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Drafter’s view on Venezuela’s Investment Law was deemed insufficient to evidence the state’s consent to arbitration; tribunal declined jurisdiction under the law
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General statements in domestic investment law and state’s shift towards a more favourable stance on international arbitration are insufficient to evidence consent to arbitration in Investment Law
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Principle of effet utile not helpful to interpret Investment Law
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Literal interpretation of Investment Law leaves its meaning unclear
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Investment Law must be interpreted not only in light of its literal meaning, but also considering the intended purpose of the state making the offer
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Unilateral offers to arbitrate made by states in domestic investment laws must be interpreted in accordance with ICSID Convention and principles of international law that govern unilateral declarations by states
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Provisional measures could be ordered to protect the exclusive jurisdiction of ICSID tribunals
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“Non-aggravation” provisional measures were ancillary and could not be granted without accompanying protective or preservative measures
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Requested provisional measures to prevent the seizure of vessels and potentially avoid aggravating the dispute did not meet the “urgency” and “necessity” requirements
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Seizure of vessels did not qualify as “irreparable harm” justifying provisional measures
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Provisional measures can be granted only if they are “necessary” to avoid “irreparable harm” to an investment
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Arbitrators dismissed respondent’s proposal to disqualify claimants’ appointee due to five-month delay in filing the proposal after becoming aware of the facts behind the challenge
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Co-arbitrators ruled that arbitrator challenges must be timely made in ICSID proceedings
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Venezuela filed disqualification proposal due to arbitrator’s ties with law firm representing another multinational cement company in a separate arbitration against Venezuela
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Background: ICSID arbitration was initiated after nationalization of Venezuelan company in which claimants indirectly held shares
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No evidence that concession had been obtained by corruption
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Dismissing case on basis on local litigation requirement would be “highly formalistic”
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Forum selection clause in contract is irrelevant for treaty claims
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Object and purpose of ICSID Convention paramount, concurring arbitrator says
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Parties cannot bypass “Foreign Control” requirement under ICSID Convention
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Territorial linkage to Argentina also needs to be met
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Majority finds that ICSID decisions on jurisdiction and liability cannot be reopened
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Tribunal has ordered Romania to give notice if it moves to seize assets
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ICSID says that it deferred to tribunal – notwithstanding suspension of proceedings – with respect to how to handle Mr. Abi-Saab’s resignation
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