Paragraph 404(e) of the Award should be revised to add the following sentence as the second sentence of the subparagraph: "The required reimbursements to PDVSA will be made simultaneously with the satisfaction of this Award. and
Paragraph 404(h) of the Award should be revised to add the following sentence at the end of the subparagraph: "The reimbursement contemplated by subparagraph (e) above shall be with interest at the same rate of interest specified in this subparagraph (h) or, in the alternative, the portion of the Award equal to the amount of the reimbursement referred to in subparagraph (e) above shall not bear interest from the date such amount was paid to Mobil Cerro Negro."5
a) The "new facts upon which the Application for Revision is based". Namely, the Mobil Parties (i) having made clear after the Award that they have no intention of honoring representations made before the Award regarding double recovery; and (ii) proceeding immediately after the rendering of the Award, ex parte and without consulting the Applicant to attempt to enforce the full amount of compensation without mentioning any reduction necessary to avoid double recovery.15
b) Two ways in which these facts affect the Award. Namely, by (i) making it impossible to calculate the amount due under the Award and (ii) violating the terms on which the Award was made.16
a) The stay should be maintained because it is necessary to prevent abusive litigation tactics during the pendency of the revision proceeding. The Applicant further argues that the characterization of the Application as a ploy to delay payment cannot be reconciled with the willingness to proceed with briefing on an accelerated scheduled. Moreover, it is not unusual for ICSID tribunals to maintain stays of enforcement for extended periods of time, and in this particular case with an expedited briefing schedule there is no reason to prematurely lift the stay when the entire revision proceeding has almost been completely briefed.21
b) The stay should not be subject to the provision of a bank guarantee since there is no general consensus that ICSID tribunals have the power to require security as a condition of exercising the right under the ICSID Convention to seek revision of an award. Moreover, requiring security would place the Mobil Parties in a better position than they enjoyed before the Application.22
a) Fails to identify a fact of such a nature as decisively to affect the Award or to provide evidence that this fact was unknown to the Tribunal and Applicant at the time the Award was rendered. The only alleged new fact is the Respondents’ attempt to recognize the Award, which as a threshold matter cannot possibly constitute a new fact in the sense of Article 51(1) of the ICSID Convention.24
b) Would require the Tribunal to decide matters outside its jurisdiction. First, the Applicant’s request that paragraph 404(e) of the Award be revised to require that the reimbursements to PDVSA be made simultaneously with the satisfaction of the Award would require the Tribunal to rule on matters (a) affecting PDVSA and MCN, which are not parties to the ICSID proceedings; and (b) concerning the CNAA, over which this Tribunal lacks jurisdiction.25 Second, the Applicant’s request that paragraph 404(h) of the Award be revised to include interest on the reimbursement would require a determination by the Tribunal of whether the CNAA requires reimbursement to include interest, a matter falling outside the jurisdiction of the Tribunal.26
c) Is premised on false contentions and mischaracterizations of the relevant facts. Generally, the Respondents contend that the Application is rooted in the premise that the Award requires the Mobil Parties to reduce, credit or offset the entirety of the amounts obtained under the ICC award from the amounts due under the ICSID Award, which is false. What the Award orders is payment of the entire amount to the Mobil Parties while recording MCN’s obligation to reimburse PDVSA under the CNAA upon receipt of these funds.27 The Respondents further deny the allegation that they have no intention of honoring their assurances that MCN will make the reimbursement required by the CNAA to prevent double recovery.28 Finally, the Respondents contend that the Applicant has mischaracterized the ICC award in arguing that it provided a remedy solely for the expropriation through Decree Law 5200. In fact, the Respondents contend that the contractual indemnity determined by the ICC Tribunal was calculated to include compensation for every Discriminatory Measure, including the Income Tax Measure. Since the ICSID Tribunal found that it could not provide a remedy for the Income Tax Measure, reimbursement under Article 15 of the CNAA may not apply to the entire amount of compensation awarded by the ICC Tribunal.29 Accordingly, offsetting Venezuela’s payment under the ICSID Award by the full amount of the ICC award would create a windfall for the Applicant30 and ignore the requirement under the CNAA that reimbursement be reduced by the costs incurred to obtain relief from Venezuela.31
"(1) Each Party may request revision of the award by an application in writing addressed to the Secretary-General on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the tribunal and to the applicant and that the applicant’s ignorance of the fact was not due to negligence.
(2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered."
a) the application should be based upon the "discovery" of a "fact";
b) the fact, the discovery of which is relied on, must be "of such a nature as decisively to affect the award";
c) the fact should have been "unknown" to the Tribunal and to the applicant "when the award was rendered";
d) the applicant’s ignorance of the fact must not be due to "negligence"; and
e) the application for revision must be made within 90 days after the discovery of the fact and in any event within three years after the date on which the award was rendered.
"(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 automatically be 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."
"In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award."
"The Tribunal’s assessment of the costs set forth in Convention Article 61(2), and its decision pursuant to that Article as to how and by whom those costs should be paid, may be set forth at the Tribunal’s discretion in the Decision or in one or more separate Orders preceding or subsequent to the Decision. Each Party may present, in addition to the information required by Arbitration Rule 28(2), its position as to how and by whom costs should be paid and arguments supporting that position. Without prejudice to the foregoing, absent any contrary decision by the Tribunal, all costs shall be borne by both Parties in equal shares."
a) USD USD93,463 and GBP32,561.16 as legal fees and expenses; and
b) all of the costs of the proceedings, once they have been definitely established by ICSID and no later than 30 days after ICSID has notified the Final Financial Statement to the Parties.
(i) The Application for Revision is dismissed as inadmissible;
(ii) The stay of enforcement is hereby automatically terminated; and
(iii) The Applicant shall bear all costs related to the proceeding, including the administrative fees and expenses of the Centre, the fees and expenses of the Members of the Tribunal and the costs and legal fees of the Mobil Parties, as described in paragraph 4.1.10 above.
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