ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhillips Gulf of Paria B.V. v. Bolivarian Republic of Venezuela - ICSID Case No. ARB/07/30 - Annulment Proceeding - Order on Applicants Representation - English - 3 April 2020
Reproduced from www.worldbank.org/icsid with permission of ICSID.
ORDER ON THE APPLICANT'S REPRESENTATION
I. Procedural Background
1. On 27 November 2019, the Centre received an electronic copy (without exhibits) of an "Application for Annulment" of the Award rendered on 8 March 2019, in the present proceedings, submitted by Mr. George Kahale from the law firm Curtis, Mallet-Prevost, Colt & Mosle LLP ("Curtis") on behalf of the Bolivarian Republic of Venezuela. Along with the Application, the Centre received the lodging fee.
2. Upon delivery of the corresponding hard copies, supporting documentation and USB drives, the Centre transmitted the Application "to counsel of record in the arbitration proceedings" (i.e. Freshfields and Three Crowns on behalf of the Conoco parties and Curtis, De Jesús & De Jesús and Dentons on the side of Venezuela).
3. On 5 December 2019, the Centre received an electronic copy (without exhibits) of an "Application for Annulment" submitted by Dr. Alfredo De Jesús O. from the law firm De Jesús & De Jesús ("De Jesús"). The Application was signed by Mr. Reinaldo Enrique Muńoz Pedroza, Procurador General de la República Bolivariana de Venezuela (E) (Acting Attorney General) "in representation of the Bolivarian Republic of Venezuela by the Procuraduría General de la República de Venezuela" and was substantively identical to the one filed by Curtis on 27 November 2019. The Centre also received the corresponding lodging fee. On 16 December 2019, electronic copies of this Application were transmitted "to counsel of record in the arbitration proceedings."
4. On 16 December 2019, the Centre wrote to the parties in reference to "the Application for Annulment submitted by Mr. George Kahale on November 27, 2019, and by Dr. Alfredo De Jesús O. on December 5, 2019, on behalf of the Bolivarian Republic of Venezuela." The parties were informed that the Secretary- General "registered an Application for Annulment of the Award rendered on March 8, 2019."
5. Neither Curtis nor De Jesús addressed the issue of Venezuela's representation at that stage or identified the authority upon which it purported to act for Venezuela.
6. On 3 February 2020, the Committee was constituted, and the parties were informed that the annulment proceedings were deemed to have begun.
7. On 4 February 2020, the Respondent on Annulment (hereinafter "Conoco" or the "Claimants") opposed Venezuela's request to continue the stay of enforcement. The Claimants also proposed a briefing schedule.
8. On 5 February 2020, the Committee invited the Applicant (hereinafter also referred to as "Venezuela" or the "Respondent") to comment on Claimants' procedural proposals.
9. On 11 February 2020, Curtis rejected Claimants' proposed schedule and proposed instead 16 March 2020 for Venezuela's response.
10. On 12 February 2020, De Jesús proposed the same deadline for Venezuela's response (i.e. 16 March 2020).
11. On 13 February 2020, the Claimants objected to Venezuela's proposed deadline and made an alternative proposal.
12. On 18 February 2020, the Committee fixed 16 March 2020 for Venezuela's response on the stay of enforcement of the Award.
13. On 20 February 2020, the Committee circulated a draft procedural order concerning the organization of the proceedings. The parties were invited to confer on the draft and to submit a joint proposal including any agreed amendments.
14. On 25 February 2020, the Committee fixed a date for the first session and proposed additional dates for a hearing on the issue of the stay of enforcement of the Award.
15. On 2 March 2020, De Jesús, Curtis and the Claimants confirmed their availability on the proposed dates.
16. On 13 March 2020, De Jesús and Claimants submitted their comments and proposals on the draft procedural order circulated on 20 February 2020. So too did Curtis on 14 March 2020.
17. On 15 March 2020, De Jesús sent a letter asking the Committee to "exclude the participation" of Curtis from this proceeding on the basis that it is acting on a power of attorney issued by "a person who does not exercise any authority or power within the Venezuelan legal system."
18. On 16 March 2020, De Jesús and Curtis submitted each a response on Claimants' Opposition to Venezuela's Request to Continue the Stay of Enforcement of the Award.
19. On 19 March 2020, the Committee invited Curtis and the Claimants to comment on De Jesús' 15 March letter regarding Venezuela's representation in this proceeding.
20. Curtis and the Claimants submitted their respective comments on 30 March 2020. De Jesús replied on 31 March 2020.
 Earlier in the post-award proceedings, Mr. Kahale submitted a power of attorney granted to him by Mr. José Ignacio Hernández González, Procurador Especial de la República Bolivariana de Venezuela (Special Attorney General), when he filed the Application for Rectification of the Award that led to the "Decision on Rectification". The Centre registered that request on 18 April 2019.
The power of attorney included the authority to file an annulment application on behalf of Venezuela. Up until 6 March 2019, Curtis had acted in the arbitration proceedings upon the authority of a power of attorney that was revoked on March 6, 2019 by the Acting Attorney General.
During the rectification proceeding, the Centre also received a power of attorney signed by the Acting Attorney General, Mr. Reinaldo Enrique Muńoz Pedroza, to the law Firms De Jesús & De Jesús and Dentons Europe SC LLP. The power of attorney included the authority to file an annulment application on behalf of Venezuela.
In its "Decision on Rectification" the Tribunal did not decide on the representation of Venezuela. It considered that this was unnecessary because there were no conflicting positions (a single Rectification Request was filed) and it was clear that Venezuela was the proper party to the proceeding. It listed on the back side of the cover of the Decision on Rectification all counsel mentioned above.