Res Iudicata and Interlocutory Decisions under the ICSID Convention: Antinomies over the Power of Tribunals to Review

Res Iudicata and Interlocutory Decisions under the ICSID Convention: Antinomies over the Power of... Abstract There is little doubt that res iudicata is a general principle of law. But its application in investment treaty arbitration remains varied. A recent fracture in the case law of investment tribunals concerns the apparent dilemma of the res iudicata effect, if any, of interlocutory, i.e. pre-award, decisions rendered under the ICSID Convention. The article explores res iudicata and its scope in light of the formal distinction between decisions and awards under the ICSID Convention. It engages critically with the relevant case law and argues that, in contrast to awards, decisions do not carry the res iudicata effect. But the absence of res iudicata does not mean that the reopening of a decision is always justified and special regard must be had to the specific circumstances. I. INTRODUCTION There is little doubt, if any, that res iudicata is a general principle of law.2 But its application in investment treaty arbitration remains varied. While academic discourse on the topic has been dominated by the fracture in arbitral case law between the triple identity test (identity of personae, petitum, causa petendi)3 and the common law approach that accepts the pleas of ‘claim preclusion’ and ‘issue preclusion’ (and the equivalent ‘issue estoppel’ or ‘collateral estoppel’),4 a more recently unveiled apple of discontent concerns an apparent different dilemma: the res iudicata effect, vel non, of provisional decisions rendered under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Unlike other arbitration systems, the ICSID Convention draws a distinction between a provisional, interim or interlocutory, ie a pre-award, ‘decision’,5 and an ‘award’. I use ‘provisional’, ‘interim’ or ‘interlocutory’ advisedly, to foreground the non-final nature of a decision under the ICSID Convention. In contrast, an award is de facto final. The fulcrum of the res iudicata issue under the ICSID Convention is revealed in the following statement: ‘the claim on which the award has decided must not be the subject of another proceeding before a domestic court or arbitral tribunal’.6 But how about the claim on which a decision has decided within the same proceeding? Is such a decision res iudicata and, if not, can it be revisited by a tribunal? The above interpretation appears to exclude decisions from the scope of res iudicata, but some investment tribunals have held otherwise: they declined to reopen a decision considering that it was res iudicata. Some legal commentators, while mildly deploring a particular decision in the latter strain of the case law as delivered ‘under the specific circumstances’ considered that the approach has ‘legitimate appeal’.7 The doubt is raised at a time when proceedings are often bifurcated and the question of whether decisions under the ICSID Convention are res iudicata is likely to arise repeatedly.8 In light of these elements, it becomes pertinent to enquire into whether decisions under the ICSID Convention are capable of producing res iudicata effects. The remainder of this article is structured in the following manner. Part II canvasses binding effect as a constituent element of res iudicata and draws the distinction between awards and decisions under the ICSID Convention. Part III engages critically with the relevant case law and the arguments that were raised therein. Part IV considers two remaining issues: the pertinence of the specific circumstances and the allegation that upholding the res iudicata effect of decisions constitutes non liquet. The final part concludes. II. BINDING EFFECT AND THE DISTINCTION BETWEEN AWARDS AND DECISIONS UNDER THE ICSID CONVENTION A. Binding effect and res iudicata The res iudicata effect of an award is tethered to its finality, or binding character, and ultimately to its enforceability. In Ampal v Egypt, the tribunal held that the findings of an earlier contractually-appointed tribunal relevant to the claims before it carried res iudicata effect for the very reason that the award of that tribunal was binding upon the parties.9 Pursuant to Article 53(1) of the ICSID Convention, an ICSID award is binding on the parties and it is not subject to appeal or any other remedy except as provided for in the Convention.10 This provision enounces what could be termed the award’s internal binding effect, limited to the parties to the particular proceeding.11 (However, this should not detract from the fact that one of the parties to the dispute is a State.) It is complemented by Article 54(1) of the ICSID Convention which instructs the contracting States to recognise an award as binding and enforce the pecuniary obligations imposed by it. Article 54 broadens the ‘recipients’ of the award’s binding nature and articulates what could be termed its external binding effect. Since the State’s obligation to recognise the award as binding and enforce the pecuniary obligations imposed by it under Article 54(1) of the ICSID Convention is owed to other State parties, its violation could engage the international responsibility of the State.12 According to ICSID Convention: A Commentary, it is the obligation to recognise an award as binding that renders it res iudicata.13 By this token, enforceability is relegated to an element of indirect significance when attributing res iudicata. This makes sense when considering specific performance as a remedy ordered by a tribunal: the res iudicata effect of an award granting non-pecuniary remedies is not affected by the fact that only pecuniary obligations are enforceable under the ICSID Convention.14 This same comment, taken literally, appears to indicate that it is the award’s external binding effect only that matters for res iudicata. It is uncertain whether this is intentional. However, it is also the approach taken in Standard Chartered Bank v Tanzania, where the Tribunal held that while decisions are binding within the proceedings, this does not make them res iudicata.15 The Tribunal considered that a cardinal feature of res iudicata is that ‘the judgment in question produces effects on the parties outside the proceedings in which it is granted’.16 Similar reasoning was followed in Burlington v Ecuador.17 Without prejudging the issue, it is worth considering the particular case of provisional measures under the ICSID Convention. The discussion is relevant because provisional measures under the ICSID Convention are granted by an interim decision and should be plainly distinguished from awards,18 their binding nature is disputed, and it is clear that they are not vested with res iudicata effect. The purpose of provisional measures is to safeguard rights subject to adjudication and to prevent an aggravation of the status quo, such as by securing discovery of evidence.19 Provisional measures are adopted when the dispute is still pending.20 In contrast with other arbitration rules,21 under the ICSID Convention decisions on provisional measures do not in fact appear to be binding. That much is true in light both of the wording of Article 47 of the Convention, which clearly states that the tribunal may ‘recommend’ provisional measures,22 and of that article’s drafting history.23 This reveals that the link between binding character and res iudicata can display a different timbre depending on context. However, ICSID tribunals have consistently opined that recommendations of interim measures have a binding effect on the parties.24 Notice that the question is one of the measures’ legal effect on the parties (internal binding effect); states are under no obligation to recognise as binding and to enforce decisions on such measures.25 Binding or not, provisional measures under the ICSID Convention do not carry res iudicata effect and can be revisited by the tribunal. Rule 39(3) of the ICSID Arbitration Rules is unequivocal about this: a tribunal may ‘at any time’ revise or revoke interim measures it has recommended. In Víctor Pey Casado v Chile, the tribunal, which had otherwise considered that provisional measures are binding,26 held that they are not res iudicata. Accordingly, it stated that provisional measures can be modified or revoked at any time and that they are valid only for the duration of the proceeding and would automatically lapse if the tribunal decided that it had no jurisdiction.27 Other tribunals have also emphasised that the decision on provisional measures is not res iudicata, that it is without prejudice to later decisions on jurisdiction and that it can be revisited.28 But if decisions in general were res iudicata, decisions on interim measures too would have to be. However, Rule 39(3) of the ICSID Arbitration Rules could be considered as a lex specialis in this case, expressly allowing tribunals to revise decisions on interim measures. If the binding or non-binding nature of an award or decision is the litmus test to determine res iudicata, in contrast to awards, decisions that are not binding lack the res iudicata effect.29 While Articles 53 and 54 of the ICSID Convention attribute binding effect to ‘awards’, no equivalent provision exists for ‘decisions’. It is appropriate then to consider the distinction between an ‘award’ and a ‘decision’ under the ICSID Convention. B. The distinction between awards and decisions for purposes of res iudicata: Are awards from Mars and decisions from Venus? Article 48(3) of the ICSID Convention specifies that an ‘award’ deals ‘with every question submitted to the Tribunal’, and it must state the reasons upon which it is based. This provision is supplemented by Rule 47(1) of the ICSID Arbitration Rules which mandates that the award contain ‘the decision of the Tribunal on every question submitted to it’.30 In other words, the award must incorporate the conclusions on all questions submitted to the tribunal and decided before the final award, to ensure that it is not infra petita, ie it must incorporate all ‘decisions’.31 Strictly speaking, the ICSID Convention and the ICSID Arbitration Rules ‘contain no provisions which permit or even contemplate “Partial” or “Interim” awards, indeed, […] the Rules contemplated only one, Final Award’.32 The term ‘final’ should be understood not only chronologically to mean the ‘last’ but also the ‘definitive’, the one that disposes of the dispute.33 The situation is similar under the ICSID Additional Facility Rules.34 The award can, but does not have to, include a decision on the merits. A ‘decision’ declining jurisdiction is an award: it is final and binding, and with it the tribunal discharges its adjudicative function. Pursuant to Rule 41(6) of the ICSID Arbitration Rules, if the tribunal determines the dispute to be outside the jurisdiction of the Centre or outside its own competence, or if it considers that the claim manifestly lacks legal merit, ‘it shall render an award to that effect’.35 Action can be recommenced if the jurisdictional defect is cured, such cure constituting factum superveniens, which deprives the earlier award of its res iudicata.36 In contrast, a ‘decision’ under the ICSID Convention, as opposed to an ‘award’, is one that does not deal with every question submitted to the tribunal. A decision upholding jurisdiction and a partial decision on the merits are just such ‘decisions’ that fall short of the definition of an award, in the same way as decisions on procedural matters and recommendations of interim measures. Decisions under the ICSID Convention have a half-existence until their incorporation in the final award. To return to Article 54 of the ICSID Convention, recognition and enforcement of awards only is possible. ICSID contracting states have an obligation to recognise and enforce awards and awards only; decisions even if they impose pecuniary obligations,37 such as decisions on costs rendered before the final award pursuant to Rule 28(1) of the ICSID Arbitration Rules, do not fall under the scope of Article 54 of the ICSID Convention. Tellingly, any such decision on costs of the proceedings needs to be expressly incorporated in the final award.38 Not only are recognition and enforcement possible for awards only, post-award remedies in the ICSID Convention are just that: remedies that become available once an award has been rendered. These remedies are not available against decisions.39 A request for an interpretation under Article 50 of the ICSID Convention can only be made with respect to an award. Article 51 of the ICSID Convention bears on the reconsideration of an award ‘on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown’. Article 52 of the ICSID Convention contains the Convention’s grounds for annulment of an award. All these elements point to a prima facie absence of res iudicata effect of decisions under the ICSID Convention. But for this one must keep in mind the distinction between decisions and awards and that this distinction is a particularity of the ICSID system that renders parallels with other systems inappropriate. It is to this particularity that I will now turn. C. The distinction between awards and decisions as a lex specialis of the ICSID Convention The substance of the principle of res iudicata is no different in investment treaty arbitration than in public international law courts.40 No more is it different in ICSID arbitration than in other arbitration rules. Nevertheless, the distinction between awards and decisions is a particularity or a lex specialis of the ICSID system.41 Because of this particularity, recourse to other arbitration rules and the functioning of public international law courts is not very helpful to understand whether ICSID decisions are res iudicata. For example, according to the International Court of Justice (ICJ), res iudicata signifies that the Court’s decisions are both binding on the parties and final ‘in the sense that they cannot be reopened by the parties as regards the issues that have been determined’.42 This reasoning is based on Article 59 of the Statute of the ICJ, which states that ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. No such provision exists in the ICSID Convention with respect to ‘decisions’. Likewise, with the exception of the ICSID Additional Facility, not examined here, other arbitration systems do not draw a distinction between an ‘award’ and a ‘decision’ and, by that fact, post-award remedies become available both against those decisions that are provisional and against those that are final. The 2010 UNCITRAL Arbitration Rules establish that the tribunal ‘may make separate awards on different issues at different times’, and that ‘[a]ll awards shall be […] final and binding on the parties. The parties shall carry out all awards without delay.’43 In Murphy Exploration v Ecuador II, an arbitration conducted under the 1976 UNCITRAL Arbitration Rules,44 the Tribunal rejected the investor’s request to reconsider the extent of the respondent’s liability on which it had already pronounced in its earlier Partial Final Award,45 although there was no mention of res iudicata. The Tribunal considered instead that had it acquiesced to the investor’s motion this would have been ‘an unnecessary and duplicative re-examination of the merits’.46 However, in Pope & Talbot v Canada, an arbitration brought on the basis of the North American Free Trade Agreement (NAFTA) and conducted under the 1976 UNCITRAL Arbitration Rules, in its Award in Respect of Damages,47 the Tribunal had to reconsider its interpretation of Article 1105 of NAFTA in an earlier award, following the NAFTA Free Trade Commission’s (FTC) Notes of Interpretation of Certain Chapter 11 Provisions.48 In that case, the Tribunal discussed the question of retroactive application of the NAFTA FTC’s interpretation, but the issue of res iudicata was not broached. In Chevron v Ecuador II, another arbitration under the 1976 UNCITRAL Arbitration Rules, the Tribunal issued a ‘decision’ and stressed that ‘this decision is not to be regarded as an award; and it is not intended to give rise to any issue estoppel or any form of res judicata. Accordingly, the Tribunal retains in full its jurisdiction to re-visit any part of this decision at a later stage of this arbitration by one or more orders, decisions and awards, without having become functus officio as regards any issue addressed by this decision.’49 Similarly to the UNCITRAL Arbitration Rules, the 2014 Arbitration Rules of the London Court of International Arbitration (LCIA) provide that the tribunal ‘may make separate awards on different issues at different times, including interim payments on account of any claim or cross- claim (including Legal and Arbitration Costs). Such awards shall have the same status as any other award made by the Arbitral Tribunal.’50 The LCIA Arbitration Rules further state that ‘[e]very award (including reasons for such award) shall be final and binding on the parties’.51 Significantly, this provision explicitly recognises the preclusive effect of reasoning (issue preclusion), a feature of common law jurisdictions. 