THE AUTHOR:
Zeyad Abouellail, Senior Legal Officer at Jus Mundi
Arbitration Aftermath with Zeyad Abouellail and Esen Aydın: Your trusted source for the latest post-award developments in the dynamic world of investor-State and commercial arbitration. Back with a fresh perspective, Zeyad focuses on cases involving States, ministries, and public entities, while Esen handles disputes between private parties. From settlements and compliance with awards to recognition, enforcement procedures, annulment, and beyond. Each week, we bring you global insights and updates to navigate this ever-evolving landscape.
South32 v. Colombia (I)
South32 Seeks Enforcement of ICSID Award against Colombia in the US
ICSID Case No. ARB/20/9
Institution: ICSID (International Centre for Settlement of Investment Disputes)
Tribunal: Deva Villanúa (President), Guido Santiago Tawil (Appointed by the claimant), Andrés Jana Linetzky (Appointed by the State)
On 4 March 2025, South32 SA Investments (“South32”) petitioned the US District Court for the District of Columbia to recognise and enforce an ICSID arbitration award against Colombia.
South32, a UK subsidiary of Australia’s South32 Limited, initiated arbitration proceedings against Colombia in March 2020 under the UK-Colombia BIT. The dispute arose from a series of retroactive royalties imposed by Colombia on Cerro Matoso S.A. (“CMSA“), a subsidiary of South32. CMSA holds the rights to exploit a nickel mine in northern Colombia. South32 argued that these measures were in breach of Colombia’s obligation to provide fair and equitable treatment (“FET”) under the BIT.
In a June 2024 Award, the tribunal upheld jurisdiction and found that eight of the nine challenged measures violated the BIT’s FET standard. The tribunal awarded South32 USD 4.5 million in historical damages, plus interest. It also ordered Colombia to compensate the investor for all future damages resulting from the continued enforcement of the measures. The tribunal further awarded South32 arbitration costs of over USD 5 million.
According to South32, Colombia has made a partial payment of USD 629,367, and no future damages have been incurred.
Gold Reserve v. Venezuela (I)
Lisbon Court of Appeal Recognises USD 1.1 Billion Award Against Venezuela
ICSID Case No. ARB(AF)/09/1
Institution: ICSID (International Centre for Settlement of Investment Disputes)
Tribunal: Piero Bernardini (President), David A.R. Williams (Appointed by the claimant), Pierre-Marie Dupuy (Appointed by the State)
Seat of arbitration: Paris, France
On 20 February 2025, the Lisbon Court of Appeal granted Gold Reserve’s application for recognition of a 2014 ICSID Additional Facility Award against Venezuela and entered judgment for more than USD 1.1 billion. The award, originally valued at around USD 713 million plus costs, has accrued significant post-award interest, bringing its current value to over USD 1.1 billion.
Background
Canada-based Gold Reserve had invested in a series of mining concessions in Venezuela. In 2009, after Venezuelan authorities terminated the concessions, Gold Reserve initiated arbitration proceedings, seeking compensation under the Canada-Venezuela BIT.
In September 2014, the arbitral tribunal found that Venezuela had breached its obligation of fair and equitable treatment under the BIT and awarded Gold Reserve USD 713 million plus pre- and post-award interest and costs.
In 2016, the parties entered into a settlement agreement under which Venezuela agreed to pay Gold Reserve a total of around USD 1.032 billion, including USD 792 million to satisfy the ICSID award and USD 240 million for the sale of the company’s technical mining data. However, Venezuela has paid only USD 254 million to Gold Reserve.
In 2017, the Paris Court of Appeal dismissed Venezuela’s attempt to set aside the award.
In 2024, Gold Reserve initiated proceedings before the Lisbon Court of Appeal (“Court”) to have the award recognised in Portugal, where more than USD 1.4 billion worth of Venezuelan assets are reportedly held in Portuguese banks.
Venezuela argued that, under principles of state sovereignty, it was immune from the jurisdiction of Portuguese courts and that recognition of the award would be contrary to public policy.
Lisbon Court of Appeal Dismisses Venezuela’s jurisdictional immunity and public policy defences
Gold Reserve has published a machine translation of the Portuguese judgment in a press release.
In the judgment, the Lisbon Court of Appeal (“the Court“) found that Venezuela had been duly notified and that no procedural irregularities warranted refusal to recognise the award. The Court emphasised that Venezuela’s consent to arbitration under the BIT, together with its express acknowledgements in the Settlement Agreement, constituted a binding waiver of any immunity defence in recognition proceedings. The Tribunal explained that issues of immunity from execution may interfere, but not at the recognition stage.
The Court rejected Venezuela’s argument that enforcing the award would be contrary to Portuguese public policy. It emphasised that an international award must be respected unless a recognised fundamental principle of the Portuguese legal system is clearly infringed. The Court explained that the arbitral tribunal applied principles similar to those of the Portuguese legal system, such as the promotion and protection of investments, private autonomy, and rules on the calculation of compensation.
Updates in the US and Canada
Gold Reserve is pursuing enforcement in the US, principally through litigation in the District of Delaware, where the shares of PDV Holdings, the indirect parent of CITGO Petroleum, are subject to a court-supervised sale process.
