Investment Treaty Arbitration in the Americas

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Latin America continues to see vigorous activity in investment treaty arbitration. In 2014, 11 per cent of the 38 new investment arbitration cases registered under the ICSID Convention and Additional Facility Rules included a South American country as a party, while 8 per cent included Spanish-speaking countries from Central America.¹ Two cases were registered that involved Venezuela, while Argentina, Peru, Costa Rica, the Dominican Republic and Panama were each parties to one newly registered case.² 10 per cent of the arbitrators, conciliators and ad hoc committee members appointed in cases registered in 2014 were South American nationals (16 total), while 3 per cent are from Central America (four total).³ At the opposite end of the arbitration ‘life-cycle’, the first seven months of 2015 also saw a number of cases involving Latin-American countries come to a close. Between 1 January 2015 and 31 July 2015, three ICSID awards were rendered in cases involving claims against Venezuela,⁴ two awards were rendered in cases against Peru⁵ and Perupetro,⁶ and one award was rendered in an arbitration involving claims against Argentina.⁷ The region continues to see an influx of foreign investment from all over the world, and there is no sense that this influx will cease or slow down in the coming years even as the commodity markets languish globally. This suggests that the region will continue to host investment treaty disputes for the foreseeable future.

While there were many interesting decisions and developments in the past year, the authors have chosen to highlight certain issues that may have a broader impact on the investment treaty dispute settlement system through a brief discussion of a selection of recent cases decided in the region. These issues, while seen in Latin American treaty arbitrations over the past year, are likely to be particularly important for arbitration practitioners, international investors and others interested in this field going forward.

First, García v Venezuela⁸ marks the first time that a tribunal relying on the UNCITRAL Rules has upheld jurisdiction over claims by dual nationals in an investment treaty dispute. The tribunal in García, chaired by Eduardo Grebler of Brazil, held that two dual Spanish-Venezuelan nationals qualified as international investors under a strict textual reading of Spain and Venezuela’s October 1997 bilateral investment treaty. Because the arbitration was governed by the UNCITRAL Rules, article 25 of the ICSID Convention’s prohibition on claims filed by dual nationals was not applicable.⁹

Second, Venezuela’s recent attempt to disqualify two arbitrators pursuant to ICSID articles 14(1) and 57 of the ICSID Convention in ConocoPhillips v Venezuela¹⁰ indicates Venezuela’s inclination to use article 57 requests in arbitral proceedings, as it seeks to defend itself against the myriad claims stemming from the various nationalisations that took place during the late president Hugo Chavez’s administration. Given the broad latitude that parties have in making disqualification proposals (and the time-intensive inquiry that each proposal triggers), there is a strong possibility that article 57 requests will provide a powerful mechanism for Venezuela (and others) to challenge the legitimacy of investment arbitration proceedings going forward and some will view these challenges as unwarranted delay tactics.¹¹

Finally, in Tidewater v Venezuela, the tribunal not only provided guidance on the use of the DCF method for purposes of valuating an expropriated investment of a business that operated as a going concern, but also grappled with a revision application by Venezuela under article 51 of the ICSID Convention. This last step could be construed by some as a dilatory tactic aimed at resisting or at least postponing the enforcement of awards while others will see it as a legitimate use of the revision procedure to ensure that correctness of the underlying award.

Dual nationality

In García v Venezuela, a tribunal for the first time upheld jurisdiction in an investment treaty dispute over claims brought by two Spanish-Venezuelan dual nationals.¹² The claimants brought claims against Venezuela under the bilateral investment treaty between Spain and Venezuela (BIT)¹³ for breaches arising from the expropriation of their food distribution business and Venezuela’s imposition of overly restrictive currency exchange restrictions.¹⁴ This was possible, to a significant extent, because of claimants’ choice of the UNCITRAL Rules to govern the proceedings.

