Introduction

Historically, the legal framework of international dispute settlement has been crafted to render international decisions, judgements, and arbitral awards, a binding and final nature. This fundamental principle has persisted to the present day in diverse rules and conventions within the sphere of international law and, particularly, in the realm of investment arbitration.

Typically, investment awards are only subject to annulment proceedings, either before a domestic court at the arbitration seat or before a specialized body, such as an annulment committee. The absence of an appeal mechanism may explain why certain states have explored alternative procedural avenues to challenge adverse decisions. This is reflected, for instance, in the March 2024 Decision on Annulment in RWE Innogy v. Spain, the September 2022 Decision on Annulment in Global Telecom Holding v. Canada, and the November 2021 Decision on Annulment in Magyar Farming v. Hungary.

Alongside annulment petitions, there has been an unprecedented increase in the number of requests seeking the reassessment of arbitration decisions and awards during 2021, 2022, and 2023, which will be discussed further in the sections that follow. This widespread endeavor to revisit settled disputes through revision requests represents a distinctive development in international law and investment arbitration. Nevertheless, this avenue for reconsideration has, thus far, proved to be a cul-de-sac or a dead end.

Revision of Judgments and Awards under International Law

In the context of inter-state proceedings, arbitration awards have traditionally been binding, devoid of any procedural avenue for appeal or alternative recourse. For instance, as noted in the Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1960 (Honduras v. Nicaragua) of 1960 (pp. 25-26), the Treaty of Gamez-Bonilla contemplated that the arbitral decision “shall be held as a perfect binding and perpetual treaty between the High Contracting Parties, and shall not be subject to appeal.” In 1920, the creation of the first permanent international court, the Permanent Court of International Justice (“PCIJ”), marked the introduction of a provision allowing for the revision of inter-state judgments. Under Article 61 of the PCIJ Statute, a judgment could be subjected to revision upon the discovery of a new fact of such nature as to be a decisive factor which, at the time of the judgment, was unknown to the PCIJ and the applicant, provided that such ignorance could not be attributed to negligence. Following the end of the Second World War, the establishment of the International Court of Justice (“ICJ”) featured the inclusion of a nearly identical provision for revision in Article 61 of the ICJ Statute.

The notion of revision was subsequently introduced in investment arbitration. The creation of the International Center for Settlement of Investment Disputes (“ICSID”) in 1966 featured a comparable recourse allowing for revision of investment awards, as articulated in Article 51(1) of the ICSID Convention.

Essentially, under all the provisions referenced, revision requests encompass four essential requirements: (i) the discovery of a new fact; (ii) that the new fact is of a decisive nature; (iii) that the new fact was unknown to both the adjudicating body and the applicant at the time of the decision; and (iv) that such lack of knowledge is not attributable to negligence.

Revision of Judgments by the PCIJ and the ICJ: An Infrequent Exercise

During its entire mandate, the PCIJ never encountered a request for revision. The ICJ, in turn, entertained applications for the revision of its judgments on only three occasions: the Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) in 1985; the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) in 2003; and the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras – Nicaragua Intervening), also in 2003.

While revision requests under Article 61 of the ICJ Statute have been an infrequent exercise, the ICJ has shed some light on the requirements for the revision of judgments. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (¶ 17) as well as in Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras – Nicaragua Intervening) (¶ 20), the ICJ stated that the requirements of this clause are cumulative, so that if any one of them is not properly met, the application must be dismissed.

As to the requirement of discovery of a new fact, the ICJ has stated in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (¶ 67) that, under Article 61 of the ICJ Statute, a fact must have been in existence at the time of the judgment and discovered thereafter. According to the ICJ, this reasoning emerges from the wording of the provision, which refers to a request being ‘based upon the discovery’ of a fact which was unknown ‘when the judgment was given’ (¶ 67). The ICJ has also pronounced that a circumstance arising several years after a judgment has been issued does not qualify as a ‘new fact’ under this clause, regardless of the potential legal implications associated with such fact (¶ 67).

Regarding the requirement of decisiveness, the ICJ deliberated on the impact of alleged new facts on its reasoning in the Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) (¶ 39). The ICJ concluded that, for a revision application to be admissible, it is not sufficient that the new fact, if known at the time of the judgment, could have led to a more specific or peculiar decision: it must also be a ‘fact of such a nature as to be a decisive factor’ (¶ 39). This suggests that the ICJ was alluding to a fact with the capacity to alter the outcome of the decision.

With regards to the requirement that the lack of knowledge of a new fact not be attributable to negligence, in the Case Concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) (¶ 23), the ICJ examined whether the circumstances allowed the applicant to acquire knowledge of the fact through sources other than the proceeding itself, and whether it was in the applicant’s interest to be informed of such a fact. The ruling held that the applicant had accessible means to become aware of the alleged new facts, and it was within its interest to do so. The ICJ concluded that the negligence requirement was, thus, not met (¶ 28).

Ultimately, the ICJ dismissed all three applications brought before it, underscoring the exceptional nature of revision proceedings under Article 61 of the ICJ Statute.

On the Other Side, an Abundance of Revision Requests in ICSID Arbitration

The PCIJ convened its inaugural sitting in 1922, with its mandate subsequently inherited by the ICJ. It is notable that over a century, states have sought the revision of judgments on only three occasions.

In the ICSID arena, conversely, a minimum of twelve requests for revision were submitted between 2021 and 2023: Rockhopper v. Italy; Cavalum v. Spain (in two instances); Infracapital v. Spain (in two instances); Landesbank v. Spain (in two instances); Kruck v. Spain (in three instances); and Sevilla Beheer v. Spain (in two instances).

