Enel Fortuna S.A. v. Republic of Panama

Case summary

At a glance

Parties: Enel Fortuna S.A. (Panama; stated to be controlled by Enel S.p.A. and Enel Green Power S.p.A. of Italy) v. Republic of Panama
Case no.: ICSID Case No. ARB/19/5
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules
Treaty: Panama–Italy BIT (in force 4 October 2010), Article IX
Tribunal: Prof. Juan Fernández-Armesto (President), Dr. Francisco González de Cossío, Dr. Gavan Griffith QC
Outcome: The parties settled. The Tribunal unanimously recorded their Settlement Agreement as an award under ICSID Arbitration Rule 43(2) (dispatched 18 August 2021).

The dispute

Enel Fortuna S.A. is a company incorporated in Panama. It states that it is controlled by the Italian companies Enel S.p.A. and Enel Green Power S.p.A. It brought claims against Panama under Article IX of the Panama–Italy BIT and the ICSID Convention. The published award does not describe the substance of the claims. The corrected recital it quotes shows that the dispute related to Cabinet Resolution No. 41 and a Compensation Agreement. Panama's Contraloría General de la República had challenged these before the Supreme Court, by a constitutionality action and an administrative nullity action. Panama filed a Notice of Intended Objections and Request for Bifurcation. The parties then suspended the proceedings and settled.

Key holdings

At the parties' joint request, the Tribunal records their Settlement Agreement in the form of an award under ICSID Arbitration Rule 43(2). This formally and permanently ends the ICSID proceedings. ¶¶ 11, 13
The Tribunal records the parties' correction of a ministerial error in the sixth recital of the Settlement Agreement. The corrected recital reads: on 19 May 2020 the plenary Supreme Court dismissed the constitutionality claim, but the administrative challenge to Cabinet Resolution No. 41 and the Compensation Agreement remained pending. ¶ 12
The Tribunal unanimously decides that the Settlement Agreement is an integral part of the award. It is incorporated as Annex A, taking account of the clerical correction. The text of Annex A could not be extracted from the published document. ¶ 14

Procedural history

21 February 2019ICSID received the Request for Arbitration. ICSID registered it on 7 March 2019.
29 March – 15 May 2019The parties agreed to suspend the proceedings.
1 April 2020The Tribunal was constituted.
20 May 2020First session held by videoconference. Procedural Order No. 1 followed on 23 June 2020 and Procedural Order No. 2 (document production) on 22 July 2020.
17 September 2020The claimant filed its Memorial, with a witness statement and an expert report.
19 October 2020Panama filed a Notice of Intended Objections and Request for Bifurcation.
30 October 2020 – 28 June 2021The proceedings were suspended by agreement, with repeated extensions.
25 June 2021The parties filed the signed Settlement Agreement and asked the Tribunal to embody it in an award.
18 August 2021Award embodying the settlement dispatched to the parties.