- May 17, 2019: Applicant’s observations with respect to the circumstances that require the continuation of the stay of enforcement;
- May 31, 2019: Respondent’s response observations;
- June 10,2019: Applicant’s reply;
- June 20, 2019: Respondent’s rejoinder.
Representing the Applicant :
Counsellor Mohamed Khalaf, The Egyptian State Lawsuits Authority Counsellor Yousria El Gamal, The Egyptian State Lawsuits Authority Counsellor Nada Elzahar, The Egyptian State Lawsuits Authority and
Dr. Claudia Annacker, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Ms. Ariella Rosenberg, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Ms. Laurie Achtouk-Spivak, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Mr. Larry C. Work-Dembowski, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Mr. Pablo Mateos Rodríguez, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Ms. Zeïneb Bouraoui, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Ms. Anastasia Poorhassan, Cleary Gottlieb Steen & Hamilton LLP (Paris) Mr. Robert Garden, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Representing the Respondent:
Mr. R. Doak Bishop, King & Spalding LLP (Houston)
Mr. James Castelo, King & Spalding LLP (Paris)
Ms. Sara S. Burns, King & Spalding LLP (Atlanta)
Mr. Aloysius Llamzon, King & Spalding LLP (Washington, D.C. and New York)
Mr. Rami Chahine, King & Spalding International LLP (Paris) and
Mr. Mr Cesar Olano, Unión Fenosa Gas S.A.
Mr. Ignacio de la Peña, Unión Fenosa Gas S.A.
Mr. José de Lara, Unión Fenosa Gas S.A.
The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request.
Rule 54 of the Arbitration Rules specifies the procedure as follows:
(1) The party applying for the interpretation, revision or annulment of an award may in its application, and either party may at any time before the final disposition of the application, request a stay in the enforcement of part or all of the award to which the application relates. The Tribunal or Committee shall give priority to the consideration of such a request.
(2) If an application for the revision or annulment of an award contains a request for a stay of its enforcement, the Secretary-General shall, together with the notice of registration, inform both parties of the provisional stay of the award. As soon as the Tribunal or Committee is constituted it shall, if either party requests, rule within 30 days on whether such stay should be continued; unless it decides to continue the stay, it shall automatically be terminated.
(3) If a stay of enforcement has been granted pursuant to paragraph (1) or continued pursuant to paragraph (2), the Tribunal or Committee may at any time modify or terminate the stay at the request of either party. All stays shall automatically terminate on the date on which a final decision is rendered on the application, except that a Committee granting the partial annulment of an award may order the temporary stay of enforcement of the unannulled portion in order to give either party an opportunity to request any new Tribunal constituted pursuant to Article 52(6) of the Convention to grant a stay pursuant to Rule 55(3).
(4) A request pursuant to paragraph (1), (2) (second sentence) or (3) [for a stay or its modification or termination] shall specify the circumstances that require the stay or its modification or termination. A request shall only be granted after the Tribunal or Committee has given each party an opportunity of presenting its observations.
(5) The Secretary-General shall promptly notify both parties of the stay of enforcement of any award and of the modification or termination of such a stay, which shall become effective on the date on which he dispatches such notification.
Previous committees have largely agreed that the merits of the annulment application are not relevant for the purpose of the decision on whether or not to grant the continuation of a stay,73 and that it is not for the committee to assess as a preliminary matter whether or not the annulment is likely to succeed.74 The Committee agrees and considers that it is not appropriate for it to assess at this stage of the proceedings the extensive discussion between the Parties75 with respect to the merits of the grounds for annulment presented by Egypt in its Application.
(1) To continue the stay of enforcement of the Award of August 31, 2018, in ICSID Case No. ARB/14/4 pending a decision on the Application and subject to the conditions established in this Decision;
(2) Within the period of 60 calendar days, the Applicant shall issue a financial security and provide a written undertaking in the terms established by the Committee in paragraphs 79 to 82 of this Decision, and submit a copy of both instruments to the Committee;
(3) The decision on costs in relation to the Request for the Continuation of the Stay of Enforcement of the Award is reserved until the conclusion of the annulment proceeding.
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