1. the Tribunal had manifestly exceeded its powers (Article 52(1)(b));
2. there had been a serious departure from a fundamental rule of procedure (Article 52(1)(d)); and
3. the Award had failed to state the reasons on which it was based (Article 52(1)(e)).
The Acting Secretary-General of ICSID registered the Application on 8 January 2008 and on the same date, in accordance with Rule 50(2) of the ICSID Arbitration Rules, transmitted the Notice of Registration to the parties. A copy of the Application had been sent to the Philippines on 6 December 2007, when the ICSID Secretariat acknowledged receipt of the Application.
By letter of 14 April 2008, in accordance with Rule 52(2) of the Arbitration Rules, the parties were notified by the Acting Secretary-General of ICSID that an ad hoc Committee ("the Committee") had been constituted, composed of Judge Dominique Hascher (a national of France), Professor Campbell McLachlan Q.C. (a national of New Zealand), and Judge Peter Tomka (a national of the Slovak Republic), and that the annulment proceeding was deemed to have begun on that date. The parties were also notified that Ms. Eloise Obadia, Senior Counsel, ICSID, would serve as Secretary of the Committee. By letter of 18 April 2008, the parties were notified that the Members of the Committee had designated Judge Peter Tomka as President of the Committee.
1. The Members of the Committee: Judge Peter Tomka, Judge Dominique Hascher, Professor Campbell McLachlan, Q.C., and the Secretary of the Committee Ms. Eloise Obadia;
2. Fraport’s representatives: Mr. Peter Henkel, Ms. Aletta von Massenbach and Ms. Dorte Ochs of Fraport AG Frankfurt Airport Services Worldwide; Dr. Sabine Konrad of K&L Gates LLP; Mr. Eric Schwartz of King & Spalding LLP; Mr. Michael D. Nolan, Mr. Edward Baldwin, Mrs. Elitza Popova-Talty and Mr. Frederic Sourgens of Milbank, Tweed, Hadley & McCloy, LLP; Ms. Lesley Benn of Shulman, Rogers, Gandal, Pordy & Ecker, PA; Mr. Cesar P. Manalaysay and Mr. Edgardo G. Balois of Siguion Reyna Montecillo and Ongsiako.
3. The representatives of the Republic of the Philippines: Mr. Alfonso Cusi, Former General Manager, Manila International Airport Authority; Ms. Gloria Victoria Yap-Taruc and Ms. Ellaine Rose A. Sanchez-Corro, Assistant Solicitors General, Office of the Solicitor General of the Republic of the Philippines; Justice Florentino P. Feliciano (Ret.) of Sycip Salazar Hernandez & Gatmaitan; Ms. Carolyn B. Lamm, Ms. Abby Cohen Smutny, Ms. Andrea Menaker, Ms. Anne D. Smith, Mr. Stephen Ostrowski, Mr. Hansel Pham, Mr. Rahim Moloo, Mr. Amr Abbas, and Ms. Erin Vaccaro of White & Case, LLP.
"The Committee has decided not to admit the ICC Award into the annulment record in view of the limited nature of the annulment proceeding. The function of the Committee is to review the conduct of the Arbitral Tribunal which rendered the challenged decision and the decision itself. As the ICC Award had not been in front of the ICSID Arbitral Tribunal in the Fraport v. The Philippines case, being non-existent at that moment, it could not have been taken into account by the ICSID Tribunal. The Committee is of the view that its task is to review the Award rendered by the ICSID Tribunal only in light of the original arbitration evidentiary record."
" 1. To accept the objection to the jurisdiction of the International Centre for Settlement of Investment Disputes raised by the Republic of the Philippines;
2. To declare that the Centre does not have jurisdiction to hear this dispute and that this Arbitral Tribunal is not competent to resolve it;
3. To dismiss the claim of Fraport AG Frankfurt Airport Services Worldwide; and
4. To order that each party shall bear in full its own legal costs and that the payment of the fees and expenses of the members of the Arbitral Tribunal and of the administrative fees for the use of the Centre shall be paid in equal share by each party."37
"Either party may request annulment of the award by an application in writing addressed to the Secretary-General [of the ICSID] on...the following ground:
(b) that the Tribunal has manifestly exceeded its powers;"
(i) that the BIT required, as a jurisdictional prerequisite, that investments had to be made in accordance with Philippine Law at the time the investment was made; and
(ii) that Fraport’s investments were not in accordance with the Philippine Anti-Dummy law, a criminal statute.55
"a literal interpretation [of the law] here could produce an absurdity: an alien would violate the ADL if its designated officer intervened to manage and control matters A, B, and C, but the same alien would not violate the ADL if it secretly intervened as a shareholder to manage and control the same matters. The Tribunal construes this part of the ADL as covering intervention by shareholders, if that is the actual means of intervening in ‘the management, operation, administration or control’ of PIATCO."83
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context;
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
"Settlement of disputes between a Contracting State and an Investor of another Contracting State.
