Investment Treaty Arbitration

Investment Treaty Arbitration: Argentina

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

Argentina

BIT Contracting Party or MIT

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection
and security

Most-favoured-nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

Algeria (28 January 2002)

Yes

Yes

Full legal protection (‘plena protección legal’)

Yes

No

6 months

Yes

Yes

Armenia (20 December 1994)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Australia (11 January 1997)

Yes

Yes

Yes

Yes

No

No

Yes

Yes

Austria (1 January 1995)

Yes

Yes

Full protection

Yes

Yes

6 months

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Belgium-Luxemburg Economic Union (20 May 1994)

Yes

Yes

Yes

Yes

No

No

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Bulgaria (11 March 1997)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Canada (29 April 1993)

Yes

Yes

Yes

Yes

No

No

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Chile (1 January 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

China (1 August 1994)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes (China: expropriation only)

Costa Rica (1 May 2001)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Croatia (1 June 1996)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Cuba (1 June 1997)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Czech Republic (23 July 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Denmark (2 February 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Dominican Republic (not in force)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Ecuador (1 December 1995)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Egypt (3 December 1993)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

El Salvador (8 January 1999)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Finland (3 May 1996)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

France (3 March 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Germany (8 November 1993)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Greece (not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Guatemala (7 December 2002)

Yes

Yes

Full legal protection

Yes

No

3 months

Yes

Yes

Hungary (1 October 1997)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Indonesia (1 March 2001)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Israel (10 April 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Italy (14 October 1993)

Yes

Yes

No

Yes

No

No

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Jamaica (1 December 1995)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Korea (24 September 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Lithuania (1 September 1998)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Malaysia (20 March 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mexico (22 July 1998)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Morocco (18 February 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Netherlands (1 October 1994)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes (subject to 18-month domestic litigation prerequisite)

New Zealand (not in force)

Yes

Yes

No

Yes

Yes

6 months

Yes

Yes

Nicaragua (1 February 2001)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Panama (22 June 1998)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Peru (24 October 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Philippines (1 January 2002)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Poland (1 September 1992)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Portugal (3 May 1996)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Romania (1 May 1995)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Russia (20 November 2000)

Yes

Yes

Full protection

Yes

No

6 months

Yes

Yes

Senegal (1 February 2010)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

South Africa (1 January 2001)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Spain (28 September 1992)

Yes

Yes

Protection

Yes

No

6 months

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Sweden (28 September 1992)

Yes

Yes

Full protection

Yes

No

6 months

Yes

Yes

Switzerland (6 November 1992)

Yes

Yes

Protection

Yes

Yes

No

Yes

Yes (subject to 18-month domestic litigation prerequisite)

Thailand (7 March 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tunisia (19 January 1995)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Turkey (1 May 1995)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

Ukraine (6 May 1997)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

United Kingdom (19 February 1993)

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes (subject to 18-month domestic litigation prerequisite)

United States (20 October 1994)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Venezuela (1 July 1995)

Yes

Yes

Full legal protection

Yes

Yes

6 months

Yes

Yes

Vietnam (1 June 1997)

Yes

Yes

Full legal protection

Yes

No

6 months

Yes

Yes

FTAs/EPAs

Substantive protections

Procedural rights

Fair and equitable treatment (FET)

Expropriation

Protection and security

Most-favoured-
nation (MFN)

Umbrella clause

Cooling-off period

Local courts

Arbitration

Treaty establishing the Latin American Association (18 March 1981)

No

No

No

Yes

No

No

No

No

Treaty establishing the Southern Common Market (MERCOSUR) (29 November 1991)

No

No

No

Yes

No

No

No

No 1

Protocol for the Promotion and Protection of Investments in MERCOSUR (not in force)

Yes

Yes

Full protection

Yes

No

6 months

Yes

Yes

Protocol on the Promotion and Protection of Investments coming from Non-MERCOSUR State Parties (not in force)

Yes

Yes

Full protection

Yes

No

Unspecified ‘prudential’ term (‘plazo prudencial’)

Yes

Yes

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

Argentina

Issue

Distinguishing features in relation to the definition of ‘investor’

Seat of the investor / place of business

Most Argentinean investment treaties provide that, to qualify as an investor, a legal person must be duly constituted in accordance with the laws of a Contracting Party and have its ‘seat’ within the territory of that party. Some treaties incorporate a variation of the seat-requirement, such as the location of the ‘head office’ (New Zealand), ‘social seat’ (France, Tunisia), or ‘actually doing business in [and] place of effective management’ (The Netherlands). In some treaties (eg, Australia, Canada, China, United Kingdom), the requirements for a legal person to qualify as an investor differ for each contracting party.

