vivendi v argentina

101, Vivendi I, Decision on Annulment). • Reform the international investment agreements (IIAs) regime to enhance its sustainable development dimension, 7.4.36–7.4.46). Most recently, the Vivendi II Annulment Committee’s rejection of Argentina’s application for annulment evidenced a very deferential stance toward the Tribunal’s decisions, illustrating that annulment of awards can be a challenging undertaking. Looking Back: In resubmitted Vivendi proceedings following annulment, tribunal confirms jurisdiction and finds Argentina in breach of FET Jul 5, 2017 Arbitral award will stand in Vivendi v. Argentina case, but an arbitrator is criticized over lack of disclosure Sep 15, 2010 90 Vivendi Universal v Argentina ICSID Case No ARB/97/3, Decision on Annulment (3 July 2002) para 96: ‘In accordance with this general principle (which is undoubtedly declaratory of general international law), whether there has been a breach of the BIT and whether there has been a breach of contract are different questions. See Suez, Sociedad General de Aguas de Barcelona S.A. & Vivendi Universal S.A. v. Argentina, No. ARB/97/3 (formerly Compañía de Aguas del Aconquija, S.A. and Compagnie Générale des Eaux v. The Committee nevertheless stated that it had the discretion regarding whether to annul the award and would exercise that discretion to let the award stand. Decisions, judgments and/or awards rendered in the course of follow-on (post-award) proceedings, as well as any individual opinions appended to them, are recorded. The two Committee members reasoned that the test they should apply was whether “a real risk of lack of impartiality based upon [the] facts (and not on any more speculation or inference) could reasonably be apprehended by either party” (para. Concluded original arbitration proceedings: Open this in NEW TAB So it will not surprise you to know that in the Suez/Vivendi case [Suez & Vivendi Universal v. Argentine Republic , ICSID Case No. In Vivendi v. Argentina, a case arising under the France-Argentina BIT, laimants investment had obtained a concession to operate a water distribution system undergoing privatization. SCC or ICC), the relevant institution administers that case. concerning provisional measures or decisions regarding requests for disqualification of arbitrators. The Azurix award also concerned a water concession which was prevented by local authorities from applying the tariffs to which it was entitled. Tribunal found that after sharp rate increases and a temporary but harmless discoloration of the water had stirred local opposition, Argentina applied to annul the Vivendi II award on various grounds including, briefly, that the Tribunal wrongly accepted jurisdiction and failed to apply applicable law, which consisted of provincial and national law and the terms of the Concession Contract. In 1993 water in Buenos Aires was sold to a consortium called Aguas Argentinas made up of four foreign corporations: the British company Anglian Water, French companies, Vivendi … 1. INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES. © Copyright - UNCTAD Division on Investment and Enterprise. Argentina had objected that the Tribunal did not have jurisdiction over the dispute because the dispute arose from the Concession Contract and the parties to that agreement had contractually committed to resolve all disputes before the administrative tribunals of Tucumán. The Tribunal concluded that, instead, the amount of damages should be based on recovering the value of the investment the Claimants had actually already made (paras. • MCCI: Moscow Chamber of Commerce and Industry ICSID annulment proceeding), the status of the case is marked according to the outcome of the original arbitral proceeding (i.e. As some proceedings (or certain aspects of proceedings) remain confidential, the information contained in the Navigator cannot be deemed exhaustive. • Settled: the disputing parties settled the case and the arbitral proceedings were discontinued for that reason. So it will not surprise you to know that in the Suez/Vivendi case [Suez & Vivendi Universal v. Argentine Republic , ICSID Case No. and. On 30 July 2010, the ICSID tribunal in Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal v. According to Argentina, the relationship between Mr. Fortier and Vivendi raised doubts regarding whether the Committee member could be relied upon to exercise independent judgment as required under the ICSID Convention. Whenever possible, information about amounts claimed and awarded is obtained from primary sources such as the arbitration documents. 12 Suez Sociedad General de Aguas de Barcelona S.A, and Vivendi Universal S.A v The Argentine Republic, ICSID case ARB/03/19, award dated 9 April 2015 13 Suez and Vivendi v Argentina, award dated 9 April 2015, paragraph 7 14 Flemingo v Poland award dated 12 August 2016, paragraph 877 Under these circumstances, rescission of the Concession Contract represented the only rational alternative for Claimants. • Cases in which a final award has been rendered but which are later subject to follow-on (post-award) proceedings (e.g. The Tribunal rejected Argentina’s argument that the FET standard was so limited, even going so far as to label the Neer standard as “obsolete” (paras. ISDS Navigator ISDS data set in excel format (as of 31 July 2019) Such arbitrations are also referred to as treaty-based investor-State dispute settlement (ISDS) cases. and Vivendi Universal S.A.