Jurisdiction and Admissibility - Arg

KluwerArbitration
Document information Chapter 22: Jurisdiction and Admissibility Questions in

Investment Arbitration: The Argentine Experience
Publication Noiana Marigo ; Maria Julia Milesi ; Ezequiel H. Vetulli
Arbitration in Argentina (*)
§22.01 INTRODUCTION
Jurisdiction International investment agreements (IIAs) are treaties concluded by two or more States,
Argentina where each State guarantees certain protections to investors from the other contracting
State(s) with respect to investments made in their own territory. IIAs may take the form of
bilateral investment treaties (BITs), free trade agreements, or other multilateral
Organization investment-related treaties. To date, Argentina has concluded seventy-nine IIAs (sixty-
International Centre for three are in force), including sixty-one BITs (forty-nine are in force). (1)
Settlement of Investment IIAs offer foreign investors substantive protections, such as the prohibition of unlawful
Disputes expropriation, protection against unfair or inequitable treatment and against arbitrary
measures, among others. IIAs also offer investors direct access to international
arbitration against the host State for breaches of those protections. Investment arbitral
Bibliographic tribunals are constituted for each dispute and resolve disputes primarily by applying the
provisions of the specific IIAs and international law.
reference IIAs may offer the investor the possibility to choose from alternative arbitral fora. The
Noiana Marigo, Maria Julia
P 480 alternatives may include institutional arbitration and/or ad hoc arbitration. (2) A well-
Milesi, et al., 'Chapter 22:
Jurisdiction and established institution for administering investment arbitration proceedings is the
Admissibility Questions in International Centre for the Settlement of Investment Disputes (ICSID), created under the
Investment Arbitration: The auspices of the World Bank through the Washington Convention in 1965 (ICSID
Argentine Experience', in Convention). Many IIAs also provide for ad hoc arbitration under the arbitration rules of
Fabricio Fortese (ed), the United Nations Commission on International Trade Law (UNCITRAL Rules). (3)
Arbitration in Argentina, To date, there have been sixty-two investment arbitration proceedings lodged against
(© Kluwer Law Argentina, more than against any other country. Most of them have been administered by
International; Kluwer Law ICSID (56) and a number have been conducted under the UNCITRAL Rules (6). (4) In most
International 2020) pp. 479 cases, Argentina raised jurisdiction and/or admissibility objections. The abundant case
- 510 law arising from these cases has shaped investment arbitration and investment law in
many regards. This chapter offers a comprehensive analysis of the most frequent
jurisdiction and admissibility issues raised in cases involving Argentina, both from a
theoretical and practical standpoint. (5)
§22.02 UNDERSTANDING THE CONCEPTS OF JURISDICTION AND

ADMISSIBILITY
[A] The Boundaries Between Jurisdiction and Admissibility
The terms ‘jurisdiction’ and ‘admissibility’ are often misused as synonyms. This is,
P 481 however, incorrect because they have different meanings. (6) The term ‘jurisdiction’
concerns the competence of the arbitrators to hear a specific dispute and is related to
the parties’ consent. Since consent is the cornerstone of arbitration, in its absence,
arbitrators are not vested with jurisdiction. (7) Examples of jurisdictional issues include
whether one party has consented to arbitrate with the other party (ratione personae),
whether the subject matter of the dispute falls within the scope of the consent given
(ratione materiae), and whether all conditions for consent (if any) are met.
By contrast, the term ‘admissibility’ focuses on the dispute and whether it is ready for
adjudication by the competent arbitrators. It, therefore, relates to procedural
requirements. (8) Examples of admissibility issues include situations where both parties
have consented to arbitration, but have also agreed on a series of steps to be followed
prior to submitting the dispute to arbitration (e.g., a negotiating period) so that a failure
to observe such process(es) would render the claim inadmissible until it is properly
fulfilled.
Arbitral tribunals have reaffirmed the distinction between both concepts, including in
cases involving Argentina, as explained further below. (9) This distinction is not without
practical consequences. It becomes relevant at two stages: (i) when commencing an
arbitration, and (ii) at the stage of review of the arbitral award.
First, when commencing an international arbitration, the parties may debate whether
certain pre-arbitration requirements (e.g., a cooling-off period or local litigation period)
P 482 are mandatory or may be bypassed under certain circumstances. To answer this
question, the nature of the requirement in question must be determined. Since
arbitration is based on consent, a jurisdictional requirement (i.e., a condition to consent)
in principle cannot be bypassed. (10) Conversely, an admissibility (i.e., procedural)
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requirement might be bypassed under special circumstances (e.g., if factually or legally
impossible to fulfil). (11)
Second, the distinction also becomes relevant for determining the standard of court
review over the arbitral award. (12) It is well-established that the arbitrators’ findings on
the admissibility of a claim are final and therefore only subject to a prima facie review
by the controlling courts (i.e., with deference to the arbitrators). (13) Conversely,
P 483 jurisdictional findings are usually subject to a de novo review. (14) This, however, is not
applicable to ICSID awards, which are only subject to an ad hoc review mechanism within
the ICSID system. (15)
[B] The Categorization of Pre-arbitration Requirements

Determining which aspects constitute a jurisdiction or an admissibility issue may be
complex. (16) Certain authors consider that the difference is as clear as the difference
between day and night, since both are unquestionably different things, although there is
a twilight zone where their boundaries are not clear. (17)
It is uncontroversial that whether a claimant qualifies as an investor, whether it holds an
investment, and whether a fork-in-the-road (FIR) clause has been triggered, are all
jurisdictional issues. However, the characterization of pre-arbitration requirements, such
as negotiation or local litigation periods, is more contentious. As a matter of
international law, pre-arbitration requirements are neither procedural nor jurisdictional
in and of themselves. Instead, their nature depends on the contracting States, who may
categorize them as one or the other in each IIA. (18) However, IIAs are usually silent about
this intention. Tribunals have reached different conclusions when interpreting these
requirements.
One position is that pre-arbitration requirements are conditions to the State’s consent,
so that consent is not perfected until they are fulfilled. Under this thesis, a failure to
meet any of these requirements would affect the tribunal’s jurisdiction. (19) Some arbitral
tribunals have adopted this reasoning.
P 484
For instance, the tribunal in Enron considered the amicable negotiation period in the US-
Argentina BIT to be related to jurisdiction. (20) In Impregilo, the tribunal held that the
litigation requirement in the Italy-Argentina BIT mandated local proceedings as a
jurisdictional condition because a different interpretation would render such
requirement superfluous, which could not have been the intention of the contracting
States. (21) Similarly, in Wintershall, the tribunal held that under the Germany-Argentina
BIT, the States’ consent was expressly conditioned to the investor’s fulfilment of the
litigation requirement; although it also acknowledged that the solution could be different
depending on the wording of the BIT. (22) Applying the same BIT, the tribunal in Daimler
went so far as to state that ‘all BIT-based dispute resolution provisions […] are by their
very nature jurisdictional’. (23) Other case law involving other States has also followed
this interpretation. (24)
Other tribunals, however, have come to the opposite view (sometimes even applying the
same treaties). These tribunals, both in cases with Argentina (25) and with other States,
(26) have held that the State’s consent is already perfected in the relevant IIA and that
pre-arbitration requirements are procedural in nature and must be fulfilled in order to
P 485 bring a claim, but a failure to comply with them does not necessarily preclude
jurisdiction. Thus, this second position is that such requirements only concern the
admissibility of the claim. (27)
For instance, in Hoctchief, the tribunal held that the local litigation requirement in the
Germany-Argentina BIT was ‘a condition relating to the manner in which the right to have
recourse to arbitration must be exercised’, therefore referring to admissibility and not
jurisdiction. (28) In BG Group, the tribunal analysed the local litigation requirement in the
UK-Argentina BIT as an admissibility question. (29) The BG Group award was ultimately
reviewed by the US Supreme Court, which confirmed the decision, highlighting that such
a requirement only determined ‘when’ the investor could commence arbitration and not
‘whether’ the investor could do it. (30) Notably, Justice Sotomayor stated in her
concurrent opinion that the conclusion might have been different had the BIT expressly
labelled the local litigation requirement as a condition to consent. (31)
Based on the above, pre-arbitration requirements are studied in section §22.03 as
admissibility issues, even though in specific circumstances they could be considered to
impact jurisdictional aspects of a claim.
§22.03 ADMISSIBILITY QUESTIONS: PRE-ARBITRATION REQUIREMENTS

[A] Amicable Consultations
Provisions requiring a cooling-off or negotiation period prior to submitting a dispute to
arbitration are common in IIAs. Their underlying objective is to give the host State the
opportunity to resolve the dispute before the investor resorts to international
arbitration. (32)
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Many IIAs concluded by Argentina contain this kind of requirement. (33) Some of them
P 486 specify a time period (typically six months), (34) while others are silent as to how long
the parties must attempt to negotiate. (35) Where a specific time period is stipulated,
most IIAs indicate that said period begins when the dispute is raised or notified by one of
the parties, (36) while a few IIAs imply that the period starts running when the dispute
arises, (37) or do not specify when the period starts running. (38) Some IIAs require the
investor to formally notify the respondent State of the existence of a dispute, but even
when not expressly required, the State must be made aware of the existence of the
dispute in order to attempt to negotiate it. (39)
Even in cases where the parties conducted negotiations, tribunals still had to decide
whether the fact that one specific claim (of the several claims brought) was not included
in the notice of dispute would mean that no negotiations were conducted with respect to
that claim and that there was no jurisdiction over the same. (40) In other words, whether
the object of the negotiations was different than the dispute finally submitted to
arbitration. (41) Tribunals have consistently rejected this idea, (42) concluding that if the
P 487 State knew that the dispute existed and had the chance to resolve it, the requirement
was fulfilled and that in the case of several related claims there is no need for separate
notifications. (43)
For instance, in Teinver, under the Spain-Argentina BIT, where the claimants brought a
claim relating to the expropriation of their interest in two airlines, it was established that
the claimants had conducted negotiations regarding the parties’ disagreement on
regulatory issues, but it was less clear whether negotiations had occurred with respect to
a disagreement under the BIT. The tribunal held that negotiations about the regulatory
issues were strongly connected to the subsequent expropriation of the airlines, and thus
sufficient to fulfil the negotiation requirement. (44)
Tribunals reached similar solutions under the US-Argentina BIT in: (i) CMS, where the
claimant brought a claim regarding measures by the judiciary interfering with gas tariffs
and then added grievances arising out of a subsequent law passed after the request for
arbitration; (45) (ii) Enron, where the claimants filed a claim related to tax measures
issued by certain provinces and, after their memorial, added a claim related to almost
identical measures issued by other provinces; (46) and (iii) LG&E, where the claimants
made an additional request for arbitration relating to the broadening of the State
measures. (47)
A unique situation arose in Abaclat, a case brought under the Italy-Argentina BIT by
hundreds of thousands of Italian bondholders, who did not adhere to the sovereign debt
restructuring scheme. (48) In the amicable talks, the claimants were represented by an
Italian association and the tribunal found the negotiation requirement to be fulfilled.
(49) The tribunal considered that, although it was not entirely clear how many of the
claimants had signed a mandate with this association, it was undeniable that the
association did represent some of the claimants and that Argentina could not have been
unaware that a dispute had arisen with a considerable number of them. (50)
All these precedents show a consistent approach: to the extent that the State knew that
the dispute existed, the negotiation requirement should be considered to be fulfilled,
even where other related claims were later included in the arbitration. This position is
also consistent with precedents involving other States. (51)
P 488
[B] Local Litigation

