What's next?18 Apr 2023 00:35
We may see an OM announcement any time, could be tomorrow. Any speculation will soon be out of date so this post might have very little shelf life. Inevitably the outcome will reflect legal arguments but will still have to be chosen from the practical possibilities. So to organise some thoughts, and for now not pursuing further the no change/stay remains alternative, I'd suggest three possibilities -
In principle one option is for ICSID to lift the stay on the basis that anything rkh collects goes into escrow. This would be to follow RoI's submission that "because" rkh is a small company they should not be allowed to retain the funds, whether to invest in SL or whatever mumbo jumbo RoI offered.
Whilst lifting the stay would be a big win, this course would assist RoI's bullying approach of seeking advantage from their state level size versus rkh's smaller company position. RoI are nothing if not consistent having targeted bankrupting rkh for years. To withold access to funds because the appellant is small would be the polar opposite of ICSID's purpose, which is to level the playing field for corporates facing otherwise unaccountable, powerful and often corrupt governments. Funds would be spent on recovery without being able to access the proceeds. RoI would be playing the same game they have for years, as if they never lost the case.
Whilst lifting the stay would be a landmark moment, any funds collected would be accessed in 2024 all being well, and selling (a part of) the award would be both hugely assisted and better priced, I nevertheless still see this as the least favourable and most unlikely outcome. I may be wrong, but ICSID is simply not in the business of enabling states to throw their weight around.
Perhaps most obviously ICSID could lift the stay with no strings. This is quite a natural thing for ICSID to do and simply replicates the normal position where a defendant has lost a case, exhausted any appeal process (albeit there are no appeal routes in ICSID arbitration) and is seeking some sort of after-the-event judicial review. That pretty much describes where we are. A huge win for rkh if that's the way it goes.
The other option is to keep the stay on the basis that RoI put the whole award into escrow. To my mind, though the stay would remain, this would be even better than lifting the stay. No hassle, rkh assured of the whole award all being well in 2024 and no cost of collection! Is this the most likely outcome? Would it finally draw the teeth of RoI's ability to bully? And if so would it really be that good?
The risk must be that RoI might see it in much the same way and would not comply, but then whatever happens next would be their own doing. If RoI renège on the arbitration they have to expect the stay would be lifted!!!
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