* v. Argentine Republic (ICSID Case No. • fully or partially based on an IIA, such as a bilateral investment treaty or the investment chapter of a free trade agreement (not included are investor-State disputes that are solely based on contracts or on domestic investment legislation); This section provides links to sources of information used for gathering data for the case at hand or otherwise relevant to that case. In brief: ICSID ad hoc Committee rejects annulment request (Suez, Sociedad General de Aguas de Barcelona and Vivendi v Argentina) Send to Email address * Open Help options for Email Address. Argentina argued that these relationships gave rise to justifiable doubts as to the arbitrator’s independence and impartiality and that it had been unable to exercise its right to challenge Professor Kaufmann-Kohler’s continued service on the Tribunal because Professor Kaufmann-Kohler did not fully investigate or disclose those circumstances. To enable comparisons between cases, all amounts are also converted to US dollars. ARB/03/23) Expand / Collapse All Applicable IIA. ARB/03/19, Decision on Annulment, May 5, 2017), in regard to the issue of the Arbitral Tribunal’s refusal to accept a challenge to the service of one of its members – a decision held by the Annulment Committee to have been not manifestly unreasonable. For example, in a case where a final award has been rendered but it is later subject to a follow-on proceeding (e.g. both types of appointment are recorded under “Appointed by / designated to Respondent” without further distinction). 7.4.46). • Provide comprehensive analysis on key issues arising from the complexity of the international investment regime, By Malissa Khumprakob. [5] It should be recognized, however, that the Vivendi II Tribunal’s adoption of a strong interpretation of the FET standard did not appear to matter to the outcome of the case: the Tribunal stated that even if it had applied the narrower Neer standard advanced by Argentina, it still would have found Argentina to have breached the FET obligation (para. • Research and policy analysis: monitoring trends, identifying key emerging issues and providing cutting-edge knowledge on IIAs from a sustainable development perspective, In 1998, SITS and Argentina entered into a Contract for the provision of these services for a six-year term that was renewable for two further three-year terms (investment). 16 See e.g. In its preliminary objections to jurisdiction, Argentina argued, inter alia, that the BIT provided for consent to jurisdiction only for disputes between the Claimants and the Argentine Republic, whereas in this case, the dispute related exclusively to a Concession Contract, to which the Argentine Republic was not a party. Typically it is the first word of a corporate claimant’s name, an abbreviation of the corporate claimant’s name, or the last name of a natural-person claimant “v.” the short version of the respondent State’s name. Argentina on the hook for breach of Fair and Equitable Treatment Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal v. Argentine Republic (ICSID Case No. Looking Back: In resubmitted Vivendi proceedings following annulment, tribunal confirms jurisdiction and finds Argentina in breach of FET Jul 5, 2017 Arbitral award will stand in Vivendi v. Argentina case, but an arbitrator is criticized over lack of disclosure Sep 15, 2010 These issues are discussed in more detail below. Proceedings may also be conducted without being administered by any institution. TheVivendi II Tribunal also considered the content of the FET standard, stating that the words “fair and equitable” should be interpreted autonomously and in accordance with their ordinary meanings and that the standard includes an apparently broad obligation to “do no harm.” Further, the Vivendi II Tribunal considered the circumstances in which compensation for lost profits may be appropriate, finding that, in this case, the Claimants could not recover such damages because they had not established with sufficient certainty that the investment would be profitable. In defending against the FET claim, Argentina argued that the requirement in Article 3 for host states to grant foreign investors “fair and equitable treatment according to the principles of international law” required states to accord with the minimum international law standard of treatment. TheVivendi I Tribunal and first Annulment Committee also determined that a contractual forum selection clause in an agreement between an investor and a government entity that requires disputes relating to the investment to be pursued before local courts will not prevent the investor from initiating an ICSID case based on claims under a BIT. claimant or respondent) that appointed a particular arbitrator is also recorded insofar as information is available. The details of investment are presented as argued by the claimant, unless otherwise expressly identified by an arbitral tribunal in its decisions or awards. "Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentina, Decision on Argentina’s Request for Annulment of the Award, ICSID Case No ARB/97/3, IIC 446 (2010), 3rd August 2010, despatched 10th August 2010, United Nations [UN]; World Bank; International Centre for Settlement of Investment Disputes [ICSID]" published on by Oxford University Press. IIA breaches alleged and found The dispute arose out of the troubled relationship that developed between the parties to a 1995 concession agreement (the “Concession Contract”) to privatize the water and sewage services of the Province of Tucumán in Argentina. Follow the latest developments in investment policies around the world. 7. The dispute arose under the Spain-Argentina BIT. Argentina challenged the Claimants’ attempt to derive the fair market value of the concession from their purported lost profits, noting that many international tribunals had determined that an award based on lost profits is generally only appropriate if the relevant enterprise was profitable and had operated for a sufficient period to establish its performance record, circumstances not present in the case of the Tucumán concession. Victory in 12-year dispute with Argentina In 2015, an arbitration tribunal ruled in favour of four companies in a high-profile investment arbitration against Argentina concerning the world’s largest water concession. Azurix v Argentina: ICSID annulment application relating to the privatisation of the water services of Buenos Aires. 