April 02, 2015

Investment Arbitration Briefly Noted: Nice Try Venezuela!

Readers who watch American sports television while preparing briefs to ICSID tribunals will be familiar with a feature called “C’MON MAN!”, showing sports celebrities caught out in acts or declarations of startling incredulity. Surely this feature could be extended on occasion to the arguments of Host States opposing Investor expropriation claims. A case in point is the recent Award in Tidewater v. Venezuela, ICSID Case No. ARB/10/5 (March 17, 2015) (published at www.italaw.com) finding an expropriation, albeit of the lawful variety (once compensation would be determined and paid), of a maritime oil services business that had operated in Venezuelan waters since 1958. The Bolivarian Republic conceded that it had seized a few boats, but insisted that Claimant remained in effective control of its enterprise and was continuing to do business. The Tribunal rejected this effective control position of the Respondent State, taking particular note of the fact that, after the date of the alleged assets seizure, employees of Claimant’s Venezuelan subsidiary who brought employment claims in Venezuelan courts were directed to serve their pleadings on the Attorney General of Venezuela and were informed that only such service would be deemed good and sufficient. The eminent Tribunal chaired by Professor Campbell McLachlan elaborated its findings in measured tones. But surely must have been thinking, with regard to Venezeula’s effective control position: “C’MON MAN!”

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