In Canada, Gold Reserve said in a press release last November that the Canada Revenue Agency intends to tax the proceeds of the arbitration award. In January, Gold Reserve stated that it strongly contested all proposed adjustments.
Global Voice Group v. ARPT and Guinea
US Court Rejects Enforcement of USD 21 Million ICC Award Against Guinea
ICC Case No. 22467/DDA
Institution: ICC (International Chamber of Commerce)
Tribunal: Sophie Nappert (President), Charles Jarrosson (Appointed by the claimant), Carmen Núñez-Lagos (Appointed by the institution)
Seat of arbitration: Paris, France
On 18 February 2025, the United States District Court for the District of Columbia granted the Republic of Guinea’s motion to set aside an entry of default and dismissed Global Voice Group’s (“GVG“) application to enforce an ICC Award against Guinea, holding that the court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”).
Background
In May 2009, GVG and the Guinean Postal and Telecommunications Regulatory Authority (“ARPT“) signed an agreement for the installation of tools to enable Guinea to measure and tax incoming international calls. The Director General of the ARPT and the representative of GVG were explicitly listed as “the Parties”. The contract had a third signature – that of Guinea’s Minister of Telecommunications and New Information Technologies – as a supervisory authority.
Amid disputes over unpaid fees, GVG initiated the arbitration in late 2016, naming both ARPT and Guinea (“the respondents”) as respondents. Though ARPT and Guinea participated, Guinea challenged the tribunal’s jurisdiction over it, contending that it was not a party to the arbitration agreement. In 2019, the tribunal ruled it had jurisdiction and jointly and severally ordered ARPT and Guinea to pay GVG more than USD 21 million in damages, plus interests and costs.
In 2020, the respondents sought to set aside the award before the Paris Court of Appeal. The respondents contested the tribunal’s jurisdiction over Guinea. However, in 2021, the Paris Court confirmed the tribunal’s finding that Guinea was bound by the arbitration agreement and dismissed the set-aside request. In 2024, the French Court of Cassation upheld the Court of Appeal’s judgment.
In mid-2022, GVG moved to enforce the arbitral award and related French judgment solely against Guinea in the US District of Columbia. Service was made in October 2022, but Guinea missed the response deadline, prompting GVG to seek entry of default. Shortly thereafter, Guinea entered an appearance, requested that the Clerk’s default be set aside, and moved to dismiss for lack of subject-matter jurisdiction under the FSIA.
US District Court for the District of Columbia Sets Aside Default and Dismisses Enforcement Action
On Guinea’s motion to set aside the default order, the US District Court (“Court”) found that the State had shown good cause for its delay in responding to GVG’s complaint. The Court noted that Guinea’s counsel had only been retained the day before Guinea’s response was due and had to reassess its strategy. The Court stated that it must also resolve any doubts in favour of the applicant. This, combined with the Court’s “strong presumption against default judgment against a foreign sovereign”, led it to conclude that setting aside the default would “serve the interests of justice“.
On the question of deference to the arbitral tribunal on the issue of arbitrability, the Court explained that under the FSIA, in the context of enforcing awards against foreign states, it must assess de novo whether Guinea was a party to the arbitration agreement and find clear and unmistakable evidence that Guinea agreed to delegate the arbitrability question to the arbitral tribunal.
The Court observed that the Partnership Agreement only identified GVG and the regulator as parties, not Guinea. It stated that GVG did not provide any rationale for how the signature of the Guinean Minister could make Guinea a party to the Partnership Agreement, given that Guinea was not listed as a party.
The Court also determined that Guinea’s benefits from or involvement in the Partnership Agreement were insufficient to classify it as a party to the Agreement. Additionally, it noted that Guinea had challenged the tribunal’s jurisdiction both in arbitration and before the French courts. There was no clear and unmistakable evidence that the parties had agreed to submit the question of arbitrability to the tribunal. Therefore, the Court concluded that the arbitration exception under the FSIA did not apply.
The Court rejected GVG’s argument that Guinea had implicitly waived its sovereign immunity simply by being a party to the New York Convention. The Court explained that the D.C. Circuit “never held in a published decision that a foreign state waives its sovereign immunity from suits seeking to enforce awards under the New York Convention (or similar conventions) solely by ratifying that convention” and has “recently and repeatedly declined to ‘formally adopt’ that rule”.
The Court dismissed GVG’s motions for default or summary judgments as moot. It also denied Guinea’s motion for sanctions against GVG’s counsel, finding that Guinea’s motion did not meet the “extremely high” bar required for sanctions.
ABOUT THE AUTHOR
Zeyad Abouellail is a Senior Legal Officer at Jus Mundi and a PhD candidate & teaching assistant at Paris-Saclay University. His doctoral research focuses on the post-award phase in investment arbitration, alongside his teaching responsibilities in civil and contract law. Zeyad regularly speaks on the intersection of Artificial Intelligence and law. He holds Master’s Degrees in International Business Law from both Paris-Saclay University and Paris 1 Panthéon-Sorbonne University. Before joining Jus Mundi, Zeyad interned at several law firms in international arbitration and corporate law in Cairo, Egypt.
