|Table of Selected Abbreviations / Defined Terms|
|Applicant or Venezuela||The Bolivarian Republic of Venezuela|
|Application||Application for Annulment and Stay of Enforcement of the Award filed on July 7, 2015|
|Arbitration Rules||Rules of Procedure for Arbitration Proceedings of the International Centre for Settlement of Investment Disputes|
|Award||Award rendered on March 10, 2015 in the arbitration proceeding between OI European Group B.V. and the Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/25)|
|BIT or Treaty||Agreement on the Encouragement and Reciprocal Protection of Investments between the Bolivarian Republic of Venezuela and the Kingdom of the Netherlands, which entered into force on November 1, 1993|
|Committee||Ad hoc Committee constituted on October 13, 2015|
|Companies||Fábrica de Vidrios Los Andes, C.A. and Owens-Illinois de Venezuela, C.A.|
|Counter-Memorial on Annulment||Respondent on Annulment’s Counter-Memorial on Annulment dated August 5, 2016|
|DCF||Discounted Cash Flow|
|Favianca v. Venezuela||Arbitration proceeding between Fabrica de Vidrios Los Andes C.A. and Owens-Illinois de Venezuela C.A. and the Bolivarian Republic of Venezuela (ICSID Case No. ARB/12/21)|
|First Econ One Report||First Expert Report of Daniel Flores of Econ One Research, Inc. ("Econ One") submitted by Venezuela on April 7, 2016|
|First Navigant Report||First Expert Report of Brent C. Kaczmarek and Matthew D. Shopp of Navigant Consulting, Inc.|
|("Navigant") submitted by OIEG on August 5, 2016|
|First Stay Decision||Decision on Stay of Enforcement of the Award dated April 4, 2016|
|Hearing on Annulment||Hearing on Annulment held on September 25 and 26, 2017|
|IBA Guidelines||International Bar Association’s Guidelines on Conflicts of Interests in International Arbitration|
|ICSID Convention||Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated March 18, 1965|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|Longreef v. Venezuela||Arbitration proceeding between Longreef Investments A.V.V. and the Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/5)|
|Memorial on Annulment||Applicant’s Memorial on Annulment dated April 7, 2016|
|OIEG or Respondent on Annulment||OI European Group B.V.|
|OILA-[#]||OIEG’s Legal Authority|
|Parties||OIEG and Venezuela|
|Plants or Investment||OIEG’s investment in two of the largest glass production plants in Venezuela|
|Rejoinder on Annulment||OIEG’s Rejoinder on Annulment dated May 25, 2017|
|Reply on Annulment||Applicant’s Reply on Annulment dated September 24, 2016|
|Second Econ One Report||Second Expert Report of Daniel Flores of Econ One submitted by Venezuela on September 24, 2016|
|Second Navigant Report||Second Expert Report of Brent C. Kaczmarek and Matthew D. Shopp of Navigant submitted by OIEG on May 25, 2017|
|Second Stay Decision||Second Decision on Stay of Enforcement of the Award dated September 24, 2018|
|Second Stay Request||Second Request for Stay of Enforcement of the Award dated July 20, 2018|
|Tr. Day [#], [Speaker(s)], [page:line]||Transcript of the Hearing on Annulment|
|Tribunal||The Arbitral Tribunal in the arbitration proceeding between OI European Group B.V. and the Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/25)|
|UNCITRAL Arbitration Rules||Rules of Arbitration of the United Nations Commission on International Trade Law|
|Underlying Arbitration||Arbitration proceeding between OI European Group B.V. and the Bolivarian Republic of Venezuela (ICSID Case No. ARB/11/25)|
|VCLT||Vienna Convention on the Law of the Treaties|
|VLA-[#]||Venezuela’s Legal Authority|
For the Applicant:
Mr. Diego B. Gosis Guglielmino & Asociados, Of Counsel
Ms. Verónica Lavista Guglielmino & Asociados, Of Counsel
Ms. Mariana Lozza Guglielmino & Asociados
Mr. Guillermo Moro Guglielmino & Asociados
Mr. Pablo Parrilla Guglielmino & Asociados
Mr. Patricio Grané Riera Guglielmino & Asociados
Ms. Katherine Sanoja Special Counsel
Mr. Henry Rodríguez Procuraduría General de la República Bolivariana de
Ms. Thayrin Patricia Diaz Diaz Procuraduría General de la República Bolivariana de Venezuela
Mr. Daniel Flores Econ One Research, Inc.
