Summary

Inhoudsindicatie: Vordering tot vernietiging arbitrale vonnissen. Ontvankelijkheid in vernietigingsprocedure. Art. 1052 en art. 1064 (oud) Rv. Ontbreken geldige overeenkomst tot arbitrage? Art. 1065 lid 1, aanhef en onder a, (oud) Rv. Jurisdiction ratione voluntatis. Uitleg bilateraal investeringsverdrag (BIT) tussen Venezuela en Barbados. Art. 31 en art. 32 Weens Verdragenverdrag (WVV). Most Favoured Nation (MFN)-clausule van toepassing op arbitrageclausule. BIT tussen Venezuela en Ecuador houdt een tbv van Ecuadoriaanse investeerders gunstigere regeling in voor UNCITRAL-arbitrage dan BIT tussen Venezuela en Barbados tbv Barbadiaanse investeerders. MFN-clausule, in samenhang met arbitrageclausule, voorziet in geldige overeenkomst tot arbitrage. Scheidsgerecht heeft zich terecht bevoegd verklaard.

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... het scheidsgerecht heeft in de Interim Award geoordeeld dat het aan art. 8 van het BIT geen bevoegdheid kon ontlenen. Daartoe heeft het onder andere het volgende overwogen:

'77. The parties are in agreement that arbitration under the ICSID Convention was not available before Venezuela became bound by the ICSID Convention on 1 June 1995 and is no longer available after Venezuela ceased to be bound by it on 25 July 2012.

(...)

85. The Additional Facility was an option in the pre-ICSID period. And only if "for any reason" during this period it was not available did arbitration under the UNCITRAL Rules provide a substitute arbitral forum.

(...)

88. (...) Although consent to international arbitration is expressed in Article 8(4) and is still valid, in order to generate legal consequences in relation to different arbitral fora, the conditions specified in paragraphs 1 and 2 of Article 8 have to be met. Paragraph 1 envisages ICSID arbitration, which at present is not available as Venezuela ceased to be bound by the ICSID Convention on 25 July 2012. (...) Paragraph 2, in the Tribunal's interpretation, envisages situations which might have arisen before Venezuela became a Contracting State to the ICSID Convention.

89. (...) the Tribunal has to conclude that Article 8 alone does not provide a basis for its jurisdiction in the case at hand as arbitration under the UNCITRAL Rules was contemplated by the BIT's Contracting Parties for the period during which Venezuela had not yet become a Contracting State of the ICSID Convention. The present arbitral proceedings were not instituted before Venezuela became a Contracting State to the ICSID Convention, but only after it had ceased to be one (...).'

3.18 Bij meerderheidsoordeel is het scheidsgerecht in de Interim Award tot de slotsom gekomen dat de 'Most Favoured Nation'-clausule van art. 3 van het BIT moet worden toegepast op art. 8 van het BIT, met als gevolg dat het bevoegdheidsverweer van Venezuela moet worden verworpen. Daartoe heeft het scheidsgerecht onder andere het volgende overwogen:

'102. (...) Article 3 in its paragraph (3) is clear that "[t]he treatment provided for" in the two paragraphs thereof shall apply also to the provisions of Article 8. (...) Venezuela and Barbados (...) have agreed expressis verbis that the MFN treatment clause shall apply to Article 8, i.e., to dispute settlement provisions and conditions for resorting to international arbitration thereunder. (...) The majority believes that it must give bona fide effect to the provisions agreed by the Parties in their BIT, and not to empty Article 3(3) of its meaning, thereby rendering it inapplicable to Article 8 as is the view in the attached dissenting opinion.

(...)

109. There can be no doubt that Venezuela has given its consent, as it is stipulated in Article 8(4) - "its unconditional consent" - to the submission of investment disputes with Barbadian investors to international arbitration. (...) That consent covers three different arbitral fora (ICSID, Additional Facility, UNCITRAL) under the conditions specified in Article 8.

(...)

111. In the view of the Tribunal, Article 8(4) expresses - as long as the BIT is in force, and it is not disputed that it is still in force - each Contracting Party's consent to submission of investment disputes with nationals or companies of the other Contracting Party to international arbitration. There is thus no question of importing Venezuela's consent to international arbitration with Barbadian investors through the operation of Article 3(2) of the BIT from another of Venezuela's BITs concluded with a third State. The question rather is that of the conditions for resorting to international arbitration. Venezuela, by withdrawing from the ICSID Convention, has not withdrawn its consent to international arbitration, expressed in Article 8(4) of the BIT. The consent is still there and valid. (...)

112. Article 8 contains only conditions determining which one of the three arbitral fora mentioned therein may be available. (...) the MFN treatment is relevant to the application of the conditions under which an arbitral forum may be seised.

113. Recourse to arbitration under the UNCITRAL Rules is subject to a temporal condition, namely that it has been envisaged for the period prior to Venezuela becoming a Contracting State of the ICSID Convention if the Additional Facility was not available for any reason.

(...)

115. The Claimant asserts that a number of the BITs concluded by Venezuela with third States provide for more favourable terms to investors, including Venezuela's BITs with Belarus, Cuba, Iran, the Russian Federation, Vietnam, Canada, the Czech Republic, Ecuador, Lithuania, Portugal and Uruguay. (...) It is sufficient that one of them provides for more favourable treatment of investors in relation to the conditions under which they can have recourse to arbitration under the UNCITRAL Rules than Barbadian investors. (...)

116. One of the treaties invoked is the BIT which Venezuela concluded with Ecuador on 18 November 1993. (...)

124. The structure of Article IX(3) of the Ecuador-Venezuela BIT differs from paragraph 2 of Article 8 of the Barbados-Venezuela BIT. (...) The second subparagraph gives a right to the investor to submit a dispute to an ad hoc tribunal under the UNCITRAL Rules not only when the Additional Facility is for any reason not available, but also when ICSID itself is for any reason not available. This is a critical difference in comparison with the Barbados-Venezuela BIT.