It is well known that the ICSID Convention sets forth an express restriction on claims by dual nationals. Specifically, the Centre’s jurisdiction extends to ‘any legal dispute arising directly out of an investment, between a Contracting State [...] and a national of another Contracting State’,¹⁵ but the definition of a national excludes ‘any person who on either [the date of the parties’ consent or the date the dispute is registered] also had the nationality of the Contracting State party to the dispute’.¹⁶ The UNCITRAL Rules, however, do not contain such a restriction. In this context, the tribunal in García was left to determine whether or not the terms of the BIT precluded international investor claims by dual-citizens. Venezuela argued that the claimants’ ‘dominant and effective’ nationality is Venezuelan under international law¹⁷ and that allowing the case to go forward would violate principles of sovereign equality between states.¹⁸ The tribunal rejected Venezuela’s argument and noted that BITs ‘constitute lex specialis between the parties’.¹⁹ It thus found that the Vienna Convention mandates that the plain text of such agreements should prevail over interpretations that depend on secondary or supplemental sources of law, unless such an interpretation would lead to a ‘manifestly unreasonable result’.²⁰ In looking at the BIT’s text, the tribunal found that Venezuela entered into at least 27 BITs with foreign states between 1990 and 2008, and that these treaties did not consistently and uniformly prohibit jurisdiction over dual nationals.²¹ The tribunal determined that the omission of any prohibition of jurisdiction over dual nationals’ claims in this particular treaty indicates that dual nationals can in fact file claims as international investors.²² The tribunal also rejected Venezuela’s claim that the claimants’ Spanish nationality is ‘merely formal,’ noting that Spanish nationality is all that is required under a reading of the BIT’s text in order to qualify for the treaty’s protections.²³

Looking forward, the tribunal’s holding validates dual nationals’ right to assert claims against a state of which it is a national, and paves the way for these dual nationals to pursue these claims under the UNCITRAL Rules and where the applicable BIT does not expressly exclude claims by dual nationals. More specifically, the tribunal’s strict textual interpretation of the BIT could provide an ‘opening’ for claims under similar BITs that ‘omit’ references to dual nationality as a jurisdictional bar. In the Latin American context, it may have particularly significant implications because Spain imposes relatively relaxed residency requirements for citizens of Iberoamerican countries to attain Spanish nationality,²⁴ thereby making it relatively easy for many citizens of Latin American countries to acquire Spanish nationality in order to bring claims under a given BIT.

Disqualification

The late president Hugo Chavez’s high-profile nationalisations have led to a wide array of arbitrations against Venezuela. The majority of these arbitrations are now winding down and, as such, Venezuela now faces a handful of awards condemning it to pay millions of dollars in damages. With a stagnant economy, Venezuela has persistently made use of what critics refer to as ‘delay tactics’ in international arbitration proceedings.²⁵ In what some may see as the latest manifestation of these ‘tactics’, Venezuela has attempted to disqualify a number of well-known arbitrators, including Alexis Mourre,²⁶ Yves Fortier²⁷ and Judge Kenneth Keith.²⁸ Others will view these disqualification requests as legitimate challenges to the investor–state dispute settlement system. As illustrated by the ConocoPhillips v Venezuela decision, it appears likely that Venezuela will continue to bring these challenges in the immediate future, as they may provide a particularly effective ‘stall tactic’ in ICSID proceedings even if they do not result in any actual disqualifications.

Challenges to specific arbitrators are generally based on arguments that the arbitrator cannot satisfy ICSID article 14(1)’s requirement that ‘Persons designated to serve on [arbitration panels] shall be persons of high moral character and recognized competence [...] who may be relied upon to exercise independent judgment’.²⁹ ICSID article 57 allows parties to ‘propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by [article 14(1)].’³⁰

