- 29 January 2024
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ICSID INVESTMENT ARBITRATION IN THE CASE OF CEMENTOWNIA “NOWA HUTA” S.A. v. THE REPUBLIC OF TÜRKIYE: ASSESSMENT OF ALLEGATIONS OF ABUSE OF PROCEDURE
INTRODUCTION
In today's world, where international investments are expanding, it is essential for host states to provide a predictable and secure legal system in order to attract investors. Undoubtedly, when an investor enters into an investment agreement with another state, they will consider the rules that will govern any disputes arising from the agreement or the state's treatment and their resolution, as they will be committing their capital and employment to that country for a long period of time. One of the most effective institutions that aims to bring the rules to which investors will be subject on an international level together is the “Center for the Settlement of Investment Disputes” (ICSID) established by the “Convention on the Settlement of Investment Disputes between States and Nationals of Other States”[1] , to which Türkiye is a party. (ICSID).[2]
ICSID's role is not to adjudicate as an arbitral tribunal, but to ensure the functioning and organization of arbitration and mediation processes through bodies composed of experts who appoint arbitrators and conciliators. One of the fundamental principles that the Centre must uphold is to maintain a balance between the state and the investor, protecting the interests of both parties. States that are parties to ICSID are obliged to implement decisions rendered by ICSID arbitrators. Another feature of ICSID arbitration is that no enforcement procedure is required for the decisions. In this sense, ICSID decisions are binding and directly enforceable.
According to the Convention, certain conditions must be met by the parties in order to initiate ICSID arbitration. The Centre's jurisdiction is established by the parties’ consent to resolve the dispute through this mechanism, their status as parties to the Convention, and finally, the nature of the dispute being an investment dispute. All of these conditions must be met for jurisdiction to be established. However, in some cases, even though the conditions are not met, one party attempts to establish jurisdiction through fraudulent means by abusing the ICSID arbitration procedure. The decision that is the subject of this study is an example of such cases.
In the alleged investment dispute between the Poland-based Cementownia “Nowa Huta” joint-stock company and the Republic of Türkiye, the claimant Cementownia attempted to establish the Centre's jurisdiction through fraudulent transactions. The Tribunal, which examined the case in light of the parties’ claims and demands, focused on the jurisdiction of the Centre, the investor status and the good faith associated with it, the claim for moral damages, as well as the costs.
Accordingly, this study will first summarize the events subject to the decision, present the parties’ claims and demands, the legal dispute, and the Tribunal’s final decision, and explain the Tribunal’s assessment of the central issues it examined, namely the Centre’s jurisdiction and the respondent’s claim for moral damages.
- SUMMARY OF THE CASE
ÇEAŞ is a Turkish commercial company established in 1952 and registered with the Adana Trade Registry, with its headquarters in Adana. When it was established to build and operate power plants and to control the related production facilities and equipment, institutions and companies affiliated with the Turkish government held 35% of ÇEAŞ's share capital. Today, ÇEAŞ carries out electricity services, transmission, distribution, and sales[3]. Kepez is a Turkish hydroelectric company established in 1953 with its headquarters in Antalya. At the time of its establishment, institutions and companies affiliated with the Turkish government held approximately 40% of Kepez's share capital. During the period in which the events subject to the decision unfolded, these two companies provided electricity service activities based on concession agreements concluded with the Ministry of Energy and Natural Resources[4].
The Republic of Türkiye entered into concession agreements with ÇEAŞ in 1953 for three regions in southern Türkiye and with Kepez in 1956 for southern Türkiye and Antalya, covering electricity generation, distribution, transmission, and marketing activities[5].
In 1970, the Republic of Türkiye transferred all electricity industry activities to the Turkish Electricity Institution, which was established by the state. However, ÇEAŞ and Kepez continued their activities as exceptions under the concession agreements[6].
In 1992, the Republic of Türkiye decided to privatize its remaining 11.25% stake in ÇEAŞ and 25.39% stake in Kepez, offering these shares to domestic and foreign investors through a tender process, and ultimately sold them to Rumeli Elektrik Yatırım A.Ş., which, according to the claimant's assertion, won both tenders and is affiliated with the Uzan family group’s holdings[7].
