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سه‌شنبه 1 تیر‌ماه سال 1389
متن رای ICSID

1
(English Translation from Spanish Original)
INTERNATIONAL CENTRE FOR SETTLEMENT
OF INVESTMENT DISPUTES
WASHINGTON, D.C.
IN THE PROCEEDING BETWEEN
EMILIO AGUSTÍN MAFFEZINI
(CLAIMANT)
and
THE KINGDOM OF SPAIN
(RESPONDENT)
CASE NO. ARB/97/7
RECTIFICATION OF THE AWARD
Members of the Tribunal
Professor Francisco Orrego Vicuña, President
Judge Thomas Buergenthal, Arbitrator
Mr. Maurice Wolf, Arbitrator
Secretary of the Tribunal
Mr. Gonzalo Flores
2 ICSID REVIEW—FOREIGN INVESTMENT LAW JOURNAL
Representing the Claimant Representing the Respondent
Dr. Raúl Emilio Vinuesa Mr. Rafael Andrés León Cavero
Dra. María Cristina Brea Abogado del Estado
Dra. Silvina González Napolitano Subdirección General de los
Dra. Gisela Makowski Servicios Contenciosos del
Estudio Vinuesa y Asociados Ministerio de Justicia
Buenos Aires Madrid
Argentina Spain
Date of dispatch to the parties: January 31, 2001
CASES 3
THE TRIBUNAL
Composed as above,
After deliberation,
Makes the following decision:
Procedure Leading to the Rectification of the Award
1. On November 13, 2000, the Arbitral Tribunal constituted in this
case rendered its Award. On the same date, and in accordance with Rule 48
of the Rules of Procedure for Arbitration Proceedings (Arbitration Rules),
the Acting Secretary-General of the International Centre for Settlement of
Investment Disputes (ICSID or the Centre) dispatched a certified copy of
the Award to Mr. Emilio Agustín Maffezini (the Claimant) and to the
Kingdom of Spain (the Respondent), indicating the date of dispatch on the
original text and on all copies.
2. On December 13, 2000, the Kingdom of Spain submitted to the
Secretary-General a request for rectification of the Award in accordance
with Article 49(2) of the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States (ICSID Convention)
and Arbitration Rule 49.
3. On December 27, 2000, the Kingdom of Spain submitted to the
Centre the lodging fee for the rectification of an Award prescribed in Arbitration
Rule 49(1)(d).
4. On January 2, 2001, the Acting Secretary-General, pursuant to Arbitration
Rule 49(2), registered the request for rectification of the Award
submitted by the Kingdom of Spain and, on the same day, notified the
parties of the registration, transmitted to the Claimant a copy of the
request for rectification and transmitted to each member of the Tribunal a
copy of the notice of registration, together with a copy of the request.
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5. On January 4, 2001, pursuant to Arbitration Rule 49(3), the Secretary
of the Tribunal informed the parties of the Tribunal’s decision that it
would not be necessary for the Tribunal to meet in order to consider the
request for rectification of the Award. The Secretary of the Tribunal also
communicated to the parties the time limits for the parties’ filing of their
observations on the request and the proceeding to be followed for the
consideration of the request.
6. In accordance with the schedule set by the Tribunal, the Claimant,
on January 9, 2001, announced that he did not have observations to file
with respect to the request for rectification of the Award submitted by the
Kingdom of Spain. The Kingdom of Spain did not file any additional
observations on the request for rectification of the Award.
7. The Tribunal, by means of telephone communication and mail
correspondence, deliberated on the request for rectification of the Award
submitted by the Kingdom of Spain, unanimously reaching the present
decision.
Summary of the request for rectification submitted by the Kingdom of Spain
8. The Kingdom of Spain, in its request for rectification of the Award
has asked that the word “official” used in line 14 (line 13 in the English
version of the Award) of paragraph 45 of the Award be substituted by
“employee.”
9. Said request for rectification is based on the Kingdom of Spain’s
conviction “that due to a transcription error, it is affirmed in the Award
that the Kingdom of Spain recognizes in its allegations that the employees
of SODIGA were ‘officials’, which is exactly the contrary of what it has
alleged and defended in its arguments.”
