In an ICSID decision dated 13 November 2017, the Fábrica tribunal took an approach on the interpretation of consent
under Article 72 of the ICSID Convention contrary to other ICSID tribunals
before it. The tribunal found that it lacked jurisdiction in the case despite
the Claimants filing the application before Venezuela’s denunciation of the
ICSID Convention was to take effect. The tribunal held that the Claimants had
not satisfied the standard of consent and that consent under the ICSID
Convention is not unilateral but must be perfected to establish jurisdiction
under the Convention. Although other tribunals in contextually similar cases
have instead interpreted Article 71 of the ICSID Convention to assert their
jurisdiction, the tribunal in the present case differentiated between Articles
71 and 72 of the Convention to arrive at a contrary conclusion. The impact of
this decision is likely to be extensive, as a State party has essentially been
allowed to strategically withdraw from the ICSID Convention with immediate
effect and without due regard to the six-month notice period. The success of
the majority shareholders of the Claimant company in the parallel arbitration
precludes the suggestion of a denial of justice. However, the tribunal’s
decision on jurisdiction brings uncertainty to the formerly uncontested
significance of observing the given notice period before a denunciation of the
ICSID Convention can be effected.