In 1998, new “1998 Concession Agreements” covering the same type of activities related to electricity services were concluded between Türkiye and the two companies. These agreements stipulated that the facilities and equipment used to fulfill the concessions would remain state property for the duration of the concession period, and that the contracting companies would be obliged to transfer the facilities to the state when the concession agreements expired[8].
In 2001, the Electricity Market Law No. 4628[9] was enacted. Article 2/III stipulates that all electricity transmission lines shall be managed by the Turkish Electricity Transmission Corporation (TEİAŞ), which is owned by the state. Transitional Article 4 stipulates that companies operating in the field of “electricity transmission” within TEİAŞ's area of responsibility, including ÇEAŞ and Kepez, shall no longer be able to engage in these activities[10]. Subsequently, an implementing regulation was issued in 2002[11], stipulating that companies of the type mentioned above would transfer their electricity transmission facilities to TEİAŞ by December 31, 2002[12].
Consequently, on December 30, 2002, ÇEAŞ and Kepez filed an objection with the Energy Market Regulatory Authority (EPDK) with the following claims: that they were being forced to waive their concession rights in violation of the law; that the administration was not authorized to unilaterally terminate the concession agreements and that such an action violated their legal and financial rights; that their rights arising from the concession would continue until 2058; that they had fulfilled their obligations under the concession agreement; that Law No. 4628 and the relevant regulation were unconstitutional; and that the request for the transfer of transmission facilities and lines was unlawful because the administration would not provide compensation in response to this request[13].
In 2003, the Ministry sent a petition to ÇEAŞ and Kepez, stating that they had violated their obligations arising from the concession agreement by failing to transfer the facilities and lines by the specified date, set a new final delivery date of February 28, 2003, and warned that the 1998 Concession Agreements would be terminated if the transfer did not take place by that date[14].
During the process, letters were exchanged between the Ministry, ÇEAŞ, and Kepez in February, March, and April. In its petition filed in February, ÇEAŞ objected to the transfer request, arguing that it was not legally valid, stating that it expected compensation to be offered for the transfer in accordance with the principle of good faith, and requesting to discuss these matters with the Ministry. In its response, the Ministry referred to Law No. 4628 and the relevant regulation, which form the basis of the transfer requests, stating that the transmission facilities are public property without the need for any further discussion. It stated that the Ministry's two previous invitations to meetings in response to the company's request for discussions clearly demonstrated its positive approach to establishing a dialogue regarding the transfer process; however, it stated that ÇEAŞ officials ignored the communication channel the Ministry sought to establish by failing to attend the meeting. In its petition dated March 2003, Kepez stated that it would not accept the administration causing damage to the company's shareholders through a unilateral action, but that it was open to a meeting. In its next petition dated April 2003, ÇEAŞ stated that it was awaiting a written monetary offer for the transfer of the electricity transmission facilities and that it was open to participating in any meeting[15].
The developments up to May 30, 2003—the date on which the claimant Cementownia claims that the shares were transferred to it—have been summarized thus far. According to this claim, on that date Cementownia acquired 12.23% of the shares belonging to ÇEAŞ and 10.74% of the shares belonging to Kepez from Kemal Uzan, the owner of Rumeli Holding. The transaction took place between Uzan and Jerzy Ciepiela, the chairman of the company's board of directors, and the parties signed the agreement on the same date in Istanbul and Krakow. Again, according to the claimant, the bearer shares were delivered to Cementownia. The transfer of shares is critical for the Centre’s jurisdiction; accordingly, the Tribunal focused on this issue in its legal assessment[16].
Contrary to the claimant's assertions, the reports prepared as a result of the audit of the company's financial statements by independent auditors in 2004 for 2003 and in 2005 for 2004 revealed that no transfer transactions were found in the 2003 and 2004 financial statements. The independent audit report conducted in 2006 for the year 2005 concluded that on May 30, 2003, Cementownia purchased shares in sixteen foreign companies owned by Kemal Uzan in Istanbul, including ÇEAŞ and Kepez, and that the share prices would be paid within two months starting in 2009[17].
