Guyana asks World Court to focus on arbitrators, not United Kingdom, in border case with Venezuela

Last Updated on Tuesday, 22 November 2022, 8:56 by Denis Chabrol

Guyana on Tuesday rejected Venezuela’s arguments that the United Kingdom (UK) is a necessary party to this former British colony’s case on the validity of the 1899 Arbitral Tribunal Award, and asked the International Court of Justice (ICJ) to focus the conduct of the arbitrators.

Venezuela, for its part, wants the ICJ to find that Guyana’s case is inadmissible because the UK is an “indispensable party” to the proceedings because of its alleged claim of lands by force and the use of “doctored” maps back in the 1700s.

However Professor of International Law, University College London, Philippe Sands told the court on Tuesday that Venezuela has not provided any proof that any of the arbitrators had engaged in fraud or any other form of misconduct that saw the award of the land boundary between Venezuela and British Guiana. “Venezuela’s burden is to prove that one or more of the arbitrators engaged in inappropriate contact with counsel, and this is what influenced the Award. It has offered no evidence to support such an argument. Nothing,” he said.

Professor Sands also said that to succeed on the merits, it is not enough for Venezuela to prove wrongful conduct attributable to the United Kingdom. “It will not be sufficient to argue that a British lawyer perhaps expressed a desire to communicate with an arbitrator, or
actually sought such communication,” he added.

He also argued that Venezuela offered no authority whatsoever for the proposition that the conduct of a party in arbitral proceedings can, of itself, taint an arbitral award. We are not aware of any case of an arbitral award being set aside merely because of the conduct of a party or of its counsel. “What is relevant is the conduct of the arbitrators,” he said.

Venezuela maintains that the ICJ does not have jurisdiction to hear Guyana’s case on the final and binding nature of the 1899 Arbitral Tribunal Award, but after the court ruled that it could hear the case that Spanish-speaking neighbour filed arguments to ask the Court to find that it could not hear the case because the UK was not a party to the proceedings.

Professor Sands said the ICJ’s only role is to focus on the validity of the Arbitral Award which “turns on the conduct of the arbitrators. “If you find no such misconduct, the consequence is clear: the Award is valid. A finding of misconduct by arbitrators may require factual findings in relation to acts attributable to the United Kingdom, but not any legal findings in relation to the responsibility of the United Kingdom.
That is outside your jurisdiction, it is a red herring. The only conduct you have to address is that of the arbitrators. All the rest is noise,” he said.

He noted that Venezuela formally agreed to the land boundary in 1905, and scrupulously conformed to it for more than sixty years, as its own official maps demonstrate.  He also said that Britain has agreed that it has “no such interest” in settling the controversy in the 1966 Geneva Agreement.

Guyana’s lawyers have already told the ICJ that the court could not recant its own decision on jurisdiction.