10. The Respondent likewise states that “in a sufficiently precise and
documented manner, the Kingdom of Spain has presented the legal distinction
between employee and official, defending in its allegations that the
employees of SODIGA were not officials from a legal standpoint, but
rather employees within the framework of labor law. […] It is therefore not
possible to impute to Spain recognition of the official status of an employee
which has never been made.”
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11. In support of said affirmations, the Kingdom of Spain cites its
counter-memorial of April 9, 1999, in which it states, on page 91, “But it
is that in addition, […] its employees (sic. Those of SODIGA S.A.) are
not officials whose services are regulated by the standard for Spanish public
officials. What is involved is a corporation regulated by Spanish commercial
private law, which is subject to judgment before Spanish civil courts
and whose workers are employees, bind to their employer under a relationship
regulated by Spanish labor laws.” (emphasis and clarification in parenthesis
in the original request for rectification).
12. As a consequence, the Kingdom of Spain sustains that “that which
most conforms with what has been truly alleged by Spain, whose legal position
is intended to be summarized in section 45 of the award […] is the
following: ‘According to Spain, the transfer of funds to EAMSA was fully
authorized by Mr. Maffezini and was carried out by an employee of
SODIGA acting in his personal capacity...’” (emphasis in the original).
Considerations
13. Article 49(2) of the ICSID Convention establishes that “The
Tribunal upon the request of a party made within 45 days after the date on
which the award was rendered may after notice to the other party decide
any question which it had omitted to decide in the award, and shall rectify
any clerical, arithmetical or similar error in the award.”
14. Arbitration Rule 49 supplements that which is stated in the abovementioned
paragraph, establishing that “within 45 days after the date on
which the award was rendered, either party may request, pursuant to
Article 49(2) of the Convention, a supplementary decision on, or rectification
of, the award,” with the requirement that the request, among other
requisites, “state in detail any error in the award which the requesting party
seeks to have rectified.”
15. The Kingdom of Spain filed its request for rectification of the
Award on December 13, 2000, and submitted its fee for lodging a request
for rectification, as prescribed by Arbitration Rule 49(1)(d), on December
27, 2000, that is, within 45 after the date on which the Award was
rendered.
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16. Paragraph 45 of the Award dated November 13, 2000 forms part of
section C of said Award, entitled Summary of Facts and Contentions. In said
paragraph 45, the Arbitral Tribunal described the arguments presented by
the Kingdom of Spain in its oral and written pleadings.
17. The rectification requested by the Kingdom of Spain appropriately
summarizes the arguments set forth by the Respondent in the present
proceeding.
18. The request of the Kingdom of Spain seeks, as a consequence, the
rectification of a material error in the Award of November 13, 2000, as
prescribed by Article 49(2) of the ICSID Convention.
19. Having received no objections from the Claimant, and in view of
the modification of the summary of arguments by the Respondent as set
forth by the Respondent itself, this Tribunal finds it appropriate to
grant the request for rectification of the Award filed by the Kingdom of
Spain.
20. For the purpose of Arbitration Rule 49(4) the present decision refers
to the terms of the Award dated November 13, 2000, relating to the
matters indicated in Arbitration Rule 47(1)(a-g). In accordance with
Article 49(2) of the ICSID Convention, the present decision constitutes an
integral part of the Award.
Decision
21. For the reasons stated above, the Tribunal unanimously decides:
(1) To grant the request for rectification of the Award submitted by
the Kingdom of Spain on December 13, 2000, thereby substituting
in line 14 (13 in the English version of the Award) of
paragraph 45 of the Award the word “employee” for the word
“official.”
(2) Each of the parties shall bear the entirety of the costs of its own
expenses and legal fees for its own counsel resulting from the
present rectification proceeding.
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So Decided.
[signature and date]
Francisco Orrego Vicuña
President of the Tribunal
[signature and date] [signature and date]
Thomas Buergenthal Maurice Wolf
Arbitrator Arbitrator