1) All kinds of divergencies between a Contracting State and an investor of the other Contracting State concerning an investment shall be settled amicably through negotiations.
2) If such divergencies cannot be settled according to the provisions of paragraph (1) of this Article within six months from the date of request for settlement, the investor concerned may submit the dispute to:
a) the competent court of the Contracting State for decision;
b) the International Centre for the Settlement of Investment Disputes through conciliation or arbitration, established under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, of March 18, 1965 done in Washington D.C.
3) Neither Contracting State shall pursue through diplomatic channels any matter referred to arbitration until the proceedings have terminated and a Contracting State has failed to abide by or to comply with the award rendered by the International Centre for Settlement of Investment Disputes.
4) The award shall be binding and shall not be subject to any appeal or remedy other than those provided for in the said Convention. The award shall be enforced in accordance with domestic law."109
"Definitions of Terms
For the purpose of this Agreement:
1. The term "investment" shall mean any kind of asset accepted in accordance with the respective laws and regulations of either Contracting State, and more particularly, though not exclusively:
a) movable and immovable property as well as other rights in rem, such as mortgages, liens, pledges, usufructs and similar rights;
b) shares of stocks and debentures of companies or interest in the property of such companies;
c) claims to money utilized for the purpose of creating an economic value or to any performance having an economic value;
d) intellectual property rights, in particular copyrights, patents, utility-model patents, registered designs, trademarks, tradenames, trade and business secrets, technical processes, know-how, and good will;
e) business concessions conferred by law or under contract, including concessions to search for, extract or exploit natural resources;
any alteration of the form in which assets are invested shall not affect their classification as an investment."111
"While this factual record is troubling, it does not eo ipso mean that the Tribunal is without jurisdiction ratione materiae to hear the substance of the claim. The Tribunal’s task is to make this determination in accordance with applicable legal standards."117
Having already been troubled by the factual record, the Tribunal next proceeded to a consideration of these applicable legal standards.
"Each Contracting State shall promote as far as possible investments in its territory by investors of the other Contracting State and admit such investments in accordance with its Constitution, laws and regulations as referred to [in] Article 1, paragraph 1 [...] "122
"As provided for in the Constitution of the Republic of the Philippines, foreign investors are not allowed to own land in the territory of the Republic of the Philippines. However investors are allowed to own up to 40% of the equity of a company which can then acquire ownership of land."123
"Whereas, the Agreement [i.e. the BIT] provides that the investment shall be in the areas allowed by and in accordance with the Constitutions, laws and regulations of each of the Contracting Parties."
"while a treaty should be interpreted in the light of its objects and purposes [encouraging investment], it would be a violation of all the canons of interpretation to pretend to use its objects and purposes, which are, by their nature, a deduction on the part of the interpreter, to nullify four explicit provisions.139
"First, it is unlikely that state parties would insist on compliance with their respective constitutions, laws and regulations only with respect to the first type of investment, but would, at the same time, discharge potential investors from such compliance with respect to the quite common type of investments in the second category. Second, ad Article 2 of the Protocol, which elaborates Article 2 of the Treaty, relates to purchasing shares in a company which might then acquire land in the territory of the Republic. The acquisition of shares by a foreign investor in a domestic corporation is a legal transaction that does not, by its nature, involve some action by the government involving acceptance or permission.... So it would appear that the material restrictions on investments relate both to investments of the first and second types."145
(a) In disregarding the principles required to be respected in determining whether a criminal law had been violated, specifically the principles of nullum crimen sine lege and in dubio pro reo156 This ground of complaint relates in particular to the manner in which the Tribunal approached the construction of the ADL;
(b) By relying upon evidence admitted after the close of proceedings in denial of Fraport’s right to be heard.157 This ground relates in particular to the Tribunal’s decision to admit evidence from the investigation leading to the decision of the Philippines Special Prosecutor on the criminal complaint concerning Fraport’s alleged breach of the ADL ("the Prosecutor’s Resolution"158) after the closure of the proceedings, without providing the parties with an opportunity to be heard as to the effect of the material produced to the Tribunal.
