Maffezini v. Kingdom of Spain

Abstract

Arbitration — International Centre for the Settlement of Investment Disputes (“ICSID”) — Jurisdiction — Local remedies rule — ICSID Convention, Article 26 — Reversal of normal presumption — Whether exhaustion of domestic remedies required in Argentine — Spain Bilateral Investment Treaty — Whether most favoured nation clause permitting reference to more liberal provisions on dispute settlement in other treaties — Provisional measures of protection — Scope of jurisdiction to order — Requirement that provisional measures must relate to subject matter of case — Award — Rectification

Claims — ICSID — Standing to claim — Investor of one party investing in company incorporated in Respondent State — Whether investor having standing to claim

Economics, trade and finance — Bilateral investment treaties — Standards — Most favoured nation clause — Bilateral investment treaty not an insurance policy for bad investment decisions

International tribunals — ICSID — Arbitration tribunal — Jurisdiction — Procedure

Nationality — Nationality of claims — Bilateral investment treaty — Whether permitting national of one party to claim in respect of investment in company incorporated in the other party

State responsibility — For acts of State-owned company — Whether company a State entity — Structural and functional tests — Distinction between commercial and sovereign acts of company — Local remedies rule — Nationality of claims rule

Treaties — Interpretation — Principles of interpretation — Vienna Convention on the Law of Treaties, 1969, Article 31 — Principle of good faith