Mr. Ettore Comi Econ One Research, Inc.
Mr. Jordan Heim Econ One Research, Inc.
For the Respondent on Annulment:
Mr. Robert Volterra Volterra Fietta
Mr. Giorgio Mandelli Volterra Fietta
Mr. Alvaro Nistal Volterra Fietta
Mr. Roberto Lupini Volterra Fietta
Mr. José Antonio Muci Muci-Abraham & Asociados
Ms. MaryBeth Wilkinson OI European Group B.V.
Mr. Brent Kaczmarek Navigant Consulting, Inc.
Mr. Matthew Shopp Versant Partners (formerly of Navigant Consulting, Inc.)
Ms. Dawn K. Larson B&B Reporters
Mr. Leandro Iezzi DR Esteno
Ms. Marta Rinaldi DR Esteno
Ms. Silvia Colla
Mr. Daniel Giglio
Mr. Charles H. Roberts
On behalf of the Applicant:
Mr. Daniel Flores Econ One Research, Inc.
On behalf of the Respondent on Annulment:
Mr. Brent Kaczmarek Navigant Consulting, Inc.
Mr. Matthew Shopp Versant Partners (formerly of Navigant Consulting, Inc.)
Opposing OIEG’s "mistaken" invocation of a "duty to interpret the grounds for annulment [...] in a restrictive manner,"7 the Applicant maintains that, when examining the grounds for annulment set out in Article 52 of the ICSID Convention, the Committee should not adopt "an extensive or narrow interpretation."8 In support of this position, the Applicant relies on the decisions in Mitchell v. Congo,9 Wena Hotels v. Egypt,10 and Consortium R.F.C.C. v. Morocco.11 The Applicant also cites the annulment decision in Soufraki v. UAE,12 according to which:
Article 52 of the ICSID Convention must be read in accordance with the principles of treaty interpretation forming part of general international law, which principles insist on neither restrictive nor extensive interpretation, but rather on interpretation in accordance with the object and purpose of the treaty.13
Finally, OIEG maintains that, even when there are grounds for annulment, ad hoc committees have discretion not to annul an award in appropriate cases.23 This is confirmed, not only by the language of Article 52(3) of the ICSID Convention, but also by previous annulment committees and authoritative commentators.24
[t]he function of an ad hoc Committee is either to reject the application for annulment or to annul the award or a part thereof on the basis of the grounds enumerated in Article 52. Its function is not to rule on the merits of the parties’ dispute if it decides to annul, which would be the task of a new Tribunal should either party resubmit the dispute following annulment of the award.31
(1) the grounds listed in Article 52(1) are the only grounds on which an award may be annulled;
(2) annulment is an exceptional and narrowly circumscribed remedy and the role of an ad hoc Committee is limited;
(3) ad hoc Committees are not courts of appeal, annulment is not a remedy against an incorrect decision, and an ad hoc Committee cannot substitute the Tribunal’s determination on the merits for its own;
(4) ad hoc Committees should exercise their discretion not to defeat the object and purpose of the remedy or erode the binding force and finality of awards;
(5) Article 52 should be interpreted in accordance with its object and purpose, neither narrowly nor broadly; and
(6) an ad hoc Committee’s authority to annul is circumscribed by the Article 52 grounds specified in the application for annulment, but an ad hoc Committee has discretion with respect to the extent of an annulment, i.e., either partial or full.33
The applicable legal standard is an objective standard based on a reasonable evaluation of the evidence by a third party. As a consequence, the subjective belief of the party requesting the disqualification is not enough to satisfy the requirements of the Convention.49
[T]he standard applied under Article 14(1) is whether a reasonable third party, with knowledge of all the facts, would consider that there were reasonable grounds for doubting that an arbitrator possessed the requisite qualities of independence and impartiality.50
Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision.52
• In Blue Bank v. Venezuela,53 arbitrator José Maria Alonso was disqualified given that he was a member of a law firm in Madrid, whose New York and Caracas offices were handling an international arbitration against Venezuela addressing similar issues.54
• In Burlington v. Ecuador,55 the Chairman of the ICSID Administrative Council found that a sentence in one of the explanations provided by arbitrator Francisco Orrego Vicuña concerning the alleged conflict would lead a third party making a reasonable evaluation to manifestly perceive an appearance of lack of impartiality.56
• In Perenco v. Ecuador,57 the Secretary-General of the Permanent Court of Arbitration considered that Judge Brower’s words in a journalistic interview created an unfavorable opinion against Ecuador, thus giving a reasonable third party justifiable doubts about his impartiality.58
• In Caratube v. Kazakhstan,59 the other members of the tribunal found that a reasonable third party would find it very likely that, in view of arbitrator Bruno Boesch’s work in a prior case that involved similar parties and facts, his objectivity and open-mindedness regarding the facts and issues to be decided upon would be tainted.60
