Procedural Context and Core Issue

This document is a Decision of an ICSID Tribunal on the Claimants' request for a supplementary decision pursuant to Article 49(2) of the ICSID Convention. The request followed the Tribunal's Award of 29 June 2023, which found Serbia liable for breach of the Canada-Serbia BIT and ordered it to pay damages. The core issue addressed is the Claimants' application to supplement the Award's operative part to specify the start date for the accrual of pre-award interest, which had been omitted from the final disposition.

Parties' Submissions

The Claimants argued that the Tribunal had inadvertently omitted to state that interest on the damages should run from the date of the treaty breach, 21 October 2015. They contended that this start date was clearly implied by the Tribunal's reasoning in the Award, which was grounded in the principle of full reparation, and that an express statement was necessary for potential enforcement.

The Respondent, Serbia, opposed the request, arguing that the Award was clear and required no supplementation. In the alternative, Serbia submitted that interest should accrue either 120 days after the Award's issuance (the date enforcement could commence under the BIT) or, at a minimum, from 27 September 2021, a date mentioned in the Claimants' final prayer for relief. Serbia argued that granting interest from the date of breach would impermissibly go beyond the relief formally sought by the Claimants.

Tribunal's Analysis and Decision

The Tribunal affirmed its discretionary power under Article 49(2) to decide a question it had omitted to decide in an award. It reviewed its reasoning in the original Award, noting that it had calculated the value of the investment as of 21 October 2015 and stated that interest should be added "to this figure" to compensate for the time value of money, consistent with the principle of full reparation. The Tribunal found that while the operative part was silent on the start date, its reasoning made it clear that interest was intended to accrue from the date of the breach.

Consequently, the Tribunal held that it was appropriate to supplement the Award to expressly state that interest accrues from 21 October 2015. It rejected Serbia's arguments, finding that the principle of full reparation required compensating the claimant for the loss from the moment it occurred. The Tribunal also dismissed the contention that it was ruling *ultra petita*, explaining that the Claimants had consistently calculated their damages inclusive of interest from the date of breach throughout the proceedings. The Tribunal therefore granted the Claimants' request and supplemented paragraph 717(d) of the Award to specify that interest runs "from 21 October 2015 until the date of payment."

Costs

Regarding the costs of the supplementary proceedings, the Tribunal determined that because the original Award did not expressly state the interest start date and both parties benefited from the resulting clarification, it was fair and appropriate for each party to bear its own legal costs and 50% of the Tribunal's fees and expenses.