Carnegie Minerals (Gambia) Limited v. Republic of The Gambia
ICSID · Investment (ICSID and treaty) · The Gambia · 7 Jul 2020
Why it matters
This decision clarifies the strict application of contractual time limits for appointing arbitrators under ICSID. It confirms that a party's failure to appoint within the agreed period allows the other party to request ICSID to appoint, and that delays in internal government processes do not excuse non-compliance. The case also highlights the limited scope of annulment under Article 52(1)(a) and the discretion of annulment committees to deny annulment even if a procedural defect existed, where the integrity of the award is not affected.
Summary
Carnegie Minerals (Gambia) Limited, a mining company, initiated ICSID arbitration against The Gambia under a Mining Licence that provided for ICSID arbitration. The tribunal, composed of three arbitrators, found The Gambia liable for wrongfully terminating the licence and awarded Carnegie approximately USD 22 million. The Gambia sought annulment under Article 52(1)(a) of the ICSID Convention, arguing that the tribunal was not properly constituted because ICSID appointed arbitrator Jean Kalicki after The Gambia allegedly had insufficient time to appoint its own arbitrator. The Mining Licence required each party to appoint an arbitrator within 45 days of a written request; if a party failed, the other could request ICSID to appoint. Carnegie requested The Gambia to appoint on November 2, 2009. The Gambia did not appoint. On December 28, 2009, ICSID informed The Gambia that Carnegie had requested ICSID to appoint, giving The Gambia until January 11, 2010 to object. The Gambia received the letter on January 8, 2010, but due to internal delays, it was not seen until January 11. The Gambia did not contact ICSID until January 20, by which time ICSID had already appointed Ms. Kalicki on January 12/13. The ad hoc Committee held that the tribunal was properly constituted. The Gambia had 45 days from November 2 to appoint; it failed to do so. The right to appoint ended when ICSID made the appointment. The Committee also noted that even if there had been a defect, it would have considered whether to exercise discretion not to annul, as the defect did not affect the integrity of the award. The annulment application was rejected, and the stay of enforcement lifted.
The detail
Parties: Carnegie Minerals (Gambia) Limited v. Republic of The Gambia
Case number: ICSID Case No. ARB/09/19
Outcome: The ad hoc Committee rejected The Gambia's application for annulment in its entirety, lifted the stay of enforcement, and ordered each party to bear its own costs and share the costs of the annulment process equally.
Applicable law: ICSID Convention, Mining Licence Clause 22
Issues in play: The Gambia argued that the tribunal was not properly constituted because ICSID appointed an arbitrator after The Gambia allegedly had insufficient time to appoint its own. The Committee interpreted Clause 22(4)(b) of the Mining Licence, finding that The Gambia lost its right to appoint by failing to do so within 45 days of the request.
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