In a series of recent awards, ICSID tribunals have adopted contrasting (and apparently irreconcilable) approaches to Venezuela’s denunciation of the ICSID Convention. Venezuela denounced the Convention on 24 January 2012 and the denunciation took effect six months later, on 25 July 2012. The denunciation triggered a number of new claims against Venezuela between 24 January and 24 July 2012. The recent awards have considered whether those claims were timely and admissible, with particular reference to Articles 71 and 72 of the Convention.
One recent award (Fábrica de Vidrios Los Andes, also known as Favianca) found that the tribunal did not have jurisdiction over such a claim because the mutual consent to arbitrate had not been formed before 24 January 2012. Therefore, a tribunal would not have jurisdiction where the investor failed to communicate its consent to ICSID arbitration before Venezuela denounced the Convention on 24 January 2012.
By contrast, tribunals in the Venoklim, Blue Bank and (as yet unpublished) Transban awards held that claims filed between 24 January and 24 July 2012 were admissible. Thus, in the most recent award in Transban of 22 November 2017, the tribunal held that the claimant could invoke ICSID arbitration at any time before the notice of denunciation took effect, namely, before 25 July 2012. Each of those claims was, however, dismissed on other jurisdictional grounds.
For the ICSID Convention click here; for the Favianca award (ICSID Case No. ARB/12/21) click here; for the Venoklim award (in Spanish; ICSID Case No. ARB/12/22) click here; for the Blue Bank award (ICSID Case No. ARB/12/20) click here.