.[27] Also, another potential weakness of litigation is the lack of an instrument for the universal recognition and enforcement of judgments.[28] While the Hague Choice of Court Convention purports to recognize judgments rendered by its signatories’ courts, only seven countries have signed it.[29] In Latin America specifically, only one country ratified it–Mexico.[30] In the absence of universal recognition and enforcement, is it sheer luck that protects parties from parallel proceedings?
Furthermore, since infrastructure projects usually involve “technically difficult and complicated engineering designs,” educating the fact finder in a court proceeding is far too costly and time-consuming.[31] Time, in general, is an issue for these projects because many countries have crowded court calendars, making disputes drag on for years.[32] Since infrastructure projects necessarily implicate the public interest where they are located,[33] neither the parties involved nor the stakeholders can afford to put these projects on hold indefinitely.
The weaknesses of litigation alluded to here are not exhaustive but merely demonstrate that infrastructure disputes require an alternative mechanism. While mediation is popular for its speed, economy, and ability to preserve the parties’ ongoing business relationship,[34] mediation is not binding.[35] Thus, disputes left unresolved by mediation inevitably lead to arbitration. [36]
Put simply, international arbitration is the most attractive method of resolving cross-border commercial disputes.[37] Neutrality is ostensibly its clearest advantage,[38] especially for disputes between foreign parties and state-owned entities. Additionally, enforcing arbitration awards is simpler and more predictable than enforcing court judgments, thanks to the New York Convention.[39] Finally, international arbitration is notably flexible, when compared to litigation.[40] Unlike the latter, international arbitration allows parties to custom-tailor the dispute resolution process by choosing the arbitrators, arbitral seat, and language of the proceedings; litigation, on the other hand, requires parties to follow preexisting procedures.[41] Since infrastructure projects are complex by nature, their complexity should not be exacerbated by procedural rigidity. In this regard, international arbitration provides a more streamlined dispute resolution process.
In sum, international arbitration is the most neutral, simple, and predictable way for parties from varying cultures and backgrounds to resolve their disputes.[42] Arguably, international arbitration’s importance to the infrastructure sector necessitates protecting its reputation and legitimacy. The Manta Port Authority case, discussed in the following section, achieves that result by upholding the requirement of consent to arbitrate.
3. Discussion
a. Background to the Dispute
Ecuador passed the Port of Manta Development Law in the 1990s to develop its port infrastructure and implemented a concession strategy to invite private participation.[43] In May 2006, the Ecuadorian public entity, Autoridad Portuaria de Manta (“APM”), called for bids on a concession contract to develop the Port of Manta; the only bidder was Hutchison Port Investments Limited (“HPI”).[44] On September 6, 2006, APM announced that HPI won the bid on the concession contract.[45]
Complying with Ecuadorian law,[46] HPI and its holding company, Hutchison Port Holdings Limited[47] (“HPH”) incorporated Terminales Internacionales de Ecuador, S.A. (“TIDE”) in October 2006 in Ecuador as a special purpose company to develop the Port of Manta.[48] The Concession Contract (the “Contract”) was executed on November 17, 2006, designating TIDE as “Concessionaire Company” and APM as “Grantor”.[49] Becoming effective in January 2007, the Contract was set to last for thirty years.[50]
The Contract required APM to contribute US $55 million to the project; directly oversee TIDE’s port activity; and provide TIDE with publicly-owned property for use in the project.[51] TIDE’s obligations were, inter alia, to provide port services; transfer 5% of its paid-up capital stock to APM; possess, at incorporation, at least US $55 million or 5% of the required minimum direct investments; and implement the projects according to the established timetable.[52] However, by 2008, TIDE could no longer comply with the timetable because of the severe global financial crisis.[53] As a result, TIDE proposed to APM a new timetable for construction.[54]
Subsequently, in Ecuador’s January 2009 Presidential Address, President Correa publicly criticized TIDE and threatened to amend the Contract.[55] He announced, “The concessionaire company is not meeting the investment timetable, so I’ve already shown them the yellow card: you don’t play around with this government. So we’re not going to pay one thin dime!”[56] Then, per Correa’s instructions, APM amended the Contract to eliminate the US $55 million contribution and have APM continue developing the Port of Manta.[57]
