Honduras ICSID Denunciation and Implications for Foreign Investors

Notice by a Contracting State pursuant to Articles 70 or 71 shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary. (Emphasis added)

Article 25 of the ICSID Convention, for its part, provides that ICSID jurisdiction extends to:

any legal dispute arising directly out of an investment, between a Contracting State . . . and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. (Emphasis added).

When Bolivia, Ecuador and Venezuela denounced the ICSID Convention, numerous investors filed ICSID cases against the States during the six-month window before the denunciation became effective. Most ICSID tribunals analyzing those cases concluded that ICSID jurisdiction existed if consent was perfected before denunciation took effect.13 

In most arbitration cases pursuant to international treaties and investment laws, consent is perfected when the investors file the Request for Arbitration.14 The principle is that States offer their consent in the Treaty, and investors accept the offer to arbitrate by instituting arbitration proceedings. In some cases, tribunals took the position that consent had already been perfected when the investor had only filed a notice of dispute under the investment treaty (as opposed to a Request for Arbitration) before the denunciation.15 In contrast, one tribunal held that consent had to be perfected before the denunciation itself (not when it took effect six months later).16

In the case of contracts with Honduras providing for ICSID arbitration, consent to ICSID arbitration arguably has already been perfected. Article 25 of the ICSID Convention refers to “consent in writing,” which may not be “withdraw[n] . . . unilaterally.”  The contract thus may be deemed to be consent by Honduras and the specific investor, in writing, which Honduras cannot withdraw unilaterally. The contract may also provide for an alternative venue in case ICSID arbitration is not available.

Alternatives to ICSID Arbitration

Most treaties available to investors provide alternative forums when ICSID Arbitration is not available, typically UNCITRAL arbitration.

ICSID is often a favorable dispute resolution mechanism for foreign investors for the following reasons:

Honduran courts lack jurisdiction over an ICSID proceeding;
ICSID is the only self-contained forum, that is, ICSID awards are final and binding, subject only to an annulment request to an ICSID ad hoc committee based on specific, narrow grounds for annulment;17 and
States must recognize and enforce ICSID awards as if they were final judgements from their local courts.18

By contrast, arbitrations under other rules, such as the UNCITRAL Arbitration Rules, are subject to the jurisdiction of the competent national courts at the seat of arbitration and awards rendered in such proceedings cannot be directly enforced as a national judgment. Awards (i) may be subject to annulment proceedings before the competent courts at the seat of arbitration, and (ii) must be recognized and enforced by local courts, where enforcement may be challenged. Grounds for annulment and challenge to enforcement are narrow, but include challenges to jurisdiction and public policy grounds, which may be led to local courts imposing their own judgment.19

How Can Foreign Investors with Disputes Against Honduras Navigate the Impact of Honduras’s Denunciation of ICSID?

The denunciation of the ICSID Convention has no legal effect on cases already underway against Honduras.  For investors who may have a dispute against Honduras, but have not yet commenced arbitration, the following should be considered:

Perfecting Consent. Perfecting consent to ICSID arbitration by filing a Request for Arbitration before the six-month period under the ICSID Convention expires may assist in solidifying investment protections for private investors. Investors may be able to suspend the proceedings shortly after their initiation and continue to negotiate after filing the Request.
Settlement Negotiations. If the parties settle while an arbitration is pending and after the tribunal has been constituted, they may enter the settlement as an award, thereby gaining the enforceability effects of an ICSID award described above.20

Ultimately, the specific actions that a particular investor should take depend on the particular facts and available rights in each situation. Investors affected by Honduras’s conduct and policies should take active steps to assess and protect both their legal and commercial interests.

The authors thank Natalia Jaramillo (Law Clerk, Washington, DC) for her research and writing assistance.

