SOURCE: PRACTICAL LAW ARBITRATION
In TECO Guatemala Holdings LLC v Republic of Guatemala (ICSID Case No. ARB/10/23), an ICSID annulment committee granted the claimant’s request to submit new evidence in annulment proceedings brought by Guatemala in respect of a Resubmission Award and Supplementary Decision.
In proceedings brought by Guatemala to annul a Resubmission Award and a Supplementary Decision, rendered in 2020 under DR-CAFTA, an ICSID ad hoc committee has allowed TECO, a US electricity investor, to submit new evidence. For details of the underlying award and decision, see Legal updates, ICSID majority issues award in resubmitted proceedings against Guatemala under DR-CAFTA and ICSID tribunal agrees to issue supplementary decision on interest.
In its first two procedural orders the committee determined certain rules concerning the marshalling of evidence and developed the standard for admitting new evidence into the record as follows:
- No new evidence would be submitted in the proceeding without first requesting permission from the committee.
- The committee could take into consideration the International Bar Association Rules for the Taking of Evidence in International Arbitration (2010).
- The committee should assess whether the new evidence was prima facie relevant to the adjudication of the case and whether, given the present circumstances, admitting the new evidence was warranted.
The committee determined that it would admit most of the new evidence because it found that TECO’s description of that evidence established its prima facie relevance and indicated admission was warranted.
Given Guatemala’s submission in its Memorial on Annulment, that the Resubmission Award should be annulled for improper constitution of the arbitral tribunal (article 52(1)(a)) and for serious departure from a fundamental rule of procedure (article 52(1)(d)), the new evidence rebutting Guatemala’s arguments that Dr Alexandrov lacked independence and impartiality was prima facie relevant to the issues that the committee had to decide.
The admission of new evidence was warranted because Guatemala’s allegations were based on new facts, which the tribunal had not evaluated. This was one of the reasons underpinning the committee’s decision to accept Guatemala’s request to introduce new evidence. TECO’s request was equally justified because the new evidence purported to address the new facts.
In addition, the new evidence was similar in nature to Guatemala’s new evidence and permitting only Guatemala to make use of those types of documents would run contrary to the principles of due process and equal treatment of the parties.
Case: TECO Guatemala Holdings LLC v Republic of Guatemala (ICSID Case No. ARB/10/23) (15 December 2021) (Ad hoc committee: Deva Villanúa (President); Lawrence Boo; Doug Jones AO).
