Vacuum Salt Products Ltd v Ghana 4 ICSID 320

Mr Panagiotopulos a Greek national resident in Ghana incorporated Vacuum Salt in Ghana, and worked in the company as technical director. 1971 all the shares were transferred to Appenteng a Ghanaian national. 1975 Appenteng transferred 80 of the shares to 5 Ghanaian individuals and three Ghanaian banks. 1976 the remaining 20% were retransferred to the Greek. In 1993 the Greek transferred 19% to other shareholder and 1% to the banks, so the Ghana’s government had 51% 22-I-1988 the company and Ghana entered into a lease agreement granting Vacuum right to develop salt production and mining facility in a region for 30 years. The agreement provided to submission to ICSID ‘disputes arising out of or in connection with the Agreement’ 1994 Ghana to cancel the agreement.

Vacuum salt was a Ghanaian company, the tribunal could only have jurisdiction ratione persona in regard of the company if requirements of second clause 25(2)(b), that because of the foreign control the parties had agreed that Vacuum salt would be treated as a national of another contracting State were satisfied. The date on which the parties consented to submit certain disputes to IICSID was the date of the agreement 22-I-88 The second clause requires both: 1. There be an agreement that such party, though a national of one State, should be treated as national of another state 2. Such agreement be ‘because of foreign control’ The agreement does not, as a matter of law, confer jurisdiction, the reference to foreign control set an objective limit to ICSID jurisdiction which could not be waived irrespective of the parties intent. An arbitration clause of such kind has a refutable presumption of foreign control. Foreign control does not require any particular share of ownership, and may include other elements. Review of the facts fail to support that in 22-I-88 the Greek either acted or was material influential in the managerial rather than technical or supervisory matter