Incorporation in a third-State

Most treaties would exclude any legal person incorporated in a third-State by virtue of the seat requirement. However, the Australia BIT includes as investor a legal person organised under the law of a third country when it is owned, directly or indirectly, by an Australian legal person, citizen or permanent resident. The China BIT provides that if natural or legal persons of one of the contracting parties ‘have an interest’ in a legal person established in a third state, the latter shall be recognised as investor of that contracting party if the third state has no right to protection or abandons such right.

Control by a non-national

Most treaties do not directly address control by non-nationals, leaving this to the requirements of direct or indirect control by nationals of a contracting party. The Israel BIT explicitly excludes investors with a seat in one of the contracting parties when they are directly or indirectly controlled by investors of the other contracting partyor by those of third States. Under the United States BIT, a party has the right to deny a company of the other party the BIT benefits if the company is controlled by its nationals or by nationals of a third country with which the denying party does not maintain normal economic relations.

Permanent residence

With the exception of the BITs with Israel, Spain, United Kingdom and the United States, Argentine BITs exclude from the scope of their application any nationals of a contracting party who have been domiciled in Argentina for more than two years. The BITs also specify that this two-year period applies at the time of the making of the investment, and provide an exemption if the investor can prove that the investment was admitted from abroad. Some BITs (Algeria, Mexico) do not include a two-year threshold for the residency exception.

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

Argentina

Issue

Distinguishing features in relation to the concept of ‘investment’

Eligible assets

Most Argentinean investment treaties define investment as ‘every kind of asset owned or controlled, and invested’ by an investor of one contracting party into the territory of the other Party in conformity with the laws, regulations and investment policies of the contracting party in whose territory the investment is made. To this is added a non-exclusive list of assets that are covered by the term ‘investment’. The treaties also provide that a change in the form of an investment does not affect its character as an investment.

Exclusion of certain assets

The majority of Argentine BITs provide that loans or other claims to money are only included in the concept of investment when they are directly related to a specific investment.

Commencement of treaty protection

Most Argentinean BITs specify that they apply to all investments, whether made before or after their entry into force, but not to disputes, differences or claims concerning an investment. Some treaties add further conditions to this exception. For instance, the Panama and Jamaica BITs also specify that they do not create obligations in relation to any acts or facts that have taken place, or any situation which ceased to exist, before the entry into force of the treaty.

Admission/approval of an investment

Most Argentinean BITs stipulate that the protections under the treaty concern investments that have been admitted by a contracting party in accordance with its laws and regulations. The Thailand BIT adds that the treaty protections only apply where the investment by investors of the other contracting party has been admitted or otherwise approved in writing by the competent authority of the host state.

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

Argentina

Issue

Distinguishing features of the fair and equitable treatment standard

Illustrations of FET standard

Argentina’s investment treaties provide for fair and equitable treatment without specifying the elements of the standard or providing any examples thereof.

Customary international law

Argentine BITs typically do not equate fair and equitable treatment with customary international law standards and do not make any reference to such standards. However, the United States BIT provides that the treatment to be accorded shall in no case be less than that required by international law.

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

Argentina

Issue

Distinguishing features of the ‘expropriation’ standard

Conditions for expropriation

Argentina’s BITs typically provide that investments shall not be nationalised or expropriated, except for a public purpose (related to internal needs), under due process of law, in a non-discriminatory manner and against prompt, adequate and effective compensation.

Indirect expropriation

Argentine BITs also protect against indirect expropriation. The expropriation protection provisions typically include a reference to any measures having an effect equivalent to nationalisation or expropriation.

Interest and compensation

The treaties typically provide that the compensation shall be based on the market value of the investment expropriated immediately before the expropriation, or at the time the proposed expropriation became public knowledge, and shall be payable from the date of the expropriation at a normal commercial interest rate. Some treaties use slightly different terminology, such as the ‘genuine value’ (Canada) or ‘fair market value’ (United States) of the investment, and a ‘commercially reasonable’ (United States) interest rate. Some treaties (eg, Australia, Italy, New Zealand, The Philippines) list criteria and principles to be applied when the market value of the investment cannot readily be ascertained.