"[t]he notion of ‘presumption of innocence’ is intended to convey the idea that nobody can be held to be responsible for any misconduct, whether civil (a tort) or criminal (a penal offence), without his being first heard..."165
(a) The majority of the Tribunal concluded that Fraport’s transaction counsel, Dr Stiller, had testified falsely in the Philippines without allowing Fraport or the witness to be heard on that serious but untenable ruling;178
(b) The majority made an outcome-determinative, but incorrect, factual characterisation of the record before the Philippine Prosecutor. The majority held that the critical factual question in relation to the Prosecutor’s Resolution was whether the secret shareholder agreements had been part of the record and considered by the Prosecutor.179 This question was not disclosed to the parties, who thus did not have an opportunity to confront the evidence upon which the Tribunal relied.180 Fraport argues that the Tribunal’s conclusion that the two such agreements which were dispositive could not have been disclosed to the Prosecutor because of confidentiality agreements in the arbitration was incorrect; and
(c) The majority acknowledged that, if the facts concerning these materials had been different, its decision on jurisdiction would have been different, since it would have accorded effect to an estoppel created by the Prosecutor’s decision that the ADL had not been breached.181
"[T]he Majority changed the purpose for receiving the underlying materials without informing the parties. The change in purpose was not communicated to Fraport, which is why Fraport could not respond and - as a consequence -was denied the right to be heard."185
Where, outside of criminal proceedings, the values protected by the principle of legality are not in jeopardy, its application is unjustifiable as it would end up protecting one side - the beneficiary of the more restrictive interpretation that this principle entails - over the other without a proper ground for such more favourable treatment.197
(a) Because both principles only apply in a criminal context, they cannot be considered a fundamental rule of procedure for ICSID purposes;
(b) Even in the criminal context, they can not properly be considered procedural rules; and,
(c) The Tribunal did not in any event contravene either principle, even if they were applicable.201
Turning to the position following disclosure of the Prosecutor’s Resolution, the Philippines submits that:
(a) Fraport was heard on the completeness of the record before the Philippine Prosecutor. Fraport pointed out the incompleteness of the record by letter to the Tribunal.211 In response, the Tribunal invited Fraport to supplement the record by providing the Tribunal with copies of the documents listed in its letter.212 Fraport continued thereafter to make submissions by letter to the Tribunal as to the completeness of the record;213
(b) Fraport was heard on the explanation for the statements made to the Philippines Department of Justice by Dr Stiller, since he had in fact given evidence before the Tribunal as to the construction of the Pooling Agreement, which the Tribunal considered and expressly rejected;214
(c) The factual findings about the Department of Justice’s access to evidence that Fraport claimed were incorrect were not outcome-determinative. Fraport had in fact submitted at the oral hearing that the Philippines had access to the shareholder agreements.215 In any event, the Tribunal expressly pointed out that the knowledge of the Prosecutor many years later was not relevant to the question of whether the Philippines knew of the agreements in 1999, when the investment was admitted.216 Further, the Tribunal did not consider the municipal decision binding upon it;217 and
(d) Finally, the Philippines submits, relying on ICSID Arbitration Rule 27, that Fraport had waived the right to challenge the irregularity of the Tribunal’s proceeding in this regard, not having made such an objection to the Tribunal at the time.218
(a) The interpretation of the ADL was within the legal framework of the dispute, since it had been raised in the pleadings and at the hearing;219 and
(b) Fraport had the opportunity to be heard on the evidentiary record before the Philippine Department of Justice:
(i) The Tribunal’s request for production of documents after closure of the arbitral proceedings was proper under Article 43 of the ICSID Convention, even after the closure of proceedings;220
(ii) Fraport had the opportunity to address the completeness of the record. In fact it did so in its correspondence with the Tribunal. The Tribunal’s direction limiting further submissions was fair because it applied to both parties;221 and
(iii) Fraport had waived its right to object. Its correspondence in response to the Tribunal’s request demonstrated that it was well aware of the importance of demonstrating the extent to which the Prosecutor had knowledge of the shareholder agreements.222