On June 12, 2003, the Ministry unilaterally terminated the 1998 Concession Agreements on the grounds that the parties continued to breach the agreement and failed to fulfill their transfer obligations; and, since the transmission lines and facilities used under the concession were state property, seized all of the company's property, facilities, books, records, files, documents, and correspondence, and prohibited entry into the company's buildings[18].
On September 28, 2006, the claimant company, Cementownia, filed a claim with ICSID[19].
- THE PARTIES' CLAIMS AND DEMANDS
- Claimant's Claims and Demands
The claimant company, Cementownia, claimed that it had acquired the shares of ÇEAŞ and Kepez on May 30, 2003, but suffered damages due to the unilateral termination of the contracts by the Republic of Türkiye. Consequently, it requested that Türkiye pay compensation in the amount of USD 4,648,157,411, plus interest at a rate to be determined later, as well as arbitration costs with the same interest rate and the contribution to be paid by the State to the Arbitral Tribunal and the Centre Secretariat[20].
- Defendant's Claims and Demands
The respondent, the Republic of Türkiye, claimed that the alleged share transfers to Cementownia had not taken place on the stated date; that the Centre lacked jurisdiction; and that the claimant therefore lacked standing because it was not an investor. Consequently, the respondent sought compensation for the reputational harm suffered by the Republic of Türkiye as a legal entity due to the claimant’s actions[21].
- LEGAL DISPUTE
The core legal issues in the case concerned (i) whether the claimant engaged in fraudulent conduct to bring the dispute within the scope of the ICSID Convention and thereby abused the procedure for applying for international arbitration; (ii) whether the alleged share transfers were legally valid and carried out on the claimed date, such that investor status could be established; and (iii) whether the host state, the Republic of Türkiye, suffered reputational harm in the field of international investment as a result of these transactions and, therefore, whether moral damages could be awarded.
- DECISION OF THE ARBITRAL TRIBUNAL
- The claimant’s claim was dismissed because the claimant failed to prove that it had an investment under the Energy Charter Treaty, and the Tribunal found that the claimant engaged in fraudulent transactions and brought its claim in bad faith.
- The claimant shall pay the respondent USD 5,304,822.06, representing the respondent’s costs of the proceedings.
- If this amount is not paid within 30 days of notification of the decision, interest shall be calculated at the EURIBOR[22] rate specific to European Union money markets, plus 2% for each additional year, compounded semi-annually.
- All other claims are dismissed[23].
- ISSUES DISCUSSED IN THE DECISION AND THE TRIBUNAL'S ASSESSMENTS
The Tribunal determined the fundamental issues to be examined in the decision based on the parties’ final submissions. In accordance with its initial requests, the respondent ultimately asked the Tribunal to dismiss the claimant’s entire case; to state that the claim was unfounded and advanced on the basis of false documents; to award moral damages in an amount to be determined by the Tribunal in favour of the State; and to order the claimant to pay the costs of the proceedings with interest. The claimant subsequently amended its request, asking in its petition dated March 2009 that the Tribunal dismiss the case for lack of jurisdiction on the ground that it was unable to prove that it had lawfully acquired the shares[24].
Based on the parties’ final submissions, the Tribunal highlighted the key issues it would address: the respondent’s jurisdictional objection based on the claimant Cementownia’s alleged investor status; the respondent’s jurisdictional objections against the claimant’s claims; the financial consequences; and the allocation of costs[25]. In parallel with the Tribunal’s findings, this section will examine the Centre’s jurisdiction and the issue of awarding moral damages in favour of the State. It will first provide explanations regarding the concept and subject matter, followed by the facts of the case and the Tribunal’s assessments.
- JURISDICTION OF THE CENTRE
The conditions under which the international Centre established by the ICSID Convention may exercise jurisdiction over disputes arising from investments between foreign investors and host states are governed primarily by Article 25 of the Convention[26]. Therefore, Article 25 is the “basic provision” that must be referred to first when examining the Centre's jurisdiction[27]. Accordingly, for the Centre to have jurisdiction over the dispute, (i) the foreign investor and the state must submit their written consent to the Centre for the dispute to be resolved under ICSID arbitration; (ii) the dispute must be between a contracting state and an investor who is a national of another contracting state; and (iii) the dispute must be a legal dispute arising directly out of an investment[28].
