Azurix Corp. v. Argentine Republic

Abstract

Arbitration — ICSID Convention, Article 41 — Duty of tribunal to judge its own competence — Consent by parties to jurisdiction of ICSID

Treaties — Bilateral investment treaty — 1991 Argentina–United States Treaty concerning the Reciprocal Encouragement and Protection of Investment (“BIT”) — Whether Argentina breached its obligations to claimant under BIT

Settlement — Attempt to reach amicable settlement — Within first six months after dispute arising — Article VII(3) of BIT — Consultation — Negotiation

Jurisdiction — International Centre for the Settlement of Investment Disputes — Competence of tribunal — Article 25 of ICSID Convention — Article VII of BIT

Legal dispute — Dispute arising directly out of investment — Contractual dispute — Concession Agreement — Investment dispute — Mere reference to interpretation or analysis of facts related to performance under Concession Agreement cannot per se transform dispute under BIT into a contractual dispute

Jurisdiction — Waiver of jurisdiction — Exclusive jurisdiction — Objection to jurisdiction — Whether jurisdiction of tribunal can be excluded by waiver clause in Concession Agreement, Bidding Terms, Commitment Letters or Clarifying Circulars — Scope of jurisdiction clauses in Contract Documents — Identity of parties to whom commitments made

Jurisdiction — “Fork-in-the-road” choice — Whether submission of dispute before local courts ousting jurisdiction of ICSID Tribunal — Differentiation of claims and parties

Jurisdiction — Forum selection clause — Difference in subject-matter of proceedings before domestic courts and tribunal — Forum selection or waiver clause not having impact on tribunal’s jurisdiction

Jurisdiction — Jus standi — Indirect investment — Rights of investors — Direct right of action of shareholders

Procedure — Proceedings on merits — Proceedings on jurisdiction suspending proceedings on merits