1 ICSID, Honduras Denounces the ICSID Convention, https://icsid.worldbank.org/news-and-events/communiques/honduras-denounces-icsid-convention.
2 ICSID, Annual Report 2023.
3 On May 2, 2007, the Plurinational State of Bolivia denounced the ICSID Convention; on July 6, 2009, the Republic of Ecuador denounced the ICSID Convention; and on January 24, 2012, Venezuela denounced the ICSID Convention. Ecuador subsequently re-joined the ICSID Convention on June 21, 2021, after the political climate in the country swung back in favor of foreign investment with the election of a new President. See ICSID, Ecuador Ratifies the ICSID Convention, August 4, 2021, https://icsid.worldbank.org/news-and-events/news-releases/ecuador-ratifies-icsid-convention.
4 Of those arbitration cases, 15 were before ICSID, while the remaining cases were under the United Nations Commission on International Trade Law (“UNCITRAL”) Rules before the Permanent Court of Arbitration (“PCA”) or under the ICSID Additional Facility Rules, which provides for arbitration of certain disputes that fall outside the scope of the ICSID Convention. See Venezuela, cases as Respondent State, https://investmentpolicy.unctad.org/investment-dispute-settlement/country/228/venezuela-bolivarian-republic-of/investor. 
5 Of those, five were before ICSID, while the remaining cases were before the PCA under the UNCITRAL Rules or before the Arbitration Institute of the Stockholm Chamber of Commerce (“SCC”). See Bolivia cases as Respondent State, https://investmentpolicy.unctad.org/investment-dispute-settlement/country/24/bolivia-plurinational-state-of.
6 Of those, two were before ICSID, while the remaining cases were before the PCA under the UNCITRAL Rules. See https://investmentpolicy.unctad.org/investment-dispute-settlement/country/61/ecuador. 
7 Honduras Próspera Inc., St. John’s Bay Development Company LLC, and Próspera Arbitration Center LLC v. Republic of Honduras, ICSID Case No. ARB/23/2; JLL Capital, S.A.P.I. de C.V. v. Republic of Honduras, ICSID Case No. ARB/23/3; Autopistas del Atlántico, S.A. de C.V. and others v. Republic of Honduras, ICSID Case No. ARB/23/10; Scatec ASA v. Republic of Honduras, ICSID Case No. ARB/23/12; Norfund and KLP Norfund Investments AS v. Republic of Honduras, ICSID Case No. ARB/23/13; Juan Carlos Arguello and Ernesto Arguello v. Republic of Honduras, ICSID Case No. ARB23/17; Inversiones y Desarrollos Energéticos, S.A. v. Republic of Honduras, ICSID Case NO. ARB/23/40; Palmerola International Airport, S.A. de C.V. v. Republic of Honduras, ICSID Case No. ARB/23/42; Fernando Paiz Andrade and Anabella Schloesser de León de Paiz v. Republic of Honduras, ICSID Case No. ARB/23/43.
8 See Honduras – Netherlands BIT (2001); France – Honduras BIT (1998); Chile – Honduras BIT (1996; Germany-Honduras BIT (1995); Honduras – Spain BIT (1994); Honduras – United Kingdom BIT (1993); Honduras – Switzerland BIT (1993). Honduras is also a party to the Cuba – Honduras BIT (2001) (signed, not in force). 
9 Law for the Promotion and Protection of Investments (enacted by Decree No. 51-2011 dated July 15, 2011) (the “Investment Law”). Regulation of the Law for the Promotion and Protection of Investments (enacted by Executive Agreement No. 22-DGTC-2014 dated October 25, 2014) (the “Investment Regulation”). 
10 The Government of Honduras published a draft comprehensive tax reform bill (the “Draft Tax Bill”), which sought to repeal Honduras’s Investment Law, but it has failed to do so to date. Specifically, Article 17 of the Draft Tax Bill expressly states that: “The following legal provisions are repealed: . . . Law for the Promotion and Protection of Investments, contained in Decree No. 51-2011 dated 27 May 2011.”
11 Analysis of the Legislation and Public-Private Contracts, March 2015, https://pdf.usaid.gov/pdf_docs/PA00KV8Z.pdf. 
12 See Doing Business in Latin America, Honduras, IBA (October 2018 at 188 https://www.ibanet.org/MediaHandler?id=8c640c9d-2c21-422c-bdbc-7d4f61b5d0d2. 
13 See, e,g, Venoklim Holding B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/22;  Blue Bank International & Trust (Barbados) Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB 12/20 (interpreting Article 72 in conjunction with Article 71 of the ICSID Convention and holding that consent could be perfected by an investor at any time before the expiry of the six-month period following notice of denunciation. Observing that precluding any claims filed after receiving the notice of denunciation would give immediate effect to Venezuela’s denunciation, which would be contrary to the six-month limitation in Article 71, as well as to the principle of legal certainty).
14 See, e.g., Michael Anthony Lee-Chin v. Dominican Republic, ICSID Case No. UNCT/18/3, Partial Award on Jurisdiction, 15 July 2020 ¶125 (“In fact, within the framework of the Treaty, there is only one way to institute investor-State arbitration. Specifically, States have offered their consent in Article XIII, and that consent is perfected when an investor accepts the offer by instituting an arbitration proceeding. This is widely known as anticipated consent or offer of consent to arbitrate.”). 
15 See, e.g.,Tenaris S.A. and Talta – Trading e Marketing Sociedade Unipessoal Lda. v. Bolivarian Republic of Venezuela (II), ICSID Case No. ARB/12/23, Award, December 12, 2016 ¶¶ 144-146 (finding that the claimant perfected consent via notification of the dispute to Venezuela); Valores Mundiales, S.L. and Consorcio Andino S.L. v. Venezuela, ICSID ARB/13/11. 
16 See Fábrica de Vidrios Los Andes, C.A. and Owens-Illinois de Venezuela, C.A. v. Venezuela (I), ICSID Case No. ARB/12/21 (finding that the tribunal lacked jurisdiction over claims filed after Venezuela’s denunciation but before the end of the six-month notice period, as consent had to be perfected before denunciation). This decision notably diverged from decisions rendered by previous ICSID tribunals in Venoklim and Blue Bank. In a November 22, 2019 decision, an ICSID ad hoc committee rejected the claimants’ bid to annul the Fábrica de Vidrios award. 
17 Those grounds include that: (i) the Tribunal was not properly constituted; (ii) the Tribunal has manifestly exceeded its powers; (iii) there was corruption on the part of a member of the Tribunal; (iv) there has been a serious departure from a fundamental rule of procedure; and (v) the award has failed to state the reasons on which it is based. ICSID Convention, Art. 52(1); see also R. D. BISHOP & SILVIA M. MARCHILI, ANNULMENT UNDER THE ICSID CONVENTION, Oxford International Arbitration Series.
18 ICSID Convention, Art. 54(1) (“Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.”).
19 See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention. 
20 See ICSID Procedure, Arbitration Award, https://icsid.worldbank.org/procedures/arbitration/convention/award/2022. 

White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.

This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.

© 2024 White & Case LLP

Source link : https://www.whitecase.com/insight-alert/honduras-icsid-denunciation-and-implications-foreign-investors

Author :

Publish date : 2024-03-15 03:00:00

Copyright for syndicated content belongs to the linked Source.