The new version of this Article clarifies that the ICSID Arbitral Tribunal ruling on the ABCI vs Tunisia ICSID case held that Tunisia was liable but did not grant the claimant any financial compensation until now. The partial award made on 18 July 2017 ruled only on the principle of the liability of Tunisia as a host country of a foreign investment. It is in the final award, which shall be made, most likely by 2019-2020, that the Tribunal will fix the amounts to pay by Tunisia.
The following elemnts will be vaild once the final award will be rendered:
It is especially to underline that despite the limited chance of winning an request for the annulment of an arbitration award (a rule to which ICSID arbitration does not escape), the Tunisian authorities are called upon to formulate a request for the setting aside of the ICSID ABCI award before an ICSID ad hoc committee within 120 days of the dispatch of the arbitral award (Art. 52 of the Washington Convention of 18 March 1965). It is particularly to be noted that:
– The annulment deadline runs from the date of the dispatching of the arbitral award by the ICSID secretariat. The notification by bailiff is not required.
– The French Court of Justice of the Republic (Cour de Justice de la République) held, in the Lagarde case, that if it is admitted that the choice of arbitration is not in itself contrary to the principles of good governance (a fortiori the choice of ICSID arbitration. In the present case, Tunisia has contested the existence of a consent to arbitration from its part), the fact not to formulate recourse against the arbitral award condemning the State, whatever limited the chances of success of the appeal are, constitutes a criminal fault. It is to remind to this effect that Christine Lagarde, Minister for the Economy at the time where the Tapie award was rendered and current Director General of the IMF, has decided not to introduce a request for annulment, on the basis of legal opinion of several eminent jurists who have asserted that the appeal has very little chance to prosper. Despite, Lagarde has been condemned by the Court of Justice of the Republic for “neglect”, by virtue of the Constitutional Law No. 93-952 of 27 July 1993, establishing the said court.
Unless a fair arrangement is reached with the claimant, Tunisia must therefore request the annulment of the ICSID arbitral award, which will be rendered in ABCI Investments Limited v. The Republic of Tunisia (ICSID Case No. ARB/04/12). It is certain, right now, that Tunisia will be condemned to pay compensation. all the question is about the amount to be granted to ABCI.