52 The 2017 Arbitration Rules of the Stockholm Chamber of Commerce (SCC) establish that the tribunal ‘may decide a separate issue or part of the dispute in a separate award’,53 and that ‘[a]n award shall be final and binding on the parties when rendered. By agreeing to arbitration under these Rules, the parties undertake to carry out any award without delay.’54 Finally, the 2017 Arbitration Rules of the International Chamber of Commerce (ICC) incorporate ‘inter alia, an interim, partial or final award’ within the meaning of ‘award’,55 and equally specify that ‘[e]very award shall be binding on the parties’ and the latter ‘undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made’.56 III. ARBITRAL CASE LAW UNDER THE ICSID CONVENTION The issue of the res iudicata effect, vel non, of provisional decisions under the ICSID Convention has fractured arbitral case law. While in 1988 in AMCO v Indonesia II, the Tribunal considered that it was ‘by no means clear that the basic trend in international law is to accept reasoning, preliminary or incidental determination as part of what constitutes res judicata’,57 in 2008 the Jan de Nul v Egypt Tribunal held that its decision on jurisdiction was res iudicata.58 Similarly, in ConocoPhillips v Venezuela (twice) and in Perenco v Ecuador, tribunal majorities found that ICSID decisions are res iudicata and that the tribunal has no power to reopen its decisions.59 The Standard Chartered Bank Tribunal explained that no tribunal before it had ‘directly concluded that there is such a power although there are cases that appear to acknowledge the possibility of, or the existence of, such a power without applying it to reopen a decision’.60 But its statement needs to be taken with a pinch of salt; to support it, the Tribunal drew not only on ICSID case law but also on UNCITRAL case law.61 A number of ICSID tribunals reopened earlier decisions without much ado, while the question of whether a decision is res iudicata essentially arose in cases where a relevant objection had been raised. The paragraphs that follow provide a critical appraisal of arbitral case law on the question of the res iudicata effect of ICSID decisions. A. The tribunal’s power to reopen decisions as a procedural question In Tokios Tokelės v Ukraine, the Tribunal accepted to entertain anew jurisdictional objections in the merits phase noting that ‘[i]t could have been thought that [the Tribunal’s decision on jurisdiction] would leave only the merits of the dispute to be considered at the present stage, but events have proved otherwise’.62 The respondent had remitted to the Tribunal a number of jurisdictional objections. In reality, one of these had already been raised at the earlier proceeding, but two could have been raised and were not, and the remainder were new.63 The Tribunal considered the jurisdictional objections. Only with respect to the objection that had already been raised in the earlier phase did it remark, and that after examining it, that it could simply have recorded that ‘by virtue of the treatment of the same point in the Decision on Jurisdiction the principles of res judicata and issue estoppel excluded any right to raise it again, but in the circumstances it [had] been thought right to reconsider the question’.64 In Helnan v Egypt, the Tribunal accepted to review in the merits phase a new jurisdictional objection.65 The claimant contended that the objection was untimely and therefore should be considered to have been waived.66 The Tribunal rejected the claimant’s argument, although it remarked that the objection ‘could have been raised sooner’.67 According to Rule 41(1) of the ICSID Arbitration Rules, objections that the dispute or ancillary claims are not within the jurisdiction of the Centre or within the competence of the tribunal shall be raised ‘as early as possible’; exceptions to the required time-limits for bringing the objection can be made if the facts on which it is based were unknown to the party at the time.68 In Quiborax v Bolivia, the Tribunal had to address at the merits stage Bolivia’s allegation of the investment’s original and ongoing illegality. While the issue of ongoing illegality was something for the Tribunal to consider in the merits phase, to the extent that the allegations concerned the investment’s original illegality, ie at establishment, the respondent sought to reopen an issue that had already been determined in the jurisdictional phase.69 The Tribunal observed that it may be justified to reopen the issue in the merits phase, if the alleged illegality was unknown to Bolivia during the jurisdictional phase.70In casu, the respondent had the necessary elements to advance this argument at jurisdiction, but given the gravity of the accusation the Tribunal decided all the same to examine Bolivia’s jurisdictional objection; finding the evidence of illegality to be inconclusive, ultimately it dismissed the argument.71 Elsewhere, the Tribunal concluded that ‘there is no reason that can justify reopening the jurisdictional issues at this stage, assuming this were at all possible’.72 This statement is somewhat unhelpful, given the express provision made for that purpose in Rule 41(1) of the ICSID Arbitration Rules (presuming that the facts on which the objection is based were unknown at the time) and taking account of the fact that the Tribunal did consider Bolivia’s jurisdictional objection. In Pac Rim Cayman v El Salvador the Tribunal did not invoke ‘any principle of res judicata or finality, by analogy with Article 53(1) of the ICSID Convention or otherwise’; it opined that the issue could be determined ‘more easily, as a practical matter, by direct reference to other provisions of the ICSID Convention and the ICSID Arbitration Rules’.73 It is important to remember that, according to Rule 41(2) of the ICSID Arbitration Rules, the tribunal has the power to consider proprio motu whether the dispute or any ancillary claim is within the jurisdiction of the Centre and within the tribunal’s competence ‘at any stage of the proceeding’.74 Kaj Hobér has argued more generally that ‘since every form of arbitration is dependent on the agreement of the parties—ie a valid and applicable arbitration agreement—arbitrators have the obligation, at every stage of an arbitration, to make sure that they have jurisdiction’.75 This implies that having accepted jurisdiction, the proceedings are relevant provided that the tribunal continues to have jurisdiction—or any award to follow could risk set-aside or, for the purposes of the present discussion, annulment under Article 52 of the ICSID Convention. Hobér also remarks that where an ICSID tribunal has accepted jurisdiction, it can ‘probably’ reverse its position in a later decision, if new facts come to light that require a different conclusion.76 Nonetheless, even in the absence of such facta supervenientia, if a ‘renewed analysis’ of the issue leads the tribunal to conclude that it does not have jurisdiction, a decision on the merits would be inappropriate.77 In addition, unrelated to the issue of res iudicata, it is not unusual for a tribunal to decide to join some jurisdictional objections to the merits of the dispute from scratch, such as in Giovanni Alemanni v Argentina.78 A final case is worth citing in extenso, if only because it has been misquoted as making an argument in favour of res iudicata which it did not. In Electrabel v Hungary, the Tribunal issuing a provisional decision explained: This Decision is made in regard only to the first phase of these arbitration proceedings, relating to extant issues of jurisdiction and liability; and it is not made in regard to any issue of quantum (including interest). Although necessarily described as a ‘Decision’ and not an ‘Award’ under the ICSID Convention and ICSID Arbitration Rules, the several decisions and reasons contained in this Decision are intended by the Tribunal to be final and not to be revisited by the Parties or the Tribunal in any later phase of these arbitration proceedings.79 The Electrabel Tribunal did not canvass res iudicata; it expressed an intention for its decision to be final and not to be revisited. But an intention is not an impossibility to reconsider because an issue is res iudicata.80 In the words of the later Standard Chartered Bank Tribunal, ‘a tribunal cannot confer a status on its decisions that they do not have under the lex arbitri’.81 Nowhere did the Electrabel Tribunal state that its decision was res iudicata. But it was later cited as saying so by both a ConocoPhillips majority and the Perenco Tribunal, which attempted to buttress their own argument that the provisional decisions they had issued were res iudicata.82 The discussion will now turn to these two cases. B. The ConocoPhillips saga In ConocoPhillips v Venezuela, an ICSID Tribunal majority held that Venezuela had breached its investment obligations having failed to ‘negotiate in good faith for compensation for its taking of the ConocoPhillips assets […] on the basis of market value’ in its Decision on Jurisdiction and the Merits.83 Consequently, two divided tribunals reasoned that they had no power to reopen this decision, before a third tribunal effectively did. In casu, the respondent had requested that the Tribunal hold a hearing to reconsider an issue and correct an alleged material error in the establishment of the facts, which would impact the outcome.84 According to Venezuela’s submissions, WikiLeaks cables since the Tribunal hearing revealed that the representations of ConocoPhillips on which the Tribunal had relied to reach its conclusions regarding the respondent’s unwillingness to negotiate in good faith were not substantiated.85 In the first Decision on the Respondent’s Request for Reconsideration, the Tribunal majority observed that: the Respondent characterises the Decision as ‘interim’ or ‘preliminary’ and, accordingly, capable of being reconsidered, perhaps on an informal basis. The only reason suggested in its submissions is the temporal one: a further stage in the proceedings, relating to quantum, remains. The Decision does not however take an interim or preliminary form in respect of the matters on which it rules.86 Until that stage, there is nothing particularly astonishing about the Tribunal’s reasoning. It reflects the earlier Electrabel v Hungary decision that expressed the tribunal’s intention that its findings should be final and should not be reopened. But the ConocoPhillips majority continued: Those decisions in accordance with practice are to be incorporated in the Award. It is established as a matter of principle and practice that such decisions that resolve points in dispute between the Parties have res judicata effect.87 The only example of ‘established’ ‘principle and practice’ invoked by the ConocoPhillips majority was the previously-canvassed statement of the Electrabel tribunal which does not mention res iudicata.88 It is interesting to note that the distinction between awards and decisions under the ICSID Convention did not weigh much in the Tribunal majority’s consideration. The majority argued that although the provisions on Recognition and Enforcement of the Award do not directly apply to decisions that does not mean that they ‘may not be relevant in a more general sense’.89 It considered that the ICSID Convention is ‘plainly designed to provide for review or actions in respect of decisions of a tribunal only once the Award [is] rendered’.90 The majority added that only in Section 5 of the ICSID Convention (Articles 50 et seq) on Interpretation, Revision and Annulment of the Award, are powers ‘conferred on the Tribunal to interpret and revise the Award and on an ad hoc Committee to annul an Award on prescribed grounds. It is in those ways and those alone that decisions […] can be questioned, changed or set aside’.91 One begs to differ as to how plain all this is. It is unclear why ICSID decisions are to be reviewed ‘in those ways and those alone’ that ICSID awards are reviewed. In addition, Rule 38(2) of the ICSID Arbitration Rules, whose application the Tribunal majority rejected,92 offers the exceptional possibility for the tribunal, before the award has been rendered, to reopen a proceeding that has been closed if ‘new evidence is forthcoming of such a nature as to constitute a decisive factor’, or if there is ‘a vital need for clarification on certain specific points’. Although Rule 38 does not apply to reconsideration of decisions, since it concerns a proceeding that is closed although an award has not yet been rendered, it should allow by analogy and a fortiori reconsideration of a decision in the case of a proceeding that is still open. It is also relevant that, according to Article 51(1) of the ICSID Convention, the possibility to revise an award on the ground of discovery of a fact that decisively affects the award is dependent on the fact being unknown at the time the award was rendered. Not only that, the application for revision needs to be made ‘within 90 days after the discovery of such fact’.93 Furthermore, the request for revision must be submitted, if possible, to the tribunal which rendered the award.94 Assuming, arguendo, that the time limits for the application for revision could be complied with, this would in principle mean that a tribunal that was not willing to reconsider a decision on the basis of a fact that was raised earlier before it, would now be required to do so post-award. One also notes the implication, deleterious to arbitral economy and the administration of the dispute, of the requirement in the majority’s holding that the ‘injured’ party wait until the award has been rendered until it can reopen old questions, eg of jurisdiction. The first ConocoPhillips Decision on the Respondent’s Request for Reconsideration elicited a dissenting opinion by Professor Georges Abi-Saab,95 who stressed that it is the award that carries res iudicata effect, and it is by this very fact that it becomes possible to have recourse against it.96 Under the ICSID Convention ‘finality’ comes once the earlier decisions are incorporated in the ‘all-inclusive package’ that is the award, while until that moment ‘all the components of the package, whether decided upon or not, remain on the table’.97 He added: If the award cannot be considered final unless and until it incorporates the prior partial decisions – finality being attached to the all-inclusive character of the instrument – these interlocutory partial decisions a fortiori cannot be considered final until they are thus incorporated as part of the whole. Nor can they be subject to (i.e. benefit from the status conferred by) article 53, which is the ICSID rendering of the principle of res judicata, of which finality is one of the two pillars (together with the binding character on the parties) […].98 Following his dissent, Abi-Saab tendered his resignation. Professor Andreas Bucher was appointed by the Chairman of the ICSID Administrative Council to replace him.99 The respondent submitted a new application for reconsideration of the Decision on Respondent’s Request for Reconsideration (the first decision on the request for reconsideration). In this, Venezuela invoked among others Articles 43 and 44 of the ICSID Convention in favour of the tribunal’s power to reopen its earlier decision.100 Article 44 of the ICSID Convention last sentence provides that ‘[i]f 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’. This provision had already been briefly canvassed and dismissed in the majority’s first Decision on Respondent’s Request for Reconsideration.101 In this second decision on the request for reconsideration, the ConocoPhillips majority returned to Article 44. However, its application of the article to the facts at issue remains perplexing. First, the Tribunal acknowledged that Article 44 relates to ‘a question of procedure’, as per its own terms, and cited ICSID Convention: A Commentary to offer examples of such questions of procedure, for example suspension of proceedings when other arbitral proceedings are pending (notably this relates to lis pendens, the flip-side of res iudicata). The Tribunal then enquired into whether Article 44 ‘contain[s] within it a power to reconsider rulings, in effect by a rehearing, which it has made on jurisdiction and on aspects of the merits’ and questioned whether such a power concerns a matter of procedure. Ultimately, the Tribunal considered that reconsideration would be ‘a power of a substantive kind’.102 It is difficult to subscribe to this interpretation. What the Tribunal actually had to determine is whether it had the procedural power to reopen an earlier decision.103 The very example of lis pendens that the majority invoked as a ‘question of procedure’ served to disprove its point, since lis pendens functions in the same way as res iudicata but for parallel, rather than consecutive, proceedings. Article 44 of the ICSID Convention is also relevant to another discussion, that of the tribunal’s inherent powers,104 and was already discussed as such by Abi-Saab in his dissent to the first Decision on Respondent’s Request for Reconsideration.105 The tribunal’s inherent powers are said to not require a textual basis since they are the ‘logical corollary’ of its adjudicative function.106 The paradigmatic example of an inherent power is the tribunal’s capacity to determine its own competence (compétence de la compétence).107 Inherent powers have also been examined in the context of reconsideration of decisions under the ICSID Convention.108 However, it is outside the scope of the present to return to this discussion. Bucher penned a separate opinion to the second decision on the request for reconsideration expressing his disagreement. After incorporating Abi-Saab’s dissent in his own,109 Bucher argued that despite the non-uniform practice of investment tribunals, sometimes declaring the proceedings closed when upholding jurisdiction, the present Tribunal had observed ‘the standard practice’ and it had not declared the proceedings closed.110 He added: [Res iudicata] applies to situations where the same claim decided between the same parties and based on the same cause of action is raised in a distinct or successive proceeding. This notion does not apply to decisions to be made before the same court or tribunal in the same proceeding.111 The case knew an apparent volte-face when in January 2017 a new tribunal112 decided on Venezuela’s Third Application for Reconsideration.113 The tribunal acknowledged that Venezuela’s first two attempts to have the decision reopened had failed.114 But it considered that the ‘true meaning’ of the Decision on Jurisdiction and the Merits in relation to Venezuela’s conduct of the negotiation remained controverted.115 It remarked that the decision did not actually state that the respondent had not acted in good faith, rather ‘it referred to facts demonstrating that the Respondent failed to engage in negotiations leading to just compensation’.116 Consequently, the Tribunal dismissed Venezuela’s application in this regard ‘irrespective of whether the Tribunal would have, or does not have the power to reconsider the Application (as decided twice by the Tribunal’s Majority)’.117 However, to the extent that the respondent’s request concerned the conclusion that it had failed to negotiate on the basis of fair market value, the Tribunal—despite this statement as to whether it had, vel non, the power to reopen the earlier decision—engaged in an in-depth review of Venezuela’s conduct during the negotiations, essentially reopening the Decision on Jurisdiction and the Merits.118 Ultimately, the Tribunal was unconvinced by Venezuela’s arguments and unanimously dismissed its request, after having examined it on the merits. In short, a ConocoPhillips majority considered twice that it did not have the power to reopen its earlier decision because that decision was res iudicata. It developed its argument without particular reference to the distinction in the ICSID Convention between awards and decisions; nor did it consider significant the fact that the proceeding had not been closed. A third—this time unanimous—Tribunal remained ambivalent about its formal power to reopen but effectively reviewed this decision on its merits. C. Perenco v Ecuador In Perenco v Ecuador, the 2014 Decision on Remaining Issues of Jurisdiction and on Liability upheld jurisdiction and found the respondent liable for contract and treaty claims.119 Following the decision, Ecuador asked the Tribunal to reopen it invoking various alleged omissions and flaws.120 The Tribunal refused to do so, considering its decision to be res iudicata. The Tribunal canvassed extensively post-award remedies and the conditions for revisiting awards evidently neglecting the fact that the request before it concerned the reconsideration of a decision. The possibility of any differentiation in the treatment of an award and that of a decision was dismissed summarily in the following terms: It is not persuasive to seek to link together discrete provisions of the Convention and the Rules that were designed with specific purposes in mind and with varying degrees of the power to reopen an award in order to support the claimed existence of a power—whether general, procedural or otherwise—which is said to vest in a tribunal simply because it has issued a decision, as opposed to an award.121 At another stage, the Tribunal considered the applicability of Article 49 of the ICSID Convention, according to which, following the award and upon the request of a party, the tribunal ‘may decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award’.122 Article 49 of the ICSID Convention is designed to offer a remedy for inadvertent or minor computational errors or omissions, rather than provide a substantive review or reconsideration of the award.123 The tribunal remarked that Article 49 expressly concerns the post-award stage but it decided to ‘put that aspect of the article’s wording to one side and proceed arguendo on the basis that the reference to the word “award” could encompass a “decision”’.124 In that case, extending the wording of the article to cover a ‘decision’ led the Tribunal to consider Article 49 of the ICSID Convention (the Tribunal ended up by rejecting that there had been any failure to deal with every question submitted to it or a need to rectify the decision). However, more generally, and as in the case of the two ConocoPhillips majorities, overlooking the difference between a decision and an award in