INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION
Case Number 01-20-0015-3123
BETWEEN:
PERIMETRAL ORIENTAL DE BOGOTA,
S.A.S. AND SHIKUN & BINUI VT AG,
Claimants
-and-
AGENCIA NACIONAL DE INFRAESTRUCTURA
Respondent
Arbitration Tribunal:
Elina Mereminskaya (Arbitrator)
Cristián Conejero (Arbitrator)
Eduardo Palmer (President of the Arbitration Tribunal)
7 March 2025
Bogotá, Colombia
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1. This decision (“Decision”) is issued in the Arbitration Case Number 01-20-0015-3123 of the International Centre for Dispute Resolution (“ICDR”) and it constitutes a decision on the request for clarification of the final partial award on jurisdiction, liability and damages (“Award” or “Partial Award”). All capitalized terms used in this Decision have the same meaning as in the Partial Award.
2. On 17 January 2025, the ANI filed a request pursuant to Article 106 of Law 1563 of 2012, and Article 33 of the ICDR Rules. It petitioned the Arbitration Tribunal to clarify or add the following points: 1) to specify whether the monetary amounts received for tolls of any kind and the cut-off dates were deducted from the amounts recognized to POB as profits from UFs 1, 2 and 3; 2) to specify the date on which the Final Hearing in this arbitration concluded; 3) to specify whether the measures provided for in the Provisional Award were lifted or remain in force; and 4) to specify the evidence or expert opinion from which the Arbitration Tribunal derived the figure of COP $119,500,000,000 that must be refunded by the ANI to POB for the Supervision and Oversight Sub-account funds, and to specify the reason for ordering a payment to POB that exceeds the value of the funding provided by the concessionaire to the Supervision and Oversight Sub-account (COP $56,730,597,519).
3. On 10 February 2025, within the timeframe indicated by the Arbitration Tribunal, POB submitted its response to the ANI's request.
4. POB notes that none of the points raised by the ANI amount to a genuine request for clarification, given that they do not refer to the sections of the Partial Award.
5. Regarding the first request, POB indicates that this would not be applicable because the Award was clear in stating that the compensation provided to POB for UFs 1, 2 and 3 deducts the sums of money received by POB for Toll Collections
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up to the cut-off date and does not compensate POB for future Toll Collection, but rather for profits lost. POB emphasizes that, with its request, the Respondent seeks to reopen a discussion on the merits of the case.
6. Regarding the ANI's second request, POB believes that the Partial Award is clear in stating that, at the time the Partial Award was issued, the Final Hearing was still ongoing pursuant to Article 27 of the ICDR Rules, and that it has not yet concluded, which is why the Parties were able to file their submissions on interest and costs and respond to the opposing party’s submissions.
7. Regarding the ANI's third request, POB finds it improper, given that the Provisional Award itself established that these measures would remain in force until the entire dispute between the Parties is resolved; in other words, until the final partial award on interest and costs is issued.
8. Regarding the ANI's fourth request, POB highlights that this request does not refer to any matter of the Partial Award that raises doubts or confusion with regard to its scope, but rather calls into question the evidentiary and substantive assessment made in the Award.
9. However, in response to the ANI's request, POB notes that the Partial Award should be corrected to clarify: (i) the item from which this compensation arises; and (ii) the amount at which this item is to be compensated. POB maintains that the item corresponds to the portion assigned to UFs 4 and 5 from the total funding of the Trust Fund Patrimonio Autónomo Sub-accounts and that it amounts to COP $115,400,000,000, as shown in Exhibits CER-009 and CER-010.
10. It adds that the Partial Award set forth that POB must be compensated for all costs incurred with respect to UFs 4 and 5. However, POB requests clarification as to whether the Award granted POB the costs incurred under the heading “Funding Obligations" to compensate POB for the total amount of the funding payments with respect to UFs 4 and 5. POB maintains that this item should be included in
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the list of costs to be compensated, and that this amount, which was demonstrated through the evidence provided by FTI, totals COP $115,400,000,000.
11. Article 33 of the ICDR Rules states:
1. Within 30 days after the receipt of an award, any party, with notice to the other party, may request the arbitral tribunal to interpret the award or correct any clerical, typographical, or computational errors or make an additional award as to claims, counterclaims, or setoffs presented but omitted from the award.
2. If the tribunal considers such a request justified after considering the contentions of the parties, it shall comply with such a request within 30 days after receipt of the parties’ last submissions respecting the requested interpretation, correction, or additional award. Any interpretation, correction, or additional award made by the tribunal shall contain reasoning and shall form part of the award.
