Summary

Reproduced from www.worldbank.org/icsid with permission of ICSID.

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PROCEDURAL HISTORY

3. On October 2, 2019, Ecuador presented an Application for Annulment (the "Application for Annulment") of the Award dated September 27, 2019, issued in ICSID Case No. ARB/08/6 between Perenco Ecuador Limited and the Republic of Ecuador (the "Award"). Pursuant to Article 52(5) of the ICSID Convention, Respondent requested the ICSID Secretary-General to notify the provisional stay of enforcement of the Award until the ad hoc Committee rules on such request, and that the stay be maintained until a decision on the Application for Annulment is rendered by the Committee.[1]

4. By letter dated October 4, 2019, the Acting ICSID Secretary-General registered the Application for Annulment and notified the provisional stay of enforcement of the Award, in accordance with ICSID Arbitration Rule 54(2).

5. On November 8, 2019, Perenco submitted its Opposition to Ecuador's Request to Continue the Provisional Stay of Enforcement, dated November 7, 2019 ("Claimant's Opposition to the Stay"), accompanied by Annex A (Decisions on Stays of Enforcement since November 2014).

6. In its Opposition to the Stay, the Claimant requested that the Committee lift the provisional stay of enforcement of the Award pending its decision on the Application for Annulment, or in the alternative, that the ad hoc Committee order Ecuador to provide, within 30 days of its decision on the issue of the stay, a deposit for the net amount of the Award, including accrued interest, into an escrow account; or an unconditional and irrevocable bank guarantee or letter of credit for the net amount of the Award, including accrued interest.[2]

7. On November 18, 2019, the ad hoc Committee was constituted in accordance with ICSID Arbitration Rules 6, 52(2), and 53. Its Members are: Professor Eduardo Zuleta (President), a national of Colombia; Professor Rolf Knieper, a national of Germany; and Professor Mónica Pinto, a national of Argentina (the "Committee"). Ms. Veronica Lavista, ICSID Legal Counsel, was designated to serve as the Secretary of the Committee.

8. In separate communications dated November 19, 2019 and November 21, 2019, Respondent and Claimant respectively presented their comments regarding the schedule of submissions on the issue of the stay.

9. By letter dated November 25, 2019, the Committee fixed the schedule of written submissions regarding the issue of the stay. The timetable was set as follows: on or before December 6, 2019 Ecuador would file its reply to Perenco's opposition to the request for continuation of the stay; on or before December 18, 2019 Perenco would file its rejoinder on the request for continuation of the stay; and an oral hearing on the continuation of the stay would take place in Washington, D.C., which would be conducted together with the First Session of the annulment proceeding. In the same letter, the Committee decided to maintain the stay of enforcement until it issued its decision on the continuation of the stay.

10. The Parties presented their written submissions in accordance with the schedule set by the Committee. The oral hearing on the continuation of the stay took place on January 13, 2020 in Washington, D.C. The following persons were present at the hearing

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DECISION

82. The Committee, based on the above considerations, decides to provisionally continue the stay of enforcement of the Award subject to the following:

a. Respondent is ordered to provide the ad hoc Committee, within 60 days following this decision, with a letter signed by Ecuador's Minister of Finance or the official having full authority to bind Ecuador, committing to pay the Award unconditionally, voluntarily and in full, within 60 days after the Committee decides on the Application for Annulment, if the Application for Annulment were not to be upheld in full or in part, and attesting that such payment shall not be subject to any enforcement proceedings or to the intervention of Ecuador's courts.

b. If Ecuador were not to provide the letter under ¶ 82(a) with a text in form and substance satisfactory to the Committee within 60 days following the issuance of this decision, the stay shall be lifted if by such date or at any time thereafter Claimant has provided or provides the ad hoc Committee with a letter signed by an officer having full authority to bind Perenco S.A. committing to unconditionally, voluntarily and in full reimburse Ecuador for any payments received under the Award, within 60 days after the Committee decides on the Application for Annulment, if the Application for Annulment were to be upheld in full or in part and attesting that such payment shall not be subject to any enforcement proceedings or court intervention.

83. The decision on the allocation of costs arising from the request for a continuation of the stay is reserved.

84. All other requests are rejected.

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[1] Respondent's Application for Annulment, October 2, 2019, ¶¶ 250-252.

[2] Claimant's Opposition to the Stay, ¶ 40; Claimant's Rejoinder to Ecuador's Request to Continue the Provisional Stay of Enforcement, December 18, 2019 ("Claimant's Rejoinder on the Stay"), ¶ 107.