4.3 Measuring Program Use
4.3.1 Trends in Loss Mitigation Claims
puesto que se trataba en realidad de una disputa basada en el derecho interno. La
comisión rechazó los argumentos del solicitante, señalando varios aspectos de interés
que tienen que ver tanto con la naturaleza del recurso de anulación, como con el alcance
y contenido que debe dársele a esta causa de anulación:
“215. On a preliminary note, the Committee wishes to clarify that it cannot accept Guatemala’s theory according to which a tribunal’s incorrect decision on jurisdiction can never survive annulment because any excess of jurisdiction is necessarily manifest.
216. First, there is no textual basis within the ICSID Convention to support such a difference in treatment between excesses of jurisdiction and other excesses of power. Article 52(1)(b) of the ICSID Convention refers in general terms to excesses of power. Second, the interpretation propounded by Guatemala would necessarily imply that an annulment committee has the authority to conduct a de novo review of a tribunal’s decision on jurisdiction. This would effectively transform annulment into an appeal when issues of jurisdiction are invoked. This runs counter to the explicit terms of Article 53 of the ICSID Convention, which
states generally that an award – be it on the merits or dismissing the case for lack of jurisdiction – “shall not be subject to any appeal”.
(…)
226. Moreover, the Committee finds that the Tribunal addressed all three main arguments upon which Guatemala’s jurisdictional objection was based: (i) that TECO’s claim is a regulatory disagreement on the interpretation of Guatemalan domestic law; (ii) that TECO cannot use international arbitration as a means to appeal the decisions of the Guatemalan courts and that TECO waived its right to raise a claim for denial of justice; and (iii) that the decision of the Iberdrola tribunal should be followed. The Award also addressed the following issues: (i) whether the Republic of Guatemala had consented to arbitration under the CAFTA-DR; (ii) whether TECO’s shareholding in EEGSA qualified as an investment under the CAFTADR; (iii) whether TECO’s shareholding in EEGSA qualified as an investment under Article 25 of the ICSID Convention; and (iv) whether TECO is an investor under the CAFTA-DR. As a result, the Committee can only take note that the Tribunal manifestly did address Guatemala’s jurisdictional objection.
227. The fact that the Tribunal did not quote and examine Article 10.16.1(a)(i)(A) of the CAFTADR is irrelevant. Guatemala had not argued that TECO had failed to submit a claim for breach of an obligation under Section A “Investment” of the CAFTA-DR Chapter Ten, which is what Article 10.16.1(a)(i)(A) of the CAFTA-DR requires. Consequently, the Committee finds that there was no need for the Tribunal to engage in an analysis of this text. In any event, a reference to this legal text would have added nothing and would have changed nothing in the Tribunal’s reasoning.
228. The Committee also finds that the Tribunal applied the prima facie test within its jurisdictional analysis.
229. Indeed, the Tribunal identified and applied the prima facie test at paragraphs 444 and 445 of the Award, where the Tribunal stated that it would determine “whether the facts alleged by the Claimant are capable, if proven, of constituting breaches of the Respondent’s international obligations under CAFTA-DR”. Since TECO had made an allegation of breach of Article 10.5 of the CAFTA-DR, the Tribunal proceeded to determine its contents. In its analysis, the Tribunal referred to the text of the Treaty, to the Parties’ submissions, to five arbitral awards (two of which it agreed with), and to at least five doctrinal commentaries. The Tribunal found that “a willful disregard of the fundamental principles upon which the regulatory framework is based, a complete lack of candor or good faith on the part of the regulator with the investor, as well as a total lack of reasoning” would constitute a breach of the minimum standard under Article 10.5 of the CAFTA-DR. Looking at TECO’s allegations, the Tribunal noted that they appeared to be supported by evidence and were of such nature that, if ultimately proved, they could establish a breach of Article 10.5 of the CAFTA-DR.
232. Guatemala’s second criticism is that the Tribunal failed to find that TECO’s claim was of a purely domestic law nature, which led it to incorrectly conclude that it had jurisdiction over the case.
233. In the Committee’s view, what Guatemala is seeking is to have the Tribunal’s decision on jurisdiction reversed for the incorrect application of the law. This is impermissible under the ICSID Convention. The only analysis that the Committee may undertake is to determine whether the Tribunal’s decision on jurisdiction was tenable as a matter of law.
234. After a careful review of the Award, the Committee finds that it was. (…)
236. The Committee cannot find anything manifestly unreasonable or untenable in the Tribunal’s analysis. Moreover, as TECO has rightly pointed out and as the Iberdrola annulment committee recently confirmed, there is no inherent incompatibility between a regulatory dispute having arisen at the domestic law level and an arbitral tribunal being subsequently called to assess the conduct of the State under international law. The fact that Guatemala does not accept the Tribunal’s finding that a lack of a denial of justice claim did not preclude its jurisdiction over the dispute does not change this conclusion. It is evident to both Parties and to the Committee that, while the opinion shared by Guatemala exists, it is not unanimously accepted, and there have been numerous arbitral tribunals that have found otherwise. What this shows is that the Tribunal’s interpretation of the applicable law, while not unanimously accepted, is nonetheless at least tenable. This is sufficient to conclude that annulment on this ground is not warranted. 237. Finally, the Committee fails to see how the Tribunal not reaching the same conclusion as the Iberdrola tribunal with respect to jurisdiction is relevant for this ground of annulment. Not only is there no doctrine of stare decisis under international law, but also the parties, the underlying treaties, the legal arguments and the evidence in the two cases were different. The Tribunal’s decision not to follow the Iberdrola tribunal’s decision was therefore at least tenable”.