Decision in investment arbitration is a general term which refers to the position statement of an arbitral tribunal in relation to a question. Decisions may concern any type of question relating to the conduct of the arbitration or the resolution of the dispute. Some decisions, like awards, require a more formal adoption procedure than others. See also Elements of an Award, on Discontinuance of Proceedings, and Stay of Enforcement.
However, in ICSID arbitration, it is generally accepted that a distinction exists between decisions and awards.2 In a nutshell: “The issuance of a decision signals the continuation of a proceeding, whereas an award marks the end of a proceeding”.3 To that extent, a decision rejecting jurisdiction is considered as an award.4 The main difference in ICSID Arbitration between awards and decisions is that only awards may be subject to a post-award remedy.
Tanzania Electric Supply Company Limited v. Independent Power Tanzania Limited, ICSID Case No. ARB/98/8, Final Award, 12 July 2001, para. 32; Landesbank Baden-Württemberg, HSH Nordbank AG, Landesbank Hessen-Thüringen Girozentrale and Norddeutsche Landesbank-Girozentrale v. Kingdom of Spain, ICSID Case No. ARB/15/45, Decision on the Respondent's Application for Reconsideration of the Tribunal's Decision of 25 February 2019 Regarding the "Intra-EU" Jurisdictional Objection, 11 November 2021, para. 29; Infracapital F1 S.à r.l. and Infracapital Solar B.V. v. Kingdom of Spain, ICSID Case No. ARB/16/18, Decision on Respondent’s Second Request for Reconsideration, 19 August 2022, para. 31.
It must be understood that “the end of a proceeding” does not apply to ICSID post-award remedies.
All the main arbitration rules in investment law stipulate that an award must state the reasons on which it the award is based. One exception to this condition is the case of awards by consent i.e. awards which record a settlement agreement.5
For an example of Awards by consent in ICSID Arbitration:
The parties can request a Tribunal (or a Tribunal can take the initiative) to decide on a jurisdiction objection before issuing a decision on the merits of the claim.6 To that end, the Tribunal can decide to rule by way of separate preliminary decisions, or to rule on the objection as well as the award on merits altogether.
In ICSID arbitration, the decision upholding jurisdiction is not an award, but can be later incorporated in an award. For example, Schreuer notes that “[t]he terminology of Tribunals in denominating their interim decisions on jurisdiction has not been uniform […] Tribunals have at times called preliminary decisions on jurisdiction ‘Award on Jurisdiction’, ‘Decisions on Objections to jurisdiction’, [and] ‘interim award'”.8 It should also be noted that ICSID decisions are taken by a majority vote.9
Schreuer, C., Malintoppi, L., Reinisch, A. and Sinclair, A., The ICSID Convention: A Commentary, 2009, p. 1600, paras. 71-72.
The ICSID Convention contains provisions for the disqualification of an arbitrator in Article 14(1) and Article 57. See also Disqualification of Arbitrator. The decision on disqualification is made by the unchallenged members of the Tribunal. ICSID tribunals have held different positions regarding the disqualification threshold.12 The ICSID Secretariat has listed an important number of decisions on this subject.13
Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Decision on the Proposal of Disqualify an Arbitrator, 24 June 1982; Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic (II), ICSID Case No. ARB/03/19, Decision on the Proposal of Disqualification of Gabrielle Kauffman-Kohler, 22 October 2007, para. 28.
In ICSID arbitration, procedural orders are addressed by Arbitration Rule 19: “The Tribunal shall make the orders required for the conduct of the proceeding”. Procedural orders issued by a tribunal may relate to the following matters:14
Rules governing procedural orders can also be found in Article 22 of ICC Arbitration Rules.