In ConocoPhillips, the claimants initiated an ICSID arbitration in 2007 in order to recover compensation for three oil projects that Venezuela nationalised during the Chavez presidency. The arbitration panel consisted of Judge Kenneth Keith, a New Zealand national appointed president of the tribunal pursuant to article 38 of the ICSID Convention; Yves Fortier, a Canadian national appointed by ConocoPhillips; and Sir Ian Brownlie, a United Kingdom national appointed by Venezuela.³¹ On 1 February 2010, after the death of Sir Ian Brownlie, Venezuela appointed Professor Georges Abi-Saab, an Egyptian national, as his replacement. On 5 October 2011, Venezuela proposed the disqualification of Mr Fortier following his disclosure that Norton Rose OR LLP, where Mr Fortier was a partner, proposed to merge with Macleod Dixon LLP, effective 1 January 2012.³² On 18 October 2011, Mr Fortier informed the tribunal and the parties that he was resigning from Norton Rose to establish his own arbitration practice. Judge Keith and Professor Abi-Saab then rejected the first proposal for disqualification in February 2012.³³

After the Tribunal issued a majority decision finding Venezuela in breach of its international obligation to negotiate compensation in good faith for its taking of ConocoPhillips’ assets, Venezuela submitted a second request for disqualification of Mr Fortier, along with a proposal for the disqualification of Judge Keith, in 11 March 2014. ICSID Administrative Council Chairman Jim Yong Kim rejected it in May 2014.³⁴ However, Venezuela continued to press for Mr Fortier’s disqualification in February 2015, pointing to two articles published in Global Arbitration Review in January 2015 that highlighted the participation of a Norton Rose partner as the tribunal assistant in the Yukos v Russian Federation arbitrations – presided over by Mr Fortier.³⁵Venezuela’s appointed arbitrator, Professor Abi-Saab, who dissented from the majority decision on the merits, did not submit his dissenting opinion until 19 February 2015; he then submitted his resignation on 20 February 2014, with the motion to disqualify Mr Fortier still pending, and a damages hearing scheduled for 13 April 2015.³⁶ In March 2015, the secretary of the Tribunal informed the parties that Judge Keith and Mr Fortier had decided not to consent to Professor Abi-Saab’s resignation, and that the chairman of the Administrative Council would appoint a replacement pursuant to ICSID Convention article 56(3)³⁷ and ICSID Arbitration Rule 11(2)(a).³⁸

In the wake of the resignation decision, Venezuela applied to disqualify Judge Keith and Mr Fortier, asserting that they lacked the independence and impartiality required by ICSID Convention article 14(1).³⁹ Venezuela argued that the two arbitrators’ treatment of Professor Abi-Saab’s resignation revealed a ‘negative attitude’ toward Venezuela⁴⁰ that rendered them unqualified under article 14(1), and separately reiterated their argument that Mr Fortier had an ongoing relationship with Norton Rose that required his disqualification. Here, the Administrative Council rejected Venezuela’s request, noting that:

a ‘difference of views’ between Venezuela and Judge Keith and Mr. Fortier regarding the appropriate ‘procedure and [...] circumstances that would warrant a refusal to consent to [an arbitrator’s] resignation [...] does not demonstrate apparent or actual bias on the part of Judge Keith or Mr Fortier;’⁴¹
evidence of ‘profound disagreement among the Tribunal on points of law and assessment of evidence’ provided by the text of Professor Abi-Saab’s dissent ‘is not proof that Judge Keith and Mr Fortier harboured a general negative attitude toward Venezuela;’⁴² and
Venezuela provided insufficient evidence of any ‘ongoing relationship’ between Norton Rose and Mr Fortier to call his independence and impartiality into question.⁴³

The decision in ConocoPhillips is perhaps not particularly notable from a precedent-setting or ‘points-of-law’ perspective. It appears hard to argue with the panel’s conclusions as disagreement among a panel is perfectly foreseeable, and the mere presence of a dissent – even a vigorous or impassioned one – should not indicate the sort of ‘manifest’ bias that will lead to a disqualification. Similarly, disagreement between a party and a tribunal over proper procedures to be followed during the proceeding is not surprising, as evidenced the mechanism set forth in the ICSID Convention for having a higher authority to rule on such disagreements. Finally, if physical proximity between an arbitrator’s offices and his former employer were relevant to a determination of independence and impartiality under article 14(1), surely there would be very few arbitrators left in New York, London, Paris or other major cities.

