On October 24, 2018, pursuant to Article 52(6) of the ICSID Convention and Rule 55(2)(a) of the ICSID Arbitration Rules, the Acting Secretary-General of ICSID registered the Request, as supplemented by letter of October 22, 2018, and notified the Parties of the registration. In the Notice of Registration, the Secretary-General invited the Parties to proceed to constitute a new Tribunal as soon as possible in accordance with ICSID Arbitration Rule 55(2)(d). On the Respondent's side, this notification was made to Mr. Reinaldo Enrique Muñoz Pedroza, Procurador General de la República (Attorney General of the Republic).
On November 5, 2018, the Centre informed the Parties, that pursuant to ICSID Arbitration Rule 55(2)(d), the Tribunal in this resubmission proceeding shall include the same number of arbitrators appointed by the same method as the original one. The original Tribunal in this case comprised three arbitrators appointed pursuant to Article 37(2)(a) of the ICSID Convention. In particular, it was agreed that each Party would appoint an arbitrator and that the president would be appointed by agreement of the Parties, with the assistance of the two co-arbitrators.
"ICSID should not consider valid any instruction or communication submitted as of February 5, 2019 by any other person -different than me-who pretends to act on behalf of the Republic of Venezuela."
On February 13, 2020, the Claimants notified the Centre of the Parties' failure to agree on the appointment of the President of the Tribunal, and requested that the Chairman of the Administrative Council of ICSID (the "Chairman") complete the constitution of the Tribunal by appointing the President pursuant to Article 38 of the ICSID Convention and Rule 4(1) of the ICSID Arbitration Rules.
On March 2, 2020, the Centre confirmed that since the request to the Chairman had been made more than 90 days after the dispatch of the notice of registration without the Tribunal having been constituted, the Chairman would proceed to appoint the President of the Tribunal from the ICSID Panel of Arbitrators, in accordance with ICSID Article 38.
On August 17, 2020, the Secretary-General, in accordance with Rule 6 of the ICSID Arbitration Rules, notified the Claimants as well as the Respondent represented by Mr. Pedroza5 that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. Ms. Alicia Martín Blanco, ICSID Legal Counsel, was designated to serve as Secretary of the Tribunal.
- Mr. Reinaldo Enrique Muñoz Pedroza, appointed by "the government of Mr. Nicolás Maduro" (also the "Maduro government") and represented in this proceeding by the law firm De Jesús since March 2019;
- Mr. José Ignacio Hernández G. and subsequently Mr. Enrique Sánchez Falcón, appointed by "the government of Mr. Juan Guaidó" (also the "Guaidógovernment") and represented in this proceeding by the law firm Curtis since November 2020.
This is unaffected by Curtis's argument that the issue of the representation of Venezuela in the present proceedings falls outside arbitral jurisdiction pursuant to the bilateral investment treaty between the Netherlands and Venezuela. The jurisdictional provisions in this treaty must be read in combination with the ICSID Convention. The Tribunal's jurisdiction over the dispute as defined in Article 9(3) of the bilateral investment treaty is without prejudice to the Tribunal's power to address procedural issues that may arise in the course of the arbitration, which is governed by Article 44 of the ICSID Convention to which Article 9(1) of the bilateral investment treaty refers.
This Tribunal is not the first to be confronted with the issue of the representation of Venezuela in ICSID arbitration and annulment proceedings. Most if not all earlier decisions have accorded a central role to the maintenance of the status quo, laying the burden of proof with the person or body seeking to change the existing representation.10 This line of reasoning has been accorded limited attention by the Participants, though it is inherent in De Jesús's position that the representation of Venezuela must remain unchanged. For the reasons set out hereinafter, it does provide a basis for the Tribunal's decision in the present instance.
The relevance of domestic law to such an analysis depends on international law and recognition when a violation of jus cogens triggers an international obligation of non-recognition. Article 41, §2, of the Articles on the Responsibility of States for Internationally Wrongful Acts ("ARSIWA")16 provides as follows:
"No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40 [a "serious breach by a State of an obligation arising under a peremptory norm of general international law"], nor render aid or assistance in maintaining that situation."
