Committee adopts “costs follow the event” principle, and orders Venezuela to pay all costs of the proceedings, as well as the investors’ legal fees

You are not logged in. If you are a subscriber, please Login to access. If you are not a subscriber, you can contact us for a rate quote at subscribe@iareporter.com. Alternatively, you can sign up to receive free email headlines here.

Committee recalls broad margin of discretion in allocation of costs, and finds that ultra petita cannot be invoked if the tribunal does not award more than what a party requested

Committee sees no flaws in tribunal’s reasoning on damages

Committee sees no inversion of the burden of proof

Committee finds that the tribunal could validly rely on the reasoning regarding the breach of FET to find breach of non-impairment standard; reasoning on expropriation is irrelevant

Committee sees no contradiction between the tribunal’s deference to public policy considerations and its findings on the arbitrariness of the challenged measures

Committee rejects attempt to re-open analysis of legal experts’ submissions

Committee sees distinct claims of abuse of nationality in underlying arbitration and annulment proceedings, and dismisses attempt to rediscuss the issue from a new perspective

Committee considers that Venezuela cannot invoke ex novo an inadmissibility exception on the investors’ additional claims under Article 46 of the ICSID Convention

Committee holds that ultra petita only applies to the parties’ claims, not their arguments

Committee draws distinctions between different types of failure to state reasons, and considers that “inadequate” reasoning does not constitute a ground for annulment

Lack of reasoning needs to pertain to an issue that is relevant to the outcome of the proceedings

Public relevance of investment proceedings implies that the obligation to state reasons represents a minimum requirement, which the parties cannot waive

Potential impact on the outcome of the award is sufficient to fulfil “seriousness” requirement

Committee stresses “fundamental” nature of serious departures from a rule of procedure that may give rise to annulment, despite absence of the term in the Spanish version of the ICSID Convention

Failure to apply the proper law generally excludes erroneous application of the law

Committee does not see higher standard for excess of powers on jurisdiction, and shows deference to tribunal’s assessment in case of potential divergences in the interpretation of facts and evidence

Manifest excess of powers needs to be both evident and of a certain gravity, in light of full analysis of award

Background: Maduro government applies for the annulment of 2017 award that found multiple breaches of the Spain-Venezuela BIT

Costs go the claimants’ way

Alleged breach of right to be heard cannot be established based on tally of references to the evidence in the award

Tribunal did not reverse burden of proof on due diligence, but merely indicated that Spain had failed to counter evidence put forth by the claimants

Spain’s due process complaints are not waived, since alleged shortcomings became apparent with the award

Departure from a fundamental rule of procedure requires impact on the result of the arbitration

Damages analysis meets requirement to state reasons; alleged failure to deal with issues is irrelevant when Spain failed to raise these issues before the tribunal

Archives