Instead, what some may find interesting about ConocoPhillips is how it may illustrate Venezuela’s use of article 57 as a means to delay enforcement of arbitration awards.⁴⁴ Again, others will not view it this way and instead will view such challenges as a proper tool afforded to parties in the investment treaty dispute context to ensure that their decision-makers are impartial and independent. But it is notable that as the Venezuelan economy continues to struggle, the country has repeatedly opposed enforcement in recent proceedings by, for example, petitioning for revisions under ICSID Convention article 51,⁴⁵ requesting annulments under article 52⁴⁶ and applying for stays of enforcement in the courts.⁴⁷ Like these other mechanisms, there is a substantial risk that Venezuela and other similarly inclined parties will use article 57’s disqualification provisions as a means to delay the proceedings and, ultimately, enforcement of awards.⁴⁸ Where a party seeks disqualification of the majority of the tribunal, as Venezuela sought in ConocoPhillips, this risk is particularly acute because such proposals must be evaluated by the chairman of the Administrative Council⁴⁹ – who will likely require explanations from the challenged arbitrators. Importantly, ICSID Arbitration Rule 9(6) requires that ‘The proceeding shall be suspended until a decision has been taken on the proposal’,⁵⁰ which all but guarantees delay. This is particularly burdensome in an arbitration like ConocoPhillips, where Venezuela submitted three separate disqualification requests from 2011 to 2015, with each requiring ‘explanations’ from the challenged arbitrators (two of which were requests to disqualify a majority of the tribunal that required a decision by the chairman).

In fact, as international arbitration claims increase, such challenges may become increasingly effective because of the relatively small pool of individuals who preside over these proceedings, and their repeat appointments in proceedings before ICSID.⁵¹ Although Venezuela’s ‘proximity’ argument is unlikely to ever merit disqualification, assertions of lack of independence based on professional associations – like those Venezuela made regarding Mr Fortier’s work with a Norton Rose partner in the earlier Yukos v Russian Federation proceedings – may begin to gain traction as ‘interconnections’ between arbitrators, interested parties and counsel appearing before them increase. As the tribunal noted in ConocoPhillips, articles 57 and 14(1) ‘do not require proof of actual dependence or bias; rather, it is sufficient to establish the appearance of dependence or bias’.⁵² Thus, a sufficient showing of an ‘association’ between an individual arbitrator and some interested party could be sufficient to require further investigation. As a result, even if there is not enough to actually merit disqualification, increased ‘interconnections’ between arbitrators, interested parties and counsel may allow Venezuela and others to make colourable article 57 claims that will take up ICSID resources and substantially delay arbitration proceedings.

Quantum and revision procedure under article 51 of the ICSID Convention

Another case involving Venezuela made headlines twice in 2015. The first time dealt with the damages award in Tidewater v Venezuela,⁵³ in which the tribunal, following its determination that Venezuela had expropriated the claimants’ property, provided a nuanced approach to the DCF valuation method. The second dealt with Venezuela’s subsequent (but unsuccessful) attempts to revise the Tidewater Award under the revision procedure set forth in article 51 of the ICSID Convention. Venezuela’s attempts to have the Tidewater award revised under article 51 of the ICSID Convention could also be construed by some observers as a misuse of the revision procedure employed by Venezuela to delay enforcement of arbitration awards against it. Still others will view such a challenge as a valid exercise of the ICSID revision procedure to ensure the accuracy and correctness of the underlying award. Under any view, too many of such applications could undermine the legitimacy of the investment state dispute settlement system, especially in the eyes of those looking for reasons to attack or challenge it.