the ICSID Convention has globally resulted in the tribunal holding that provisional decisions are res iudicata but without any of the related ‘advantages’, notably access to post-award remedies. The Perenco Tribunal focused on ‘ample prior authority in support of the view once the tribunal decides with finality any of the factual or legal questions put to it by the parties […] such a decision becomes res judicata’.125 This ‘ample prior authority’ was limited to four cases: CMS v Argentina,126Waste Management v Mexico II,127Electrabel v Hungary,128 and ConocoPhillips v Venezuela.129 Of these, the Electrabel v Hungary decision has already been explained to be inconclusive; in CMS v Argentina, the Tribunal makes no reference to res iudicata, but simply notes that ‘in connection with the merits the Respondent has again raised certain jurisdictional issues that were addressed in the jurisdictional phase of the case, such as the jus standi of the Claimant. These issues were decided upon at that stage and will not be reopened in this Award’.130 This phrase appears to refer to juridical economy and the Tribunal’s unwillingness to revisit issues that have been decided rather than to make a statement as to the res iudicata nature of the earlier decision.131 Invocation of Waste Management v Mexico II is even more astonishing, as the case deals with a separate closed proceeding and it deserves a closer look. In Waste Management v Mexico II, an ICSID Additional Facility arbitration on the basis of NAFTA, the Tribunal held that ‘a decision on a particular point constitutes a res judicata as between the parties to that decision if it is a necessary part of the eventual determination and is dealt with as such by the tribunal’.132 Misquoted by the Perenco Tribunal as confirming its own position that provisional decisions are res iudicata, this decision queries in reality a different aspect of res iudicata. In Waste Management v Mexico I, the Tribunal had declined jurisdiction owing to the claimant’s failure to comply with a precondition to arbitration under NAFTA, notably its failure to waive its right to pursue other remedies in accordance with Article 1121(2)(b) of NAFTA.133 In Waste Management v Mexico II, the respondent objected to the resubmission of the case arguing that the first tribunal ‘did in law decide the claim against the Claimant, whether or not it considered the merits of that claim, and its decision should be considered as res judicata’ and the claimant should not be allowed a second bite at the apple.134 But as pointed out in Bucher’s dissent in ConocoPhillips v Venezuela, in that case, ‘the decision on jurisdiction that was addressed by Mexico’s objection was rendered in a prior and different proceeding’,135 where jurisdiction had been declined. The Tribunal held that the claimant was not prevented from bringing its claim again.136 The Perenco Tribunal’s decision that it lacked the power to reopen its decisions was reiterated later in the proceeding, when this time the claimant requested of the Tribunal that it dismiss Ecuador’s environmental counterclaims, although it had not objected to them so far in the arbitration. In a decision rendered on 18 August 2017, the Tribunal reasoned that, ‘being consistent’, it could not now take a different view with respect to its Interim Decision on the Environmental Counterclaims.137 D. Rejecting res iudicata: Standard Chartered Bank v Tanzania and Burlington v Ecuador Following the first two ConocoPhillips decisions and the decision in Perenco, a shift is detected in the case law in favour of recognition that decisions are not res iudicata.138 In Standard Chartered Bank v Tanzania, the claimant had requested a reconsideration of a decision issued on 12 February 2014 contending that the respondent had misled the tribunal by concealing facts.139 The motion was accepted and the Tribunal reversed its earlier decision making an order for payment by the respondent to the claimant.140 The Tribunal reasoned that decisions under the ICSID Convention could not be res iudicata since ‘they only attain that status under Article 53(1) when they are incorporated into the final award’.141 The Tribunal held that: [D]ecisions cannot have legal consequences outside the ICSID proceedings in which they are issued (i.e. they cannot be recognized and enforced and they cannot be challenged through annulment). Indeed, if decisions were res judicata before incorporation in the final award, then the requirement of [sic] incorporation into the final award under Article 48(3) would be redundant.142 […] The Tribunal is of the view that it is incorrect to characterize the decisions of ICSID tribunals, as opposed to their awards, as res judicata. They are binding within the scope of the proceedings but do not impose obligations upon the parties or other Contracting States outside the proceedings as is the case with awards that are res judicata. However, even if the conclusion were that decisions have res judicata status this would not provide a sufficient answer to the question whether a tribunal has a power to reopen its decisions. If the decision that the Claimant wishes to have reopened were res judicata, then by analogy with Article 51, it might be reopened in defined circumstances. If it were not res judicata, then a fortiori it could be reopened without the constraints of the requirements of Article 51.143 […] Whatever the power the tribunal has to reconsider a decision that power must at least extend to the grounds for reopening an award in Article 51.144 In Burlington v Ecuador, the respondent’s motion for reconsideration contended that the earlier tribunal had erred as a matter of law and that it had been misled by the claimant, reaching its decision on the basis of incomplete facts.145 The Tribunal followed the decision in Standard Chartered Bank v Tanzania and held that decisions are not vested with res iudicata effect.146 It arrived at this conclusion relying on the ‘structure or architecture’ of the ICSID Convention,147 and notably ‘the requirement for incorporation of earlier decisions into the award, the absence of remedies against these decisions, and the fact that the Contracting States’ obligation to recognize and enforce only attaches to the award, not to earlier decisions’.148 Nonetheless, the respondent’s motion for reconsideration was eventually rejected on its merits.149 The Standard Chartered Bank and Burlington decisions were rendered in the wake of the ConocoPhillips (the first two decisions) and Perenco ‘precedents’, which considered expressly that decisions under the ICSID Convention are res iudicata. In doing so, they appeared to disregard the formal distinction between awards and decisions under the ICSID Convention. Effective treaty interpretation requires that the terms ‘decision’ and ‘award’ in the ICSID Convention, and the legal consequences to draw therefrom, be considered as distinct. The Standard Chartered Bank and Burlington Tribunals rejected any notion that decisions under the ICSID Convention could be equated to awards for purposes of res iudicata. For the reasons explained above, their approach appears compelling to the author. IV. CONSIDERATION OF THE SPECIFIC CIRCUMSTANCES AND NON LIQUET Two further issues are worth a consideration in the discussion of decisions under the ICSID Convention and res iudicata: the pertinence of the specific circumstances and the allegation that refusing to reopen a decision may constitute non liquet. I will address these two issues in turn. A. Relevance of ‘the specific circumstances’ to the tribunal’s power to reopen a decision? There is a seminal nuance between the tribunal’s power to reopen a provisional decision on account of it not being res iudicata and the appropriateness of re-opening it under given circumstances. The fact that a tribunal has a power to re-open a decision is emphatically not to say that the tribunal must reopen it. More often than not there will be no reason for a tribunal to reconsider. However, arbitral decisions and legal scholarship do not generally draw such a distinction. Consider, for instance, the previously-cited Tokios Tokelės Tribunal, which while attributing res iudicata effect to its decision on jurisdiction, reasoned that ‘in the circumstances it [had] been thought right to reconsider the question’.150 If that earlier decision were res iudicata, the Tribunal would not have been able to reopen it, no matter how desirable this might have seemed under the circumstances. Similarly, two authors have suggested that a tribunal’s power to reopen an earlier decision cannot be viewed in isolation from the context of that request, and that the presence of specific ‘exigent circumstances’ or ‘exceptions’, such as that the decision is tainted by corruption or fraud, can justify reopening an earlier decision on the merits.151 That seems opportune to the extent that we agree that that decision is not res iudicata. However, I argue that if a decision were res iudicata, no amount of ‘justification’ would allow the tribunal to reconsider it. In other words, no justification could expunge the res iudicata effect of a decision that is res iudicata. Tribunals are impaled on the horns of a dilemma because reconsideration of a decision, as revision of an award, is ‘capable of impairing the stability of legal relations’ and ‘must remain exceptional’.152 The strictures of legal economy and the expediency of arbitral proceedings can clash with legal correctness. At the same time, waiting until the award has been delivered to correct errors can also be harmful to arbitral efficiency.153 The decision to reopen or not a provisional decision reveals a tension between ‘fairness’ and ‘efficiency’.154 But this should not lead tribunals to conflate the res iudicata effect of a decision with the relevance of reopening it under given circumstances. According to the Burlington v Ecuador Tribunal: the lack of res judicata does not mean that [decisions] […] can necessarily be reopened. Indeed, ICSID tribunals have had no hesitation finding that preliminary decisions bind the parties and the tribunal in the course of the proceedings. That view is sometimes put in terms of res judicata (quod non […]).155 […] Irrespective of res judicata, the rationale for this opinion is obvious: a contrary view would defeat the purpose of efficient dispute settlement, entailing constant re-litigation of issues already resolved, with unavoidable adverse consequences in terms of increased costs and length of proceedings. In addition, the possibility of re-litigating issues would jeopardize legal certainty and ultimately undermine the confidence of the users in the system.156 […] Having reached the conclusion that ICSID tribunal decisions (other than orders on procedure and provisional measures) which are not final awards are not res judicatae, but are nevertheless binding on the parties and the tribunal within the proceedings in which they were issued, the Tribunal also agrees with the finding in [Standard Chartered Bank v Tanzania] according to which ‘there may be circumstances where a tribunal should consider reopening a decision that it has made’.157Standard Chartered Bank v Tanzania is one of the rare cases where a Tribunal drew the line between what it termed a ‘general power to reopen’ and ‘a specific power to reopen in the light of particular facts’.158 Only the former corresponds to the question of res iudicata. Accordingly, the Standard Chartered Bank Tribunal—which ruled that decisions under the ICSID Convention are not res iudicata and therefore it had a ‘general power’ to reopen them—considered ‘whether in light of the specific circumstances of this case it should exercise a power to reopen’.159 In short, the fact that a decision is not res iudicata does not mean that the tribunal should reopen it, and at the same time the fact that a tribunal does not find it appropriate to reopen a decision, that does not make it res iudicata. B. Refusal to reconsider a decision and non liquet The final question this article considers is whether the tribunal’s refusal to reopen a decision could constitute non liquet. In his dissent attached to the second Decision on the Request for Reconsideration in ConocoPhillips v Venezuela, Bucher argued that the majority’s refusal to reconsider the decision because of a ‘purported lack of power that no rule supports’ constitutes non liquet.160 He stated that: it appears that the Tribunal refused to make any assessment about Respondent’s Request for Reconsideration because it did not see any provision in the ICSID Convention and the Arbitration Rules that would allow the Tribunal to so proceed. This statement affirms that the Tribunal is faced with a case of silence of the Law, which implies that it cannot take a power nowhere that is not provided by the Law. Such a conclusion is not compatible with Article 42(2) of the ICSID Convention, which states firmly that the Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law.161 To further build his argument, Bucher cited Article 44 of the ICSID Convention162 and Rule 19 of the ICSID Arbitration Rules,163 which he considered as ‘the procedural addition’ to Article 42(2) of the ICSID Convention prohibiting a finding of non liquet.164 However, this interpretation of what constitutes non liquet does not appear supported by the literature.165 It is generally accepted that non liquet concerns lacunae in the fabric of substantive law.166 The prohibition of a finding of non liquet means that the tribunal cannot come to the conclusion that it cannot resolve the legal questions put to it on the grounds of absence or obscurity the law.167 It applies to a refusal to either deliver an award or to decide certain questions.168 But it does not apply to a refusal to decide a case on procedural or jurisdictional grounds.169 On the contrary, non liquet concerns ‘a decision on the merits by a competent tribunal’.170 Or, in the words of Hersch Lauterpacht: ‘The prohibition of non liquet does not mean that a court must not decline to give a decision on any ground. It only means that a court, otherwise endowed with jurisdiction, must not refuse to give a decision on the ground that the law is non-existent, or controversial, or uncertain and lacking in clarity. A court may decline to entertain a claim on account of absence of jurisdiction […] but that contingency is not germane to the question of non liquet. […] It is only when the refusal to give a decision, after the court has assumed jurisdiction, is based on the absence or insufficiency of the applicable substantive law that the question of a non liquet may properly be deemed to arise.’171 Otherwise put, a tribunal’s decision to reconsider a decision under the ICSID Convention, even if viewed as an erroneous interpretation of procedural law, does not constitute a finding of non liquet. V. CONCLUSION In contrast to other dispute settlement systems, the ICSID Convention draws a distinction between ‘decisions’ and ‘awards’. Only awards are final and enforceable, and only awards are res iudicata. However, a number of ICSID tribunals held that they did not have the power to reconsider interlocutory decisions they issued, because they were res iudicata. I have argued in this article that the strain of arbitral case law that considers preliminary decisions to be res iudicata broadly discounts the formal distinction between decisions and awards under the ICSID Convention. This distinction is a lex specialis of the ICSID Convention that renders parallels with other systems inopportune. I have suggested that on occasion the res iudicata argument may have been picked up by tribunals reluctant to revisit an earlier decision because they were unconvinced that such action was justified. But deciding not to reopen an earlier decision is not to say that the tribunal does not possess the power to do so. Conversely, possessing the power to reopen a decision does not mean that it is desirable or appropriate to do so. Power necessarily entails discretion. It appears that the tribunal has the power to reconsider provisional decisions. Whether it is advisable to do so needs to be determined by the tribunal under the specific circumstances. The author would like to thank Gabriel Bottini for his useful comments on a draft version of this article. Footnotes 2 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (CUP 1953, 2006) 336. 3 For an early discussion of the triple identity test, see Interpretation of Judgments Nos 7 and 9 (Factory at Chorzów) (Germany v Poland) (1927) PCIJ Rep Series A 13, Dissenting Opinion by Judge Anzilotti. 4 Jose Magnaye and August Reinisch, ‘Revisiting Res Judicata and Lis Pendens in Investor-State Arbitration’ (2016) 15 Law Practice Int Courts Tribunals 264; William W Park, ‘Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata’ in Arthur Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2015 (Brill Nijhoff 2017) 52, 68–69; cf CME Czech Republic BV v The Czech Republic, UNCITRAL, Quantum proceedings, Legal Opinion Prepared by Christoph H Schreuer and August Reinisch (20 June 2002); Charles N Brower and Paula F Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ in Meg Kinnear et al, Building International Investment Law—The First 50 Years of ICSID (Kluwer International Law 2015) 56; Giovanni Zarra, Parallel Proceedings in Investment Arbitration (Eleven International Publishing 2016) 135. For a discussion of the relationship among the different terms in arbitral case law, see Apotex Holdings Inc and Apotex Inc v United States of America, ICSID Case No ARB(AF)/12/1, Award (25 August 2014) paras 7.17–7.23. 5 The terms ‘decision’, ‘provisional decision’, ‘interim decision’ and ‘interlocutory decision’ are used interchangeably in the article to denote any pre-award decision. 6 Christoph H Schreuer et al, The ICSID Convention: A Commentary (2nd edn, CUP 2009) 1128, emphasis added. It should be kept in mind that, although authoritative, ICSID Convention: A Commentary is an academic text, rather than an official document. Citations of it in this article should be read in this light. 7 Charles N Brower and Paula F Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ (n 4) 69. 8 Also in ibid 65. 9Ampal-American Israel Corporation and others v Arab Republic of Egypt, ICSID Case No ARB/12/11, Decision on Liability and Heads of Loss (21 February 2017) paras 259, 270. 10 Pursuant to the second paragraph of the same article, for the purposes of the section on Recognition and Enforcement of the Award, an ‘award’ encompasses ‘any decision interpreting, revising or annulling such award pursuant to Articles 50, 51, 52’. 11 cf Christoph H Schreuer et al, The ICSID Convention: A Commentary (n 6) 1100. 12 A state’s non-compliance with art 53 of the ICSID Convention would of course also entail a breach of its obligations vis-à-vis the other parties to the Convention. Christoph H Schreuer et al (n 6) 1100, 1125. 13 ibid (n 6) 1128, see also 1099, emphasis added. 14 Article 54(1) of the ICSID Convention. See Christoph H Schreuer, ‘Non-Pecuniary Remedies in ICSID Arbitration’ (2004) 20 Arb Intl 326, citing Aron Broches. 15Standard Chartered Bank (Hong Kong) Limited v Tanzania Electric Supply Company Limited (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 313. 16 ibid. 17Burlington Resources Inc v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on Reconsideration and Award (7 February 2017) para 89. 18 Christoph H Schreuer et al (n 6) 759. 19 Cameron Miles, Provisional Measures Before International Courts and Tribunals (CUP 2017) 174 et seq; Christoph H Schreuer et al (n 6) 759. 20 Christoph H Schreuer et al (n 6) 759. 21 For example, art 26 of the 1976 UNCITRAL Arbitration Rules (predecessor to current art 26 of the 2010 UNCITRAL Arbitration Rules), expressly provided that ‘interim measures may be established in the form of an interim award’. Interim awards under the UNCITRAL Arbitration Rules are expressly binding (art 32(2) of the 1976 Rules). 