Charles Brower in dissent insists that consent does not have to be proven by “affirmative evidence”

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Domestic courts not necessarily less favourable than international arbitration

Majority finds that scope of MFN clause depends on interpreation of “treatment”

Background: Argentina unilaterally terminated a services contract for the implementation of an ambitious electoral, migratory and personal identification system

Arbitration tribunal merely took necessary decisions for the conduct of the proceedings, which do not warrant the disqualification of the whole tribunal

Disqualification is only warranted if a reasonable third party would find an obvious lack of independence or impartiality

Chair of ICSID’s Administrative Council declines to seek recommendation from a third party, noting that such a step is “exceptional”

Disqualification proposal was submitted in a timely fashion

Argentina argues that a series of procedural steps and decisions by the tribunal regarding the merits hearing evidence an obvious appearance of lack of impartiality and independence

Background: Long-running case is reactivated – but parties disagree on form, timing, and modalities of merits hearing

Background: ICS argues that Argentina failed to pay monies under pre-shipment inspection services contract in the context of the Argentinian financial crisis

Tribunal rejects requirement of ‘continuous ownership’ in ICSID arbitration

Background: Argentine financial crisis and ensuing legislative measures give rise to ICSID claim

Arbitrators did not consider themselves barred from considering other ICSID tribunals’ positions and opinions

Tribunal found that it was not bound by previous decisions

National forum selection clause in concession contracts did not prevent AES from alleging a breach of international law

Tribunal saw claimant as a protected investor

Ongoing negotiation between AES and Argentina did not hinder the tribunal’s jurisdiction

Tribunal found that claims were not merely based on general economic policy, but arose “directly” out of the investment

Arbitrators set out two-prong test to identify a “legal dispute”

Tribunal applied MFN clause to overcome local litigation requirement

Annulment and revision proceedings featured debate on enforcement of ICSID award, but were discontinued

Municipal law was only relevant as evidence of measures taken by Argentina

Contractual forum selection clause did not affect the tribunal’s treaty-based jurisdiction

After seeking a recommendation by the PCA, ICSID rejected a challenge to Mr. Rigo Sureda

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