"The proceedings shall consist of two parts. The first part ('Part I') shall deal with the Applicant's request that the enforcement of the Awards be stayed for the duration of the annulment proceedings. The second part ('Part II') shall deal with the Applicant's applications to annul the Awards. Each part of the proceedings shall consist of a written phase followed by an oral hearing before the Committees."
"The Committees shall issue separate decisions in relation to each Award but may nevertheless discuss these proceedings in decisions or procedural orders as a single set of proceedings, except where circumstances necessitate separate treatment."
"[...] on this preliminary issue [...] would not, and indeed could not, prejudge the Committees' decision on the merits of the Annulment Applications, which will be briefed by the Parties and resolved by the Committees in Part II of these annulment proceedings. In these circumstances, there cannot be any risk that the Committees' decision could cause irreparable harm on the Applicant's right to present its case on the merits, which is the right that the Applicant seeks to protect by its Application."2
For the Applicant :
Mr Philip Kimbrough Kimbrough & Associés
Mr Tristan Moreau Kimbrough & Associés
Mr Prince Machaya Attorney General, Republic of Zimbabwe
Ms Fortune Chimbaru Ac ting Direc tor Civil Division, Attorney General's Office, Republic of Zimbabwe
Ms Elizabeth Sumowah Legal Advis or, Ministry of Lands and Rural Resettlement, Republic of Zimbabwe
Ms Varaidzo Zifudzi Principal Dir ector, Le gal Services, Ministry of Finance and Economic Development, Republic of Zimbabwe
Mr Chrispen Mavodza Director, Legal Affairs Department Ministry of Foreign Affairs, Republic of Zimbabwe
Mr Zvinechimwe Ruvinga Churu Principal Director - Budgets and Acting Permanent Secretary, Ministry of Finance and Economic Development, Republic of Zimbabwe
For the Respondents :
Mr Matthew Coleman Steptoe & Johnson
Ms Helen Aldridge Steptoe & Johnson
Mr Thomas Innes Steptoe & Johnson
Mr Charles Verrill
Mr Heinrich von Pezold
Court Reporter :
Mr Trevor McGowan The Court Reporter Ltd.
On behalf of the Applicant :
Mr Prince Machaya Attorney General, Republic of Zimbabwe
Mr Willard L. Manungo Permanent Secretary, Ministry of Finance and Economic Development, Republic of Zimbabwe
Mr John Panonetsa Mangudya Governor of the Reserve Bank of Zimbabwe
On behalf of the Respondents :
Mr Heinrich von Pezold
a. the parts of the Annulment Applications made on these grounds are dilatory principally as an abuse of process because they bring claims in relation to alleged defects that were waived, that are manifestly unfounded and/or based on a manifestly false assertion;27
b. a prima facie analysis reveals that these claims constitute an abuse of process and the Applicant has not proven that they do not;28
c. the Applicant waived its right to raise objections based on Mr Fortier's role by not seeking his disqualification between 31 October 2013 (when he openly stated his role at the hearing) and the closure of proceedings (3 February 2015) or before the dispatch of the award (28 July 2015);29 and
d. the Applicant's bias allegations against Mr Fortier do not meet the "reasonable third person" test that should be applied to assess such allegations.30
a. Zimbabwe has strained financial (foreign exchange) resources and the Awards debt, USD 210 million, is substantial;48
b. The award debt constitutes over 5% of Zimbabwe's overall budget, over 25% of its education budget and over 60% of its healthcare budget;49 and
c. Having to pay or freeze the amounts due under the Awards would adversely impact on its ability to finalize its debt restructuring with the EU, the IMF and the World Bank.50
The Applicant disagrees that it bears the burden of proving that a security is not required, citing Azurix and arguing that it is the claimant in the underlying arbitration (the Respondents in this proceeding) who must make out the case that security is required.78 The Applicant also denies any risk of non-compliance,79 or that security would be necessary to offset a prejudice suffered by the Respondents if the stay were maintained.80
Applicant's Post-Hearing Brief, para. 41(1) (citing ZALEX-066, Azurix Corp. v. Argentine Republic, ICSID Case No. ARB/01/12, Decision on the Argentine Republic's Request for a Continued Stay of Enforcement of the Award dated 28 December 2007 ("Azurix"), para. 37; Applicant's Skeleton Arguments on Stay, para. 195 (citing Azurix, paras. 37, 44 ff).
See Section II.C above.
Applicant's Skeleton Arguments on Stay, para. 169; see also Section II.E above.
"(1) The party applying for the interpretation, revision or annulment of an award may in its application, and either party may at any time before the final disposition of the application, request a stay in the enforcement of part or all of the award to which the application relates. The Tribunal or Committee shall give priority to the consideration of such a request.
(2) If an application for the revision or annulment of an award contains a request for a stay of its enforcement, the Secretary-General shall, together with the notice of registration, inform both parties of the provisional stay of the award. As soon as the Tribunal or Committee is constituted it shall, if either party requests, rule within 30 days on whether such stay should be continued; unless it decides to continue the stay, it shall be automatically terminated.
(3) If a stay of enforcement has been granted pursuant to paragraph (1) or continued pursuant to paragraph (2), the Tribunal or Committee may at any time modify or terminate the stay at the request of either party. All stays shall automatically terminate on the date on which a final decision is rendered on the application, except that a Committee granting the partial annulment of an award may order the temporary stay of enforcement of the unannulled portion in order to give either party an opportunity to request any new Tribunal constituted pursuant to Article 52(6) of the Convention to grant a stay pursuant to Rule 55(3).
(4) A request pursuant to paragraph (1), (2) (second sentence) or
(3) shall specify the circumstances that require the stay or its modification or termination. A request shall only be granted after the Tribunal or Committee has given each party an opportunity of presenting its observations.
(5) The Secretary-General shall promptly notify both parties of the stay of enforcement of any award and of the modification or termination of such a stay, which shall become effective on the date on which he dispatches such notification."
"Based on the plain language of the ICSID Convention and Arbitration Rules on annulment, it is clear to the Committee that a continued stay of enforcement of the award is not, in any event, automatic. Pursuant to Article 52(5) of the ICSID Convention, a continued stay is dependent on the specific circumstances of the case. Indeed, to order the continuation of the provisional stay, the Committee must be convinced that within the context of the case at hand such continuation is required.... The Committee also notes that Article 52(5) of the ICSID Convention provides that the stay shall only be continued if the Committee considers that 'the circumstances so require.' The Convention does not use other less categorical verbs, such as 'recommend,' 'deserve,' 'justify' or similar words, but resorts to the imperative verb 'require.'"90
"[p]overty as such is not a circumstance justifying a stay any more than it would justify non-payment of an award. The criterion is, rather, whether termination of the stay would have what Guinea calls 'catastrophic' immediate and irreversible consequences for its ability to conduct its affairs."97
(1) The Applicant's request for the continued stay of the enforcement of the Award rendered on 28 July 2015 is rejected;
(2) The provisional stay is lifted as of the date of this Decision;
(3) The Applicant has 90 days as of the date of dispatch of this Decision to comply with paragraph 1020.1 of the Award;
(4) Any funds paid by the Applicant or collected by the Respondents in consequence of the Award, and any documents establishing title to the Claimed Properties, be placed in escrow until the conclusion of these annulment proceedings;
(5) The Parties are directed to engage in discussions with a view to agreeing on an appropriate escrow arrangement; and
(6) The decision on the allocation of costs is reserved until the conclusion of these annulment proceedings.
Get access to the most extensive & reliable source of information in arbitrationREQUEST A FREE TRIAL
Already registered ?