Right to review

Twenty-two of Argentina’s BITs grant the affected investor a right to local judicial review of its case and of the valuation of its investment in accordance with the expropriation protection provision of the BIT (in the United States BIT also the accordance with principles of international law). In nine of the BITs this right is one of ‘prompt’ review (eg, Costa Rica, United Kingdom, United States), while others refer to ‘immediate’ review (Czech Republic, Israel).

Limited right to arbitration

In contrast to Argentina’s other investment treaties, the China BIT limits matters that may be submitted by investors to international arbitration to disputes involving the amount of compensation for expropriation. Any dispute concerning other matters can only be submitted to international arbitration by mutual agreement of the parties to the dispute.

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

Argentina

Issue

Distinguishing features of the "national treatment" and/or "most favoured nation" standard

Scope of MFN treatment

The MFN protection in Argentina’s BITs typically applies to the investors and their investments, at times including "related activities" (eg, China, Germany), without further specifying the scope of MFN treatment in relation to various activities. Some treaties (eg, Canada, Czech Republic) provide more specifically that the MFN treatment applies to the investors as regards their management, use, enjoyment, transfer or disposal of their investments or returns. The United States BIT subjects MFN treatment to the right of each contracting party ‘to make or maintain exceptions’ that fall within one of the sectors or matters listed in the Protocol.2

Common exceptions to MFN treatment

Argentina’s investment treaties typically provide that a Contracting Party shall not be obliged to extend to investments any treatment, preference or privilege resulting from: (a) any customs union, economic union, free trade area or regional economic integration agreement; (b) the provisions of an agreement with a third country relating wholly or mainly to taxation; or (c) the bilateral agreements providing for concessional financing between Argentina and Italy of 1987 and between Argentina and Spain of 1988.3 Some treaties add further exceptions for other matters, such as frontier traffic (Austria) or frontier commerce (China).

International law standards

Most of the Argentinean BITs treaties are silent on MNF international law standards. However, the BIT with Belgium–Luxemburg provides that MFN treatment shall in no case be less favourable than the treatment standards recognised in international law. More generally, the United States BIT provides that the investments shall in no case be accorded treatment less than that required by international law.

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

Argentina

Issue

Distinguishing features of the "protection and security" standard

Extent of obligation

With the exception of the BITs with Armenia, Bulgaria, Finland, Italy and New Zealand, Argentina’s investment treaties include some type of provision on security and/or protection. Twenty-four BITs refer to "security and protection" or "full security and protection", while the provisions in the other treaties refer to "full legal protection", "full protection", or simply to "protection" under the BIT. It is not clear whether these different formulations are intended to entail different levels of protection.

Customary international law

Argentina’s investment treaties do not equate the obligation to provide protection and security to any customary international law standards to that effect. However, the United States BIT provides that the treatment of investments (including their full protection and security) shall in no case be less than that required by international law.

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

Argentina

Issue

Distinguishing features of any "umbrella clause"

Scope

Eleven of the BITs concluded by Argentina contain an umbrella clause (Austria, China, Germany, Greece, The Netherlands, New Zealand, Switzerland, Thailand, United Kingdom, United States, and Venezuela). These clauses typically provide that each contracting party "shall observe any obligation it may have entered into with regard to investments". Some treaties vary this formulation. For instance, the umbrella clause in the New Zealand BIT is limited to the observance of such obligations by a contracting party "in accordance with its laws", and the Austria BIT limits the umbrella clause to contractual obligations.

9. What are the other most important substantive rights provided to qualifying investors in this country?

Argentina

Issue

Other substantive protections

Free transfer of payments

All Argentinean investment treaties contain a provision which requires the contracting parties to permit investors to freely transfer abroad any funds related to the investment. These provisions typically contain a list of types of funds covered by the right to free transfer. They also stipulate that the transfers abroad shall be effected without delay in a freely convertible currency, at the applicable exchange rate on the date of transfer, in accordance with the laws and procedures (including those concerning bankruptcy) of the contracting party that admitted the investment.