Tidewater’s approach to DCF

In Tidewater, the tribunal⁵⁴ found that Venezuela had expropriated claimants’ investment in its Venezuelan subsidiary and that this expropriation, although lawful, was done without payment of prompt, adequate and effective compensation.⁵⁵ Since the expropriation was lawful, the tribunal reasoned that the standard for compensation was that set forth in the Treaty, which is based on ‘the market value of the investment expropriated immediately before the expropriation’.⁵⁶ The tribunal further determined that the World Bank Guidelines were useful for purposes of determining the standard of compensation in cases of lawful expropriation.⁵⁷ These Guidelines, explained the tribunal, provide a distinction between businesses that are a going concern with a record of profitability and those that are not.

Within this framework, the tribunal found that the DCF method was the most appropriate valuation method for determining the value of a business that operated as a going concern before the expropriation took place.⁵⁸ In the Tribunal’s view, the claimants’ investment was a going concern because it had been operating successfully in Venezuela for over 50 years and, in the five years prior to Venezuela’s taking, had documented substantial income.⁵⁹ As a result, the tribunal determined that it was ‘not appropriate to determine the fair market value by reference to either the liquidation value of the assets [...], or the book value of those assets’.⁶⁰ The tribunal also rejected valuation methods based on comparable transactions and comparable business models.⁶¹

The tribunal’s reliance on the DCF method to the exclusion of others is noteworthy for several reasons. First, the tribunal concluded that it had to look to the particular facts pertaining to the claimants’ business and that it had to make its determination on compensation based on the evidence on the record.⁶² Second, taking into account the considerable differences in the valuation approach in the experts’ reports, the tribunal had to make its own findings on compensation looking at specific drivers used by the experts in their reports.⁶³ The tribunal’s approach to compensation illustrates the tribunal’s independence from the parties’ and their experts’ submissions on quantum in making its determination, albeit while using those submissions as analytical guideposts.

The tribunal identified six variables that had an instrumental role in valuing the claimants’ investment: scope of business; accounts receivable; historical cash-flow; equity risk; country risk; and business risk. Although these drivers were analysed within the context of the fact-specific issues in Tidewater, they are worth mentioning because they serve as benchmarks and indicators for arbitrators to analyse, independently of the parties’ submissions, the fair market valuation of a going concern business under the DCF method. These variables also provide helpful insight into what likely is the approach that many tribunal’s take to the issue of quantum, even if they do not set it out explicitly in their awards.

Of these six drivers, three are noteworthy. Regarding the second variable, accounts receivable, the tribunal determined that claimants’ expropriation was comprehensive, to the extent that Venezuela assumed control of claimants’ business and all of its assets.⁶⁴ Therefore, the value of the lost investment must include outstanding accounts receivable, particularly since a potential buyer would take accounts receivable into consideration in the acquisition of a business. As to the fifth variable, country risk premium, the tribunal found that Venezuela is one of the highest risk countries for investment purposes and, as such, country risk is a factor a potential buyer is likely to consider before investing there.⁶⁵ After looking at other tribunals with fixed high-risk premiums on Venezuela, even up to 18 per cent, the tribunal found that a 14.75 per cent risk premium for Venezuela ‘represents a reasonable, indeed conservative, premium’.⁶⁶ Finally, as regards the sixth driver, business risk, the tribunal did not accept Venezuela’s expert’s argument that claimants’ reliance on a single customer, the large state-owned company PDVSA, amounted to a significant business risk because PDVSA was a significant and steady client and it was not foreseeable that PDVSA would terminate its business relationship with claimants’ subsidiary in Venezuela.

After considering the parties’ disparate calculations, the tribunal reasoned that it had to reach its own conclusion on compensation and that the appropriate estimation of compensation consists of the value that a potential buyer would pay for the business, as well as any amounts owed to the business (accounts receivable). The tribunal, therefore, arrived at a compensation value of US$46.4 million (US$30 million as the value of the business plus US$16.4 million for accounts receivable). This figure departed significantly from the parties’ figures and would be the subject of revision proceedings, as elaborated in greater detail below.