The consent requirement refers to the existence of written and explicit consent from the parties for the dispute to be subject to the Centre's jurisdiction. Unlike arbitration procedures outside ICSID, this consent does not have to be based on an arbitration agreement between the two parties. Mutual and written expressions of intent will suffice for the purposes of referring a dispute to ICSID arbitration[29]. However, it should be noted that it is not sufficient for the host state and the state of which the investor is a national to be parties to the ICSID Convention; according to Article 25, there must be an agreement between the parties governing the Centre’s jurisdiction in each dispute. Consent may be demonstrated by the claimant’s submission of an arbitration request to the Centre; the respondent’s express or implied declaration of consent; a bilateral agreement on the promotion and protection of investments concluded between the host state and the investor’s state of nationality; an investment contract signed between the investor and the host state; or provisions in the host state’s laws that provide for the Centre’s jurisdiction[30].
Another condition is jurisdiction ratione personae, i.e. the investment dispute must arise between a contracting state and an investor who is a national of another contracting state. The investor in question may be a natural or legal person. It is also possible for this legal person to be a national of the host state provided that the investment agreement stipulates that that person shall be treated as a foreign national[31]. However, there are opposing views in the doctrine on this matter[32].
The third condition, jurisdiction ratione materiae, provides that ICSID arbitration can only be invoked when there is an “investment dispute” between the host state and a foreign investor[33]. Although the Convention does not define “investment,” Article 25 governs the scope of investments, and doctrinal definitions vary.
According to Şanlı, the definition of investment can be based on bilateral agreements. Accordingly, investment disputes include disputes arising from investment-related agreements between the parties, problems arising from the interpretation of an investment permit granted to an investor by a competent authority within the state, or disputes arising from the belief that a right established by an investment agreement has been violated[34].
According to Akıncı, the concept of investment encompasses service contracts (a modern form of investment) and investment agreements concerning the transfer of technology, as well as capital participation (a traditional form of investment)[35]. Nomer/Ekşi/Öztekin-Gelgel share the same view, stating that the concept of investment should be interpreted broadly to cover all investment relationships[36].
In conclusion, if the consent requirement and the conditions relating to the person and the subject matter are met, the parties may apply to the Centre for adjudication in ICSID arbitration. These requirements must be examined separately in relation to the decision that is the subject of this study.
Apart from these conditions, the Centre’s jurisdiction may be accepted pursuant to the ICSID Additional Facility Rules[37] (as applicable at the time the Tribunal reviewed Cementownia v. Türkiye) in certain disputes involving a non-contracting state or a national of a non-contracting state, and in disputes that do not arise directly out of an investment but are not a simple commercial transaction, provided that at least one party is a contracting state. However, this requires that the parties have given their consent to the Centre’s jurisdiction[38]. Today, the conditions for the applicability of the Additional Facility Rules have changed[39]. Consequently, since the arbitration in the present case was initiated based on the Additional Facility Rules referenced in the Energy Charter Treaty[40], the issues to be examined when reviewing the Centre’s jurisdiction are the existence of a legal dispute arising out of an investment and the fact that one of the parties is a party to the ICSID Convention[41]. Therefore, in order to determine whether an investment dispute exists, Cementownia’s status as an investor must first be examined.
As noted in the final submissions, both parties requested dismissal for lack of jurisdiction. However, the scope of their requests differed: Cementownia relied solely on its inability to produce the original share certificates, whereas Türkiye requested dismissal on the ground that the claimant’s entire case was manifestly without legal merit and, in addition, sought moral damages[42]. The Tribunal examined all claims in its decision.
According to the Tribunal, Cementownia bore the burden of proving its alleged investor status by demonstrating that it acquired the shares on May 30, 2003, as claimed, and that it still held them[43]. However, the Tribunal first noted that ÇEAŞ and Kemal Uzan had made statements to the contrary before the European Court of Human Rights and the Council of State. The Tribunal stated that the claimant’s assertions were inconsistent with those statements, which indicated that the share transfer did not take place on the alleged date and that all of ÇEAŞ’s shares belonged to Turkish nationals[44].