• In Vito Gallo v. Canada,61 it was established that the conflict of interest created by a professional relationship between an arbitrator and a firm with an interest in the outcome of the dispute could not be side-stepped by the mere fact that this work was not substantial or current.62
• In Alpha Projekt v. Ukraine,63 it was established that failure to disclose the relationship between an arbitrator and a third party with an interest in the dispute could constitute evidence of bias, if the relationship was recent and professional.64
"[d]uring the drafting of the ICSID Convention a proposal similar to what the Applicant is now advancing was rejected."73
In the event that the party only became aware of the grounds for disqualification of the arbitrator after the award was rendered, this newly discovered fact may provide a basis for revision of the award under Article 51 [...] but [...] such a newly discovered fact would not provide a ground of annulment under Article 52(1)(a).80
The standard to be applied [...] is whether a reasonable third person, with knowledge of all the facts, would conclude, on an objective basis, that the challenged arbitrator is manifestly lacking in the ability to act impartially (Article 14 read with Article 57 of the ICSID Convention).88
The allegation that serves as the basis for the challenge, assuming it can be established, must be capable of being related to the present case, that is, that the particular facts must give rise to a manifest lack of independence and impartiality in this case.90
• In Blue Bank v. Venezuela,93 the facts are "starkly different from those in the OIEG Arbitration."94 In contrast with the situation of Mr. Mourre:
(a) Arbitrator Alonso was a partner in Baker McKenzie Madrid; (b) Baker McKenzie New York and Baker McKenzie Caracas represented the claimant in a parallel and similar ICSID proceeding against Venezuela (i.e., in Longreef v. Venezuela)', (c) Arbitrator Alonso likely would have had to decide issues in Blue Bank v. Venezuela relevant to Longreef v. Venezuela', (d) Arbitrator Alonso was a member of Baker McKenzie’s International Arbitration Steering Committee; and (e) Arbitrator Alonso stated that the result in Longreef v. Venezuela could have an effect on his remuneration [...].95
• In Burlington v. Ecuador,96 the Chairman of the ICSID Administrative Council based his decision on the fact that, in the context of a disqualification proceeding, arbitrator Francisco Orrego Vicuña "made ‘allegations about the ethics of counsel for the Republic of Ecuador’ that ‘[did] not serve any purpose in addressing the proposal for disqualification or explaining circumstances relevant to the allegations that the arbitrator manifestly lacks independence or impartiality.’"97 In this case, the Applicant has never argued that Mr. Mourre made those sorts of allegations.98
• In Perenco v. Ecuador,99 the conclusion of the Secretary-General of the Permanent Court of Arbitration was based on a statement made by Judge Brower that expressed unfavorable views on Ecuador and prejudged a fundamental issue of the case. Again, the Applicant has never argued that Mr. Mourre made similar comments. Additionally, in that case the parties had agreed that the challenge would be resolved applying the IBA Guidelines, which set a different standard than the one applicable to this case.100
• In Caratube v. Kazakhstan,101 Mr. Bruno Boesch was disqualified for having acted as arbitrator in prior proceedings that involved similar parties and facts. The Applicant has failed to explain how this decision could support its arguments regarding the effects of Mr. Mourre’s conversations and future relationship with Dechert.102
• In Vito Gallo v. Canada,103 the standard applicable was different since it was a case governed by the UNCITRAL Arbitration Rules. Additionally, there is no factual correlation between the facts in that case and the facts in the present one.104
• In Alpha Projekt v. Ukraine,105 and contrary to the Applicant’s misrepresentation of the decisions and the facts of that case, the deciding arbitrators made clear that nondisclosure cannot make an arbitrator partial or lacking independence, but only the facts or circumstances that were not disclosed. Further, they cited with approval Prof. Schreuer’s statement that even professional contacts between an arbitrator and legal counsel representing one of the parties are not, as a rule, an obstacle to the exercise of independent judgement.106
As a starting point, the Committee undertakes to discern the intent of the Contracting States when agreeing to the specific wording of Article 52(1)(a) stating that "the tribunal was not properly constituted." To that end, the Committee recalls Articles 31 and 32 of the VCLT.115 As is known, Article 31(1) provides that "[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." In accordance with Article 32, interpretation of a treaty also includes recourse to supplementary means of interpretation, "including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 [...]."
