Kimberly-Clark Dutch Holdings, BV, Kimberly-Clark SLU, and Kimberly-Clark BVBA v Venezuela

Abstract

Jurisdiction to adjudicate3 has remarkable power. It can transform a group of three learned arbitrators with no special legal authority into a body empowered to make binding rulings defining the rights and obligations of parties to an international legal dispute. Kimberly-Clark Dutch Holdings, BV, Kimberly-Clark SLU, and Kimberly-Clark BVBA v Bolivarian Republic of Venezuela examines whether Venezuela gave the consent necessary to confer such authority upon a tribunal constituted under ICSID’s Additional Facility Rules. The case involved similar claims by the three related entities, one Dutch, one Spanish, and one Belgian. Each claimed jurisdiction on the basis of a separate treaty between its State of nationality and Venezuela. The Tribunal’s Award primarily involves interpreting these three treaties utilizing the principles of treaty interpretation set out in the 1969 Vienna Convention of the Law of Treaties (VCLT) Orphan word.4 The parties agreed that their interpretation was ‘governed by customary international law as codified’ in the VCLT.5 Applying the VCLT, the Tribunal concluded that none of the three treaties established Venezuela’s consent to Additional Facility arbitration, so all three claims failed for lack of jurisdiction.