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Decision on the Respondent’s Request for Clarification regarding the Decision on the Stay of the Enforcement of the Award (Second Annulment Proceeding)

I. PROCEDURAL HISTORY

1.
On 1 July 2019, the Respondent filed a request for clarification regarding the decision on the stay of the enforcement of the award issued on 15 March 2018 (the "Stay Decision" and the "Request for Clarification").1
2.
The Respondent noted that in "the dispositif the Committee [...] stated that ‘[t]he stay of enforcement of paragraphs 1 to 5 and 7 of the dispositif of the Resubmission Award [...] is lifted and that "[t]he stay of enforcement of paragraph 6 of the dispositif of the Resubmission Award [...] is unconditionally continued.’ Analogous text also appeared in paragraphs 62 and 63 of the Decision. Nevertheless, paragraphs 82 and 86 suggest a different conclusion" (emphasis in the original). Accordingly, Chile requested that the Committee "provide clarity on the above."2
3.
On 8 July 2019, the Applicants submitted their comments on the Request for Clarification and requested that the Respondent be ordered to pay the costs incurred in connection with the request.

II. ANALYSIS

4.
In paragraph 52 of the Stay Decision, the Committee found that under Article 53(1) of the ICSID Convention annulment committees can only stay the "enforcement of the award" and not its "binding force."3
5.
Accordingly, in paragraph 60 of the Stay Decision, the Committee noted that "the decisive question" in order to decide whether the Resubmission Award "lends itself to a stay of enforcement [...] is whether the award has conferred rights to the Respondent that it could enforce against the Applicants if the Respondent were not hindered by a stay."4
6.
In paragraph 62 of the Stay Decision, the Committee found that "except for the decisions on costs, none of the [...] determinations" in the Resubmission Award and in the rectification decision "confer rights to the Respondent that it could enforce." Accordingly, in paragraph 82 of the Stay Decision, the Committee clarified that it "decides to continue the stay of the enforcement regarding the costs awarded by the Tribunal."5
7.
In light of these findings, it appears clear that, in paragraphs 62, 63 and 91 of the Stay Decision, the Committee intended to stay the enforcement of the determinations on costs contained in paragraphs 7 of the dispositif of the Resubmission Award and 62(b) of the decision on rectification,6 and not the enforcement of paragraph 6 of the dispositif of the Resubmission Award (that does not confer any "rights to the Respondent that it could enforce").

III. DECISION

8.
Having considered the parties’ submissions, in light of the above the Committee:

a. Confirms that the reference to "paragraphs 1 to 5 and 7 of the dispositif" of the Resubmission Award in paragraphs 62, 63, and 91(a) of the Stay Decision must be read as meaning "paragraphs 1 to 6 and 8 of the dispositf" of the Re submission Award;

b. Confirms that the reference to "paragraph 6 of the dispositif" of the Resubmission Award in paragraph 91(b) of the Stay Decision must be read as meaning "paragraph 7 of the dispositif" of the Resubmission Award; and

c. Reserves the decision on costs until the final decision on the Annulment Application.

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