Republic of Kazakhstan v. World Wide Minerals Ltd. and others, [2025] EWHC 452 (Comm), 28 February 2025

Overview

In a decision that cuts to the heart of arbitral due process, the Commercial Court of England and Wales annulled a damages award issued in a UNCITRAL investor–state arbitration for failing to grapple with the state’s central causation defence.

In Republic of Kazakhstan v. World Wide Minerals Ltd. and others ([2025] EWHC 452 (Comm)), the court held that the tribunal’s omission to address Kazakhstan’s “counterfactual case”—its core argument on why the investment would have failed irrespective of any treaty breach—amounted to a serious irregularity under Section 68(2)(d) of the Arbitration Act 1996.

Background

World Wide Minerals Ltd. (“WWM”), a Canadian mining company, initiated UNCITRAL arbitration against the Republic of Kazakhstan in 2013 concerning its failed uranium investment in Kazakhstan. In 1996, WWM had entered into a management agreement with a state-owned enterprise (TGK) to manage and capitalize its uranium processing facility in Stepnogorsk. In return, WWM expected long-term extraction and export rights over uranium resources. WWM claimed that Kazakhstan had breached its obligations under the 1989 Canada–USSR BIT, to which Kazakhstan was deemed a successor.

WWM’s central allegations included the unlawful denial of an export licence necessary to sell uranium to a U.S. utility company, Consumers Energy (the “export licence breach”), and the state’s failure to notify it of TGK’s bankruptcy (the “bankruptcy breach”). An arbitral tribunal, seated in London, comprising Sir Franklin Berman and Professor John Crook and presided over by Professor Park, issued its final award on October 29, 2019, finding limited breaches of the BIT and awarding WWM USD 13.7 million in sunk costs, which accrued to approximately USD 54.5 million with interest by 2020.

The first challenge (2019)

Kazakhstan challenged the 2019 award under Section 68(2)(a) of the Arbitration Act 1996, arguing that the tribunal had determined damages based on a theory of sunk costs that had not been pleaded by the parties. In 2021, the Commercial Court upheld the challenge. Judge Pelling QC found that Kazakhstan had suffered substantial injustice because it had not been afforded the opportunity to address causation and loss on the proper basis. He remitted the issues of causation, quantification, and costs for reconsideration.

The remitted arbitration (2022)

A further phase of the arbitration followed. In July 2022, the same three-member tribunal heard extensive written and oral submissions on causation and damages over a 5-day hearing. Kazakhstan’s central defence in these proceedings was its “counterfactual case.” It argued that even if the export licence breach had not occurred, WWM’s investment would have failed regardless due to its persistent contractual breaches under the management agreement.

Specifically, Kazakhstan asserted that WWM had repeatedly breached the management agreement by failing to inject capital and fulfill payment obligations. These breaches, it argued, were the true cause of the investment’s failure. Kazakhstan had terminated the agreement in 1997, a termination the tribunal had upheld as lawful in its earlier award in 2019.

Kazakhstan argued that because the termination was unrelated to the BIT breaches, the denial of the export licence was not causally connected to WWM’s loss. The tribunal, Kazakhstan thus claimed, was obliged to evaluate this alternate causal chain before awarding compensation.

The second award and renewed Section 68 challenge (2024)

In March 2024, the two-member tribunal, following the resignation of the presiding arbitrator (comprising Sir Franklin Berman and Professor John Crook), issued a second award. It reiterated the previous findings of the 2019 award that the export licence breach was a decisive factor. That breach together with others, caused the eventual demise of WWM’s investment in Kazakhstan and re-awarded USD 13.7 million in sunk costs.

However, the award devoted just one paragraph to causation. It made no reference to the “counterfactual case.” This silence triggered Kazakhstan’s second Section 68 challenge, where it argued that this omission constituted a failure to deal with a central issue that had been remitted to the tribunal under Section 68(2)(d) of the Arbitration Act.

Judgment of the Commercial Court

Justice Bryan allowed Kazakhstan’s challenge. In a detailed judgment, he found that the tribunal had failed to engage with the “counterfactual case,” a “central, if not the key, issue” in the remitted proceedings. Applying the well-established three-part test—(i) was there an issue before the tribunal, (ii) was it put to the tribunal, and (iii) did the tribunal fail to deal with it?—he answered each of these in the affirmative.

Justice Bryan noted that the “counterfactual case” had been fully ventilated during the proceedings—through detailed written submissions, oral arguments, and expert evidence on Kazakh law, contract law, and uranium markets. Despite this, the award did not refer to Kazakhstan’s core contention that the management agreement would have been terminated for breach in any event, and that WWM would have lost its investment irrespective of the denial of the export licence.

Critically, the tribunal’s single paragraph on causation failed to address any of the factual or legal contentions underlying Kazakhstan’s theory. Justice Bryan observed: “[T]here is no record in the Award of the matters that Kazakhstan relied upon in relation to the Counterfactual Case … still less any findings or determinations in relation to the same. It is, on any view, a remarkable state of affairs” [para 6, emphasis added].

Serious irregularity and substantial injustice

The court concluded that the tribunal’s omission amounted to a serious irregularity within the meaning of Section 68(2)(d) of the Arbitration Act.

Relying on RAV Bahamas Ltd v Therapy Beach Club, [2021] UKPC 8, and Secretary of State for the Home Department v Raytheon Systems Limited, [2014] EWHC 4375 (TCC), the judge emphasized that a failure to determine an essential issue violates the principle of due process that underpins the arbitration framework. The court concluded that the omission had caused substantial injustice. Had the tribunal accepted Kazakhstan’s counterfactual, it could have found that WWM suffered no compensable loss—rendering the award unwarranted. The seriousness of the irregularity, Justice Bryan found, made the likelihood of injustice inherent.

Relief and remittal

The court granted Kazakhstan’s application and set the award aside insofar as it related to causation and damages. The matter was remitted for redetermination pursuant to Section 68(3) of the Arbitration Act. The parties were invited to make submissions on the precise form of relief. However, the tribunal had been reduced to two arbitrators following the resignation of the presiding arbitrator due to ill health. Further, Kazakhstan had previously declined WWM’s request to agree to a reappointment of the same tribunal, raising questions about the future conduct of the arbitration.

Conclusion

The calculation of compensation and damages is one of the contentious issues on ISDS reform agenda. UNCITRAL Working Group III has been trying to deal with some of the problematic ISDS practices regarding this matter. An award of sunk costs is sometimes presented as a potential remedy to the continuously increasing awards that are based on discounted cash flow. The present case shows, however, that even an award of sunk costs must satisfy the requirements of causation. It is not a default fallback option when compensation calculated on future income fails.

Author

Meher Tandon is an India-qualified lawyer, specializing in international dispute settlement.

Note

The Judgment delivered by Honourable Mr Justice Bryan, 28 February 2025