59, 84. ARB/03/19) Introductory Note In January 2005, fi ve non-governmental organizations, based in Buenos Aires and Washington, D.C., fi led with ICSID a request for leave to submit amicus curiae briefs in a case instituted against Argentina by French and Spanish A case remains pending if any of the following elements remain to be decided: jurisdiction, liability (merits), compensation. Argentina faced a financial emergency in 2001-02. Content. 25). ARB/03/19. In its decision rejecting those arguments, the ad hoc Committee noted that “procedural incidents” and “erroneous findings of law and fact” “can be considered grounds for annulment,” but “only if they rise to the exacting standards for annulment as expressed in Article 52(1)” of the ICSID Convention (para. 354. Argentina responded to the award with an application for its annulment. With respect to the FET claim, the Vivendi II Tribunal rejected Argentina’s arguments that CAA had frustrated and breached the Concession Contract and that the governmental actions about which Claimants complained were responsible, proportionate and appropriate responses to CAA’s inadequate performance of a fundamental public service. Argentina also sought annulment based on the acts and omissions of one of the arbitrators, Professor Kaufmann-Kohler. The Tribunal held that if it concluded that the challenged measures were expropriatory, there would be a violation of Article 5(2) of the BIT, even if the measures might be for a public purpose and non-discriminatory, because no compensation had been paid. International investment rulemaking is taking place at the bilateral, regional, interregional and multilateral levels. In ad hoc arbitrations or those that are subject to non-institutional arbitral rules (e.g. These are decisions rendered by an arbitral tribunal. They further argued that the federal government itself directly breached the BIT by failing to properly control and correct the actions of the provincial authorities. You can send the message to up to 4 other recipients. The Tribunal affirmed the finding of the tribunal in Santa Elena v. Costa Rica that the purpose for which the property was taken “does not alter the legal character of the taking for which adequate compensation must be paid”[1] (paras. The Committee concluded by annulling the portion of the award relating to those particular claims. The $405m victory for Freshfields’ clients brought to … Sempra v. Argentina, Decision on Annulment, 29 June 2010, para.119; Vivendi II v. Argentina, Decision on Annulment, 10 August 2010, paras. as a result of resignation, disqualification or passing away), the names of both the previous and subsequent arbitrator are recorded. 104–111, Vivendi I, Decision on Annulment), saying, “In the Committee’s view, it [was] not open to an ICSID tribunal having jurisdiction under a BIT in respect of a claim based upon a substantive provision of that BIT, to dismiss the claim on the ground that it could or should have been dealt with by a national court” (para. If the Navigator includes more than one case with the exact same name, then “(I)” is added to the case name of the earlier case, and a “(II)”, “(III)”, etc. If there are more than five claimants in the case, the names of all claimants can be replaced by the name of the first three claimants followed by the words “and others”. Argentina asserted that BITs were never intended to protect investors from the consequences of their own mistakes nor to provide them with an insurance policy against the due exercise of the state’s regulatory activity and that this is even more so the case when the service provided is as vital as the provision of water and sewage services. The date of the last update is displayed on the Navigator’s home page. In the proceedings between. Please contact us using the online contact form. 2020 International Institute for Sustainable Development Separate each address with a semi-colon (;) Example: name1@company.com; name2@organisation.com Charismatic photographer Gaston Barrios shoots in Argentina the latest line by Modus Vivendi. 21–22. The ISDS Navigator contains information about known international arbitration cases initiated by investors against States pursuant to international investment agreements (IIAs). AWG Group v. Argentina, Decision on Liability (UNCITRAL 2015). A few months after Vivendi scrapped the Mediaset Premium bid it bought an almost 30% stake in Mediaset in an attempted takeover. Argentina further asserted that this standard, as “classic[ally]” formulated in the 1926 Neer decision,[4] is violated only when the government’s conduct “amount[s] to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency” (para. ICISD Decision, Suez v Argentina, ICSID ARB/03/17 & 19. Prior IAReporter Coverage of Compania de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentina (1) Looking Back: Vivendi v. Argentina saga explored the relation between contract and treaty claims Jul 5, 2017 To access a full list of documentation available with respect to a case, users are invited to use (i) the link to the case page on http://italaw.com, and/or (ii) links to the websites of governments and/or arbitral institutions provided in the “Additional information” section. Originally filed in late 1996, this long-running ICSID case may have finally terminated with the second decision on annulment, issued in August 2010. They noted that although an arbitrator’s professional relationship with a party could warrant his or her disqualification, in this case it did not. Throughout the various stages of this long-running investment treaty arbitration, a number of significant legal issues arose. The claimant investor was a shareholder in a concessionaire which provided water and sewerage services in the Province of Buenos Aires, Argentina. • Develop a wide range of tools to support the formulation of more balanced international investment policies. The summary was prepared based on the award rendered on 20 August 2007. 232). subsidiary SITS. • ICSID resubmission proceedings. While every effort is made to keep the information up to date and complete, the material is provided without any guarantees or warranties as to its accuracy or completeness. In Vivendi v. 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