ConocoPhillips Company and others v Venezuela - ICSID Case No. ARB/07/30 - Annulment Proceeding - Order on Venezuela Request for Reconsideration - 2 November 2020
Reproduced from www.worldbank.org/icsid with permission of ICSID.
I. Procedural Background
1. On 27 November 2019, the Centre received an electronic copy 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 Muñoz Pedroza, Procurador General de la República Bolivariana de Venezuela (E) (Acting Attorney General) "in representation of the Bolivarian Republic of Venezuela by the Procuradoría 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 5 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. On 3 February 2020, the Committee was constituted, and the Parties were informed that the annulment proceedings were deemed to have begun.
6. Following several communications from the parties, 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 was acting on a power of attorney issued by "a person who does not exercise any authority or power within the Venezuelan legal system."
7. 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.
Curtis and the Claimants submitted their respective comments on 30 March 2020.
De Jesús replied on 31 March 2020.
8. On 3 April 2020, the Committee issued an "Order on the Applicant's Representation". The Committee decided not to exclude Curtis from these proceedings and to reject De Jesús' application of 15 March 2020.
9. On 9 April 2020, De Jesús requested that the Committee revisited its 3 April Order.
De Jesús contended that the Committee ought to amend the Order on the Applicant's Representation "because it lacks a legal basis as it disregards Venezuelan law, the only applicable law to resolve the issue of representation of the Republic" and "ignores the relevant facts in its assessment for the resolution of the issue of representation of the Republic."
10. On 13 April 2020, the Conoco Parties and Curtis submitted their respective comments on De Jesús's request for the Committee to revisit its Order on the Applicant's Representation, and on 14 April 2020, De Jesús replied.
11. On 15 April 2020, the Committee ruled on De Jesús' 9 April application. The Committee observed that the application was based on arguments which were already made by Dr. De Jesús in his previous letters and had been considered by the Committee when it decided to reject De Jesús's first application. The Committee therefore denied De Jesús' 9 April application, although it reminded the parties that its Order was "limited to the present stage of the proceedings and is subject to review in light of future developments."
12. The next day, 16 April 2020, De Jesús filed a proposal to disqualify the three Members of the Committee on behalf of Venezuela. The Disqualification Proposal stated inter alia that the terms of the Order on the Applicant's Representation demonstrated that each of the three members of the Committee can no longer be relied upon to exercise independent judgment, as required by Article 14(1) of the Convention.
13. On 10 August 2020, the Chairman of the Administrative Council dismissed the disqualification proposal, following a recommendation to that effect made by The Rt. Hon. Lord Phillips of Worth Matravers, K.G. The proceedings resumed that day.
14. On 3 August 2020, De Jesús requested that the Committee reconsider its Order on Representation of 3 April 2020. On 12 August 2020, Curtis and the Conoco Parties commented on this request.
15. On 28 August 2020, the Committee communicated that it would hear the Parties on this matter and the stay of enforcement of the Award during the hearing that was then reconvened.
16. On 30 September 2020, the Committee held a hearing by videoconference. The Parties were given the opportunity to address De Jesús 3 August application and to expand upon it if they wished (which De Jesús did).
41. The Committee decides:
- to reject the request for reconsideration of the Order on Representation of 3 April 2020; and that
- all questions concerning the costs and expenses of the Committee and of the Parties in connection with this request are reserved for subsequent determination, together with the Application for Annulment.
On behalf of the Committee,
Judge Dominique Hascher