"[...]maintaining Curtis and De Jesús as counsel of record accords, at this stage of the proceedings, with procedural fairness" and, accordingly decided "not to exclude Curtis, instructed by the Special Attorney General, from these proceedings" and "to reject the application of De Jesús of 15 March17."
"The Committee wishes to draw the parties' attention to the Order of April 3, 2020, which is limited to the present stage of the proceedings and is subject to review in light of future developments."
"As you are aware, since January 10, 2019 Nicolás Maduro ceased to hold office as President of Venezuela and therefore he does not have any authority to represent or to act on behalf of Venezuela. In addition, pursuant to article 15, literal "b" of the Statute that Governs the Transition to Democracy to Restablish the Full Force and Effect of the Constitution of the Bolivarian Republic of Venezuela…the judicial representation of the Republic of Venezuela, including in arbitral proceedings, is vested exclusively on me, in my capacity as Special Attorney general of Venezuela, appointed by the Interim President of the Bolivarian Republic of Venezuela acting under the control of the Venezuelan National Assembly."
"I am aware that some of those decisions of the National Assembly have been declared "null" by Maduro's Constitutional Chamber of the Supreme Court. However this Court is not recognized as a legitimate body of the Venezuelan State…"
"whether it may continue the present proceedings with Respondent's interests being represented by Respondent's Counsel on record, who at least until 4 February 2019, were indisputably the valid representatives of Venezuela.23"
"If, and until, there is a decision on this question by an appropriate decision-making body, this Tribunal shall refrain from taking a decision on who holds the proper representation of Respondent24."
"The Committee clarifies that, just as a change to the representation is not justified, neither can it grant the Respondents in the Annulment's suggestion to continue the proceedings with two different representations on behalf of Venezuela. There is no legal or logical basis that would allow the Committee to, on the one hand, deny Mr. Hernández exclusive representation of Venezuela because he has not established to have such authority and, on the other, accept that he shares said representation with the Litigation Manager38."
"The Respondent in this arbitration is the State of Venezuela, not a particular government purporting to act on behalf of the State. Therefore the question before the Tribunal is not who the proper party to this arbitration is. It is merely which lawyers can represent Venezuela's interests in this arbitration.[…] In other words it is a procedural issue. What is more, as a practical matter, it is a procedural matter that the Tribunal must resolve, because the arbitration cannot proceed with two representatives of one and the same party who are in conflict with each other."
"The Tribunal has carefully reviewed the submissions and accompanying documents on Venezuela's representation. It has been unable to discern any argument or evidence that would lead it to change the representation of Venezuela in this arbitration as it has been in effect since April 2018.
On this basis the Tribunal comes to the conclusion that, at this stage, the arbitration must continue with counsel of record for Venezuela41."
"After reviewing Mr. Hernández communications, the arguments of each of the parties and the evidence made available to it, the Tribunal does not find sufficient evidence to conclude that there has been, for the exclusive purposes of this arbitration, a change to the powers of representation of the Respondent in this arbitration.
In view of the above, the Tribunal decides to maintain the 'status quo' of the representation of the Bolivarian Republic of Venezuela in this arbitration43."
"Until now, Respondent has been represented by the persons appointed for such purpose by the Procurador General de la República as required by the domestic law of the Respondent.
After giving to all involved the opportunity to fully present their positions, the Committee finds that the evidence on record does not justify a change in the 'status quo'. For this reason, and taking into account considerations of fairness to both Parties and efficiency of the proceedings, the Committee sees no basis to hold that, for purposes of this annulment proceeding, the representation of the Bolivarian Republic of Venezuela has changed."
"The submission of different documents as powers of attorneys may raise an issue of representation, opposing on two sides law firms both claiming to be the Respondent's representative. However, the true issue before the Tribunal is to identify the Parties, and in particular the Respondent, and to identify its position that must be addressed through the Tribunal's findings. In this respect, the Tribunal is not faced with any conflicting position or submission. Firstly, as both representatives state that they act on behalf of the Respondent, there is no dispute that they represent the same Party, the Bolivarian Republic of Venezuela. There is no other individual or firm claiming any similar power on behalf of Venezuela. Secondly there is no conflict about the substance of the issues on rectification before the Tribunal. Indeed, on both sides of the representatives declaring to act on behalf of the Respondent, the Application for Rectification is identical to the Request dated 16 April 2019. Therefore, the issue related to the correct designation of the Respondent's representatives is moot and does not require any decision from the Tribunal."
29…The Parties do not seriously dispute that the Committee, which is neither a political body nor the deliberative organ of an International Organization, cannot hear – and decide – a political question, such as the legitimate Government of Venezuela.