Many IIAs require the investor to litigate the dispute locally, either before the
administrative authorities (52) or before the judicial courts of the host State, for a period
of time prior to commencing arbitration. As with the case of the negotiation period, this
requirement aims to give the State the possibility of resolving the dispute before the
investor elevates it to an international arbitral tribunal. (53) Argentina has included this
requirement in several BITs, typically requiring eighteen months. (54) As explained
below, case law on the fulfilment of the litigation requirement is one of the less
consistent legal issues in the cases concerning Argentina.
[1] Bypassing the Local Litigation Requirement
In some cases against Argentina, investors did not seek to comply with the local litigation
requirement. Among other reasons, investors have been reluctant or unable to fulfil this
requirement because Argentina’s judiciary requires the upfront payment of a court tax of
3% of the claimed amount to file a claim. Two main arguments have been put forward by
investors to bypass this requirement altogether. Some claimants have invoked the most-
favoured-nation (MFN) clause in the relevant BIT that allows investors to avail themselves
of the more favourable treatment granted by the host State to investors of third States.
Other investors have argued that complying with the local litigation requirement would
have been futile in their specific case.
P 489
[a] Bypassing Local Litigation Through the MFN Clause
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The MFN clause is a common feature in most BITs concluded by Argentina. (55) While the
ability of an MFN clause to import substantive protections is uniformly accepted, whether
it may also apply to dispute resolution mechanisms is debated. (56)
Investors have argued that if the respondent State concluded treaties with other States
permitting investors from those countries to access arbitration without previously
resorting to local litigation, the MFN clause in the BIT applicable to the case would allow
the claimant to benefit from such more favourable treatment.
Analysis of this issue requires attention to: (i) the terms of the specific MFN clause (which
may be broad or narrow); and (ii) its location in the treaty (as a stand-alone clause or as a
clause within another chapter, which could help contextualize its interpretation).
Argentina has argued that when the MFN clause is contained in a broader provision
referring to treatment, the scope of the MFN should be limited to importing substantive
protection. For instance, the MFN clause in the Spain-Argentina BIT is contained in the
section referring to treatment. (57) However, all decisions analysing this clause have
permitted its use to bypass the litigation requirement, based on its broad language
which says that it applies to ‘all aspects governed by this treaty’. (58) This was the
interpretation adopted by the tribunals in Gas Natural, Telefónica, Teinver, and the two
P 490 cases brought by Aguas de Barcelona, all under the Spain-Argentina BIT. (59) The
tribunal in Impregilo reached the same conclusion applying the MFN clause in the Italy-
Argentina BIT which has similarly broad language. (60)
Case law is more nuanced in cases where claimants have invoked more narrowly worded
MFN clauses to bypass the litigation requirement. This is the case, for example, with the
Argentine BITs concluded with Germany and the United Kingdom where the MFN clauses
do not refer to ‘all matters’ governed by the treaty. (61) Some tribunals applying these
treaties have held that the MFN clause may still apply to dispute resolution because: (i)
access to arbitration is a right conferred by the treaty (i.e., it is also ‘treatment’); (62) (ii)
the resolution of disputes is an activity ‘related to the investment’; (63) and (iii) the MFN
clauses indicate exemptions to their application and dispute resolution is not one of
them. (64)
However, there are also significant precedents to the contrary. The tribunal in ICS
Inspection considered that the MFN clause in the UK-Argentina BIT was not applicable to
dispute resolution matters mainly because, in the absence of an express stipulation in
P 491 the treaty, the term ‘treatment’ referred to substantive protection. (65) Likewise, in
Daimler and Wintershall, the tribunals rejected the possibility of bypassing the litigation
requirement of the Germany-Argentina BIT through its MFN clause, noting among other
reasons that the clause does not refer to ‘all matters’ of the treaty. (66)
[b] Futility in Litigating Locally
The other avenue through which investors have tried to bypass the litigation requirement
in cases against Argentina is the so-called futility exemption, commonly applied in the
field of diplomatic protection. (67) In general, the argument has been that certain
circumstances would make it futile to resort to the local authorities (e.g., due to partiality
or delays of the judiciary), and therefore, the investor should not be obliged to comply
with this requirement.
In Urbaser, the tribunal stated that the resolution of an investor-state dispute by the
Argentine courts would take considerably longer than eighteen months and that forcing
the claimants to pursue such proceedings would be useless and unfair. (68)
Other tribunals have upheld the futility exception under specific circumstances, such as
the existence of norms limiting access to courts. For instance, in 2002 Argentina passed
emergency legislation establishing the mandatory renegotiation of public services
contracts and ordering the local subsidiaries of foreign investors to suspend any legal
action with the penalty of not being allowed to participate in the renegotiation. (69)
Taking this into account, the tribunal in BG Group held that it would be futile to attempt
to comply with the litigation requirement under the UK-Argentina BIT, given its
incompatibility with domestic law. (70)
A similar situation occurred with Argentina’s sovereign restructuring legislation, which
prohibited payments from the Government to bondholders who did not adhere to the
sovereign debt restructuring scheme. In Abaclat, the tribunal underscored that claimants
(Italian bondholders who had not tendered their bonds for exchange in the restructuring
process) were thus prevented from obtaining economic compensation domestically, even
P 492 if ordered by a court, and concluded that the litigation requirement was futile. (71) The
tribunals in Ambiente Ufficio and Alemanni, also involving Italian bondholders, reached
the same conclusion on the basis that, according to the Argentine Supreme Court’s case
law, in matters of sovereign debt restructuring, the courts should defer to the position of
the political powers. (72)
Other precedents concerning other States have rejected the futility exception and show
that tribunals are rather cautious when analysing a plea of futility. (73)
[2] Complying with the Local Litigation Requirement
Even in cases where the investor had initiated local litigation, there has been a debate
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on: (i) whether the local proceedings lasted long enough to satisfy the required time
period under the BIT; and (ii) whether the nature of the litigation claim filed domestically
was suitable to satisfy the BIT requirement.
[a] Relevant Time Period to Fulfil the Litigation Requirement
Argentina has sometimes argued that while local litigation was initiated by the investor,
the dispute was not litigated for the required time period. On this point, the tribunals in
Casinos Austria and Teinver, under the Argentine BITs with Austria and Spain, respectively,
considered that it is not necessary that the litigation period elapses prior to initiating
arbitration, but that it is enough that it elapses by the time the arbitrators accept their
jurisdiction, i.e., when they render their decision on jurisdiction. (74) This position is in
line with awards rendered in cases against other States. (75) However, arbitrator Torres
Bernárdez dissented in Casinos Austria, considering that the arbitration proceedings
should have been suspended until the litigation period was completed. (76)
P 493
Similarly, in TSA Spectrum, under the Netherlands-Argentina BIT, the claimant initiated
the arbitration while a local administrative claim against the relevant measures (a pre-
requisite under domestic law to file a judicial claim) was still pending. (77) The
administrative claim was resolved during the course of the arbitration (when fifteen
months of the eighteen-month period had elapsed). (78) The tribunal upheld its
jurisdiction noting that it was not likely that the Argentine courts would resolve the
dispute within the remaining three months and that it would be too formalistic to decline
jurisdiction in such context. (79)
[b] Link Between the Local Litigation and the Arbitration
A more debated issue is whether there must be a common identity between the local
litigation and the international arbitration regarding the parties, object and cause of
action in both proceedings. In general, tribunals in cases involving Argentina have
rejected this proposition.
Tribunals have not found it problematic when the entity involved in the local litigation
was the subsidiary (instead of the foreign investor) and have considered it sufficient that
the local and the international proceedings were based on substantially similar facts so
that success in the former would have made the latter unnecessary. Examples of this are
the cases Teinver (80) and Urbaser (81) (both under the Spain-Argentina BIT), Salini (82)
(under the Italy-Argentina BIT), and Casinos Austria (83) (applying the Austria-Argentina
BIT). This solution is consistent with other case law involving other States. (84)
P 494
§22.04 JURISDICTIONAL QUESTIONS

[A] Shareholder Claims
In order to invoke the protection of an IIA, the claimant must qualify as an investor under
such an instrument (ratione personae requirement) and must hold an investment in the
territory of the host State (ratione materiae requirement). Foreign investments are often
structured through the incorporation of a local vehicle. IIAs almost invariably consider
shares in local companies as protected investments. Thus, if those shares are subjected
to direct adverse measures, foreign investors may commence an arbitration. This was the
case, for instance, when Argentina expropriated Repsol’s participation in the largest
Argentine oil and gas company. (85)
At other times, State measures might target the local subsidiary’s business, while not
directly affecting the ownership by the foreign investor of its shares. In such cases, where
the local subsidiary itself was not protected by an IIA, foreign investors have brought
arbitration claims in their capacity as shareholders for reflective loss. This situation
raises the question of whether a shareholder has the standing to bring such a claim given
the distinct personality of the local company. While domestic laws generally admit only
the standing of the company directly affected, investment law has developed a more
permissible approach. (86)
Tribunals in cases with Argentina have frequently had to analyse the legal standing of
shareholders, due to their distinct personality from the local company. (87) Argentina
usually invoked the Barcelona Traction case, where the ICJ ruled that shareholders lacked
standing to put forward indirect claims relating to contractual rights of the company in
which the shareholders owned stock. (88) However, arbitral tribunals have consistently
rejected this doctrine, stating that it only applies to diplomatic protection. (89) Tribunals
P 495 have noted that the ICSID Convention drafting history, the opinions of distinguished
legal writers and ICSID case law, all support the notion that shareholders have a separate
cause of action than the company in which they hold shares. (90)
Some tribunals have allowed shareholder claims for reflective loss on the basis that the
applicable IIAs expressly covered indirect investments. (91) The tribunals in CMS and
Enron, for instance, adopted such reasoning under the US-Argentina BIT. (92) Other
tribunals have accepted those claims stressing that the usual broad definition of
P 496
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P 496 ‘investment’ in the respective IIA (even where not expressly referring to indirect
investments) allows claims by investors relating to the impact of state measures on their
investments in the territory of that state. (93)
Tribunals have also considered the standing of foreign shareholders that only held a
minority shareholding in the local company. Argentina has sometimes invoked Article
25(2)(b) of the ICSID Convention, which refers to foreign control as a condition to
admitting claims by local companies controlled by foreign investors, but tribunals have
concluded that the standing of shareholders does not depend on their degree of
participation in the company. (94)
Although tribunals in cases against Argentina have generally admitted jurisdiction over
shareholders’ claims, the admissibility of these claims is not a settled question in the
case law, especially where they relate to contractual rights of the local company. (95)
[B] Ratione materiae Questions

In addition to meeting the ratione personae requirements, to invoke the protection of an
IIA, an investor must have an investment that is covered by the treaty (ratione materiae
requirement). The definition of investment may vary in each treaty, but it usually
includes every kind of assets, with a non-exhaustive list of examples, including
participation in local companies, real estate and contractual rights. Below we address
the main questions raised in cases concerning Argentina with respect to this requirement.
P 497
[1] The Salini Criteria under the ICSID Convention

Where the relevant IIA allows the investor to pursue ICSID arbitration, in addition to
fulfilling the requirements in the IIA, the investor and its investment must also fulfil the
requirements of the ICSID Convention (what is known as the double-barreled test). Article
25 of the ICSID Convention states:
The jurisdiction of the Centre shall extend to any legal dispute arising directly
out of an investment, between a Contracting State (or any constituent
subdivision or agency of a Contracting State designated to the Centre by that
State) and a national of another Contracting State, which the parties to the
dispute consent in writing to submit to the Centre. (96)
The ratione materiae requirement in this provision is that the dispute relates to an
‘investment’, without defining such a concept. (97) States often argue that the term
‘investment’ in the ICSID Convention includes certain inherent objective elements. This
doctrine was coined in the Salini v. Morocco case where the tribunal held that
investments must meet the following criteria: (i) an economic contribution; (ii) certain
duration; (iii) an element of risk; and (iv) a contribution to the development of the host
State. (98) Some tribunals have followed the Salini test, (99) sometimes even in non-ICSID
cases (to assess whether there was an investment under the relevant IIA). (100) Many
others, however, have rejected a strict application of this test. (101) In cases concerning
P 498 Argentina, tribunals generally found it to be an unduly restrictive interpretation of
Article 25(1) of the ICSID Convention to require additional elements than those set forth
expressly in the relevant IIAs.
The cases Abaclat, Alemmani and Ambiente Ufficio, which as explained referred to claims
by bondholders, were brought under the Italy-Argentina BIT that includes ‘public titles’
as protected investments. Thus, the tribunals in all three cases rejected a strict
application of the Salini test. (102) The tribunal in Ambiente Ufficio noted that the test
may be useful as a guideline, but should not be conceived as a strict jurisdictional
requirement. (103)
In Abaclat, in particular, the tribunal’s primary concern was that the Salini test is not
included in the ICSID Convention and therefore imposes a limit that neither the
Convention nor the applicable BIT meant to create. (104) The tribunal underscored that
applying the Salini test would lead to results against the purpose of the ICSID Convention,
which is to ‘encourage private investment while giving the Parties the tools to further
define what kind of investment they want to promote.’ (105) Professor Abi Saab dissented
from the majority’s view and stated that the fact that the Salini criteria is not expressly
laid out in the ICSID Convention does not mean that it is not mandatory. (106)
The tribunal in Casinos Austria, in contrast, followed the reasoning of the dissenting
opinions in Abaclat and Teinver in admitting the relevance of the Salini test and stated
that the first three elements of the test are broadly accepted in practice. (107) The
tribunal acknowledged the controversy about the fourth element (contribution to the
development of the State) but found that it was met through the claimant’s shareholding
in a local company and certain undertakings made as part of a privatization process.
(108)
P 499
[2] Sovereign Bonds as Protected Investments
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In 2001, amid an acute financial crisis, Argentina defaulted publicly and announced the
deferral of its debt with private creditors. Argentina later restructured its debt, tendering
bonds for exchange at a discount. A large group of bondholders rejected the exchange
offer and commenced three ICSID arbitrations under the Italy-Argentina BIT. (109) Part of
the jurisdictional debate in these cases centred on the nature of sovereign bonds as
forms of investments. Ultimately, the three tribunals determined that the bonds were
protected investments.
The tribunals faced the question of whether the security entitlements over the bonds
(110) would constitute investments under the Italy-Argentina BIT when they were
purchased in the secondary market. (111) Argentina argued that the bonds did not show a
sufficient physical or legal connection to the Argentine territory as: (i) they did not cause
the transfer of money into its territory; (ii) they were located outside of Argentina; and
(iii) the indirect holding system of the bonds implied a cut-off point beyond which the
claims had no connection to the original investment. (112) The three tribunals highlighted
the BIT’s broad definition of investment, which encompassed debt instruments. (113) The
P 500 tribunals in Abaclat and Ambiente Ufficio held that the criterion to determine the place
of an investment depends on the nature of such an investment and that, in the case of
bonds, it should be the place where the benefit of the funds are ultimately used instead
of the place where the funds were paid by the claimants. (114) Similarly, the tribunals
held that the forum selection clause in the bonds (which pointed to the US courts) did not
determine where the investment is deemed to be made. (115)
In sum, Abaclat, Ambiente Ufficio and Alemanni are key precedents on the nature of
sovereign bonds and all of them concluded that bonds qualify as protected investments
under the Italy-Argentina BIT and the ICSID Convention. Other cases relating to sovereign
bonds were brought against Greece and Cyprus, and tribunals took diverse views under
different treaties. In line with the Argentine precedents, in Adamakopoulos v. Cyprus, the
tribunal held that bonds were protected investments under the Cyprus-Greece BIT, the
Cyprus-BLEU BIT, and the ICSID Convention. (116) Conversely, in Postova Banka v. Greece,
the tribunal declined jurisdiction, finding that the Greek bonds were not protected
investments under the Greece-Slovakia BIT. The tribunal noted that the wording in that
treaty differed from the Italy-Argentina BIT since the former did not contain any
reference to obligations or public titles. (117)
[C] Other Jurisdictional Issues

