The Inherent Power of Reconsideration in Recent ICSID Case Law

Abstract

The present article deals with the issue of the power of reconsideration of ICSID tribunals. In 2014, the majority in ConocoPhillips v. Venezuela rejected Respondent’s Request for Reconsideration, ruling that an interim decision had res judicata effect. However, in a powerful dissent in that case, Professor Abi-Saab argued that the tribunal in fact possessed an inherent power of reconsideration. The following year, the ICSID tribunal in Perenco v. Ecuador unanimously endorsed the reasoning of the majority in ConocoPhillips. While judicial economy is potentially undermined if interim decisions can later be revisited, the question is how to strike the proper balance between judicial efficiency and fundamental fairness. As this article shows, the most sensible position, recently taken by the ICSID tribunal in SCB HK v. TANESCO – and one that still promotes judicial economy – is to recognize a limited power of reconsideration during the period until a final judgment has been rendered.