125. (...) "Any reason" in relation to the ICSID has to have a broader meaning, covering also a situation when the ICSID, having become open to an Ecuadorian investor following Venezuela's ratification of the ICSID Convention, would later be unavailable for "any reason", for instance as a result of denunciation of that Convention pursuant to its Article 71.

126. (...) Ecuadorian investors may still have recourse to UNCITRAL arbitration since neither ICSID nor the Additional Facility is available. Therefore, they benefit from more favorable treatment than investors from Barbados.

(...)

128. However, in Article 3(2) of its BIT with Barbados Venezuela accepted an obligation not to subject national or companies from Barbados to treatment less favorable than that which it accords to nationals or companies of any third State. Ecuador is such a third State. Under Article 3(3) of the Barbados-Venezuela BIT such treatment shall also apply, beyond any doubt, to the settlement of disputes with investors who are nationals of Barbados. Venezuela, having given its consent to international arbitration, shall accept that Barbados' investors shall have recourse to UNCITRAL arbitration, which is listed in Article 8(2) of the BIT, under conditions which are not less favorable than the conditions under which Ecuadorian investors have recourse to UNCITRAL arbitration pursuant to Article IX of the Ecuador-Venezuela BIT.

129. It follows that investors from Barbados, relying on Article 3(2) of the Barbados-Venezuela BIT, are entitled to submit their disputes with Venezuela in accordance with its Article 8 on the same conditions as investors from Ecuador.'

3.19 Deze overwegingen hebben (in het dictum van de Interim Award) tot de beslissing geleid dat

'(1) By two votes to one, (...):

a. The Respondent's Objection to Jurisdiction ratione voluntatis is rejected;

b. The proceeding shall continue (...)' (nr. 132).

3.20 In de Partial Award heeft het scheidsgerecht onder andere het volgende overwogen:

'VI. REMAINING ISSUES ON JURISDICTION AND LIABILITY

130. The main argument advanced by the Respondent against the Tribunal's jurisdiction is that the actions of PDVSA [Petróleos de Venezuela S.A.; hof] and its affiliates complained of by the Claimant are not attributable to Venezuela. (...)

156. The Tribunal believes that, in the present case, it is more appropriate to consider the Parties' arguments on attribution in the context of the merits rather than as an issue of jurisdiction. If the conduct complained of by the Claimant cannot be attributed to the Respondent, then there can be no breach of any of the Respondent's obligations under the BIT and the "claims should be dismissed", as requested by the Respondent in its prayer for relief.

(...)

181. The Claimant argues that Venezuela, through its State organs, PDVSA, CVP, PDVSA Petróleo and its control of Petroritupano, breached its obligations under the BIT. It asserts that the acts and omissions of PDVSA, CVP, PDVSA Petróleo, and Petroritupano are attributable to the State. (...)

215. The Tribunal (...) concluded that none of PDVSA, CVP, or Petroritupano can be considered State organs, nor have they been empowered to exercise elements of governmental authority, and thus their acts cannot be attributed to the Respondent (...). The Tribunal further concluded that the Claimant had not adduced enough evidence to show that the various acts and omissions of PDVSA, CVP, and Petroritupano occurred on the instructions of, or under the direction or control of, the Respondent. That analysis was conducted in the context of the allegation that the Respondent had failed to accord fair and equitable treatment to the Claimant's investment.

216. In the view of the Tribunal, the same conclusion applies to the conduct relied on by the Claimant for its claim that it has been a "victim" of discriminatory and arbitrary treatment. There is, however, one exception relating to the non-payment of dividends to the Claimant for the 2008 and 2009 fiscal years.

217. The Claimant asserts that, while it has not been paid the dividends for 2008 and 2009, another foreign investor, Petrobas Argentina, did receive the payment of the dividends for 2008 and 2009. (...)

220. The Tribunal does not believe that the payment of the declared dividends for 2008 and 2009 to Petrobas Argentina, a subsidiary of the major Brazilian company Petrobas, on the eve of the visit by the President of Venezuela to Brazil during which cooperation in energy matters was discussed, as confirmed by the President himself, is a mere coincidence. (...)

222. (...) the Tribunal is convinced that the payment of the dividends to Petrobas was made on the instructions of the Government of Venezuela.

(...)

224. While the Claimant (...) a company organized and existing under the laws of Barbados, did not receive the payment of the declared dividends of 2008 and 2009, Venezuela caused the payment of dividends for the same fiscal year to another foreign investor participating in Petroritupano, namely Petrobas Argentina, a subsidiary of Petrobas, a Brazilian company. This conduct was not in conformity with Venezuela's obligations under Article 2, paragraph 2, of the BIT as it impaired the enjoyment of the Claimant's investment by a discriminatory measure. The Tribunal thus concludes that Venezuela breached its obligations under Article 2, paragraph 2, of the BIT.'

3.21 In (het dictum van) de Partial Award (voluit: 'Partial Award (Jurisdiction and Liability)') heeft het scheidsgerecht onder andere beslist dat

'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' (nr. 258).

3.22 Bij de Final Award (voluit: 'Final Award (Quantum)'; nr. 107) heeft het scheidsgerecht onder andere Venezuela veroordeeld tot betaling aan VUS van een bedrag van USD 58.870.898,--, vermeerderd met een bedrag van USD 46.624.436,-- aan rente (en te vermeerderen met rente over deze beide bedragen). Verder heeft het scheidsgerecht Venezuela veroordeeld in de kosten van de arbitrage (EUR 615.056,47) en de advocaatkosten (USD 3.215.534,99) aan de zijde van VUS.

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