A. COMMENCEMENT OF THE ARBITRATION
3. By Notice of Arbitration dated 22 March 2013, the Claimant commenced arbitral proceedings against the Respondent under the Arbitration Rules of the United Nations Commission on International Trade Law (the "UNCITRAL Rules") pursuant to Article 8 of the Agreement between the Government of Barbados and the Republic of Venezuela for the Promotion and Protection of Investments (the "Treaty" or "BIT").1 Article 8 of the Treaty provides, in relevant part:
Settlement of Disputes Between one Contracting Party and Nationals or Companies of the other Contracting
(1) Disputes between one Contracting Party and a national or company of the other Contracting Party concerning an obligation of the former under this Agreement in relation to an investment of the latter shall, at the request of the national concerned, be submitted to the International Centre for Settlement of Investment Disputes for settlement by arbitration or conciliation under the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington on March 18, 1965.
(2) As long as the Republic of Venezuela has not become a Contracting State of the Convention as mentioned in paragraph 1 of this Article, disputes as referred to in that paragraph shall be submitted to the International Centre for Settlement of Investment disputes under the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the Centre (Additional Facility Rules). If for any reason the Additional Facility is not available the investor shall have the right to submit the dispute to arbitration under the rules of the United Nations Commission on International Trade Law (UNCITRAL).
(3) The arbitral award shall be limited to determining whether there is a breach by the Contracting Party concerned of its obligations under this Agreement, whether such breach of obligations has caused damages to the national concerned, and if such is the case, the amount of compensation.
(4) Each Contracting Party hereby gives its unconditional consent to the submission of disputes as referred to in paragraph 1 of this Article to international arbitration in accordance with the provisions of this Article.
4. The Claimant, a company organized under the laws of Barbados, alleges that the Respondent, through its acts and omissions, as well as those of State-owned entities acting under its direction and control, breached its obligations under Articles 2, 3 and 5 of the BIT with respect to the Claimant's investment in the oil and gas industry in Venezuela.
258. For the reasons set forth above, the Tribunal decides that:
1. The Tribunal has jurisdiction in the present case;
2. The Bolivarian Republic of Venezuela breached its obligation under Article 2, paragraph 2, of the BIT by carrying out discriminatory measures impairing the Claimant' s enjoyment of its investment;
3. The Bolivarian Republic of Venezuela is liable to pay compensation to the Claimant for the breach committed in an amount to be determined in the subsequent stage of the proceedings;
4. All other claims are rejected;
5. The decision on costs is reserved for the final stage of the proceedings; and
6. The Tribunal shall issue, after ascertaining the views of the Parties, directions for the further conduct of the proceedings relating to the quantum.
Date: 5 February 2021
Place of arbitration: The Hague
L. Yves Fortier PC CC OQ QC
Marcelo Kohen (with the attached declaration)
H.E. Judge Peter Tomka (Presiding Arbitrator)