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One of ICSID arbitration's perceived strengths—and one of its most characteristic features—is its internal mechanism for reviewing arbitral awards. Awards issued outside the ICSID Convention framework are generally open to challenge before domestic courts, with the uncertainty that entails. In contrast, actions to annul ICSID awards are brought not before domestic courts, but before an ad hoc committee specifically convened by ICSID.
There have been only seven ICSID annulment decisions, five of which are published. The two earliest decisions—annulling the awards in Klöckner v. Cameroon (1985) and Amco v. Indonesia (1986)—were poorly received, leading some commentators to cast doubt on the effectiveness of ICSID arbitration as a whole. This criticism subsided following the partial annulment decision in MINE v. Guinea (1989) and the unpublished decisions dismissing the applications to annul the awards rendered in the resubmitted Klöckner (1990) and Amco (1992) disputes.
Ten years then passed before, in 2002, the next ICSID annulment decisions were rendered, with the dismissal of the application in Wena v. Egypt and the partial annulment of the award in Vivendi v. Argentina. These significant decisions have recently been published, and it is their impact that provides the focus for this work.
The Annulment of ICSID Awards also addresses the role of national courts, the Metalclad annulment decision, and the U.S. Trade Act calling for an appellate mechanism in foreign investment matters.
Charles N. Brower
Part I General Features of ICSID Annulment Proceedings
Article 52 of the Washington Convention – A Brief Introduction
Hans Van Houtte
Three Generations of ICSID Annulment Proceedings
Finality at What Cost? The Decision of the Ad Hoc Committee in Wena Hotels v. Egypt
Eric A. Schwartz
Litigating Annulment Proceedings – The Vivendi Matter: Contract and Treaty Claims
Bernardo M. Cremades
The Vivendi Annulment Decision and the Lessons for Future ICSID Arbitrations – The Applicants’ Perspective
Stanimir A. Alexandrov
Vivendi v. Argentina: on the Admissibility of Requests for Partial Annulment and the Ground of a Manifest Excess of Powers
Carlos Ignacio Suarez Anzorena
Stay of Enforcement of the Arbitral Award Pending ICSID Annulment Proceedings
Paul D. Friedland
Part II The Review of ICSID Arbitral Awards
Annulment of ICSID Awards in Contract and Treaty Arbitrations: Are There Differences?
The Extent of Review of the Applicable Law in Investment Treaty Arbitration
To What Extent Can an Ad Hoc Committee Review the Factual Findings of an Arbitral Tribunal
To What Extent May an Ad Hoc Committee Review the Factual Findings of an Arbitral Tribunal Based on a Procedural Error?
Peter D. Trooboff
Setting Aside Additional Facility Awards: the Metalclad Case
Henri C. Alvarez
The Introduction of an Appellate Mechanism: the U.S. Trade Act of 2002
Annex 1 Wena Hotels Limited v. Arab Republic of Egypt, Award of December 8, 2000
Annex 2 Wena Hotels Limited v. Arab Republic of Egypt, Decision of the Ad Hoc Committee, February 5, 2002
Annex 3 Compañía de Aguas del Aconquija S.A. and Compagnie Générale des Eaux v. Argentine Republic, Award of November 21, 2000
Annex 4 Compañía de Aguas del Aconquija S.A. and Vivendi Universal (formerly Compagnie Générale des Eaux) v. Argentine Republic, Decision of the Ad Hoc Committee, July 3, 2002
About the General Editor:
Emmanuel Gaillard, Chairman of the IAI, is acknowledged as one of the world's leading experts on international arbitration. He has written extensively on all aspects of international arbitration law, in French and in English. He is a co-author of Fouchard Gaillard Goldman On International Commercial Arbitration, the leading and most exhaustive publication in this field. Emmanuel Gaillard teaches International Arbitration and Private International Law at the University of Paris XII. He has acted as arbitrator, counsel and expert in over 250 international arbitration proceedings and Chair of Shearman & Sterling LLP International Arbitration practice.
About the Editors of Annulment of ICSID Awards:
Emmanuel Gaillard (See Above) and Yas Banifatemi, Partner, Shearman & Sterling LLP, International Arbitration Practice Group, Paris.
