No consent to ICSID jurisdiction under Venezuelan investment law | Practical Law

No consent to ICSID jurisdiction under Venezuelan investment law | Practical Law

In Brandes Investment Partners LP v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/3), an ICSID tribunal considered whether it had jurisdiction to hear a claim based on an article in Venezuelan investment legislation.

No consent to ICSID jurisdiction under Venezuelan investment law

Practical Law Legal Update 8-507-2634 (Approx. 3 pages)

No consent to ICSID jurisdiction under Venezuelan investment law

by PLC Arbitration
Published on 17 Aug 2011International, USA
In Brandes Investment Partners LP v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/3), an ICSID tribunal considered whether it had jurisdiction to hear a claim based on an article in Venezuelan investment legislation.
An ICSID tribunal has concluded that it did not have jurisdiction to hear a dispute under Article 22 of the Venezuelan Law on the Promotion and Protection of Investments (LPPI). The tribunal concluded that the law did not provide a general consent to ICSID arbitration for the purposes of Article 25 of the ICSID Convention.
The issue had previously been considered in Mobil Corporation and others v Bolivarian Republic of Venezuela (ICSID Case No ARB/07/27) and Cemex Caracas Investments BV and another v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/15) (see Legal updates, Interpretation of national legislation in ICSID arbitration and Netherlands/Venezuela BIT protects indirect investors but no consent to ICSID arbitration under Venezuelan Investment Law). The tribunal noted that, while these decisions were neither decisive nor binding, it could consider their substance to the extent they shed light on the issue here.
In concluding that it did not have jurisdiction to hear the case, the tribunal noted:
  • The initial process of interpretation had to be conducted within the parameters of the Venezuelan legal system. However, because any conclusions reached must be applied to determine whether Venezuela granted its consent to ICSID jurisdiction under Article 25 of the ICSID Convention, principles of international law should also be taken into account.
  • The wording of Article 22 of the LPPI was confusing and imprecise, rendering a conclusion based on a grammatical interpretation of the article impossible. It was, therefore, necessary to analyse the context of Article 22, the circumstances in which the LPPI was enacted and the goals its enactment sought to achieve.
  • Although there were similarities between the content of the LPPI and that of a bilateral investment treaty (BIT), there was no provision either in Article 22 or any other article of the LPPI that provided for Venezuela's consent to ICSID jurisdiction.
  • At the time of the LPPI's enactment, Venezuela had entered into BITs with various countries. Each of those treaties contained a submission to ICSID arbitration in clear and precise language.
  • Although eager to attract foreign investors, it would be illogical to find that Venezuela was willing to grant a broad unilateral consent to ICSID jurisdiction to other countries by the LPPI, without any reciprocity.
  • Despite publicising through various websites and publications, that the LPPI favoured arbitration, that did not mean that Article 22 amounted to Venezuela's consent to ICSID jurisdiction.
  • The claimant had argued that Article 25 of the ICSID Convention only required consent in writing and nothing more, whereas Venezuela asserted that consent should be "manifest, clear and unequivocal". The tribunal agreed that it was self-evident that consent to ICSID jurisdiction should be expressed in a way that would leave no doubt. There was nothing in this case that would lead to a departure from the conclusions reached in Cemex and Mobil.
The case is a further example of an ICSID tribunal refusing to accept jurisdiction based on the Venezuelan investment law. The claimant's argument that the tribunal had before it material not available in Cemex and Mobil, namely various announcements and publications stating that the LPPI favoured arbitration, did not detract from the tribunal's conclusion that the LPPI did not constitute a general consent to ICSID jurisdiction.
Case: Brandes Investment Partners LP v Bolivarian Republic of Venezuela (ICSID Case No ARB/08/3), 2 August 2011.