Himpurna California Energy Ltd. v PT. (Persero) Perusahaan Listruik Negara, UNCITRAL Ad Hoc-Award of 4 May 1999, YCA XXV (2000), 13 et seq.

Himpurna California Energy Ltd. v PT. (Persero) Perusahaan Listruik Negara, UNCITRAL Ad Hoc-Award of 4 May 1999 

Final award of 4 May 1999

Author: Albert Jan van den Berg

Jurisdiction: Austria

Organization: United Nations Commission on International Trade Law

Arbitrators: Jan Paulsson (President); Antonino Albert de Fina Setiawan SH

Case date: 4 May 1999


Claimant: Himpurna California Energy Ltd. (Bermuda)

Defendant: PT. (Persero) Perusahaan Listruik Negara (Indonesia)

Topics: Investment Arbitration

Key Words:

applicable law of contract

decision ex aequo et bono

good faith settlement negotiations

scope of arbitration

jurisdiction to decide on termination

relationship of party to state

force majeure

fundamental breach of contract

termination of contract

wasted costs (damnum emergens)

lost profit (lucrum cessans)

abuse of rights

costs and legal fees

Publication Source: 14 Mealey's International Arbitration Report(December 1999) pp. A1 - A58

Source: Himpurna California Energy Ltd. v PT. (Persero) Perusahaan Listruik Negara, Final Award of 4 May 1999 in Albert Jan van den Berg (ed), Yearbook Commercial Arbitration 2000 - Volume XXV, Volume XXV (Kluwer Law International 2000) pp. 11 - 432







V. Preliminary Issues




6. PLN's Claims of Illegality




118. The tribunal commented, “[t]he members of the Arbitral Tribunal do not live in an ivory tower. Nor do they view the arbitral process as one which operates in a vacuum, divorced from reality. The arbitrators are well aware of


the allegations that commitments by public-sector entities have been made with respect to major projects in Indonesia without adequate heed to their economic contribution to public welfare, simply because they benefited a few influential people. The arbitrators believe that cronyism and other forms of abuse of public trust do indeed exist in many countries, causing great harm to untold millions of ordinary people in a myriad of insidious ways. They would rigorously oppose any attempt to use the arbitral process to give effect to contracts contaminated by corruption. But such grave accusations must be proven. There is in fact no evidence of corruption in this case.”


Referring Principles
Trans-Lex Principle: IV.7.2 - Invalidity of contract due to bribery
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