Abaclat and Others (Case Formerly Known as Giovanna a Beccara and Others) v. Argentine Republic

Abstract

Jurisdiction — Investment — Contract — Whether a dispute arising out of and in relation to sovereign bonds was an investment treaty dispute rather than a mere contractual dispute — Whether forum selection clauses influenced the place where the alleged investment was deemed to have been made

Jurisdiction — Investment — Sovereign bonds — Contribution — Interpretation — Whether security entitlements derived from sovereign bonds constituted obligations or public securities within the definition of investment under the BIT — Whether the investors had made contributions leading to the creation of value that the contracting parties intended to protect under the BIT

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Contribution — Whether the Salini test was the right approach to determine whether an investment had been made — Whether protection of security entitlements derived from sovereign bonds was consistent with the spirit and aim of the ICSID Convention — Whether the ICSID Convention sets the outer limits of consent given under the BIT

Jurisdiction — Investment — Sovereign bonds — Legality — Whether the investment was made in compliance with municipal law

Jurisdiction — Investment — Sovereign bonds — Territory — Economic development — Whether the investment was made in the territory of the host State — Whether it was sufficient for the invested funds to have supported the host State’s economic development — Whether it was necessary for investments of a purely financial nature to be linked to a specific economic enterprise or operation taking place in the territory of the host State

Jurisdiction — Foreign investor — Nationality — Timing — Whether the investors held the nationality of the home State — Whether natural and juridical persons met certain requirements prior to the registration of the request for arbitration

Jurisdiction — Foreign investor — Mass claim — Burden of proof — Whether the investors bore the burden to prove each of them met the requirements of jurisdiction

Jurisdiction — Foreign investor — Sovereign bonds — ICSID Convention, Article 25 — Whether a party that has purchased security entitlements derived from sovereign bonds through layers of intermediaries may still be classified as the party having made an investment

Jurisdiction — Consent — Fraud — Whether the State may invoke the investor’s allegedly fraudulent consent to challenge the validity of the agreement to arbitrate the dispute

Jurisdiction — Consent — Mass claim — Procedure — Whether specific consent was required in regard to the procedure for arbitration in the form of collective proceedings or collective mass claims

Jurisdiction — Consent — Prior consultation — Domestic litigation requirement — Whether prior consultation and domestic litigation requirements in the dispute resolution clause of a BIT were relevant to whether the host State consented to arbitration

Admissibility — Mass claim — ICSID Convention — Denial of justice — Whether the mass aspect of a dispute was admissible under the current ICSID framework — Whether to deny the admissibility of mass claims would be a denial of justice

Admissibility — Prior consultation — Domestic litigation requirement — Whether the failure to meet the requirements of prior consultation and domestic litigation rendered the claims inadmissible — Whether municipal courts would have resolved the dispute within 18 months

Procedure — Mass claim — ICSID Convention — ICSID Arbitration Rules — Interpretation — Whether the silence of the ICSID framework in respect of collective proceedings was to be interpreted as a gap — Whether a tribunal may adapt the ICSID Arbitration Rules to enable the group examination of claims in accordance with the object and purpose of the ICSID Convention — Whether the claims of multiple claimants were identical or sufficiently homogeneous to allow for their group examination — Whether group examination would meet standards of due process

Procedure — Withdrawal — Mass claim — ICSID Institution Rule 8 — Whether certain investors had withdrawn their consent prior to registration of the request for arbitration

Procedure — Discontinuance — Mass claim — ICSID Arbitration Rule 44 — Whether the request of certain investors for discontinuance should be granted — Whether discontinuance of some investors required the termination of the arbitration

Admissibility — Abuse of rights — Agent — ICSID Arbitration Rule 18 — Whether the ulterior interests of a third party acting as agent in the arbitration constituted an abuse of rights by the investors

Procedure — Evidence — ICSID Arbitration Rule 25 — Request for arbitration — ICSID Convention, Article 36(2) — Whether updated annexes to the request for arbitration containing information related to each investor were admissible — Whether the introduction of evidence violated the requirements of the request for arbitration by unilaterally updating the identity of the parties

Costs — Discontinuance — Whether investors who discontinued their participation in the proceeding should bear their own legal costs and a share of the arbitration costs

Interpretation — ICSID Convention — Policy — Whether policy considerations were relevant to determine whether the tribunal had jurisdiction over claims arising from sovereign bonds — Whether policy considerations were relevant to determine whether mass claims were admissible