12. The Arbitration Tribunal finds that POB's response to the ANI's first request provides a proper summary of the reasons why the request is unjustified, and the Tribunal accepts those arguments and incorporates them here by reference. Therefore, the Arbitration Tribunal will not grant the ANI's first request. Specifically, the Loss of Profit methodology used by FTI, based on Exhibit CER-002, deducted the amounts received by POB from the sums to be compensated to POB.
13. The ANI's second request is unjustified because point 18 of the Holding in the Partial Award expressly states that the case file remains open, which is an alternative way to confirm that the Final Hearing remains ongoing. For these reasons, the Arbitration Tribunal will not grant this request.
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14. The ANI's third request for clarification is unjustified, inasmuch as it refers to the Provisional Award and not the Partial Award. In turn, the Provisional Award clearly states that the measures imposed were put into place “until a final award is issued to definitively resolve the dispute in the Arbitration.” The issuance of the Partial Award did not bring the arbitration process to an end; on the contrary, the Arbitration Tribunal gave the Parties an opportunity to submit their positions on interest and costs. The Arbitration may only conclude with the issuance of a partial award on these matters. For these reasons, the Arbitration Tribunal will not grant this request.
15. Finally, the ANI's fourth request must be examined in the context of POB's response, which, when read together, shows that the ANI's request is justified. With respect to POB's observation, the Tribunal did mention the issue of funding obligations in its discussion of the costs incurred by POB for UFs 4 and 5. The Partial Award simply did not repeat the discussion on the funding obligations item within the list of costs incurred by POB for UFs 4 and 5, because, as the Tribunal noted, those costs were addressed in a separate section of the Award.1
16. In any case, the Arbitration Tribunal wishes to clarify that its intention at all times has been to grant full compensation for the costs incurred by POB for UFs 4 and 5 under the funding obligations. This amount includes the overpayments to the Supervision and Oversight account for UFs 4 and 5, which, as recognized by the ANI itself, makes up part of the sum of COP $56.730.597.519. In addition to the payments to the Supervision and Oversight account for UFs 4 and 5, the compensation amount for funding obligations also includes the other funding costs for UFs 4 and 5, which total COP $115,400,000,000, as indicated in Exhibit CER-010, Table 5-3.
1 Partial Award, footnote 670, ¶872. ↩
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17. Thus, the figure of COP $119,500,000,000 that the ANI is required to refund to POB for the funding obligations contains a numerical error that must be clarified, in addition to clarifying the reference to a source of evidence, as the ANI has requested. Specifically, this item is associated with the figure of COP $115,400,000,000. According to the Arbitration Tribunal's reading of Exhibit CER-010, Table 5-3 in this exhibit shows that the portion of the funds of all the sub-accounts associated with UFs 4 and 5 is equivalent to: (i) COP $64,900,000,000 for UF4 and (ii) COP $50,500,000,000 for UF5, resulting in a final amount of COP $115,400,000,000.
18. In line with the above, to maintain consistency in the body of the Award, the Arbitration Tribunal finds it necessary to clarify the following: instead of indicating the figure of COP $119,500,000,000, paragraphs 482 and 497 should state the figure of COP $115,400,000,000, and the respective footnotes 373 and 382 should reference Exhibit CER-010, Table 5-3, instead of what is stated therein.
19. Furthermore, at the end of paragraph 482 and paragraph 497, the Arbitration Tribunal adds the following clarification: “The Tribunal understands that this amount also includes other funding costs with respect to UFs 4 and 5."
20. Based on the above considerations, the Arbitration Tribunal determines as follows:
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Pursuant to Article 33, paragraph 2, of the ICDR Rules, this decision forms part of the Partial Award.
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I hereby certify that, for purposes of Article 1 of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, this Decision on the Request for Clarification of the Partial Award was issued in Bogotá, Colombia.
[digital signature]
Elina Mereminskaya
[signature]
Cristián Conejero
[signature]
Eduardo Palmer
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I, [digital signature], affirm under my oath as Arbitrator that I am the person described herein who has executed this instrument, which is this Decision on the Request for Clarification of the Partial Award.
[digital signature]
Elina Mereminskaya
Arbitrator
I, ____________________________, affirm under my oath as Arbitrator that I am the person described herein who has executed this instrument, which is this Decision on the Request for Clarification of the Partial Award.
[signature]
Cristián Conejero
Arbitrator
I, Eduardo Palmer, affirm under my oath as Arbitrator that I am the person described herein who has executed this instrument, which is this Decision on the Request for Clarification of the Partial Award.
|
7 March 2025 Date |
[signature] Eduardo Palmer, President of the Arbitration Tribunal |