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accordance with the Contract (the “FIDIC Tribunal”) issued its Final Award on 30
September 2003 (the “Final Award”), exonerating the Claimant from any liability for the
collapse and dismissing all of APC’s claims. It upheld, in part, the Claimant’s
counterclaim and awarded compensation to the Claimant.
The Tribunal notes that the
Final Award was a majority Award and that it was accompanied by a dissenting opinion,
also dated 30 September 2003.
34.
At this juncture, the Tribunal notes that it is common ground between the parties
that when the Contract was concluded in 1998, the Government of Jordan held a majority
interest in APC. On 16 October 2003, Jordan sold nearly one-half of its 52.883% interest
in APC to a Canadian company.
35.
On 29 October 2003, APC applied to the Jordanian
Court of Appeal to have the
Final Award annulled under the Jordanian Arbitration Law. As described in more detail
below, the Jordanian Court of Appeal decided to annul the Final Award and to extinguish
the arbitration agreement between the Claimant and APC.
36.
As also described in more detail later in this Award, the Claimant appealed to the
Jordanian
Court of Cassation, which upheld the Court of Appeal’s judgment on 16
January 2007.
37.
It is against this background that the Claimant instituted the present ICSID
proceeding alleging that the Respondent has acted in violation of the BIT which, although
entered into on 2 August 1993, only came into force in Jordan on 23 January 2006. The
alleged violations of the Treaty include the unlawful expropriation of the Claimant’s
claims to money and rights to legitimate performance under the Contract and
the Final
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Award, as well as the failure to accord fair and equitable treatment to its investment,
inter
alia by way of serious and repeated denials of justice by the Jordanian courts.
