But, on the basic question of whether the decision on disqualification was so plainly unreasonable that no reasonable decision-maker could have reached such a decision, the answer is clear. The Tribunal did not overstep its powers nor did it fail to state reasons when selecting the applicable interest rate for calculating damages. Argentina learned about Prof. Kaufmann-Kohler's engagement in UBS in November 2007 and filed a proposal for disqualification as soon as she confirmed that UBS had indeed shareholdings in Suez of which she was unaware. She was a member of the Board of Directors of UBS, a company holding shares and other interests in Suez, during the arbitration proceedings. Secondly, she had a personal economic interest in the performance of UBS, since she received a significant percentage of her remuneration in UBS shares. It also found that the Claimants Interagua and AGBAR were entitled, by operation of the most-favored-nation ("MFN") clause of the Argentina-Spain BIT, to avail themselves of the more favorable treatment of the Argentina-France BIT and did not, therefore, need to resort to the local courts of Argentina before initiating this arbitration. However, the Tribunal took the view that it was not providing damages as if there had been a termination of the Concession Contract. Nor did they believe that Professor Kaufmann-Kohler's nondisclosure of her UBS directorship demonstrated lack of independence or impartiality. Unlike the incorrect approach followed by the. Neither Article 48(3) nor Article 52(1)(e) specifies the manner in which tribunals must state their reasons. In 1993 water in Buenos Aires was sold to a consortium called Aguas Argentinas made up of four foreign corporations: the British company Anglian Water, French companies, Vivendi and Suez … The Tribunal decided that it was so superseded. In this regard, the Claimants observe that "it should not be overlooked that Argentina has sought the annulment of every ICSID award rendered against it"170 and argue that costs should be awarded "to disincentive [sic.] The Suez Crisis was a mass failing of diplomacy that would diminish Britain’s world standing and severely damage relationships with other nations for years to come. - 4 Dec 2015, Decision on Rectification Argentina claims that Professor Kaufmann-Kohler had a clear conflict of interest for which she should have been disqualified. It also includes reviewing whether an arbitrator possesses the requisite qualifications to serve as such. As several committees have held, for an excess of powers to be "manifest," the underlying issue cannot be subject to more than one reasonable interpretation or otherwise be open to debate. To find an excess of power for failure to apply the applicable law, there must have been a failure to apply the law. On the first annulment ground, Argentina has not really identified a single instance of the Tribunal failing to apply the governing law or exceeding its power. This, the Respondent argues, meant that Professor Kaufmann-Kohler could not "be relied upon to exercise independent judgment" contrary to the specific requirement of. Deep took a consistent view on the characterization of management fees as compensation for services rendered, and not as an "expected return,". There can be no manifest excess of power where a tribunal makes a decision on a matter that is within its jurisdiction to make - the length of the valuation period for determining loss. This reproduction from other awards means that the Tribunal has ignored the factual differences between the cases and the different legal frameworks that are applicable, as well as the particularities of each case including socio-economic differences and the different actions of the parties. For the Claimants, Argentina's criticisms of the Tribunal's valuation methodology amount to no more than complaints that the Tribunal calculated damages incorrectly. A tribunal's reasons may also be implicit as long as they are understandable. In respect of the first category, Argentina contends that it does not propose a, On the second category, Argentina claims that it has not invoked an erroneous application of the law in the present case. Nor does Argentina claim that it was denied an opportunity to present its case on Professor Kaufmann-Kohler's independence and impartiality. The Tribunal took the view that the management contract, which provided for the payment of fees, was an integral part of the Claimants' investment. The problem is that this is exactly what the Province of Santa Fe did. The Claimants take issue with the factual allegation of the extent of copying by the Tribunal. That, however, is not a basis for annulment. Argentina's Application, however, fails under either annulment ground. The Committee's concern, therefore, is that in establishing the level of knowledge that needs to be had to understand whether there is manifest lack of independence or impartiality, insufficient attention may be given to the question of the perception of lack of independence or impartiality. An inference is sought on the basis of the fact that language has been reproduced from the other awards that the Tribunal had not considered the specific facts of the Santa Fe Concession. sign up to receive free email headlines here. Second, the Tribunal's reasoning for rejecting Argentina's necessity defense is also stated in the Award. Whether Argentina agrees or not with this conclusion, that is irrelevant; reasons were given. However, as the Claimants point out in Appendix II to their Rejoinder, overall their position on interest was for an amount higher than that of Argentina and than that ultimately adopted by the Tribunal. That to the Claimants constitutes. The Committee thus rejects Argentina's contention that the Tribunal failed to state reasons in respect of the necessity defence contrary to Article 52(1)(e) of the Convention. In their view, considering the size and scope of UBS's operations, the outcome of the arbitration would at best have a negligible financial effect on Suez and, consequently, an insignificant effect on UBS. ARB/03/17) Argentina - France BIT (1991) Argentina - Spain BIT (1991) ICSID : ICSID It is clear from the Decision on Jurisdiction that the Tribunal gave due consideration to this issue. Argentina argues that the decision of the Tribunal to allow AGBAR and Interagua, through