Masdar Solar and Wind Cooperatief UA v Spain - ICSID Case No. ARB/14/1 - Decision on the Respondent's Application to Stay Enforcement of the Award - 24 August 2018
1. On 29 June 2018, the Kingdom of Spain filed with ICSID a Request for a Supplementary Decision in respect of the Award rendered by the Tribunal on 16 May 2018 (the "Award"), together with Annexes I to III (the "Request"). The Request was registered by the ICSID Secretary-General on 5 July 2018. It was transmitted to the Members of the Tribunal that same day, in accordance with Rule 49(2)(d) of the ICSID Arbitration Rules.
2. The Request included an application by the Kingdom of Spain to stay enforcement of the Award (the "Application").
3. Pursuant to Rule 49(3) of the ICSID Arbitration Rules, the Tribunal conveyed the following message to the Parties on 19 July 2018:
"The Tribunal invites the Claimant to reply to [the] Kingdom of Spain's application to stay enforcement of the Award `until a decision pursuant to Article 49 of the ICSID Convention is rendered' by Friday, 27 July 2018. The Claimant's submission in reply to the supplementation issues is to be served by Friday, 14 September 2018.
In addition, the Parties are invited to confer and to seek to agree whether they envisage the filing of any further submissions after those identified above, and whether they anticipate a procedure other than that the Tribunal shall determine the issues on the documents. The Parties are asked to inform the Tribunal by Friday, 27 July 2018. The Tribunal is not persuaded that a further oral hearing is necessary.
The Tribunal considers, too, that it should be made clear to the Parties now that there was no Dissenting Opinion and hence there is none to be produced. The Award is complete as it stands and is a decision of the Tribunal. It is clear on the face of the Award to what extent it is unanimous and to what extent it is a decision of the Tribunal by a majority."
4. On 26 July 2018, Claimant submitted its Reply (the "Reply") to the Application.
15. As a preliminary matter, the Tribunal draws attention to the decisions of the Ad Hoc Committees in Vivendi and Wena Hotels (see below) as to the nature and purpose of the supplementation procedure provided for by Article 49(2) of the ICSID Convention.
In Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic,12 the Ad Hoc Committee made clear that:
"It is important to state that that procedure, and any supplementary decision or rectification as may result, in no way consists of a means of appealing or otherwise revising the merits of the decision subject to supplementation or rectification. Those sorts of proceedings are simply not provided for in the ICSID system."
In Wena Hotels Limited v. Arab Republic of Egypt,13 the Ad Hoc Committee concluded that:
"A proceeding under Article 49(2) would not allow the Tribunal to go further than to decide upon the question it had omitted to deal with."
16. The Tribunal has considered with care the three principal grounds advanced by the Kingdom of Spain in support of its Application.
17. As to the first of those grounds, the Tribunal is not persuaded that it has the power to order a stay of enforcement in connection with a request for supplementary decision made pursuant to Article 49(2) of the ICSID Convention, as in the case at hand. The Tribunal notes that its position is confirmed by many leading commentators:
- "Proceedings for supplementation and rectification do not lead to a stay of enforcement but they postpone the time limits for revision and annulment.";14
- "A stay of enforcement is not possible in connection with a request for supplementation or rectification in accordance with Art. 49(2).";15
- "There is also no scope under Rule 54 of the Arbitration Rules for the parties to request a stay of enforcement pending a supplementary decision or a decision on rectification".16
18. In support of its proposition that the Tribunal is entitled to stay the enforcement of the Award pursuant to Articles 44 and 46 of the ICSID Convention,17 the Kingdom of Spain places particular reliance upon the second sentence of Article 44, which reads as follows:18
"If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question." (emphasis added)
19. This provision empowers an arbitral tribunal to make decisions on procedure:
"where the rules do not cover the procedural issue at hand and the established methods of interpretation for treaties and other legal documents fail to yield an answer to the question of procedure under consideration. If the tribunal then finds that the rules genuinely do not cover the situation, it may not, however, go beyond the framework of the Convention, the Arbitration Rules and the parties' procedural agreements."19 (emphasis added)
20. The issue of a stay of enforcement of an award is expressly covered by ICSID Arbitration Rule 54(1). It contemplates the possibility of the grant of a stay of enforcement only when a party applies "for the interpretation, revision or annulment of an award".20 Pursuant to this Rule, an ICSID tribunal has the power to order the stay of enforcement of an award only in connection with an application for these post-award remedies. Thus, Article 44 of the ICSID Convention cannot be invoked in this case: the issue of the stay of enforcement of the award is addressed by ICSID Arbitration Rule 54, which does not give the Tribunal the power to order a stay of enforcement in connection with an application to supplement an award pursuant to Article 49(2) of the ICSID Convention.