About the Contributors:
- Stanimir A. Alexandrov, Partner and Senior International Advisor, Sidley Austin Brown & Wood LLP, Washington, D.C.; Member of the legal team representing CompaÃ±Ãa de Aguas del Aconquija and Vivendi Universal before ICSID. He was formerly the Vice Minister of Foreign Affairs of Bulgaria.
- Henri Alvarez, Partner, Fasken Martineau DuMoulin LLP, Vancouver; Co-Chair of the firm's Latin American and International Dispute Resolution Practice Groups. He is a Chapter 19 Panelist under the North American Free Trade Agreement.
- Charles Brower, Independent Arbitrator and Former Judge of the Iran-United States Claims Tribunal, Special Counsel to White & Case, LLP; former President of the American Society of International Law.
- Bernardo Cremades, Senior Partner, B. Cremades y Asociados, Madrid; President of the Spanish Court of Arbitration. He is Chairman of the Global Center For Dispute Resolution Research launched by the American Arbitration Association, Co-Chairman of the Arbitration Committee of the International Bar Association and Former Vice President of the London Court of International Arbitration.
- Paul Friedland, Partner, White & Case LLP New York; Chair of the firm's International Arbitration Practice Group. Mr. Friedland is Chair of the American Arbitration Association's Arbitration Committee and a Member of the American Arbitration Association's Board of Directors.
- Emmanuel Gaillard (See Above)
- Gabrielle Kaufmann-Kohler, Professor, University of Geneva; Partner, Schellenberg Wittmer, Geneva. She is President of the Swiss Arbitration Association and former Chair of the Court of Arbitration for Sport, Olympic Division
- Hans Van Houtte, Professor, Institute for International Trade Law, KU. Leuven-Belgium.
- Pierre Lalive, Partner, Lalive & Partners; Emeritus Professor, University of Geneva and Graduate Institute of International Studies; Honorable Chairman, Swiss Arbitration Association and ICC Institute of World Business Law. Barton Legum Office of the Legal Adviser, Chief, NAFTA Arbitration Division Office of International Claims & Investment Disputes, United States Department of State, Washington, D.C.
- Pierre Mayer, Professor of Law, University of Paris I . Pantheon-Sorbonne.
- Christoph Schreuer, Professor, University of Vienna. From 1992 to 2000 he was the Edward B. Burling Professor of International Law and Organization at the Paul H. Nitze School of Advanced International Studies (SAIS) of the Johns Hopkins University in Washington, D.C. Since October 2000 he is Professor of International Law at the University of Vienna.
- Eric Schwartz, Partner, LeBouf, Lamb, Paris. From 1992-1996, he served as Secretary General of the ICC International Court of Arbitration .
- Carlos Ignacio Suarez Anzorena is a Member of the International Arbitration Group of Clifford Chance LLP. Former Legal Adviser, Solicitor General's Office, Argentina; Universidad Torcuato di Tella, Buenos Aires
- Peter Trooboff, Partner, Covington & Burling, Washington, D.C. He is a former President of the American Society of International Law.
"The first volume of the IAI Series on International Arbitration is most timely. Nearly 20 years after Klöckner and Amco, the ICSID self-contained annulment mechanism has triggered two landmark decisions by ad hoc Committees. The Wena and Vivendi decisions are analyzed thoroughly and critically by some of the world’s foremost arbitrators. This publication is a ‘must read’ for any active or aspiring international investment arbitrator."
- Yves Fortier, Chairman and Senior Partner, Ogilvy Renault, Montreal. Former President of the London Court of International Arbitration (LCIA) and of the Permanent Court of Arbitration at The Hague.
"The content of the volume is impressive. ... It provides the most detailed analysis of Article 52 proceedings, and provides reliable guidance of the law on annulment in the post Wena and Vivendi phase. Gaillard's and Banifatemi's 'Annulment of ICSID Awards' can therefore be warmly reccommended to all academics and practitioners interested or involved in the law of investment protection."
- German Yearbook of International Law (Vol. 48, 2005)