After APM refused TIDE’s request for direct discussions over APM’s unilaterally imposed modifications to the Contract, TIDE announced its withdrawal.[58] Mediation proceedings finally took place in July 2011, but the parties did not accept the presiding mediator’s proposal.[59] Therefore, in September 2012, APM informed the respondents of its intent to initiate international arbitration and served notice to the Quito Chamber of Commerce (the “Center”) in October 2012, to administer the proceedings.[60] Professor Dr. Guido Tawil (presiding), Juan Pablo Cárdenas, and Roque Caivano formed the Arbitral Tribunal (the “Tribunal”). [61]
b. Decision on Jurisdiction
The Tribunal decided on the Center’s jurisdiction and its own competence to hear the dispute in February 2014, including over HPI and HPH, at APM’s request.[62] While the Tribunal waited until the merits stage to determine the award’s extension over the Hutchison companies,[63] it did invite HPI and HPH to appear at the proceedings and submit objections.[64] Nevertheless, HPI and HPH neither appeared nor submitted jurisdictional objections by the deadlines.[65]
According to the Contract, disputes not settled by mediation may be submitted to arbitration, to be governed by the Arbitration and Mediation Law and procedural rules of the “aforementioned Arbitration and Mediation Center.”[66] Faced with the ambiguity of whether that meant the International Center for Settlement of Investment Disputes (ICSID) or the Center, the Tribunal interpreted it to mean the latter, which was the closest previous mention and consistent with the parties’ choice of exclusively applying Ecuadorian law to the Contract.[67] The Tribunal based its competence on (1) APM’s memorial; (2) TIDE’s appearance before the Tribunal without jurisdictional objections; and (3) the objections to participation that HPH eventually submitted in May 2013, on behalf of itself and HPI.[68] In March 2014, after the Tribunal served notice onto the parties the jurisdictional decision, HPI and HPH joined the proceedings.[69] Since the jurisdictional phase had concluded prior to HPI and HPH joining, the Tribunal rejected their counter memorial’s arguments on jurisdiction.[70]
c. Award
The hearing on the merits took place in Panama City, Panama, from February 9-13, 2015.[71] The claimant APM asked the Tribunal to find the respondents TIDE, HPI, and HPH jointly and severally liable for breach of contract because they consented to be parties to the contract, or alternatively, under veil-piercing or denial of justice theories.[72] The respondents requested the Tribunal to find that it lacks jurisdiction and/or competence, as well as to declare APM’s claims as inadmissible because HPI and HPH were neither parties to the Contract nor consented to become parties.[73] In its analysis, the Tribunal first opined that TIDE breached the Contract by withdrawing early and failing to transfer 5% of its capital stock to APM.[74] Then, the Tribunal considered the extension of the arbitration agreement and liability therein to HPI & HPH.[75]
To that end, the Tribunal analyzed whether those companies (1) were parties to the Contract; (2) promised to perform the investment obligations to APM directly; and (3) could be liable under corporate veil-piercing or denial of justice theories, in the absence of consent.[76]
i. HPI & HPH’s Liability Under the Contract
According to the Tribunal, while the Contract designated APM as “Granting Authority” and TIDE as “Concessionaire Company,” HPI and HPH could still be bound, even if they were not “parties” to the Contract.[77] The first reason was HPI and HPH’s promises to APM in the pre-contractual proposal, which became a schedule to the Contract.[78] In the proposal, HPI expressly promised that if it won the bid to develop the Port of Manta, it would meet the investment obligations by providing financing.[79] However, HPI stated in an affidavit submitted with the bid that its liability was limited to obligations arising before the signature of the Contract.[80] To resolve the discrepancy, the Tribunal explained that applying the affidavit statement to HPI’s proposal promise would make the latter useless and without effect, as financing would necessarily take place after the Contract was signed.[81] Furthermore, interpreting the Contract so as to render it “ineffective” violates both Ecuadorian law and universal contract interpretation rules.[82] Thus, the Tribunal reasoned, HPI promised to assume financing obligations, and APM relied on that promise.[83]
Having concluded that HPI had obligations under the Contract, the Tribunal next analyzed whether the holding company, HPH, also had such obligations.[84] Per the bid’s terms of reference, unless the bidder submits a certification that it bids on its own behalf, APM will consider the bid’s submission to be on behalf of the holding company that owns it, implying the latter’s decision to participate and become liable in the bidding process.[85] Since HPI submitted the bid “as part of Hutchison Port Holdings Limited Group” and certified that HPI is “a wholly-owned subsidiary of Hutchison Port Holdings Limited,” the Tribunal determined that HPH obligated itself to implement the project and provide financing.[86]