[1] Dispute Arising Directly from an Investment under the ICSID Convention
For a dispute to be submitted before ICSID, the ICSID Convention requires that the
dispute must ‘[arise] directly out of an investment’. Tribunals in cases against Argentina
have faced the question of whether claims relating to general State measures (e.g., the
emergency legislation) met this requirement, as those measures were not aimed at
investments of specific investors. Tribunals have generally answered this question in the
affirmative.
P 501
In CMS, under the US-Argentina BIT, the tribunal explained that, although it could not
pass judgment on Argentina’s economic policies, it could examine whether they had been
adopted in violation of a treaty. (118) Numerous other precedents concerning Argentina
have echoed this reasoning. (119)
In Metalplar, for instance, the tribunal stated that for a dispute to arise directly from an
investment, there must be an immediate cause-and-effect relationship between the acts
of the host State and the effects of such acts on the protected investments. This does not
mean that the measures in question must specifically target the investor’s investment; an
immediate relationship, as opposed to a remote one, suffices. (120) Similarly, the
tribunal in National Grid stated that the connection between the measures and the
investment does not need to be exclusive, but there may be other investments affected
by the same measures. The tribunal added that since Argentina had solicited the
claimant’s investment and had passed certain laws to encourage investments, the fact
that the dispute related to changes to those laws and the effect of those changes over the
relevant investment was enough to establish directness. (121)
Interestingly, in Suez-AWG, the tribunal explained that Argentina’s interpretation could
lead to a situation where disputes arising from a governmental act of general
expropriation would be excluded from ICSID jurisdiction, but those arising from a
governmental act expropriating a specific investment would be included. (122)
For its part, the tribunal in El Paso took a slightly different approach and neatly stated
that the adverb ‘directly’ in Article 25(1) of the ICSID Convention is not related to the link
between the measure and the investment but to that between the dispute and the
investment. (123)
P 502
[2] The Nature of Contract-related Claims

Foreign investments are often linked to contracts with the host State or its State entities
7
(e.g., concessions) and contracts are invariably listed as investments under IIAs. As such,
sovereign measures that affect contracts can amount to a violation of the treaty, although
a mere contract breach is not enough to create international responsibility. States have
sometimes objected to the jurisdiction of the arbitral tribunal on the basis that the claim
was based on the underlying contract. Tribunals in cases concerning Argentina have
consistently held that to the extent that the investor alleges that the State has breached
the treaty, there is an investment dispute that exceeds a mere contractual disagreement,
and upheld jurisdiction. (124)
For example, the Annulment Committee in Vivendi I held that a State can breach a treaty
without breaching a contract and vice versa. (125) Likewise, the tribunal in Azurix
explained that, even if the dispute requires analysis of the performance of a contract to
determine a breach of treaty, it cannot per se transform the dispute into a contractual
one. (126)
In TSA Spectrum, the tribunal concluded that, had Argentina intended that the mere
execution of a concession contract had the effect of excluding the application of the
remedies under the BIT, it would have indicated this clearly in said contract. (127)
Thus, to the extent that the subject of the dispute is whether the State has breached an
IIA through a sovereign measure, tribunals have treated it as a treaty dispute, even where
the performance of an underlying contract might be relevant to such assessment. (128)
P 503 This principle has also been accepted in cases concerning other States. (129) Whether
the facts ultimately lead to an effective breach of the treaty is a different question. (130)
[3] Forum Selection
Another frequent question in contract-related claims is whether the existence of a forum
selection clause in the contract (pointing to the courts of the host State, for example)
would prevent the investor from directly invoking the dispute resolution clause in the IIA.
Tribunals in cases concerning Argentina have concluded that a forum selection clause
does not bar treaty claims, even when certain acts or failures by the host State were
connected to obligations under the contract. (131)
For instance, the tribunal in Alemanni underscored that the existence of a contractual
remedy available to the claimant did not rule out the possibility of a treaty claim against
the actions of the State, in its sovereign capacity. (132) The tribunal in TSA Spectrum held
that the forum selection clause would only preclude jurisdiction under an IIA if there was
‘a clear indication in the contract itself or elsewhere that the parties to the contract
intended in such manner to limit the application of the treaty’. (133)
P 504
In ICSID cases, the discussion has centred on whether a forum selection clause would
override Article 26 of the ICSID Convention, which states that consent to ICSID arbitration
shall be deemed to exclude other remedies unless otherwise stated. Tribunals have
generally held in cases against Argentina that, although the parties may select additional
remedies to ICSID arbitration, this does not override consent to ICSID jurisdiction. (134)
In cases where the investor invoked an umbrella clause (135) to bring forward a contract
breach, tribunals dealing with claims against Argentina have generally concluded that
their jurisdiction prevailed over the forum selection clause, regardless of considerations
regarding the merits of the claim. (136) However, in some cases involving other States,
tribunals have found that an umbrella clause imports all obligations under the contract
into the BIT, including the forum selection clause. In the same vein, some tribunals have
ordered a stay of the arbitration until the dispute was litigated in the appropriate forum
as a matter of admissibility of the claim. (137) Conversely, other tribunals have
considered that the mere existence of a forum selection clause in the contract was not a
barrier to exercise jurisdiction under a treaty. (138)
[4] Fork in the Road
Some IIAs contain a so-called FIR provision, which provides that the investor must choose
to either submit the dispute to the courts of the host State or to international arbitration,
with one option excluding the other. (139) The underlying purpose of these clauses is
P 505 twofold: (i) to prevent the claimant from resorting to the local authorities and then
having a second try before an international tribunal if the former was not satisfactory;
and (ii) to avoid parallel litigation. (140) Argentina has included these provisions in
several IIAs, (141) and some tribunals have had to analyse whether an investor was
precluded from initiating international arbitration as a result of having commenced local
proceedings.
The majority of the case law considers that an FIR provision can only be triggered when
there is a triple connection or identity between the domestic litigation and the
international arbitration: (i) the same parties; (ii) the same cause of action; and (iii) the
same relief sought. (142) These three circumstances cannot be presumed and must be
cumulatively verified on a case-by-case basis. (143)
A minority of cases follow a broader test, established in Pantechniki v. Albania, where a
claim was dismissed based on the FIR clause in the Albania-Greece BIT because the
fundamental basis of the arbitral claim matched that of the local proceedings so that
8
success in the court action would make the arbitration unnecessary. (144)
In determining the appropriate test to apply, the language of the applicable IIA becomes
relevant. Notably, the Albania-Greece BIT is broad and does not specifically refer to the
local submission of a treaty dispute, so it could be construed that any related claim
triggers the FIR provision. (145) Conversely, where the FIR provision refers to a dispute in
the terms of the treaty, (146) it is less likely to be triggered by local action.
While case law involving Argentina is limited on this topic, most tribunals have applied
the triple identity test. Thus, tribunals have held that the FIR clause is not triggered when
the local proceedings were initiated by the investor’s local subsidiary, (147) when the
P 506 defendant in the local proceedings was not the Argentine Government (but instead a
specific agency or subdivision), (148) or when the local claims were different from those
brought to arbitration. (149) For instance, in Pan American Energy, the investor’s
subsidiary filed a local action before the Argentine courts seeking a declaration that they
had exclusive jurisdiction over a dispute with a US company (a dispute related to Pan
American Energy’s hydrocarbon concessions in Argentina which the US company had
brought before a US court). The arbitral tribunal considered that the FIR provision in the
US-Argentina BIT was not triggered (despite the fact that the subsidiary had made
reference to the BIT and the ICSID Convention in the local proceedings) because the
Government of Argentina was not a party to the local claim and the local claim was not
based on the violations of the BIT. (150)
§22.05 MASS CLAIMS

The abundant case law involving Argentina has shaped investment arbitration and
investment law in many respects. Among these, the admissibility of mass claims is surely
a landmark area. With no previous precedents, the cases Abaclat, Alemanni, and Ambiente
Ufficio brought by a large number of Italian bondholders (originally more than 180,000,
183, and 119, respectively) paved the way for a novel manner of filing and administering
investment claims. These unusual situations raised two fronts of debate: (i) jurisdictional,
i.e., the nature of these proceedings and whether Argentina had consented to be subject
to this type of proceedings; and (ii) procedural, i.e., whether a mass claim would be
capable of being managed by a single tribunal. In the end, neither of the tribunals found
that these issues affected their jurisdiction nor the admissibility of the claim.
[A] Consent to This Special Type of Claim

Before analysing the States’ consent to this special type of arbitration, the tribunals in
Abaclat, Alemanni and Ambiente assessed the nature of the claims at stake. The tribunals
took different approaches regarding the nature of the claims and the appropriate
terminology for characterizing them. (151)
P 507
In Abaclat, the tribunal dealt with the question of whether the claim was just a very large
multi-party claim, which the ICSID Convention admits without any limitation, (152) or one
of a different nature and not envisaged by the Convention (e.g., a class action). If the
claim was of a different nature, the question was whether anything in the ICSID
Convention would prohibit it. The claimants alleged that mass proceedings were
consistent with the object and purpose of the BIT since the high number of claimants was
inherent to the nature of the bonds as protected investments. (153) This was considered a
jurisdictional issue because it goes to the question of the scope of the State’s consent.
The tribunal considered that the proceedings were a hybrid of collective proceedings
(between aggregated and representative proceedings) and held that the number of
claimants was neither a hurdle to its jurisdiction nor an impediment to the admissibility
of the claim. (154) The tribunal remarked that the silence in the ICSID Convention should
be interpreted as a gap and not as a qualified silence and that arbitrators have the
power to admit these claims due to the general procedural discretion afforded to them
by Article 44 of the Convention and Rule 19 of the ICSID Arbitration Rules. (155) Professor
Abi Saab dissented and stated that the majority’s interpretation of the ICSID Convention
ignored the fact that representative proceedings or class actions were never considered
by the authors of the Convention. (156) He further argued that basic consent to submit a
dispute to arbitration would not be enough and an additional consent to these atypical
collective proceedings would be required. (157)
In Ambiente Ufficio, however, the tribunal treated the claim as a multi-party claim. (158) It
held that the term ‘investor’ in the BIT and the ICSID Convention should not be taken to
exclude the plural, and concluded that tribunals have jurisdiction over mass claims, for
these are not explicitly excluded from the Convention. (159)
For its part, the tribunal in Alemanni took issue with several findings in Abaclat and
Ambiente Ufficio. First, it did not engage in the battle of terminologies and simply stated
that the proceedings did not fit the descriptor ‘mass’ (since there were 183 claimants,
later reduced to 74, as opposed to the much larger number in Abaclat) and were not of a
representative character since each claimant was claiming in his own name and
advancing his own personal loss in respect of his own bonds. (160) Second, according to
the tribunal, the relevant issue should not be whether the BIT and the ICSID Convention
9
employ the term ‘investor’ in singular or plural, which is a formalistic approach with no
P 508 basis in the Vienna Convention on the Law of the Treaties. (161) Instead, the tribunal
considered that the key was in the term ‘dispute’. The tribunal considered that the ICSID
Convention and the BIT admit multiple claimants in a single dispute (e.g., where the
multiple claimants have participated in the making or management of the same
investment). (162) Thus, the tribunal held that it should verify whether all the claims at
issue related to a single dispute, but explained that this would require it to consider the
particular circumstances of each investor and investment and, therefore, should be
joined to the merits of the case. (163)
While multi-party investment arbitrations are very common, there is only one precedent
of a mass claim besides the Argentine cases. In 2020, an ICSID tribunal also upheld
jurisdiction over a claim brought under the Cyprus-Greece BIT and the Cyprus-BLEU BIT
by 956 Greek investors against Cyprus with respect to measures taken during the financial
crisis that allegedly affected their bonds and bank deposits. (164)
[B] Procedural Management