See also Provisional Measures. In ICSID arbitration, parties to a dispute can request the Tribunal take a decision on Provisional Measures provided that certain conditions are met. These conditions are stated by Rule 39(1) of ICSID Arbitration Rules and Article 47 of The ICSID Convention. It should be noted that before it can recommend Provisional Measures, the Tribunal must be satisfied that it has “prima facie jurisdiction over the parties and the dispute submitted to it”.15
With respect to decisions on provisional measures in other arbitration rules, relevant provisions include:
See Claim Manifestly without Legal Merits. Introduced from 10 April 2006, Rule 41(5) of the ICSID Arbitration Rules allows a party to raise an objection if the claim manifestly lacks legal merit. This objection must be filed within 30 days after the constitution of the Tribunal. This procedure “is intended to create the possibility to dismiss at an early stage cases which are clearly unmeritorious”.17 Practitioners should note that a live list of decisions on clear lack of legal merit is provided by the ICSID Secretariat.18
See also Discontinuance of the Proceedings. Several reasons may explain the Discontinuance of the Proceedings. In ICSID arbitration, three scenarios of discontinuance exist following Rule 43, Rule 44, and Rule 45 of the ICSID Arbitration Rules. Additionally, it should be noted that discontinuance may also occur if the parties fail to pay the advances to meet the costs of the proceedings.19 In ICSID arbitration, a request of discontinuance is recorded in an order taking note of the discontinuance,20 or in an order of the Secretary-General taking note of the discontinuance if no tribunal has been constituted.21
With regard to other arbitration rules and discontinuance decisions, relevant provisions include:
ICSID, Arbitration Rules, 2006, Rules 43-45; ICSID, Administrative and Financial Regulation, 2006, Article 14(3)(d); Asset Recovery Trust S.A v. Argentina Republic, Case ARB/05/11, Order for the Discontinuance of the Proceeding for Lack of Payment of the Required Advances issued by the Tribunal, pursuant to ICSID Administrative and Financial regulation 14(3)(d), 27 November 2012; Branimir Mensik v. Slovak Republic, ICSID Case No ARB/06/9, Order for the Discontinuance of the Proceeding issued by the Tribunal, pursuant to Regulation 14(3)(d) of the ICSID Administrative and Financial Regulations, 9 December 2008.
Görkem Inşaat Sanayi ve Ticaret Limited Şirketi v. Turkmenistan, ICSID Case No. ARB/16/30, Order Taking Note of the Discontinuance of the Proceeding, 12 December 2017, para. 10; AngloGold Ashanti (Ghana) Limited v. Republic of Ghana, ICSID Case No. ARB/16/15, Order of the Tribunal Taking Note of the Discontinuance of the Proceeding, 7 August 2018, paras. 37-38.
TransCanada Corporation and TransCanada PipeLines Limited v. United States of America, ICSID Case No. ARB/16/21, Order of the Secretary-General Taking Note of the Discontinuance of the Proceeding, 24 March 2017, paras. 10, 12; Nusa Tenggara Partnership B.V. and PT Newmont Nusa Tenggara v. Republic of Indonesia, ICSID Case No. ARB/14/15, Order taking note of the discontinuance of the proceeding issued by the Secretary-General, pursuant to ICSID Arbitration Rule 44, 29 August 2014, paras. 5-7.
In relation to ICSID arbitration, several post-award remedies are available to the parties. Indeed, the parties may request a:
See Stay of enforcement of ICSID awards, and Stay of enforcement of non-ICSID awards. In ICSID arbitration, Rule 54 of the Arbitration Rules allows a party to request a stay of enforcement of the award25 if the party applies for the interpretation, revision, or annulment of the award.26 A stay of enforcement decision postpones or halt the execution of an award. All decisions according a stay of enforcement terminate automatically on the date on which a final decision is rendered.27
Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/13/1, Decision on the Stay of Enforcement of the Award, 22 February 2018, para. 136; Perenco Ecuador Limited v. Republic of Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on the Stay of Enforcement of the Award, 21 February 2020, para. 80.
See Annulment Tribunal. ICSID awards may be partially or totally annulled in accordance with Article 52 of the ICSID Convention and Rules 50 and 52 of ICSID Arbitration Rules.28 The annulment decision29 is not an award. The Committee’s decision on annulment may uphold an application in respect of a part of the award or the entire award or reject the application.
Binder, C., Kriebaum, U., Reinisch, A. and Wittich, S., International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, 2009, p. 970.
Cleis, M.N., Disqualification Decisions under the ICSID Convention and Arbitration Rules, in The Independence and Impartiality of ICSID Arbitrators: Current Case Law, Alternative Approaches, and Improvement suggestions, 2017.
Dautaj, Y., The Binding Nature of Provisional “Recommendations” in ICSID Arbitration, Kluwer Arbitration Blog, 2018.
Schreuer, C., Malintoppi L., Reinisch A. and Sinclair A., The ICSID Convention: A Commentary, 2009, p. 1600.
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