Measures that are discriminatory or unjustified/arbitrary/unreasonable

Most of Argentina’s BITs provide that neither contracting party shall impair the management, maintenance, use, enjoyment or disposal of investments by investors of the other contracting party through measures that are discriminatory or otherwise objectionable. The terminology for the latter category varies, with some treaties referring to measures that are "unreasonable" (eg, Israel, The Netherlands, United Kingdom), and others to those that are "arbitrary"(eg, Denmark, Greece, United States) or "unjustified" (eg, Ecuador, Egypt, Italy, Jamaica, Panama).

Armed conflict/civil unrest

Argentinean BITs typically contain a provision by which the host state is required, in the case of losses owing to situations of armed conflict or civil unrest, to provide a treatment in regard to restitution, indemnification, compensation or other settlement to the investors of the other contracting party that is not less favourable than that accorded to national investors or to those of any third state.

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

Argentina

   

18-month local litigation prerequisite

Ten Argentinean BITs (Austria, Belgium-Luxemburg, Canada, Germany, Italy, Korea, The Netherlands, Spain, Switzerland, United Kingdom) subject the right to resort to international arbitration to an 18-month domestic litigation requirement. These provisions typically provide that the dispute may be submitted to arbitration if: (i) the host state and the investor have so agreed; or (ii) 18 months have passed from the moment of the submission of the dispute to the competent tribunal of the host state without a final decision by that tribunal; or (iii) the final decision of the aforementioned tribunal has been issued but the parties are still in dispute.

Fork-in-the-road-provisions

The majority of Argentina’s investment treaties (those not containing the 18-month litigation prerequisite prior to resort to international arbitration) contain a fork in the road provision. These provisions typically provide that once an investor has submitted the dispute either to the courts of the contracting party or to international arbitration, the choice for one of these dispute settlement procedures is ‘definitive’, ‘final’, or ‘irrevocable’. Accordingly, once they pursue their claim through domestic courts or in international arbitration the other option is no longer available.

ICSID or ad-hoc arbitration

Most Argentine BITs provide that when the dispute is referred to international arbitration, the investor and contracting party may agree to refer it to (i) ICSID; or (ii) ad hoc arbitration under the UNCITRAL rules. If the parties fail to agree within three months, they shall submit their dispute to either ICSID arbitration in some treaties (eg, Germany, Thailand) or UNCITRAL ad hoc arbitration in others (eg, Canada). Several treaties (eg, The Netherlands, Sweden, Turkey) allow the choice of the investor to prevail, while some only provide for UNCITRAL ad hoc arbitration (Cuba), or UNCITRAL ad hoc arbitration and – if the parties so agree – ICC arbitration (Russia).

Subject-matter restriction

Under the China BIT, the right to arbitration is limited (in respect of China) to disputes regarding the quantification of an expropriation claim. Disputes concerning other matters may be submitted by mutual agreement of the parties to the dispute. The United States BIT provides a definition of an ‘investment dispute’ for the purposes of the application of the dispute settlement provisions.

11. What is the status of this country’s investment treaties?

Argentina

The Argentine government has repeatedly affirmed that it is committed to the promotion of foreign investment, including through its investment treaties. To date, there has been no official public pronouncement to the effect that Argentina will refuse to renew or seek to renegotiate its investment treaties. Neither has the government indicated that it will not agree to investor-state dispute settlement provisions in future investment treaties.

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

Argentina

Government entity to which claim notices are sent

The notice of arbitration should be sent to the Attorney General’s Office.

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

Argentina

Government department which manages investment treaty arbitrations

These arbitrations are managed by the Attorney General’s Office of the National Treasury, assisted by the National Directorate of International Affairs and Disputes, in cooperation with the Ministry of Foreign Affairs and Worship.

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

Argentina

Internal/External Counsel

Argentina relies on internal counsel in its investment treaty arbitrations. On a few occasions, its legal team has been supplemented by external counsel. The State is currently not expected to initiate a public procurement process for the hiring of such external counsel.

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

Argentina

Washington Convention implementing legislation

Law No. 24,353 of 28 July 1994 (promulgated 22 August 1994). Argentina deposited its ratification instrument on 19 October 1994 (entry into force for Argentina on 18 November 1994).

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

Argentina

New York Convention implementing legislation

Law No. 23,619 of 28 September 1988 (promulgated 21 October 1988). Argentina deposited its ratification instrument on 14 March 1989 (entry into force for Argentina on 12 June 1989). Upon ratifying the New York Convention, Argentina made both reservations authorised under article I(3) of the Convention.