In Abaclat, the tribunal analysed whether the proceedings would be manageable from a
practical standpoint; for example, as to whether the facts were specific for each
claimant. (165)
The tribunal considered that certain procedural adaptations were necessary to deal with
the particularities of a mass case. In particular, the tribunal noted that: (i) it would not be
able to treat each claimant individually and certain issues would have to be examined
collectively, and (ii) certain procedural rights of the parties would be limited: the
claimants would have to waive their individual interest in favour of the common interest
of the group, while the respondent would not be able to bring detailed arguments
concerning the situation of each claimant. (166) Nevertheless, the majority of the tribunal
decided that these adaptations were admissible and acceptable under Article 44 of the
ICSID Convention and Rule 19 of the ICSID Arbitration Rules, as well as under the general
spirit, object and purpose of the ICSID Convention. (167) The tribunal emphasized that it
was not certain that an individual approach was necessary in light of the homogeneity of
the claims and noted that the only alternative would be to conduct 60,000 separate
proceedings. (168)
P 509
The tribunal in Ambiente Ufficio followed the Abaclat decision and rejected the
respondent’s argument that the number of claimants would violate fundamental
principles of due process to the detriment of Argentina’s rights of defence. The tribunal
held that at a preliminary stage of the proceedings it must restrict itself to a general
assessment of whether there is jurisdiction to decide the dispute, and the number of
claimants does not affect this assessment. (169)
Finally, in Alemanni, although the tribunal accepted Argentina’s argument that
convenience or cost-saving reasons would not in themselves be enough to justify
proceedings that would otherwise be questionable, the tribunal reached the same
conclusion as in Abaclat and Ambiente Ufficio and found the claims to be admissible. (170)
§22.06 CONCLUSIONS
Argentina has participated as respondent in the most investment arbitrations in the
world. Given the large number of claims lodged against Argentina, a very large number of
issues relating to the jurisdiction of investment tribunals and the admissibility of
investment claims have been raised on multiple occasions. This abundant case law has
certainly shaped investment arbitration and investment law, from recurrent issues to
several quite unique ones. This is the case, for instance, regarding mass claims, where
most of the few existing examples involve Argentina and have paved the way for a novel
form of pursuing investment arbitration claims.
A study of the case law on jurisdiction and admissibility questions in cases concerning
Argentina shows that they have generally been consistent and have also been in line with
the case law concerning other States. This is the case with respect to the fulfilment of the
negotiation requirement, the legal standing of shareholders, the nature of contract-
related claims and the relevance of forum selection clauses, the circumstances under
which an FIR provision is triggered, and the application of the directness requirement
and relevance of the Salini test under the ICSID Convention.
One aspect that is still not settled is the characterization of pre-arbitration
requirements, where the terms of each specific IIA play an important role. The most
inconsistencies are found with respect to the fulfilment of the litigation requirement and
the possibility of bypassing it through an MFN clause or based on futility. Likewise,
although the three tribunals that have dealt with mass claims reached similar
conclusions, they applied different reasoning, sometimes with divergences between the
members of each tribunal.
P 510
P 510
10
P 510
References
*) This chapter reflects the views of the authors only and not those of their law firm.
The authors are very grateful to Josh Goodman and Rosario Galardi, associates of
their team, for their invaluable research assistance.
1) See UNCTAD Policy Hub, https://investmentpolicy.unctad.org/international-
investment-agreements/countries/8/argentina. This chapter is based on publicly
available information as of August 2020.
2) An institutional arbitration is administered by an arbitral institution that provides
support to the parties and the tribunal.
3) Where an IIA refers to the UNCITRAL Rules without an administering institution, the
parties to the dispute may agree on entrusting an arbitral institution to administer
the arbitration, such as the Permanent Court of Arbitration in the Hague (PCA). The
PCA is an intergovernmental organization established by the Convention for the
Pacific Settlement of International Disputes in 1899 and provides dispute resolution
services. See ICS Inspection and Control Services Limited v. Argentina (PCA Case No.
2010-9), Award, paras 14-16.
4) See UNCTAD Policy Hub, https://investmentpolicy.unctad.org/investment-dispute-
settlement/country/8/argentina. Some of these cases are still ongoing.
5) While this chapter addresses the most significant admissibility and jurisdictional
issues, when appearing as respondent, Argentina has raised other admissibility and
jurisdictional objections that are not addressed in this chapter for being less
frequent or less controversial, such as the lack of a concrete dispute, estoppel,
dispute not being of a legal nature, and exclusion of tax measures. See, for instance,
the objections raised by Argentina in Pan American Sur LLC et al v. Argentina (ICSID
Case No. ARB/03/13 & ARB/04/8), Decision on Preliminary Objections, 27 July 2006.
Likewise, this chapter does not address any merit-related issues.
6) A Reinisch, ‘Jurisdiction and Admissibility in International Investment Law’ in A
Gattini, A Tanzi and F Fontanelli (eds), General Principles of Law and International
Investment Arbitration (2018), Brill Nijhoff 130, p 130; M Waibel ‘Investment
Arbitration: Jurisdiction and Admissibility’ in M Bungenberg, J Griebel, S Hobe, A
Reinisch (eds) International Investment Law: A Handbook (2015), Baden-Baden 1212,
p 1276; V Heiskanen, ‘Ménage à trois? Jurisdiction, Admissibility and Competence in
Investment Treaty Arbitration’ (2014) Vol 29 ICSID Review – Foreign Investment Law
Journal 231, p 231; S Blanchard ‘State Consent, Temporal Jurisdiction, and the
Importation of Continuing Circumstances Analysis into International Investment
Arbitration’ (2011) Vol 10 Washington University Global Studies Law Review 419, p 421.
By way of example, Article 79 of the Statute of the International Court of Justice (ICJ)
distinguishes between ‘any objection by the respondent to the jurisdiction of the
Court or to the admissibility of the application, […]’. This distinction is further
confirmed by the ICJ case law. See, for instance, South West Africa Cases (Ethiopia v.
South Africa; Liberia v. South Africa), Second Phase, ICJ Reports 1966, p 6, paras 74-76;
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgement,
I.C.J. Reports 2011, p 70, paras 129-135; Certain Questions of Mutual Assistance in
Criminal Matters (Djibouti v. France), Judgment, ICJ Reports 2008, p 177, para. 48.
7) CF Amerasinghe, Jurisdiction of Specific International Tribunals (2009), Brill Nijhoff, p
444; C Schreuer, ‘Consent to Arbitration’ in P Mulchinski, F Ortino and C Schreuer
(eds), The Oxford Handbook of International Investment Law (2008), Oxford University
Press 830, p 831; Z Douglas, The International Law of Investment Claims (2009),
Cambridge University Press, para. 302; C Schreuer, Commentary on the ICSID
Convention (2009), Cambridge University Press, paras 89, 91 and 92; V Heiskanen,
‘Ménage à trois? Jurisdiction, Admissibility and Competence in Investment Treaty
Arbitration’ (2014) Vol 29 ICSID Review – Foreign Investment Law Journal 231, p 237; L
Gouiffes and M Ordonez ‘Jurisdiction and Admissibility: Are We Any Closer to a Line
in the Sand?’ (2015) Vol 31 Arbitration International 107, p 109; A Reinisch ‘Jurisdiction
and Admissibility in International Investment Law’ in A Gattini, A Tanzi and F
Fontanelli (eds), General Principles of Law and International Investment Arbitration
(2018), Brill Nijhoff 130, p 131.
8) CF Amerasinghe, Jurisdiction of Specific International Tribunals (2009), Brill Nijhoff, pp
112-114; G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’
(1986) Vol 2 Cambridge Grotius, pp 438-439; M Waibel, ‘Investment Arbitration:
Jurisdiction and Admissibility’ in M Bungenberg, J Griebel, S Hobe and A Reinisch
(eds) International Investment Law: A Handbook (2015), Baden-Baden 1212, p 1276; V
Heiskanen, ‘Ménage à trois? Jurisdiction, Admissibility and Competence in
Investment Treaty Arbitration’ (2014) Vol 29 ICSID Review – Foreign Investment Law
Journal p 231; Z Douglas, The International Law of Investment Claims (2009),
Cambridge University Press, para. 310; A Reinisch ‘Jurisdiction and Admissibility in
International Investment Law’ in A Gattini, A Tanzi and F Fontanelli (eds), General
Principles of Law and International Investment Arbitration (2018), Brill Nijhoff 130; J
Paulsson, ‘Jurisdiction and Admissibility’ in G Aksen et al (eds), Global Reflections on
International Law, Commerce and Dispute Resolution Liber Amicorum in Honour of
Robert Briner (2005), ICC Publishing 601, p 601.
11
9) For cases involving other countries, see, for instance, Ioan Micula et al v. Romania
(ICSID Case No. ARB/05/20), Decision on Jurisdiction and Admissibility, 24
September 2008, para. 63; SGS Société Générale de Surveillance S.A. v. Philippines
(ICSID Case No. ARB/02/6), Decision of the Tribunal on Objections to Jurisdiction, 29
January 2004, para. 154; RosInvestCo UK Ltd. v. Russia (SCC Arbitration No. V
079/2005), Award on Jurisdiction, 1 October 2007, paras 152-156.
113; Z Douglas, The International Law of Investment Claims (2009), Cambridge
University Press, para. 292; C Schreuer, Commentary on the ICSID Convention (2009),
Cambridge University Press, para. 127; QC David and AR Williams ‘Part III Procedural
Issues, Chapter 22: Jurisdiction and Admissibility’ in P Muchlinski, F Ortino and C
Schreuer (eds) The Oxford Handbook of International Investment Law (2015), Oxford
University Press 868, p 872.
11) CF Amerasinghe, Jurisdiction of Specific International Tribunals (2009), Brill Nijhoff, pp
113, 487 and 488.
12) Z Douglas, The International Law of Investment Claims (2009), Cambridge University
Press, paras 291, 307; J Paulsson, ‘Jurisdiction and Admissibility’ in G Aksen et al
(eds), Global Reflections on International Law, Commerce and Dispute Resolution
Liber Amicorum in honour of Robert Briner (2005), ICC Publishing 601, pp 601 and 603;
L Gouiffes and M Ordonez ‘Jurisdiction and Admissibility: Are We Any Closer to a Line
in the Sand?’ (2015) Vol 31 Arbitration International 107, p 119; A Reinisch ‘Jurisdiction
and Admissibility in International Investment Law’ in A Gattini, A Tanzi and F
Fontanelli (eds), General Principles of Law and International Investment Arbitration
(2018), Brill Nijhoff 130, p 134.
114; J Paulsson, ‘Jurisdiction and Admissibility’ in G Aksen et al (eds), Global
Reflections on International Law, Commerce and Dispute Resolution Liber Amicorum in
Honour of Robert Briner (2005), ICC Publishing 601, p 601; A Reinisch ‘Jurisdiction and
Admissibility in International Investment Law’ in A Gattini, A Tanzi and F Fontanelli
(eds), General Principles of Law and International Investment Arbitration (2018), Brill
Nijhoff 130, p 134; L Gouiffes and M Ordonez ‘Jurisdiction and Admissibility: Are We
Any Closer to a Line in the Sand?’ (2015) Vol 31 Arbitration International 107, p 119.
14) J Paulsson, ‘Jurisdiction and Admissibility’ in G Aksen et al (eds), Global Reflections
on International Law, Commerce and Dispute Resolution Liber Amicorum in Honour of
Robert Briner (2005), ICC Publishing 601, pp 603 and 606; M Waibel ‘Investment
Arbitration: Jurisdiction and Admissibility’ in M Bungenberg, J Griebel, S Hobe and A
Reinisch (eds), International Investment Law: A Handbook (2015), Baden-Baden 1212,
p 1276; Z Douglas, The International Law of Investment Claims (2009), Cambridge
University Press, p 307. This rule does not apply to questions involving due process
or public policy, which are always reviewable. See J Paulsson, ‘Jurisdiction and
Admissibility’ in G Aksen et al (eds), Global Reflections on International Law,
Commerce and Dispute Resolution Liber Amicorum in Honour of Robert Briner (2005),
ICC Publishing 601, p 603. Some State courts may apply other specific exceptions.
For example, Swiss courts conduct a de novo review when the seat of the arbitration
is abroad. See W Park, ‘The Arbitrator’s Jurisdiction to Determine Jurisdiction’ (2007)
Boston University School of Law Public Law & Legal Theory Paper Series, Paper No. 17-
