I was grateful to have been asked to speak on the topic of the review of the arbitral tribunal’s jurisdiction. However, what I ended up with was just a list of questions – though probing questions. Now you may think that is a little bit strange, in an area in which all of us are supposed to be partis pris – or at least to have idées fixes – on every disputed point that has ever arisen. I think there is quite a lot to be said, though, considering that we make our living out of sitting as arbitrators or sitting on ad hoc Committees, for approaching each question with an open mind on the facts and the circumstances as they arise. But annulment under the ICSID Convention remains a problematical institution.
One of the things that strikes you when you go through the decisions of ad hoc Committees (one you’ve gone through the process of trying to find them all!) is that almost invariably, each decision by an ad hoc Committee contains a section describing what the purpose of the annulment process is. Not just the earliest ones, like Klöckner, 1 but every one since with the honourable exception of CMS Gas.2 The fact that there is such a passage in each decision seems to me to betray a sense of unease, even lack of confidence on the part of ad hoc Committees, in what it is they are supposed to be doing. CMS Gas is the honourable exception, and therefore I can look Gilbert Guillaume straight in the eye and say he has confidence in what he is supposed to be doing.