(a) The Philippines had argued that Fraport had violated the ADL in its posthearing submissions, to which Fraport had had an opportunity to reply.224 At the hearing itself and in its post-hearing briefs, counsel for Fraport had, to the contrary, declined to take the allegations in relation to breach of the ADL seriously and to confront them,225 even when the point was put to it expressly by the Tribunal;226 and
(b) As far as the later introduction of the Prosecutor’s Resolution and file was concerned, the Philippines notes that Fraport had not alleged in the annulment proceedings that the Prosecutor had had access to the Pooling Agreement; merely that he had had access to documents which referred to it. Thus the Tribunal was well entitled to reach the conclusion that this would not be sufficient to persuade the Prosecutor that there was proof of a violation of the ADL.227 The issue was not in any event outcome-determinative, since the Tribunal held that, for an estoppel to arise, the Philippines would have had to have been aware of the Pooling Agreement at the time the investment was made.228
(a) First, it accepted (subject to its checking) that the only underlying evidence of law as to the construction of the ADL (as opposed to the statute itself or contemporaneous evidence of fact) relied upon before the Tribunal was two Department of Justice Opinions (Nos 141 and 165229) and the decision of the Supreme Court in Luzon.230 The Philippines submits that these Opinions went to the question of the construction of the shareholding restriction under the Foreign Investment Act and not to other means of control proscribed by the ADL;231 and
(b) Second, the Philippines informed the Committee that the Department of Justice proceedings in the Philippines were still pending. Since the decisions of the Prosecutors which had been disclosed in the arbitration proceedings, there were pending motions for reconsideration and petitions for review. The DOJ had completed its investigation, but no Criminal Information had been filed.232
Having deliberated the Tribunal, unanimously, denies Claimant’s request of 4 October 2006 for leave to file a further written submission.
The Tribunal is of the view that the presentation of their case by both parties is now completed and the instant proceedings are hereby declared closed.
Nevertheless, the Tribunal’s Procedural Order of 18 July 2006, as it pertains to the ongoing expropriation proceedings in the Philippines, remains in effect and Respondent is accordingly directed to keep the Tribunal (and Claimant) informed of the status of those proceedings.234
"Please understand that we do not have a full record of the DOJ proceeding.... We do not know the extent to which the DOJ’s decision was premised on other documents and investigative materials in addition to those indicated in the exhibits to this letter."238
In these circumstances, on 14 February 2007, the Tribunal directed the Philippines to submit to it additional evidence submitted to the Prosecutor, together with relevant Philippines legislation. The request included "all documents, transcripts, statements or other evidence received by the DOJ Prosecutor in the course of his investigation." The Tribunal expressly stated:
"The present request is not a decision by the Tribunal to reopen the proceeding under ICSID Arbitration Rule 38. The Tribunal merely seeks to complete the evidentiary record which the Parties have constituted with their attachments to Respondent’s letter of 5 January and Claimant’s letter of 10 January.
Until further notice, the Tribunal does not wish to receive any submissions with respect to this material from either Party.
After considering the documents which it has requested, the Tribunal will determine whether it requires additional clarification from the Parties. In the meantime, it continues its deliberations."241
"The DOJ file does not include the confidential Fraport due diligence documents, final holding report, or the shareholder and loan agreements of PIATCO and Fraport that were presented to the Tribunal in this arbitration and relied upon by Respondent in its submissions."
"We would be happy immediately to provide copies of the above documents should the Tribunal wish to have them. Most bear stamps indicating receipt by the Philippines Department of Justice. We of course do not know whether there may have been other documents received by the DOJ that the Tribunal also has not received from Respondent."
"The Respondent’s production of documents on 14 March 2007 was the product of an extensive search by lawyers in the OSG [Office of the Solicitor-General] of the DOJ Prosecutor’s files relating to the anti-dummy investigations. The OSG is not a party to the DOJ proceedings and relies on the DOJ for access to these documents. Respondent was informed that its production to the Tribunal was complete. As is the case with government agencies in many developing countries, the Philippine DOJ Prosecutor’s Office is overworked and understaffed, and its recordkeeping can be imperfect. This is the circumstance that Respondent described during the discovery process in this proceeding that necessitated the lengthy and repeated efforts to locate documents in various agencies. Any omission in Respondent’s production was unintentional and inadvertent....