33, p 49; A Reinisch ‘Jurisdiction and Admissibility in International Investment Law’
in A Gattini, A Tanzi and F Fontanelli (eds), General Principles of Law and
International Investment Arbitration (2018), Brill Nijhoff 130, p 134.
15) ICSID Convention, Articles 50-52. Notably, this is also the case in proceedings
conducted before the ICJ since its judgements are final and not subject to any
review. Statute of the International Court of Justice, 24 October 1945, Articles 60 and
61.
16) For instance, the tribunal in Pan American analysed the negotiation requirement
under the US-Argentina BIT and considered that parts of the relevant provision
suggested that it was optional, whereas other parts suggested that it was a condition
to consent (although in the end it considered that the requirement had been met).
Pan American Sur LLC et al v. Argentina (ICSID Case No. ARB/03/13 & ARB/04/8),
Decision on Preliminary Objections, 27 July 2006, paras 41-43 and 50.
17) J Paulsson, ‘Jurisdiction and Admissibility’ in G Aksen et al (eds), Global Reflections
on International Law, Commerce and Dispute Resolution Liber Amicorum in honour
of Robert Briner (2005) ICC Publishing 601, p 603; Methanex Corporation v. The United
States of America (UNCITRAL), Partial Award, 7 August 2002, para. 139.
18) C Schreuer, Commentary on the ICSID Convention (2009), Cambridge University Press,
para. 540; C Santulli, Droit du contentieux international (2005), Montchrestien, para.
255; G Born and M Šćekić, ‘Pre-Arbitration Procedural Requirements’ in D Caron, SW
Schill, AC Smutny and EE Triantafilou (eds) Practising Value: Inside International
Arbitration (2015); Oxford Scholarship Online 227, pp 243-246. See also Wintershall
Aktiengesellschaft v. Argentina (ICSID Case No. ARB/04/14), Award, 8 December 2008,
p 143.
12
19) CF Amerasinghe, Jurisdiction of Specific International Tribunals, Brill Nijhoff (2009) pp
438-439; C Schreuer, ‘Consent to Arbitration’ in P Mulchinski, F Ortino and C Schreuer
(eds), The Oxford Handbook of International Investment Law (2008) 272, p 831; Z
Douglas, The International Law of Investment Claims, (2009) Cambridge University
Press, para. 302; V Heiskanen, ‘Ménage à trois? Jurisdiction, Admissibility and
Competence in Investment Treaty Arbitration’ (2014) Vol 29 ICSID Review – Foreign
Investment Law Journal 231, p 237; L Gouiffes and M Ordonez, ‘Jurisdiction and
Admissibility: Are We Any Closer to a Line in the Sand?’ (2015) Vol 31 Arbitration
International 107, p 119; A Reinisch, ‘Jurisdiction and Admissibility in International
Investment Law’ in A Gattini, A Tanzi and F Fontanelli (eds), General Principles of Law
and International Investment Arbitration (2018), Brill Nijhoff 130, p 131.
20) Enron Corporation and Ponderosa Assets L.P. v. Argentina (ICSID Case No. ARB/01/13),
Decision on Jurisdiction, 14 January 2004, para. 88.
21) Impregilo S.p.A. v. Argentina (ICSID Case No. ARB/07/17), Award, 21 June 2011, para. 90.
The tribunals in Ambiente Ufficio and Alemanni also concluded that the litigation
requirement in the Italy-Argentina BIT was binding. Ambiente Ufficio S.P.A. et al v.
Argentina (ICSID Case No. ARB/08/9), Decision on Jurisdiction and Admissibility, 8
February 2013, para. 596; Giovanni Alemanni et al v. Argentina (ICSID Case No.
ARB/07/8), Decision on Jurisdiction and Admissibility, 17 November 2014, para. 306.
See also Urbaser S.A. et al v. Argentina (ICSID Case No. ARB/07/26), Decision on
Jurisdiction, 19 December 2012, para. 138; ICS Inspection and Control Services Limited
v. Argentina (PCA Case No. 2010-9), Award on Jurisdiction, 10 February 2012, para. 262.
22) Wintershall Aktiengesellschaft v. Argentina (ICSID Case No. ARB/04/14), Award, 8
December 2008, paras 115-116.
23) Daimler Financial Services AG v. Argentina (ICSID Case No. ARB/05/1), Award, 22
August 2012, paras 192-193.
24) See, for instance, Kılıç v. Turkmenistan (ICSID Case No. ARB/10/1), Award, 2 July 2013,
para. 6.3.15; Burlington Resources Inc. v. Ecuador (ICSID Case No. ARB/08/5), Decision
on Jurisdiction, 2 June 2010, paras 315-318.
25) With respect to the litigation requirement, see Gas Natural SDG S.A. v. Argentina
(ICISD Case No. ARB/03/10), Decision of the Tribunal on Preliminary Questions on
Jurisdiction, 17 June 2005, para. 30; Telefónica S.A. v. Argentina (ICSID Case No.
ARB/03/20), Decision of the Tribunal on Objections to Jurisdiction, 25 May 2006,
para. 93; Hochtief AG v. Argentina (ICSID Case No. ARB/07/31), Decision on
Jurisdiction, 24 October 2011, paras 95-96. With respect to the negotiation
requirement, see Abaclat et al v. Argentina (ICSID Case No. ARB/07/5), Decision on
Jurisdiction and Admissibility, 4 August 2011, para. 496; Casinos Austria International
GmbH et al v. Argentina (ICSID Case No. ARB/14/32), Decision on Jurisdiction, 29 June
2018, para. 284.
26) See, for instance, Bayindir v. Pakistan (ICSID Case No. ARB/03/29), Decision on
Jurisdiction, 14 November 2005, paras 100-101; Biwater Gauff Ltd. v. Tanzania (ICSID
Case No. ARB/05/22), Award, 24 July 2008, para. 343; Alps Finance and Trade AG v.
Slovakia (UNCITRAL), Award, 5 March 2011, para. 204.
27) See L Gouiffes and M Ordonez, ‘Jurisdiction and Admissibility: Are We Any Closer to a
Line in the Sand?’ (2015) Vol 31 Arbitration International 107, p 110. See also Z Douglas,
The International Law of Investment Claims (2009) Cambridge University Press, paras
309-310; CF Amerasinghe, Jurisdiction of Specific International Tribunals (2009), Brill
Nijhoff, p 112.
28) Hochtief AG v. Argentina (ICSID Case No. ARB/07/31), Decision on Jurisdiction, 24
October 2011, paras 95-96.
29) BG Group PLC v. Argentina (UNCITRAL), Award, 24 December 2007, paras 141, 157.
30) BG Group PLC v. Argentina, 572 U.S. Supreme Court, 5 March 2014, p 8.
31) BG Group PLC v. Argentina, 572 U.S. Supreme Court, 5 March 2014, Concurring Opinion
of Justice Sotomayor, p 3.
32) Teinver S.A. et al v. Argentina (ICSID Case No. ARB/09/1), Decision on Jurisdiction, 21
December 2012, para. 129; CMS Gas Transmission Company v. Argentina (ICSID Case
No. ARB/01/8), Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003,
para. 123.
33) See, for instance, Argentina-US BIT (1991), Article VII; Argentina-Germany BIT (1991),
Article 10; Argentina-Belgium-Luxembourg Economic Union (BLEU) BIT (1990), Article
12; Argentina-Spain BIT (1991), Article 10; Argentina-France BIT (1991), Article 8.2;
Argentina-China BIT (1992), Article 8.2.
34) Argentina-US BIT (1991), Article VII.3(a); Argentina-Spain BIT (1991), Article X.2;
Argentina-Germany BIT (1991), Article 10.2; Argentina-France BIT (1991), Article 8;
Argentina-China BIT (1992), Article 8.2. A few BITs specify a period of three months for
negotiations: Argentina-Netherlands BIT (1992), Article 10 (2); Argentina-Guatemala
BIT (1998), Article IX (2).
35) Argentina-BLEU BIT (1990), Article 12.2; Argentina-Italy BIT (1990), Article 8.2;
Argentina-Australia BIT (1995), Article 13; Argentina-Canada BIT (1991), Article X.
13
36) Argentina-Germany BIT (1991), Article 10.2; Argentina-Spain BIT (1991), Article X.2;
Argentina-France (1991), Article 8.2; Argentina-Netherlands BIT (1992), Article X.2;
Argentina-Korea BIT (1994), Article 8.2; Argentina-China BIT (1992), Article 8.2;
Argentina-Hungary BIT (1993), Article 10.2; Argentina-Denmark BIT (1992), Article 9.2;
Argentina-Israel BIT (1995), Article 8.2; Argentina-Finland BIT (1993), Article 9.2;
Argentina-Bulgaria BIT (1993), Article 10(2); Argentina-Costa Rica BIT (1997), Article
12(2); Argentina-Croatia BIT (1994), Article 9(7); Argentina-Cuba BIT (1995), Article 9(2);
Argentina-Ecuador BIT (1994), Article 9(1); Argentina-Egypt BIT (1992), Article 10(2);
Argentina-El Salvador BIT (1996), Article 9(2); Argentina-Lithuania BIT (1996), Article
9(2), Argentina-Malaysia BIT (1994), Article 9(2); Argentina-Mexico BIT (1996), Article
10.3; Argentina-New Zealand BIT (1999), Article 12(2).
37) Argentina-US BIT (1991), Article VII.3(a).
38) Argentina-Austria BIT (1993), Article 8(2).
39) While the obligation to engage in negotiations is considered one of best efforts, the
investor cannot simply wait for the period to elapse. Teinver S.A. et al v. Argentina
(ICSID Case No. ARB/09/1), Decision on Jurisdiction, 21 December 2012, paras 108 and
111; Casinos Austria International GmbH et al v. Argentina (ICSID Case No. ARB/14/32),
Decision on Jurisdiction, 29 June 2018, para. 284.
40) Irrespective of the characterization of such an objection, Argentina (like other
States) has sometimes raised it as either one of jurisdiction and/or admissibility.
41) Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Decision on Jurisdiction, 3
August 2004, para. 164; Teinver S.A. et al v. Argentina (ICSID Case No. ARB/09/1),
Decision on Jurisdiction, 21 December 2012, paras 81-82. Separately, tribunals in
cases with Argentina have analysed whether the fact that the parties were still
undergoing negotiations would mean that the dispute was not yet ripe, but they
have always rejected this position for being unfounded on international law, noting
that the parties can always continue negotiations during the arbitration. See
Telefónica S.A. v. Argentina (ICSID Case No. ARB/03/20), Decision of the Tribunal on
Objections to Jurisdiction, 25 May 2006, para. 116; AES Corporation v. Argentina (ICSID
Case No. ARB/02/17), Decision on Jurisdiction, 26 April 2005, paras 63, 65 and 69;
Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16), Decision on
Objections to Jurisdiction, 11 May 2005, para. 108; Camuzzi International S.A. v.
Argentina I (ICSID Case No. ARB/03/2), Decision on Objections to Jurisdiction, 11 May
2005, para. 97.
42) In Siemens, under the Germany-Argentina BIT, the tribunal found that the claims in
the request for arbitration were more detailed than, but otherwise identical to,
those in the initial notification, and that the memorial did not contain any new facts
or claims that would not have been encompassed by the notification of the dispute.
Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Decision on Jurisdiction, 3
August 2004, paras 170-173. See also Teinver S.A. et al v. Argentina (ICSID Case No.
ARB/09/1) Decision on Jurisdiction, 21 December 2012, para. 125.
43) A different situation occurs where during the arbitration, the claimant attempts to
add claims based on substantially different facts. See, for instance, Burlington
Resources Inc. v. Ecuador (ICSID Case No. ARB/08/5), Decision on Jurisdiction, 2 June
2010, paras 307-309 and 316.
44) Teinver S.A. et al v. Argentina (ICSID Case No. ARB/09/1), Decision on Jurisdiction, 21
45) CMS Gas Transmission Company v. Argentina (ICSID Case No. ARB/01/8), Decision of
the Tribunal on Objections to Jurisdiction, 17 July 2003, paras 114-115 and 121-123.
Decision on Jurisdiction, 14 January 2004, paras 86-87.
47) LG&E Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/1), Decision on
Jurisdiction, 30 April 2004, paras 79-82.
48) Abaclat et al v. Argentina (ICSID Case No. ARB/07/5), Decision on Jurisdiction and
Admissibility, 4 August 2011, paras 65-66.
49) Ibid., paras 557-558.
50) Ibid., paras 561-562.
51) Bayindir v. Pakistan (ICSID Case No. ARB/03/29), Decision on Jurisdiction, 14
November 2005, paras 101-103; Alps Finance and Trade AG v. Slovakia (UNCITRAL),
Award, 5 March 2011, paras 208-209; Tenaris S.A. et al v. Venezuela (ICSID Case No.
ARB/11/26), Award, 12 December 2016, paras 241-243; Swisslion DOO Skopje v.
Macedonia (ICSID Case No. ARB/09/16), Award, 6 July 2012, para. 138.
52) In TSA Spectrum, where the Netherlands-Argentina BIT referred to the possibility of
submitting the dispute to the administrative authorities, the requirement was
considered met with an administrative recourse to the Ministry of Planning. TSA
Spectrum de Argentina S.A. v. Argentina (ICSID Case No. ARB/05/5), Award, 19
December 2008, paras 110, 113. However, in Casinos Austria, where the Austria-
Argentina BIT also referred to the local administrative authorities, the tribunal held
that a recourse to the same administrative body that had issued the measures
requesting a reconsideration of said measures was not enough to fulfil the
requirement. Casinos Austria International GmbH et al v. Argentina (ICSID Case No.
ARB/14/32), Decision on Jurisdiction, 29 June 2018, para. 309.
14
53) See, for instance, Casinos Austria International GmbH et al v. Argentina (ICSID Case
No. ARB/14/32), Decision on Jurisdiction, 29 June 2018, para. 297; Urbaser S.A. et al v.
Argentina (ICSID Case No. ARB/07/26), Decision on Jurisdiction, 19 December 2012,
para. 181; Teinver S.A. et al v. Argentina (ICSID Case No. ARB/09/1), Decision on
Jurisdiction, 21 December 2012, para. 135.
54) Argentina-Netherlands BIT (1992), Article 10(3); Argentina-United Kingdom BIT (1990),
Article 8(3)(a); Argentina-Germany BIT (1991), Article 10(3)(a); Argentina-Switzerland
