The rectification of an award under Article 49(2) of the ICSID Convention is a remedy for inadvertent omissions and minor technical errors in an award. It enables the arbitral tribunal to correct mistakes that may have occurred in the award’s drafting in a non-bureaucratic and expeditious manner. Such corrections are provided for in Article 49(2) of the ICSID Convention:
“The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered.”
In RDC v. Guatemala, the tribunal agreed that it had misapplied a discount rate. It upheld the request for rectification and rectified the award by adding approximately USD 2 million to the amount of damages. However, the tribunal rejected a second rectification request where the claimant contended that “the (t)ribunal committed an error by not discounting the income received by (RDC’s local company) post-Lesivo at the same discount rate that it discounted the stream of that income from the end of the railway concession to 2006.” The tribunal considered that the Request did not concern rectification of a computational error but involved a change of approach by Claimant in respect of the treatment of the payments received post-Lesivo outside the scope of the terms of Article 49(2) of th
e ICSID Convention. In a dissenting opinion, the arbitrator Stuart E. Eizenstat disagreed with the majority with regard to the errors made by Claimants expert: “Insofar as Claimant’s expert erred in not discounting these rents, it is my view that the Tribunal shares in the error. Therefore, the Tribunal should correct it and I would do so.”
In Noble Ventures v. Romania, the request for rectification to amend the list of persons who represented it as counsel was unopposed and unanimously accepted by the arbitral tribunal. A similar decision on rectification was issued by the ad hoc Committee in Soufraki v. UAE.
In Feldman v. Mexico, the arbitral tribunal granted the request for correction thereby substituting in the award the word “CEMSA” for the word “Claimant”. It also corrected the Award to include the mandatory language in NAFTA Article 1135(2)(c), i.e. “The Award is made without prejudice to any right that any person may have in the relief under applicable domestic law”. The tribunal denied all other requests, whether by respondent or by claimant, for interpretation of the award, or for a supplementary decision.
In Vivendi v. Argentina, the ad hoc Committee was faced with seven independent bases for rectification of its Decision on Annulment, which, Argentina alleged, were so serious “that, unless rectified, they could ‘nullify the Decision on Annulment’ and prejudice Argentina’s position in future ICSID arbitrations”. The Committee accepted to revise only two minor errors, related to its summary of the parties’ positions and arguments, leading to minor edits to the text of the decision.
In Maffezini v. Spain, the arbitral tribunal agreed to rectify minor material errors corrected by the substitution of the word “employee” for the word “official” in order to convey accurately the Respondent’s position on the status of the employees.
In Santa Elena v. Costa Rica, the arbitral tribunal rectified two minor clerical errors, which were not objected by respondent: correct identification of witnesses and mention that some evidence has been provided. However, the Tribunal refused the application to rectify its summary of the Claimant’s position on whether international law or Costa Rican law applied to the dispute generally.
In LETCO v. Liberia, the tribunal accepted to correct the award and to modify the calculation of costs in accordance with the post award recalculated legal fees. According to Schreuer, it is not clear whether rectification under Art. 49(2) was the appropriate procedure in this case instead of a revision. It seems that in this particular case the use of rectification rather than revision does not appear to have made any difference (Schreuer, p. 855, para. 44-45).
In Enron v. Argentina, the arbitral tribunal rejected the request for rectification and added that “Even if the Claimants could establish that there was an error, which they have not, such error, as the Respondent has noted, would by no means be a minor technical error of the kind envisaged by Article 49(2) of the ICSID Convention.”
- Andrian Beregoi, Aceris Law SARL