ICSID ad hoc committee refuses to grant security pending decision in annulment proceedings

In Azurix Corp. v The Argentine Republic (ICSID Case No. ARB/01/12), the Argentine Republic made a request for the annulment of an ICSID arbitration award, together with a request for a stay of enforcement of the award until the annulment application was decided. Azurix contested the application and requested that if a stay of enforcement was granted, Argentina should be ordered to provide security by way of a bank guarantee.

The ICSID annulment committee granted the stay of enforcement but refused to order security pending its decision on the annulment application. The Committee did not accept that any "rule or norm has emerged" which mandated security as an automatic counterbalancing right to a stay, even where security is required to eliminate doubts as to a state's intention to comply with an award. There may be exceptional circumstances which cannot be compensated for by interest. However, that was not the case here.

These comments are not strictly "binding" on subsequent ad hoc annulment Committees, who are free to exercise their own discretion in any given situation. Nevertheless the comments will no doubt be persuasive. They will lend weight to parties seeking to resist the provision of security, unless there are exceptional circumstances, such as a denouncement of the ICSID Convention or a clear demonstration (rather than a mere doubt) of an intention not comply with the award.