Venezuela US, S.R.L. (Barbados) v. Bolivarian Republic of Venezuela, PCA Case No. 2013-34

Case summary

At a glance

Parties: Venezuela US, S.R.L. (Barbados) v. the Bolivarian Republic of Venezuela
Case no.: PCA Case No. 2013-34; Hague Court of Appeal case no. 200.334.287/01 (ECLI:NL:GHDHA:2025:2281)
Forum and rules: Ad hoc arbitration under the UNCITRAL Arbitration Rules 1976, with the PCA as registry; seat The Hague
Treaty: Barbados–Venezuela BIT (signed 15 July 1994, in force 31 October 1995), with the Ecuador–Venezuela BIT relied on through the MFN clause
Tribunal: H.E. Judge Peter Tomka (Presiding), L. Yves Fortier, Marcelo Kohen (who replaced Gabriel Bottini after a successful challenge)
Court: Hague Court of Appeal (Gerechtshof Den Haag): H.J. van Kooten, M.E. Honée, A.J. Swelheim
Underlying award(s): Interim Award on Jurisdiction (26 July 2016); Partial Award on Jurisdiction and Liability (5 February 2021); Final Award on Quantum (4 November 2022)
Sector: Oil and gas; mixed company (empresa mixta) dividends
Outcome: Jurisdiction upheld by majority through the MFN clause. Venezuela was found liable for discriminatory impairment and ordered to pay damages, interest and most costs. The Hague Court of Appeal dismissed Venezuela's set-aside claim on 28 October 2025.
Amount: Claimed: USD 58,870,898.14, plus interest at Petroritupano's 11.83% cost of equity, compounded annually. Awarded: USD 58,870,898, plus pre-award interest of USD 46,624,436, plus post-award interest at twelve-month USD LIBOR + 4% compounded annually. Costs: Venezuela to pay EUR 615,056.47 (70% of the arbitration costs) and USD 3,215,534.99 (70% of the claimant's legal costs).

The dispute

Venezuela US, S.R.L. is a Barbados company. In 2006 its investment in Venezuelan oil production became an 18% minority stake in the mixed company Petroritupano S.A., which the State controlled through CVP and PDVSA. Petroritupano declared dividends for fiscal years 2008 and 2009. Petrobras, another foreign minority shareholder, was paid its dividends in May 2011, shortly before the Venezuelan President visited Brazil. The claimant was not paid. The claimant brought claims under Articles 2, 3 and 5 of the Barbados–Venezuela BIT for unfair and inequitable treatment, arbitrary and discriminatory impairment, breach of the umbrella clause and expropriation. Venezuela objected that it had never consented to UNCITRAL arbitration once it left the ICSID Convention, and that the conduct of PDVSA, CVP and Petroritupano was not attributable to it.

