Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic

Abstract

Jurisdiction — Exhaustion of remedies — Whether the requirement for domestic litigation prior to arbitration was one of jurisdiction — Whether the State was deprived of a fair opportunity to address the dispute within its own legal system — Whether the requirement also imposed obligations on the State to ensure its courts were capable of adjudicating the substance of the dispute within 18 months — Whether the State was precluded from relying on the investors’ failure to comply with the domestic litigation requirement

Jurisdiction — Investment — Whether the investors’ shareholding in a local company extended to protection of concession rights under the BIT — Whether the investors had transferred their shareholding interests in breach of a concession contract

Jurisdiction — Foreign investor — Consent of host State — ICSID Convention, Article 25(3) — Whether the public nature of an investor meant that the consent of the other ICSID contracting party was required

Contract — Breach of contract — Whether alleged breaches were of a purely contractual nature or amounted to breaches of the BIT — Whether the failure of the concession was due to the local subsidiary’s performance — Whether delays by the provincial government or the financial crisis justified the local subsidiary’s failure to meet targets — Whether renegotiation of a concession would have occurred even without the financial crisis and emergency measures

Fair and equitable treatment — Legitimate expectation — Contract — Applicable law — Human rights — Whether contractual performance constituted a legitimate expectation protected by the standard — Whether the standard was the customary minimum standard of treatment or should be extended by principles and rules of international law — Whether the investors’ expectations were legitimate in the light of the legal framework, social and economic environment, constitutional law and core interests of the host State such as the human right to water — Whether the investors had waived or lost their expectations due to negligence

Fair and equitable treatment — Transparency — Policy change — Whether the State breached the standard of treatment by not disclosing an abrupt policy change during renegotiations

Remedies — Damages — Contributory fault — Whether damages should not be awarded because the concession had no future due to failures of the investors

Expropriation — Indirect expropriation — Emergency measures — Whether emergency measures or concession renegotiation deprived the local subsidiary of its rights

Expropriation — Direct expropriation — Contract termination — Whether the termination of a concession contract for just cause constituted an expropriation

Arbitrary or discriminatory measures — Like circumstances — Applicable law — Whether the standard had an autonomous meaning from fair and equitable treatment — Whether any State measures were clearly less favourable to the foreign investors — Whether unfavourable treatment was intended to harm the foreign investor and was not justified by sufficient reasons — Whether discrimination obstructed investments and their management, maintenance, use and enjoyment — Whether the investors had identified comparator businesses in identical or similar circumstances

Arbitrary or discriminatory measures — Emergency measures — Whether the investors were subjected to measures that had no justification — Whether justification was linked to investor expectations — Whether the State could have adopted less harmful emergency measures during the financial crisis — Whether the claims related to purely contractual disputes

Jurisdiction — Counterclaim — ICSID Convention, Article 46 — Whether the tribunal had prima facie jurisdiction to hear a counterclaim brought by the host State

Applicable law — Counterclaim — VCLT, Article 31(3)(c) — Whether applicable law included international human rights law

Counterclaim — Human rights — Constitutional law — Human right to water — Whether the State had identified any obligation of the investors under the concession contract to actively participate in complying with the human right to water — Whether there existed any ground for damages for breach of human rights

Costs — Whether it was appropriate for the State to pay a substantial portion of the costs and legal fees during the jurisdictional phase