BIT (1991), Article 9(3); Argentina-BLEU BIT (1990), Article 12(3). See UNCTAD Policy
Hub, https://investmentpolicy.unctad.org/international-investment-
agreements/countries/8/argentina. Most BITs that have a litigation requirement
also have cooling-off period requirement, which may be incompatible with
Argentine domestic law that sets tight deadlines for bringing administrative and
judicial claims.
55) See UNCTAD database, http://investmentpolicyhub.unctad.org/IIA.
56) It must be noted that invoking the MFN clause to bypass the litigation requirement
is different than invoking it to extend jurisdiction to matters not covered by the
treaty in question. See Plama Consortium Limited v. Bulgaria (ICSID Case No.
ARB/03/2), Decision on Jurisdiction, 8 February 2005, paras 183-184 and 217-218;
Vladimir Berschader and Moïse Berschader v. Russia (SCC Case No. 080/2004), Award,
21 April 2006, para. 208; Telenor Mobile Communications A.S. v. Hungary (ICSID Case
No. ARB/04/15), Award, 13 September 2006, paras 89-91.
57) Argentina-Spain BIT (1991), Article IV, captioned ‘Treatment’: 1. Each Party shall
guarantee in its territory the fair and equitable treatment of investments made by
investors of the other Party. 2. In all matters governed by this Agreement, such
treatment shall not be less favourable than that accorded by each Party to
investments made in its territory by investors of a third country. 3. Such treatment
shall not extend, however, to the privileges which either Party may grant to investors
of a third State by virtue of its participation in: a free trade area; a customs union; a
common market; a regional integration agreement; or an organization of mutual
economic assistance by virtue of an agreement concluded prior to the entry into
force of this Agreement, containing terms analogous to those accorded by that Party
to participants of the said organization. 4. The treatment accorded under this
article shall not extend to tax deductions or exemptions or other analogous
privileges granted by either Party to investors of third countries by virtue of an
agreement to prevent double taxation or any other tax agreement. (Emphasis
added).
58) Argentina-Spain BIT (1991), Article IV(2).
59) Gas Natural SDG S.A. v. Argentina (ICISD Case No. ARB/03/10), Decision of the
Tribunal on Preliminary Questions on Jurisdiction, 17 June 2005, paras 49; Telefónica
S.A. v. Argentina (ICSID Case No. ARB/03/20), Decision of the Tribunal on Objections
to Jurisdiction, 25 May 2006, paras 102-105; Suez Sociedad General de Aguas de
Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v. Argentina (ICSID Case
No. ARB/03/17), Decision on Jurisdiction, 16 May 2006, para. 66; Suez Sociedad
General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v. Argentina (ICSID Case
No. ARB/03/19), Decision on Jurisdiction, 3 August 2006, para. 68; Teinver et al v.
para. 186. The same solution was reached in Maffezini v. Spain, also under the
Argentina-Spain BIT. Emilio Agustín Maffezini v. Spain (ICSID Case No. ARB/97/7),
Decision on Jurisdiction, 25 January 2000, para. 64.
60) Impregilo S.p.A. v. Argentina (ICSID Case No. ARB/07/17), Award, 21 June 2011, paras
103-104 and 108.
61) Argentina-United Kingdom BIT (1990), Article 3: (1) Neither Contracting Party shall in
its territory subject investments or returns of investors of the other Contracting Party
to treatment less favourable than that which it accords to investments or returns of
its own investors or to investments or returns of investors of any third State; (2)
Neither Contracting Party shall in its territory subject investors of the other
Contracting Party, as regards their management, maintenance, use, enjoyment or
disposal of their investments, to treatment less favourable than that which it accords
to its own investors or to investors of any third State. (Emphasis added).
Argentina-Germany BIT (1991), Article 3: (1) Neither Contracting Party shall subject
investments in its territory by or with the participation of nationals or companies of
the other Contracting Party to treatment less favourable than it accords to
investments of its own nationals or companies or to investments of nationals or
companies of any third State. (2) Neither Contracting Party shall subject nationals or
companies of the other Contracting Party, as regards their activity in connection
with investments in its territory, to treatment less favourable than it accords to its
own nationals or companies or to nationals or companies of any third State. […].
(Emphasis added).
62) National Grid PLC v. Argentina (UNCITRAL), Decision on Jurisdiction, 20 June 2006,
para. 93; Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Decision on
Jurisdiction, 3 August 2004, para. 102; AWG Group Ltd v. Argentina (UNCITRAL),
Decision on Jurisdiction, 3 August 2006, para. 59.
15
63) Hochtief AG v. Argentina (ICSID Case No. ARB/07/31), Decision on Jurisdiction, 24
October 2011, paras 63-66.
para. 82.
65) ICS Inspection and Control Services Limited v. Argentina (PCA Case No. 2010-9), Award
on Jurisdiction, 10 February 2012, paras 278-280, 296.
66) The tribunal in Daimler found that some textual clues in the treaty indicated that
the MFN clause referred to the host State’s direct treatment of the investment and
not an arbitration arising out of such treatment. Daimler Financial Services AG v.
Argentina (ICSID Case No. ARB/5/1), Award, 22 August 2012, paras 224, 236, 281.
(Arbitrator Charles N. Brower dissented). The tribunal in Wintershall also noted that
the litigation requirement is part of the integrated offer to arbitration which must
be accepted on the same terms. Wintershall Aktiengesellschaft v. Argentina (ICSID
Case No. ARB 4/14), Award, 8 December 2008, paras 156-157, 162 and 197. See also
Kiliç v. Turkmenistan (ICSID Case No. ARB/10/1), Award, 2 July 2013, sections 7.6 and
7.9.
67) The futility argument has also been invoked by investors to bypass the negotiation
requirement. See, for instance, Teinver S.A. et al v. Argentina (ICSID Case No.
ARB/09/1), Decision on Jurisdiction, 21 December 2012, para. 126.
68) Urbaser S.A. et al v. Argentina (ICSID Case No. ARB/07/26), Decision on Jurisdiction, 19
69) BG Group PLC v. Argentina (UNCITRAL), Award, 24 December 2007, paras 155-157.
70) Ibid., paras 147, 157. This award was confirmed by the US Supreme Court. BG Group
PLC v. Argentina, US Supreme Court, 5 March 2014.
Admissibility, 4 August 2011, para. 590.
72) Giovanni Alemanni et al v. Argentina (ICSID Case No. ARB/07/8), Decision on
Jurisdiction and Admissibility, 17 November 2014, paras 315-317; Ambiente Ufficio
S.P.A. et al v. Argentina (ICSID Case No. ARB/08/9), Decision on Jurisdiction and
Admissibility, 8 February 2013, paras 620-621.
73) For example, the tribunal in Burlington Resources dismissed part of Burlington’s
claim for failure to respect a six-month waiting period after the trigger letter.
Burlington Resources Inc. v. Ecuador (ICSID Case No. ARB/08/5), Decision on
Jurisdiction, 2 June 2010, paras 313-314. See İçkale İnşaat Limited Şirketi v.
Turkmenistan (ICSID Case No. ARB/10/24), Award, 8 March 2016, para. 260, where the
tribunal rejected the futility argument for not being provided in the applicable BIT.
See also Kiliç v. Turkmenistan (ICSID Case No. ARB/10/1), Award, 2 July 2013, section
8.1; Philip Morris Brands Sàrl et al v. Uruguay (ICSID Case No. ARB/10/7), Decision on
Jurisdiction, 2 July 2013, para. 137.
74) Casinos Austria International GmbH et al v. Argentina (ICSID Case No. ARB/14/32),
Decision on Jurisdiction, 29 June 2018, para. 315; Teinver S.A. et al v. Argentina (ICSID
Case No. ARB/09/1), Decision on Jurisdiction, 21 December 2012, para. 135.
75) Philip Morris Brands Sàrl et al v. Uruguay (ICSID Case No. ARB/10/7), Decision on
Jurisdiction, 2 July 2013, paras 148-149.
Dissenting Opinion of Arbitrator Santiago Torres Bernárdez, 20 June 2018, para. 163.
77) The Netherlands-Argentina BIT accepted the administrative proceedings to fulfil the
treaty requirement. TSA Spectrum de Argentina S.A. v. Argentina (ICSID Case No.
ARB/05/5), Award, 19 December 2008, paras 9-10, 107.
78) TSA Spectrum de Argentina S.A. v. Argentina (ICSID Case No. ARB/05/5), Award, 19
December 2008, para. 108.
79) Ibid., paras 111-113.
80) In Teinver, the Argentine Government had initiated domestic expropriation
proceedings against the claimant’s local subsidiary. Teinver et al v. Argentina (ICSID
Case No. ARB/09/1), Decision on Jurisdiction, 21 December 2012, paras 85, 130-134.
81) Urbaser S.A. et al v. Argentina (ICSID Case No. ARB/07/26), Decision on Jurisdiction, 19
82) Salini Imperglio S.p.A. v. Argentina (ICSID Case No. ARB/15/39), Decision on
Jurisdiction and Admissibility, 23 February 2018, paras 123 and 133.
Decision on Jurisdiction, 29 June 2018, paras 1, 307, 310. Arbitrator Torres Bernárdez
dissented and suggested a stricter test; he underscored that the subject matter of
the domestic proceedings was the annulment of certain regulatory resolutions,
whereas the subject matter of the arbitration was compensation for breaches of the
BIT (Dissenting Opinion, paras 98 and 141).
84) See, for instance, Philip Morris Brands Sàrl et al v. Uruguay (ICSID Case No. ARB/10/7),
Decision on Jurisdiction, 2 July 2013, paras 42, 113-114.
85) Repsol, S.A. and Repsol Butano, S.A. v. Argentina (ICSID Case No. ARB/12/38).
86) See, for instance, Venezuela Holdings, B.V. et. al v. Venezuela (ICSID Case No.
ARB/07/27), Decision on Jurisdiction, 10 June 2010, para. 165; Ioannis Kardassopoulos
v. Georgia (ICSID Case No. ARB/05/18), Decision on Jurisdiction, 6 July 2007, paras
123-124; Guaracachi America, Inc. and Rurelec PLC v. Bolivia (UNCITRAL, PCA Case No.
2011-17), Award, 31 January 2014, paras 348-349.
87) The debate on shareholders’ claims has been raised both as jurisdictional and as
admissibility issues.
16
88) The Belgian Government sought reparation for damages allegedly caused to Belgian
nationals, shareholders in the Canadian Barcelona Traction Company, by Spain.
Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain), Judgment, I.C.J.
Reports 1970, paras 44-47.
89) Daimler Financial Services AG v. Argentina (ICSID Case No. ARB/05/1), Award, 22
August 2012, para. 90; Teinver S.A. et al v. Argentina (ICSID Case No. ARB/09/1),
Decision on Jurisdiction, 21 December 2012, paras 218-219; Pan American Energy LLC
et al v. Argentina (ICSID Case No. ARB/03/13 & ARB/04/8), Decision on Preliminary
Objections, 27 July 2006, paras 216-218; Telefónica S.A v. Argentina (ICSID Case No.
para. 83; Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16),
Decision on Objections to Jurisdiction, 11 May 2005, paras 151-153; Suez, Sociedad
General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v.
Argentina (ICSID Case No. ARB/03/17), Decision on Jurisdiction, 16 May 2006, para. 50;
Total S.A. v. Argentina (ICSID Case No. ARB/04/01), Decision on Objections to
Jurisdiction, 25 August 2006, para. 78; Camuzzi International S.A. v. Argentina II (ICSID
Case No. ARB/03/7), Decision on Objections to Jurisdiction, 10 June 2005, para. 44;
Camuzzi International S.A. v. Argentina I (ICSID Case No. ARB/03/2), Decision on
Objections to Jurisdiction, 11 May 2005, paras 138-140; Azurix Corp. v. Argentina (ICSID
Case No. ARB/01/12), Decision on Jurisdiction, 8 December 2003, para. 72; LG&E
Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/1), Decision on Jurisdiction, 30
April 2004, para. 52; CMS Gas Transmission Company v. Argentina (ICSID Case No.
ARB/01/8), Decision of the Tribunal on Objections to Jurisdiction, 17 July 2003, para.
45.
the Tribunal on Objections to Jurisdiction, 17 July 2003, paras 48-52, 56; Gas Natural
SDG S.A. v. Argentina (ICISD Case No. ARB/03/10), Decision of the Tribunal on
Preliminary Questions on Jurisdiction, 17 June 2005, para. 35; Suez, Sociedad General
de Aguas Barcelona S.A. and Vivendi Universal S.A. v. Argentina (ICSID Case No.
ARB/03/19), Decision on Jurisdiction, 3 August 2006, para. 51; Continental Casualty
Company v. Argentina (ICSID Case No. ARB 03/9), Decision on Jurisdiction, 22
February 2006, paras 79-80 and 86; Pan American Energy LLC et al v. Argentina (ICSID
Case No. ARB/03/13 & ARB/04/8), Decision on Preliminary Objections, 27 July 2006,
paras 217-219; Total S.A. v. Argentina (ICSID Case No. ARB/04/01), Decision on
Objections to Jurisdiction, 25 August 2006, para. 80; Impregilo S.p.A. v. Argentina
(ICSID Case No. ARB/07/17), Award, 21 June 2011, paras 137-140; Hochtief AG v.
Argentina (ICSID Case No. ARB/07/31), Decision on Jurisdiction, 24 October 2011,
paras 116-119; Daimler Financial Services AG v. Argentina (ICSID Case No. ARB/05/1),
Award, 22 August 2012, paras 83-84; Compañía de Aguas del Aconquija S.A. and Vivendi
Universal S.A. v. Argentina (ICSID Case No. ARB/97/3), Decision on Jurisdiction, 14
November 2005, paras 90-93; Azurix Corp v. Argentina (ICSID Case No. ARB/01/12),