The Tidewater award thus adds to the development of investment treaty law by providing guidelines that a future tribunal could take into account when employing the DCF method in its quantum determination in the face of a business that operated as a going concern prior to the state’s expropriation. Importantly, the Tidewater award provides a glimpse into a tribunal’s independent quantum analysis in the face of severely disparate valuations by the parties and their experts, an approach that likely many tribunals adopt, even if not expressly.

Venezuela’s attempt to revise the Tidewater award

Article 51 of the ICSID Convention provides a mechanism for a party to seek revision of an award under quite exceptional circumstances. Pursuant to article 51(1), a request for revision is only warranted when there is a ‘discovery of some fact of such nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and the applicant’s ignorance of that fact was not due to negligence’.⁶⁷ As the tribunal in Tidewater succinctly stated, the test for revision contains three prongs:

a fact has been discovered;
said fact is of such a nature as to decisively affect the award; and
said fact was unknown to the Tribunal and to the applicant when the award was rendered.⁶⁸

The Tidewater tribunal also indicated that the applicant must establish all three prongs in order to prevail in its request for revision.

Shortly after the Tidewater award, Venezuela lodged a request for revision under article 51 of the ICSID Convention. According to Venezuela, there was an error in the tribunal’s damages calculation that merited the revision.⁶⁹ Venezuela pointed out that the claimants’ actual figure in its expert report was not US$31.959 million, as the tribunal noted at paragraph 201 of the Tidewater award, but US$13.917 million.⁷⁰ According to Venezuela, this calculation coloured the tribunal’s approach to its estimation on compensation, leading it to adopt a value of claimant’s business at approximately US$30 million. Venezuela argued that this involved the discovery of a fact that decisively affected the award. The claimants, in turn, rejected Venezuela’s request, arguing that the correct procedure for addressing this issue is an application for rectification under article 49 of the ICSID Convention. According to the claimants, this amounted to a clerical error in the transcription of the Tidewater award.

The tribunal, composed of the same members,⁷¹ sided with the claimants. As an initial matter, the tribunal noted that Venezuela’s application was based on ‘a clerical error in [the] transcription [of the award]’.⁷² The tribunal reasoned that paragraph 201 of the Tidewater award was a mere recapitulation of the parties’ positions and not indicative of the tribunal’s reasoning regarding compensation. As the tribunal pointed out in the Tidewater award, it had reached its own conclusion on compensation based on the evidence on the record.

More importantly, however, the Tribunal held that Venezuela had failed to establish the existence of a new fact that would warrant revision under article 51.⁷³ The tribunal found that the fact adduced by Venezuela was not new or was not discovered after the award was rendered.⁷⁴ Quite the contrary, the claimants’ figure was contained in the documents submitted by the expert. The tribunal thus determined that Venezuela had failed to establish the first prong in the test for admitting a request for revision under article 51. In any event, the tribunal also noted that Venezuela did not point to any authority in support of its argument that a transcription error is equivalent to a new fact subject to revision under article 51 of the ICSID Convention.⁷⁵

Even though it had no obligation to do so, as Venezuela had failed to establish the first prong of the revision test, the tribunal nevertheless found that Venezuela’s request did not satisfy the second prong because the clerical error did not decisively affect the award. As previously indicated, the parties’ quantum experts had adopted considerably divergent approaches to valuation and had arrived at vastly disparate figures, prompting the tribunal to make its own determination on quantum. This determination was based on all the evidence of record and took into account the correct figures submitted by the parties.

The Tidewater Decision on Revision ultimately underscores that, while parties may misuse or misapply the ICSID Convention’s valuable procedures for revision of awards, tribunals have a seminal role to play in avoiding perversion of those mechanisms. The Tidewater tribunal’s thorough Decision on Revision – even on a set of circumstances that would appear clear to any reasonable observer – illustrates how important it is for arbitrators to substantiate and explain their findings and reasoning on these types of requests, so as to ensure that their decisions stay true to the object and purpose of those tools. To the extent arbitral tribunals issue carefully reasoned and detailed decisions setting out the precise standards that parties must meet in order to obtain the relief requested, other actors will find it harder to justify filing requests and applications whose aim – while perhaps legitimate from the perspective of the applicant – end up perhaps undermining the legitimacy of the investment treaty dispute settlement system.

