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Dissenter opines that claimant was entitled to expect a return to the Electricity Law’s original regime
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Majority decides that costs should lie where they fall
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No need to rule on necessity defense or quantum pleadings
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MFN clause only governs “matters” regulated by the BIT, thus it cannot be used to import an umbrella clause
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Claimant generated positive cash flows, thus no expropriation occurred
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Full protection standard encompasses legal security, but claim is dismissed; no need to rule on MFN detour
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Non-impairment standard does not substantially differ from protections against discrimination and arbitrariness under FET provision; tribunal finds no breach of the standard
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Claimant was not harassed or coerced into entering electricity agreements with Argentina’s government
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No discrimination as neither old and new power plants, nor private and public energy generators were in similar conditions
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Argentina’s conduct was aimed at normalizing the energy market, and thus neither unreasonable nor arbitrary
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FET encompasses obligations of transparency and due process, but tribunal finds no breach on the facts
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Tribunal majority sees no legitimate expectation that the favorable electricity regime of the 1990s would be restored by a certain date, stressing that Orazul made its investment when the Emergency Law was already in place
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BIT contains autonomous FET provision, which protects legitimate expectations
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BIT provides for applicable law
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Estoppel objection also fails
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Claimant has not clearly and explicitly waived its right to resort to ICSID arbitration
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Abuse of process allegation is dismissed, as tribunal sees no foreseeable or pre-existing dispute and claimant’s incorporation in Spain was carried out for tax reasons
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Claimant made an investment prior to the adoption of the disputed measures
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Contribution, duration, and risk requirements are satisfied; BIT does not require active act of investing
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Seat requirement is satisfied since claimant has its actual place of management in Spain
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Broadly-worded MFN provision may be used to avoid local litigation requirement
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Claims are not belated under any of the theories advanced by Argentina
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Each party bears the burden of proving its allegations, even on jurisdiction and admissibility
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Respondent’s requests for bifurcation and claimant’s challenge of tribunal chair are dismissed
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