I. Grounds for annulment of ICSID awards
Article 52 of the ICSID Convention sets forth the following grounds on which an award may be annulled: (a) the improper constitution of the Tribunal; (b) manifest excess of powers by the Tribunal; (c) corruption on the part of a Tribunal member; (d) a serious departure from a fundamental rule of procedure; and (e) failure to state reasons.
A. Exhaustive nature of Article 52(1) of the ICSID Convention
Annulment proceedings are a limited and exceptional recourse,1 safeguarding against the violation of fundamental principles of law which govern the Tribunal’s proceedings.2 Therefore, the list of annulment grounds included in Article 52 is exhaustive.3 An ad hoc Committee may only annul an award based on one or more of such grounds, but not on any additional ones.4 See also Annulment of ICSID awards.
B. Interpretation of grounds for annulment
The grounds listed in Article 52 shall be interpreted pursuant to Article 31 of the Vienna Convention on the Law of Treaties, e. in good faith, in accordance with the ordinary meaning of the ICSID Convention’s terms in their context and in light of its object and purpose,5 neither extensively nor restrictively.6
In practice, arbitral tribunals and other legal authorities have interpreted each of the annulment grounds as follows (specific analysis and case law on each ground is available via the below hyperlinked cross-references):
II. Practical effects of Article 52 of the ICSID Convention
A. Use of several grounds
B. Classification of grounds
C. Burden of proof
D. Scope of the annulment request
A party may not submit new factual or legal arguments when invoking one or several annulment grounds.21 The submission of new evidence to support any of the annulment grounds is also not allowed.22
E. Scope of the examination of grounds for annulment by an ad hoc Committee
Each annulment request is decided by a three-member ad hoc Committee appointed for that purpose from the ICSID Panel of Arbitrators by the Chairman of the Administrative Council.23
Each ad hoc Committee has discretion regarding the extent of the annulment based on any of the grounds of Article 52.24
Ad hoc Committees are not bound to annul an award if one of the grounds for annulment is present.25 Rather, they may exercise their authority in weighing the gravity of the circumstances which constitute the ground for annulment and the materiality of their effect upon the outcome of the case.26
An ad hoc Committee may examine the facts of the case, but only insofar as necessary to evaluate whether the invoked grounds of annulment have been substantiated.27 See further Ad hoc committees and their powers.
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