Notes

* Quinn Emanuel summer associate, Carl Spilly, also contributed to this submission.

ICSID Caseload Statistics Issue 2015-1, ICSID at 24 (2015).
Id. at 25.
Id. at 31.
See Venoklim Holding BV v Venezuela, ICSID Case No. ARB/12/22 (Award, 3 April 2015); Tidewater Inc, et al v Venezuela, ICSID Case No. ARB/10/5 (Award, 13 March 2015); Ol European Group BV v Venezuela, ICSID Case No. ARB/11/25 (Award, 10 March 2015).
See Levy v Peru, ICSID Case No. ARB/11/17 (Award, 9 January 2015).
Pluspetrol Perú Corporation, et al v Perupetro SA, ICSID Case No. ARB/12/28 (Award, 21 May 2015).
Suez v Argentina, Case No. ARB/03/17 (Award, 9 April 2015).
Decision on Jurisdiction, Case CPA No. 2013-3 (15 December 2014) (Spanish-language version only).
Id.
ConocoPhillips v Venezuela, ICSID Case No. ABR/07/30 at para 28 (Decision on the Proposal to Disqualify a Majority of the Tribunal, 1 July 2015).
This practice is by no means unique to Venezuela. For example, Argentina too sought the disqualification of a majority of the Tribunal in Ablacat and Others v Argentine Republic, ICSID Case No. ARB/07/5 (Decision on the Proposal to Disqualify A Majority of the Tribunal, 4 February 2014). The Argentine Republic sought disqualification on the basis that Professors Tercier and van den Berg lacked the qualities required by Article 14(1) of the ICSID Convention (high moral character, recognised competence in the fields of law and independent judgment). Specifically, the Argentine Republic argued that the procedural order regarding the timetable for filing deadlines lacked equality in treatment to the detriment of Argentina’s defense and, as such, Professors Tercier and van den Berg lacked independent judgment. In a decision also chaired by Dr Jim Yong Kim (see ConocoPhillips below), the Chairman of the Administrative Council rejected the Argentine Republic’s efforts to disqualify Professors Tercier and van den Berg because ‘the existence of an adverse ruling is insufficient to prove a manifest lack impartiality and independence,’ particularly when the procedural ruling in question was reasoned and adopted after consultation with the parties.
Decision on Jurisdiction, Case CPA No. 2013-3 (15 December 2014) (Professor Eduardo Grebler, et al, arbs) (Spanish-language version only).
Recuerdo Entre el Reino de España y la República de Venezuela para la Promoción y Protección Recíproca de Inversiones. Ven-Esp, (18 October 1997) (Spanish-language version only).
García, Case CPA No. 2013-3 at para 3-4.
ICSID Convention article 25(1).
ICSID Convention article 25(2).
García, Case CPA No. 2013-3 at para 116.
Id. at para 184.
Id. at para 158.
Id. at para 161-66.
Id. at para 178-180.
Id.
García, at para 200.
Citizens of Iberoamerican countries are eligible to become Spanish citizens after residing in Spain for only two years.
See, eg, ConocoPhillips v Venezuela, Decision on the Proposal to Disqualify a Majority of the Tribunal, ICSID Case No. ABR/07/30 at para 28 (1 July 2015) (‘The Claimants allege that [Venezuela’s] [p]roposal is patently frivolous and that it is part of a series of meritless and desperate delaying tactics by Venezuela.’).
See Fábrica de Vidrios Los Andes, CA v Venezuela, Decision on the Proposal to Disqualify a Majority of the Tribunal, ICSID Case No. ARB/12/21 (16 June 2015) (Dr Jim Yong Kim, chairman).
See ConocoPhillips v Venezuela, Decision on the Proposal to Disqualify a Majority of the Tribunal, ICSID Case No. ABR/07/30 (1 July 2015) (Dr Jim Yong Kim, chairman).
