as i've said, i dont think we'll run the full course of an icsid arbitration (at least i hope not) but in case we do i've been reading up on cases/rules/etc..pretty interesting stuff.

the first question i'd have for RM is "what does kry intend to claim" (i.e. what did venezuela do/not do? did ven break a contractual or treaty agreement?)

some of the "jurisdictional" laws with regard to icsid are just mind boggling. but in any case imo kry will have to prove that ven violated a "treaty obligation"...

here's a couple bits of icsid "jurisdiction" findings i think might apply:

XII- Difference Between Treaty Disputes and Contractual Disputes.

In the Decision on Annulment in Vivendi v. Argentina,[25] the ad hoc Committee annulled

the award of the arbitral Tribunal on the ground that the Tribunal manifestly exceeded its

powers by deciding it had jurisdiction over the claims but declined to rule on them. The

Tribunal had found it could not hold Argentina liable until a contractual dispute between

the parties had been submitted and solved by local courts.

In that context the Tribunal held that there could be a breach of a treaty without

necessarily breaching a contract and vice versa. It stated that different legal standards

apply to each one of them. Foremost, it stressed that a forum selection clause in the

contract did not stop the investor from filing international arbitration claims against a

State for breach of a treaty.

XIII- Waiver of jurisdiction does not exclude ICSID jurisdiction in certain circumstances.

In AZURIX CORP v. The Argentine Republic,[26] an American corporation filed a

request to arbitrate a dispute against the Argentine Republic for alleged breach of the Argentine Republic- United States of America Bilateral Investment Treaty (BIT) related to a supposed expropriation in connection with a concession for distribution of potable water and the treatment of disposal sewerage in the Province of Buenos Aires.

Although the concession was granted to an ad-hoc Argentine company incorporated by Azurix’s Argentine subsidiaries, the parent company took the claimant’s role.

Argentina objected the jurisdiction of the ICSID Tribunal based on the arguments that Azurix had agreed to the jurisdiction of the courts of La Plata and had waived any other fora and that Azurix had submitted the dispute to local courts and that triggered the “fork in the road” provision of the BIT.

The Tribunal stated that when the claims or causes of action between a local claim

and a claim before an ICSID Tribunal are different, the waiver of jurisdiction clause does not exclude its jurisdiction. The dispute before the local courts was related to contractual arrangements whereas the one before ICSID was related to alleged breach of treaty obligations. Consequently, the waiver of any other jurisdiction and forum related to contractual actions and not to treaty actions. Rights arising under a contract are different from the rights arising out of the treaty. The Tribunal analyzed previous cases and concluded that the forum selection clause did not exclude ICSID jurisdiction when the “subject-matter of any proceedings before the domestic courts under the contractual arrangements in question and the dispute before the ICSID tribunal was different and

therefore the forum selection clauses did not apply”[27] .

X- Exclusive jurisdiction of local courts for contractual claims.

The Tribunal had to deal with the controversial issue of exclusive jurisdiction of local

courts for contractual claims as provided by the investment agreement between SGS and the Philippines.

The majority of the Tribunal drew a distinction between jurisdiction and admissibility to

find that it might have jurisdiction over a dispute and yet not admit it. The Tribunal held

that “…a party to a contract cannot claim on that contract without itself complying with

it…”[20]

It then stayed the arbitration proceedings since the provision on exclusive jurisdiction of

local courts was not waived or over-ridden by the BIT or the ICSID Convention.

One of the arbitrators disagreed with the stay of the proceedings based, inter alia, on the

argument that BIT arbitration provision and the contractual provision on exclusive

jurisdiction of local courts do not override or replace the other but rather coexist.[