Respondent will supplement its production if any additional responsive documents are located."249
"Until further notice, the Tribunal directs the Parties to cease and desist from sending any further letter to the Tribunal. This also applies to any further update by the Respondent in respect of the ongoing expropriation proceedings in the Philippines."252
The Tribunal did not communicate further with the parties until, on 13 June 2007, it wrote:
"[T]he Tribunal is now of the view that the presentation of their case by both parties is completed and accordingly, pursuant to Arbitration Rule 38, the proceeding is now declared closed in its entirety."253
(a) A due diligence report from Fraport’s Philippine lawyers, Quisumbing Torres ("QTj dated 11 January 1999;255
(b) A provisional due diligence report from KPMG of 20 January 1999;256
(c) Fraport’s final report to its supervisory body dated 26 February 1999;257
(d) The PIATCO Master Concession Concept Brief of 19 January 1999, which referred to the need to conclude a shareholders’ agreement in accordance with Philippine law;258
(e) The comments by Dr Schmidt recorded in the minutes of a meeting of Fraport’s Supervisory Board;259 a letter dated 18 December 1998 from the Chairman and President of FRAPORT to the Asian Development Bank, one of the Senior Lenders;260 and a letter from Jesse Ang, CFO of PIATCO, to John Archer of Fraport261 which attached the Concept Brief referred to at (d) above;262
(f) The Pooling Agreement dated 6 July 1999 itself263 and the Addendum to that Agreement;264
(g) Questions raised by Mr Vogel of Fraport to QT on 14 December 1999;265
(h) A letter from Mr Struck to QT that followed the SyCip report,266 which indicated concern at the content of QT’s prior advice; and
(i) A further letter from QT dated 21 December 1999.267
(a) In 2003, two Philippine lawyers, Messrs. Balayan and Bernas complained to the National Bureau of Investigation ("NBI") that the officers and directors of Fraport and PIATCO had violated the ADL based on Fraport’s ownership of 61.44% of PIATCO’s shares. The Complaint was based solely and expressly on statements made by Fraport in the Request for ICSID arbitration;269
(b) The NBI Report, issued on 10 June 2004,270 found that the Supreme Court’s annulment of the PIATCO concession occurred before Fraport could exercise any managerial control it could have acquired in violation of the ADL. The 10 June 2004 report was followed by Reports dated 13 February 2006,271 13 June 2006272 and 16 June 2006273 and Evaluation Comments dated 28 July 2006;274and
(c) On 27 December 2006, the Prosecutor’s Resolution rejected the NBI’s recommendation to prosecute the officers and directors of Fraport and PIATCO for their "intent" to breach the ADL.275
"an actual demonstration of managerial control, in which case the quantum of equity in the company is irrelevant."277 The Tribunal accepted that managerial control by means of a shareholder meeting did not infringe a literal interpretation of the ADL. But it decided:
"[A] literal interpretation here could produce an absurdity.... The Tribunal construes this part of the ADL as covering intervention by shareholders, if that is the actual means of intervening in "the management, operation, administration or control" of PIATCO."278
"to review the full record of evidence regarding the ADL proceedings which resulted in the Department of Justice’s Chief State Prosecutor’s Resolution of 27 December 2006 (the "Prosecutor’s Resolution") dismissing the Bernas and Balayan complaints. Accordingly... it requested all of those documents from the Respondent, and the Claimant supplemented the record with other documents."280
"Not surprisingly, the theories put forward by Bernas and Balayan, without the benefit of the secret shareholder agreements, could not and did not persuade the DOJ Prosecutor. As every lawyer knows, to bring an indictment and initiate a criminal prosecution, one needs evidence and not theories. The evidence was to be had in the secret shareholder agreements. The ADL charges were accordingly dismissed."283
"Fraport knowingly and intentionally circumvented the ADL, by means of secret shareholder agreements. As a consequence, it cannot claim to have made an investment "in accordance with law."... Because there is no
"investment in accordance with law", the Tribunal lacks jurisdiction ratione materiae.288
"Annulment under Article 52(1)(e) is permissible where a tribunal fails to state the reasons on which its award is based. This ground for annulment has been a cause of great concern to commentators since, unlike (b) and (d), it does not include any limiting terms such as ‘manifest’, ‘serious’ or ‘fundamental’. Early on, ad hoc Committees interpreted this clause in such a way that it appeared to allow inquiry into the sufficiency or substance of the reasons offered."377
