"after finding that the Directive dated 9 June 2010 from the Supreme Court of Turkmenistan to the State Customs Service shows that machinery and equipment ‘may have been taken without justification' and ‘may have been expropriatory,' [...] performs a number of adjustments pursuant to the Second Expert Report of Abdul Sirshar Qureshi in order to conclude that the difference between the real value of Claimant's machinery and equipment and the delay penalties is small and has not been shown, and therefore the Supreme Court's directive which permanently deprived Claimant of its assets in Turkmenistan was not excessive or expropriatory."2
"[t]he purpose of a supplementary decision under Article 49(2) is to provide a remedy for questions that were put before the Tribunal during the proceedings on the merits but not addressed or decided in the Award. In order to warrant a supplemental decision, the omitted question must concern an issue that materially affects the award according to Christoph Schreuer. Article 49(2) further states that the Tribunal ‘shall rectify any clerical, arithmetical or similar error in the award.' The rectification of clerical, arithmetical or similar errors in the Award is obligatory."7
"[the] request for the rectification of errors does not require the Tribunal to exercise any legal judgment whatsoever or to change any legal reasoning, or to rule upon any matter over which the Tribunal has discretion in terms of its legal judgment or to rule directly on any substantive issue. These rectifications are entirely a matter of correcting very basic math errors and clerical errors. Rectification does not require the Tribunal to make any analyses of facts or law, nor to exercise any judgment, and its comparison of the value of the machinery and equipment and the delay penalties is quite obviously mathematically incorrect on multiple levels and must be corrected."8
"this was merely a matter of ‘presentation' in order to avoid duplicating claimed amounts elsewhere. As also indicated during the hearing by Claimant's Counsel, the Arbitral Tribunal could use the amounts quantified by Hill and Mazars to determine the value of what was expropriated."21
"All that Mr Qureshi does in his Second Report is to concede that when supplier invoices are used, as he suggested, the value of the expropriated assets in fact increases ( not decreases ) , showing that there was nothing remotely suspect about Claimant's use of initial inter-company invoices initially which, in fact, understated ( not overstated ) the value of the expropriated machinery and equipment."38
"If for any reason Tribunal does not rectify, as it obliged [sic], the errors related to the depreciation although it has the elements to do so in its possession, and it does not modify its conclusion by accepting the depreciation provided by Claimant at the hearing or by performing its own basic calculations, Claimant respectfully requests the Tribunal, alternatively, to make a supplementary decision and to apply the depreciation rate it considers reasonable with the help of an expert."91
"Acquisition value of USD 13,990 million (value of the machinery and equipment based on supplier invoices) + USD 3,918,794 (acquisition value of 5 pumps at the Turkmenistan Customs Authority and the cement left at the Turkmenistan Maritime Authority) - USD 3,096,974 (actual delay penalty amounts) - USD 3.9 million (loss due to depreciation of materials and equipment) - USD 1,200,000 (value of allegedly transferred assets) - USD 23,000 (value of allegedly double-counted assets) = USD 9,688,820 (the difference between the value of the expropriated assets and the delay penalties after all relevant offsets)."100
"(i) To supplement the Award to include the materials (5 pumps and cement), which were also expropriated by the Supreme Court's Directive;
(ii) to correct all arithmetic, clerical and similar errors in paragraphs 372-376 of the Award;
(iii) to rule that the Supreme Court of Turkmenistan's Directive dated 9 June 2010 was excessive and expropriatory;
(iv) to rule that Respondent shall pay USD 9,688,820 to Claimant as a result of the actions of Turkmenistan;
(v) to rule that Respondent shall pay the costs of Claimant in connection with this Arbitration."105
"(i) to supplement the Award to include the materials (5 pumps and cement), which were also expropriated by the Supreme Court's Directive;
(ii) to rectify all arithmetic, clerical and similar errors in paragraphs 371-376 of the Award;
(iii) to draw the necessary inference that the Supreme Court of Turkmenistan's Directive dated 9 June 2010 was, after rectification of the Majority's errors, plainly excessive and expropriatory;
(iv) to rule that Respondent shall pay USD 9,947,624 to Claimant as a result of the actions of Turkmenistan plus interests; and
(v) to draw the necessary inference and rule that Respondent shall pay the costs of Claimant in connection with this Arbitration."106
Observations, para. 18. The Respondent refers to Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, Rectification of Award, 19 May 2006, Ex. RA-483, paras. 2, 7; Hussein Nuaman Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/7, Rectification of the Decision of the Ad Hoc Committee on the Application for Annulment of Mr Soufraki, 13 August 2007, Ex. RA-484, paras. 3, 8; Industria Nacional de Alimentos, S.A. and Indalsa Peru, S.A. v. Republic of Peru, ICSID Case No. ARB/03/4, Rectification of the Decision on Annulment of the Ad Hoc Committee, 30 November 2007, Ex. RA-485, paras. 3, 8; Kilic Insaat Ithalat Ihracat Sanayi Ve Ticaret Anonim Sirketi v. Turkmenistan, ICSID Case No. ARB/10/1, Decision on Rectification of the Award, 20 September 2013, Ex. RA-486, paras. 1.5-1.6, 2.1.1; Compania del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Rectification of Award, 8 June 2000, Ex. RA-487, paras. 8, 16; Emilio Agustin Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Rectification of the Award dated January 31, 2001, Ex. RA-488, paras. 8, 19.