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

Argentina

Legislation governing non-ICSID arbitrations

To date, Argentina has not adopted an international arbitration law (previous draft bills based on the UNCITRAL Model Law on International Commercial Arbitration have been deferred). Arbitrations seated in Argentina are governed at the federal level by the National Code of Civil and Commercial Procedure (Book VI, Arbitral Procedure) enacted in 1967 (and amended in subsequent years), supplemented by arbitration-related provisions in the provincial procedural codes. Certain matters concerning arbitration agreements and arbitral procedure are also governed at the federal level by the new National Civil and Commercial Code (Unified) (Chapter 29, Arbitration Agreement) which entered into force in 2015. The provisions of the latter do not apply to disputes to which the state or local states are parties.

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

Argentina

Compliance with adverse awards

Argentina has recently reached settlements for the payment of two adverse investment treaty awards (BG, El Paso), one of which had been subject to additional proceedings in the United States (BG). In 2013, Argentina also reached settlements with award creditors in regard to several investment arbitration awards (CMS, Azurix, Vivendi, Continental Casualty, National Grid). Aside from National Grid (UNCITRAL), these concerned ICSID awards that had become final after the conclusion of annulment proceedings. Several ICSID annulment proceedings are still pending, or have recently been concluded or discontinued (see question 23).

19. Describe the national government’s attitude towards investment treaty arbitration

Argentina

Attitude of government towards investment treaty arbitration

Largely due to the measures taken during the Argentine economic crisis of the late 1990s and early 2000s, Argentina is one of the countries that have faced the greatest number of investment treaty claims within the ICSID regime. Nevertheless, the Argentine Government has to date not made public any intention to renounce its ICSID membership. Instead, it has recently announced a landmark settlement of the first mass claim case in the history of ICSID (Abaclat) as well as settlements reached to satisfy two investment treaty awards (BG, El Paso). Its continued commitment to the ICSID regime thus far stands in contrast to ICSID renunciations by other Latin-American states (Bolivia, Ecuador, Venezuela).

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

Argentina

Attitude of local courts towards investment treaty arbitration

Argentine courts are normally not called on to pronounce on investment treaty arbitration, including any enforcement of investment treaty awards. However, in 2015 the Buenos Aires Commercial Court of Appeals issued a landmark decision in its first case regarding the enforcement of ICSID awards in Argentina, finding that exequatur proceedings were not required for the enforcement of ICSID awards (being "international" rather than "foreign" awards).4 In one exceptional case, the Federal Administrative Court of Appeal ordered the stay of an UNCITRAL investment arbitration proceeding (National Grid).5

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

Argentina

National legislation

Substantive protections

Procedural rights

FET

Expropriation

Other

Local courts

Arbitration

Constitution of the Argentine Nation

No

Yes

No extraordinary compulsory taxes

Yes

No

Law No. 21,382 (as modified by Laws No. 22,208, 23,760 and 23,679 and Decree 1853/1993)

No

No

Equal rights and obligations as national investors, right to remit profits abroad and to repatriate investments

Implicitly (through equal treatment)

No

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

Argentina

Relevant guarantee scheme

Qualifying criteria, substantive protections provided and practical considerations

Multilateral Investment Guarantee Agency (MIGA)

As of 11 February 1992, Argentina is a party to the Convention establishing the Multilateral Investment Guarantee Agency of 11 October 1985 (adhesion approved by Decree 1863/1990 of 17 September 1990). Within the framework of this treaty, Argentine nationals and corporations are eligible to acquire political risk insurance from MIGA in respect of investments made in certain developing countries, provided that certain conditions are met. To be eligible, the investment must be medium to long term, financially viable, support the host country’s development goals, and comply with MIGA’s policy on social and environmental sustainability as well as the standards on anti-corruption and fraud.

