Dispute was ultimately settled after Argentina’s set-aside bid failed

You are not logged in. If you are a subscriber, please Login to access. If you are not a subscriber, you can contact us for a rate quote at subscribe@iareporter.com. Alternatively, you can sign up to receive free email headlines here.

Tribunal referred to pre- and post-emergency transactions to calculate fair market value, and awarded over 185 million USD in damages

Fair market value standard could apply, but only based on customary international law

Argentina’s necessity defence under customary international law was deemed to be implicitly excluded by the BIT

Tribunal found recourse to BIT compensation for losses clause inapposite

Tribunal eschewed “observance of obligations” claim

Tribunal saw no discrimination

Emergency regulation unreasonably impaired investment

FPS standard was limited to physical security

“Radical” measures adopted by Argentina breached BG’s legitimate expectations on the stability of the tariff regime

Tribunal zeroed in on MST, and found the standard to include commitments towards investors; bad faith was not a necessary requirement for breaching the standard

Tribunal saw no expropriation in the absence of a “permanent and severe deprivation” of claimant’s rights

Ongoing renegotiation process had no impact on the tribunal’s jurisdiction

Tribunal found that general character of the emergency measures did not exclude BIT protection

BG could bring a claim for reflective losses under the UK-Argentina BIT, but no derivative “claims for money” and “claims to performance”

Tribunal did not see any bar to treaty claims that were based on underlying contract

Tribunal found relation between claims and specific commitments by Argentina to attract foreign investors sufficient to ground jurisdiction

Limitations in access to domestic courts allowed tribunal to side-step local remedies requirement

Faced with irreconcilable linguistic discrepancies, tribunal turned to BIT’s object and purpose, adopting definition of “claims to money” contained in English version of the BIT

Definition of “asset” under the BIT was not confined to its meaning in accounting terms

Tribunal found no conflict between international and Argentinian law on the protection of property rights, and saw no role for Argentinian civil law rule on fundamental change of circumstances

Background: BG brought UNCITRAL claim against Argentina, arguing that emergency measures had unlawfully damaged its investment in a local gas distribution company

Archives