ii. HPI & HPH’s Liability for TIDE’s Breach of Contract
The Tribunal reasoned that since HPI and HPH promised to implement the project and provide financing, they were bound to take all actions necessary to that end; moreover, since they controlled TIDE, they should have ensured that it comply with the duty under Ecuadorian law to perform contracts in good faith.[87] As a result, TIDE’s premature and unjustifiable withdrawal from the Contract was “equally attributable” to HPI and HPH.[88]
Furthermore, the Tribunal stated that HPI and HPH’s level of involvement in the Contract greatly exceeded the level of supervision shareholders usually exercise over a company.[89] For instance, HPH and HPI directly performed certain contractual obligations and required that certain decisions made by TIDE “had to go through Hong Kong” for approval.[90] Finally, the Tribunal mentioned that HPI and HPH, not TIDE, decided to withdraw from the Contract and actively participated in the post-contractual phase.[91] Thus, keeping with the Roman dictum, nemo potest contra factum venire,[92] the Tribunal’s majority found HPI and HPH jointly and severally liable for TIDE’s breach of the Port of Manta Concession Contract.[93]
ii. Damages
The Tribunal ordered TIDE, HPI, and HPH to pay US $27,192,728.00 in damages to APM.[94] This figure was based on actual losses incurred and lost profits, both of which were adjusted to the valuation date.[95] Furthermore, the Tribunal indicated that TIDE’s non-depreciated investments in real property in the Port of Manta would become property of Ecuador.[96]
iii. Dissent
Particularly noteworthy is Tribunal’s presiding arbitrator, Professor Dr. Guido Tawil, partial dissent from the award on the basis that neither HPH nor HPH had the capacity to execute the Contract under Ecuadorian law. As a result of the legal incapacity, he reasoned, APM could not have legitimately expected that those companies were parties to the Contract.[97]
d. The Annulment
After the Tribunal issued the award, HPI and HPH filed a request to annul the award in Panama, the arbitral seat.[98] On March 15, 2019, the Supreme Court of Justice’s General Affairs Division of the Republic of Panama partially annulled the arbitration award rendered on November 18, 2015.[99] The Petitioners (HPI and HPH) argued all six grounds for the annulment of an award enumerated in Panama’s arbitration law,[100] but the Court based its decision upon the first ground, which deals with lack of lawful standing or legal capacity to enter into an arbitration agreement.[101] That ground focuses on consent as the “basic element for the parties to be bound.”[102]
The Court initially declared that “the Request for Annulment is an extraordinary and exceptional mechanism that is only admissible in specific cases or given certain conditions.”[103] Since HPI and HPH did not actively participate in the negotiations and execution of the Contract between APM and TIDE, the Court reasoned, HPI and HPH could not have been parties to the dispute arising out of that Contract; thus, they lacked lawful standing or legal capacity to be part of the arbitration agreement.[104]
Moreover, the Court added that non-signatories cannot be bound to arbitration agreements without the (1) mutual agreement of the parties to the proceeding[105] (i.e. APM and TIDE) and (2) consent to arbitrate from the non-signatories.[106] Regarding the former factor, the Court pointed out that at the Contract’s execution, neither APM nor TIDE expressed the intention to consider HPI and HPH as parties involved in its performance; also, the Contract’s dispute resolution section binds only TIDE.[107] Regarding the latter factor, the Court reasoned that while an arbitration agreement need not be in writing to bind the non-signatory, the non-signatory must actually and unequivocally express its consent to arbitrate.[108] This actual and unequivocal consent may be established through different types of evidence, such as by examining the facts of the case.[109] There, the Court determined, neither circumstantial nor written evidence existed to demonstrate HPI and HPH’s consent to arbitrate.[110] Consequently, for lack of mutual agreement between APM and TIDE, as well as lack of consent from HPI and HPH, the latter parties did not have lawful standing or legal capacity to enter into the arbitration agreement. Having duly addressed the first ground for annulment, the Court partially annulled the award rendered by the Arbitral Tribunal.[111]
4. Implications
By declaring that “consent is the cornerstone of international arbitration,” the Panama Supreme Court of Justice’s decision incentivizes foreign investment in Latin American infrastructure. This is evident for two reasons. First, the Panama court’s decision upholds investor trust in international arbitration. Without trust in the system, who would relinquish their fundamental right to courts in favor of arbitration?
