Considerations of the Tribunal. 13. The Tribunal recalls that the issue of the bankruptcy of Xx. Xxxxxx was presented to the Tribunal on 26 March 2019, shortly before the oral hearing on jurisdiction and the merits. The Tribunal further recalls that such issue was known or should have been known by Xx. Xxxxxx and the Claimant long before the hearing and very early in this arbitration.
Considerations of the Tribunal. 13. It is undisputed that Xx. Xxxxxx has withdrawn as a co-claimant in this arbitration, as first made known to the Tribunal by Claimants’ counsel letter dated 26 March 2019 and reiterated further in the various communications mentioned in the preceding paragraphs. It is also undisputed that Xx. Xxxxxx has undertaken the payment of any adverse cost award in its entirety as reflected in Claimants’ counsel letter dated 29 March 2019.
Considerations of the Tribunal. 5. From the Parties’ submissions, the Tribunal understands that the Parties basically agree that:
Considerations of the Tribunal. 79. The Preliminary Issue for the Tribunal to decide is discrete and specific: whether on the date on which the Claimant initiated these arbitration proceedings an alternative procedure was “available” under the ICSID Additional Facility, within the meaning of Article XII(4) of the Treaty. If the Tribunal finds that such option was available to the Claimant then the Tribunal would not be entitled to exercise jurisdiction and the Claimant would have to be redirected to the proper forum. If, however, the Tribunal was to conclude that no alternative procedure was available under the ICSID Additional Facility, then this Tribunal could exercise jurisdiction under Article XII(4), subject to any other jurisdictional objections that might arise.
