The case concerns Agility's application to annul the arbitral award rendered on 22 February 2021 in ICSID Case No Arb/17/7 between Agility and the Republic of Iraq. That original arbitral award dismissed in full claims advanced by Agility relating to Iraq's expropriation of Agility's investment of over USD 380 million, its failure to treat Agility fairly and equitably, and its failure to accord Agility with due process, each in breach of the bilateral investment treaty signed between Kuwait and Iraq.
Ad Hoc Committee on Annulment Under the Auspices of the International Centre for Settlement of Investment Disputes (ICSID)
8 February 2024: The Annulment Committee upheld Agility's challenge to the original award and partially annulled it. The Annulment Committee agreed with Agility that the original Tribunal had erroneously shielded Iraq's actions from scrutiny, thereby failing to examine whether Iraq's actions and omissions violated the protections afforded to Agility under the BIT. In so doing, and in failing to state the reasons on which its decision was based, the original Tribunal committed an annullable error pursuant to Article 52(1)(b), as well as Article 52(1)(e), of the ICSID Convention. Consequently, the Committee declared the original 2021 judgment to be partially annulled.
As a result of this award, Agility will now have the opportunity to re-file its claims before a freshly-constituted arbitral tribunal under the auspices of the International Centre for the Settlement of Investment Disputes who will be able to determine Agility's claims including relating to Iraq's expropriation of Agility's investment, its failure to treat Agility fairly and equitably, and its failure to accord Agility with full protection and security as required by the BIT.