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Procedural Context and Parties' Submissions
This decision addresses the Claimants' request for a supplementary decision pursuant to Article 49(2) of the ICSID Convention, following the Tribunal's final Award on damages of 25 July 2007. The Claimants sought to have the Tribunal update the quantum of compensation to include damages sustained after the Award's cut-off date of 28 February 2005, arguing that the Tribunal had left this issue unresolved. They submitted new evidence of the Respondent's continuing breach and contended that supplementing the Award would serve the interests of justice and efficiency by avoiding new proceedings.
The Respondent, the Argentine Republic, opposed the request, arguing that it exceeded the narrow scope of Article 49(2). The Respondent asserted that the provision is intended to correct inadvertent, non-substantial omissions, not to revisit deliberate decisions, address substantial issues, or consider new evidence. Granting the request, it argued, would amount to an improper reopening of the proceedings and would violate its right to due process.
Tribunal's Analysis and Decision
The Tribunal denied the Claimants' request, finding that it did not concern a matter that the Tribunal had "omitted to decide" as required by Article 49(2). The Tribunal clarified that its decision in the final Award to establish a cut-off date for damages was a deliberate one, grounded in the principle of due process. It had explicitly declined to consider evidence of post-cut-off date damages because the Respondent had not been afforded an opportunity to respond to it.
The Tribunal held that the supplementation process is not a mechanism for parties to continue proceedings on the merits or to challenge the validity of a tribunal's decision. It emphasized that Article 49(2) does not provide a means of appeal or revision. While acknowledging the Claimants' concerns, the Tribunal concluded that it could not disregard fundamental principles of due process. The decision confirms that the Claimants' right to claim additional damages through new proceedings remains intact. The Tribunal ordered the Claimants to bear the costs of the supplementary proceedings (US$74,954.74), with each party bearing its own legal expenses.
