ConocoPhillips Petrozuata BV and ors v Venezuela, Decision on jurisdiction and merits, ICSID Case No ARB/07/30, IIC 605 (2013), 3rd September 2013, United Nations [UN]; World Bank; International Centre for Settlement of Investment Disputes [ICSID]
Whether Article 22 of The Venezuelan Law on the Promotion and Protection of Investments, Decree No 356 constituted consent to International Centre for the Settlement of Investment Disputes arbitration by Venezuela in relation to ConocoPhillips Company and, if so, whether it qualified as an ‘international investor’.
Whether the Tribunal had jurisdiction ratione personae under the Agreement on Encouragement and Reciprocal Protection of Investments between Netherlands and Venezuela (‘BIT’) over the claims by the three Dutch-incorporated claimants, which were alleged to be ‘corporations of convenience’ and, if so, whether the BIT was applicable to ‘indirect investments’; whether the Tribunal had jurisdiction ratione temporis over the ConocoPhillips Hamaca BV claims; and whether the fiscal measures taken by Venezuela between 2004 and 2007 amounted to a ‘single taking’.
Whether matters of taxation were subject to the fair and equitable treatment standard in Article 3 of the BIT or only to the most-favoured-nation standard in Article 4 of the BIT.
Whether the expropriation was unlawful as a breach of Article 6(b) of the BIT as being contrary to an ‘undertaking’ given by Venezuela and whether compensation as a result of Venezuela’s expropriation should be valued at the date of the taking or at the date of the Award.
Whether Venezuela, in negotiations with the claimants concerning compensation for the taking of the claimants’ investments, negotiated in ‘good faith’ in accordance with the ‘market value’ standard stated in Article 6(c) of the BIT.