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Where a ground for annulment is established, the ad hoc committee must determine the extent of the annulment (in whole or in part); the ad hoc committee is not bound by the pleadings of the party having initiated annulment proceedings
Annullment under Article 52(1)(e) ICSID Convention requires a clear case in which the tribunal failed to state any reasons for a particular point, although the point is necessary to the tribunal’s decision
A “counterclaim” for annulment is inadmissible; however, the respondent may present its own arguments on questions of annulment inasmuch as they concern specific matters pleaded by the party requesting annulment
- ICSID Convention > Arbitration (Articles 36-55) > Article 52 > General Remarks
- Investment Treaty Arbitration > Counterclaims
An ICSID tribunal commits an excess of powers not only if it exercises a jurisdiction which it does not have, but also if it fails to exercise a jurisdiction which it possesses
The “Rule of procedure” requires at least a full and fair opportunity to be heard at every stage of the proceeding
An ad hoc committee has a discretion as to whether to annul an award, even if an annullable error is found
General remarks regarding the role of annulment in the ICSID system
Regarding the allocation of costs, the same considerations apply to annulment proceedings as to general proceedings
A waiver must be explicit
Parts of the award which are not subject to the annulment decision are to be regarded as res iudicata
The exhaustion of local remedies rule does not apply to claims under an IIT if the state did not qualify its consent
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
A state is not liable for the performance of contracts entered into by territorial subdivisions possessing a separate legal personality
Whether there has been a breach of an IIT and whether there has been a breach of a contract are different questions; a state cannot rely on an exclusive jurisdiction clause in a contract to avoid the characterization of its conduct as internationally unlawful under a treaty
- International Investment Treaties (IITs) > Protection of Investors under IITs > Waiver of Rights Under an IIT
- International Investment Treaties (IITs) > Contract and Treaty Claims > Distinction of Contract and Treaty Claims
Protection of Investors under IITs
Expropriation and Standards of Protection
Umbrella Clause
Umbrella Clauses and Questions of Attribution of Contracts
A state is not liable for the performance of contracts entered into by territorial subdivisions possessing a separate legal personality
Dispute Settlement Clauses
Wide Dispute Settlement Clauses
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
Waiver of Rights Under an IIT
A waiver must be explicit
Whether there has been a breach of an IIT and whether there has been a breach of a contract are different questions; a state cannot rely on an exclusive jurisdiction clause in a contract to avoid the characterization of its conduct as internationally unlawful under a treaty
Contract and Treaty Claims
Distinction of Contract and Treaty Claims
Whether there has been a breach of an IIT and whether there has been a breach of a contract are different questions; a state cannot rely on an exclusive jurisdiction clause in a contract to avoid the characterization of its conduct as internationally unlawful under a treaty
Admissibility
Res Judicata / Ne Bis In Idem
Parts of the award which are not subject to the annulment decision are to be regarded as res iudicata
Counterclaims
A “counterclaim” for annulment is inadmissible; however, the respondent may present its own arguments on questions of annulment inasmuch as they concern specific matters pleaded by the party requesting annulment
Costs
Further Problems
Regarding the allocation of costs, the same considerations apply to annulment proceedings as to general proceedings
Jurisdiction of the Centre (Articles 25-27)
Article 26
The exhaustion of local remedies rule does not apply to claims under an IIT if the state did not qualify its consent
Arbitration (Articles 36-55)
Article 52
General Remarks
Where a ground for annulment is established, the ad hoc committee must determine the extent of the annulment (in whole or in part); the ad hoc committee is not bound by the pleadings of the party having initiated annulment proceedings
A “counterclaim” for annulment is inadmissible; however, the respondent may present its own arguments on questions of annulment inasmuch as they concern specific matters pleaded by the party requesting annulment
An ad hoc committee has a discretion as to whether to annul an award, even if an annullable error is found
General remarks regarding the role of annulment in the ICSID system
Grounds for Annulment
Manifest Excess of Power
An ICSID tribunal commits an excess of powers not only if it exercises a jurisdiction which it does not have, but also if it fails to exercise a jurisdiction which it possesses
Serious Departure From a Rule of Procedure
The “Rule of procedure” requires at least a full and fair opportunity to be heard at every stage of the proceeding
Failure to State Reasons
Annullment under Article 52(1)(e) ICSID Convention requires a clear case in which the tribunal failed to state any reasons for a particular point, although the point is necessary to the tribunal’s decision