30. The issue raised before the Committee by de Jesús pertains to Venezuela's representation in the annulment proceedings. The Committee agrees with De Jesús that the Committee must resolve the matter in accordance with the power it has under Article 44 of the ICSID Convention (applicable 'mutatis mutandis' to this annulment procedure before the Committee pursuant to Article 52(4)) which provides, in relevant part:
"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"
31. In support of its application, De Jesús refers to decisions of ad hoc committees and arbitral tribunals which have decided to maintain the 'status quo' of Venezuela's representation by continuing with the counsel on record. The Committee accepts that the 'status quo' approach adopted in other ICSID proceedings should also apply in the present annulment proceedings.
32. The Parties agree to an approach based on the 'status quo', but differ as its proper application in the present case. Contrary to the view advocated by De Jesús that the representation of Venezuela must continue without change under the authority of the Procuraduría General de la República, Curtis and Conoco maintain that the status quo includes the participation of the respective representatives of Curtis for the Special Attorney General and of De Jesús for the Acting Attorney General.
[The Committee then traces the joint participation of Curtis and De Jesús from 6 March 2019 to 15 March 2010]
35 […] The Committee therefore finds that the status quo means that Curtis and De Jesús who have both been counsel of record in the arbitration phase and in the annulment proceedings, will remain as representatives of Venezuela.
36. De Jesús has however objected to such a situation which, it alleges, would violate Venezuela's right to a fair trial The Committee considers that it has the power and duty to conduct the process before it in such a way that the parties are treated fairly and with equality and that at any stage of the proceedings each party is given the opportunity to present its case. Both de Jesús and Curtis aim at the annulment of the Award. As pointed out by De Jesús, there is a real likelihood that Curtis and De Jesús make different arguments and present these arguments in a different manner. The possibility of such divergences between Curtis and De Jesús does not mean that their arguments and theses would not be heard and answered, separately as may be, by the Committee. The Committee notes that Conoco, which bears a heavier burden to defend against the lines of argument that will be raised by Curtis and De Jesús separately, agrees to respond to submissions from both sets of representatives.
37. The Committee therefore concludes that maintaining Curtis and De Jesús as counsel of record accords, at this stage of the proceedings, with procedural fairness.
"The Committee wishes to draw the parties' attention to the Order of April 3, 2020, which is limited to the present stage of the proceedings and is subject to review in light of future developments. Should this be the case in the future, there would be further opportunity to renew the contents of the April 9 letter with other arguments as they may be."
"[a] party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14."
"Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators."
"Impartiality refers to the absence of bias or predisposition towards a party. Independence is characterized by the absence of external control. Independence and impartiality both 'protect parties against arbitrators being influenced by factors other than those related to the merits of the case60."
"The concepts of independence and impartiality, though related, are often seen as distinct, although the precise nature of the distinction is not always easy to grasp. Generally speaking independence relates to the lack of relations with a party that might influence an arbitrator's decision. Impartiality, on the other hand, concerns the absence of a bias or predisposition toward one of the parties."
"In sum in its Order on Representation, the Committee invoked one procedural rule in order to establish its inherent powers to resolve the matter at hand (Article 44 of the ICSID Convention). The Committee failed to analyze or invoke a single provision of Venezuelan law, the only applicable law to the issue of representation of the Republic and contented itself to mention a set of irrelevant facts to the issue."
"showing any hostility towards the principle and form of the Government of the Republic, as well as any political demonstration that is incompatible with the restraint that their role requires". [This required Judge Hascher to] "show deference to the French Government of the Republic and refrain from expressing political opinions that would be incompatible with his position70."
"…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."
"transformed its decision into an instance of recognition and legitimacy for Mr. Hernández and his pretended capacity to act in representation of the Republic.87"
I do not consider that this assertion is correct. Just as in the case of the other Tribunals and Committees, the Committee has not purported to recognize the legitimacy of Mr. Hernández claim to represent Venezuela. Had it reached its decision as a matter of law it might have done so, but as De Jesús complain, the Committee's decision is not advanced as representing a legal decision.
(i) Was the decision reached by the Committee practicable without injustice to either party?
(ii) Was the decision reached by the Committee one that it was proper to make?
(iii) If not, does the decision demonstrate that the members of the Committee have, or appear to have, a manifest lack of independence or impartiality?
The three questions are interrelated and it is logical to take them in the order set out.
"…the arbitration cannot proceed with two representatives of one and the same party who are in conflict with each other."
"deciding on the most practical, convenient and political solution by simply allowing everyone's continued participation in the proceedings…and only then scrambling to line up some considerations, of fact and not of law to justify its choice93."
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