Regrettably, when tribunals haphazardly “pierce the corporate veil,” they tarnish international arbitration’s reputation as the preferred mechanism to resolve infrastructure disputes. Such reckless disregard of longstanding legal principles results in mistrust of arbitrators and doubts about the system’s legitimacy. Perhaps that is why Professor Dr. Guido Tawil dissented from the Tribunal’s decision, even though presiding arbitrators seldom dissent.[112] His dissent signals that the Tribunal’s decision was erroneous. In the same vein, the Court’s partial annulment warns arbitrators in the region against binding non-signatories without actual and unequivocal consent, or so too will their awards be annulled. Put plainly, enforcing international arbitration’s consent requirement upholds investor trust in the system. Thus, with the knowledge that they can rely on international arbitration to resolve their disputes, foreign investors will be more likely to engage in cross-border infrastructure projects.
Next, requiring consent to arbitrate protects the investment structures put in place to shield investors from liability. Since investors are risk averse, in a world of unlimited liability, they would reject projects with positive net present value due to the risk of loss.[113] This results in a loss to society.[114] Conversely, if the risk of loss is limited to the actual investment, investors will still undertake projects with positive net present values, even if they entail risk.[115] In this respect, limited liability facilitates optimal investment decisions, creating financial returns for investors, products and services for consumers, jobs for employees, and tax revenue for governments.[116] This is also the case in a cross-border context. Foreign investors doing business abroad in the corporate form will invest more if assured that their liability will be limited to the local subsidiary’s assets.[117]
On a final note, what makes the Panama Supreme Court of Justice’s decision so powerful is its mutually beneficial result for both the foreign investors and the people of Latin America. Since infrastructure development is inextricably tied to economic development and poverty alleviation, the more that industry giants like the Hutchison Group invest in infrastructure, the more that the lives of Latin Americans will improve, allowing them to flourish, innovate, and “seize the opportunities of the future.”[118]
Footnotes:
[1] Overview of Argentina’s G20 Presidency 2018: Building Consensus for Fair and Sustainable Development, 4 (2017).
[2] See World Bank, World Development Report, 1994: Infrastructure for Development, 14 (1994).
[3] See World Bank, supra note 1, at 2.
[4] See id.; see also Julian L. Simon, Population and Development in Poor Countries, 33 (1992).
[5] See World Bank, supra note 1, at 20.
[6] See Simon, supra note 6, at 29.
[7] See World Bank, supra note 1, at 24-5.
[8] Rajiv Biswas, Emerging Markets Megatrends, 81 (2018); see also World Bank, supra note 1, at 25.
[9] See Simon, supra note 6, at 30; see also World Bank, supra note 1, at 26.
[10] See World Bank, supra note 1, at 24.