Decision on Jurisdiction, 8 December 2003, paras 64 and 74; LG&E Energy Corp. et al
v. Argentina (ICSID Case No. ARB/02/01), Decision on Jurisdiction, 30 April 2004,
paras 61-63; Enron Corporation and Ponderosa Assets L.P. v. Argentina (ICSID Case No.
ARB/01/13), Decision on Jurisdiction (Ancillary Claim), 2 August 2004, paras 27-31;
August 2004, paras 141-142; Urbaser S.A. et al v. Argentina (ICSID Case No. ARB/07/26),
Decision on Jurisdiction, 19 December 2012, paras 237-249; Teinver S.A. et al v.
paras 214, 221 and 225; Salini Impregilo S.p.A. v. Argentina (ICSID Case No. ARB/15/39),
Decision on Jurisdiction and Admissibility, 23 February 2018, paras 179-183; Casinos
Austria International GmbH et al v. Argentina (ICSID Case No. ARB/14/32), Decision on
Jurisdiction, 29 June 2018, para. 195.
91) Camuzzi International S.A. v. Argentina I (ICSID Case No. ARB/03/2), Decision on
Objections to Jurisdiction, 11 May 2005, para. 64; Continental Casualty Company v.
Argentina (ICSID Case No. ARB/03/9), Decision on Jurisdiction, 22 February 2006,
paras 85-86; Azurix Corp v. Argentina (ICSID Case No. ARB/01/12), Decision on
Jurisdiction, 8 December 2003, paras 73-74; Sempra Energy International v. Argentina
(ICSID Case No. ARB/02/16), Decision on Objections to Jurisdiction, 11 May 2005,
paras 76-79. These cases dealt with BITs that expressly cover indirect investments,
i.e., Argentina-US BIT (1991), Article I(1)(a); Argentina-BLEU BIT (1990), Article I(2).
the Tribunal on Objections to Jurisdiction, 17 July 2003, paras 55-56, 65 and 68; Enron
Corporation and Ponderosa Assets L.P. v. Argentina (ICSID Case No. ARB/01/13),
Decision on Jurisdiction, 14 January 2004, paras 37-39.
August 2004, para. 137; Teinver et al v. Argentina (ICSID Case No. ARB/09/1), Decision
on Jurisdiction, 21 December 2012, paras 231-232; Urbaser S.A. et al v. Argentina (ICSID
Case No. ARB/07/26), Decision on Jurisdiction, 19 December 2012, para. 250; LG&E
Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/01), Decision on Jurisdiction,
30 April 2004, para. 63.
17
94) Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16), Decision on
Objections to Jurisdiction, 11 May 2005, paras 93-94; Camuzzi International S.A. v.
2005, para. 32; LG&E Energy Corp., et al v. Argentina (ICSID Case No. ARB/02/1),
Decision on Jurisdiction, 30 April 2004, para. 50; CMS Gas Transmission Company v.
Argentina (ICSID Case No. ARB/01/8), Decision of the Tribunal on Objections to
Jurisdiction, 17 July 2003, paras 55-56; Hochtief AG v. Argentina (ICSID Case No.
ARB/07/31), Decision on Jurisdiction, 24 October 2011, para. 115. See also Lanco
International Inc. v. Argentina (ICSID Case No. ARB/97/6), Preliminary Decision, 8
95) For example, the tribunal in CMS admitted claims related to its indirect local
subsidiary’s licence. CMS Gas Transmission Company v. Argentina (ICSID Case No.
ARB/01/8), Decision on Objections to Jurisdiction, 17 July 2003, paras 40, 48. In Enron,
the tribunal also held that Enron’s claims under its indirect subsidiary’s licence
were admissible since Enron had been specifically invited by the Argentine
Government to participate in the investment concerning a privatization of a local
company. Enron Corporation and Ponderosa Assets L.P. v. Argentina (ICSID Case No.
ARB/01/13), Decision on Jurisdiction, 14 January 2004, para. 55. See the analysis in Z
Douglas, The International Law of Investment Claims (2009), Cambridge University
Press, pp 432, 438. In BG, the tribunal held that any claim concerning the license
held solely by MetroGAS (local subsidiary) should be declared inadmissible given
that the applicable BIT did not provide a mechanism for BG to bring claims derived
from the license on behalf of MetroGAS. BG Group PLC v. Argentina (UNCITRAL),
Award, 24 December 2007, paras 214, 217.
96) Convention on the Settlement of Investment Disputes Between States and Nationals
of Other States, 18 March 1965, Article 25. The ratione personae requirement in this
provision is that the claimant must be a national of a contracting State of the ICSID
Convention.
97) Notably, an official report confirms that the lack of a definition was the subject of
some deliberation. International Bank for Reconstruction and Development, Report
of the Executive Directors on the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, 18 March 1965, para. 27.
98) Salini Costruttori S.P.A. and Italstrade S.P.A. v. Morocco (ICSID Case No. ARB/00/4),
Decision on Jurisdiction, 16 July 2001, para. 52.
99) Patrick Mitchell v. Congo (ICSID Case No. ARB/99/7), Decision on the Application for
Annulment of the Award, 1 November 2006, para. 27; Bayindir v. Pakistan (ICSID Case
No. ARB/03/29), Decision on Jurisdiction, 14 November 2005, para. 130; Helnan
International Hotels A/S v. Egypt (ICSID Case No. ARB 05/19), Decision on Jurisdiction,
17 October 2006, para. 77; Noble Energy Inc. et al v. Ecuador (ICSID Case No.
ARB/05/12, Decision on Jurisdiction), 5 March 2008, para. 128; Joy Mining Machinery
Limited v. Egypt (ICSID Case No. ARB/03/11), Award on Jurisdiction, 6 August 2004,
para. 53.
100) See, for instance, Romak S.A. v. Uzbekistan (PCA Case No. AA280), Award, 26
November 2006, para. 207.
101) Biwater Gauff Ltd. v. Tanzania (ICSID Case No. ARB/05/22), Award, 24 July 2008, paras
312-316; Patrick Mitchell v. Congo (ICSID Case No. ARB/99/3), Excerpts of Award, 9
February 2004, para. 56; Deutsche Bank AG v. Sri Lanka (ICSID Case No. ARB/09/2),
Award, 31 October 2012, para. 294; MNSS B.V. and Recupero Credito Acciaio N.V. v.
Montenegro (ICSID Case No. ARB(AF)/12/8), Award, 4 May 2016, para. 189. See also
Standard Chartered Bank Limited v. Tanzania II (ICSID Case No. ARB/15/41), Award of
the Tribunal, 11 October 2019, para. 200; Philip Morris Brand Sàrl et al v. Uruguay
(ICSID Case No. ARB/10/7), Decision on Jurisdiction, 2 July 2013, paras 204-206;
Hassan Awdi et al v. Romania (ICSID Case No. ARB/10/13), Award, 2 March 2015, paras
197-199; C Schreuer, Commentary on the ICSID Convention (2009), Cambridge
University Press, para. 171.
Admissibility, 4 August 2011, paras 363-364. Giovanni Alemanni et al v. Argentina
(ICSID Case No. ARB/07/8), 17 November 2014, para. 188; Ambiente Ufficio S.P.A. et al
v. Argentina (ICSID Case No. ARB/08/9), Decision on Jurisdiction and Admissibility, 8
February 2013, paras 478-479.
103) Ambiente Ufficio S.P.A. et al v. Argentina (ICSID Case No. ARB/08/9), Decision on
Jurisdiction and Admissibility, 8 February 2013, para. 479. In AES Corporation, the
tribunal also considered elements similar to those of the Salini test. AES Corporation
v. Argentina (ICSID Case No. ARB/02/17), Decision on Jurisdiction, 26 April 2005, para.
88. See also Biwater Gauff Ltd. v. Tanzania (ICSID Case No. ARB/05/22), Award, 24 July
2008, paras 314-316; Patrick Mitchell v. Congo (ICSID Case No. ARB/99/3), Excerpts of
Award, 9 February 2004, para. 56; Deutsche Bank AG v. Sri Lanka (ICSID Case No.
ARB/09/2), Award, 31 October 2012, para. 294; MNSS B.V. and Recupero Credito
Acciaio N.V. v. Montenegro (ICSID Case No. ARB(AF)/12/8), Award, 4 May 2016, para.
189.
Admissibility, 4 August 2011, paras 363-364.
105) Ibid., para. 364.
106) Ibid., para. 52.
18
Decision on Jurisdiction, 29 June 2018, paras 188-189.
108) Ibid., paras 190-191. Some annulment committees have found that contribution to
the host State development is a necessary component in light of the ICSID
Convention’s object and purpose to contribute to economic development, as
expressed in its preamble. See, for instance, Patrick Mitchell v. Congo (ICSID Case No.
ARB/99/7), Decision on the Application for Annulment of the Award, 1 November
2006, paras 28-30; Malaysian Historical Salvors et al v. Malaysia (ICSID Case No.
ARB/05/10), Award on Jurisdiction, 17 May 2007, para. 123. Other ICSID tribunals and
annulment committees object to the inclusion of this criterion as they consider it
superfluous and uncertain. Malaysian Historical Salvors et al v. Malaysia (ICSID Case
No. ARB/05/10), Decision on the Application for Annulment, 16 April 2009, paras 61-
66; Saba Fakes v. Turkey (ICSID Case No. ARB/07/20), Award, 14 July 2010, para. 111;
SGS Société Générale de Surveillance S.A. v. Paraguay (ICSID Case No. ARB/07/29),
Award, 10 February 2012, paras 106-108; Deutsche Bank AG v. Sri Lanka (ICSID Case
No. ARB/09/2), Award, 31 October 2012, para. 295.
109) Argentina-Italy BIT, Article 1.1(c). The original in Spanish refers to ‘obligaciones,
títulos públicos o privados’ (obligations, public or private titles).
110) The tribunals considered that the original bonds and the security entitlements
should not be distinguished because both were part of the same economic
operation and they only made sense together. Abaclat et al v. Argentina (ICSID Case
No. ARB/07/5), Decision on Jurisdiction and Admissibility, 4 August 2011, paras 357-
361; Giovanni Alemanni et al v. Argentina (ICSID Case No. ARB/07/8), Decision on
Jurisdiction and Admissibility, 17 November 2014, para. 423.
Admissibility, 4 August 2011, para. 341; Ambiente Ufficio S.P.A. et al v. Argentina (ICSID
Case No. ARB/08/09), Decision on Jurisdiction and Admissibility, 8 February 2013,
paras 374-377; Givonanni Alemanni et al v. Argentina (ICSID Case No. ARB/07/8),
Decision on Jurisdiction and Admissibility, 17 November 2014, paras 56-57.
Admissibility, 4 August 2011, para. 341(i) and (ii); Ambiente Ufficio S.P.A. et al v.
February 2013, paras 374-375 and 432; Givonanni Alemanni et al v. Argentina (ICSID
Case No. ARB/07/8), Decision on Jurisdiction and Admissibility, 17 November 2014,
paras 60, 67.
113) The definition of investment in Article 1.1(c) includes ‘obligations, public or private
titles’ (the original in Spanish reads ‘obligaciones, títulos públicos o privados’). The
tribunal in Abaclat held that ‘obligation’ can be understood in the context of the
treaty as an ‘economic value incorporated into a credit title representing a loan’,
which in the English language are commonly called ‘bonds’ instead of ‘obligation’;
and that the term ‘title’ in Spanish and Italian is translated into ‘security’, which
means a fungible, negotiable instrument representing financial value. Abaclat et al
v. Argentina (ICSID Case No. ARB/07/5), Decision on Jurisdiction and Admissibility, 4
August 2011, paras 354-356. See also Ambiente Ufficio S.P.A. et al v. Argentina (ICSID
para. 493; Givonanni Alemanni et al v. Argentina (ICSID Case No. ARB/07/8), Decision
on Jurisdiction and Admissibility, 17 November 2014, para. 296.
Admissibility, 4 August 2011, para. 374; Ambiente Ufficio S.P.A. et al v. Argentina (ICSID
paras 498-499.
Admissibility, 4 August 2011, paras 379-380; Ambiente Ufficio S.P.A. et al v. Argentina
(ICSID Case No. ARB/08/09), Decision on Jurisdiction and Admissibility, 8 February
2013, para. 547. The tribunal in Alemanni reserved the discussion on territoriality for
the merits since it considered it closely related to the exact nature and
classification of the property rights of each claimant. Givonanni Alemanni et al v.
November 2014, para. 297.
116) Theodoros Adamakopoulos et al v. Cyprus (ICSID Case No. ARB/15/49), Decision on
Jurisdiction, 7 February 2020, paras 293, 295, 296.
117) The tribunal also rejected the argument that bonds were ‘shares in and stock and
debentures of a company and any other form of participation in a company’ or
‘loans’ under Article 1 of the BIT and found that the exclusion of ‘bonds’ from the
definition of investment in a given treaty indicated that the contracting parties did
not intend to cover these types of assets. Poštová banka a.s. et al v. Greece (ICSID
Case No. ARB/13/8), Award, 9 April 2015, paras 333, 338.
the Tribunal on Objections to Jurisdiction, 17 July 2003, para. 33.
19
119) LG&E Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/1), Decision on
Jurisdiction, 30 April 2004, paras 67-68; Telefónica S.A. v. Argentina (ICSID Case No.
para. 67; Daimler Financial Services AG v. Argentina (ICSID Case No. ARB/05/1), Award,
22 August 2012, para. 100; Gas Natural SDG S.A. v. Argentina (ICSID Case No.
ARB/03/10), Decision of the Tribunal on Preliminary Questions on Jurisdiction, 17
June 2005, para. 39; Pan American Energy LLC et al v. Argentina (ICSID Case No.
ARB/03/13 & ARB/04/8), Decision on Preliminary Objections, 27 July 2006, paras 65-
67; Total S.A. v. Argentina (ICSID Case No. ARB/04/1), Decision on Objections to
Jurisdiction, 25 August 2006, para. 59; AES Corporation v. Argentina (ICSID Case No.
ARB/02/17), Decision on Jurisdiction, 26 April 2005, paras 54-56; Enron Corporation
and Ponderosa Assets L.P. v. Argentina (ICSID Case No. ARB/01/13), Decision on
Jurisdiction, 14 January 2004, paras 29-30.
120) Metalplar S.A. and Buen Aire S.A. v. Argentina, (ICSID Case No. ARB/03/5), Decision on
Jurisdiction, 26 April 2006, paras 95-97; citing Camuzzi International S.A. v. Argentina I