In its continued review, the Tribunal emphasized the requirement that the share transfers be carried out in good faith. Given the very short time between the termination of the concession agreements and the alleged date of transfer, the Tribunal considered that—even if the transfers had been validly executed—they would not have been made in good faith and would constitute fraudulent transactions. The Tribunal characterized such conduct as an “attempt to fabricate international jurisdiction”[45].
The Tribunal noted that, despite multiple extensions of time, the share transfers had not been proven; therefore, there was sufficient evidence to conclude that the transfer transactions did not take place on May 30, 2003, as alleged[46]. The Tribunal then examined the transfer agreements submitted as evidence and allegedly signed following telephone conversations, and concluded that agreements of this nature could not be reduced to a single page. The Tribunal also found that the fact that only one agreement bore a signature (belonging to Kemal Uzan), that photocopies rather than originals were submitted, and that none of the individuals allegedly involved in the delivery of the bearer shares provided witness statements raised further concerns[47].
Examining the claimant’s commercial books, the Tribunal found that the 2003 and 2004 audit reports contained no record of any share transfer, whereas the 2005 report contained such a record but did not specify an exact date. The Tribunal considered the 2005 accounts unreliable because they did not align with the records of the previous two years[48].
Moreover, Cementownia—given its notification and authorization obligations to both the Polish authorities (where it is headquartered) and the Turkish authorities (where the transaction allegedly occurred)—had not made any notification or obtained the necessary permits, and even acknowledged this fact[49].
In light of all the evidence, the Tribunal concluded that the claimant had failed to present convincing proof that it acquired the shares on the date alleged or that it qualified as an investor under the Energy Charter Treaty. The Tribunal stated that the alleged share transfer agreements were fabricated by the Uzan family to establish international jurisdiction, that the claimant had not acted in good faith, and that it was therefore not entitled to investment protection[50]. It further held that such conduct constituted a circumvention of the law—détournement de procédure[51]—that is, a “legal fiction” or “abuse of procedure” aimed at obtaining access to international arbitration[52]. Ultimately, the Tribunal dismissed the claim.
- CONCLUSION
ICSID arbitration aims to establish a balanced, impartial, and reliable mechanism for resolving investment-related disputes between the host state and an investor who is a national of another state within the framework of international investment law. The Centre for the Settlement of Investment Disputes was established to ensure the functioning of this mechanism. The Centre's role is not to conduct proceedings as an arbitral tribunal, but to establish the rules and organization of arbitration. In this context, the party that proves that it is a party to the Convention, that an investment dispute exists, and that both parties have consented to arbitration has the right to benefit from the Centre’s jurisdiction. The Centre’s jurisdiction was also examined in the decision discussed in this study.
In its review, the Tribunal determined that, in order for the Centre's jurisdiction to be established, the claimant must first prove its investor status. However, despite being granted additional time on numerous occasions, the claimant failed to do so; abused the application procedure; prolonged the proceedings and increased costs; attempted to establish investor status through fraudulent transactions; and ultimately acted in bad faith. Therefore, the Tribunal rejected the claimant's claims. Considering the fraudulent procedural acts described in this study, Kemal Uzan's contradictory statements claiming to have transferred shares to the claimant, and other arbitration applications against Türkiye existing at the time of the events, the Tribunal’s decision regarding jurisdiction was well-founded.
On the other hand, the Tribunal, examining the respondent's submissions, discussed the question of awarding moral damages in favour of the state. Although the state argued that it suffered reputational harm under international investment law due to the claimant's unfounded allegations and did not act in bad faith by seeking moral damages, the Tribunal concluded that this claim was sufficiently addressed by the explicit finding of fraudulent conduct and abuse of procedure and by the allocation of costs against the claimant. Accordingly, no moral damages were awarded in favour of the state. However, given that international arbitration is a costly and time-consuming process, awarding moral damages against a claimant—alongside a costs order—could have a deterrent effect and help prevent bad-faith abuse of process in investment disputes. Considering that, in cases involving investors such as the Uzan family, recovery of costs may be difficult (including situations where assets are portrayed as depleted), acceptance of the respondent’s claim for moral damages could have been justified.