[11] See generally Jonathan C. Hamilton, Three Decades of Latin American Commercial Arbitration, 30 U. Pa. J. Int’l L.1099, 1100 (2009) ( The Calvo Doctrine held that “the jurisdiction in international commercial disputes lies within the country in which the investment is located”, reflecting Latin American countries’ reluctance toward arbitration.).; see also Andres Jana L., International Commercial Arbitration in Latin America: Myths and Realities, 32 J. Int’l Arb. 413, 420 (2015) (“Latin American states acquired their sovereignty late and therefore they tended to jealously safeguard its different dimensions. The principle of territorial application of national laws was seen as an intrinsic manifestation of such sovereignty.”).
[12] See Omar E. García-Bolívar, Investor-State Disputes in Latin America: A Judgment on the Interaction Between Arbitration, Property Rights Protection, and Economic Development, 13 L. & Bus. Rev. Am. 67, 94 (2007); see e.g. Hamilton, supra note 13, at 1102 (In the 1990s, many countries in Latin America ratified the New York and Panama Conventions, as well as based their domestic arbitration laws on the UNCITRAL Model Law on Commercial Arbitration.).
[13] See UNCTAD, World Investment Report 2008, 118 (2008).
[14] See Biswas, supra note 10, at 2.
[15] See World Bank, supra note 1, at 52, 33-4, 39.
[16] See Judith E. Tyson, Private infrastructure financing in developing countries, 10 (2018); see also Biswas, supra note 10, at 81.
[17] See Biswas, supra note 10, at 81.
[18] See UNCTAD, supra note 15, at 89.
[19] See Frank H. Easterbrook et al, Limited Liability and the Corporation, 52 U. Chi. L. Rev. 89, 97 (1985).
[20] See Edwin H.W. Chan et al, Construction Industry Adjudication: A Comparative Study of International Practice, 22 J. Int’l Arb. 363, 363 (2005).
[21] See James J. Myers, Developing Methods for Resolving Disputes in World-Wide Infrastructure Projects, 13 J. Int’l Arb. 101, 101 (1996).
[22] See id. at 106.
[23] See id. at 111.
[24] See Chan, supra note 22, at 363; see also Myers, supra note 2, at 101.
[25] See Chan, supra note 22, at 363.
[26] See Guilherme Rizzo Amaral, Chinese Investments in Latin America: Disputes Along the Non-Conventional Belt and Road, Kluwer Arb. Blog (Dec. 14, 2018), http://arbitrationblog.kluwerarbitration.com/2018/12/14/draft-belt-road-initiative-latam/; see also Myers, supra note 23, at 109; see also John Kendall, Role of the Expert/Adjudicator in Support of Arbitration in International Long-Term Contracts, 27 Int’l Bus. Law. 201, 202 (1999).
[27] See Peter D. Ehrenhaft, Effective Commercial Arbitration, 9 Law & Pol’y Int’l Bus. 1191, 1192-3 (1977).
[28] See id. at 1193.
[29] See Status Table, 37: Convention of 20 June 2005 on Choice of Court Agreements (2020), HCCH, https://www.hcch.net/en/instruments/conventions/status-table/?cid=98
[30] See Rizzo Amaral, supra note 28.
[31] See Myers, supra note 23, at 106.
[32] See Ehrenhaft, supra note 29, at 1192.
[33] See World Bank, supra note 1, at 24.
[34] See James M. Claxton, Compelling Parties to Mediate Investor-State Disputes: No Pressure, No Diamonds? (Draft), Kobe University Social Science Research Paper Series, 7 (2019).
[35] See id. at 102.
[36] See id. at 109.
[37] See id.
[38] See Kendall, supra note 28, at 202; see also Myers, supra note 23, at 109.
[39] Formally the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, signed 10 June 1958; see Myers, supra note 23, at 109.
[40] See Ehrenhaft, supra note 29, at 1194.
[41] See id.
[42] See Rizzo Amaral, supra note 28.
[43] See Manta Port Authority v. Terminales Internacionales De Ecuador S.A.-En Liquidación, Quito Chamber of Commerce Case No. 091-13 (Award of 18 Nov. 2015) ¶110.
