District Court for the District of Columbia, 23 January 2018, Berkowitz v. Republic of Costa Rica, no. CV 17-148

In an opinion rendered on 23 January 2018, the District Court denied Claimant’s petition to annul an interim award rendered under CAFTA. The Court first recalled the fundamental rule pursuant to which awards can be reviewed only after the tribunal issues a final ruling – if they purport to resolve all aspects of the dispute being arbitrated. The Court continued by saying that the award is final only if the arbitrators have decided on both the issue of liability and damages. The subjective belief of the tribunal is a key factor in this determination.

The analysis of the tribunal’s interim award revealed that it did not rule on either liability or damages but only on jurisdiction. In addition, it concluded that it did have jurisdiction for some of the Claimant’s claims. On the basis of this evidence, the Court denied the Claimant’s petition to annul the award as it found that the arbitral tribunal did not intend to reach a final decision on this matter and as such, considered that the decision was not final and therefore appealable.

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