REFERENCES
Cementownia “Nowa Huta” S.A. v. Republic of Türkiye, ICSID Case No. ARB(AF)/06/2
AKINCI, Ziya; Milletlerarası Tahkim (International Arbitration), Istanbul: Vedat Kitapçılık, 2020.
EGEMEN DEMİR, Işıl; Jurisdiction in ICSID Arbitration, Istanbul: Filiz Publishing House, 2014.
KARAYEL, İsmail Emrah; ICSID Arbitration and the Abuse of ICSID Arbitration: The Case of Türkiye, Ankara: Adalet Publishing House, 2021.
NOMER, Ergin, Nuray EKŞİ, and Günseli ÖZTEKİN GELGEL; Legislation and Other Agreements Related to International Arbitration, Volume II, Istanbul: Beta Yayınları, 2014.
NOMER, Ergin, Nuray EKŞİ and Günseli ÖZTEKİN GELGEL; International Arbitration Law, Istanbul: Beta Publications, 2008.
POLAT, Malike; “Cementownia ‘Nowa Huta’ S.A.–Türkiye Dispute Subject to ICSID Investment Arbitration: Evaluation of ‘Good Faith’ and ‘Non-Pecuniary Damages’ Claims,” Bulletin of International Law and International Private Law, 34(2), 2014, pp. 59–87.
ŞANLI, Cemal; Preparation of International Commercial Contracts and Dispute Resolution Methods, Istanbul: Beta Publications, 2019.
YILMAZ, Alper Çağrı; Protection of International Energy Investments, Istanbul: XII Levha Publications, 2013.
[1] https://icsid.worldbank.org/sites/default/files/documents/ICSID_Convention.pdf (erişim 14.12.2023)
[2] Bundan sonra “Merkez” veya “ICSID” olarak anılacaktır.
[3] Cementownia “Nowa Huta” S.A. v. Republic of Turkey, ICSID Case No. ARB(AF)/06/2, Award, Para. 5.
[4] Cementownia v. Turkey, Award, Para. 5.
[5] Cementownia v. Turkey, Award, Para. 5.
[6] Cementownia v. Turkey, Award, Para. 6.
[7] Cementownia v. Turkey, Award, Para. 8.
[8] Cementownia v. Turkey, Award, Para. 9.
[9] Elektrik Piyasası Kanunu, 4628 Sayılı Kanun, R.G. 03.03.2001, Sa. 24335.
[10] Malike POLAT, Şengül AL KILIÇ, “ICSID Yatırım Tahkimine Konu Olan Cementownia “Nowa Huta” s.a. –Türkiye Uyuşmazlığında “İyiniyet” ve “Manevi Tazminat” İddialarının Değerlendirilmesi”, Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, 34, 2, 2014, s. 64.
[11] Elektrik Piyasasında Birden Fazla Piyasa Faaliyetini Sürdürmekte Olan Tüzel Kişilerin Mevcut Sözleşmelerinde Yapılacak Tadillere ve İletim Faaliyeti ile Vazgeçilen Faaliyetlerin Devrine İlişkin Yönetmelik, R.G. 28.11.2002, Sa. 24950.
[12] Cementownia v. Turkey, Award, Para. 11.
[13] Cementownia v. Turkey, Award, Para. 12.
[14] Cementownia v. Turkey, Award, Para. 13.
[15] Cementownia v. Turkey, Award, Para. 14.
[16] Cementownia v. Turkey, Award, Para. 15.
[17] Cementownia v. Turkey, Award, Para. 17, 19, 20.
[18] Cementownia v. Turkey, Award, Para. 16 ; İsmail Emrah KARAYEL, ICSID Tahkimi ve ICSID Tahkiminin Kötüye Kullanılması Bakımından Türkiye Örneği, Ankara: Adalet Yayınevi, 2021, s.256 ; Malike POLAT ve Şengül AL KILIÇ, “ICSID Yatırım Tahkimine Konu Olan Cementownia “Nowa Huta” s.a. –Türkiye Uyuşmazlığında “İyiniyet” ve “Manevi Tazminat” İddialarının Değerlendirilmesi”, Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni, 34, 2, 2014, s. 65.