"It was not for the Tribunal to go beyond what Claimant pleaded prior to the Award and consider the mathematical implications of Claimant's approach when Claimant itself did not take them into account. In these circumstances to rectify the Award as requested is not just a simple mathematical operation, it implies the Tribunal accepting a change of pleading in the context of a rectification request. This is beyond the power of the Tribunal under Article 49(2) of the ICSID Convention."135
"Claimant ignores the fact that, throughout the case, it bore the legal burden of proof on the issue of the value of the allegedly expropriated assets. That burden did not (and indeed cannot in any circumstances) shift to Respondent. The relevant question is not whether Claimant produced better evidence on this issue than Respondent, but whether Claimant's evidence was sufficient to carry its legal burden on that issue. The Majority determined that it was not."140
"The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered."
"(1) Within 45 days of the date on which the award was rendered, either party may request, pursuant to Article 49(2) of the Convention, a supplementary decision on, or rectification of, the award. Such a request shall be addressed in writing to the Secretary-General. The request shall:
(a) identify the award to which it relates;
(b) indicate the date of the request;
(c) state in detail:
(i) any question which, in the opinion of the requesting party, the Tribunal omitted to decide in the award; and
(ii) any error in the award which the requesting party seeks to have rectified; and
(d) be accompanied by a fee for lodging the request.
(2) Upon receipt of the request and of the lodging fee, the Secretary-General shall forthwith:
(a) register the request:
(b) notify the parties of the registration;
(c) transmit to the other party a copy of the request and of any accompanying documentation; and
(d) transmit to each member of the Tribunal a copy of the notice of registration, together with a copy of the request and of any accompanying documentation.
(3) The President of the Tribunal shall consult the members on whether it is necessary for the Tribunal to meet in order to consider the request. The Tribunal shall fix a time limit for the parties to file their observations on the request and shall determine the procedure for its consideration.
(4) Rule 46-48 shall apply, mutatis mutandis, to any decision for the Tribunal pursuant to this Rule.
(5) If a request is received by the Secretary-General more than 45 days after the award was rendered, he shall refuse to register the request and so inform forthwith the requesting party."
According to Article 49(2) of the ICSID Convention, the Tribunal "may […] decide any question which it had omitted to decide in the award" in a supplementary decision. Such a decision "shall become part of the award and shall be notified to the parties in the same manner as the award." The language used in Article 49(2) ("may") suggests that the tribunal may decide, in its discretion, whether a supplementary decision is required or indeed appropriate. This is the position adopted by other ICSID tribunals.214
See , e.g., Railroad Development Corporation v. Republic of Guatemala, ICSID Case No. ARB/07/23, Decision on Claimant's Request for Supplementation and Rectification of Award, 18 January 2013, Exhibit CA-4, para. 39 ("The Tribunal observes that the Parties are in agreement that the Tribunal has discretion as to whether or not to supplement an award under the terms of Article 49(2) of the ICSID Convention. The term ‘may' leaves no doubt that this is the case when the Tribunal has omitted to decide a question submitted to it.")
The Tribunal notes that the scope of Article 49(2) of the ICSID Convention is limited. The provision provides a mechanism to remedy "inadvertent omissions and minor technical errors in the award," but "[i]t is not designed to afford a substantive review or reconsideration of the decision;" rather its purpose is to "enable the tribunal to correct mistakes that may have occurred in the award's drafting in a non-bureaucratic and expeditious manner."215 This position has been confirmed by ICSID tribunals, and by the ad hoc committee in Vivendi v. Argentina, which stressed that :
"[I]t is important to state that that procedure [i.e. supplementation and rectification], and any supplementary decision or rectification as may result, in no way consists of a means of appealing or otherwise revisiting the merits of the decision subject to supplementation or rectification."216
Christoph Schreuer, with Loretta Malintoppi, August Reinisch and Anthony Sinclair, THE ICSID CONVENTION: A COMMENTARY (Cambridge University Press, 2d ed. 2009), Ex. RA-469, pp. 849-50.