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

Argentina

Awards

Convial Callao S.A. and CCI – Compañia de Concesiones de Infraestructura S.A. v Republic of Peru (ICSID Case No. ARB/10/2), Award of 21 May 2013. BIT Peru–Argentina 1994

Impregilo S.p.A. v Argentine Republic (ICSID Case No. ARB/07/17), Award of 21 June 2011, Decision on Annulment of 24 January 2014. BIT Italy–Argentina 1990

ICS Inspection and Control Services Limited v Argentine Republic (PCA Case No. 2010-9) (UNCITRAL), Award on Jurisdiction of 10 February 2012. BIT Argentina–United Kingdom 1990

AWG Group Ltd. v Argentine Republic (UNCITRAL), Decision on Liability of 30 July 2010. BIT Argentina–United Kingdom 1990

TSA Spectrum de Argentina, S.A. v Argentine Republic (ICSID Case No. ARB/05/5), Award of 19 December 2008. BIT Netherlands–Argentina 1992

Daimler Financial Services AG v Argentine Republic (ICSID Case No. ARB/05/1), Award of 22 August 2012, Decision on Annulment of 7 January 2015. BIT German –Argentina 1991

Wintershall Aktiengesellschaft v Argentine Republic (ICSID Case No. ARB/04/14), Award of 8 December 2008. BIT Germany–Argentina 1991

National Grid P.L.C. v Argentine Republic (UNCITRAL), Award of 3 November 2008. BIT Argentina–United Kingdom 1990

Talsud, S.A. v United Mexican States (ICSID Case No. ARB(AF)/04/4), Award of 16 June 2010. BIT Mexico– Argentina 1996

EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v Argentine Republic (ICSID Case No. ARB/03/23), Award of 11 June 2012, annulment proceeding pending. BIT Argentina–Belgium-Luxemburg 1990, BIT France–Argentina 1991

El Paso Energy International Company v Argentine Republic (ICSID Case No. ARB/03/15), Award of 31 October 2011, Decision on Annulment of 22 September 2014. BIT United States–Argentina 1991

Continental Casualty Company v Argentine Republic (ICSID Case No. ARB/03/9), Award of 5 September 2008, Decision on Rectification of 23 February 2009, Decision on Annulment of 16 September 2001. BIT United States –Argentina 1991

Metalpar S.A. and Buen Aire S.A. v Argentine Republic (ICSID Case No. ARB/03/5), Award of 6 June 2008. BIT Chile–Argentina 1991

BG Group Plc. v Argentine Republic (UNCITRAL), Final Award of 24 December 2007. BIT Argentina–United Kingdom 1990

Azurix Corp. v Argentine Republic (ICSID Case No. ARB/01/12), Award of 14 July 2006, Decision on Annulment of 1 September 2009. BIT United States–Argentina 1991

CMS Gas Transmission Company v Argentine Republic (ICSID Case No. ARB/01/8), Award of 12 May 2005, Decision on Annulment of 25 September 2007. BIT United States – Argentina 1991

Houston Industries Energy, Inc. and others v Argentine Republic (ICSID Case No. ARB/98/1), Award of 24 August 2001. BIT United States–Argentina 1991

Compañia de Aguas del Aconquija S.A. and Vivendi Universal S.A. v Argentine Republic (ICSID Case No. ARB/97/3), Award 21 November 2000, Decision on Annulment 3 July 2002, Decision on Supplementation and Rectification of the Decision on Annulment 28 May 2003, Award 20 August 2007, Decision on Annulment 10 August 2010. BIT France–Argentina 1991

SAUR International v Argentine Republic (ICSID Case No. ARB/04/4), Award of 22 May 2014, annulment proceeding pending. BIT France–Argentina 1991

Total S.A. v Argentine Republic (ICSID Case No. ARB/04/1), Award of 27 November 2013, annulment proceeding pending. BIT France–Argentina 1991

Emilio Agustín Maffezini v. Kingdom of Spain (ICSID Case No. ARB/97/7), Award of 13 November 2000, Rectification of 31 January 2001. BIT Spain–Argentina 1991

Pending proceedings

Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v Argentine Republic (ICSID Case No. ARB/14/32), BIT Argentina–Austria 1992

Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v Argentine Republic (ICSID Case No. ARB/09/01), BIT Spain–Argentina 1991

HOCHTIEF Aktiengesellschaft v Argentine Republic (ICSID Case No. ARB/07/31), BIT German –Argentina 1991

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v Argentine Republic (ICSID Case No. ARB/07/26), BIT Spain–Argentina 1991

Unisys Corporation v Argentine Republic (ICSID Case No. ARB/03/27), BIT United States–Argentina 1991

Electricidad Argentina S.A. and EDF International S.A. v Argentine Republic (ICSID Case No. ARB/03/22), BIT France – Argentina 1991

