First, paragraph 4 of the First Annulment Decision’s dispositif
is also to the effect that "the body of the Award but for Section VIII" is res judicata.
As the Decision correctly notes, this confers res judicata
effect to paragraphs 611 and 612 of the First Award, where the First Tribunal considered that it could have regard to facts preceding the entry into force of the BIT as an element of context in deciding on the violation of the BIT by acts postdating its entry into force. This statement was different from that contained in paragraph 688 of the First Award. Yet, the Resubmission Tribunal appears to have inferred
from paragraphs 611 and 612 that the contents of paragraph 688 was also res judicata.
It presented as "its interpretation of the res judicata
portions of the First Award" inter alia
that the arguments related to expropriation may not be taken into consideration except insofar as they constitute factual background,5
and that the "consequence of this interpretation of the First Award" was that the assessment of damage based on the expropriation should be rejected as "inconsistent with the First Award".6
For the reasons explained above, I regard this reasoning as incompatible with the First Annulment Decision. In addition, when it comes to interpreting the First Award’s subsisting portions rather than the First Annulment Decision, I do not agree that the contents of paragraph 688 can be endowed with res judicata
effect on the basis of an inference from paragraphs 611 and 612, which contain general statements that are not part of the First Award’s dispositif
nor a necessary underpinning of a relevant part of the dispositif
(a "motif decisoire"
However, this does not turn the Resubmission Tribunal’s decision into a manifest
excess of powers within the meaning of Article 52(1)(b) of the ICSID Convention
. Its deficiencies notwithstanding, the Resubmission Tribunal’s reasoning finds a partial basis in the First Annulment Decision’s unreserved finding that "the body of the Award but for Section VIII" is res judicata.
As a consequence, the excess of powers is not obvious, and therefore not manifest.