The history of international law has never witnessed an event of such dimensions. The driving force behind these requests initially stemmed from the petitions for arbitral tribunals to reassess their jurisdictional decisions in light of the judgment of the Court of Justice of the European Union (“CJEU”) in the 2021 Moldova v. Komstroy dispute. This judgment ruled in favor of the incompatibility of the Energy Charter Treaty’s investment arbitration clause and the law of the European Union.

Subsequently, further requests were presented before these tribunals, urging a reevaluation of their decisions considering two other judgments from Swedish domestic courts –a judgment of the Svea Court of Appeal on December 13, 2022 (¶ 48), and a judgment of the Swedish Supreme Court delivered on December 14, 2022 (¶ 60), both of which also affirmed the aforementioned incompatibility.

In these reconsideration proceedings, the corresponding arbitral tribunals assessed the four revision requirements already addressed by the ICJ in its three judgments, occasionally delving into areas that the ICJ is yet to explore. From the outset, the tribunals in Sevilla Beheer II (¶ 22), Kruck I (¶ 24), Cavalum I (¶ 71), Infracapital I (¶ 84), Infracapital II (¶ 33), and Landesbank I (¶ 34) considered that the review of a decision is a proceeding of exceptional nature.

In assessing the requirements of the ICSID Convention, several arbitral tribunals analyzed the discovery of a ‘new fact.’ In Kruck I (¶ 36) the tribunal expressed serious doubts as to whether new case law from the CJEU would be sufficient to grant reconsideration. In particular, the tribunal considered that the Moldova v. Komstroy judgment did not constitute a new fact. Similarly, the tribunal in Cavalum I (¶ 91) agreed that said judgment did not qualify as a new fact. On the other hand, the tribunal in Infracapital I (¶ 102) considered the Moldova v. Komstroy judgment to be, strictly speaking, a new fact because the judgment itself was not known to the tribunal at the time of the decision. This reasoning not only departed from those in Kruck I and Cavalum I but also from the ICJs understanding that a new fact must have been in existence at the time of the decision.

Concerning the criteria of decisiveness, the tribunal in Cavalum I (¶¶ 80-81) stated that it must be clearly demonstrated that the subsequent legal development not only undermines the tribunal’s legal conclusion, but also evidences that it was wholly wrong. If the new fact is case law, it must represent a conclusive legal authority that, had it existed at the time of the decision, would unequivocally have led to a different conclusion (¶¶ 80-81). The tribunal, following this rationale, ruled that the CJEU judgment was not decisive (¶ 94). Likewise, the tribunal in Landesbank I (¶¶ 55-56) found that none of its conclusions in the challenged decision would have been altered had it been aware of the Moldova v. Komstroy judgement.

Although these tribunals did not concur on every aspect of the substance concerning the ICSID Convention requirements for revision, they unanimously acknowledged the exceptional nature of the remedy and uniformly declined to reconsider their decisions in all cases.

In fact, several ICSID Tribunals, in particular the ones in Cavalum I (¶ 91), Infracapital I (¶ 102), Kruck I (¶ 36), and Landesbank I (¶ 50), considered that the requests for revision they were presented with dealt with arguments and matters already addressed and adjudicated. In the words of the tribunal in Landesbank I (¶ 50), ‘it is not open to a respondent which has unsuccessfully advanced a jurisdictional objection to have the decision on that objection reopened simply because it disagrees with the tribunal.’

Final Remarks

From the establishment of the PCIJ and the creation of the ICJ, to the arbitral proceedings under the ICSID rules, the procedural notion of revision has emerged as a limited recourse in inter-state and international investment disputes.

The provisions governing revision requests, characterized by the identification of a new fact, its decisive nature, its unawareness, and the absence of negligence leading to the lack of knowledge, underscores the exceptional nature of such proceedings.

Recent developments have made apparent that certain states aspire to revisit previously settled issues decided by investment tribunals, wishing to open a window of opportunity by requesting revisions under Article 51(1) of the ICSID Convention. This prospect raises some concerns, especially regarding instances where multiple requests for review on the same matter arise from different subsequent petitions.

Up to this point, this procedural avenue remains locked, as no international court or tribunal has revisited its decisions. The legal character of these proceedings is undeniably exceptional, and the cumulative nature of the requirements presents a formidable challenge for applicant states.

This state of the art, perhaps rightfully so, upholds the centenarian understanding that international decisions, judgements, and arbitral awards, are final and not subject to appeal.

 

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María Belén Paoletta is the Founding Partner of the International Law Research & Practice Consortium and Chief Legal Officer of Advocacy Initiative for Development. Belén is a distinguished legal consultant and policy advisor specialized in international and comparative law. She has collaborated with sovereign States, regional bodies, international organizations, and private stakeholders on aligning domestic legal frameworks with international standards, advising on international regulations, and fostering conflict prevention. Belén lectures on international law and related topics, is regularly invited to speak at international conferences and contributes to leading journals. She graduated summa cum laude from the University of Buenos Aires Law School and is among the top 1% of all graduates in the institution’s history. Thought her career, Belén has received multiple accolades for her scholarly and professional achievements.

Ivan Levy is an international lawyer with extensive experience advising sovereign States and corporate investors in arbitration proceedings across Europe, Latin America, and the Middle East under major arbitration rules. He has also represented human rights victims before the Inter-American Commission on Human Rights and clerked for leading arbitrators. Ivan has lectured on international law at renowned institutions such as Leiden Law School and the University of Buenos Aires. He actively participates in the international legal community, regularly speaking at conferences and publishing widely on international law topics. He was a Fulbright Scholar, earned his Law Degree from the University of Buenos Aires and an LL.M. from Columbia Law School, both with honors, and is admitted to practice in Buenos Aires and New York.