This obligation is quite limited in scope. A peremptory norm of general international law (jus cogens) is defined in Article 53 of the Vienna Convention on the Law of Treaties, for the purposes of the Convention, as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."17 ARSIWA Article 40, §2, further provides that a breach of such an obligation is serious "if it involves a gross or systematic failure by the responsible State to fulfil the obligation." For the provision to apply to the effect that the Tribunal shall not recognize acts performed by a given individual or body with respect to the representation of Venezuela, it would be irrelevant to assert that the authorities adopting these acts have ceased to hold office, lack democratic legitimacy or violate international law. For the provision to apply, the very existence of the authorities adopting these acts, or the acts themselves, should constitute a serious breach of jus cogens, as would be the case of a government of foreign occupation resulting from aggression or an Apartheid regime. That has not been shown to be the case. Neither have the acts of the Maduro government appointing the representatives of Venezuela in the present proceedings been shown to be in violation of jus cogens. Absent such a violation, there is no obligation in international law to set aside the relevant domestic Venezuelan law and the ensuing appointment of De Jesús.
- The Kimberly-Clark tribunal reasoned that "the arbitration cannot proceed with two representatives of one and the same party who are in conflict with each other."21 The Tribunal agrees with this principle. The Tribunal would welcome the constitution of a coordinated or joint defence team by De Jesús and Curtis. It notes that Curtis is in favour of "participation" in the representation of Venezuela if the Tribunal does not stay the proceeding.22 However, this has until now been objected to by De Jesús.23 As long as this objection remains, the Kimberley-Clark tribunal's reasoning also applies in the present instance.
- As concerns the right of defence, Curtis has not argued, and there is no reason to consider, that Mr. Pedroza will not adequately defend Venezuela's rights and interests in the present proceedings. Venezuela's representation by the representative of the Maduro government alone does not raise any specific issue of procedural fairness.
In these circumstances, the Tribunal finds that its previous conclusion that the Respondent shall be represented by Mr. Pedroza remains unaffected by considerations of procedural efficiency and the rights of defence. At the same time, the Tribunal reiterates that it would welcome the constitution of a coordinated or joint defence team by Messrs. Pedroza and Falcón should those gentlemen agree to such.
Finally, Curtis argues in line with earlier statements by Mr. Hernández that "Venezuela can never accept" the validity of an award or decision in this proceeding could have any legitimacy or validity if the duly authorized representatives of the Guaidó Government were to be excluded from the case,24 and that this would render any award in this case "void for lack of jurisdiction."25 The Tribunal interprets these statements as meaning nothing more than that Curtis reserves the Respondent's right to challenge the Tribunal's award on this basis for lack of jurisdiction. For the sake of completeness, the Tribunal observes that pursuant to Article 54.1 of the ICSID Convention, each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. Therefore, unless the award in these proceedings be annulled by an ICSID ad hoc Committee, no Contracting State has the right to negate its legitimacy or validity. By virtue of ICSID Convention Article 72, that remains applicable to the recognition and enforcement of the award to be rendered by this Tribunal, Venezuela's denunciation of the Convention notwithstanding.
(i) The Preliminary Issue is properly before this Tribunal.
(ii) The Tribunal has jurisdiction to decide the Preliminary Issue.
(iii) Mr. Enrique Sánchez Falcón's request to represent the Bolivarian Republic of Venezuela in this proceeding is denied, as well as the request to suspend the proceeding. For the avoidance of doubt, Mr. José Ignacio Hernández's requests contained in his letters of March and April 2019 in so far as they pertain to this resubmission proceeding are also denied.
(iv) The Resubmission Proceeding shall continue with the Bolivarian Republic of Venezuela represented by Mr. Reinaldo Enrique Muñoz Pedroza or his successors or substitutes.
(v) Messrs. José Ignacio Hernández and Enrique Sánchez Falcón shall bear their own costs and expenses.
(vi) All other questions concerning the costs and expenses of the Tribunal and of the Parties in connection with this proceeding on the representation of the Bolivarian Republic of Venezuela are reserved for subsequent determination.
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