INTERNATIONAL CENTRE FOR SETTLEMENT

OF INVESTMENT DISPUTES

______________________________________________________________________

In the Matter of

LTME MAURITIUS LIMITED

and

MADAMOBIL HOLDINGS MAURITIUS LIMITED,

Claimants

v.

REPUBLIC OF MADAGASCAR,

Respondent

ICSID Case No. ARB/17/28

___________________________________________________

CLAIMANTS’ COSTS SUBMISSION

___________________________________________________

May 1, 2023

KING & SPALDING

48 bis, rue de Monceau

75008 Paris
France

1700 Pennsylvania Ave NW, Ste. 200

Washington, D.C. 20006
U.S.A.

Counsel for Claimants

1. LTME Mauritius Limited (“LTME”) and Madamobil Holdings Mauritius Limited
(“MHML”) (collectively, “Claimants”) respectfully make this Submission on Costs in their
arbitration against the Republic of Madagascar (“Madagascar”) pursuant to the Tribunal’s
instructions dated April 12, 2023.

I. Claimants Are Entitled to Recover All Costs, Fees, and Expenses Incurred in This
Phase of the Arbitration

2. Claimants have consistently sought an award of costs in the requests for relief contained
in their various briefs.1

3. ICSID tribunals enjoy wide discretion to allocate costs between the parties as they see
fit pursuant to Articles 61(2) of the ICSID Convention and 28(1) of the ICSID Arbitration
Rules, as reaffirmed by this Tribunal in Procedural Order No. 1.2 ICSID tribunals typically
allocate costs between the parties based on a number of factors, including, but not limited to,
the extent to which a party has succeeded on its various claims and arguments, as well as the
parties’ conduct during the proceeding.3 The prevailing (and correct) approach of arbitral
tribunals was encapsulated in the Antin et al. v. Spain award:

In exercising [its] discretion…, the Tribunal considers that the distribution

of costs should be made considering the relative success of the claims and
defences of each of the Parties, together with the circumstances of the case
and the conduct of the Parties in the proceedings.4
4. Claimants base their request for an award of costs in this case on the fact that, for all
the reasons outlined in their prior written and oral submissions, the Tribunal has jurisdiction
ratione voluntatis and ratione personae and Claimants should prevail in this phase of the
arbitration.5 Further, Madagascar has abused its right to challenge jurisdiction by rewriting or
twisting the terms of the Mauritius-Madagascar BIT (the “BIT”) and the Madagascar

1
See Claimants’ Request for Arbitration, ¶ 103; Claimants’ Memorial on the Merits, ¶ 337; Claimants’ Counter-
Memorial on Jurisdiction, ¶ 142; Claimants’ Rejoinder on Jurisdiction, ¶ 175.
2
Procedural Order No. 1, October 30, 2018, ¶¶ 10.1 and 23.2.
3
See, e.g., Wena Hotels LTD. v. Arab Republic of Egypt, ICSID Case No. ARB/98/4, Award, December 8, 2000
¶ 130, CL-55; ADC Affiliate Ltd. and ADC & ADMC Management Ltd. v. Republic of Hungary, ICSID Case No.
ARB/03/16, Award, October 2, 2006, ¶¶ 533 (“the successful party should receive reimbursement from the
unsuccessful party”), 535-42, CL-61; Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt,
ICSID Case No. ARB/05/15, Award, June 1, 2009, ¶ 630, CL-51.
4
Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID
Case No. ARB/13/31, Award, June 15, 2018, ¶ 744 (available at: https://www.italaw.com/sites/default/files/case-
documents/italaw9875.pdf).
5
It is not necessary for Claimants to prevail on all of their claims in order for the Tribunal to consider Claimants the
“successful” party for a full award of costs. See Gemplus S.A., SLP S.A., Gemplus Industrial S.A. de C.V. v. The
United Mexican States, ICSID Case No. ARB(AF)/04/3, Award, June 16, 2010, ¶¶ 17-20, CL-144. See also PSEG
Global et al. v. Republic of Turkey, ICSID Case No. ARB/02/5, Award, Jan. 19, 2007, ¶ 352, CL-129.

