Case report (free download)
Case Report by Ilektra Athanasiou-Ioannou, Editor Diego Luis Alonso Massa
In the Decision rendered on March 25, 2017, the US District Court for the District of Columbia ("the Court") confirmed in favor of Crystallex International Corporation ("Crystallex", "Petitioner") the 2016 ICSID Additional Facility Arbitration Award in the amount of USD 1.386 billion against the Bolivarian Republic of Venezuela ("Venezuela", "Respondent"): specifically, the Court granted Crystallex's petition to confirm, and denied Venezuela's cross-motion to vacate, the Award; for these reasons, the Court denied Petitioner's motion for a pre-judgment bond as moot. In the Memorandum Opinion accompanying the Court's Order, the Court held that arbitrability issues were delegated to the Tribunal by clear and unmistakable evidence based on the language of the Canada-Venezuela Bilateral Investment Treaty ("Canada-Venezuela BIT", the BIT) and the arbitration rules, and therefore deferentially reviewed the Tribunal's decisions. The Court held that the Tribunal did not exceed its powers under Article V(1)(c) of the New York Convention by ruling on certain claims or using certain calculation methods. Additionally, the Court refused to vacate the award based on Article V(2)(b) of the New York Convention, finding that its confirmation was not contrary to public policy. Finally, the Court rejected Venezuela's independent argument that the award is in manifest disregard of the law, casting doubt on whether that doctrine is even "still good law."
Enforcement of ICSID AF Award - Article 45, ICSID Additional Facility Rules; doctrine of competence-competence - Foreign Sovereign Immunities Act; jurisdiction of U.S. courts for enforcement proceedings - Standard of review of arbitral awards by U.S. courts: deferential standard - New York Convention; grounds for refusal of enforcement - Article V(1)(c): decision on matters beyond the scope of the submission to arbitration - Article V(2)(b): award contrary to public policy - Federal Arbitration Act §§10,11 ; grounds for vacatur, modification or correction - Manifest disregard of the law as ground for non-enforcement
Case report provided by International Arbitration Case Law (IACL)