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In other words, the appeals body issues a decision based on a substantive evaluation of the
original judgment. Under ICSID, in contrast, the only remedies available to a dissatisfied
disputant are those outlined in the Convention. 71 While these remedies include annulment,
the unambiguous exclusion of the possibility of appeal precludes substantive review.
However, substantive review for the purpose of appeal is exactly what the claimant is
requesting here, when it argues that the annulment committee has the power to decide
whether a transaction qualifies as an investment. 72 This kind of request simply was not
accommodated by the drafters or by the actual text of the Convention. As Schreuer has
noted, annulment is not a remedy for alleged mistakes of fact or law. 73
45. What is more, the few decisions that have crossed this line have been widely
criticized. 74 These include Klöckner I, Amco I, and Mitchell. In Klöckner I and Amco I,
annulment committees issued awards based on perceived deficiencies in the substantive
analysis of the original tribunals. The annulment committee in Klöckner I found a manifest
excess of power based on the tribunal’s failure to adequately illustrate the existence of the
legal principle underlying its denial of the claim. 75 Similarly, the annulment committee in
Amco I found a manifest excess of power based on the tribunal’s failure to fully apply the
relevant law. 76 As the history of these cases suggests, annulment committees that cross the
line and stray into appeals when they revisit the merits of disputes are heavily
criticized. Instead, annulment committees should be concerned exclusively with “looking
into the process of decision.” 77
46. In this case, the Tribunal’s Award begins directly with consideration of the
jurisdiction of the Convention. 78 Under Article 41(2) of the ICSID Convention, this is an
element for a tribunal’s consideration when it is determining its jurisdiction. 79 The
Tribunal drew authority from cases and from accepted commentary on the Convention’s
71
ICSID Art. 53(1).
72
UF, 4:205-208.
73
See, Schreuer (2009), p. 902.
74
Schreuer (2009), p. 903.
75
Klöckner I.
76
Amco I.
77
Schreuer (2009), p. 903, quoting Lucchetti, para. 97.
78 Award:13, 626 et seq.
79 ICSID Art. 41(2).
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