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV.
the drafting history of the ICSID Convention indicates that the ground of improper constitution of the Tribunal was intended to cover situations such as a departure from the parties’ agreement on the method of constituting the Tribunal or an arbitrator’s failure to meet the nationality or other requirements for becoming a member of the Tribunal.126
Article 52 does not state that "any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14" will constitute a ground of annulment. Rather, the ground of annulment in Article 52(1)(a) is that the tribunal was "not properly constituted". The procedure for constituting the tribunal, including the procedure for challenging arbitrators on grounds of a manifest lack of the qualities required by Article 14(1), is established by other provisions of the ICSID Convention. If [such] procedures have been properly complied with, the Committee considers that the tribunal will be properly constituted for the purposes of Article 52(1)(a).128
[i]n the event that the party only became aware of the grounds for disqualification of the arbitrator after the award was rendered, this newly discovered fact may provide a basis for revision of the award under Article 51 of the ICSID Convention but, in the Committee’s view, such a newly discovered fact would not provide a ground of annulment under Article 52(1)(a). If no proposal for disqualification is made by a party under Article 57, there will be no decision under Article 58, and in such a case there can [...] be no basis for contending that the tribunal was not properly constituted by reason of any failure to comply with Article 57 or Article 58.130
The Committee has taken careful note of the views of the Azurix Committee [...] that [...] the issue should be raised in proceedings for revision under Article 51 and not for annulment but it respectfully disagrees and prefers the approach of the Vivendi II Committee [...].135
As from May 2015, I will leave Castaldi Mourre & Partners to establish my own individual arbitrator practice. I will also as from then have a consultancy agreement with the law firm of Dechert LLP with the title of Special Counsel. At Dechert, I will only work on specific matters on which Dechert will ask me to participate, and I will have no access whatsoever to databases for matters other than those on which I will work directly. I will have a fixed compensation from Dechert and will not share in its profits or costs. My arbitrator’s work will therefore be completely separate from Dechert. As a consequence, I do not consider me a Dechert lawyer for conflict purposes and I do not see Dechert’s activities, except for the Dechert cases I work on, to be such as to cast any doubt on my independence and impartiality.
I am however informing the parties, for the sake of transparency, that Dechert has within the past year been adverse to the Bolivarian Republic of Venezuela and/or Petroleos de Venezuela in six litigation matters that are entirely unrelated to the present arbitration. I have no additional information on these cases and, for the avoidance of doubt, I of course confirm that I will not participate in any manner in any work of Dechert with respect to the Bolivarian Republic of Venezuela, Petroleos de Venezuela or any other entity related to the Republic of Venezuela.137
• The date of commencement of the negotiations or talks between Mr. Mourre and Dechert LLP that led to the decision to join the law firm under the terms disclosed on 4 March 2015.
• The date on which those negotiations or talks concluded through the agreement disclosed on 4 March 2015.
• The identity of the persons who conducted those negotiations or talks between Mr. Mourre and Dechert LLP and the place or places where they were held.
• A list of the cases in which Dechert LLP acts as attorney or counsel in—domestic or international—arbitration or court proceedings against Latin American States or their instrumentalities, including details on the stage of the proceedings, industry, subject matter, claimant and—in the case of arbitration proceedings—institution conducting the proceedings and names of the members of the tribunal.
