Revision Proceedings under the ICSID Convention: Suggestions for a Possible Interpretation of the Prerequisites of Article 51 of the ICSID Convention

摘要

Recently, not only the number of ICSID proceedings in general has increased but also the number of annulment and revision proceedings challenging the finality of an ICSID award. This development can be seen as reflecting the increasing dissatisfaction among certain of the players in the field with the outcome of an ICSID award specifically and the ICSID system in general. It thus appears not unlikely that the number of revision proceedings as one of the currently available remedies to challenge the finality of an ICSID award will further increase. While three applications for revision have been filed so far, only one decision in an ICSID revision proceeding has been rendered by an arbitral tribunal. In view of the scarcity of jurisprudence and literature in the field of ICSID revision proceedings, the authors discuss legal standards governing ICSID revision proceedings in general and the burden of proof and weighing of evidence in ICSID revision proceedings specifically. In applying these standards to each of the prerequisites of Article 51 of the ICSID Convention, which must be met in order for an application for revision to be successful, the authors provide guidance for determining the prospects of success of an Article 51 revision application.rnThe authors conclude that, in light of the presumption in the ICSID Convention in favour of the finality of an award, revision should be an exceptional remedy. The prerequisites of Article 51 of the ICSID Convention should be interpreted restrictively. A balance needs to be struck between the principle of res judicata and legal stability, on the one hand, and the interests of justice and procedural fairness, on the other hand. In view of the fact that the ICSID Convention provides generally for the finality of an award and does not foresee an appeal mechanism, such a mechanism should not be introduced through the 'back door' in the guise of an application for revision.