Compania de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/97/3, Decision of the Ad Hoc Committee on the Request for Supplementation and Rectification of Its Decision Concerning Annulment of the Award dated May 28, 2003, Ex. RA-473, para. 11 (footnote omitted).
"A review of pertinent arbitral awards illustrates that the availability of the rectification remedy afforded by Article 49(2) depends upon the existence of two factual conditions. First, a clerical, arithmetical or similar error in an award or decision must be found to exist. Second, the requested rectification must concern an aspect of the impugned award or decision that is purely accessory to its merits. Simply stated […], Article 49(2) does not permit the ‘rectification' of substantive findings made by a tribunal or committee or of the weight or credence accorded by the tribunal or committee to the claims, arguments and evidence presented by the parties. The sole purpose of a rectification is to correct clerical, arithmetical or similar errors, not to reconsider the merits of issues already decided."242
"There is no consistency between the original supplier prices (now relied upon by Mazars) and the prices used on the inter-company invoices from Ickale to its branch in Turkmenistan (relied upon in the First Mazars report):
(i) 39 assets were sold by Ickale to its Turkmen branch for a higher price than for which they were originally purchased. The item with the highest difference is a crane (model 1995), where the import price of USD 135,000 contrasts with the original purchase price of USD 24,000 (excluding VAT), which suggests a 462.5% increase; and
(ii) 21 assets were sold to the Turkmen branch for a lower price compared to the original purchase price. The item with the highest difference is a Caterpillar excavator (model 2001), where the import price of USD 460,000 contrasts with the original purchase price of USD 856,000 (excluding VAT), which suggests a 46.3% decrease.
The overall impact is that the claim increased by approximately USD 1.8 million excluding VAT based on the original supplier invoices (compared to inter-company invoices). I believe this should have been analysed in detail as the differences may be due to partial depreciation of the assets already at the time of the import to Turkmenistan, technical enhancements to the machinery, adjusting prices for customs declarations or other factors. However Mazars do not appear to address any of the differences and therefore my questions from my first report remain unanswered."264
(a) Paragraph 372 of the Award reads:
"Based on inter-company invoices, some of the assets were sold by the Claimant to its Turkmen branch at prices that were, in total, approximately USD 1.8 million higher than the prices reflected on the original supplier invoices;"
(b) Paragraph 372 of the Award is corrected to read:
"Based on inter-company invoices, some of the assets were sold by the Claimant to its Turkmen branch at prices that were, in total, approximately USD 1.8 million lower than the prices reflected on the original supplier invoices;"
(a) Paragraph 373 of the Award reads:
"Second, the Claimant has failed to explain or demonstrate on what basis the Tribunal should take into account the prices of inter-company transfers of some of the machinery and equipment, which were USD 1.8 million higher than the prices at which they were acquired from third parties."
(b) Paragraph 373 of the Award is corrected to read:
"Second, the Claimant has failed to explain or demonstrate on what basis the Tribunal should take into account the prices at which some of the machinery and equipment were acquired from third parties, which were USD 1.8 million higher than the prices of inter-company transfers."
"Finally, neither the Claimant nor its experts have commented on Mr Qureshi's argument that insurance arrangements should have been considered as the evidence indicates that the lease agreements concluded by the Claimant for some of the machinery and equipment required it to insure the leased assets for their full value. The value of these assets when acquired amounted to approximately USD 2.6 million. In the absence of any response on this point from the Claimant, the Tribunal considers that the Claimant must be assumed to have recovered the value of these assets from insurance. It follows that, even if the evidence suggests that the Claimant was required under the relevant lease contracts to pay, and argues that it did pay, the value of the leased machinery and equipment to the lessors in the event it failed to return them, the evidence indicates that the Claimant would have been able to recover these payments from the insurance."267
(a) The Claimant's request for supplementary decision is denied;
(b) The Claimant's requests for rectification of the Award are denied, with the exception of the following;
(i) The fourth bullet point in paragraph 372 of the Award is rectified by the substitution of the word "lower" for the word "higher;"
(ii) The fourth sentence in paragraph 373 of the Award is corrected to read:
"Second, the Claimant has failed to explain or demonstrate on what basis the Tribunal should take into account the prices at which the some of the machinery and equipment were acquired from third parties, which were USD 1.8 million higher than the prices of inter-company transfers."
(c) Each Party shall bear 50% of the administrative expenses of ICSID and of the costs and fees of the Tribunal; and
(d) Each Party shall bear their own legal and other costs.