• A list of the duties to be performed by Mr. Mourre as from May 2015 in his capacity as ‘Special Counsel’ for Dechert LLP.
• A list of the team of in-house attorneys and external advisors with which Mr. Mourre will work as legal consultant within Dechert LLP, including the organizational chart on the basis of which he will receive his work requests and/or instructions.
• In the event that it has already been discussed in the negotiations with Dechert LLP or thereafter, a list of the cases in which Mr. Mourre will participate, including the industries and subject matters involved.140
Dear Ms. Planells-Valero,
I acknowledge receipt of a communication dated March 9, 2015 from counsel for the Bolivarian Republic of Venezuela in this case. In this communication, the Bolivarian Republic of Venezuela requests additional information regarding my communication to the parties dated March 4, 2015, stating however that my future professional relationship with Dechert LLP "is such as to generate conflicts of interest that are not compatible with the requirements that an arbitrator must meet under the ICSID Convention" (arbitrator’s translation). In this regard, I can only confirm that my professional relationship with this law firm - which will only start on May 1st [sic] - is not such as to generate any conflict since, (i) my arbitrator’s work (including in this case) will be totally separated from Dechert, (ii) I will not be a partner in Dechert and I will have no access whatsoever to their databases, (iii) my relationship with Dechert will be limited to specific matters on which Dechert will ask me to participate, and (iv) I will not have any involvement (and information on) in the cases on which Dechert may act against the Bolivarian Republic of Venezuela or related entities. Therefore, I am unable to provide any information relating to cases in which Dechert may be acting against the Republic or related governmental entities, since I don’t have that information and I don’t have access to it. I can only add that the conversations that led to the establishment of this professional relationship were informally conducted with Dr. Eduardo Silva Romero, with whom I have a longstanding friendship, and were concluded shortly before I made my declaration. Based on this, I can only confirm my total independence and impartiality. I however understand and respect the position of the Bolivarian Republic of Venezuela. In view of the importance attached to all arbitrators having the full confidence of the parties, if the Republic still believes that my statement is not compatible with my duties of independence and impartiality, I will have no choice but to resign as arbitrator in this case.
there is no alternative but to assume that, if Mr. Mourre had also disclosed in this proceeding that he had been hired by the law firm Dechert LLP (as he should have done), then he would have resigned from his position as arbitrator by virtue of his conflicts of interest and, therefore, the Award that is now sought to be annulled would not have been rendered.156
Both procedural avenues presented significant advantages over the course of action the Applicant decided to follow. Not only would pursuit of each avenue have been consistent with the ICSID Convention, but also it would have allowed the issue to be decided by the appropriate adjudicators. If the Applicant had requested either the reopening of the proceeding or the revision of the Award and then submitted a disqualification proposal, that proposal would have been decided by Arbitrators Fernández-Armesto and Orrego Vicuña, as mandated by the provisions of the ICSID Convention that govern the disqualification of arbitrators. Unlike this Committee, those arbitrators would have had access to the entire record of [the] OIEG Arbitration and, by definition, would have been in a better position to assess the potential effect of Arbitrator Mourre’s contacts with Dechert on his ability to exercise independent or impartial judgment in that arbitration.167
In addition to being serious and lamentable, this accusation by the Applicant is completely devoid of factual support or merit. The Applicant has not offered even the semblance of evidence that there was manipulation, alteration or distortion of the dates of the signing of the Award, much less with the malicious intent of depriving the Applicant of its rights under the Convention.194
in a case in which an application for annulment is made on the basis that there were reasonable grounds to doubt the independence or impartiality of one of the arbitrators and no proposal for disqualification had been made before the proceedings were declared closed, the role of an ad hoc committee is to decide the following questions :-
(a) was the right to raise this matter waived because the party concerned had not raised it sufficiently promptly ?
