Tribunal confirms power to grant emergency measures but sees no basis for it in this case

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… but requirements for provisional measures are not met in this case

Tribunal pushes for the parties’ collaboration in answering first request for provisional measures

Tribunal has jurisdiction to order second set of provisional measures as tax carve-out in the BIT does not apply…

Claimants ask for “emergency temporary provisional measures,” citing risks of insolvency following tax and antifraud investigations by Romanian authorities

Claimant-investors concede that prior DQ decision can be scrutinized, but only to see if it is so untenable as to not be one which a reasonable decision-maker could have reached

In a case where challenge was dismissed at first instance – committee role is to safeguard integrity of process by ensuring that earlier decision was one that a reasonable decision-maker could have made

Costs split according to common division

Argentina wants committee to examine issues for itself, and to go beyond the Vivendi II committee’s harsh criticism – but reluctance to annul

Decision reached in EDFI case on challenge was clearly something that a reasonable decision-maker could reach, as another set of arbitrators had reached much the same conclusion in a third case (Suez II)

Argentina cites Vivendi II analysis of Kaufmann-Kohler’s UBS ties in context of that case, but EDFI committee sees reasons to distinguish those facts

No due process failing in how earlier challenge was adjudicated

Committee doesn’t follow Vivendi II committee in pronouncing inherent tension between bank directorship and arbitral duties

Committee scrutinizes reasoning of Kaufmann-Kohler’s co-arbitrators

Tribunal did not make annullable mistake by relying on Argentina’s conduct during tariff renegotiations

No manifest excess of power in assuming jurisdiction over “indirect” investments

Kaufmann-Kohler’s ties to UBS bank – and its ties to EDF – were central issue

No failure to apply the appropriate law; choice of law clause in BIT allowed the tribunal to determine which of several suggested laws might apply to different situations

Claims of failure to state reasons essentially based on already rejected characterizations of the tribunal’s analysis

Committee first clarifies its powers in relation to such a challenge

Committee rejects Azurix annulment committee’s narrow view of the role of committees with respect to scrutinizing arbitrator independence/impartiality

Even if Remon’s law firm had been advising Repsol before he signed EDFI award in mid-May 2012, the committee accepted that the award was already finalized by mid-April when the Repsol-Argentina dispute emerged

No evidence to support Argentina’s speculation that Remon’s law firm may have been providing advice to Repsol even earlier, when the EDFI tribunal was still finalizing its own award

No need to prove material effect on award; simply need to show that facts could have had such an effect

While other cases have involved an arbitrator’s law firm, they typically saw such firms already engaged in offering advice – whereas here there was no proof that Remon’s law firm was doing so in the critical period when he could still have influenced award

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