"The Committee is of the opinion that the requirement that an award has to be motivated implies that it must enable the reader to follow the reasoning of the Tribunal on points of fact and law. It implies that, and only that. [...] In the Committee's view, the requirement to state reasons is satisfied as long as the award enables one to follow how the tribunal proceeded from Point A. to Point B. and eventually to its conclusion, even if it made an error of fact or of law. This minimum requirement is in particular not satisfied by either contradictory or frivolous reasons."378
"[i]t is correct that Fraport’s real modality of intervention in ‘the management, operation, administration or control’ of PIATCO for the items specified in the FAG-PAIRCARGO-PAGS-PTI Shareholders’ Agreement is as a shareholder in the confidential but binding preliminary meeting described at Article 2.02 thereof. Fraport does not, as the ADL specifies, intervene, as an officer, employee or laborer in the subsequent formal board meeting that rubber-stamps the result of the confidential but binding meeting. To be sure, the formal validity of unlawful intervention would still be accomplished by Fraport’s designated officer in PIATCO; indeed the real control decision would always have to be implemented, wherever it may have been made, by ‘an officer, employee or laborer’ within PIATCO; that would satisfy a literal interpretation. But a literal interpretation here could produce an absurdity: an alien would violate the ADL if its designated officer intervened to manage and control matters A, B and C, but the same would not violate the ADL if it secretly intervened as a shareholder to manage and control those same matters. The Tribunal construes this part of the ADL as covering intervention by shareholders, if that is the actual means of intervention in the management, operation, administration or control of PIATCO. Nor does this interpretation impose a retroactive burden on Fraport, for its own documents, which the Tribunal reviewed above, indicate that Fraport was well aware that the arrangements it was making were not in accordance with the ADL."418
"[t]he text of [Article 52(1)(e)] requires a statement of reasons on which the award is based. This does not mean just any reasons, purely formal or apparent, but rather reasons having some substance, allowing the reader to follow the arbitral tribunal's reasoning, on facts and on law. [...] [T]here would be a ‘failure to state reasons’ in the absence of a statement of reasons that are ‘sufficiently relevant’, that is, reasonably sustainable and capable of providing a basis for the decision."419
The above passage of the Award makes clear that, according to the Tribunal, Fraport did not intervene "as an officer, employee or laborer" as mentioned in Section 2-A of the ADL, but notwithstanding, it would still violate the ADL if it secretly intervened as shareholder to manage and control PIATCO. The Applicant nonetheless claims that there is a failure to state reasons for the violation of the ADL as a principal or accessory which is material to the solution. Fraport is correct in contending that a finding of its criminal liability or that of its officers or employees would have required a declaration as to whether the accused was a principal or an accessory. The construction of a criminal statute such as the ADL by an ICSID tribunal, however, does not turn the arbitration proceeding into a criminal proceeding. The question before the Tribunal was not that of the criminal liability of Fraport or of its officers or employees, but that of the Tribunal’s jurisdiction ratione materiae under the Agreement between the Federal Republic of Germany and the Republic of the Philippines for the Promotion and Reciprocal Protection of Investments of 18 April 1997.
Under Article 61(2) of the ICSID Convention and ICSID Arbitration Rule 47(1)(j), read together with Article 52(4) of the ICSID Convention and ICSID Arbitration Rule 53, the Committee has the discretion to decide how and by whom the expenses incurred by the parties in connection with the proceeding ("the parties’ costs"), the fees and expenses of the members of the Committee and the charges for the use of the facilities of the Centre (together "the ICSID costs") shall be borne.
For the foregoing reasons, the Committee unanimously decides:
— (1) To annul the Award of 16 August 2007 in Fraport AG Frankfurt Airport Services Worldwide v. The Republic of the Philippines (ICSID Case No. ARB/03/25);
— (2) Each Party shall bear one half of the ICSID costs incurred in connection with this annulment proceeding; and
— (3) Each Party shall bear its own party costs and expenses incurred with respect to this annulment proceeding.
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