a. The Committee "lift the provisional stay of enforcement, reject Claimants' Stay Request, confirm expressly that the Resubmission Award remains binding unless and until it is annulled, and order Claimants to bear all of the costs and legal fees that Chile has incurred in connection with Claimants' Stay Request."2
b. The Applicants "place the USD 182,472.79 that they owe to Chile (pursuant to the Resubmission Award and Rectification Decision) in an interest-bearing escrow account, with all such funds to be released to Chile unless the costs-related part of the Resubmission Award is ultimately annulled by the Committee."3
c. The Applicants "be ordered to request a temporary suspension of the UNCITRAL Proceeding."4
Once the ad hoc Committee is constituted, the Party seeking a stay of enforcement must direct its request to the Committee. If a provisional stay has been obtained, the Party that wishes to have the stay continued must direct a request to that effect to the ad hoc Committee. Otherwise, the stay will be terminated automatically (Arbitration Rule 54(2)).19
In Klockner I, the Award had rejected both the claim and the counter-claim. Consequently, there was no opportunity for a stay of enforcement. In Vivendi I, the Tribunal had declined to rule on the merits of the claims arising out of the conduct of the Province of Tucuman, so there was no part of the Award's dispositif that warranted a stay. In Soufraki v. UAE, the Tribunal had ruled that it lacked jurisdiction so, again, there was no call for a stay of enforcement. Likewise, in Lucchetti v. Peru, it was the Claimant that sought annulment of an Award that had concluded that the Tribunal lacked jurisdiction. In such circumstances, a stay of enforcement is inappropriate.
[t]he aforementioned provisions of the ICSID Convention and the ICSID Arbitration Rules lead this ad hoc Committee to a fundamental conclusion, set forth at the outset, that the continuation of the stay of enforcement in the ICSID system is far from automatic. ICSID Convention Article 52(5) provides that the stay shall continue if an ad hoc committee considers that "the circumstances so require." Said article does not use other less categorical verbs, such as "recommend," "deserve," "justify" or similar words, but resorts to the imperative verb "require."26
1) That Ms Coral Pey Grebe cannot be regarded as a claimant in her own right in these resubmission proceedings;
2) That, as has already been indicated by the First Tribunal, its formal recognition of the Claimants' rights and its finding that they were the victims of a denial of justice constitutes in itself a form of satisfaction under international law for the Respondent's breach of Article 4 of the BIT;
3) That the Claimants, bearing the relevant burden of proof, have failed to prove any further quantifiable injury to themselves caused by the breach of Article 4 as found by the First Tribunal in its Award;
4) That the Tribunal cannot therefore make any award to the Claimants of financial compensation on this account;
5) That the Claimants' subsidiary claim on the basis of unjust enrichment is without legal foundation;
6) That there are no grounds in the circumstances of the case for the award of moral damages either to Mr Pey Casado or to the Foundation;
7) That the arbitration costs of these resubmission proceedings are to be shared in the proportion of three quarters to be borne by the Claimants and one quarter by the Respondent, with the result that the Claimants shall reimburse to the Respondent the sum of US$159,509.43;
8) That all other claims are dismissed.34
(a) Paragraphs 61, 66, and 198, and paragraph 2 of the dispositif, of the Resubmission Award are rectified as set out in paragraphs 52, 53, 54, and 55 above.
(b) The costs incurred by the Centre in respect to the Rectification Proceedings, including the costs resulting from the associated challenges to Sir Franklin Berman and Mr Veeder, shall be borne by the Claimants and the Claimants shall therefore reimburse to the Respondent the sum of US$ 22,963.36, in addition to the amount specified in paragraph 255 of the Resubmission Award. The Tribunal makes no further order as to costs.35
The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
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.
Turning first to the Republic's Request that the stay of enforcement of the Award should be continued pending its decision on the Application, the Committee notes that, although Article 52(5) of the Convention uses the verb "may", thereby conveying an element of discretion to the Committee, a review of the many decisions by ad hoc annulment committees since the MINE decision in 1988 leads the Committee to the conclusion that, absent unusual circumstances, the granting of a stay of enforcement pending the outcome of the annulment proceedings has now become almost automatic.
In the present case, the Committee is satisfied that the Republic has discharged its burden of proving that there are no unusual circumstances and that all the factors which the Republic has referred to support the continuation of the stay of enforcement of the Award pending the Committee's decision and it so rules.39
We heard Claimant's counsel say that suspension--that the stays are systematically granted except for exceptional circumstances, and while it's true that for a long time stays were, in fact, granted routinely, if you focus only on the jurisprudence of the last 5 or 10 years, you will find that actually a majority of the decisions have, in fact, either lifted the stay or have imposed conditions.40
The Tribunal should also interpolate at this point that part of the argument addressed to it by the Claimants in these resubmission proceedings was to the effect that the actions of the Respondent, since the handing down of the First Award, constituted a new denial of justice for which compensation is due, and can be awarded in these resubmission proceedings. This is an argument that the Tribunal must reject outright. The reason is not only that allegations of that kind would have to be subjected to a proper process of evidence and proof before they could properly come to decision in an arbitral process (which indeed they would); it is quite simply that the entire argument falls plainly outside the jurisdiction of the present Tribunal, which (as already indicated) is limited, under Article 52 of the ICSID Convention and Rule 55 of the ICSID Arbitration Rules, exclusively to 'the dispute' or such parts of it as remain in being after the annulment. That can only be taken to refer to 'the dispute' that had been submitted to arbitration in the first place, the critical date for which was the Claimants' original request for arbitration. Issues arising between the Parties after that date - and still more so issues arising out of post-Award conduct - cannot by any stretch of the imagination fall within the scope of resubmission proceedings under the provisions cited above, and the Tribunal sees no need to say more about the matter in this Award.43
a. The stay of enforcement of paragraphs 1 to 5 and 7 of the dispositif of the Resubmission Award and paragraph 1 of the dispositif of the decision on rectification is lifted;
b. The stay of enforcement of paragraph 6 of the dispositif of the Resubmission Award and paragraph 2 of the dispositif of the decision on rectification is unconditionally continued;
c. The decision on the allocation of costs is reserved until the final decision on the Annulment Application; and
d. All other requests are rejected.
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