Investor Presentaiton

154 INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL (e) that the award has failed to state the reasons on which it is based." - The drafters of the ICSID Convention deliberately chose an annulment, rather than an appellate, mechanism. This choice reflected their preference for the finality of awards. The function of annulment is not to correct tribunals' errors of fact or of law, but to police the integrity of the award and of the process leading to the award. The choices an ad hoc committee i.e. the panel that oversees an annulment proceeding ―are fairly stark: it can either annul the award (or a part thereof), or leave it intact. It cannot substitute its judgment for that of the original tribunal and correct the award. Once an award is annulled, it is no longer enforceable under the ICSID Convention; however, an annulment does not preclude the claimant from starting new ICSID proceedings in the same case." 180 Notwithstanding those apparent limits, however, some ad hoc annulment committees have been criticized for engaging in a more in-depth review of the award and issuing decisions that resemble appeals rather than annulments. The grounds most likely to give rise to such criticisms are ICSID Convention Article 52 (b) and (e). For example, some ad hoc committees have determined that a tribunal manifestly exceeded its powers by not applying the appropriate law, thereby acting outside its sphere of competence. Yet distinguishing between the non-application, rather than the misapplication, of law is not an exact science. 181 The "failure to state reasons" language is subject to the criticism that, under its guise, ad hoc committees can very easily engage in a 180 Examples of resubmitted cases are Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic, ICSID Case No. ARB/97/3 and Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16. 181 See, e.g., Schreuer et al., 2009, paras. 363–388. UNCTAD Series on International Investment Agreements II

View entire presentation