Summary

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

TABLE OF CONTENTS

I. INTRODUCTION
II. PROCEDURAL HISTORY
III. PANAMA'S APPLICATION TO STAY ENFORCEMENT OF THE AWARD

A. The Parties' Positions
1. Panama's Position
2. Dominion's Position

B. The Committee's Analysis
1. Applicable Legal Standard
2. The Circumstances of the Present Case
3. Decision on the Stay Request

IV. PANAMA'S APPLICATION UNDER ARBITRATION RULE 41(5)
A. The Parties' Positions
1. Panama's Position
2. Dominion's Position
B. The Committee's Analysis
1. The Standard and Burden of Proof
2. Whether Dominion's Application under Convention Article 52(1)(d) Is Manifestly Without Legal Merit
3. Whether Dominion's Application under Convention Article 52(1)(e) Is Manifestly Without Legal Merit
4. Whether Dominion's Application under Convention Article 52(1)(b) Is Manifestly Without Legal Merit

V. COSTS
VI. DECISION

I. INTRODUCTION

1. This Decision addresses applications by the Republic of Panama ("Panama" or the "Respondent") (i) to stay the enforcement of the award dated November 5, 2020, rendered by the Tribunal in Dominion Minerals Corp. v. Republic of Panama, ICSID Case No.

ARB/16/13 ("Award"); and (ii) to dismiss under ICSID Arbitration Rule 41(5) the application for annulment made by Dominion Minerals Corp. ("Dominion" or "Applicant").

2. This Decision is structured as follows:

-- Section II outlines the procedural history of these proceedings to date.
-- Section III addresses Panama's application to stay enforcement of the Award.
-- Section IV addresses Panama's application under ICSID Arbitration Rule 41(5).
-- Section V briefly addresses the costs of this part of the process.
-- Section VI records the Committee's operative decision and orders.

3. Throughout this Decision, the Parties' positions on each issue are summarized briefly. Each such summary is not intended to be exhaustive, but rather to reflect the Parties' principal arguments. For the avoidance of doubt, the Committee has carefully considered the entirety of the Parties' submissions in arriving at its determination, and the absence of reference to any particular matter should not be taken as an indication that the Committee has not considered the same.

II. PROCEDURAL HISTORY

5. On November 5, 2020, the Tribunal rendered its Award, which included a dissenting opinion of Arbitrator Charles Poncet ("Dissenting Opinion") and an additional declaration of President Alfredo Bullard and Arbitrator Alexis Mourre.

6. In the Award, the Tribunal found that Panama had breached certain provisions of the Treaty Between the United States of America and the Republic of Panama Concerning the Treatment and Protection of Investments signed on 27th of October 1982 in Washington, D.C., as amended by a Protocol Between the Government of the United States of America and the Government of the Republic of Panama signed on the 1st of June 2000 (the "BIT" or "Treaty"). In particular, the Tribunal decided (inter alia) as follows:

b. Panama has violated Articles II and IV of the Treaty and international law with respect to the Claimant's investment, respectively, by failing to accord fair and equitable treatment, by impairing the management, operation, use and enjoyment by arbitrary measures; and by expropriating the Claimant's investment without prompt, adequate and effective compensation.

c. Panama shall pay damages to Dominion in an amount of US$ 14,111,140.80, plus pre- and post-award annually compound interest at a rate of U.S. Dollar LIBOR + 4% from March 26, 2012 until the date of Panama's full and effective payment.

d. Panama shall pay additional direct damages to Dominion in an amount of US$ 1,861,689.25, plus pre- and post-award annually compound interest at a rate of U.S. Dollar LIBOR + 4% from November 30, 2017 until the date of Panama's full and effective payment.

[...]

f. Respondent shall be responsible for (i) 25% of the Claimant's legal costs including attorney's fees and expenses, with the exclusion of any amount derived from the third party funding agreements, as well as (ii) 25% of the expended portion of the Claimant's advances to ICSID (as reflected in ICSID's final case account balance) plus post-award annually compound interest at a rate of U.S. Dollar LIBOR + 4% until the date of Panama's full and effective payment

7. On March 4, 2021, Dominion filed its Application for Partial Annulment of the Award ("Application for Annulment") pursuant to Article 52 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention"

or "Convention") and Rule 50 of the ICSID Rules of Procedure for Arbitration Proceedings ("Arbitration Rules").

8. In the Application for Annulment, Dominion submits that:2

(i) the Tribunal manifestly exceeded its powers under Article 52(1)(b) of the Convention;

(ii) there has been a serious departure from a fundamental rule of procedure under Article 52(1)(d) of the Convention; and

(iii) the Award has failed to state the reasons on which it is based under Article 52(1)(e) of the Convention.

9. On the basis of these grounds, Dominion seeks annulment of (i) "the majority's decision as to damages as set forth in paragraphs 780(c) and 780(d) of the Award, together with the relevant reasoning set forth in Title VII - Damages, found at pages 145 to 190" (the "Award on Damages"); and (ii) "the majority's decision as to costs as set forth in paragraph 780(f) of the Award, together with the relevant reasoning set forth in Title VIII - Costs, found at pages 191 to 204" (the "Award on Costs").3 Dominion also requests that Panama bear all of the costs of the annulment proceedings, including its legal fees, with interest, pursuant to Articles 61(2) and 52(4) of the ICSID Convention

10. On March 17, 2021, the Secretary-General of the International Centre for Settlement of Investment Disputes ("ICSID" or "Centre") registered the Application for Annulment.

11. On April 15, 2021, ICSID submitted a proposal for the composition of the ad hoc committee and invited the Parties to comment on it by April 26, 2021. Dominion and Panama filed their observations on April 26 and April 30, 2021, respectively.

12. On May 25, 2021, the Secretary-General notified the Parties that the three members of the ad hoc committee ("Committee") had accepted their appointments. Accordingly, the Committee was deemed to have been constituted and the annulment proceeding to have begun as of that date pursuant to Arbitration Rules 6 and 53.

13. The Committee is composed of Mr. Toby Landau QC, a national of the United Kingdom, President of the Committee; Ms. Loretta Malintoppi, a national of Italy; and Ms. Dyalá Jiménez Figueres, a national of Costa Rica. Mr. Marco Tulio Montañés-Rumayor, ICSID Legal Counsel, was designated to serve as Secretary of the Committee.

...

V. COSTS

191. Panama has requested that the Committee:

Award Panama all of its costs and expenses associated with this phase of the proceeding.

192. Dominion has sought an order:

that Dominion be awarded the costs, fees and expenses of this application, inclusive of attorneys' fees;

193. The Committee is of the view that costs arising out of Panama's Stay Request and Panama's Rule 41(5) Request should be reserved for a subsequent stage of the proceedings.

VI. DECISION

194. For the reasons set out herein, the Committee decides that:

(i) Panama's application to stay the enforcement of the Award is granted.
(ii) Panama's application under Arbitration Rule 41(5) is dismissed.
(iii) The costs arising out of Panama's application to stay the enforcement of the Award and Panama's application under Arbitration Rule 41(5) are reserved for a subsequent stage of the proceedings.

Mr. Toby Landau QC
President of the Committee

Footnotes omitted from this introduction.