(ICSID Case No. ARB/03/2), Decision on Objections to Jurisdiction, 11 May 2005, para.
34 (vi).
paras 135-140.
122) Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v.
Argentina (ICSID Case No. ARB/03/19), Decision on Jurisdiction, 3 August 2006, paras
29-30. See also Telefónica S.A. v. Argentina (ICSID Case No. ARB/03/20), Decision of
the Tribunal on Objections to Jurisdiction, 25 May 2006, para. 63.
123) El Paso Energy International Company v. Argentina (ICSID Case No. ARB/03/15),
Decision on Jurisdiction, 27 April 2006, para. 97.
124) See, for instance, LG&E Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/1),
Decision on Jurisdiction, 30 April 2004, para. 66; National Grid PLC v. Argentina
(UNCITRAL), Decision on Jurisdiction, 20 June 2006, paras 159-160; Total S.A. v.
Argentina (ICSID Case No. ARB/04/01), Decision on Jurisdiction, 25 August 2006, paras
68-69; Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v.
Argentina (ICSID Case No. ARB/03/19), Decision on Jurisdiction, 3 August 2006, para.
43; Metalpar S.A. and Buen Aire v. Argentina (ICSID Case No. ARB/03/5), Decision on
Jurisdiction, 27 April 2006, paras 110; Impregilo S.p.A. v. Pakistan (ICSID Case No.
ARB/03/3), Decision on Jurisdiction, 22 April 2005, para. 260. Where the investor
refers to a contract breach to invoke an umbrella clause (which, permits to do so),
the treaty nature of the claim is more evident than when other protections are
invoked. See, for instance, Camuzzi International S.A. v. Argentina I (ICSID Case No.
ARB/03/2), Decision on Objections to Jurisdiction, 11 May 2005, para. 90; Sempra
Energy International v. Argentina (ICSID Case No. ARB/02/16), Decision on Objections
to Jurisdiction, 11 May 2005, para. 101.
125) Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentina (ICSID
Case No. ARB/97/3), Decision on Annulment, 3 July 2002, paras 95-96, 110. See also
Crystallex Int’l Corp. v. Venezuela (ICSID Case No. ARB(AF)/11/2), Award, 4 April 2016,
para. 474.
126) Azurix Corp. v. Argentina (ICSID Case No. ARB/01/12), Decision on Jurisdiction, 8
December 2008, para. 58. In a concurring opinion, Professor Abi Saab argued that
the claims (violation of a concession contract) were not self-standing treaty claims,
but in this case the Government’s statements about the public nature of the
telecommunications industry were sufficient to suggest prima facie that the
violation of the contract was motivated by policy considerations that exceeded the
contractual framework (Concurring Opinion, paras 7-10).
128) In Abaclat, Alemmani and Ambiente Ufficio, the tribunal clarified that claims relating
to bonds were not analogous to contract claims pertaining to the non-payment of
the bonds since they related to sovereign acts exceeding the contractual framework.
Abaclat et al v. Argentina (ICSID Case No. ARB/07/5), Decision on Jurisdiction and
Admissibility, 4 August 2011, paras 307, 325; Ambiente Ufficio S.P.A. et al v. Argentina
(ICSID Case No. ARB/08/09), Decision on Jurisdiction and Admissibility, 8 February
2013, paras 534, 543-545; Givonanni Alemanni et al v. Argentina (ICSID Case No.
ARB/07/8), Decision on Jurisdiction and Admissibility, 17 November 2014, para. 300.
129) Bayindir v. Pakistan (ICSID Case No. ARB/03/29), Decision on Juisdiction, 14
November 2005, paras 148 and 166-167; SGS Société Générale de Surveillance S.A. v.
Pakistan (ICSID Case No. ARB/01/13), Decision of the Tribunal on Objections to
Jurisdiction, 6 August 2003, para. 147; Garanti Koza LLP v. Turkmenistan (ICSID Case
No. ARB/11/20), Award, 19 December 2016, para. 247.
130) See, for instance, Siemens A.G. v. Argentina (ICSID Case No. ARB/02/8), Decision on
Jurisdiction, 3 August 2004, para. 180; Azurix Corp. v. Argentina (ICSID Case No.
ARB/01/12), Decision on Jurisdiction, 8 December 2003, para. 95.
20
131) Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v.
Argentina (ICSID Case No. ARB/03/19), Decision on Jurisdiction, 3 August 2006, para.
45; Sempra Energy International v. Argentina (ICSID Case No. ARB/02/16), Decision on
Objections to Jurisdiction, 11 May 2005, paras 120-122; Camuzzi International S.A. v.
2005, paras 109-111; Azurix Corp v. Argentina (ICSID Case No. ARB/01/12), Decision on
Jurisdiction, 8 December 2003, para. 79; CMS Gas Transmission Company v. Argentina
(ICSID Case No. ARB/01/8), Decision of the Tribunal on Objections to Jurisdiction, 17
July 2003, paras 72-76; AES Corporation v. Argentina (ICSID Case No. ARB/02/17),
Decision on Jurisdiction, 26 April 2005, paras 95-97; Abaclat et al v. Argentina (ICSID
Case No. ARB/07/5), Decision on Jurisdiction and Admissibility, 4 August 2011, paras
497-499; TSA Spectrum de Argentina S.A. v. Argentina (ICSID Case No. ARB/05/5),
Award, 19 December 2008, paras 62-66; BG Group PLC v. Argentina (UNCITRAL), Award,
24 December 2007, paras 181-183; National Grid PLC v. Argentina (UNCITRAL), Decision
on Jurisdiction, 20 June 2006, para. 169; Telefónica S.A. v. Argentina (ICSID Case No.
para. 87; Total S.A. v. Argentina (ICSID Case No. ARB/04/01), Decision on Objections to
Jurisdiction, 25 August 2006, para. 83.
132) Givonanni Alemanni et al v. Argentina (ICSID Case No. ARB/07/8), Decision on
Jurisdiction and Admissibility, 17 November 2014, para. 300.
134) For example, in Siemens, irrespective of the fact that Siemens was not a party to the
concession contract, the tribunal found that a forum selection clause in the contract
would not impair ICSID’s jurisdiction if the claimant formulates a treaty dispute.
August 2004, paras 174, 181. See also Compañía de Aguas del Aconquija S.A. and
Vivendi Universal Argentina (ICSID Case No. ARB/97/3), Decision on Annulment, 3 July
2002, paras 52, 75-76.
135) An umbrella clause allows the investor to elevate a breach of a specific
commitment (e.g., in a contract or a law) to a breach of the treaty. Some BITs
concluded by Argentina contain this type of clauses.
August 2004, paras 180-182; Azurix Corp. v. Argentina (ICSID Case No. ARB/01/12),
Decision on Jurisdiction, 8 December 2003, paras 77-79; see CMS Gas Transmission
Company v. Argentina (ICSID Case No. ARB/01/8), Decision of the Tribunal on
Objections to Jurisdiction, 17 July 2003, paras 72-76; Sempra Energy International v.
Argentina (ICSID Case No. ARB/02/16), Decision on Objections to Jurisdiction, 11 May
2005, paras 120-123, 128.
137) SGS Société Générale de Surveillance S.A. v. Philippines (ICSID Case No. ARB/02/6),
Decision of the Tribunal on Objections to Jurisdiction, 29 January 2004, paras 154-155;
BIVAC B.V. v. Paraguay (ICSID Case No. ARB/07/9), Further Decision on Objections to
Jurisdiction, 9 October 2012, para. 284. See also Bosh International, Inc. et al v.
Ukraine (ICSID Case No. ARB/08/11), Award, 25 October 2012, para. 252.
138) SGS Société Générale de Surveillance S.A. v. Paraguay (ICSID Case No. ARB/07/29),
Decision on Jurisdiction, 12 February 2010, paras 173, 180-185. The tribunal held that
the contract claim could be brought under the umbrella clause, and that the forum
selection clause in the contract could not prevail over the tribunal’s jurisdiction.
139) C Schreuer, ‘Travelling the BIT Route: Of Waiting Periods, Umbrella Clauses and Forks
in the Road’ (2004) Vol 5 no. 2 The Journal of World Investment and Trade 231, p 240.
140) Hassan Awdi, Enterprise Business Consultants, Inc. & Alfa El Corporation v Rumania
(ICSID Case No. ARB/10/13), Award, 2 March 2015, paras 203-204.
141) See, for example, Argentina-France BIT, Article 8(2); Argentina-Venezuela BIT, Article
11(2); Argentina-Peru BIT, Article 10(2); Argentina-Philippines BIT, Article XI(2);
Argentina-New Zealand BIT, Article 12(2); Argentina-Mexico BIT, Article 10(3);
Argentina-Israel BIT, Article 8(3); Argentina-Ukraine BIT, Article 8(2).
142) Victor Pey Casado and President Allende Foundation v. Chile (ICSID Case No.
ARB/98/2), Award, 8 May 2008, para. 486; Toto Costruzioni Generali S.p.A v. Lebanon
(ICSID Case No. ARB/07/12), Decision on Jurisdiction, 11 September 2009, para. 217.
See also, R. Dolzer & C. Schreuer, Principles of International Investment Law, Oxford,
Oxford University Press (2nd Edition), 2012, p 267.
143) See, for example, Victor Pey Casado and President Allende Foundation v. Chile (ICSID
Case No. ARB/98/2), Award, 8 May 2008, para. 492. See also C. Schreuer, The ICSID
Convention: A Commentary (2nd Edition, 2009), p 370; C. Schreuer, ‘Travelling the BIT
Route: Of Waiting Periods, Umbrella Clauses and Forks in the Road’ (2004) Vol 5 no. 2
The Journal of World Investment and Trade 231, p 241.
144) Pantechniki S.A. Contractors & Engineers v. Albania (ICSID Case No. ARB/07/21),
Award, 30 July 2009, para. 61; H&H Enterprises Investments v. Egypt (ICSID Case No.
ARB/09/15), Award, 6 May 2014, paras 368-369; Compañía de Aguas del Aconquija S.A.
and Vivendi Universal SA v. Argentina (ICSID Case No. ARB/97/3), Decision on
Annulment, 3 July 2002, para. 55.
145) Article 10(1) of the Albania-Greece BIT reads: ‘any dispute between either
Contracting Party and an investor of the other Contracting Party concerning
investments’.
21
146) See, for example, Argentina-New Zealand BIT, Article 12(1); Argentina-Ukraine BIT,
Article 8(1); and Argentina-France BIT, Article 8(1).
147) Azurix Corp v. Argentina (ICSID Case No. ARB/01/12), Decision on Jurisdiction, 8
December 2003, para. 89; Enron Corporation and Ponderosa Assets L.P. v. Argentina
(ICSID Case No. ARB/01/3), Decision on Jurisdiction, 14 January 2004, para. 98; LG&E
Energy Corp. et al v. Argentina (ICSID Case No. ARB/02/1), Decision on Jurisdiction, 30
April 2004, paras 74-76.
148) Azurix Corp v. Argentina (ICSID Case No. ARB/01/12), Decision on Jurisdiction, 8
Decision on Jurisdiction, 14 January 2004, para. 98; CMS Gas Transmission Company v.
Argentina (ICSID Case No. ARB/01/8), Decision of the Tribunal on Objections to
Jurisdiction, 17 July 2003, para. 80.
150) Pan American Energy LLC et al v. Argentina (ICSID Case No. ARB/03/13 & ARB/04/8),
Decision on Preliminary Objections, 27 July 2006, paras 155-158.
151) This situation should not be compared with a class action, where the parties who
can benefit from a specific class are not initially defined, but it is a case brought by
multiple co-claimants individually identified. Regarding the different terminologies
for claims brought by large number of claimants, see Abaclat et al v. Argentina (ICSID
Case No. ARB/07/5), Decision on Jurisdiction and Admissibility, 4 August 2011, paras
480, 488.
152) Ibid., 4 August 2011, para. 513.i.
153) Ibid., para. 513.ii.
154) Ibid., paras 488, 506.
155) Ibid., para. 520.
156) Ibid., paras 165-166.
157) Ibid., paras 173-175.
Jurisdiction and Admissibility, 8 February 2013, para. 121.
159) Ibid., paras 130-131.
Jurisdiction, 17 November 2014, para. 267.
161) Ibid., paras 270, 271.
162) Ibid., para. 292.
163) Ibid., para. 293.
164) Theodoros Adamakopoulos et al v. Cyprus (ICSID Case No. ARB/15/49), Decision on
Jurisdiction, February 7, 2020, paras 219-220.
Admissibility, 4 August 2011, para. 234.ii.
166) Ibid., paras 536.
167) Ibid., paras 551.
168) Ibid., para. 545. Professor Abi Saab dissented with respect to the procedural
adaptations proposed by the majority. He argued that, even if Argentina had
consented to this specific type of claim, the tribunal was not authorized to adopt on
its own initiative a whole set of procedural rules without the parties’ agreement or
the ICSID Administrative Council’s approval. He added that the proposed
adaptations in fact impinged on the respondent’s right of due process for the
individual adversarial examination of every aspect of the claims. Professor Abi Saab
further argued that it is not the tribunal’s role to balance the interests of the
parties. In the arbitrator’s view, the majority had a partial view that over-
emphasized the need to protect the investment at the expense of the State’s
legitimate interests. See Dissenting Opinion to Decision on Jurisdiction and
Admissibility, 4 August 2011, paras 194, 234-236, 250, 261.
Jurisdiction and Admissibility, 8 February 2013, para. 167.
Jurisdiction, 17 November 2014, paras 324-325.
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Document information Chapter 22: Jurisdiction and Admissibility Questions in

§22.02 UNDERSTANDING THE CONCEPTS OF JURISDICTION AND

[B] The Categorization of Pre-arbitration Requirements

§22.03 ADMISSIBILITY QUESTIONS: PRE-ARBITRATION REQUIREMENTS

[B] Local Litigation

[a] Bypassing Local Litigation Through the MFN Clause

§22.04 JURISDICTIONAL QUESTIONS

[B] Ratione materiae Questions

[1] The Salini Criteria under the ICSID Convention

[2] Sovereign Bonds as Protected Investments

[C] Other Jurisdictional Issues

[2] The Nature of Contract-related Claims

§22.05 MASS CLAIMS

[A] Consent to This Special Type of Claim

[B] Procedural Management

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