Enersis S.A. and others v Argentine Republic (ICSID Case No. ARB/03/21), BIT Chile – Argentina 1991

Suez, Sociedad General de Aguas de Barcelona S.A. and Interagua Servicios Integrales de Agua S.A. v Argentine Republic (ICSID Case No. ARB/03/17), BIT France – Argentina 1991, BIT Spain – Argentina 1991

Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. v Argentine Republic (ICSID Case No. ARB/03/19), BIT France – Argentina 1991, BIT Spain – Argentina 1991

Gas Natural SDG, S.A. v Argentine Republic (ICSID Case No. ARB/03/10), BIT United States–Argentina 1991, BIT Spain–Argentina 1991

Camuzzi International S.A. v Argentine Republic (ICSID Case No. ARB/03/2), BIT Argentina–Belgium-Luxemburg 1990

AES Corporation v Argentine Republic (ICSID Case No. ARB/02/17), BIT United States – Argentina 1991

Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v Argentine Republic (ICSID Case No. ARB/01/3) (suspension of the resubmission proceeding has been extended until 12 April 2016). BIT United States–Argentina 1991

Discontinued

Repsol, S.A. and Repsol Butano, S.A. v Argentine Republic (ICSID Case No. ARB/12/38), BIT Spain–Argentina 1991

Impregilo S.p.A v Argentine Republic (ICSID Case No. ARB/08/14), BIT Argentina–Italy 1990

Ambiente Ufficio S.p.A. and others v Argentine Republic (ICSID Case No. ARB/08/9), BIT Argentina–Italy 1990

Giovanni Alemanni and others v Argentine Republic (ICSID Case No. ARB/07/8), BIT Argentina–Italy 1990

Abaclat and others v Argentine Republic (ICSID Case No. ARB/07/5), BIT Argentina–Italy 1990

Asset Recovery Trust S.A. v Argentine Republic (ICSID Case No. ARB/05/11), BIT United States–Argentina 1991

Compañia General de Electricidad S.A. and CGE Argentina S.A. v Argentine Republic (ICSID Case No. ARB/05/2), BIT Chile–Argentina 1991

RGA Reinsurance Company v Argentine Republic (ICSID Case No. ARB/04/20), BIT United States–Argentina 1991

France Telecom S.A. v Argentine Republic (ICSID Case No. ARB/04/18), BIT France–Argentina 1991

BP America Production Company and others v Argentine Republic (ICSID Case No. ARB/04/8), BIT United States – Argentina 1991

CIT Group Inc. v Argentine Republic (ICSID Case No. ARB/04/9), BIT United States–Argentina 1991

Azurix Corp. v Argentine Republic (ICSID Case No. ARB/03/30), BIT United States–Argentina 1991

Telefónica S.A. v Argentine Republic (ICSID Case No. ARB/03/20), BIT Spain – Argentina 1991

Aguas Cordobesas S.A., Suez, and Sociedad General de Aguas de Barcelona S.A. v Argentine Republic (ICSID Case No. ARB/03/18), BIT France – Argentina 1991, BIT Spain – Argentina 1991

Pan American Energy LLC and BP Argentina Exploration Company v Argentine Republic (ICSID Case No. ARB/03/13), BIT United States–Argentina 1991

Pioneer Natural Resources Company, Pioneer Natural Resources (Argentina) S.A. and Pioneer Natural Resources (Tierra del Fuego) S.A. v. Argentine Republic (ICSID Case No. ARB/03/12), BIT United States–Argentina 1991

Camuzzi International S.A. v Argentine Republic (ICSID Case No. ARB/03/7), BIT Argentina–Belgium-Luxemburg 1990, BIT United States–Argentina 1991

Sempra Energy International v Argentine Republic (ICSID Case No. ARB/02/16), BIT United States–Argentina 1991

Siemens A.G. v Argentine Republic (ICSID Case No. ARB/02/8), BIT Germany–Argentina 1991

LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v Argentine Republic (ICSID Case No. ARB/02/1), BIT United States–Argentina 1991

Empresa Nacional de Electricidad S.A. v Argentine Republic (ICSID Case No. ARB/99/4), BIT Chile–Argentina 1991

Mobil Argentina S.A. v Argentine Republic (ICSID Case No. ARB/99/1), BIT United States–Argentina 1991

Lanco International, Inc. v Argentine Republic (ICSID Case No. ARB/97/6), BIT United States–Argentina 1991.

