Short Update on the ICSID Proceedings and the Ongoing Arbitration Process Between African Petroleum and the Gambia

African Petroleum Corporation Limited (APCL) have lodged Requests for Arbitration (“RFA”) documents with the International Centre for the Settlement of Investment Disputes (“ICSID”) in order to protect its interests in the A1 and A4 licences in The Gambia, and that these RFAs have been registered and allocated case numbers by ICSID (ICSID Case No. ARB/17/38, ARB/17/39 and ARB/17/40). https://icsid.worldbank.org/en/Pages/cases/searchcases.aspx

Date of case registration

Date of registration was October 17, 2017. Hence, six weeks (48 days to be exact) has passed since the cases were registered.

Initial Proceedings: Preparation and registration at the ICSID

Remember from my previous article (https://robertveritas.wordpress.com/2017/09/08/icsid-proceedings-explained-and-analyzed/) on the ICSID Proceedings the following:

As soon as a party (in this case, African Petroleum) has filed a request for arbitration with the prescribed lodging fee, ICSID sends the request to the other party and reviews the request to determine whether it can be registered.

The Secretary-General of ICSID must determine whether the dispute is manifestly outside the jurisdiction of the Centre as soon as possible after the filing of the request for arbitration. This determination is made on the basis of the information contained in the request.

If one of the requirements in Article 25 of the ICSID Convention is manifestly lacking, the Secretary-General must refuse to register the request. Otherwise the dispute must be registered and the Tribunal can address objections.

The screening process takes on average three weeks, depending on whether ICSID needs clarifications, additional information or documentation from the requesting party.

Conclusions

Please note that the following is pure speculation on my part. Six weeks has now passed since the registration (fact).The cases have clearly been registered at ISCID. So my conslusion from this is that jurisdiction of the ICSID is established. This is the fundamental first step and without it it is not possible to go forward.

Step 1 – Number of Arbitrators and Method of Their Appointment

Parties should agree on the number of arbitrators on a Tribunal and the method of their appointment. If they cannot agree, ICSID’s default mechanism will apply.

The images below visualize the proceedings

3.1.3-Chart-Number-of-Arbitrators-and-Method-of-Their-Appointment-LP

To Agree or Not to Agree

3.1.3-Chart2-Number-of-Arbitrators-and-Method-of-Their-Appointment-LP

Proceedings if disagreement regarding Arbitrators

What are the Time Limits Stipulated by the ISCID Involved In These Initial Proceedings?

The date of registration triggers time limits (Of course, the parties are encouraged to inform ICSID of any agreement as to the number of arbitrators and the method of their appointment and to constitute a Tribunal as soon as possible).

60 days

The time limit concerning the method to constitute the Tribunal is 60 days from the date of registration.

90 days

The time limit to appoint the members of a Tribunal is 90 days.

Conclusion

Today (December 4, 2017) 48 days has passed since the date of registration. Hence, we should expect an update on the method to constitute the Tribunal within 12 days.

We should also expect an update regarding the appointment of the members of the Tribunal within 42 days.

That is only valid of course, if African Petroleum and the Gambia does not agree on a settlement of the dispute along the way.

Further reading on possible outcomes and statistics is presented in this article

https://robertveritas.wordpress.com/2017/09/28/icsid-statistics-african-states-apcl/

At the moment, this article is only avaliable in Swedish. However, there is an option to use Google Translate in the page.

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