1
Investment Law (the “MIL”) so as to avoid its commitments to arbitrate this dispute with
protected investors like Claimants. Similarly, Madagascar mischaracterized the factual
evidence to shoehorn it into Madagascar’s narrative that Claimants allegedly lacked standing
to bring their claims. Madagascar also raised jurisdictional objections that had not been
bifurcated, such as its meritless and lengthy “burden of proof” objection, and it introduced new
and unfounded arguments with its Reply on Jurisdiction, including that Claimants failed to
accept Madagascar’s offer to arbitrate in the BIT and the MIL with their Request for
Arbitration.

5. In short, Claimants were forced to incur legal fees and expenses in the jurisdictional
phase of this arbitration defending against arguments that were not well-founded under the
BIT, the MIL, the ICSID Convention, or in international law.6 Moreover, as Claimants
demonstrated in their Memorial on the Merits, Madagascar violated the BIT, the MIL, and
international law, caused serious harm to Claimants’ investments, and forced Claimants to
bring this case to recover the damages Madagascar caused to their investments. Therefore, in
order to wipe out as far as possible the consequences of Madagascar’s misconduct, the Tribunal
should award Claimants their costs and expenses in the present phase of this arbitration.

6. Moreover, Madagascar greatly contributed to the costs of the present arbitration by

making a number of frivolous and unnecessary procedural applications, all of which required
additional briefing. For instance, in October 2018, after having fully briefed its objections to
the initial draft of Procedural Order No. 1 (both in writing and during the pre-hearing
conference), Madagascar improperly re-argued points already decided and rejected by the
Tribunal, including with respect to the languages of the arbitration and Claimants’ right to a
rejoinder on jurisdiction. Likewise, Madagascar repeatedly reserved its rights regarding the
evidentiary record, including by asserting that “Madagascar s’opposera à tout élément de
prevue supplémentaire produit par les demanderesses dans leur mémoire en duplique.”7
Similarly, for months, Madagascar delayed the hearing on jurisdiction. Madagascar first argued
that holding the hearing by videoconference was contrary to the Parties’ agreement.

6
PSEG Global et al. v. Republic of Turkey, ICSID Case No. ARB/02/5, Award, Jan. 19, 2007, ¶ 352 (“To obtain
justice, [the Claimants] had no option but to bring this arbitration forward and incur the related costs.”), CL-129;
ADC Affiliate Ltd. and ADC & ADMC Management Ltd. v. Republic of Hungary, ICSID Case No. ARB/03/16,
Award, October 2, 2006, ¶¶ 527, 533, 542 (“[w]ere the Claimants not to be reimbursed their costs in justifying
what they alleged to be egregious conduct on the part of Hungary, it could not be said that they were being
made whole.” Logically, the ADC tribunal ordered Hungary to reimburse claimants the entirety of their costs
and expenses in the arbitration.), CL-61.
7
Madagascar’s Reply on Jurisdiction, ¶ 5. See also, Madagascar Letter to the Tribunal, Mar. 24, 2020.

2
Madagascar then decided to change legal counsel but failed to communicate the name of its
new legal counsel; then Madagascar only provided the name of the firm, but not the name of
the lawyers or their contact details; and, finally, for weeks, Madagascar failed to confirm the
availability of its legal counsel for the two-day virtual hearing. Those are only several of many
examples of Madagascar’s procedural mischief during the jurisdictional phase.

7. For all of the foregoing reasons, the Tribunal should order Madagascar to pay the costs
incurred by Claimants up to this point in the arbitration.

II. Claimants’ Costs, Fees, and Expenses Are Reasonable

8. Factors relevant to determining whether costs in an international arbitration proceeding

are reasonable typically include the length of the proceeding, the complexity of the case, the
amount in dispute, the conduct of the parties, and the efficiency with which a party presents its
case.8

9. Claimants have incurred US$ 2,225,789.39 and € 398,430.65 in costs, fees, and
expenses to date in connection with this arbitration, as summarized in the table below.
Claimants note that these figures include Claimants’ costs, fees, and expenses in relation to the
jurisdictional phase of the arbitration as well as Claimants’ preparation of their Memorial on
the Merits.

