Sempra Energy International v. Argentine Republic

Abstract

Jurisdiction — Applicable law — ICSID Convention, Article 42(1) — ICSID Convention, Article 25 — Whether the choice of applicable law on the merits applied also to the jurisdictional phase

Jurisdiction — Nationality — ICSID Convention, Article 25(2)(b) — Whether nationality requirements were cumulative or alternative — Whether an investor not exercising control may bring a claim — Whether the interests of foreign investors may be combined

Jurisdiction — Dispute — ICSID Convention, Article 25(1) — Whether the dispute was of a legal nature — Whether dispute arose directly from an investment

Foreign investor — Investment — Minority or indirect shareholding — Whether a minority shareholding qualified as an investment

Jurisdiction — Negotiation — Whether an ongoing renegotiation of licences with the State was a ground to decline jurisdiction

Jurisdiction — Forum selection — Submission to local jurisdiction — Whether contract-related disputes may be submitted to ICSID tribunal

Expropriation — Direct expropriation — Whether transfer of property rights to the State was an essential requirement of direct expropriation

Expropriation — Indirect expropriation — Whether there was substantial deprivation of property rights

Fair and equitable treatment — Legitimate expectation — Whether State measures substantially changed the legal and business framework under which the investment was made

Umbrella clause — Whether breach arose from conduct of an ordinary contract party or involved sovereign State function — Whether the obligation was related to a specific investment agreement

Arbitrary or discriminatory measures — Economic crisis — Whether measures adopted were arbitrary or discriminated against the investor

Full protection and security — Legal protection — Whether the standard of full protection and security expanded beyond physical protection

Defence — Emergency measures — Municipal law — Whether national emergency measures were legally justified under municipal law

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether measures were adopted to safeguard an essential interest — Whether there existed a grave and imminent peril — Whether the measures adopted were the only way to offset the economic crisis — Whether the State contributed to the situation giving rise to necessity

Defence — Exclusions and reservations — Essential security interests — Interpretation — Whether an economic emergency qualified as an essential security interest — Whether the provision was self-judging — Whether the provision should be interpreted in light of customary international law

Defence — Necessity — ILC Articles on State Responsibility, Article 27 — Customary international law — Temporality — Whether the state of necessity was still justified — Whether compensation might be owed for measures adopted during the state of necessity

Remedies — Damages — Whether crisis had incidence on the amount of compensation — Whether a renegotiated agreement had incidence on amount of compensation

Remedies — Interest — Whether post-award interest must be expressly requested in the petition for relief

Procedure — Stay of enforcement — ICSID Convention, Article 52(4) — Whether there was a presumption in favour of granting a stay — Whether an annulment committee was empowered to impose conditions on the granting of stay

Procedure — Stay of enforcement — ICSID Convention, Article 53 — ICSID Convention, Article 54 — Whether the creditor must have recourse to domestic enforcement procedure — Whether circumstances and history of non-compliance called for assurances

Procedure — Stay of enforcement — Whether the State demonstrated economic hardship — Whether escrow eliminated risk of non-recoupment

Procedure — Termination of stay — Whether the risk of third-party creditors seizing escrow funds justified non-compliance with conditions on the granting of stay

Annulment — Manifest excess of powers — Failure to state reasons — ICSID Convention, Article 52(1) — Jurisdiction — Investment — Minority or indirect shareholding — Whether the tribunal’s conclusions on standing constituted grounds for annulment

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Defence — Exclusions and reservations — Whether equating a treaty provision with the standard under customary international law constituted a failure to apply the applicable law — Whether excess of power was manifest

Annulment — Costs — Whether the rule that costs follow the event was in line with equitable principles