22 See also Rule 39 of the ICSID Arbitration Rules. But contrast art 1134 of NAFTA. 23 Christoph H Schreuer et al (n 6) 764; David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran-United States Claims Tribunal’ (1986) 46 Zeitschrift Für Ausländisches Öffenliches Recht Und Völkerrecht 478, 511; Kaj Hobér, ‘Res Judicata and Lis Pendens in International Arbitration’ (2014) 366 Recueil des Cours 284; Cameron Miles, Provisional Measures Before International Courts and Tribunals (n 19) 285–87; Cf Anthony C Sinclair and Odysseas G Repousis, ‘An Overview of Provisional Measures in ICSID Proceedings’ (2017) 32(2) ICSID Rev–FILJ 433. For a different interpretation, see Charles N Brower and Ronald EM Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings (1991) 6(2) ICSID Rev–FILJ 431, 440. 24Emilio Agustín Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7, Procedural Order No 2 (28 October 1999) para 9; Víctor Pey Casado and President Allende Foundation v Republic of Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures (25 September 2001) paras 17 et seq; Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Procedural Order No 3 (18 January 2005) para 6, fn 12; Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No ARB/08/6, Decision on Provisional Measures (8 May 2009) para 74; Quiborax SA and Non-Metallic Minerals SA v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 579, fn 738; Valle Verde Sociedad Financiera SL v Bolivarian Republic of Venezuela, ICSID Case No ARB/12/18, Decision on Provisional Measures (25 January 2016) para 75, fn 30. 25 Christoph H Schreuer et al (n 6) 764. However, the ICSID Convention and the ICSID Arbitration Rules do not draw such a distinction. 26 Christoph H Schreuer et al (n 6) 764. 27Pey Casado v Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures (25 September 2001) para 14. Similarly, Millicom International Operations BV and Sentel GSM SA v Republic of Senegal, ICSID Case No ARB/08/20, Decision on the Application for Provisional Measures (24 August 2009) para 38. 28 Eg Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005) para 47; SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan, ICSID Case No ARB/01/13, Procedural Order No 2 (16 October 2002). 29 Kaj Hobér, ‘Res Judicata and Lis Pendens in International Arbitration’ (n 23) 284. Examples brought include decisions on procedural matters and recommendations of interim measures. 30 Rule 47(1)(i) of the ICSID Arbitration Rules. 31ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and ConocoPhillips Gulf of Paria BV v Bolivarian Republic of Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, paras 38–39. See also ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and ConocoPhillips Gulf of Paria BV v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 27; Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 309. 32Tanzania Electric Supply Company Limited v Independent Power Tanzania Limited, ICSID Case No ARB/98/8, Final Award (22 June 2001) para 32, emphasis added. 33ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, para 39. 34 Eg see art 52(1) of the ICSID Additional Facility Rules which provides, inter alia, that the award shall contain ‘the decision of the Tribunal on every question submitted to it’. cf Rule 47(1)(i) of the ICSID Arbitration Rules. 35 Emphasis added. 36 Kaj Hobér (n 23) 394. 37Burlington v Ecuador (n 17) para 88. 38 Rule 47(1)(j) of the ICSID Arbitration Rules. 39 However, some of these have been discussed in connection with revision of interim decisions, eg see Burlington v Ecuador (n 17) paras 72 et seq. 40 But cf Kaj Hobér (n 23) 257, who writing on international arbitration comments that ‘[i]t is not self- evident […] that res judicata with respect to arbitral awards should be equated to judgments of State courts […] due to the differences between international arbitration and court proceedings. […] As a consequence [of party autonomy] in international arbitration res judicata is not a matter of public policy. […] [An objection based on res iudicata] cannot be raised sua sponte by an arbitral tribunal. Since party autonomy, as a matter of general principle, reigns supreme in international arbitration, a party can, if it so deems appropriate, waive an otherwise legitimate objection based on res judicata. By the same token, the parties can agree to submit the same dispute to a new tribunal.’ 41 The term ‘lex specialis’ is borrowed from ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, paras 42 et seq. See also Lisa M Bohmer, ‘Finality in ICSID Arbitration Revisited’ (2016) 31(1) ICSID Rev–FILJ 236 239. 42Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 para 115. 43 Art 34(1) and (2) of the UNCITRAL Arbitration Rules (2010). 44 According to art 32(1) and (2) of the UNCITRAL Arbitration Rules of 1976, ‘[i]n addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards’, and ‘[t]he award […] shall be final and binding on the parties. […]’ 45Murphy Exploration and Production Company International v Ecuador [II], PCA Case No 2012-16, Final Award (10 February 2017) para 32. 46 ibid. 47Pope & Talbot Inc v Canada, UNCITRAL, Award in Respect of Damages (31 May 2002). 48 NAFTA FTC, Notes of Interpretation of Certain Chapter 11 Provisions (31 July 2001). 49Chevron Corporation (USA) and Texaco Petroleum Corporation (USA) v Ecuador [II], PCA Case No 2009-23, Decision on Track 1B (12 March 2015) para 6. 50 Art 26.1 of the LCIA Arbitration Rules (2014). 51 Art 26.8 of the LCIA Arbitration Rules (2014). 52 On the preclusive effect of reasoning and issue preclusion, see William W Park, ‘Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata’ (n 4) 66. 53 Art 44 of the SCC Arbitration Rules (2017). 54 Art 46 of the SCC Arbitration Rules (2017). 55 Art 2 of the ICC Arbitration Rules (2017). 56 Art 35(6) of the ICC Arbitration Rules (2017). 57AMCO v Indonesia, ICSID Case No ARB/81/1, Decision on Jurisdiction (10 May 1988) para 32, emphasis added. 58Jan de Nul NV and Dredging International NV v Egypt, ICSID Case No ARB/04/13, Award (6 November 2008) para 130. 59ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014); ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (9 February 2016); Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015). 60Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 308. 61 ibid fn 408. 62Tokios Tokelės v Ukraine, ICSID Case No ARB/02/18, Award (26 July 2007) para 96. 63 ibid. 64 ibid para 98. 65Helnan International Hotels A/S v Egypt, ICSID Case No ARB/05/19, Award (3 July 2008) para 113. 66 ibid para 111. 67 ibid para 112. In that case, a res iudicata objection raised by the investor concerned an earlier arbitral award rendered in Cairo in a different proceeding. The tribunal eventually dismissed the respondent’s new jurisdictional objection (ibid para. 120). By contrast, the majority in Siag v Egypt found the jurisdictional objection to have been waived because it was not raised in good time. See Waguih Elie George Siag and Clorinda Vecchi v Arab Republic of Egypt, ICSID Case No ARB/05/15, Award (1 June 2009) paras 175–203. 68 Rule 41(1) of the ICSID Arbitration Rules. 69Quiborax SA and Non Metallic Minerals SA v Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 129. 70 ibid para 130. 71 ibid paras 132–34. 72 ibid para 541. 73Pac Rim Cayman LLC v El Salvador, ICSID Case No ARB/09/12, Award (14 October 2016) para 5.39. 74 Emphasis added. 75 Kaj Hobér (n 23) 284, emphasis added. 76 Kaj Hobér (n 23) 395. 77 ibid 395–96. For example in PL Holdings v Poland, a SCC case, the Tribunal accepted to consider belated jurisdictional objections, among others because the objections went to its very authority to decide the dispute, PL Holdings Sàrl v Poland, SCC Case No V 2014/163, Partial Award (28 June 2017) paras 298, 306, 307. 78Giovanni Alemanni v Argentine Republic, ICSID Case No ARB/07/8, Decision on Jurisdiction and Admissibility (17 November 2014) para 293. See Rule 41(4) of the ICSID Arbitration Rules. 79Electrabel SA v Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (30 November 2012) para 10.1. 80 cf Lisa M Bohmer, ‘Finality in ICSID Arbitration Revisited’ (n 41) 240. 81Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 315. 82ConocoPhillips v Venezuela (n 31) para 21; Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015). 83ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Jurisdiction and the Merits (3 September 2013) para 404. 84ConocoPhillips v Venezuela (n 83), Decision on Jurisdiction and the Merits (3 September 2013). 85ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Respondent Application for Reconsideration of Decision (10 August 2015) 2–3. 86ConocoPhillips v Venezuela (n 31) Decision on Respondent’s Request for Reconsideration (10 March 2014) para 20. 87ConocoPhillips v Venezuela (n 85) Decision on Respondent’s Request for Reconsideration (10 March 2014) para 21. 88 This argument of the tribunal majority was criticised by Professor Georges Abi-Saab in his Dissenting Opinion who caustically observed that the incorporation of the decisions in the final award is not just a matter of ‘practice’ but one of ‘legal necessity’, since, pursuant to art 48(3) of the ICSID Convention, the award must incorporate all conclusions on questions submitted to the tribunal and decided before the final award. See ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, paras 38–39. The argument was also criticised by Arbitrator Andreas Bucher in ConocoPhillips v Venezuela (n 31) Dissenting Opinion by Arbitrator Andreas Bucher, paras 27 and 39, where the dissenter questioned the legal basis for such ‘matter of principle and practice’. See also Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 309. 89ConocoPhillips v Venezuela (n 31), Decision on Respondent’s Request for Reconsideration (10 March 2014) para 19. 90 ibid para 23, emphasis added. 91 ibid, emphasis added. 92 ibid para 22. 93 Art 51(2) of the ICSID Convention, emphasis added. 94 Art 51(3) of the ICSID Convention. 95 Abi-Saab had also dissented in the Decision on Jurisdiction and the Merits in relation to the point that the respondent sought to reopen, see ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Jurisdiction and the Merits (3 September 2013) para 404. 96ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, para 41. 97 ibid para 44. 98 ibid para 40. 99ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) para 11. 100 ibid para 22. 101ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (10 March 2014) para 22. 102ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) para 23, see further para 28, where the Tribunal majority makes reference to ‘the broad power of substantive reconsideration which the Respondent invokes’. 103 Cf Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 320, where the Tribunal considers that ‘a power to reopen a decision has both procedural and substantive aspects, involving a procedural right to bring a request for reconsideration and the substantive question of what is to be done with such a request’. 104 Charles Vuylsteke, ‘Foreign Investment Protection and ICSID Arbitration’ (1974) 4 Georgia J Inter Comp Law 351; Christoph H Schreuer et al (n 6) 688; Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ in Ian A Laird and Todd J Weiler (eds), Investment Treaty Arbitration and International Law, (vol 5, Juris 2012) 52; Martins Paparinskis, ‘Inherent Powers of ICSID Tribunals: Broad and Rightly So’ in Ian A Laird and Todd J Weiler (eds) Investment Treaty Arbitration and International Law (vol 5, Juris 2012) passim. On the doctrine of inherent powers more generally, see Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: Questions of Jurisdiction, Competence and Procedure’, British Year Book of International Law 1958 (OUP 1959) 25 et seq; Chester Brown, A Common Law of International Adjudication (OUP 2007) 161 et seq; Friedl Weiss, ‘Inherent Powers of National and International Courts: The Practice of The Iran-Us Claims Tribunal’ in Christina Binder et al (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009) 1; Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’, British Yearbook of International Law (OUP 2006) 195 et seq. 105ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, paras 54 et seq. 106 Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ (n 104) 47; Paola Gaeta, ‘Inherent Powers of International Courts and Tribunals’ in Lal Chand Vohrah et al (eds), Man’s Inhumanity to Man (Kluwer Law International 2003) 364–65; Friedl Weiss, ‘Inherent Powers of National and International Courts: The Practice of The Iran–US Claims Tribunal’ (n 104) 188, 191, 197. See also ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, para 56. For some examples of inherent powers mentioned in investment case law, see Libananco Holdings Co Limited v Republic of Turkey, ICSID Case No ARB/06/8, Decision on Preliminary Issues (23 June 2008) para 78; Waguih Elie George Siag and Clorinda Vecchi v Egypt, ICSID Case No ARB/05/15, Award (1 June 2009) para 366; Abaclat and others v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility (4 August 2011) para 521. 107 Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ (n 104) 49, with case citations; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: Questions of Jurisdiction, Competence and Procedure’ (n 104) 25 et seq. 108 Tobia Cantelmo, ‘The Inherent Power of Reconsideration in Recent ICSID Case Law’ (2017) 18 J World Invest Trade 246–56. However, see ibid 256, where Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) is discussed as confirming the uncontroversial exercise of the tribunal’s inherent powers, although the Tribunal did not make a reference to such powers. 109ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 34. 110 See Rule 38 of the ICSID Arbitration Rules. ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 28. 111ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 40, emphasis in original. 112 The composition of the ConocoPhillips Tribunal changed with Eduardo Zuleta replacing Kenneth J Keith as President. The tribunal majorities in the first two decisions on the requests for reconsideration were formed by Kenneth J Keith and L Yves Fortier. 113ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Interim Decision (17 January 2017). Venezuela’s third Application for Reconsideration was filed by letter to the Tribunal on 20 April 2016 (ibid para 23). 114 ibid para 37. 115 ibid para 38. 116 ibid paras 52 et seq. 117 ibid para 62. 118 ibid paras 94 et seq. 119Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability (12 September 2014). 120Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) para 5. 121 ibid para 78. 122 Art 49(2) of the ICSID Convention. 123 Christoph H Schreuer et al (n 6) 849–50. 124Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) para 57. 125 ibid para 43. 126CMS Gas Transmission Co v Argentina, ICSID Case No ARB/01/8, Award (12 May 2005). 127Waste Management, Inc v United Mexican States, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002). 128Electrabel SA v Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability. 129ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014). See Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) paras 44–47. 130CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/8, Award (12 May 2005) para 126. 131 The Perenco Tribunal’s decision was also criticised in ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 77. 132Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 45. 133Waste Management, Inc v United Mexican States, ICSID Case No ARB(AF)/98/2, Award (2 June 2000) Part IV. 134Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 17. 135ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 77, fn 51, emphasis added. 136Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 53. See further Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Award (30 April 2004) para 11. 137Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Perenco’s Application for Dismissal of Ecuador’s Counterclaims (18 August 2017) para 42, also in general paras 41 et seq. 138 This is also confirmed by the ConocoPhillips v Venezuela, Interim Decision of 17 January 2017 on Venezuela’s third Application for Reconsideration, discussed above (see The ConocoPhillips saga). 139Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 207. 140 ibid para 414. 141 ibid para 312. 142 ibid para 314. 143 ibid para 318. 144 ibid para 322. 145Burlington v Ecuador (n 17) paras 80 et seq. 146 ibid paras 86 et seq. 147 ibid para 86. 148 ibid para 89. 149 ibid paras 116, 124. 150Tokios Tokelės v Ukraine, ICSID Case No ARB/02/18, Award (26 July 2007) para 98. 151 Brower and Henin, ‘Res Judicata: ConocoPhillips v. Venezuela, ICSID Case No ARB/07/30’ (n 4) 68–69. See further Niko Resources (Bangladesh) Ltd v Bangladesh Petroleum Exploration & Production Company Limited (‘Bapex’) and Bangladesh Oil Gas and Mineral Corporation (‘Petrobangla’), ICSID Case Nos ARB/10/11 and ARB/10/18, Procedural Order No 13 (26 May 2016) para 7 and passim; and ibid, Third Decision on the Payment Claim (26 May 2016) para 93 and passim. For a discussion, Jarrod Hepburn, ‘Tribunal’s Decision to Re-open Corruption Issue in Bangladesh Case Does Not Delve into Ongoing Debate over Powers of Reconsideration’ IA Reporter (24 June 2016) 9. 152Venezuela Holdings BV, Mobil Cerro Negro Holding Ltd, and others v Bolivarian Republic of Venezuela, ICSID Case No ARB/07/27, Decision on Revision (12 June 2015) para 3.1.12. 153 cf Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 320. 154 Brower and Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ (n 4) 65. See also Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 322: ‘[I]t would lead to considerable uncertainty if tribunals were to assert an unconstrained power to reopen any decisions made’. 155Burlington v Ecuador (n 17) para 90. 156 ibid para 91. 157 ibid para 92. 158Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 317 and passim. 159 ibid para 321, emphasis added. 160ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 45. 161 ibid para 73. 162 For a discussion, see text accompanying fns 90 et seq. 163 Rule 19 of the ICSID Arbitration Rules provides that the tribunal shall ‘make the orders required for the conduct of the proceeding’. 164ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 45. 165 But cf Tobia Cantelmo, ‘The Inherent Power of Reconsideration in Recent ICSID Case Law’ (n 108). 166 For example Hersch Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’ in Hersch Lauterpacht (ed), International Law: Collected Papers, Volume 2, The Law of Peace, Part 1, International Law in General, (CUP 1975, reprinted 2009) 216; Daniel Bodansky, ‘Non Liquet’, Max Planck Encyclopedia of Public International Law (OUP 2006) para 2. 167 Daniel Bodansky, ‘Non Liquet’, Max Planck Encyclopedia of Public International Law (OUP 2006) para 1. 168 Christoph H Schreuer et al, (n 6) 630. 169 Daniel Bodansky, ‘Non Liquet’, (n 166) para 2. 170 ibid. 171 Hersch Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’ (n 166) 216. © The Author(s) 2018. Published by Oxford University Press on behalf of ICSID. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png ICSID Review: Foreign Investment Law Journal Oxford University Press

Res Iudicata and Interlocutory Decisions under the ICSID Convention: Antinomies over the Power of Tribunals to Review

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Abstract

