Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

RECOMMENDATION

INTRODUCTION

1. On 8 March 2019 the Tribunal in this arbitration ("the Arbitration") dispatched its award[1] to the parties. This recorded that those representing the Respondent ("Venezuela") included Dr. Muñoz Pedroza, Viceprocurador General de la República, and a number of members of the firm Curtis, Mallet-Prevost, Colt & Mosle LLP ("Curtis"), including Mr. George Kahale III. The Award was in favour of the Claimants ("Conoco").

2. On 29 August 2019 the Tribunal dispatched to the parties a Decision on Rectification[2]. This recorded that those representing Venezuela included Dr. Muñoz Pedroza, Viceprocurador General de la República, Mr. George Kahale,III of Curtis and Dr. Alfredo de Jesús O. of the firm De Jesús & De Jesús ("De Jesús").

3. Applications for Annulment were then submitted to the Centre. On 3 February 2020 an ad hoc Annulment Committee was appointed consisting of Judge Dominique Hascher, President, Professor Diego P. Fernández Arroyo and Mr. Kap-You Kim ("the Committee").

4. On 15 March 2020 the Committee received an Application ("the Exclusion Application")[3] from De Jesús to exclude the participation of Curtis from the proceeding on the ground that Curtis was not authorized to act for Venezuela.

5. On 3 April 2020 the Committee made an Order[4] ("the Order on Representation") rejecting this Application.

6. On 16 April 2020 the Centre received a Proposal[5] from De Jesús "on behalf of the Bolivarian Republic of Venezuela" to disqualify all three members of the Committee pursuant to Articles 14 and 57 of the ICSID Convention and ICSID Arbitration Rule 9 ("the Disqualification Proposal"). Pursuant to Article 58 of the Convention and Arbitration Rule 9 it falls to the Chair of the ICSID Administrative Council to decide the Proposal.

7. The Proposal requested that the Secretary-General of ICSID seek a recommendation from a third-party neutral in connection with the Proposal. The Chair of the Administrative Council decided to accede to this request.

8. On 11 June 2020 I received a letter[6] from the Secretary-General inviting me to make a Recommendation on the Proposal, having previously ascertained that I would be prepared to accept this request. This is that Recommendation.

9. The gravamen of the Disqualification Proposal is that the terms of the Order on Representation demonstrate that each of the three members of the Committee cannot be relied upon to exercise independent judgment, as required by Article 14(1) of the Convention. Accordingly, in order to decide on my Recommendation I shall have to examine the Order on Representation in some detail.

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RECOMMENDATION

135. For these reasons, my Recommendation to the Chair of the Administrative Council of ICSID is that the Disqualification Proposal should be dismissed.

Nicholas Phillips

The Rt. Hon. Lord Phillips of Worth Matravers, K.G.

10 July 2020

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Footnotes

[1] Tribunal's Award of 8 March 2019 - On OGEL or TDM

[2] Tribunal's Decision on Rectification of 29 August 2019 - On OGEL or TDM

[3] Application to Committee from De Jesús to exclude Curtis dated 15 March 2020, ("The Exclusion Application").

[4] Order on Representation dated 3 April 2020 - On OGEL or TDM

[5] The Disqualification Proposal dated 16 April 2020.

[6] Letter from Secretary-General dated 10 June 2020.