(b) if not, has the party seeking annulment established facts the existence of which would cause a reasonable person, with knowledge of all the facts, to consider that there were reasonable grounds for doubting that an arbitrator possessed the requisite qualities of independence and impartiality ? and
(c) if so, could the lack of impartiality or independence on the part of that arbitrator - assuming for this purpose that the doubts were well-founded - have had a material effect on the award ?219
However, the Applicant further argues that "the need for such excess to be clear does not mean that the committee must not analyze the arguments raised by the parties."231 In this regard, the Applicant relies on the statement of the Pey Casado v. Chile committee that "extensive argumentation and analysis do not exclude the possibility of concluding that there is a manifest excess of power, as long as it is sufficiently clear and serious."232 In similar words, the Caratube v. Kazakhstan233 and Occidental v. Ecuador234 committees also reiterated that the manifest requirement does not prevent that in some cases extensive argumentation and analysis may be required to prove that such a manifest excess of power has in fact occurred.
Manifest means obvious, but this adjective relates only to the excess of powers itself. Establishing the existence of an excess of powers, as distinct from assessing its degree, may not be obvious. If the word "manifest" relates to degree in which the tribunal exceeded its powers, it does not necessarily imply that the error (in our case, the excess of powers) must be detected easily.
In other words, "manifest excess of powers" is not synonymous with "prima facie excess of powers".
Prima facie review would mean that the excess of powers should be apparent on the face of the award, thereby limiting considerably the extent of review. If the review was a prima facie test only, competent drafting of the award would in all likelihood render it immune from subsequent challenge. This cannot be so, especially when jurisdictional issues are concerned. This never was, in any event, the practice of ad hoc committees.236
An ad hoc committee is not a court of appeal and cannot therefore enter, within the bounds of its limited mission, into an analysis of the probative value of the evidence produced by the parties.... Indeed, this is why the Award can only be annulled for a manifest excess of powers. Such lack of jurisdiction should have been evident on the face of the award and should not require the Committee to reconsider the evidence put before the Tribunal.
[a]n ad hoc committee will not annul an award if the tribunal’s approach is reasonable or tenable, even if the committee might have taken a different view on a debatable point of law.257
With respect to a substantive excess of powers, OIEG objects to the Applicant’s claim that a committee should investigate the "manner" in which the proper law was applied and determine whether it was applied "effectively."258 On the contrary, OIEG asserts that "it is well established in ICSID jurisprudence that only the complete failure to identify and apply the correct body of law" - and not an error in the application of law - "can constitute annullable error" under Article 52(1)(b).259
Finally, citing the annulment decision in Soufraki v. UAE, OIEG contends that to qualify as manifest the excess of powers must be both "textually obvious and substantively serious."264 Moreover, relying on the decisions in Sempra v. Argentina and Patrick Mitchell v. Congo, OIEG asserts that in order to find a manifest excess of powers, a committee must do so with "certainty and immediacy, without it being necessary to engage in elaborate analyses of the award."265
Chairman Broches confirmed during the meetings that failure to apply the proper law could amount to an excess of power if the parties had agreed on an applicable law. One proposal suggested adding the "manifestly incorrect application of the law" by the Tribunal as a ground of annulment, but it was defeated by a vote of 17 to 8.272
in determining whether a tribunal has committed a manifest excess of powers, an annulment committee is not empowered to verify whether a tribunal’s jurisdictional analysis or a tribunal’s application of the law was correct, but only whether it was tenable as a matter of law. Even if a committee might have a different view on a debatable issue, it is simply not within its powers to correct a tribunal’s interpretation of the law or assessment of the facts.273
[T]here can be no doubt that the Tribunal "correctly identified the applicable law, and strove to apply it to the facts that it established". In paragraphs 196 to 206 of the Award, the Tribunal established the relevant "proven facts". In paragraphs 207 to 211, it correctly identified the "applicable law". In paragraphs 212 to 232, it methodically and logically analysed the "the concept of investment" and applied its findings on the law to the facts of the case. There is, therefore, "no room for annulment".293
OIEG points out that the Applicant’s arguments regarding the lack of contribution refer to the Tribunal’s failure to refer to specific evidence on the record.296 In this regard, OIEG contends that these arguments from the Applicant "make abundantly clear that its true complaint relates to the Tribunal’s assessment and identification of the evidence on the record."297 Yet, previous annulment committees have confirmed that "neither disagreement with a tribunal’s assessment of the evidence nor an alleged failure to specify the evidence on which a specific finding is based can possibly constitute a manifest excess of powers under Article 52(1)(b) of the ICSID Convention."298
