Mr. Patrick Mitchell v. The Democratic Republic of Congo - Chapter 10 - Investment Arbitration Decisions

Noah Rubins is a Partner in the Paris office of Freshfields, where he is a member of the international arbitration and public international law groups. Mr. Rubins is a U.S. qualified lawyer and has advised and represented clients in arbitrations under ICSID, ICC, ICDR, SCC and UNCITRAL rules. He specializes in disputes in the former Soviet Union and investment treaty arbitration. In addition to advising clients, Mr. Rubins has served as arbitrator in a range of disputes, conducted under the ICC, ICSID, LCIA, SCC and UNCITRAL rules.

Observations by:

Reza Mohtashami, Partner, Freshfields Bruckhaus Deringer LLP, Dubai.

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Originally from Investment Arbitration Decisions

MR. PATRICK MITCHELL v. THE DEMOCRATIC REPUBLIC OF CONGO ICSID CASE NO. ARB/99/7 DECISION OF THE AD HOC COMMITTEE ON THE APPLICATION FOR ANNULMENT OF THE AWARD RENDERED ON 1 NOVEMBER 2006

Subject Matter:
(1) Annulment under Article 52 of the ICSID Convention
(2) Jurisdiction and definition of investment under a Bilateral Investment Treaty
(3) Jurisdiction and definition of investment under the ICSID Convention

Findings:
(1) The ad hoc Committee annulled the award rendered by the arbitral tribunal on the grounds of failure to state reasons and manifest excess of powers for finding that Mr. Mitchell had made an “investment” that was covered under the relevant BIT and the ICSID Convention.

(2) The ad hoc Committee also held that the tribunal had manifestly exceeded its powers by virtue of holding that returns from Mr. Mitchell’s Congolese activities were covered as investments under the BIT.
(3) In particular, the ad hoc Committee faulted the award for its failure to establish the contribution made by Mr. Mitchell’s law firm to the economic development of the host state, which the Committee found was an essential characteristic of an investment under the ICSID Convention.

Table of Contents:

X. Mr. Patrick Mitchell v. The Democratic Republic of Congo 815

ICSID Case No. Arb/99/7

Decision of the Ad Hoc Committee on the Application for

Annulment of the Award Rendered on 1 November 2006

SUBJECT- MATTERS:

1) Annulment under Article 52 of the ICSID Convention.

2) Jurisdiction and definition of investment under a Bilateral Investment Treaty.

3) Jurisdiction and definition of investment under the ICSID Convention.

Observations by Reza Mohtashami