Summary

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Case Report (free download)

Case Report by Izak C. Rosenfeld, Editor Diego Luis Alonso Massa

Summary

The Applicant filed an urgent application for provisional measures including a temporary stay of execution of both the Border Timbers Award and the von Pezold Award pursuant to Articles 50(2) and 52(5) of the ICSID Convention, and ICSID Arbitration Rules 39 and 54. The Applicant requested that the Committees grant a stay of execution of the awards from 23 July 2017 through a date following the opening of the escrow account. The ad hoc Committees classified the application as an application for temporary stay of enforcement of the awards and set out the legal requirements for such an application, namely that such a stay may only be granted where the committee considers that the circumstances so require. The Committees highlighted the Applicant's failure to argue both the nature and content of the requirements of its application, before considering the Applicant's submission that the Respondents' delays justify the seeking of measures. The Committees rejected the Applicant's submission on this issue, identifying a lack of evidence of such delay. The ad hoc Committees dismissed the Applicant's application for provisional measures, and directed the parties to establish escrow account arrangements in accordance with paragraph 99(4) of the Decisions on Stay, which must be submitted for review and approval by the Committees by 15 September 2017.

Main issues

How do the requirements for an application for provisional measures and temporary stays of enforcement differ; whether the application meets the requirements for a temporary stay of enforcement of the awards; to what extent Committees' jurisdiction to prolong a restitution window may persist beyond reinstatement of the window.

Bernhard von Pezold and others v. Republic of Zimbabwe (ICSID Case No. ARB/10/15) - Annulment Proceeding - AND - Border Timbers Limited and others v. Republic of Zimbabwe (ICSID Case No. ARB/10/25) - Annulment Proceeding - 22 August 2017

Case report provided by International Arbitration Case Law (IACL)

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