[19] Cementownia v. Turkey, Award, Para. 24.
[20] Cementownia v. Turkey, Award, Para. 24; POLAT ve AL KILIÇ, “Cementownia- Türkiye Uyuşmazlığında İddiaların Değerlendirilmesi, s. 65.
[21] Cementownia v. Turkey, Award, Para. 34 ; KARAYEL, ICSID Tahkimi ve Türkiye Örneği, s. 254.
[22] https://www.euribor-rates.eu/en/what-is-euribor/ (erişim 13.12.2023).
[23] Cementownia v. Turkey, Award, Para. 179.
[24] Cementownia v. Turkey, Award, Para. 106.
[25] Cementownia v. Turkey, Award, Para. 107.
[26] Ergin NOMER, Nuray EKŞİ ve Günseli ÖZTEKİN GELGEL, Milletlerarası Tahkim Hukuku, İstanbul: Beta, 2008, s. 108.
[27] Işıl EGEMEN DEMİR, ICSID Tahkiminde Kişi Bakımından Yetki, İstanbul: Filiz Kitabevi, 2014, s. 20.
[28] Ergin NOMER, Nuray EKŞİ ve Günseli ÖZTEKİN GELGEL, Milletlerarası Tahkime İlişkin Mevzuat ve Diğer Antlaşmalar, Cilt II, İstanbul: Beta, 2014, s. 114 ; NOMER, EKŞİ ve ÖZTEKİN-GELGEL, Milletlerarası Tahkim Hukuku, s. 108.
[29] Ziya AKINCI, Milletlerarası Tahkim, İstanbul: Vedat Yayıncılık, 2020, s. 61.
[30] Cemal ŞANLI, Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, İstanbul: Beta, 2019, s. 580.
[31] ŞANLI, Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, s. 577-579.
[32] ŞANLI, Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, s. 579, d. 735 ; AKINCI, Milletlerarası Tahkim, s. 59.
[33] ŞANLI, Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, s. 579.
[34] ŞANLI, Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları, s. 580.
[35] AKINCI, Milletlerarası Tahkim, s. 60
[36] NOMER ve diğer., Milletlerarası Tahkim Hukuku, s. 112.
[37] Naklen; https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents/AFR_ English-final.pdf (erişim tarihi 31.12.2015).
[38] POLAT ve AL-KILIÇ, “Cementownia- Türkiye Uyuşmazlığında İddiaların Değerlendirilmesi, s. 70.
[39] https://icsid.worldbank.org/sites/default/files/Additional_Facility_Rules.pdf (erişim tarihi 13.12.2023).
[40] Avrupa Enerji Şartı Konferansı Nihaî Senedi, Enerji Şartı Antlaşması ve Ekini Teşkil Eden Kararlar ile Enerji Verimliliğine ve İlgili Çevresel Hususlara İlişkin Enerji Şartı Protokolunun Onaylanması Hakkında Karar, R.G. 12.07.2000, S. 24107
[41] POLAT ve AL-KILIÇ, “Cementownia- Türkiye Uyuşmazlığında İddiaların Değerlendirilmesi, s. 71.
[42] Cementownia v. Turkey, Award, Para. 106.
[43] Cementownia v. Turkey, Award, Paras. 112, 113, 114.
[44] Cementownia v. Turkey, Award, Para. 124.
[45] Cementownia v. Turkey, Award, Para. 117.
[46] Cementownia v. Turkey, Award, Para. 121.
[47] Cementownia v. Turkey, Award, Paras. 125, 126, 127.
[48] Cementownia v. Turkey, Award, Para. 129.
[49] Cementownia v. Turkey, Award, Para. 145.
[50] Cementownia v. Turkey, Award, Paras. 136, 117.
[51] Phoenix Action, Ltd. V. Czech Republic (ICSID Case No. ARB/06/5), Award, April 15, 2009, Paras. 142-143, https://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C74/DC1033_En.pdf (erişim 14.12.2023)
[52] Cementownia v. Turkey, Award, Para. 154.