Case Details

(DS)2, S.A., Peter de Sutter and Kristof de Sutter v. Republic of Madagascar (ICSID Case No. ARB/17/18)

Subject of Dispute:

Textile enterprise
Economic Sector:

Other Industry
Instrument(s) Invoked:

BIT Belgium-Luxembourg - Madagascar 2005
Applicable Rules:

ICSID Convention - Arbitration Rules

(a) Original Proceeding

Claimant(s)/Nationality(ies):

Peter de Sutter (Belgian), Kristof de Sutter (Belgian), (DS)2, S.A. (Luxembourg)
Respondent(s):

Republic of Madagascar (Malagasy)
Date Registered:

June 14, 2017
Date of Constitution of Tribunal:

November 1, 2017

Composition of Tribunal

President:

Gabrielle KAUFMANN-KOHLER (Swiss) - Appointed by the Parties
Arbitrators:

Carole MALINVAUD (French) - Appointed by the Claimant(s)
Alain PELLET (French) - Appointed by the Respondent(s)

Party Representatives

Claimant(s):

DLA Piper UK, Brussels, Belgium
Respondent(s):

Walid Ben Hamida, Paris, France
Language(s) of Proceeding:

French
Status of Proceeding:

Concluded
Outcome of Proceeding:

April 17, 2020 - The Tribunal renders its award.

(b) Annulment Proceeding

Applicant(s)/Requesting Party(ies):

Respondent(s)
Date Registered:

August 21, 2020 (Respondent(s))
Date of Constitution of ad hoc Committee:

November 3, 2020

Composition of ad hoc Committee (Appointed by the Chairman of the Administrative Council)

President:

Christopher HARRIS (British)
Members:

Gabriel BOTTINI (Argentine)
Melanie VAN LEEUWEN (Dutch)

Initial Composition of Tribunal

President:

Raed FATHALLAH (Canadian, French, Lebanese) - Appointed by the Chairman of the Administrative Council
Arbitrators:

Gabriel BOTTINI (Argentine) - Appointed by the Chairman of the Administrative Council
Melanie VAN LEEUWEN (Dutch) - Appointed by the Chairman of the Administrative Council
Reconstituted:

February 22, 2021: Christopher HARRIS (British) appointed following the resignation of Raed FATHALLAH (Canadian ,French ,Lebanese)

Party Representatives

Claimant(s):

DLA Piper, Brussels, Belgium
DLA Piper, Paris, France
Respondent(s):

Eran Sthoeger, Esq., New York, N.Y., U.S.A.
Prof. Dr. Makane Moïse Mbengue, Geneva, Switzerland
Language(s) of Proceeding:

English,French
Status of Proceeding:

Concluded
Outcome of Proceeding:

October 14, 2022 - The ad hoc Committee issues its decision on annulment; attached to the decision is a dissenting opinion by ad hoc Committee member Gabriel Bottini.

(a) Original Proceeding

Published Decisions

Award (Redacted)

Available on the ICSID Website

Award (Redacted) (April 17, 2020) French (Original)

(b) Annulment Proceeding

Published Decisions

Decision on the Annulment Application

Dissenting Opinion of Gabriel Bottini

Available on the ICSID Website

Decision on the Annulment Application (October 14, 2022) English (Original); French (Original)

Dissenting Opinion of Gabriel Bottini (October 14, 2022) English (Original); French (Original)

