"... this Decision is limited to answer the question whether the Tribunal has the power which the Respondent would have it exercised. The Decision does not address the grounds the Respondent invokes for reconsidering the part of the Decision which it challenges and the evidence which it sees as supporting those grounds. The power must be shown to exist before it can be exercised" (para. 9)
a - whether prima facie, these grounds are possibly applicable to the underlying contended facts, if proven; and, in the affirmative,
b - whether these grounds legally found or justify the exercise of the power requested in that particular case.
1 - Does the Tribunal have before it sufficient elements, or evidence prima facie of a possible material error in its establishment of facts; and if the answer is positive,
2 - does the Tribunal have a general power of reconsideration of partial decisions while the case is still pending before it, that cover inter alia (or as a specific application) reconsideration on the grounds invoked in casu, but if the answer is negative,
3 - does the Tribunal all the same have a specific power of reconsideration covering the particular legal ground invoked in casu ?
These three questions are addressed, in that order below.
a - that the offer of compensation made by Venezuela before nationalization, and submitted to the Tribunal by the Claimants, for the two big projects of Petrozuata and Hamaca was derisory and far below the standard required by the BIT (a presumption I need not address here, but which I rebut at length in my dissenting opinion from the 3 September 2013 Majority Decision); and
b - that Venezuela had not budged from that position or made any other offer in the negotiations that preceded or followed the nationalization and continued even after the beginning of this arbitration in November 2007 and which went on well into 2008.
a - the first, already mentioned, is that "The Tribunal does not have before it any evidence at all of the proposals made by Venezuela in this period"6. It thus brushes aside and gives no credence at all to the general statements of Dr. Mommer in his written and oral testimonies to the effect that Venezuela was always willing to pay just compensation, attributing the failure of the negotiations to the exaggerated and intransigent demands of the Claimants.
b - The Majority decision also brushes aside any legal significance and effect of the Confidentiality agreement when invoked by Dr. Mommer in his oral testimony to abstain from providing the Tribunal with any information about the course of the negotiations, necessarily including whatever offers made by Venezuela during that period; and this by adding immediately after the first sentence of paragraph 400, quoted above (under a), the following :
"It [the Tribunal] observes that whatever confidentiality agreement there was has not prevented the submission to it by the Respondent of the ConocoPhillips proposals of June and August 2007"7.
"According to Goff, CP has two basic claims : a claim for compensation for its expropriated assets and a claim based on the progressive expropriation of the underlying assets. Goff stated the BRV has accepted that fair market value is the standard for the first claim. He said the BRV has moved away from using book value as the standard for compensation and has agreed on a fair market methodology with discount rates for computing the compensation for the expropriated assets. However, given the recent increase in oil prices, the fair market value of the assets have increased. As for the claim based on the progressive expropriation of the assets, Goff said the claim was on top of the fair market value of the assets. CP has proposed a settlement number and the BRV appears to be open to it. Goff added that CP also plans on increasing the settlement number for the second claim due to recent increases in oil prices".
1 - that Venezuela had moved from its initial position on the methodology of evaluating the current market value, from "book value" to a "discounted (cash flow) rate" methodology;
2 - that ConocoPillips was prosecuting two claims of compensation the first for its expropriated assets and the second for "progressive expropriations", i.e. what is sometimes called "creeping nationalization", in casu changes in the tax and royalty regime. (This latter claim was dismissed by this Tribunal in its Decision of 3 September 2013, as unfounded either in the BIT or in general international law);
3 - that for both claims ConocoPhillips was claiming compensation reflecting automatically any post-nationalization increases in the price of oil.
"1) Those decisions in accordance with practice are to be incorporated in the Award.
2) It is established as a matter of principle and practice that such decisions that resolve points of dispute between the Parties have res judicata effect"12.
These assertions call for close scrutiny, as they go to the very nature and specificity of the ICSID procedural system. The first needs to be qualified, whilst the second takes as given what it is supposed to prove.
"the ICSID Arbitration Rules contain no provisions which permit or even contemplate "Partial" or "Interim" awards, indeed, it seemed to the Tribunal that the Rules contemplated only one, Final Award"15.
"...not all ICSID decisions are awards, let alone final awards. Pursuant to Convention Article 48(3), an award is final if it disposes of all questions put to the tribunal"16.
This means by necessary implication that all interlocutory decisions other than the all comprehensive Award, are not final, nor consequently res judicata. However, some of those who take the position that only the comprehensive Award is final maintain that interlocutory decisions are not open for reconsideration by the same Tribunal before the award.. A perfect example of blowing hot and cold at the same time, and the telling proof of the fallacy of the thesis of the finality of interlocutory decisions in ICSID as well as the second assertion of the Majority.
All the same, I dare presume, with all due respect to the eminent members of that Tribunal, that if they become aware, before the final award, that they have made a crucial error of fact or of law that led them astray in their findings, or of new evidence or changing circumstances to the same effect, they may not hesitate to revisit their decisions, for reasons further developed below.
III - Is the Tribunal possessed of a Specific Power Covering the Particular Legal Ground invoked in casu ?
"...the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’ (Northern Cameroons, Judgment, I.C.J. Reports 1963,at p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial function may be safeguarded"21.
"I think it clear that where the Commission has misinterpreted the evidence, or made a mistake in calculation, or where its decision does not follow its fact findings, or where in any other respect the decision does not comport with the record as made, or where the decision involves a material error of law, the Commission not only has power, but is under the duty upon a proper showing, to reopen and correct a decision to accord with the facts and the applicable legal rules"23.
"The Court concedes that neither the Convention, nor the Rules of Court expressly provide a reopening of proceedings before the Court. However, in exceptional circumstances, where there has been a manifest error of fact or in the assessment of the relevant admissibility requirements, the Court does have, in the interest of justice, the inherent power to re-open a case which had been declared inadmissible and to rectify those errors"24.
"Even though it is often said that a tribunal is functus officio with respect to any issue that it has resolved on the merits by partial award, nevertheless - in a few cases - tribunals have held that they may revisit such issues when, for example, they believe a change in circumstances or in the factual record renders the initial award untenable"25.
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