Archives

Doubtful that Argentina breached BIT, but it’s not proper to find prima facie breach at this stage

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Amicable consultations and resort to local courts are legally binding preconditions to the exercise of jurisdiction

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Investments are deemed to have been made in territory of Argentina

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Investments were made in accordance with law of Argentina

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Salini test not required, but the debts at issue meet the criteria

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History of ICSID Convention drafting is studied

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No doubt that debt is covered under BIT

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Majority agrees with many holdings in earlier Abaclat case by “sister tribunal”

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Tribunal takes broad lens view and looks at totality of economic operation

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Amicable consultations duty is mandatory, but does not fell claims.

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Tribunal does not need to grapple with MFN arguments

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Prima facie treaty claims are shown

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Failure to pursue claims in local courts is not fatal

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Presence of discrete treaty claims obviates need to look at MFN/Umbrella

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Use of experts to help get an ICSID case registered

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Flexible approach taken to changes to claims and identity of claimants

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Salini test nixed by majority

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Liberal reading of territorial requirement

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