Abstract There is little doubt that res iudicata is a general principle of law. But its application in investment treaty arbitration remains varied. A recent fracture in the case law of investment tribunals concerns the apparent dilemma of the res iudicata effect, if any, of interlocutory, i.e. pre-award, decisions rendered under the ICSID Convention. The article explores res iudicata and its scope in light of the formal distinction between decisions and awards under the ICSID Convention. It engages critically with the relevant case law and argues that, in contrast to awards, decisions do not carry the res iudicata effect. But the absence of res iudicata does not mean that the reopening of a decision is always justified and special regard must be had to the specific circumstances. I. INTRODUCTION There is little doubt, if any, that res iudicata is a general principle of law.2 But its application in investment treaty arbitration remains varied. While academic discourse on the topic has been dominated by the fracture in arbitral case law between the triple identity test (identity of personae, petitum, causa petendi)3 and the common law approach that accepts the pleas of ‘claim preclusion’ and ‘issue preclusion’ (and the equivalent ‘issue estoppel’ or ‘collateral estoppel’),4 a more recently unveiled apple of discontent concerns an apparent different dilemma: the res iudicata effect, vel non, of provisional decisions rendered under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Unlike other arbitration systems, the ICSID Convention draws a distinction between a provisional, interim or interlocutory, ie a pre-award, ‘decision’,5 and an ‘award’. I use ‘provisional’, ‘interim’ or ‘interlocutory’ advisedly, to foreground the non-final nature of a decision under the ICSID Convention. In contrast, an award is de facto final. The fulcrum of the res iudicata issue under the ICSID Convention is revealed in the following statement: ‘the claim on which the award has decided must not be the subject of another proceeding before a domestic court or arbitral tribunal’.6 But how about the claim on which a decision has decided within the same proceeding? Is such a decision res iudicata and, if not, can it be revisited by a tribunal? The above interpretation appears to exclude decisions from the scope of res iudicata, but some investment tribunals have held otherwise: they declined to reopen a decision considering that it was res iudicata. Some legal commentators, while mildly deploring a particular decision in the latter strain of the case law as delivered ‘under the specific circumstances’ considered that the approach has ‘legitimate appeal’.7 The doubt is raised at a time when proceedings are often bifurcated and the question of whether decisions under the ICSID Convention are res iudicata is likely to arise repeatedly.8 In light of these elements, it becomes pertinent to enquire into whether decisions under the ICSID Convention are capable of producing res iudicata effects. The remainder of this article is structured in the following manner. Part II canvasses binding effect as a constituent element of res iudicata and draws the distinction between awards and decisions under the ICSID Convention. Part III engages critically with the relevant case law and the arguments that were raised therein. Part IV considers two remaining issues: the pertinence of the specific circumstances and the allegation that upholding the res iudicata effect of decisions constitutes non liquet. The final part concludes. II. BINDING EFFECT AND THE DISTINCTION BETWEEN AWARDS AND DECISIONS UNDER THE ICSID CONVENTION A. Binding effect and res iudicata The res iudicata effect of an award is tethered to its finality, or binding character, and ultimately to its enforceability. In Ampal v Egypt, the tribunal held that the findings of an earlier contractually-appointed tribunal relevant to the claims before it carried res iudicata effect for the very reason that the award of that tribunal was binding upon the parties.9 Pursuant to Article 53(1) of the ICSID Convention, an ICSID award is binding on the parties and it is not subject to appeal or any other remedy except as provided for in the Convention.10 This provision enounces what could be termed the award’s internal binding effect, limited to the parties to the particular proceeding.11 (However, this should not detract from the fact that one of the parties to the dispute is a State.) It is complemented by Article 54(1) of the ICSID Convention which instructs the contracting States to recognise an award as binding and enforce the pecuniary obligations imposed by it. Article 54 broadens the ‘recipients’ of the award’s binding nature and articulates what could be termed its external binding effect. Since the State’s obligation to recognise the award as binding and enforce the pecuniary obligations imposed by it under Article 54(1) of the ICSID Convention is owed to other State parties, its violation could engage the international responsibility of the State.12 According to ICSID Convention: A Commentary, it is the obligation to recognise an award as binding that renders it res iudicata.13 By this token, enforceability is relegated to an element of indirect significance when attributing res iudicata. This makes sense when considering specific performance as a remedy ordered by a tribunal: the res iudicata effect of an award granting non-pecuniary remedies is not affected by the fact that only pecuniary obligations are enforceable under the ICSID Convention.14 This same comment, taken literally, appears to indicate that it is the award’s external binding effect only that matters for res iudicata. It is uncertain whether this is intentional. However, it is also the approach taken in Standard Chartered Bank v Tanzania, where the Tribunal held that while decisions are binding within the proceedings, this does not make them res iudicata.15 The Tribunal considered that a cardinal feature of res iudicata is that ‘the judgment in question produces effects on the parties outside the proceedings in which it is granted’.16 Similar reasoning was followed in Burlington v Ecuador.17 Without prejudging the issue, it is worth considering the particular case of provisional measures under the ICSID Convention. The discussion is relevant because provisional measures under the ICSID Convention are granted by an interim decision and should be plainly distinguished from awards,18 their binding nature is disputed, and it is clear that they are not vested with res iudicata effect. The purpose of provisional measures is to safeguard rights subject to adjudication and to prevent an aggravation of the status quo, such as by securing discovery of evidence.19 Provisional measures are adopted when the dispute is still pending.20 In contrast with other arbitration rules,21 under the ICSID Convention decisions on provisional measures do not in fact appear to be binding. That much is true in light both of the wording of Article 47 of the Convention, which clearly states that the tribunal may ‘recommend’ provisional measures,22 and of that article’s drafting history.23 This reveals that the link between binding character and res iudicata can display a different timbre depending on context. However, ICSID tribunals have consistently opined that recommendations of interim measures have a binding effect on the parties.24 Notice that the question is one of the measures’ legal effect on the parties (internal binding effect); states are under no obligation to recognise as binding and to enforce decisions on such measures.25 Binding or not, provisional measures under the ICSID Convention do not carry res iudicata effect and can be revisited by the tribunal. Rule 39(3) of the ICSID Arbitration Rules is unequivocal about this: a tribunal may ‘at any time’ revise or revoke interim measures it has recommended. In Víctor Pey Casado v Chile, the tribunal, which had otherwise considered that provisional measures are binding,26 held that they are not res iudicata. Accordingly, it stated that provisional measures can be modified or revoked at any time and that they are valid only for the duration of the proceeding and would automatically lapse if the tribunal decided that it had no jurisdiction.27 Other tribunals have also emphasised that the decision on provisional measures is not res iudicata, that it is without prejudice to later decisions on jurisdiction and that it can be revisited.28 But if decisions in general were res iudicata, decisions on interim measures too would have to be. However, Rule 39(3) of the ICSID Arbitration Rules could be considered as a lex specialis in this case, expressly allowing tribunals to revise decisions on interim measures. If the binding or non-binding nature of an award or decision is the litmus test to determine res iudicata, in contrast to awards, decisions that are not binding lack the res iudicata effect.29 While Articles 53 and 54 of the ICSID Convention attribute binding effect to ‘awards’, no equivalent provision exists for ‘decisions’. It is appropriate then to consider the distinction between an ‘award’ and a ‘decision’ under the ICSID Convention. B. The distinction between awards and decisions for purposes of res iudicata: Are awards from Mars and decisions from Venus? Article 48(3) of the ICSID Convention specifies that an ‘award’ deals ‘with every question submitted to the Tribunal’, and it must state the reasons upon which it is based. This provision is supplemented by Rule 47(1) of the ICSID Arbitration Rules which mandates that the award contain ‘the decision of the Tribunal on every question submitted to it’.30 In other words, the award must incorporate the conclusions on all questions submitted to the tribunal and decided before the final award, to ensure that it is not infra petita, ie it must incorporate all ‘decisions’.31 Strictly speaking, the ICSID Convention and the ICSID Arbitration Rules ‘contain no provisions which permit or even contemplate “Partial” or “Interim” awards, indeed, […] the Rules contemplated only one, Final Award’.32 The term ‘final’ should be understood not only chronologically to mean the ‘last’ but also the ‘definitive’, the one that disposes of the dispute.33 The situation is similar under the ICSID Additional Facility Rules.34 The award can, but does not have to, include a decision on the merits. A ‘decision’ declining jurisdiction is an award: it is final and binding, and with it the tribunal discharges its adjudicative function. Pursuant to Rule 41(6) of the ICSID Arbitration Rules, if the tribunal determines the dispute to be outside the jurisdiction of the Centre or outside its own competence, or if it considers that the claim manifestly lacks legal merit, ‘it shall render an award to that effect’.35 Action can be recommenced if the jurisdictional defect is cured, such cure constituting factum superveniens, which deprives the earlier award of its res iudicata.36 In contrast, a ‘decision’ under the ICSID Convention, as opposed to an ‘award’, is one that does not deal with every question submitted to the tribunal. A decision upholding jurisdiction and a partial decision on the merits are just such ‘decisions’ that fall short of the definition of an award, in the same way as decisions on procedural matters and recommendations of interim measures. Decisions under the ICSID Convention have a half-existence until their incorporation in the final award. To return to Article 54 of the ICSID Convention, recognition and enforcement of awards only is possible. ICSID contracting states have an obligation to recognise and enforce awards and awards only; decisions even if they impose pecuniary obligations,37 such as decisions on costs rendered before the final award pursuant to Rule 28(1) of the ICSID Arbitration Rules, do not fall under the scope of Article 54 of the ICSID Convention. Tellingly, any such decision on costs of the proceedings needs to be expressly incorporated in the final award.38 Not only are recognition and enforcement possible for awards only, post-award remedies in the ICSID Convention are just that: remedies that become available once an award has been rendered. These remedies are not available against decisions.39 A request for an interpretation under Article 50 of the ICSID Convention can only be made with respect to an award. Article 51 of the ICSID Convention bears on the reconsideration of an award ‘on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown’. Article 52 of the ICSID Convention contains the Convention’s grounds for annulment of an award. All these elements point to a prima facie absence of res iudicata effect of decisions under the ICSID Convention. But for this one must keep in mind the distinction between decisions and awards and that this distinction is a particularity of the ICSID system that renders parallels with other systems inappropriate. It is to this particularity that I will now turn. C. The distinction between awards and decisions as a lex specialis of the ICSID Convention The substance of the principle of res iudicata is no different in investment treaty arbitration than in public international law courts.40 No more is it different in ICSID arbitration than in other arbitration rules. Nevertheless, the distinction between awards and decisions is a particularity or a lex specialis of the ICSID system.41 Because of this particularity, recourse to other arbitration rules and the functioning of public international law courts is not very helpful to understand whether ICSID decisions are res iudicata. For example, according to the International Court of Justice (ICJ), res iudicata signifies that the Court’s decisions are both binding on the parties and final ‘in the sense that they cannot be reopened by the parties as regards the issues that have been determined’.42 This reasoning is based on Article 59 of the Statute of the ICJ, which states that ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. No such provision exists in the ICSID Convention with respect to ‘decisions’. Likewise, with the exception of the ICSID Additional Facility, not examined here, other arbitration systems do not draw a distinction between an ‘award’ and a ‘decision’ and, by that fact, post-award remedies become available both against those decisions that are provisional and against those that are final. The 2010 UNCITRAL Arbitration Rules establish that the tribunal ‘may make separate awards on different issues at different times’, and that ‘[a]ll awards shall be […] final and binding on the parties. The parties shall carry out all awards without delay.’43 In Murphy Exploration v Ecuador II, an arbitration conducted under the 1976 UNCITRAL Arbitration Rules,44 the Tribunal rejected the investor’s request to reconsider the extent of the respondent’s liability on which it had already pronounced in its earlier Partial Final Award,45 although there was no mention of res iudicata. The Tribunal considered instead that had it acquiesced to the investor’s motion this would have been ‘an unnecessary and duplicative re-examination of the merits’.46 However, in Pope & Talbot v Canada, an arbitration brought on the basis of the North American Free Trade Agreement (NAFTA) and conducted under the 1976 UNCITRAL Arbitration Rules, in its Award in Respect of Damages,47 the Tribunal had to reconsider its interpretation of Article 1105 of NAFTA in an earlier award, following the NAFTA Free Trade Commission’s (FTC) Notes of Interpretation of Certain Chapter 11 Provisions.48 In that case, the Tribunal discussed the question of retroactive application of the NAFTA FTC’s interpretation, but the issue of res iudicata was not broached. In Chevron v Ecuador II, another arbitration under the 1976 UNCITRAL Arbitration Rules, the Tribunal issued a ‘decision’ and stressed that ‘this decision is not to be regarded as an award; and it is not intended to give rise to any issue estoppel or any form of res judicata. Accordingly, the Tribunal retains in full its jurisdiction to re-visit any part of this decision at a later stage of this arbitration by one or more orders, decisions and awards, without having become functus officio as regards any issue addressed by this decision.’49 Similarly to the UNCITRAL Arbitration Rules, the 2014 Arbitration Rules of the London Court of International Arbitration (LCIA) provide that the tribunal ‘may make separate awards on different issues at different times, including interim payments on account of any claim or cross- claim (including Legal and Arbitration Costs). Such awards shall have the same status as any other award made by the Arbitral Tribunal.’50 The LCIA Arbitration Rules further state that ‘[e]very award (including reasons for such award) shall be final and binding on the parties’.51 Significantly, this provision explicitly recognises the preclusive effect of reasoning (issue preclusion), a feature of common law jurisdictions. 52 The 2017 Arbitration Rules of the Stockholm Chamber of Commerce (SCC) establish that the tribunal ‘may decide a separate issue or part of the dispute in a separate award’,53 and that ‘[a]n award shall be final and binding on the parties when rendered. By agreeing to arbitration under these Rules, the parties undertake to carry out any award without delay.’54 Finally, the 2017 Arbitration Rules of the International Chamber of Commerce (ICC) incorporate ‘inter alia, an interim, partial or final award’ within the meaning of ‘award’,55 and equally specify that ‘[e]very award shall be binding on the parties’ and the latter ‘undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made’.56 III. ARBITRAL CASE LAW UNDER THE ICSID CONVENTION The issue of the res iudicata effect, vel non, of provisional decisions under the ICSID Convention has fractured arbitral case law. While in 1988 in AMCO v Indonesia II, the Tribunal considered that it was ‘by no means clear that the basic trend in international law is to accept reasoning, preliminary or incidental determination as part of what constitutes res judicata’,57 in 2008 the Jan de Nul v Egypt Tribunal held that its decision on jurisdiction was res iudicata.58 Similarly, in ConocoPhillips v Venezuela (twice) and in Perenco v Ecuador, tribunal majorities found that ICSID decisions are res iudicata and that the tribunal has no power to reopen its decisions.59 The Standard Chartered Bank Tribunal explained that no tribunal before it had ‘directly concluded that there is such a power although there are cases that appear to acknowledge the possibility of, or the existence of, such a power without applying it to reopen a decision’.60 But its statement needs to be taken with a pinch of salt; to support it, the Tribunal drew not only on ICSID case law but also on UNCITRAL case law.61 A number of ICSID tribunals reopened earlier decisions without much ado, while the question of whether a decision is res iudicata essentially arose in cases where a relevant objection had been raised. The paragraphs that follow provide a critical appraisal of arbitral case law on the question of the res iudicata effect of ICSID decisions. A. The tribunal’s power to reopen decisions as a procedural question In Tokios Tokelės v Ukraine, the Tribunal accepted to entertain anew jurisdictional objections in the merits phase noting that ‘[i]t could have been thought that [the Tribunal’s decision on jurisdiction] would leave only the merits of the dispute to be considered at the present stage, but events have proved otherwise’.62 The respondent had remitted to the Tribunal a number of jurisdictional objections. In reality, one of these had already been raised at the earlier proceeding, but two could have been raised and were not, and the remainder were new.63 The Tribunal considered the jurisdictional objections. Only with respect to the objection that had already been raised in the earlier phase did it remark, and that after examining it, that it could simply have recorded that ‘by virtue of the treatment of the same point in the Decision on Jurisdiction the principles of res judicata