CATEGORY AMOUNT

King & Spalding’s Legal Fees US$ 1,479,829.00

Expert Fees & Expenses

 FTI Consulting € 398,430.65

 Mr. Raphaël Jakoba US$ 6,300.00

Claimants’ Costs & Expenses US$ 14,660.39

ICSID Payments US$ 725,000.00

TOTAL US$ 2,225,789.39

8
See, e.g., Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15,
Award, June 1, 2009, ¶¶ 623-28, CL-51.

3
 PLUS

€ 398,430.65

10. If the Tribunal prefers to focus at the present time on costs, fees, and expenses incurred
by Claimants during the jurisdictional phase of the arbitration only, and to reserve its judgment
on costs related to the merits until a later date, the following chart includes the amounts incurred
by Claimants up to Procedural Order No. 1 and in relation to the jurisdictional phase, but
excludes the amounts incurred by Claimants in relation to preparation of their Memorial on the
Merits:

CATEGORY AMOUNT

King & Spalding’s Legal Fees US$ 984,261.72

Mr. Jakoba’s Fees & Expenses US$ 6,300.00

Claimants’ Costs & Expenses US$ 14,660.39

ICSID Payments US$ 725,000.00

TOTAL US$ 1,730,222.11

11. Claimants note that Madagascar has repeatedly failed to pay its portion of the costs in
this arbitration. Claimants had to pay 65% of Respondent’s advances on costs requested by
ICSID. The Tribunal should also take this factor into account in its decision.

12. The above costs, which are further itemized in Annex A by category and payee, are
reasonable in light of the many issues raised by Madagascar to which Claimants were forced
to respond, the complexity of the arguments, Madagascar’s procedural misconduct, and the
steps and duration of the proceeding to date. Therefore, Madagascar should be ordered to pay
the amounts claimed by Claimants in their entirety.

4
III. Request for Relief

13. For the foregoing reasons, Claimants respectfully request that the Tribunal order
Madagascar to pay the entirety of costs, fees, and expenses incurred by Claimants in the
arbitration to date, in the amounts of US$ 2,225,789.39 and € 398,430.65.

14. In the alternative, if the Tribunal reserves its decision on costs related to the merits
phase until a later date, Claimants respectfully request that the Tribunal order Madagascar to
pay the entirety of costs, fees, and expenses incurred by Claimants up to Procedural Order No.
1 and in relation to the jurisdictional phase (but excluding the amounts incurred by Claimants
in relation to preparation of their Memorial on the Merits), in the amount of US$ 1,730,222.11.

15. Claimants further request that Madagascar be ordered to pay post-decision interest on
the amount(s) awarded to Claimants, at a compound rate of interest to be determined by the
Tribunal, until the date of Madagascar’s full satisfaction of the Tribunal’s judgment.

Respectfully submitted,

King & Spalding

Kenneth R. Fleuriet
Héloïse Hervé

5
 ANNEX A

King & Spalding

PHASE HOURS SPENT LEGAL FEES

From inception until Procedural Order 389.7 US$ 282,636.28

No. 1

Memorial on the Merits 680.1 US$ 495,567.28

Counter-Memorial on Jurisdiction 358.6 US$ 266,050.22

Rejoinder on Jurisdiction 235.2 US$ 182,312.52

Hearing on Jurisdiction 326.7 US$ 253,262.70

TOTAL 1,990.3 US$ 1,479,829.00

FTI Consulting

DESCRIPTION AMOUNT

First Quantum Report € 398,430.65

TOTAL € 398,430.65

Mr. Raphaël Jakoba’s Fees and Expenses

DESCRIPTION AMOUNT

First Report US$ 1,050.00

Second Report and Hearing US$ 5,250.00

TOTAL US$ 6,300.00

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Claimants’ Costs and Expenses

CATEGORY AMOUNT

Travel Costs US$ 569.74

Mauritius Legal Advice US$ 10,000.00

Other Costs (e.g., duplication and document US$ 4,090.65

delivery)

TOTAL US$ 14,660.39

ICSID Payments

DESCRIPTION AMOUNT

ICSID Lodging Fee US$ 25,000

Claimants’ Share of Initial Advance on Costs US$ 150,000

Claimants’ Payment of Madagascar’s Initial US$ 150,000

Advance on Costs

Claimants’ Share of Second Advance on Costs US$ 125,000

Claimants’ Payment of Madagascar’s Second US$ 125,000

Advance on Costs

Claimants’ Share of Third Advance on Costs US$ 150,000

TOTAL US$ 725,000