Post-Award Remedies - ICSID Convention Arbitration

Awards are final and binding on the parties to the dispute. They are subject to the limited post-award remedies provided for in the Convention.

The remedies are available in respect of an award rendered under Article 48 of the Convention, as opposed to decisions issued by the Tribunal during the course of the proceeding. A party can only resort to the remedies under the Convention and cannot bring a challenge before local courts based on domestic law or other treaties.

Supplementary Decision or Rectification
If a party believes that the Tribunal has omitted to decide a question in the award, it may request a supplementary decision by the same Tribunal (Article 49(2) of the ICSID Convention, Arbitration Rule 49). A party may also request a decision to rectify a clerical, arithmetical or similar error.
How to Apply
Within 45 days after the award is rendered, either party may file a request for supplementary decision or rectification of the award. The request must:
  • identify the award;
  • indicate the date of the request;
  • detail the question the Tribunal omitted to decide and/or the error that it seeks to rectify; and
  • be accompanied by a lodging fee of US$10,000.

The Secretary-General will refuse registration of the request received after the 45-day time limit.

Procedure

As soon as the request and the lodging fee are received, the request is registered and transmitted to the other party and to the Tribunal that rendered the award. The Tribunal then fixes a time limit for the parties to file observations on the request and determines the further procedure. Usually there is no need for the Tribunal to hold a hearing to consider the request.

The decision on the request for supplementary decision or rectification becomes part of the award. If a party subsequently wishes to resort to other remedies under the Convention, the time limits for such remedies are measured from the date on which the decision was issued (Article 49(2) of the Convention).

Interpretation

If there is a dispute between the parties as to the scope or meaning of the Tribunal’s award, either party may request interpretation of the award (Article 50 of ICSID Convention; ICSID Arbitration Rules 50, 51, 53 and 54).

How to Apply
Any time after the award is rendered, either party may file an application for interpretation of the meaning and scope of the award. The application must:
  • identify the award;
  • indicate the date of the application;
  • detail the precise points in dispute; and
  • be accompanied by a lodging fee of US$10,000.

There is no time limit for filing an application for interpretation.

Procedure

As soon as the request and the lodging fee are received, the application is registered and transmitted to the other party and to the Tribunal that rendered the award. The members of the original Tribunal are requested to inform the Secretary-General whether they are willing to take part in the interpretation proceeding. If all original members accept, the Tribunal is reconstituted. If, however, the Tribunal cannot be reconstituted with all original members, the parties are invited to constitute a new Tribunal with the same number of arbitrators and using the same method as the original one (Arbitration Rule 51).

The Arbitration Rules apply, mutatis mutandis, to an interpretation proceeding (Arbitration Rule 53). This means that the conduct of an interpretation proceeding is similar to the conduct of an arbitration, including a first session of the Tribunal and a written and oral process.

A party may request the stay of enforcement of the award pending the Tribunal’s interpretation (Article 50(2) of the Convention, Arbitration Rule 54). The procedure concerning requests for stay of enforcement is similar to annulment proceedings (see Background Paper on Annulment).

The decision on interpretation becomes part of the award for the purposes of recognition and enforcement (Article 53(2) of the ICSID Convention).

Revision

A party can apply for revision of the award if it discovers a new fact that could decisively affect that award (Article 51 of the ICSID Convention, Arbitration Rules 50, 51, 53 and 54). The new fact must have been unknown to the Tribunal and the applicant when the award was rendered and the applicant’s ignorance of the fact cannot be due to negligence.

How to Apply

The application for revision must be made within 90 days after the discovery of the relevant new fact and in any event within three years after the award was rendered. The application must:

  • identify the award;
  • indicate the date of the application;
  • detail the change sought in the award;
  • describe the new fact that decisively affects the award;
  • provide evidence that the award was rendered without the applicant’s knowledge of the fact (and that lack of knowledge was not due to negligence); and
  • be accompanied by a lodging fee of US$10,000.

The Secretary-General will refuse registration of an application received after the prescribed time limit.

Procedure

As soon as the request and the lodging fee are received, the application is registered and transmitted to the other party and to the Tribunal that rendered the award. The members of the original Tribunal are requested to inform the Secretary-General whether they are willing to take part in the revision proceeding. If all original members accept, the Tribunal is reconstituted. If, however, the Tribunal cannot be reconstituted with all original members, the parties are invited to constitute a new Tribunal with the same number of arbitrators and using the same method as the original one (Arbitration Rule 51).