In summary, the Tribunal considers that the effect of the exports that Venvidrio has begun is already duly included in the DCF model and that Claimant has not been able to demonstrate the existence of any additional damage for this reason. The burden of proof being on OIEG, the Tribunal rejects the claim.304
As Messrs Kaczmarek and Shopp explain in the Navigant Report: (a) the discount rate method employed by the Tribunal is wholly consistent with basic economic principles; (b) Dr Flores miscalculated the difference between his preferred discount rate method and the discount rate method employed by the Tribunal; and (c) Dr Flores’s discount rate is inconsistent with the conclusions of both Parties’ experts in the OIEG Arbitration.319
there can be no doubt that the Tribunal "correctly identified the applicable law, and strove to apply it to the facts that it established". In paragraphs 196 to 206 of the Award, the Tribunal established the relevant "proven facts". In paragraphs 207 to 211, it correctly identified the "applicable law". In paragraphs 212 to 232, it methodically and logically analysed the "the concept of investment" and applied its findings on the law to the facts of the case.321
It is difficult to imagine a rule of procedure more fundamental than the rule that a case must be heard by an independent and impartial tribunal. The Committee accordingly considers that, in principle, an ad hoc committee can examine under Article 52(1)(d) [...] allegations that the lack of independence and impartiality of an arbitrator meant that there was a serious departure from a fundamental rule of procedure in the arbitration as a whole.348
This alteration to and distortion of the dates shows not only that the Republic was unable to challenge arbitrator Mourre due to the fact that the proceeding was closed and the Award was signed, but also that the dates of closure and signature were manipulated and distorted to preclude the exercise of the fundamental right of the Republic referred to above, which warrants the annulment of the Award.387
The award (including any individual or dissenting opinion) shall be drawn up and signed within 120 days after closure of the proceeding. The Tribunal may, however, extend this period by a further 60 days if it would otherwise be unable to draw up the award.
The Committee wishes to point out that it cannot determine whether the evidence that was ignored by the Tribunal would have had an impact on the Award or not. What can be ascertained at the annulment stage is that the Tribunal failed to observe evidence which at least had the potential to be relevant to the final outcome of the case.459
Article 52(1)(e) of the ICSID Convention provides that an award may be annulled if it has "failed to state the reasons on which it is based." ICSID ad hoc committees have considered that annulment under this ground requires a failure by the tribunal to comply with its duty of rendering an award that allows an informed reader to comprehend and follow its reasoning.487
it is not possible to identify any international law rule stating that "due process" may be affected by an alleged defect in an administrative act within the framework of an expropriation, without evidence having been submitted that there were no judicial remedies for the purportedly affected party to complain about such defect or that such party actually attempted—at least—to make use of such remedies or demonstrated that any attempt to do so would have been futile.501
it is a proven fact that the Claimant did not resort to any of the judicial remedies that were available with the aim of challenging any potential defect that it deemed to exist in any of the administrative acts of the Republic relating to the expropriation and because the general definition of the guarantee of due process provided by the Tribunal in the Award refers to the "minimum regulatory standard commonly accepted" in relation to the availability of appropriate judicial proceedings to protect any right that a person might deem to be affected by a State act.502
The Award stated that the DCF valuation it calculated was "confirmed" by two "sanity checks": (i) pricing multiples and (ii) the Companies’ share of the OI Group (the parent of the Companies). In fact, the Award’s "sanity checks" are contradicted by its own reasoning elsewhere in the Award. Had the "sanity checks" been properly performed, they would have shown that the Award’s DCF valuation of the Companies was overstated.505
[...] the Award found that OIEG was not entitled to unfettered access to the official exchange rate and therefore could not claim damages for not being able to exchange bolivars at that rate.
However, the Award took a different position with respect to the U.S. dollar value of bolivar denominated "excess cash balances" that the Companies held on the valuation date. For those cash balances, [...] the Award assumed that OIEG would have been able to convert its excess cash from bolivars into U.S. dollars using the official exchange rate, which is inconsistent with the Award’s earlier determination that OIEG was not entitled and had not been able to do so in the past. The Award did not state any reason for this inconsistent treatment of the value of bolivars.509