Reproduced from www.worldbank.org/icsid with permission of ICSID. (Document, does not apply to summary and/or TDM IACL Case Report below).
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Case Report by Artemis Malliaropoulou, Editor Diego Luis Alonso Massa
In the Decision on Stay of Enforcement of the Award (the "Decision") rendered on 12 April 2017, the ad hoc Annulment Committee (the "Committee") ordered the continuation of the stay of enforcement of the Award, on the condition that TANESCO provided, within 30 days of the Decision of the Committee, an unconditional and irrevocable bank guarantee or security bond issued by a first-tier reputable international credit institution for the full amount of the Award rendered against TANESCO, inclusive of all interest accrued to the date of issuance of said irrevocable bank guarantee or security bond, and immediately payable to or cashable by SCB HK upon the issuance of a final Decision of the Committee rejecting the annulment, or if the annulment proceedings were withdrawn or discontinued. In the event that TANESCO declined to issue such guarantee and informs the Secretary-General of ICSID within 30 calendar days following the notification of this Decision, the termination of the stay on enforcement would be automatic.
In doing so, the Committee addressed the legal standard for the continuation of the stay and illustrated the factors that were relevant for issuing the Decision. The Committee concluded that the ICSID Convention provided discretionary power to grant a stay and to issue a condition to continuing a stay of enforcement. Further, the Committee stated that the award debtor should advance grounds, supported as necessary by evidence, for the stay, while the award creditor should also advance evidence in support of its own "positive allegations". In line with a fact-based approach, the Committee opposed the view of the applicant that the prima facie grounds for annulment were relevant to support the maintenance of the stay and focused on the risk of non-compliance with the award and the prospects of enforcement if the award were upheld as well as on the risk of possible irreparable injury to the award debtor in case of immediate enforcement.
Stay of Enforcement of Award; Burden of Proof; Circumstances; Requirements; Conditions; Annulment; Balance of interests.
Standard Chartered Bank (Hong Kong) Limited v. TANESCO - ICSID Case No. ARB/10/20 - Decision on Applicant's request for a continued stay on enforcement of the Award rendered on 12 September 2016, dated and dispatched to the Parties on 12 April 2017casetitle=
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