and issue estoppel excluded any right to raise it again, but in the circumstances it [had] been thought right to reconsider the question’.64 In Helnan v Egypt, the Tribunal accepted to review in the merits phase a new jurisdictional objection.65 The claimant contended that the objection was untimely and therefore should be considered to have been waived.66 The Tribunal rejected the claimant’s argument, although it remarked that the objection ‘could have been raised sooner’.67 According to Rule 41(1) of the ICSID Arbitration Rules, objections that the dispute or ancillary claims are not within the jurisdiction of the Centre or within the competence of the tribunal shall be raised ‘as early as possible’; exceptions to the required time-limits for bringing the objection can be made if the facts on which it is based were unknown to the party at the time.68 In Quiborax v Bolivia, the Tribunal had to address at the merits stage Bolivia’s allegation of the investment’s original and ongoing illegality. While the issue of ongoing illegality was something for the Tribunal to consider in the merits phase, to the extent that the allegations concerned the investment’s original illegality, ie at establishment, the respondent sought to reopen an issue that had already been determined in the jurisdictional phase.69 The Tribunal observed that it may be justified to reopen the issue in the merits phase, if the alleged illegality was unknown to Bolivia during the jurisdictional phase.70In casu, the respondent had the necessary elements to advance this argument at jurisdiction, but given the gravity of the accusation the Tribunal decided all the same to examine Bolivia’s jurisdictional objection; finding the evidence of illegality to be inconclusive, ultimately it dismissed the argument.71 Elsewhere, the Tribunal concluded that ‘there is no reason that can justify reopening the jurisdictional issues at this stage, assuming this were at all possible’.72 This statement is somewhat unhelpful, given the express provision made for that purpose in Rule 41(1) of the ICSID Arbitration Rules (presuming that the facts on which the objection is based were unknown at the time) and taking account of the fact that the Tribunal did consider Bolivia’s jurisdictional objection. In Pac Rim Cayman v El Salvador the Tribunal did not invoke ‘any principle of res judicata or finality, by analogy with Article 53(1) of the ICSID Convention or otherwise’; it opined that the issue could be determined ‘more easily, as a practical matter, by direct reference to other provisions of the ICSID Convention and the ICSID Arbitration Rules’.73 It is important to remember that, according to Rule 41(2) of the ICSID Arbitration Rules, the tribunal has the power to consider proprio motu whether the dispute or any ancillary claim is within the jurisdiction of the Centre and within the tribunal’s competence ‘at any stage of the proceeding’.74 Kaj Hobér has argued more generally that ‘since every form of arbitration is dependent on the agreement of the parties—ie a valid and applicable arbitration agreement—arbitrators have the obligation, at every stage of an arbitration, to make sure that they have jurisdiction’.75 This implies that having accepted jurisdiction, the proceedings are relevant provided that the tribunal continues to have jurisdiction—or any award to follow could risk set-aside or, for the purposes of the present discussion, annulment under Article 52 of the ICSID Convention. Hobér also remarks that where an ICSID tribunal has accepted jurisdiction, it can ‘probably’ reverse its position in a later decision, if new facts come to light that require a different conclusion.76 Nonetheless, even in the absence of such facta supervenientia, if a ‘renewed analysis’ of the issue leads the tribunal to conclude that it does not have jurisdiction, a decision on the merits would be inappropriate.77 In addition, unrelated to the issue of res iudicata, it is not unusual for a tribunal to decide to join some jurisdictional objections to the merits of the dispute from scratch, such as in Giovanni Alemanni v Argentina.78 A final case is worth citing in extenso, if only because it has been misquoted as making an argument in favour of res iudicata which it did not. In Electrabel v Hungary, the Tribunal issuing a provisional decision explained: This Decision is made in regard only to the first phase of these arbitration proceedings, relating to extant issues of jurisdiction and liability; and it is not made in regard to any issue of quantum (including interest). Although necessarily described as a ‘Decision’ and not an ‘Award’ under the ICSID Convention and ICSID Arbitration Rules, the several decisions and reasons contained in this Decision are intended by the Tribunal to be final and not to be revisited by the Parties or the Tribunal in any later phase of these arbitration proceedings.79 The Electrabel Tribunal did not canvass res iudicata; it expressed an intention for its decision to be final and not to be revisited. But an intention is not an impossibility to reconsider because an issue is res iudicata.80 In the words of the later Standard Chartered Bank Tribunal, ‘a tribunal cannot confer a status on its decisions that they do not have under the lex arbitri’.81 Nowhere did the Electrabel Tribunal state that its decision was res iudicata. But it was later cited as saying so by both a ConocoPhillips majority and the Perenco Tribunal, which attempted to buttress their own argument that the provisional decisions they had issued were res iudicata.82 The discussion will now turn to these two cases. B. The ConocoPhillips saga In ConocoPhillips v Venezuela, an ICSID Tribunal majority held that Venezuela had breached its investment obligations having failed to ‘negotiate in good faith for compensation for its taking of the ConocoPhillips assets […] on the basis of market value’ in its Decision on Jurisdiction and the Merits.83 Consequently, two divided tribunals reasoned that they had no power to reopen this decision, before a third tribunal effectively did. In casu, the respondent had requested that the Tribunal hold a hearing to reconsider an issue and correct an alleged material error in the establishment of the facts, which would impact the outcome.84 According to Venezuela’s submissions, WikiLeaks cables since the Tribunal hearing revealed that the representations of ConocoPhillips on which the Tribunal had relied to reach its conclusions regarding the respondent’s unwillingness to negotiate in good faith were not substantiated.85 In the first Decision on the Respondent’s Request for Reconsideration, the Tribunal majority observed that: the Respondent characterises the Decision as ‘interim’ or ‘preliminary’ and, accordingly, capable of being reconsidered, perhaps on an informal basis. The only reason suggested in its submissions is the temporal one: a further stage in the proceedings, relating to quantum, remains. The Decision does not however take an interim or preliminary form in respect of the matters on which it rules.86 Until that stage, there is nothing particularly astonishing about the Tribunal’s reasoning. It reflects the earlier Electrabel v Hungary decision that expressed the tribunal’s intention that its findings should be final and should not be reopened. But the ConocoPhillips majority continued: Those decisions in accordance with practice are to be incorporated in the Award. It is established as a matter of principle and practice that such decisions that resolve points in dispute between the Parties have res judicata effect.87 The only example of ‘established’ ‘principle and practice’ invoked by the ConocoPhillips majority was the previously-canvassed statement of the Electrabel tribunal which does not mention res iudicata.88 It is interesting to note that the distinction between awards and decisions under the ICSID Convention did not weigh much in the Tribunal majority’s consideration. The majority argued that although the provisions on Recognition and Enforcement of the Award do not directly apply to decisions that does not mean that they ‘may not be relevant in a more general sense’.89 It considered that the ICSID Convention is ‘plainly designed to provide for review or actions in respect of decisions of a tribunal only once the Award [is] rendered’.90 The majority added that only in Section 5 of the ICSID Convention (Articles 50 et seq) on Interpretation, Revision and Annulment of the Award, are powers ‘conferred on the Tribunal to interpret and revise the Award and on an ad hoc Committee to annul an Award on prescribed grounds. It is in those ways and those alone that decisions […] can be questioned, changed or set aside’.91 One begs to differ as to how plain all this is. It is unclear why ICSID decisions are to be reviewed ‘in those ways and those alone’ that ICSID awards are reviewed. In addition, Rule 38(2) of the ICSID Arbitration Rules, whose application the Tribunal majority rejected,92 offers the exceptional possibility for the tribunal, before the award has been rendered, to reopen a proceeding that has been closed if ‘new evidence is forthcoming of such a nature as to constitute a decisive factor’, or if there is ‘a vital need for clarification on certain specific points’. Although Rule 38 does not apply to reconsideration of decisions, since it concerns a proceeding that is closed although an award has not yet been rendered, it should allow by analogy and a fortiori reconsideration of a decision in the case of a proceeding that is still open. It is also relevant that, according to Article 51(1) of the ICSID Convention, the possibility to revise an award on the ground of discovery of a fact that decisively affects the award is dependent on the fact being unknown at the time the award was rendered. Not only that, the application for revision needs to be made ‘within 90 days after the discovery of such fact’.93 Furthermore, the request for revision must be submitted, if possible, to the tribunal which rendered the award.94 Assuming, arguendo, that the time limits for the application for revision could be complied with, this would in principle mean that a tribunal that was not willing to reconsider a decision on the basis of a fact that was raised earlier before it, would now be required to do so post-award. One also notes the implication, deleterious to arbitral economy and the administration of the dispute, of the requirement in the majority’s holding that the ‘injured’ party wait until the award has been rendered until it can reopen old questions, eg of jurisdiction. The first ConocoPhillips Decision on the Respondent’s Request for Reconsideration elicited a dissenting opinion by Professor Georges Abi-Saab,95 who stressed that it is the award that carries res iudicata effect, and it is by this very fact that it becomes possible to have recourse against it.96 Under the ICSID Convention ‘finality’ comes once the earlier decisions are incorporated in the ‘all-inclusive package’ that is the award, while until that moment ‘all the components of the package, whether decided upon or not, remain on the table’.97 He added: If the award cannot be considered final unless and until it incorporates the prior partial decisions – finality being attached to the all-inclusive character of the instrument – these interlocutory partial decisions a fortiori cannot be considered final until they are thus incorporated as part of the whole. Nor can they be subject to (i.e. benefit from the status conferred by) article 53, which is the ICSID rendering of the principle of res judicata, of which finality is one of the two pillars (together with the binding character on the parties) […].98 Following his dissent, Abi-Saab tendered his resignation. Professor Andreas Bucher was appointed by the Chairman of the ICSID Administrative Council to replace him.99 The respondent submitted a new application for reconsideration of the Decision on Respondent’s Request for Reconsideration (the first decision on the request for reconsideration). In this, Venezuela invoked among others Articles 43 and 44 of the ICSID Convention in favour of the tribunal’s power to reopen its earlier decision.100 Article 44 of the ICSID Convention last sentence provides that ‘[i]f 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’. This provision had already been briefly canvassed and dismissed in the majority’s first Decision on Respondent’s Request for Reconsideration.101 In this second decision on the request for reconsideration, the ConocoPhillips majority returned to Article 44. However, its application of the article to the facts at issue remains perplexing. First, the Tribunal acknowledged that Article 44 relates to ‘a question of procedure’, as per its own terms, and cited ICSID Convention: A Commentary to offer examples of such questions of procedure, for example suspension of proceedings when other arbitral proceedings are pending (notably this relates to lis pendens, the flip-side of res iudicata). The Tribunal then enquired into whether Article 44 ‘contain[s] within it a power to reconsider rulings, in effect by a rehearing, which it has made on jurisdiction and on aspects of the merits’ and questioned whether such a power concerns a matter of procedure. Ultimately, the Tribunal considered that reconsideration would be ‘a power of a substantive kind’.102 It is difficult to subscribe to this interpretation. What the Tribunal actually had to determine is whether it had the procedural power to reopen an earlier decision.103 The very example of lis pendens that the majority invoked as a ‘question of procedure’ served to disprove its point, since lis pendens functions in the same way as res iudicata but for parallel, rather than consecutive, proceedings. Article 44 of the ICSID Convention is also relevant to another discussion, that of the tribunal’s inherent powers,104 and was already discussed as such by Abi-Saab in his dissent to the first Decision on Respondent’s Request for Reconsideration.105 The tribunal’s inherent powers are said to not require a textual basis since they are the ‘logical corollary’ of its adjudicative function.106 The paradigmatic example of an inherent power is the tribunal’s capacity to determine its own competence (compétence de la compétence).107 Inherent powers have also been examined in the context of reconsideration of decisions under the ICSID Convention.108 However, it is outside the scope of the present to return to this discussion. Bucher penned a separate opinion to the second decision on the request for reconsideration expressing his disagreement. After incorporating Abi-Saab’s dissent in his own,109 Bucher argued that despite the non-uniform practice of investment tribunals, sometimes declaring the proceedings closed when upholding jurisdiction, the present Tribunal had observed ‘the standard practice’ and it had not declared the proceedings closed.110 He added: [Res iudicata] applies to situations where the same claim decided between the same parties and based on the same cause of action is raised in a distinct or successive proceeding. This notion does not apply to decisions to be made before the same court or tribunal in the same proceeding.111 The case knew an apparent volte-face when in January 2017 a new tribunal112 decided on Venezuela’s Third Application for Reconsideration.113 The tribunal acknowledged that Venezuela’s first two attempts to have the decision reopened had failed.114 But it considered that the ‘true meaning’ of the Decision on Jurisdiction and the Merits in relation to Venezuela’s conduct of the negotiation remained controverted.115 It remarked that the decision did not actually state that the respondent had not acted in good faith, rather ‘it referred to facts demonstrating that the Respondent failed to engage in negotiations leading to just compensation’.116 Consequently, the Tribunal dismissed Venezuela’s application in this regard ‘irrespective of whether the Tribunal would have, or does not have the power to reconsider the Application (as decided twice by the Tribunal’s Majority)’.117 However, to the extent that the respondent’s request concerned the conclusion that it had failed to negotiate on the basis of fair market value, the Tribunal—despite this statement as to whether it had, vel non, the power to reopen the earlier decision—engaged in an in-depth review of Venezuela’s conduct during the negotiations, essentially reopening the Decision on Jurisdiction and the Merits.118 Ultimately, the Tribunal was unconvinced by Venezuela’s arguments and unanimously dismissed its request, after having examined it on the merits. In short, a ConocoPhillips majority considered twice that it did not have the power to reopen its earlier decision because that decision was res iudicata. It developed its argument without particular reference to the distinction in the ICSID Convention between awards and decisions; nor did it consider significant the fact that the proceeding had not been closed. A third—this time unanimous—Tribunal remained ambivalent about its formal power to reopen but effectively reviewed this decision on its merits. C. Perenco v Ecuador In Perenco v Ecuador, the 2014 Decision on Remaining Issues of Jurisdiction and on Liability upheld jurisdiction and found the respondent liable for contract and treaty claims.119 Following the decision, Ecuador asked the Tribunal to reopen it invoking various alleged omissions and flaws.120 The Tribunal refused to do so, considering its decision to be res iudicata. The Tribunal canvassed extensively post-award remedies and the conditions for revisiting awards evidently neglecting the fact that the request before it concerned the reconsideration of a decision. The possibility of any differentiation in the treatment of an award and that of a decision was dismissed summarily in the following terms: It is not persuasive to seek to link together discrete provisions of the Convention and the Rules that were designed with specific purposes in mind and with varying degrees of the power to reopen an award in order to support the claimed existence of a power—whether general, procedural or otherwise—which is said to vest in a tribunal simply because it has issued a decision, as opposed to an award.121 At another stage, the Tribunal considered the applicability of Article 49 of the ICSID Convention, according to which, following the award and upon the request of a party, the tribunal ‘may decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award’.122 Article 49 of the ICSID Convention is designed to offer a remedy for inadvertent or minor computational errors or omissions, rather than provide a substantive review or reconsideration of the award.123 The tribunal remarked that Article 49 expressly concerns the post-award stage but it decided to ‘put that aspect of the article’s wording to one side and proceed arguendo on the basis that the reference to the word “award” could encompass a “decision”’.124 In that case, extending the wording of the article to cover a ‘decision’ led the Tribunal to consider Article 49 of the ICSID Convention (the Tribunal ended up by rejecting that there had been any failure to deal with every question submitted to it or a need to rectify the decision). However, more generally, and as in the case of the two ConocoPhillips majorities, overlooking the difference between a decision and an award in the ICSID Convention has globally resulted in the tribunal holding that provisional decisions are res iudicata but without any of the related ‘advantages’, notably access to post-award remedies. The Perenco Tribunal focused on ‘ample prior authority in support of the view once the tribunal decides with finality any of the factual or legal questions put to it by the parties […] such a decision becomes res judicata’.125 This ‘ample