Argentine court rules that ICSID decisions involving Argentina must be published under domestic FOI law – leading to successful acquisition of previously-confidential Exxon-Mobil and Houston Industries rulings
[UPDATE: we have now updated this report, so as to include links to the two key Argentine court rulings.]
An appeals court in Argentina has ruled that decisions issued in cases at the International Centre for Settlement of Investment Disputes (ICSID) involving Argentina are public information, and must be released under the country’s freedom of information (FOI) law.
The decision of the Federal Court of La Plata, dated December 27, 2018 [click to download], has ordered the publication of three heretofore-unpublished decisions – a 2013 merits decision in Mobil Exploration and Development Inc v. Argentina, a 2008 jurisdictional decision in EDF v. Argentina, and a 2001 final award in Houston Industries v. Argentina – as well as two short decisions on stay of enforcement of the 2012 EDF v. Argentina final award.
Argentina’s Procuración del Tesoro de la Nación (the Attorney-General’s office), the respondent in the case, declined to appeal the decision to the Supreme Court of Argentina, meaning that the federal appeals court’s ruling is now final.
The recent ruling caps off a lengthy battle to obtain the documents undertaken by Facundo Perez Aznar, an Argentine lawyer and occasional contributor and researcher for IAReporter. (Mr. Perez Aznar now teaches and researches in Geneva and Buenos Aires, but had worked for several years from 2005-2009 for Argentina’s Procuracion.)
Attorney-General’s office releases decisions, but imposes conditions on publication
Mr Perez Aznar filed an initial request with the Ministry of Foreign Affairs in November 2017, in collaboration with IAReporter. In its response, the Ministry indicated that the Procuración was the responsible agency, and transmitted the request to that office. However, in transmitting the request, the Ministry noted that there was ‘no impediment’* to the state’s unilateral publication of the decisions.
In January 2018, the Procuración released the requested decisions to Mr Perez Aznar, but stated that the release ‘does not constitute consent to publication’ of the decisions, that the decisions remained confidential, and that the requesters would be liable for any damages flowing from further disclosure.
Mr Perez Aznar appealed this position to the relevant ombudsman, the Agencia de Acceso a la Información Pública. In these proceedings, the Procuración maintained that a restriction on publication was necessary in light of Article 48(5) of the ICSID Convention (which provides that ‘[t]he Centre [ie, ICSID] shall not publish the award without the consent of the parties’). The Procuración further argued that the FOI law did not prevent the imposition of such conditions on release. The ombudsman agreed with the Procuración, and dismissed the complaint.
Appeals court chides the state for imposing conditions and orders full publication
The matter then proceeded to a first-instance federal court in La Plata, where Mr Perez Aznar contended that the Procuración had failed to justify the conditions imposed on publication by reference to any of the recognised exceptions in the country’s FOI law. In September 2018, the La Plata court ruled in favour of publication, but this decision [click to download] was swiftly appealed by the Procuración.
In the latest ruling, the La Plata appeals court upheld the first-instance judgment, siding with Mr Perez Aznar and declaring that the decisions should have been released by the Procuración without any conditions on further publication, confidentiality or liability for disclosure.
Citing academic work by IAReporter contributors, appeals court reviews human rights law, and finds no contradiction between ICSID Convention and unilateral publication by disputing parties
After reviewing the relevant principles of the state’s FOI law, as well as case-law from Argentina and the Inter-American Court of Human Rights, the court held that ‘the harmonious interplay of the domestic and international rules and the principles established in the material examined above require the state agency … to adopt an attitude tending towards transparency, in order to ensure the effective exercise of the right of access to information’.
‘In this regard,’ the appeals court said, ‘the potential risks cited by the Procuración in conditioning the delivery of documents – without allowing for their publication, free use and dissemination – do not fit within the law’s exceptions or the developed jurisprudential principles, nor ensure the real exercise of the right protected.’
Referring to analysis published in an academic article by two former and current IAReporter contributors, the court further held that Article 48(5) of the ICSID Convention applied only to ICSID itself, and did not prevent parties to ICSID cases from disclosing materials on their own motion. The court added that, in any case, Article 48(5) covered only ‘the award’, not any other decisions made during ICSID proceedings.
Thus, in the court’s view, this provision ‘does not prevent states, through the mechanisms conferred by their internal regulations and the principles included in the conventions and treaties to which they have adhered, to publish or make known these documents at the request of their citizens. The exercise of these rights and obligations are not in conflict, nor do they contradict the ICSID Convention.’
We are in the process of scanning and uploading the newly-released decisions to our website. They will appear in the next few days. We will also be offering detailed reporting on at least two of the rulings (from the Mobil and Houston Industries cases). Finally, as per our usual arrangement with italaw.com, we will ultimately make the decisions available in that free public repository of primary materials.
* All translations are by IAReporter from the original Spanish.