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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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Background: ICSID arbitration was initiated after nationalization of Venezuelan company in which claimants indirectly held shares
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Background: power plant deal is inked after introduction of martial law by President Marcos
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Common sense favours application of a single governing law
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Tribunal discusses Kompetenz-Kompetenz and separability
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Distinction between states and their instrumentalities is a general principle of law
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Unfortunate situation of multiple proceedings cannot create jurisdiction where there is none
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Allegedly corrupt local representative had individual reasons to favour awarding the contract to claimants
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Respondents failed to carry their burden of proof despite extensive evidence at their disposal
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Standard of proof requires “clear and convincing evidence” for corruption allegations
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Tribunal finds lack of urgency, necessity
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