The Arbitration Rules apply, mutatis mutandis, to a revision proceeding (Arbitration Rule 53). This means that the conduct of a revision proceeding is similar to the conduct of an arbitration, including a first session of the Tribunal and a written and oral process.

A party may request the stay of enforcement of the award pending the Tribunal’s revision decision (Article 50(2) of the Convention, Arbitration Rule 54). The procedure concerning requests for stay of enforcement is similar to annulment proceedings (see Background Paper on Annulment).

The decision on the application for revision becomes part of the award for the purposes of recognition and enforcement (Article 53(2) of the ICSID Convention).

Annulment

Annulment is an exceptional recourse to safeguard against the violation of fundamental legal principles relating to the process (Article 52 of the ICSID Convention, Arbitration Rules 50 and 52-55). A party may apply for full or partial annulment of an award on the basis of one or more of the following five grounds: 

  • the Tribunal was not properly constituted;
  • the Tribunal has manifestly exceeded its powers;
  • there was corruption on the part of a member of the Tribunal;
  • there has been a serious departure from a fundamental rule of procedure; or
  • the award has failed to state the reasons on which it is based.

How to Apply

Either party may file an application for annulment within 120 days after the award was rendered. If there is an allegation of corruption, the application must be made within 120 days after the corruption was discovered and no later than three years after the award was rendered.

The application must:

  • identify the award;
  • indicate the date of the application;
  • detail the ground(s) that form the basis of the application; and
  • be accompanied by a lodging fee of US$25,000.

The Secretary-General will refuse registration of an application received after the prescribed time limit.

Procedure

As soon as possible after the application for annulment is registered, the Chairman of the Administrative Council appoints three persons from the Panel of Arbitrators to form an ad hoc Committee which will decide the application. Once the ad hoc Committee members have accepted their appointments, the Committee is constituted and the proceedings begin.

The Arbitration Rules apply, mutatis mutandis, to an annulment proceeding (Arbitration Rule 53). This means that the conduct of an annulment proceeding is similar to the conduct of an arbitration, including a first session of the ad hoc Committee and a written and oral process. The procedure is described in detail in the Centre’s Background Paper on Annulment for the Administrative Council of ICSID.

A party may request the stay of enforcement of the award pending the Committee’s annulment decision (Article 52(5) of the Convention, Arbitration Rule 54).

The Committee’s decision on annulment may:

  • reject the application for annulment, meaning that the award remains intact;
  • uphold the application in respect of a part of the award, leading to a partial annulment of the award; or
  • uphold the application in respect of the entire award, meaning that the whole of the award is annulled.

The Committee’s decision is not an award and is not subject to any further annulment proceeding, although it is equated to an award for purposes of its binding force, recognition and enforcement (Article 53(2) of the ICSID Convention).

The parties may agree to publish the annulment decision on ICSID's website. When a decision is not made public by the parties, the Centre will publish excerpts of the decison's legal reasoning (arbitration Rule 48(2) and 53)

If an award is annulled in whole or in part, a party is entitled to request resubmission to a newly constituted Tribunal to obtain a new award concerning the matter. Either party may start this process by filing a request for resubmission of the dispute, identifying the original award, and explaining in detail which aspects of the dispute are to be submitted to the new Tribunal (Arbitration Rule 55(1)).

 
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  • Gary B. Born, Annulment and Revision of International Arbitral Awards, International Arbitration: Cases and Materials (Gary B. Born ed.), Kluwer Law International, p. 1047 (2011)
  • Juan Fernández-Armesto, Different Systems for the Annulment of Investment Awards, ICSID Review—Foreign Investment Law Journal, Vol. 26, No. 1, p. 128 (2011)
  • Loukas A. Mistelis, Washington/ICSID Convention, 1965 – Interpretation, Revision and Annulment of the Award: Article 52 [Annulment], Concise International Arbitration (Loukas A. Mistelis ed.), Kluwer Law International, p. 131 (2010)
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  • Christopher F. Dugan, Annulment and Set Aside, Investor-State Arbitration (Christopher F. Dugan, et al. eds.), Oxford University Press, p. 627 (2008)
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  • David Caron, Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction Between Annulment and Appeal, ICSID Review—Foreign Investment Law Journal, Vol. 7, No. 1, pp. 21-56 (1992)
  • Veijo Heiskanen and Laura Halonen, Post-Award Remedies, Litigating International Investment Disputes: A Practitioner’s Guide (Chiara Giorgetti ed.), Brill / Nijhoff, pp. 497-526 (2014)