Two Nebulous ICSID Features: The Notion of Investment and the Scope of Annulment Control - Ad Hoc Committee's Decision in Patrick Mitchell v. Democratic Republic of Congo
![handle is hein.kluwer/jia0024 and id is 295 raw text is: Journal of International Arbitration 24(3): 287-306, 2007.
© 2007 Kluwver Last International. Printed it The Netherlands.
Two Nebulous ICSID Features: The Notion of
Investment and the Scope of Annulment Control
Ad Hoc Committee' Decision in Patrick Mitchell v. Democratic
Republic of Congo
Walid BEN HAMJDA*
More than forty years after the conclusion of the Convention on the Settlement of Investments Disputes
between States and Nationals of Other States, a number of nles concerning the jurisdiction of ICSID tribunals
and the nature of ICSID's internal annulment mechanism control remnain controversial. The Patrick Mitchell
v. Democratic Republic of Congo ad hoc committee decision addressed two much-debated ICSID arbitration
issues:first, the definition of investment under the Convention; and second, the scope of the review to be carried
out by ICSID ad hoc committees.
Mr. Patrick Mitchell, a U.S. national, operated a law firm in the Democratic
Republic of Congo (DRC). He claimed that his business had been expropriated during
a military operation and instituted arbitration proceedings at the International Centre for
Settlement of Investment Disputes (ICSID, or the Centre) against the DRC pursuant
to the 1984 bilateral investment treaty between the United States and Zaire, the present-
day DRC (the United States-DRC BIT).
In an award dated February 9, 2004, the ICSID tribunal' decided that the dispute
came within the jurisdiction of the Centre. The tribunal held that Mr. Mitchell had made
an investment within the meanings of the United States-DRC BIT and the Convention
on the Settlement of Investments Disputes between States and Nationals of Other States
(ICSID Convention or the Convention).2 With respect to the merits, the tribunal
examined the question of the alleged expropriation under the United States-DRC BIT
and admitted the claim. In an award by a majority, the DRC was ordered to pay com-
pensation of U.S.$ 750,000, plus interest.3
On June 7, 2004, the DRC made an application seeking annulment of this award
pursuant to Article 52 of the Convention based on two grounds: the manifest excess of
powers with regard to the arbitral tribunal's jurisdiction concerning the definition of
investment and the law applicable to the dispute; and failure to state the reasons for the
* Maitre de Conferences, University of EvryVal-d'Essonne and Sciences Po, Paris, France. The author may be
contacted at walidbenhanida@gmail.com.
' The tribunal consisted ofAndreas Bucher (Swiss) (President),Yawovi Agboyibo (Togolese) and Marc Lalonde
(Canadian). Mr. Lalonde was appointed following the death of Mr. Willard Z. Estey.
2 Convention on the Settlement of Investments Disputes between States and Nationals of Other States, March
18, 1965,T.I.A.S. 6090, 575 U.N.T.S.159, 4 I.L.M. 532 (1966) [hereinafter ICSID Convention].
Unpublished award. One arbitrator submitted a dissenting opinion.
Copyright 2007 by Kluwer Law International. All rights reserved
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Two Nebulous ICSID Features: The Notion of Investment and the Scope of Annulment Control - Ad Hoc Committee's Decision in Patrick Mitchell v. Democratic Republic of Congo
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