Nationalizing the Hydrocarbon Industry in Venezuela: Venezuela Holdings, BV, Mobil Cerro Negro Holding, Ltd., Mobil Venezolana de Petroleos Holdings, Inc., Mobil Cerro Negro, Ltd., and Mobil Venezolana de Petroleos, Inc. v The Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Award, 9 October 2014 (Gilbert Guillaume, Gabrielle Kaufmann-Kohler, Ahmed Sadek El-Kosheri)

摘要

Investment treaty arbitration offers few awards on nationalizations. The Award in Mobilv Venezuela (Mobil) is one of them. Maybe because of this, it is a rather disappointing decision to read for those concerned with international investment law. The Claimants (Venezuela Holdings, Mobil Cerro Negro Holding, Mobil Venezolana de Petroleos Holdings, Mobil Cerro Negro and Mobil Venezolana de Petroleos) alleged violations of the provisions on expropriation, fair and equitable treatment (FET) and arbitrary or discriminatory measures of the 1991 Netherlands-Venezuela bilateral investment treaty (the BIT). In the Award, the Tribunal did not elaborate on the rich case law available on expropriation and FET. Instead, the Tribunal simply repeated some of the criteria already put forward by other international investment tribunals on these issues, scarcely citing any of their awards. The Tribunal focused primarily on the quantum of the nationalized investments, a topic that is generally best suited for accountants rather than lawyers. The facts of the dispute partly explain this situation. They also provide a rare opportunity to remind us how nationalizations work.