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IC Power and Kenon Holdings v. Peru, Notice of Intent

12 Apr 2019
IC Power Ltd and Kenon Holdings Ltd v. Republic of Peru, ICSID Case No. ARB/19/19
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Notice of Intent (English)
Notice of Intent (Spanish)
Document Details:
LISTED PARTICIPANTS
Notice of Intent (English)
Notice of Intent (Spanish)
Participants listed are for this document only and may not include all participants involved in the entire case. Always consult the original documents.
Claimant appointee
Respondent appointee
Tribunal/Panel chair
Arbitrator(s)
Sole Arbitrator
ICSID Annulment Committee president
ICSID Annulment Committee members
WTO Appellate Body members
WTO Appellate Body chair
Judges
Claimant's counsel
Claimant's law firm
Respondent's counsel
Respondent's law firm
Other counsel
Claimant's expert
Claimant's expert firm
Respondent's expert
Respondent's expert firm
Claimant's witness
Respondent's witness
Other witnesses
Tribunal secretary
Tribunal assistant
Third-party funder
Entities
IC Power Ltd., Kenon Holdings Ltd., Peru
Country
Print reporter
Document Summary
Notice of Intent (English)
Notice of Intent (Spanish)
This summary note is machine-generated. Always consult the original materials.

Procedural Posture

This document constitutes a formal Notice of Intent submitted on behalf of IC Power Ltd and Kenon Holdings Ltd (the "Investors") to the Republic of Peru, initiating the mandatory pre-arbitration consultation period pursuant to Article 10.17 of the Peru-Singapore Free Trade Agreement (the "FTA"). The Notice formally records the Investors' consent to submit the dispute to the International Centre for Settlement of Investment Disputes (ICSID) and their waiver of alternative dispute resolution forums.

Factual and Legal Basis of the Dispute

The dispute arises from a series of regulatory measures adopted by the Peruvian State between June 2016 and May 2017, which the Investors allege fundamentally altered the regulatory framework governing the domestic electricity sector. Specifically, the Investors challenge OSINERGMIN Resolution No. 141-2016-OS/CD, which retroactively modified the terms of the Secondary Frequency Regulation (SFR) service. The Investors contend that this resolution arbitrarily deprived their subsidiary, Kallpa Generación SA, of its previously awarded right to mandatory dispatch and full cost recovery, thereby frustrating their legitimate expectations.

Additionally, the Investors challenge OSINERGMIN Resolution No. 164-2016-OS/CD, which amended the apportionment of payment responsibilities for Secondary and Complementary Transmission Systems. The Investors assert that this measure was discriminatory and arbitrary, disproportionately burdening private power generation companies while conferring direct financial benefits upon State-owned enterprises, notably Electroperú.

Claimed Breaches and Relief Sought

The Investors assert that Peru's regulatory interventions constitute a breach of its obligations under the FTA, most notably the obligation to accord investments treatment in accordance with the customary international law minimum standard of treatment, including fair and equitable treatment (FET) and full protection and security, as codified in Article 10.5.1 of the FTA. The Notice quantifies the estimated losses suffered by the Investors' protected investments at an amount exceeding US$190 million, exclusive of interest.