In RSM Production Corporation v Grenada (ICSID Case No ARB/05/14 (Annulment proceeding)), an ad hoc committee, established under Article 52 of the ICSID Convention to hear an application for annulment of an award, held that it had no jurisdiction to reconsider the significance of evidence which had been placed before the tribunal.

At the merits hearing, the applicant had alleged that the then Attorney-General of Grenada (AG) had corruptly accepted bribes. However, it did not ask the tribunal to make any finding of fact in relation to this allegation, arguing instead that it was relevant only to credibility. After the award was produced, the applicant issued an application under Article 52 for annulment, arguing that the committee should now consider whether the AG had acted corruptly. Although the application did not fall within the five grounds set out in Article 52, the applicant argued that the committee had an inherent jurisdiction to make enquiries and decisions beyond the scope of its technical mandate.

The committee rejected the application, holding that it fell outside its jurisdiction. In truth, the application was not an application for annulment at all: rather, it was an attempt to reopen evidence which the tribunal had considered. Although the committee agreed that international courts and tribunals possessed certain inherent powers, the scope and exercise of those powers could not be inconsistent with the terms of the constitutive instrument (here, the ICSID Convention). Referring to Article 53 of that Convention (which provides that the award "shall not be subject to any appeal or any other remedy except those provided for in this Convention"), the committee noted that Article 52 exhaustively defined the scope of its jurisdiction. It did not permit a party to present new arguments on fact and law that it had failed to put forward in the original arbitration proceedings. In any event, on the facts the AG's testimony had not been relied on by the tribunal in reaching its award and was therefore not relevant; and the applicant, in seeking to reopen the allegations of bribery, was blowing hot and cold.

The decision confirms the narrow confines of the jurisdiction to annul awards, and clearly enunciates the principle that an application for annulment should not be used to give parties a second bite at the cherry in relation to evidence or arguments. For further information about applications to annul, see Practice note, Procedure in ICSID arbitration: Annulment.