Id.
ICSID Convention article 14(1).
ICSID article 57.
ConocoPhillips, ICSID Case No. ABR/07/30 at para 4.
Id. at para 5.
Id. at para 6.
Id. at para 10.
Id. at para 12.
Id. at para 16-24.
Id. at para 25.
Id. at para 26.
Id. at para 36-37.
Id. at para 85.
Id. at para 90.
Id. at para 91.
See, eg, Id. at para 96 (finding that, inter alia, the ‘physical proximity of Mr Fortier’s office with Norton Rose offices in Montreal [...] is irrelevant to determining Mr Fortier’s independence and impartiality’).
For a general overview of possible limits on enforcement of ICSID arbitration awards, see Edward Baldwin, et al, ‘Limits to Enforcement of ICSID Awards’. 23 J. INT. ARB. 1–24 (2006).
See, eg, Venezuela Holdings, BV, et al v Venezuela, Decision on Revision, ICSID Case No. ARB/07/27 (12 June 2015) (Gabrielle Kaufmann-Kohler and Dr Ahmed Sadek El-Kosheri, arbs) (denying Venezuela’s request for revision of award pursuant to article 51).
See, eg, Richard Woolley, ‘Venezuela Seeks to Annul Award Over Caribbean Airport’, Global Arbitration Review (24 March 2015) https://globalarbitrationreview.com/news/article/33665/venezuela-seeks-annul-award-caribbean-airport/ (last visited 28 July 2015).
See, eg, République Bolivarienne du Venezuela c/ Société Gold Reserve INC, Cour d’appel de Paris, Pôle 1 – Chambre 1, RG No. 14/21103 (29 January 2015) (denying Venezuela’s request to set aside US$715 million arbitration award on international public policy grounds).
See generally, Karel Daele, ‘Challenge and Disqualification of Arbitrators in International Arbitration 66’ (2011) (discussing the use of disqualification petitions as a delay tactic in international arbitration proceedings).
ICSID Arbitration Rule 9(4).
ICSID Arbitration Rule 9(6).
Daphne Kapeliuk, ‘The Repeat Appointment Factor: Exploring Decision Patterns of Elite Investment Arbitrators’, 96 CORNELL L. REV. 73 (2011) (noting that, for ‘concluded cases’ before the ICSID from 1994-2009, ‘[a] total of 175 arbitrators were appointed in [...] 131 cases [...and] of these 175 arbitrators, 26 were appointed at least four times, 18 were appointed three times, 24 were appointed twice, and 107 were appointed once [...and] at least one [arbitrator appointed in four cases] was present in 105 of the 131 concluded cases’).
ConocoPhillips, ICSID Case No. ARB/07/30 at para 83 (citations omitted).
Tidewater Investments SRL and Tidewater Caribe, CA v the Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/5 (Award, 13 March 2015).
Composed of Campbell McLachlan (President), Andrés Rigo Sureda, and Brigitte Stern.
Tidewater, at para 146.
Id. at para 151.
Id. at para 152.
Id. at para 156 (‘In the field of investment treat law, tribunals have frequently found the discounted cash flow (DCF) method to provide the most useful method for arriving at a valuation of a business that had been operating as a going concern prior to the taking.’)
Id. at para 165.
Id. at para 165.
Id. at para 166.
Id. at paras 164, 167.
Id. at para 168.
Tidewater, at para 175.
Id. at para 186.
Id. at para 190.
ICSID Convention, article 51(1).
The Bolivarian Republic of Venezuela v Tidewater Investment SRL and Tidewater Caribe, CA, ICSID Case No. ARB/10/5 (Decision on Application for Revision, July 7, 2015), at para 25.
Tidewater Decision on Revision, at para 15.
Id. at para 16(e).
Campbell McLachlan (President), Andrés Rigo Sureda and Brigitte Stern.
Id. at para 29.
Id. at para 36.
Id. at para 37.
Id. at para 34.