"... For the foregoing reasons, the Tribunal decides as follows:
a. It does not have jurisdiction under Article 22 of the Investment Law and accordingly the claims by ConocoPhillips Company are dismissed; and
b. It has jurisdiction under Article 9 of the Bilateral Investment Treaty over:
i. the claims brought by ConocoPhillips Petrozuata BV, ConocoPhilips Hamaca BV and ConocoPhillips Gulf of Paria BV in respect of (1) the increase in the income tax rate which came into effect on 1 January 2007 and (2) the expropriation or migration; and
ii. the claims brought by ConocoPhillips Petrozuata BV and ConocoPhillips Gulf of Paria BV in respect of the increase in the extraction tax in effect from 24 May 2006.
c. All claims based on a breach of Article 3 of the BIT are rejected.
d. The Respondent breached its obligation to negotiate in good faith for compensation for its taking of the ConocoPhillips assets in the three projects on the basis of market value as required by Article 6(c) of the BIT.
e. The date of valuation of the ConocoPhillips assets is the date of the Award.
f. All other claims based on a breach of Article 6(c) of the BIT are rejected.
g. All other questions, including those concerning the costs and expenses of the Tribunal and the costs of the parties' determination are reserved for future determination.
Items (a), (b)(i), (b)(ii), (c), (f) and (g) above have been decided unanimously by the Tribunal. Items (d) and (e) have been decided by majority, with Arbitrator Georges Abi-Saab, dissenting."
Convention, Article 43
Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings,
(a) call upon the parties to produce documents or other evidence, and
(b) visit the scene connected with the dispute, and conduct such inquiries there as it may deem appropriate.
Convention, Article 44
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
Convention, Article 53
(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention.
Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section, "award" shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52. Arbitration Rules, Rule 38(2)
(2) Exceptionally, the Tribunal may, before the award has been rendered, reopen the proceeding on the ground that new evidence is forthcoming of such a nature as to constitute a decisive factor, or that there is a vital need for clarification on certain specific points.
"Closure of the proceeding is considered to be without prejudice to the discretionary power of the Tribunal to re-open it on its own initiative or on motion of either party. However, paragraph (2) emphasises the exceptional character of re-opening. Since the new evidence, or the need for clarification, may require both further written and further oral procedures, it is the ‘proceeding' that may be re-opened."4
That is not the result of accident or oversight. Unlike other systems of international arbitration, the drafters of the Convention consciously chose to permit only one instrument called an award and to defer any remedies until after its issuance.
The Convention's drafters expressly contemplated, for example, that Tribunals could issue decisions on jurisdictions prior to the award. They just as consciously rejected proposals to permit applications for the annulment or challenge of jurisdictional decisions. Among the reasons for this deliberate choice was to avoid the "unfortunate" circumstance of "open[ing] endless possibilities of one Party to frustrate or delay the proceedings". Thus decisions - be they on jurisdiction or the merits - are meant finally to settle a subset of issues that are later incorporated in the final award, and may then, and only then, be subject to review as part of the award.
The drafters of the Convention themselves stressed "[T]he binding character of any decision by [an arbitral tribunal] on preliminary questions or merits."16
(i) in paragraph 262 "concludes that it does not have jurisdiction under Article 22 of the Investment Law"; one consequence is that it does not have jurisdiction over certain tax matters (para. 263);
(ii) in paragraphs 281, 286 and 289 finds that certain objections to jurisdiction under the BIT fail (see also para. 290);
(iii) in paragraph 332 "concludes" that certain measures do not fall within the scope of Article 3 of the BIT;
(iv) in paragraph 343 "concludes" that if the taking was unlawful, the date of valuation is in general the date of the Award;
(v) in paragraph 352 finds that the part of the claim based on "undertakings" fails;
(vi) in paragraph 359 finds that the single taking contention fails;
(vii) in paragraph 401 concludes that the Respondent breached its obligation to negotiate in good faith on the basis of market value.
Under the heading The Tribunal's Decision, paragraph 404 begins with these words.
"For the foregoing reasons, the Tribunal decides as follows:..."
The paragraph then lists seven matters, including those listed above.
a. The Claimants shall file a Memorial on Quantum (including all supporting evidence and legal authorities) within ten (10) weeks from the date of the present Decision;
b. Respondent shall file a Counter-Memorial on Quantum within ten (10) weeks from their receipt of Claimants' full Memorial on Quantum (including all supporting evidence and legal authorities);
c. Claimants shall file a Reply on Quantum within four (4) weeks from their receipt of Respondent's full Counter- Memorial on Quantum (including all supporting evidence and legal authorities); and
d. Respondent shall file a Rejoinder on Quantum within four (4) weeks from their receipt of Claimants' full Reply on Quantum (including all supporting evidence and legal authorities).
e. The Tribunal will fix a date for a hearing on quantum, in consultation with the parties, in due course.
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