prior authority’ was limited to four cases: CMS v Argentina,126Waste Management v Mexico II,127Electrabel v Hungary,128 and ConocoPhillips v Venezuela.129 Of these, the Electrabel v Hungary decision has already been explained to be inconclusive; in CMS v Argentina, the Tribunal makes no reference to res iudicata, but simply notes that ‘in connection with the merits the Respondent has again raised certain jurisdictional issues that were addressed in the jurisdictional phase of the case, such as the jus standi of the Claimant. These issues were decided upon at that stage and will not be reopened in this Award’.130 This phrase appears to refer to juridical economy and the Tribunal’s unwillingness to revisit issues that have been decided rather than to make a statement as to the res iudicata nature of the earlier decision.131 Invocation of Waste Management v Mexico II is even more astonishing, as the case deals with a separate closed proceeding and it deserves a closer look. In Waste Management v Mexico II, an ICSID Additional Facility arbitration on the basis of NAFTA, the Tribunal held that ‘a decision on a particular point constitutes a res judicata as between the parties to that decision if it is a necessary part of the eventual determination and is dealt with as such by the tribunal’.132 Misquoted by the Perenco Tribunal as confirming its own position that provisional decisions are res iudicata, this decision queries in reality a different aspect of res iudicata. In Waste Management v Mexico I, the Tribunal had declined jurisdiction owing to the claimant’s failure to comply with a precondition to arbitration under NAFTA, notably its failure to waive its right to pursue other remedies in accordance with Article 1121(2)(b) of NAFTA.133 In Waste Management v Mexico II, the respondent objected to the resubmission of the case arguing that the first tribunal ‘did in law decide the claim against the Claimant, whether or not it considered the merits of that claim, and its decision should be considered as res judicata’ and the claimant should not be allowed a second bite at the apple.134 But as pointed out in Bucher’s dissent in ConocoPhillips v Venezuela, in that case, ‘the decision on jurisdiction that was addressed by Mexico’s objection was rendered in a prior and different proceeding’,135 where jurisdiction had been declined. The Tribunal held that the claimant was not prevented from bringing its claim again.136 The Perenco Tribunal’s decision that it lacked the power to reopen its decisions was reiterated later in the proceeding, when this time the claimant requested of the Tribunal that it dismiss Ecuador’s environmental counterclaims, although it had not objected to them so far in the arbitration. In a decision rendered on 18 August 2017, the Tribunal reasoned that, ‘being consistent’, it could not now take a different view with respect to its Interim Decision on the Environmental Counterclaims.137 D. Rejecting res iudicata: Standard Chartered Bank v Tanzania and Burlington v Ecuador Following the first two ConocoPhillips decisions and the decision in Perenco, a shift is detected in the case law in favour of recognition that decisions are not res iudicata.138 In Standard Chartered Bank v Tanzania, the claimant had requested a reconsideration of a decision issued on 12 February 2014 contending that the respondent had misled the tribunal by concealing facts.139 The motion was accepted and the Tribunal reversed its earlier decision making an order for payment by the respondent to the claimant.140 The Tribunal reasoned that decisions under the ICSID Convention could not be res iudicata since ‘they only attain that status under Article 53(1) when they are incorporated into the final award’.141 The Tribunal held that: [D]ecisions cannot have legal consequences outside the ICSID proceedings in which they are issued (i.e. they cannot be recognized and enforced and they cannot be challenged through annulment). Indeed, if decisions were res judicata before incorporation in the final award, then the requirement of [sic] incorporation into the final award under Article 48(3) would be redundant.142 […] The Tribunal is of the view that it is incorrect to characterize the decisions of ICSID tribunals, as opposed to their awards, as res judicata. They are binding within the scope of the proceedings but do not impose obligations upon the parties or other Contracting States outside the proceedings as is the case with awards that are res judicata. However, even if the conclusion were that decisions have res judicata status this would not provide a sufficient answer to the question whether a tribunal has a power to reopen its decisions. If the decision that the Claimant wishes to have reopened were res judicata, then by analogy with Article 51, it might be reopened in defined circumstances. If it were not res judicata, then a fortiori it could be reopened without the constraints of the requirements of Article 51.143 […] Whatever the power the tribunal has to reconsider a decision that power must at least extend to the grounds for reopening an award in Article 51.144 In Burlington v Ecuador, the respondent’s motion for reconsideration contended that the earlier tribunal had erred as a matter of law and that it had been misled by the claimant, reaching its decision on the basis of incomplete facts.145 The Tribunal followed the decision in Standard Chartered Bank v Tanzania and held that decisions are not vested with res iudicata effect.146 It arrived at this conclusion relying on the ‘structure or architecture’ of the ICSID Convention,147 and notably ‘the requirement for incorporation of earlier decisions into the award, the absence of remedies against these decisions, and the fact that the Contracting States’ obligation to recognize and enforce only attaches to the award, not to earlier decisions’.148 Nonetheless, the respondent’s motion for reconsideration was eventually rejected on its merits.149 The Standard Chartered Bank and Burlington decisions were rendered in the wake of the ConocoPhillips (the first two decisions) and Perenco ‘precedents’, which considered expressly that decisions under the ICSID Convention are res iudicata. In doing so, they appeared to disregard the formal distinction between awards and decisions under the ICSID Convention. Effective treaty interpretation requires that the terms ‘decision’ and ‘award’ in the ICSID Convention, and the legal consequences to draw therefrom, be considered as distinct. The Standard Chartered Bank and Burlington Tribunals rejected any notion that decisions under the ICSID Convention could be equated to awards for purposes of res iudicata. For the reasons explained above, their approach appears compelling to the author. IV. CONSIDERATION OF THE SPECIFIC CIRCUMSTANCES AND NON LIQUET Two further issues are worth a consideration in the discussion of decisions under the ICSID Convention and res iudicata: the pertinence of the specific circumstances and the allegation that refusing to reopen a decision may constitute non liquet. I will address these two issues in turn. A. Relevance of ‘the specific circumstances’ to the tribunal’s power to reopen a decision? There is a seminal nuance between the tribunal’s power to reopen a provisional decision on account of it not being res iudicata and the appropriateness of re-opening it under given circumstances. The fact that a tribunal has a power to re-open a decision is emphatically not to say that the tribunal must reopen it. More often than not there will be no reason for a tribunal to reconsider. However, arbitral decisions and legal scholarship do not generally draw such a distinction. Consider, for instance, the previously-cited Tokios Tokelės Tribunal, which while attributing res iudicata effect to its decision on jurisdiction, reasoned that ‘in the circumstances it [had] been thought right to reconsider the question’.150 If that earlier decision were res iudicata, the Tribunal would not have been able to reopen it, no matter how desirable this might have seemed under the circumstances. Similarly, two authors have suggested that a tribunal’s power to reopen an earlier decision cannot be viewed in isolation from the context of that request, and that the presence of specific ‘exigent circumstances’ or ‘exceptions’, such as that the decision is tainted by corruption or fraud, can justify reopening an earlier decision on the merits.151 That seems opportune to the extent that we agree that that decision is not res iudicata. However, I argue that if a decision were res iudicata, no amount of ‘justification’ would allow the tribunal to reconsider it. In other words, no justification could expunge the res iudicata effect of a decision that is res iudicata. Tribunals are impaled on the horns of a dilemma because reconsideration of a decision, as revision of an award, is ‘capable of impairing the stability of legal relations’ and ‘must remain exceptional’.152 The strictures of legal economy and the expediency of arbitral proceedings can clash with legal correctness. At the same time, waiting until the award has been delivered to correct errors can also be harmful to arbitral efficiency.153 The decision to reopen or not a provisional decision reveals a tension between ‘fairness’ and ‘efficiency’.154 But this should not lead tribunals to conflate the res iudicata effect of a decision with the relevance of reopening it under given circumstances. According to the Burlington v Ecuador Tribunal: the lack of res judicata does not mean that [decisions] […] can necessarily be reopened. Indeed, ICSID tribunals have had no hesitation finding that preliminary decisions bind the parties and the tribunal in the course of the proceedings. That view is sometimes put in terms of res judicata (quod non […]).155 […] Irrespective of res judicata, the rationale for this opinion is obvious: a contrary view would defeat the purpose of efficient dispute settlement, entailing constant re-litigation of issues already resolved, with unavoidable adverse consequences in terms of increased costs and length of proceedings. In addition, the possibility of re-litigating issues would jeopardize legal certainty and ultimately undermine the confidence of the users in the system.156 […] Having reached the conclusion that ICSID tribunal decisions (other than orders on procedure and provisional measures) which are not final awards are not res judicatae, but are nevertheless binding on the parties and the tribunal within the proceedings in which they were issued, the Tribunal also agrees with the finding in [Standard Chartered Bank v Tanzania] according to which ‘there may be circumstances where a tribunal should consider reopening a decision that it has made’.157Standard Chartered Bank v Tanzania is one of the rare cases where a Tribunal drew the line between what it termed a ‘general power to reopen’ and ‘a specific power to reopen in the light of particular facts’.158 Only the former corresponds to the question of res iudicata. Accordingly, the Standard Chartered Bank Tribunal—which ruled that decisions under the ICSID Convention are not res iudicata and therefore it had a ‘general power’ to reopen them—considered ‘whether in light of the specific circumstances of this case it should exercise a power to reopen’.159 In short, the fact that a decision is not res iudicata does not mean that the tribunal should reopen it, and at the same time the fact that a tribunal does not find it appropriate to reopen a decision, that does not make it res iudicata. B. Refusal to reconsider a decision and non liquet The final question this article considers is whether the tribunal’s refusal to reopen a decision could constitute non liquet. In his dissent attached to the second Decision on the Request for Reconsideration in ConocoPhillips v Venezuela, Bucher argued that the majority’s refusal to reconsider the decision because of a ‘purported lack of power that no rule supports’ constitutes non liquet.160 He stated that: it appears that the Tribunal refused to make any assessment about Respondent’s Request for Reconsideration because it did not see any provision in the ICSID Convention and the Arbitration Rules that would allow the Tribunal to so proceed. This statement affirms that the Tribunal is faced with a case of silence of the Law, which implies that it cannot take a power nowhere that is not provided by the Law. Such a conclusion is not compatible with Article 42(2) of the ICSID Convention, which states firmly that the Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law.161 To further build his argument, Bucher cited Article 44 of the ICSID Convention162 and Rule 19 of the ICSID Arbitration Rules,163 which he considered as ‘the procedural addition’ to Article 42(2) of the ICSID Convention prohibiting a finding of non liquet.164 However, this interpretation of what constitutes non liquet does not appear supported by the literature.165 It is generally accepted that non liquet concerns lacunae in the fabric of substantive law.166 The prohibition of a finding of non liquet means that the tribunal cannot come to the conclusion that it cannot resolve the legal questions put to it on the grounds of absence or obscurity the law.167 It applies to a refusal to either deliver an award or to decide certain questions.168 But it does not apply to a refusal to decide a case on procedural or jurisdictional grounds.169 On the contrary, non liquet concerns ‘a decision on the merits by a competent tribunal’.170 Or, in the words of Hersch Lauterpacht: ‘The prohibition of non liquet does not mean that a court must not decline to give a decision on any ground. It only means that a court, otherwise endowed with jurisdiction, must not refuse to give a decision on the ground that the law is non-existent, or controversial, or uncertain and lacking in clarity. A court may decline to entertain a claim on account of absence of jurisdiction […] but that contingency is not germane to the question of non liquet. […] It is only when the refusal to give a decision, after the court has assumed jurisdiction, is based on the absence or insufficiency of the applicable substantive law that the question of a non liquet may properly be deemed to arise.’171 Otherwise put, a tribunal’s decision to reconsider a decision under the ICSID Convention, even if viewed as an erroneous interpretation of procedural law, does not constitute a finding of non liquet. V. CONCLUSION In contrast to other dispute settlement systems, the ICSID Convention draws a distinction between ‘decisions’ and ‘awards’. Only awards are final and enforceable, and only awards are res iudicata. However, a number of ICSID tribunals held that they did not have the power to reconsider interlocutory decisions they issued, because they were res iudicata. I have argued in this article that the strain of arbitral case law that considers preliminary decisions to be res iudicata broadly discounts the formal distinction between decisions and awards under the ICSID Convention. This distinction is a lex specialis of the ICSID Convention that renders parallels with other systems inopportune. I have suggested that on occasion the res iudicata argument may have been picked up by tribunals reluctant to revisit an earlier decision because they were unconvinced that such action was justified. But deciding not to reopen an earlier decision is not to say that the tribunal does not possess the power to do so. Conversely, possessing the power to reopen a decision does not mean that it is desirable or appropriate to do so. Power necessarily entails discretion. It appears that the tribunal has the power to reconsider provisional decisions. Whether it is advisable to do so needs to be determined by the tribunal under the specific circumstances. The author would like to thank Gabriel Bottini for his useful comments on a draft version of this article. Footnotes 2 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (CUP 1953, 2006) 336. 3 For an early discussion of the triple identity test, see Interpretation of Judgments Nos 7 and 9 (Factory at Chorzów) (Germany v Poland) (1927) PCIJ Rep Series A 13, Dissenting Opinion by Judge Anzilotti. 4 Jose Magnaye and August Reinisch, ‘Revisiting Res Judicata and Lis Pendens in Investor-State Arbitration’ (2016) 15 Law Practice Int Courts Tribunals 264; William W Park, ‘Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata’ in Arthur Rovine (ed), Contemporary Issues in International Arbitration and Mediation: The Fordham Papers 2015 (Brill Nijhoff 2017) 52, 68–69; cf CME Czech Republic BV v The Czech Republic, UNCITRAL, Quantum proceedings, Legal Opinion Prepared by Christoph H Schreuer and August Reinisch (20 June 2002); Charles N Brower and Paula F Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ in Meg Kinnear et al, Building International Investment Law—The First 50 Years of ICSID (Kluwer International Law 2015) 56; Giovanni Zarra, Parallel Proceedings in Investment Arbitration (Eleven International Publishing 2016) 135. For a discussion of the relationship among the different terms in arbitral case law, see Apotex Holdings Inc and Apotex Inc v United States of America, ICSID Case No ARB(AF)/12/1, Award (25 August 2014) paras 7.17–7.23. 5 The terms ‘decision’, ‘provisional decision’, ‘interim decision’ and ‘interlocutory decision’ are used interchangeably in the article to denote any pre-award decision. 6 Christoph H Schreuer et al, The ICSID Convention: A Commentary (2nd edn, CUP 2009) 1128, emphasis added. It should be kept in mind that, although authoritative, ICSID Convention: A Commentary is an academic text, rather than an official document. Citations of it in this article should be read in this light. 7 Charles N Brower and Paula F Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ (n 4) 69. 8 Also in ibid 65. 9Ampal-American Israel Corporation and others v Arab Republic of Egypt, ICSID Case No ARB/12/11, Decision on Liability and Heads of Loss (21 February 2017) paras 259, 270. 10 Pursuant to the second paragraph of the same article, for the purposes of the section on Recognition and Enforcement of the Award, an ‘award’ encompasses ‘any decision interpreting, revising or annulling such award pursuant to Articles 50, 51, 52’. 11 cf Christoph H Schreuer et al, The ICSID Convention: A Commentary (n 6) 1100. 12 A state’s non-compliance with art 53 of the ICSID Convention would of course also entail a breach of its obligations vis-à-vis the other parties to the Convention. Christoph H Schreuer et al (n 6) 1100, 1125. 13 ibid (n 6) 1128, see also 1099, emphasis added. 14 Article 54(1) of the ICSID Convention. See Christoph H Schreuer, ‘Non-Pecuniary Remedies in ICSID Arbitration’ (2004) 20 Arb Intl 326, citing Aron Broches. 15Standard Chartered Bank (Hong Kong) Limited v Tanzania Electric Supply Company Limited (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 313. 16 ibid. 17Burlington Resources Inc v Republic of Ecuador, ICSID Case No ARB/08/5, Decision on Reconsideration and Award (7 February 2017) para 89. 18 Christoph H Schreuer et al (n 6) 759. 19 Cameron Miles, Provisional Measures Before International Courts and Tribunals (CUP 2017) 174 et seq; Christoph H Schreuer et al (n 6) 759. 20 Christoph H Schreuer et al (n 6) 759. 21 For example, art 26 of the 1976 UNCITRAL Arbitration Rules (predecessor to current art 26 of the 2010 UNCITRAL Arbitration Rules), expressly provided that ‘interim measures may be established in the form of an interim award’. Interim awards under the UNCITRAL Arbitration Rules are expressly binding (art 32(2) of the 1976 Rules). 22 See also Rule 39 of the ICSID Arbitration Rules. But contrast art 1134 of NAFTA. 