Article 31 of the VCLT sets out a “single rule of interpretation”

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Background: Expropriation of family-owned food distribution conglomerate leads to several treaty claims

Claimant ordered to pay reasonable share of Venezuela’s legal expenditures, plus interest, as well as full costs of arbitration; failure to comply with security for costs order taken into account in decision on costs

Tribunal sees no evidence of a genuine investment

BIT’s definition of ‘investment’ needs to be interpreted in light of general requirements inherent in investment system rationale

Venoklim failed to prove that claimant’s establishment in the Netherlands had any other purpose than to ‘internationalise’ a domestic investment

ISDS system requires more than formal compliance with nationality requirements to qualify as foreign investor

First tribunal’s findings on claimant’s qualification as ‘investor’ fail to meet triple-identity test, and thus do not amount to res judicata

Tribunal finds support in other awards that saw no grounds for ‘fallback options’ after Venezuela’s withdrawal from ICSID Convention

Consent to ICSID Additional Facility Rules arbitration was intended to apply only until Venezuela ratified the ICSID Convention

Parties’ reference to prevailing treaty language is not a mere suggestion, but a binding indication

In light of clear textual elements, tribunal excludes that “unconditional consent” to ICSID arbitration can transfer to ICSID AF arbitration

Background: Second arbitration sees notable procedural developments, including order on security for costs

Mexico is awarded some costs, but request for joint liability is declined

Customs decisions were not arbitrary

Customs decisions did not lack due process

Customs decisions are consistent with local and international law

Waste Management II standard reflects customary international law

No need to prove specific prohibition against impugned conduct under customary international law

Investment was not in like circumstances as comparators

Alleged discrimination against the investor (as opposed to the investment) are irrelevant

Discrimination claim is limited by the scope of the Joint Venture Agreement

Limitation period argument is linked to the merits, and ultimately deemed moot

Vento controlled the Joint Venture

Vento is a US-based entity, owned and controlled by a US national

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