ConocoPhillips v. Venezuela

Dear Mesdames and Sirs,

I write to you on instructions from the Committee in the above case, regarding some outstanding procedural matters.

In connection with counsel for the Claimants' letter of September 8, 2021, the Committee has asked me to convey to you the following message:

"We are answering Conoco's communication of 8 September 2021 and Venezuela's (as represented by De Jesus) reply of 17 September, no reaction having been received from Venezuela (as represented by Curtis) following our invitation of 10 September.

These communications from the parties are made following our e-mail message of 26 July 2021 where we asked the Conoco Parties to provide concrete details of the conditions for the opening of six accounts with the London branch of Bank of America. After informing on 30 July 2021 of the number of each of the six the accounts reserved in satisfaction of the Committee's second condition for discontinuing the stay of enforcement, the Conoco Parties have now indicated that they have cleared out with the Bank all compliance checks and confirmed the account numbers which have become active. The letter of 8 September sets out a detailed description of these accounts, including their currency denomination (Euro or USD).

In its letter of 20 November 2020 setting out the conditions for discontinuing the stay, the Committee indicated its concern about the risk of non-recoupment of the award monies by Venezuela if the Application on Annulment is successful, especially for the funds that may be collected outside of the US. We are satisfied that the Conoco Parties have disclosed the information regarding the opening of the segregated accounts and kept all informed about their application for the opening of said accounts and the compliance process followed with the Bank before their opening. We understand that the accounts are available and reserved for the amounts recovered in conformity with all financial and regulatory conditions. The banking details provided enable Venezuela to identify the segregated accounts in all transparency, thus obviating the risk of dissipation of the Award monies collected outside the US pending these proceedings.

Venezuela (as represented by De Jesus) however tell us that the United Kingdom, where the Bank is situated, and the United States have imposed restrictions that hinder its possibility to recoup any funds paid under the Award. The Applicant points in particular to the English courts which have obstructed the right of the Venezuelan Central Bank to recoup gold reserves in England. Whatever restrictive the United Kingdom or Unites States regulatory framework may be regarding the financial operations concerning Venezuela as stressed by the Applicant, the Conoco Parties have answered this justifiable concern by giving assurances that the accounts could only open after the completion of a compliance process. Otherwise, we remind that we called on the parties' cooperation for implementing our Decision of 20 November 2020 (see our message of 3 March 2021). If we are correct, we received no indication from Venezuela about the type of financial institution they would regard as acceptable. We are sorry for this absence of suggestion, but nothing indicates at present that the award monies deposited in the accounts of an international bank, which it is not alleged would be in a precarious situation, in a recognized banking place would be dissipated or otherwise misappropriated in fraud of Venezuela's legitimate rights. We add that the United Kingdom is a Contracting Party to the ICSID Convention and we have no indication that it would not respect its obligations arising under the Convention.

We therefore hold that the second condition of our Decision of 20 November 2020 is now satisfied.

Accordingly, the stay of enforcement of the Award rendered on 8 March 2019 which is subject to these annulment proceedings is discontinued."

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Also, please find attached a signed copy of Procedural Order No. 2, concerning the arrangements for the hearing on annulment scheduled for October 25-29, 2021. The attached Order, incorporates the agreements reached by the parties, as well as decisions made by the Committee in case of disagreements. Concerning paragraph 14 of Procedural Order No. 2 (on Documents for use at the Hearing), the Committee has taken note of the comments received from the parties on September 23, 2021 (counsel for the Claimants) and September 27, 2021 (Bolivarian Republic of Venezuela (De Jesus)).

The Committee has asked me to convey to you that Procedural Order No. 2 is issued without prejudice to the Committee's pending determination over the Bolivarian Republic of Venezuela's (De Jesus) request for reconsideration of September 21, 2021.

Sincerely,