Investor Presentaiton
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full review of the underlying award. While the standard makes clear
that a total absence of reasoning would be grounds for annulment, it
leaves open the question of just how persuasive, cogent, or
comprehensive the reasoning actually given by a tribunal need be in
order for an ad hoc committee to sustain the award.
182
Some ad hoc committees have criticized the legal reasoning of
the underlying award but have stopped short of annulling the award
on the grounds that they were not empowered to substitute their own
reasoning for that of the arbitral tribunal." Others have criticized
the legal reasoning of the award and have annulled the underlying
decision. 183 Still others have declined to revisit the legal reasoning
of the underlying tribunal at all.
184
An ad hoc committee has the ability to annul a tribunal's
decision in the case before it, but it is not an appellate body and its
decisions have no more precedential value than the decisions of
other tribunals. An ad hoc committee is constituted to hear only one
case, meaning that different ad hoc committees will be formed for
each annulment proceeding; ad hoc committees do not always agree
182 CMS v. Argentina, ICSID ARB/01/8, Decision of the Ad Hoc
Committee on the Application for Annulment of the Argentine Republic,
25 September 2007; Compañía de Augas del Aconquija S.A. and Vivendi
Universal v. Argentine Repbulic, ICSID ARB/97/3, Decision on the
Argentine Republic's Request for Annulment of the Award, 10 August
2010.
183 Mitchell v. Congo, ICSID ARB/99/7, Decision on the Application for
Annulment of the Award, 1 November 2006; Malaysian Historical
Salvors, SDN, BHD v. Malaysia, ICSID ARB/05/10, Decision on the
Application for Annulment, 16 April 2009; Sempra Energy International v.
Argentina, ICSID ARB/02/16, Decision on the Argentine Republic's
Application for Annulment of the Award, 9 June 2010; Enron Corporation
and Ponderosa Assets, L.P. v. Argentina, ICSID ARB/01/3, Decision on
the Application for Annulment, 30 July 2010.
184
Schreuer et al., 2009, paras. 370–388.
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