In Continental Casualty Company v The Argentine Republic (ICSID Case No ARB/03/9) (Annulment Proceeding), both Argentina and Continental Casualty Company (Continental) were seeking annulment of portions of the award rendered against Argentina on 5 September 2008. The ad hoc committee (the Committee) hearing both applications (Dr Gavan Griffith QC (president), Judge Bola Ajibola, and Christer Söderland) considered preliminary applications by both Continental and Argentina and issued two procedural decisions on 23 October 2009. The first concerned the timing of Argentina's application; the second addressed Argentina's request for a stay of enforcement of the award.

Continental objected that Argentina's application was outside the jurisdiction of the Committee, because it was not made within the 120-day time limit stipulated in Article 52(2) of the ICSID Convention. Argentina argued that it filed its application for annulment in time, because the date of its application, while not within 120 days of the original issuance of the award, was within 120 days of the tribunal's subsequent decision on rectification of the award. Article 49(2) allows a tribunal to issue a decision on rectification, and provides that: "[the period] of time provided under … paragraph (2) of Article 52 shall run from the date on which the decision was rendered".

Continental argued that Article 49(2) extends the time limit for an annulment application only where the application relates to determinations made in the rectification decision. On this theory, Argentina's application for annulment was out of time, because it related entirely to determinations in the original award that were not subject to rectification.

In its first decision of 23 October 2009, the Committee rejected Continental's objection. Applying the customary rules of treaty interpretation as reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, the Committee considered the plain meaning of Article 49(2) of the ICSID Convention to be abundantly clear; namely, that where a rectification decision is given under Article 49(2), the period of time provided under Article 52(2) runs from the date of the rectification decision, not the date of the original award. The Committee concluded that Article 49(2) does not establish separate time limits for annulment applications depending on whether the application relates to the original award or to the rectification decision.

Argentina's application was for a stay of enforcement of the award pending the outcome of the annulment proceedings. Continental objected to Argentina's request for a stay, hoping to enforce the portion of the award that it is not seeking to annul, that is, US$2.8 million in damages for breach of the fair and equitable treatment obligation in the US-Argentina bilateral investment treaty. Alternatively, Continental asked that Argentina be required to post some form of security in light of Argentina's failure to comply with other ICSID arbitral awards.

In its second decision of 23 October 2009, the Committee granted Argentina's request for a stay of the enforcement of the award, without imposing any condition of security. The Committee did so despite its assessment that Argentina would likely refuse to comply with its obligations under the ICSID Convention. Argentina had continued to insist that Continental would have to follow the formalities in Argentine courts applicable to enforcement of final judgments before Argentina would comply with the award, a position that this Committee, like several others before it, found to be inconsistent with Argentina's obligations of direct and immediate compliance with an award under the ICSID Convention. (Article 53 of the Convention requires "each party to abide by and comply with the terms of the award".)

Despite this, the Committee found that two distinguishing features of the present case weighed in favour of granting a stay without requiring any security. First, the Committee gave particular weight to the fact that both Continental and Argentina had made applications for annulment of the award, noting that it would not be appropriate for an award to be enforced in circumstances where neither party considered the award to be final. Second, the Committee found it relevant that the US$2.8 million award at issue was small by comparison with other ICSID awards and only a fraction of the US$46 million claimed by Continental, the bulk of which was still in dispute, given Continental's own application for annulment. The Committee therefore decided that practical considerations permitted a stay without any condition of security.

Case: Continental Casualty Company v The Argentine Republic (ICSID Case No ARB/03/9) (Annulment Proceeding) (Decision on Preliminary Objection to Application for Annulment, 23 October 2009 and Decision on Stay of Enforcement of Award, 23 October 2009).