23 Christoph H Schreuer et al (n 6) 764; David D Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran-United States Claims Tribunal’ (1986) 46 Zeitschrift Für Ausländisches Öffenliches Recht Und Völkerrecht 478, 511; Kaj Hobér, ‘Res Judicata and Lis Pendens in International Arbitration’ (2014) 366 Recueil des Cours 284; Cameron Miles, Provisional Measures Before International Courts and Tribunals (n 19) 285–87; Cf Anthony C Sinclair and Odysseas G Repousis, ‘An Overview of Provisional Measures in ICSID Proceedings’ (2017) 32(2) ICSID Rev–FILJ 433. For a different interpretation, see Charles N Brower and Ronald EM Goodman, ‘Provisional Measures and the Protection of ICSID Jurisdictional Exclusivity Against Municipal Proceedings (1991) 6(2) ICSID Rev–FILJ 431, 440. 24Emilio Agustín Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7, Procedural Order No 2 (28 October 1999) para 9; Víctor Pey Casado and President Allende Foundation v Republic of Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures (25 September 2001) paras 17 et seq; Tokios Tokelés v Ukraine, ICSID Case No ARB/02/18, Procedural Order No 3 (18 January 2005) para 6, fn 12; Perenco Ecuador Limited v Republic of Ecuador, ICSID Case No ARB/08/6, Decision on Provisional Measures (8 May 2009) para 74; Quiborax SA and Non-Metallic Minerals SA v Plurinational State of Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 579, fn 738; Valle Verde Sociedad Financiera SL v Bolivarian Republic of Venezuela, ICSID Case No ARB/12/18, Decision on Provisional Measures (25 January 2016) para 75, fn 30. 25 Christoph H Schreuer et al (n 6) 764. However, the ICSID Convention and the ICSID Arbitration Rules do not draw such a distinction. 26 Christoph H Schreuer et al (n 6) 764. 27Pey Casado v Chile, ICSID Case No ARB/98/2, Decision on Provisional Measures (25 September 2001) para 14. Similarly, Millicom International Operations BV and Sentel GSM SA v Republic of Senegal, ICSID Case No ARB/08/20, Decision on the Application for Provisional Measures (24 August 2009) para 38. 28 Eg Bayindir Insaat Turizm Ticaret Ve Sanayi AS v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Decision on Jurisdiction (14 November 2005) para 47; SGS Société Générale de Surveillance SA v Islamic Republic of Pakistan, ICSID Case No ARB/01/13, Procedural Order No 2 (16 October 2002). 29 Kaj Hobér, ‘Res Judicata and Lis Pendens in International Arbitration’ (n 23) 284. Examples brought include decisions on procedural matters and recommendations of interim measures. 30 Rule 47(1)(i) of the ICSID Arbitration Rules. 31ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and ConocoPhillips Gulf of Paria BV v Bolivarian Republic of Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, paras 38–39. See also ConocoPhillips Petrozuata BV, ConocoPhillips Hamaca BV and ConocoPhillips Gulf of Paria BV v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 27; Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 309. 32Tanzania Electric Supply Company Limited v Independent Power Tanzania Limited, ICSID Case No ARB/98/8, Final Award (22 June 2001) para 32, emphasis added. 33ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, para 39. 34 Eg see art 52(1) of the ICSID Additional Facility Rules which provides, inter alia, that the award shall contain ‘the decision of the Tribunal on every question submitted to it’. cf Rule 47(1)(i) of the ICSID Arbitration Rules. 35 Emphasis added. 36 Kaj Hobér (n 23) 394. 37Burlington v Ecuador (n 17) para 88. 38 Rule 47(1)(j) of the ICSID Arbitration Rules. 39 However, some of these have been discussed in connection with revision of interim decisions, eg see Burlington v Ecuador (n 17) paras 72 et seq. 40 But cf Kaj Hobér (n 23) 257, who writing on international arbitration comments that ‘[i]t is not self- evident […] that res judicata with respect to arbitral awards should be equated to judgments of State courts […] due to the differences between international arbitration and court proceedings. […] As a consequence [of party autonomy] in international arbitration res judicata is not a matter of public policy. […] [An objection based on res iudicata] cannot be raised sua sponte by an arbitral tribunal. Since party autonomy, as a matter of general principle, reigns supreme in international arbitration, a party can, if it so deems appropriate, waive an otherwise legitimate objection based on res judicata. By the same token, the parties can agree to submit the same dispute to a new tribunal.’ 41 The term ‘lex specialis’ is borrowed from ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, paras 42 et seq. See also Lisa M Bohmer, ‘Finality in ICSID Arbitration Revisited’ (2016) 31(1) ICSID Rev–FILJ 236 239. 42Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43 para 115. 43 Art 34(1) and (2) of the UNCITRAL Arbitration Rules (2010). 44 According to art 32(1) and (2) of the UNCITRAL Arbitration Rules of 1976, ‘[i]n addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards’, and ‘[t]he award […] shall be final and binding on the parties. […]’ 45Murphy Exploration and Production Company International v Ecuador [II], PCA Case No 2012-16, Final Award (10 February 2017) para 32. 46 ibid. 47Pope & Talbot Inc v Canada, UNCITRAL, Award in Respect of Damages (31 May 2002). 48 NAFTA FTC, Notes of Interpretation of Certain Chapter 11 Provisions (31 July 2001). 49Chevron Corporation (USA) and Texaco Petroleum Corporation (USA) v Ecuador [II], PCA Case No 2009-23, Decision on Track 1B (12 March 2015) para 6. 50 Art 26.1 of the LCIA Arbitration Rules (2014). 51 Art 26.8 of the LCIA Arbitration Rules (2014). 52 On the preclusive effect of reasoning and issue preclusion, see William W Park, ‘Soft Law and Transnational Standards in Arbitration: The Challenge of Res Judicata’ (n 4) 66. 53 Art 44 of the SCC Arbitration Rules (2017). 54 Art 46 of the SCC Arbitration Rules (2017). 55 Art 2 of the ICC Arbitration Rules (2017). 56 Art 35(6) of the ICC Arbitration Rules (2017). 57AMCO v Indonesia, ICSID Case No ARB/81/1, Decision on Jurisdiction (10 May 1988) para 32, emphasis added. 58Jan de Nul NV and Dredging International NV v Egypt, ICSID Case No ARB/04/13, Award (6 November 2008) para 130. 59ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014); ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (9 February 2016); Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015). 60Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 308. 61 ibid fn 408. 62Tokios Tokelės v Ukraine, ICSID Case No ARB/02/18, Award (26 July 2007) para 96. 63 ibid. 64 ibid para 98. 65Helnan International Hotels A/S v Egypt, ICSID Case No ARB/05/19, Award (3 July 2008) para 113. 66 ibid para 111. 67 ibid para 112. In that case, a res iudicata objection raised by the investor concerned an earlier arbitral award rendered in Cairo in a different proceeding. The tribunal eventually dismissed the respondent’s new jurisdictional objection (ibid para. 120). By contrast, the majority in Siag v Egypt found the jurisdictional objection to have been waived because it was not raised in good time. See Waguih Elie George Siag and Clorinda Vecchi v Arab Republic of Egypt, ICSID Case No ARB/05/15, Award (1 June 2009) paras 175–203. 68 Rule 41(1) of the ICSID Arbitration Rules. 69Quiborax SA and Non Metallic Minerals SA v Bolivia, ICSID Case No ARB/06/2, Award (16 September 2015) para 129. 70 ibid para 130. 71 ibid paras 132–34. 72 ibid para 541. 73Pac Rim Cayman LLC v El Salvador, ICSID Case No ARB/09/12, Award (14 October 2016) para 5.39. 74 Emphasis added. 75 Kaj Hobér (n 23) 284, emphasis added. 76 Kaj Hobér (n 23) 395. 77 ibid 395–96. For example in PL Holdings v Poland, a SCC case, the Tribunal accepted to consider belated jurisdictional objections, among others because the objections went to its very authority to decide the dispute, PL Holdings Sàrl v Poland, SCC Case No V 2014/163, Partial Award (28 June 2017) paras 298, 306, 307. 78Giovanni Alemanni v Argentine Republic, ICSID Case No ARB/07/8, Decision on Jurisdiction and Admissibility (17 November 2014) para 293. See Rule 41(4) of the ICSID Arbitration Rules. 79Electrabel SA v Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (30 November 2012) para 10.1. 80 cf Lisa M Bohmer, ‘Finality in ICSID Arbitration Revisited’ (n 41) 240. 81Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 315. 82ConocoPhillips v Venezuela (n 31) para 21; Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015). 83ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Jurisdiction and the Merits (3 September 2013) para 404. 84ConocoPhillips v Venezuela (n 83), Decision on Jurisdiction and the Merits (3 September 2013). 85ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Respondent Application for Reconsideration of Decision (10 August 2015) 2–3. 86ConocoPhillips v Venezuela (n 31) Decision on Respondent’s Request for Reconsideration (10 March 2014) para 20. 87ConocoPhillips v Venezuela (n 85) Decision on Respondent’s Request for Reconsideration (10 March 2014) para 21. 88 This argument of the tribunal majority was criticised by Professor Georges Abi-Saab in his Dissenting Opinion who caustically observed that the incorporation of the decisions in the final award is not just a matter of ‘practice’ but one of ‘legal necessity’, since, pursuant to art 48(3) of the ICSID Convention, the award must incorporate all conclusions on questions submitted to the tribunal and decided before the final award. See ConocoPhillips v Venezuela (n 31) Dissenting Opinion of Georges Abi-Saab, paras 38–39. The argument was also criticised by Arbitrator Andreas Bucher in ConocoPhillips v Venezuela (n 31) Dissenting Opinion by Arbitrator Andreas Bucher, paras 27 and 39, where the dissenter questioned the legal basis for such ‘matter of principle and practice’. See also Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 309. 89ConocoPhillips v Venezuela (n 31), Decision on Respondent’s Request for Reconsideration (10 March 2014) para 19. 90 ibid para 23, emphasis added. 91 ibid, emphasis added. 92 ibid para 22. 93 Art 51(2) of the ICSID Convention, emphasis added. 94 Art 51(3) of the ICSID Convention. 95 Abi-Saab had also dissented in the Decision on Jurisdiction and the Merits in relation to the point that the respondent sought to reopen, see ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Jurisdiction and the Merits (3 September 2013) para 404. 96ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, para 41. 97 ibid para 44. 98 ibid para 40. 99ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) para 11. 100 ibid para 22. 101ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (10 March 2014) para 22. 102ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) para 23, see further para 28, where the Tribunal majority makes reference to ‘the broad power of substantive reconsideration which the Respondent invokes’. 103 Cf Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 320, where the Tribunal considers that ‘a power to reopen a decision has both procedural and substantive aspects, involving a procedural right to bring a request for reconsideration and the substantive question of what is to be done with such a request’. 104 Charles Vuylsteke, ‘Foreign Investment Protection and ICSID Arbitration’ (1974) 4 Georgia J Inter Comp Law 351; Christoph H Schreuer et al (n 6) 688; Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ in Ian A Laird and Todd J Weiler (eds), Investment Treaty Arbitration and International Law, (vol 5, Juris 2012) 52; Martins Paparinskis, ‘Inherent Powers of ICSID Tribunals: Broad and Rightly So’ in Ian A Laird and Todd J Weiler (eds) Investment Treaty Arbitration and International Law (vol 5, Juris 2012) passim. On the doctrine of inherent powers more generally, see Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: Questions of Jurisdiction, Competence and Procedure’, British Year Book of International Law 1958 (OUP 1959) 25 et seq; Chester Brown, A Common Law of International Adjudication (OUP 2007) 161 et seq; Friedl Weiss, ‘Inherent Powers of National and International Courts: The Practice of The Iran-Us Claims Tribunal’ in Christina Binder et al (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP 2009) 1; Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’, British Yearbook of International Law (OUP 2006) 195 et seq. 105ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, paras 54 et seq. 106 Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ (n 104) 47; Paola Gaeta, ‘Inherent Powers of International Courts and Tribunals’ in Lal Chand Vohrah et al (eds), Man’s Inhumanity to Man (Kluwer Law International 2003) 364–65; Friedl Weiss, ‘Inherent Powers of National and International Courts: The Practice of The Iran–US Claims Tribunal’ (n 104) 188, 191, 197. See also ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014) Dissenting Opinion of Georges Abi-Saab, para 56. For some examples of inherent powers mentioned in investment case law, see Libananco Holdings Co Limited v Republic of Turkey, ICSID Case No ARB/06/8, Decision on Preliminary Issues (23 June 2008) para 78; Waguih Elie George Siag and Clorinda Vecchi v Egypt, ICSID Case No ARB/05/15, Award (1 June 2009) para 366; Abaclat and others v Argentina, ICSID Case No ARB/07/5, Decision on Jurisdiction and Admissibility (4 August 2011) para 521. 107 Constantinos Salonidis, ‘Inherent Powers in ICSID Arbitration’ (n 104) 49, with case citations; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: Questions of Jurisdiction, Competence and Procedure’ (n 104) 25 et seq. 108 Tobia Cantelmo, ‘The Inherent Power of Reconsideration in Recent ICSID Case Law’ (2017) 18 J World Invest Trade 246–56. However, see ibid 256, where Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) is discussed as confirming the uncontroversial exercise of the tribunal’s inherent powers, although the Tribunal did not make a reference to such powers. 109ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 34. 110 See Rule 38 of the ICSID Arbitration Rules. ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 28. 111ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 40, emphasis in original. 112 The composition of the ConocoPhillips Tribunal changed with Eduardo Zuleta replacing Kenneth J Keith as President. The tribunal majorities in the first two decisions on the requests for reconsideration were formed by Kenneth J Keith and L Yves Fortier. 113ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Interim Decision (17 January 2017). Venezuela’s third Application for Reconsideration was filed by letter to the Tribunal on 20 April 2016 (ibid para 23). 114 ibid para 37. 115 ibid para 38. 116 ibid paras 52 et seq. 117 ibid para 62. 118 ibid paras 94 et seq. 119Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability (12 September 2014). 120Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) para 5. 121 ibid para 78. 122 Art 49(2) of the ICSID Convention. 123 Christoph H Schreuer et al (n 6) 849–50. 124Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) para 57. 125 ibid para 43. 126CMS Gas Transmission Co v Argentina, ICSID Case No ARB/01/8, Award (12 May 2005). 127Waste Management, Inc v United Mexican States, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002). 128Electrabel SA v Hungary, ICSID Case No ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability. 129ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on Respondent’s Request for Reconsideration (10 March 2014). See Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Ecuador’s Reconsideration Motion (10 April 2015) paras 44–47. 130CMS Gas Transmission Company v Argentine Republic, ICSID Case No ARB/01/8, Award (12 May 2005) para 126. 131 The Perenco Tribunal’s decision was also criticised in ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 77. 132Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 45. 133Waste Management, Inc v United Mexican States, ICSID Case No ARB(AF)/98/2, Award (2 June 2000) Part IV. 134Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 17. 135ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 77, fn 51, emphasis added. 136Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings (26 June 2002) para 53. See further Waste Management, Inc v Mexico, ICSID Case No ARB(AF)/00/3, Award (30 April 2004) para 11. 137Perenco Ecuador Limited v Ecuador, ICSID Case No ARB/08/6, Decision on Perenco’s Application for Dismissal of Ecuador’s Counterclaims (18 August 2017) para 42, also in general paras 41 et seq. 138 This is also confirmed by the ConocoPhillips v Venezuela, Interim Decision of 17 January 2017 on Venezuela’s third Application for Reconsideration, discussed above (see The ConocoPhillips saga). 139Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 207. 140 ibid para 414. 141 ibid para 312. 142 ibid para 314. 143 ibid para 318. 144 ibid para 322. 145Burlington v Ecuador (n 17) paras 80 et seq. 146 ibid paras 86 et seq. 147 ibid para 86. 148 ibid para 89. 149 ibid paras 116, 124. 150Tokios Tokelės v Ukraine, ICSID Case No ARB/02/18, Award (26 July 2007) para 98. 151 Brower and Henin, ‘Res Judicata: ConocoPhillips v. Venezuela, ICSID Case No ARB/07/30’ (n 4) 68–69. See further Niko Resources (Bangladesh) Ltd v Bangladesh Petroleum Exploration & Production Company Limited (‘Bapex’) and Bangladesh Oil Gas and Mineral Corporation (‘Petrobangla’), ICSID Case Nos ARB/10/11 and ARB/10/18, Procedural Order No 13 (26 May 2016) para 7 and passim; and ibid, Third Decision on the Payment Claim (26 May 2016) para 93 and passim. For a discussion, Jarrod Hepburn, ‘Tribunal’s Decision to Re-open Corruption Issue in Bangladesh Case Does Not Delve into Ongoing Debate over Powers of Reconsideration’ IA Reporter (24 June 2016) 9. 152Venezuela Holdings BV, Mobil Cerro Negro Holding Ltd, and others v Bolivarian Republic of Venezuela, ICSID Case No ARB/07/27, Decision on Revision (12 June 2015) para 3.1.12. 153 cf Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 320. 154 Brower and Henin, ‘Res Judicata: ConocoPhillips v Venezuela, ICSID Case No ARB/07/30’ (n 4) 65. See also Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 322: ‘[I]t would lead to considerable uncertainty if tribunals were to assert an unconstrained power to reopen any decisions made’. 155Burlington v Ecuador (n 17) para 90. 156 ibid para 91. 157 ibid para 92. 158Standard Chartered Bank (Hong Kong) Limited v Tanzania (TANESCO), ICSID Case No ARB/10/20, Award (12 September 2016) para 317 and passim. 159 ibid para 321, emphasis added. 160ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 45. 161 ibid para 73. 162 For a discussion, see text accompanying fns 90 et seq. 163 Rule 19 of the ICSID Arbitration Rules provides that the tribunal shall ‘make the orders required for the conduct of the proceeding’. 164ConocoPhillips v Venezuela, ICSID Case No ARB/07/30, Decision on the Respondent’s Request for Reconsideration (9 February 2016) Dissenting Opinion by Arbitrator Andreas Bucher, para 45. 165 But cf Tobia Cantelmo, ‘The Inherent Power of Reconsideration in Recent ICSID Case Law’ (n 108). 166 For example Hersch Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’ in Hersch Lauterpacht (ed), International Law: Collected Papers, Volume 2, The Law of Peace, Part 1, International Law in General, (CUP 1975, reprinted 2009) 216; Daniel Bodansky, ‘Non Liquet’, Max Planck Encyclopedia of Public International Law (OUP 2006) para 2. 167 Daniel Bodansky, ‘Non Liquet’, Max Planck Encyclopedia of Public International Law (OUP 2006) para 1. 168 Christoph H Schreuer et al, (n 6) 630. 169 Daniel Bodansky, ‘Non Liquet’, (n 166) para 2. 170 ibid. 171 Hersch Lauterpacht, ‘Some Observations on the Prohibition of “Non Liquet” and the Completeness of the Law’ (n 166) 216. © The Author(s) 2018. Published by Oxford University Press on behalf of ICSID. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Published: May 29, 2018

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