Azurix Corporation v. Argentine Republic

Abstract

Annulment — Stay of enforcement — ICSID Convention, Article 52(1) — Provision of security — Discretion of ad hoc committee to decide on security — Burden on claimant to show security required — Annulment proceeding not an exceptional circumstance justifying security

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Meaning of “manifestly” — “Test” of manifest excess of powers — Whether tribunal had manifestly acted without jurisdiction — ICSID Convention, Article 41(2) — Tribunal as judge of its own competence — Whether manifest lack of jurisdiction if decision under Article 41(2) incorrect

Annulment — Function of annulment committee — No appeal or de novo review

Foreign investment — Standing — Investment through company — Controlling shareholding — When investor not legal owner of assets constituting investment — When investor not party to contract giving rise to rights constituting an investment — Investor’s financial and commercial interest in the investment — Separate legal personalities and rights and obligations of shareholders and company — Right of shareholder to pursue investment treaty claim — ICSID Convention, Article 25(2)(b) — Multiple proceedings — ICSID proceedings of shareholders in light of proceedings brought by company in national courts — Prevention of double recovery

Applicable law — Annulment — Whether tribunal disregarded applicable law — ICSID Convention, Article 42 — ICSID Convention, Article 52(1)(b) — BIT governed by international law — ICSID Convention, BIT and international law as applicable law — Municipal law helpful in determining breach of BIT — General principles of international law — Applicable law in determination of “fair and equitable” standard

Annulment — Failure to state reasons — ICSID Convention, Article 52(1)(e) — Whether the award contained contradictory statements — Tribunal’s refusal to consider an issue — Whether serious departure from fundamental rule of procedure

Annulment — Denial of fundamental evidence — ICSID Convention, Article 43(a) — ICSID Arbitration Rule 34(2) — Tribunal’s discretionary power to call upon a party to produce documents — No right of party to obtain evidence from opposing party — Inequality of treatment of parties — Application of different standards in admission of evidence

Procedure — Composition of tribunal — Disqualification of arbitrator — ICSID Convention, Article 52(1)(a) — ICSID Convention, Articles 57 and 58 — No right to de novo review of challenge of arbitrator — Waiver of rights to raise objections — Estoppel from raising objections

Annulment — Damages — ICSID Convention, Article 52(1)(a) — Tribunal’s discretion to apply “fair market value” standard

Annulment — Costs of annulment proceedings — Administrative and Financial Regulations, Regulations 14(3)(d) and 14(3)(e) — Applicant to bear costs of entirely unsuccessful application