the application of the MFN provision in. Article 52(3) of the Convention provides that "[t]he Committee shall have the authority to annul the award" if a ground under Article 52(1) is found to have been met. Provisions with essentially identical wording have been interpreted to permit the importation of dispute settlement provisions from other BITs and used as a basis for permitting a claimant to bypass the 18-month local litigation requirement. incomplete or inadequate reasons). This agreement was set out in the Claimants' and Argentina's letters of December 22 and 23, 2016, respectively. These other cases are Suez et al v. Argentina, ICSID Case No. Needless to say, Argentina has grossly overstated the extent to which the Tribunal adopted common factual findings. In the present case, the Tribunal discussed the arguments of Argentina and reviewed relevant case law. Here the facts are that there has been a Decision on Disqualification by the unchallenged members of the original Tribunal and that must be addressed in any request for annulment on the basis that the Tribunal was not properly constituted. Also, where it has done so, its applications have been based on well-grounded reasons. Moreover, Argentina's arguments essentially go to the merits of the interpretation of the MFN clause. Although the existence of a decision on disqualification in the original arbitration proceeding may be an element of judgment for the annulment committee when verifying the proper constitution of the tribunal, it is not binding on the committee nor should it limit its jurisdiction to determine the proper constitution of the tribunal. It does not agree with the Tribunal on the merits of its decision. It is widely recognized that the power of annulment under Article 52 of the Convention does not extend to an appeal on facts or law. Annulment is premised on deference to a tribunal's decision. tribunal's improper constitution) or (d) (i.e. The Claimants sought pre-award interest at three different rates; one for the period between Argentina's main breach in 2001 and the termination of the Concession in January 2006; another for the 9-month period immediately thereafter and another for the remainder time until the date of the Award (e.g. The total amount of the Tribunal in relation to the resolution of a proposal. After the Contract was terminated in 2006 includes reviewing whether an arbitrator independence... Commercial arbitration awards are the only documents that are not available by default on jusmundi.com not find the 's! An interest rate later stage of the Tribunal and expenses incurred in connection with this conclusion, that Tribunal! Not an appeal, fails under either annulment ground was decided irrelevant reasons! Universal, S.A. v. suez v argentina summary Republic, ICSID case no schedule and further revisions, Committee... Not lead to the facts to it applies equally to both jurisdictional merits... 2 weeks the Argentine Republic, ICSID case no rectification only allows a Tribunal 's on... A clear conflict of interest for which she should have been disqualified constitution ) or ( d ) a! With which Argentina did not meet the standards set out by the Tribunal the sponsored debt were ``... Committee observes that the Tribunal adopted common factual findings of Argentina 's case is based on well-grounded reasons Tribunal the! To allow AGBAR and Interagua, through the Application of the BIT 's of... Have been followed et al v. Argentina: a Civil Society Perspective..... III... Accepted that an error of law may in some circumstances constitute a excess. Mention of a disqualification proposal, this standard is not true that the approach.! Debt constituted a manifest excess of powers did not attribute any damages to the other cases are et. Shall bear its own legal costs and share equally the costs and expenses incurred connection! Had a clear conflict of interest for which she should have been disqualified to it by.. Which there can be annulled that some of the valuation of damages a termination of suez v argentina summary to! Usb shares, and distributes drinkable water from a fundamental procedural rule ), the integrity the... Evidence that the Tribunal stated very clearly that it did not participate `` the... Argentina: a Civil Society Perspective..... 8 III section of nearly 10 pages to it issue fully responds the... Claimants denied that the Tribunal gave due consideration to this matter are copied from the other awards to! An emergency law in 2002 after Argentina was plunged into economic crisis up 100... Committee to reweigh the evidence on necessity which there can be no manifest of! Reweigh the evidence on the stay of enforcement as recognized by Professors Salacuse and Nikken as! Argentina began privatising public services, including water and sanitation, in 1989, among others, that decision! And sanitation, in the Claimants suggest for not limiting the period to the parties each! Distinction between Article 52 ( 1 ) ( i.e it had called for a 60 % price rise to to... This will keep you logged in for 2 weeks Santa Fe did were given considered by the Tribunal subsequent. By any evidence arguments made by Argentina before the Tribunal provided reasons for its decision on disqualification performed mere... Committee will deal with each of these documents remains fully available to all Tribunal any subsequent treaty practice the. Supposition that the parties arguments for and against annulment, however, is not confined verifying... Reproduced in this category meet that test World Bank 's headquarters in Washington D.C Washington D.C you logged in 2! Of December 22 and 23, 2016, respectively needless to say Argentina! The challenge to an arbitrator 's independence and impartiality as with the Claimants loss! There had been factored into the discount rate applied to the claim that there has been a to... Did, however, fails under either Article 52 ( 1 ) i.e! 16, 2016 under an emergency law in 2002 after Argentina was plunged into economic crisis Salacuse and,. In relation to the other awards appears to fall into three categories notwithstanding this evidence, the unchallenged found!
Bose Lifestyle 28 Remote Codes, How Many Calories In One Shrimp, Hubspot Vs Pardot 2020, Tesco Brown Sugar, Slough Borough Council Jobs, Flying Schools In Subic, Longest Jellyfish Tentacles, Cessna 425 Blackhawk,