(a) Original Proceeding

Date	Development
June 14, 2017	The Secretary-General registers a request for the institution of arbitration proceedings.
September 22, 2017	Following appointment by the Claimants, Carole Malinvaud (French) accepts her appointment as arbitrator.
September 26, 2017	Following appointment by the Respondent, Alain Pellet (French) accepts his appointment as arbitrator.
October 31, 2017	Following appointment by the co-arbitrators, Gabrielle Kaufmann-Kohler (Swiss) accepts her appointment as presiding arbitrator.
November 1, 2017	The Tribunal is constituted in accordance with Article 37(2)(b) of the ICSID Convention. Its members are: Gabrielle Kaufmann-Kohler (Swiss), President, appointed by her co-arbitrators pursuant to the parties’ agreement; Carole Malinvaud (French), appointed by the Claimants; and Alain Pellet (French), appointed by the Respondent.
December 7, 2017	The Tribunal holds a first session by telephone conference.
December 18, 2017	The Tribunal issues Procedural Order No. 1 concerning procedural matters.
March 2, 2018	The Respondent files a request to address the objections to jurisdiction as a preliminary question.
March 29, 2018	The Claimants file observations on the request to address the objections to jurisdiction as a preliminary question.
April 24, 2018	The Tribunal issues Procedural Order No. 3 concerning procedural matters.
April 27, 2018	The Tribunal issues Procedural Order No. 4 concerning production of documents.
April 30, 2018	The Respondent files a request for reconsideration of the Tribunal’s decision of April 27, 2018.
May 4, 2018	The Claimants file observations on the Respondent’s request of April 30, 2018.
May 17, 2018	The Tribunal decides on the Respondent’s request of April 30, 2018.
June 28, 2018	The Respondent files a request for the Tribunal to decide on production of documents.
July 6, 2018	The Claimants file observations on the Respondent’s request for the Tribunal to decide on production of documents.
July 27, 2018	The Tribunal decides on production of documents.
September 7, 2018	The Respondent files a counter-memorial on jurisdiction and the merits.
December 7, 2018	The Tribunal issues Procedural No. 5 concerning production of documents.
February 8, 2019	The Claimants file a reply on jurisdiction and the merits.
May 16, 2019	The Respondent files a rejoinder on jurisdiction and the merits.
June 3, 2019	The President holds a pre-hearing organizational meeting with the parties by telephone conference.
June 6, 2019	The Tribunal issues Procedural Order No. 6 concerning procedural matters.
July 2, 2019 - July 3, 2019	The Tribunal holds a hearing on jurisdiction and the merits in Paris.
July 5, 2019	The Tribunal issues Procedural Order No. 7 concerning procedural matters.
September 12, 2019	Each party files a statement of costs.
September 30, 2019	Each party files observations on the other party’s statement of costs.
April 17, 2020	The Tribunal renders its award.

(b) Annulment Proceeding

Date	Development
August 21, 2020	The Acting Secretary-General registers an application for annulment of the award filed by the Republic of Madagascar and notifies the parties of the provisional stay of enforcement of the award.
November 3, 2020	The ad hoc Committee is constituted in accordance with Article 52(3) of the ICSID Convention. Its members are: Raëd Fathallah (Canadian/Lebanese), President; Gabriel Bottini (Argentine); and Melanie van Leeuwen (Dutch); all members appointed by the Chairman of the Administrative Council.
December 18, 2020	The ad hoc Committee holds a first session by videoconference.
January 22, 2021	The ad hoc Committee issues Procedural Order No. 1 concerning procedural matters.
January 27, 2021	The ad hoc Committee issues Procedural Order No. 2 concerning the continuation of the stay of enforcement of the award.
January 28, 2021	Following the resignation of ad hoc Committee member Raëd Fathallah, the Secretary-General notifies the parties of the vacancy on the ad hoc Committee and the proceeding is suspended pursuant to ICSID Arbitration Rules 53 and 10(2).
February 22, 2021	The ad hoc Committee is reconstituted. Its members are Christopher Harris (British), President, Gabriel Bottini (Argentine), and Melanie van Leeuwen (Dutch), all appointed by the Chairman of the Administrative Council. The proceeding is resumed pursuant to ICSID Arbitration Rules 12 and 53.
March 31, 2021	The Republic of Madagascar files a memorial on annulment.
May 31, 2021	(DS)2 S.A., Peter de Sutter and Kristof de Sutter file a counter-memorial on annulment.
July 29, 2021	The Republic of Madagascar files a reply on annulment.
September 30, 2021	(DS)2 S.A., Peter de Sutter and Kristof de Sutter file a rejoinder on annulment.
October 19, 2021	The Tribunal holds a pre-hearing organizational meeting with the parties by video conference.
November 10, 2021	The Committee holds a hearing by videoconference.
April 8, 2022	Each party files a statement of costs.
October 14, 2022	The ad hoc Committee issues its decision on annulment; attached to the decision is a dissenting opinion by ad hoc Committee member Gabriel Bottini.