[44] See id. at 115; see also ¶9 (At the time the Concession Contract was executed, HPI was called IIHC Limited. HPI, incorporated in the Cayman Islands, has its registered offices in Hong Kong and in the Cayman Islands.).
[45] See id. (IIHC shall hereinafter be referred to as “HPI”.)
[46] See generally Article 172 of the General Regulations of the Modernization Law (Ecuador).
[47] See Manta Port Authority ¶10 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[48] See id. at ¶117.
[49] See id.
[50] See id. at ¶118.
[51] See id. at ¶120.
[52] See id. at ¶119.
[53] See Manta Port Authority ¶128 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[54] See id.
[55] See id. at ¶129.
[56] See id. at ¶372.
[57] See id. at ¶130.
[58] See id. at ¶132-4.
[59] See Manta Port Authority ¶151 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[60] See id. at ¶152, 21.
[61] See id. at ¶13-5.
[62] See id. at ¶42.
[63]See id. at ¶173.
[64] See id. at ¶174.
[65] See Manta Port Authority ¶41 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[66] See id. at ¶172.
[67] See id.
[68] See id. at ¶175.
[69] See id. at ¶176-7.
[70] See id. at ¶178-9.
[71]See Manta Port Authority ¶86 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[72] See id. at ¶442.
[73] See id. at ¶420, 422.
[74] See id. at ¶400.
[75] See id. at ¶405.
[76] See id. at ¶442.
[77] See Manta Port Authority¶443, 445 (HPH, incorporated in the Virgin Islands, has its registered office in Hong Kong.).
[78] See id. at ¶446, 448.
[79] See id. at ¶446.
[80] See id. at ¶449.
[81] See id. at ¶453.
[82] See generally Article 1678 of Civil Code (Ecuador); see also id.
[83] See Manta Port Authority ¶460, 454.
[84] See id. at ¶461.
[85] See id.
[86] See id. at ¶462-3.
[87] See id.; see generally Article 1562 of Civil Code (Ec.); (“Contracts must be performed in good faith, and are therefore binding not only with regard to the terms expressed therein, but also to all matters entailed by the very nature of the obligation, or which pertain thereto by law or custom.”).
[88] See Manta Port Authority ¶465.
[89] See id. at ¶467.
[90] See id. at ¶466, 419 (HPI & HPH have registered offices in Hong Kong).
[91] See id. at ¶466.
[92] See id. at ¶468 (“No one may claim a right that is contrary to their own conduct, either positive or negative, and which objectively inspires confidence in another party that the former will maintain such conduct.”).
[93] See id. at ¶467-8.
[94] See id. at ¶615.
[95] See id.
[96] See id. at ¶584.
[97] See Manta Port Authority v. Terminales Internacionales De Ecuador S.A.-En Liquidación, Quito Chamber of Commerce Case No. 091-13 (Award of 18 Nov. 2015), partly annulled, Decision of Annulment, (Sup. Ct. Jus. Panama 15 Mar. 2019), 1.
[98] See id. at 1.
[99] See id. at 1, 21.
[100] See generally Section 67 of Law No. 131 of 2013 (Panama).
[101] See Manta Port Authority (Decision of Annulment) at 2, 18.
[102] See id. at 3.
[103] See id. at 13.
[104] See id. at 16.
[105] See id. (based on Court’s decision on May 25, 2015).
[106] See id. at 17.
[107] See Manta Port Authority (Decision of Annulment) at 16.
[108] See id. at 17.
[109] See id.
[110] See id.
[111] See id.
[112] See Albert Jan van den Berg, Dissenting Opinions by Party-Appointed Arbitrators in Investment Arbitration, in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman 821, 824 (2011).
[113] See Easterbrook, supra note 19.
[114] See id.
[115] See id; see also Millon, supra note 114, at 1317.
[116] See Easterbrook, supra note 19.
[117] See García-Bolívar, supra note 14, at 69; see also Millon, supra note 114, at 1317.
[118] Overview of Argentina’s G20 Presidency 2018: Building Consensus for Fair and Sustainable Development, 4 (2017).