21. So far as Article 46 of the ICSID Convention is concerned, the Kingdom of Spain merely cites the Article without giving any reason to support its argument. Article 46 of the ICSID Convention states that:
"Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre."21 (emphasis added)
22. The Request does not contain "any incidental or additional claims or counterclaims"; it is merely a request for supplementation of the Award pursuant to Article 49(2) of the ICSID Convention. Thus, Article 46 of the ICSID Convention is inapplicable in the present case.
23. Under Article 53 of the ICSID Convention, an ICSID Convention award is binding, and its terms must be complied with by the parties to the dispute.22 The post-award remedies which allow an ICSID Tribunal to order a stay of enforcement are regulated by Articles 50 to 52 of the ICSID Convention and ICSID Rules 50 to 55; a stay of enforcement is not contemplated for supplementation and rectification of an award (Art. 49(2) of the ICSID Convention).
24. In light of the above, the Tribunal concludes that it has no power to order the stay of enforcement in connection with an application to supplement an award pursuant to Article 49(2) of the ICSID Convention.
25. In view of the conclusion reached by the Tribunal on the first ground, it is not necessary to consider the second ground advanced by the Respondent.
26. As to the third ground, the Tribunal notes that the last sentence of Article 49(2) of the ICSID Convention reads as follow: "The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered." (emphasis added).
27. The Tribunal notes the clarification on ICSID's website to the effect that: "The decision on the request for supplementary decision becomes part of the award. If a party subsequently wishes to resort to other remedies under the Convention, the time limits for such remedies are measured from the date on which the decision was issued".23 (emphasis added).
28. The Tribunal respectfully adopts the reasoning of the Ad Hoc Committee in Continental Casualty Company v. The Argentine Republic24
23. The Committee considers that this issue is one of interpretation of Article 49(2) of the ICSID Convention. In interpreting that provision, the Committee applies the principles in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (the "Vienna Convention"). These provisions reflect the customary international law rules of treaty interpretation as they already existed at the time that the text of the ICSID Convention was adopted. [...]
25. For purposes of Article 31(1) of the Vienna Convention, the Committee considers that the plain meaning of Article 49(2) of the ICSID Convention is abundantly clear: where a rectification decision is given under Article 49(2) of the ICSID Convention, the period of time provided for under Article 52(2) of the ICSID Convention runs from the date of the rectification decision, rather than from the date of the original award.
26. The Committee considers that there is nothing in the context or objects and purposes of the ICSID Convention that would require this provision to be understood as having a completely different meaning to what it plainly says. [...]
27. [...] The Committee does not consider that it would in any way be inconsistent with the object and purpose of the ICSID Convention to interpret this provision in accordance with its plain meaning.
28 [...] The Committee considers that the wording of Article 49(2) of the ICSID Convention is clear and that it is entirely reasonable for the ICSID Convention to maintain a single time limit for all annulment applications in cases where there is a rectification decision, regardless of whether or not the rectification decision affects the part of the award that is sought to be annulled.
29. For the foregoing reasons, the Tribunal rejects the Respondent's Application.
30. The Tribunal will decide on the costs of the Application in its decision on the Request.