In view of the comments made by the other contributors to this publication, the purpose of this contribution is to address the issues relating to factual findings in two contexts:
- First, what standard should an ad hoc committee apply in reviewing findings of fact by an ICSID tribunal? - Second, what is the relationship between the fact finding carried out by the ICSID tribunal and the legal review by an ad hoc committee?
The organizers kindly permitted me to include an asterisk indicating that I would not discuss the substance of the award or the actions of the ad hoc Committee in Vivendi v. Argentina. It is appropriate to encourage careful reading of the award rendered in that case and not simply the annulment decision. In the future I hope to be free to show why that award cannot be understood without an in depth analysis of not only the complex facts presented by the Parties but also of how the Parties presented those facts and how the Tribunal assessed what the Parties presented.