Compañía de Aguas del Aconquija, SA & Compagnie Générale des Eaux v. Argentine Republic

Abstract

Applicable law — Relation between concession contract, bilateral investment treaty and icsid Convention — Dispute with provincial authorities relating to interpretation and application of contract to be submitted to administrative courts

Jurisdiction — Jurisdiction issue joined to merits — Failure to designate or consent to application of icsid Convention to province under Article 25(1) and 25(3) does not deprive Tribunal of jurisdiction — Local forum clause in concession contract does not divest Tribunal of jurisdiction for claims against State

State responsibility — Attribution of responsibility for actions of political subdivisions — Responsibility not limited by federal or decentralized character of State — No factual basis for attribution — State’s obligation under bilateral investment treaty to pursue in good faith and with reasonable efforts the resolution of the dispute — State’s constructive role in renegotiation process

Municipal law — Impossibility of separating claims for breaches of contract from bilateral investment treaty violation without prior resort to administrative courts — Claimant required under contract to assert its rights in proceedings before administrative courts prior to invoking icsid procedure — Claimant not precluded from asserting its rights in administrative courts — No evidence that courts lacked independence or fairness or would have denied Claimant’s rights procedurally or substantively — No principle of exhaustion of remedies

Procedure — Exhaustion of remedies — Requirement incompatible with Article 8 of bilateral investment treaty and Article 26 of icsid Convention — Resort to administrative courts required under contract for purposes of interpretation and application