Banesco Holding Latinoamérica, S.A. and Banesco (Panamá), S.A. v. Republic of Panama

At a glance

Parties

Banesco Holding Latinoamérica, S.A. and Banesco (Panamá), S.A. v. Republic of Panama

Case no.

ICSID Case No. ARB/23/41

Forum and rules

ICSID Convention arbitration; ICSID Arbitration Rules in force from 1 July 2022; place of proceeding Washington, D.C.; language Spanish

Treaty

Spain–Panama BIT (in force 31 July 1998)

Tribunal

Franz X. Stirnimann Fuentes (President), Alvaro Galindo, Rafael Rincón Ordóñez

Sector

Banking and insurance

Outcome

The documents summarised here are procedural orders only. An Award dated 5 May 2026 is listed for this case, but its text was not provided, so these documents do not show the outcome.

The dispute

Two Banesco companies brought an ICSID claim against Panama under the 1998 Spain–Panama BIT. The published procedural orders do not set out the measures complained of or the claims in detail. Procedural Order No. 3 shows that the dispute concerns Panama's conduct towards Banesco Seguros. The claimants argued that Panama's treatment of other insurers is relevant to that conduct. They also relied on administrative manuals and internal government documents, including those of CONADES and its Unidad Coordinadora y Ejecutora de Programas (UCEP). Panama stated that its participation in procedural matters was without prejudice to any objection to the Tribunal's jurisdiction.

Key holdings

1. Transparency regime. The parties consent to publication of the award on the ICSID website, subject to redaction of confidential or protected information. The parties' written submissions are not published unless the parties agree otherwise within 60 days after the award. Supporting documents are not published. Hearings are closed to the public, and transcripts and recordings are not published. Procedural Order No. 2, ¶¶ 10–15
2. Disputes over redactions to the award are decided by the former Tribunal members even when the Tribunal is functus officio. They are paid for this work from the case funds, and ICSID keeps the case trust fund open for that purpose. Procedural Order No. 2, ¶¶ 23–24
3. A request for an individual document is presumed to concern a document that exists; it is for the requested party to say that it does not. For a category of documents, the requesting party must give the factual or legal reason why it believes the category exists. Procedural Order No. 3, ¶¶ 19–20
4. The Tribunal generally refused requests that did not identify which government entity holds the documents. Where the claimants named CONADES, including its UCEP, the Tribunal granted the requests as to that entity. Procedural Order No. 3, ¶¶ 23–24
5. Relevance and materiality are judged prima facie on the requesting party's own factual and legal hypotheses, without assessing whether they are correct. A request need not be tied to an allegation already formally pleaded, provided the requesting party explains the allegation with sufficient precision. Procedural Order No. 3, ¶¶ 29–34
6. Panama was ordered to produce the documents by 13 February 2025. If it withholds ordered documents without satisfactory explanation, the Tribunal may infer that they are adverse to its interests. Costs of the document production phase are reserved. Procedural Order No. 3, ¶¶ 38–42

Procedural history

1. 10 October 2023After registration of the request for arbitration, ICSID asks the claimants for an advance of USD 150,000. ICSID receives the payment on 17 October 2023.
2. 5 March 2024Tribunal constituted.
3. 12 April 2024First session held by videoconference.
4. 29 April 2024Procedural Order No. 1 (procedural rules and timetable) and Procedural Order No. 2 (transparency and confidentiality) issued.
5. 12 August 2024Claimants file their Memorial.
6. 30 December 2024Panama files its Counter-Memorial.
7. 6 February 2025Procedural Order No. 3 decides the claimants' document production requests.
8. 13 June 2025Procedural Order No. 4 issued (text not included).
9. 5 May 2026Award issued (text not included).

Tribunal, counsel and experts

Decided by

• Franz X. Stirnimann Fuentes President
• Alvaro Galindo Co-arbitrator
• Rafael Rincón Ordóñez Co-arbitrator

For the claimant

Clifford Chance

For the respondent

Ministerio de Economía y Finanzas

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Keywords

• Banesco
• Banesco Seguros
• Spain–Panama BIT
• insurance
• banking
• CONADES
• UCEP
• document production
• Redfern schedule
• IBA Rules on the Taking of Evidence
• adverse inference
• transparency
• confidentiality
• redactions
• ICSID Arbitration Rules 2022
• fishing expedition

Summary generated with AI from the published documents — refer to the award for the authoritative text.