Key holdings

Article 8 of the BIT alone gives no jurisdiction. The UNCITRAL option in the second sentence of Article 8(2) is tied to the first sentence. It covers only the period before Venezuela joined the ICSID Convention, not the period after Venezuela denounced the Convention (with effect from 25 July 2012). Interim Award ¶¶ 83–89
Article 3(3) expressly applies MFN treatment to Article 8, so the MFN clause covers the conditions for access to arbitration. Only Article 3(2), on the treatment of investors, is relevant to this question. Article 8(4) contains a single, still-valid consent to international arbitration covering three fora (ICSID, Additional Facility, UNCITRAL). The MFN clause therefore does not import consent; it changes only the conditions for using a forum. Interim Award ¶¶ 100–112
Article IX(3) of the Ecuador–Venezuela BIT allows UNCITRAL arbitration whenever ICSID or the Additional Facility is unavailable for any reason, including denunciation of the ICSID Convention. That treatment is more favourable than Article 8(2). Barbadian investors may rely on it under Article 3(2). Venezuela's objection to jurisdiction ratione voluntatis was rejected by two votes to one. Interim Award ¶¶ 124–132
Marcelo Kohen dissented. In his view, Article 3(2) does not reach Article 8 because the right to arbitrate is not "treatment" "in its territory". Even if it did, an MFN clause creates at most an obligation to consent, not consent itself. He also found that UNCITRAL arbitration was never available under the BIT, because the ICSID Convention entered into force for Venezuela before the BIT did. Dissenting Opinion ¶¶ 16–21, 27–38, 41–45, 58
As recorded in the Final Award, the Partial Award (5 February 2021) unanimously upheld jurisdiction. It found that Venezuela breached Article 2(2) by instructing payment of the dividends to Petrobras but not to the claimant, and it rejected the other claims. On quantum, the Tribunal held that compliance would have meant paying the claimant at the same time as Petrobras. It ordered payment of USD 58,870,898, unless Petroritupano or CVP paid within two months. Final Award ¶¶ 4, 53–56, 107
Interest runs from 31 May 2011. The Tribunal rejected the cost of equity, the LIBOR + 10% rate in the Conversion Contract, the yield on Venezuelan sovereign debt and a risk-free rate. It adopted LIBOR + 4%, the rate in the Hydrocarbons Purchase and Sales Contract, compounded annually. Pre-award interest is USD 46,624,436, and the amounts awarded are free of Venezuelan tax. The claimant was the successful party, so Venezuela bears 70% of the arbitration costs and 70% of the claimant's legal costs. Kohen concurred on quantum by declaration. Final Award ¶¶ 80–86, 92, 95, 106
The Hague Court of Appeal reviewed jurisdiction without deference and held the set-aside claim admissible and timely. Like the Tribunal, it found no consent in Article 8(2) as such. It held that Article 3(3) expressly and unambiguously extends the MFN clause to Article 8. Through the Ecuador–Venezuela BIT, the claimant has access to UNCITRAL arbitration, which is not an importation of consent. The claim was dismissed and Venezuela was ordered to pay costs. Judgment, rov. 7.3–7.6, 8.12–8.29

Procedural history

22 March 2013Notice of Arbitration filed under the BIT and the UNCITRAL Rules; the claimant appoints L. Yves Fortier.
13 November 2013Peter Tomka appointed Presiding Arbitrator by agreement of the parties, joining Fortier and Venezuela's appointee Gabriel Bottini.
2 June 2014Appointing authority Jernej Sekolec rejects Venezuela's challenge to Fortier.
10 July 2014Hearing on jurisdiction ratione voluntatis at the Peace Palace, The Hague.
22 December 2015Sekolec sustains the claimant's challenge to Bottini; Venezuela appoints Marcelo Kohen on 18 January 2016.
26 July 2016Interim Award on Jurisdiction: Venezuela's objection rejected by majority, with Kohen's dissenting opinion.
5 February 2021Partial Award on Jurisdiction and Liability: unanimous finding of a breach of Article 2(2); other claims rejected.
4 November 2022Final Award on quantum: damages, compound interest and 70% of costs awarded to the claimant.
3 February 2023Venezuela seeks to set aside all three awards for lack of a valid arbitration agreement.
28 October 2025Hague Court of Appeal dismisses the set-aside claim.

Tribunal, counsel and experts

Decided by: Peter Tomka President — appointed by the parties jointly
L. Yves Fortier Co-arbitrator — appointed by the claimant (challenge rejected)
Marcelo G. Kohen Co-arbitrator — appointed by the respondent (replaced Gabriel Bottini on 18 January 2016; dissented on jurisdiction)
Gabriel Bottini Co-arbitrator — appointed by the respondent (challenge sustained on 22 December 2015; replaced by Marcelo Kohen)
H.J. van Kooten Judge, Hague Court of Appeal — appointed by a court
A.J. Swelheim Judge, Hague Court of Appeal — appointed by a court
For the claimant: King & Spalding LLP · Price Arbitration PLLC · Freshfields Bruckhaus Deringer · A.W.P. Marsman · M.L. de Vries Lentsch
For the respondent: Curtis, Mallet-Prevost, Colt & Mosle LLP · Guglielmino International Law · M. Malycha · M. Deckers
Experts: Brent C. Kaczmarek (claimant) · Fabián Bello (respondent)