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International Centre for
Settlement of Investment Disputes
(ICSID)
In the Matter of the Arbitration between
COMPAÑÍA DEL DESARROLLO DE SANTA ELENA, S.A.
and
THE REPUBLIC OF COSTA RICA
Case No. ARB/96/1
RECTIFICATION OF AWARD
Date of dispatch to the parties: June 8, 2000
206 ICSID REVIEW—FOREIGN INVESTMENT LAW JOURNAL
President: Mr. L. Yves FORTIER, C.C., Q.C.
Members of the Tribunal: Professor Sir Elihu LAUTERPACHT, C.B.E., Q.C.
Professor Prosper WEIL
Secretary of the Tribunal: Ms. Margrete Stevens
In Case No. ARB/96/1.
Between: Compañia del Desarrollo de Santa Elena, S.A.
Represented by:
Messrs. Alexander E. Bennett, Kenneth I. Juster, Michael
A. Lee and David B. Bergman
of the law firm Arnold & Porter, as counsel
CLAIMANT
And
The Republic of Costa Rica
Represented by:
Mr. Charles N. Brower, Ms. Abby Cohen Smutny, Ms. Anne
D. Smith Mr. Frank Panopoulos and Mr. Jamie M. Crowe
of the law firm White & Case, as counsel;
RESPONDENT
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THE TRIBUNAL
Composed as above,
After deliberation,
Makes the following DECISION:
1. On 17 February 2000, the Tribunal’s Award (hereinafter, the
“Award”) in the present arbitration was rendered, and certified
copies dispatched to the parties, Compañía del Desarrollo de Santa
Elena, S.A. (hereinafter, “Claimant”) and the Republic of Costa
Rica (hereinafter, “Respondent”), by the Secretary-General of the
International Centre for Settlement of Investment Disputes (hereinafter,
“ICSID”), in accordance with Rule 48 of the ICSID Rules
of Procedure for Arbitration Proceedings in effect from 26 September
1984 (hereinafter, the “Arbitration Rules”).
2. On 30 March 2000, Claimant submitted to the Secretary-
General of ICSID a Request for Rectification of the Award (hereinafter,
the “Request”), accompanied by the prescribed lodging fee,
in accordance with Arbitration Rule 49(1).
3. The Request, having been duly registered and copied to the
parties along with notice of its registration, was transmitted to the
Tribunal on 7 April 2000, in accordance with Arbitration Rule
49(2).
4. On 25 April 2000, pursuant to Arbitration Rule 49(3), the
President 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, and fixed the time limits for the filing
of Respondent’s written observations on the Request and of
Claimant’s reply.
5. For the purpose of Arbitration Rule 49(4), reference is hereby
made to the terms of the Award relating to the matters set out in
sub-paragraphs (a) to (g) of Arbitration Rule 47(1).
6. Having considered Claimant’s Request as well as the parties’
further submissions, contained in Respondent’s observations dated
3 May 2000 and Claimant’s reply of 11 May 2000, the Tribunal
has unanimously reached the present Decision in respect of the
three matters raised in the Request.
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Paragraph 27 of the Award
7. As requested by Claimant, and given the lack of objection by
Respondent, a clerical error in paragraph 27 of the Award is corrected
by deletion of the words “not” and “any” in the second sentence
of that paragraph.1
Paragraph 45 of the Award
8. As requested by Claimant, and in view of the absence of any
objection in this regard by Respondent, the name of “Mr. Landauer”
in the fifth line of the last subparagraph of paragraph 45 of the
Award is changed to “Mr. Beauchamp”, so as to identify correctly
the witness in question.
Paragraph 61(iii) of the Award
9. At page 2 of its 30 March 2000 Request, Claimant states that
paragraph 61(iii) of the Award “…misstates CDSE’s position on
the relationship of Costa Rican law to international law,” and
requests that that paragraph “… be changed to reflect CDSE’s
actual position on this issue.”
10. In its 3 May 2000 observations, Respondent denies that the
paragraph in question requires rectification, and submits that the
Tribunal’s reasoning, as expressed therein, may not in any event be
revised in the context of a rectification request under Article 49 of
the ICSID Convention.
11. In its 11 May 2000 reply, Claimant reiterated the submissions
made in its Request.
12. In the view of the Tribunal, no rectification of paragraph
61(iii) of the Award is required, and this element of Claimant’s
Request is therefore denied, for the reasons explained below.
13. Claimant fails to distinguish—as the Award explicitly does—
two separate though related issues: the question of whether Costa
Rican or international law applies to the dispute, which is dealt
with in Section I of the Award (“Applicable Law”); and the specific
1 The sentence, as corrected, reads: “The Memorial was accompanied by supporting
documentation. [footnote omitted]”
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rules and principles of the applicable law that determine the compensation
owed Claimant, which are analysed in Sections J, K and
L of the Award (“Standard of Compensation”, “Valuation” and
“Interest”).
14. Paragraph 61 of the Award summarises Claimant’s position
concerning whether Costa Rican or international law applies (as
does paragraph 62 with respect to Respondent’s position). It says
nothing about particular rules of law, such as the date as at which
fair market value of the expropriated property is to be calculated,
or about Claimant’s position in that regard. As mentioned above,
the determination of particular rules and principles of law is
addressed separately, and explicitly, in subsequent sections of the
Award, at paragraphs 68 and following. Specifically, paragraph 75
of the Award reads, in part, as follows:
“Claimant states that the fair market value of the Santa
Elena Property, based on its highest and best use in the market
place, is equivalent to its present day value, undiminished
by any expropriatory actions of the Government and,
in particular, by any environmental statutes or regulations
enacted after 1978. [footnote omitted]”
15. In sum, Claimant’s position is described in the Award as follows:
Costa Rican law is applicable to the dispute, and is not
inconsistent with international law (paragraph 61(iii)); the relevant
rules of law require that compensation for expropriation be measured
at the time of payment, without any diminution in value
that may be due to the expropriatory acts (paragraph 75). As
Claimant’s submissions in the arbitration (including the references
cited in footnote 28 at paragraph 61(iii) of the Award2) and the
assertions made in the context of its Request make clear, this is an
accurate summary of Claimant’s stated position. As a result, there
is no need to rectify paragraph 61(iii) of the Award.
2 In its 11 May 2000 reply to Respondent’s observations dated 3 May, Claimant
states that the quotation attributed to it at paragraph 61(iii) of the Award cannot
be found in the references cited in footnote 28. In fact, the quotation comprises the
entirety of the second sentence of the first paragraph at page 75 of Claimant’s Reply
Memorial dated 21 August 1998.
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16. For all of the foregoing reasons, the Tribunal unanimously
DECIDES:
1. Paragraph 27 of the Award is rectified by the deletion of the
words “not” and “any” in the second sentence.
2. Paragraph 45 of the Award is rectified by the substitution of
the words “Mr. Beauchamp” for the words “Mr. Landauer” in
the fifth line of the last sub-paragraph.
3. No rectification is required in respect of paragraph 61(iii) of
the Award.
4. Each party shall bear the expenses incurred by it in connection
with the present Decision. The costs, including the fees
of the members of the Tribunal, shall be borne by the parties
in equal shares.
L. Yves Fortier, C.C., Q.C.
President
Sir Elihu Lauterpacht, C.B.E., Q.C. Professor Prosper Weil
Arbitrator Arbitrator