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

Argentina

Marilda Rosado de Sá Ribeiro and Orlanda José Guterres Costa Júnior, ‘Global Governance and Investment Treaty Arbitration: The Importance of the Argentine Crisis for Future Disputes’ (2015) 14:3 The Law and Practice of International Courts and Tribunals: A Practitioners’ Journal 417 – 437

Antoine Martin, ‘Investment Disputes after Argentina’s Economic Crisis: Interpreting BIT Non-precluded Measures and the Doctrine of Necessity under Customary International Law’ (2012) 29:1 Journal of International Arbitration 49 – 70

William W. Burke-White, ‘Part IV, Chapter 17: The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System’, in Michael Waibel, Asha Kaushal, et al. (eds), The Backlash against Investment Arbitration (Kluwer Law International 2010) 407 – 432

Kathryn Khamsi, ‘Part II Chapter 8: Compensation for Non-expropriatory Investment Treaty Breaches in the Argentine Gas Sector Cases: Issues and Implications’ in Michael Waibel, Asha Kaushal, et al. (eds), The Backlash against Investment Arbitration (Kluwer Law International 2010) 165 – 185

José E. Alvarez and Kathryn Khamsi, ‘The Argentine Crisis and Foreign Investors: A Glimpse into the Heart of the Investment Regime’ (2009) Yearbook on International Investment Law and Policy 2008–2009 379 – 478

Esteban M. Ymaz Videla, ‘Los Tratados Bilaterales de Inversiones, el CIADI y Cuestiones del Arbitraje Inversor Extranjero – Estado Receptor, con Base en la Experiencia Argentina’ (2005) II:8 Revista Brasileira de Arbitragem 101 – 127

Paolo Di Rosa, ‘The Recent Wave of Arbitrations against Argentina under Bilateral Investment Treaties: Background and Principal Legal Issues’ (2004) 36:1 The University of Miami Inter-American Law Review (Symposium Edition: International Arbitration) 41 – 71

Ricardo Beltramino, La promoción de inversiones en los acuerdos de inversiones firmados por argentina (Documento de trabajo No. 49, FLACSO 2010), available at http://rrii.flacso.org.ar/wp-content/uploads/2010/06/FLA_Doc49.pdf

Leonardo E. Stanley, Acuerdos bilaterales de inversión y demandas ante Tribunales Internacionales: la experiencia argentina reciente (Serie Desarrollo Productivo No.158, CEPAL 2004), available at www.cepal.org/es/publicaciones/acuerdos-bilaterales-de-inversion-y-demandas-ante-tribunales-internacionales-la

Horacio D. Rosatti, ‘Los Tratados Bilaterales de Inversión, El Arbitraje Internacional Obligatorio y el Sistema Jurídico Argentino’ (2003/2004) available at www.cepal.org/drni/noticias/noticias/7/13167/12.pdf

Notes

1 However, since the entry into force on 1 January 2004 of the Olivos Protocol, a three-member expert panel procedure is available to private parties against member states in certain circumstances when the procedures set out in the Protocol are followed (involving the Common Market Group and the relevant National Section).

2 These sectors or matters include for the United States: mining on the public domain; maritime services and maritime-related services; primary dealership in government securities; and for Argentina: real estate in the Border Areas; air transportation; shipbuilding; nuclear energy centres; uranium mining; insurance; mining; fishing.

3 The protocol of The Netherlands–Argentina BIT provides in regard to this exception involving the treaties with Italy and Spain: ‘However, the Argentine Republic shall seek to avoid that such privileges or advantages significantly affect the competitive conditions for investments and activities of investors of the Kingdom of the Netherlands.’

4 CCI - Compañía de Concesiones de Infraestructura S.A. s/ Pedido de Quiebra (por República de Perú), Case 8030/2015, Buenos Aires Commercial Court of Appeals (Chamber A), Decision of 18 August 2015. At the same time, the Court noted obiter dicta that Argentine courts must satisfy themselves that the enforcement of such awards in Argentina does not violate Argentine public policy.

5 In Estado Nacional – Procuración del Tesoro v Cámara de Comercio Internacional, Case 2660/2006, Federal Administrative Court of Appeals, Decision of 3 July 2007, the Court ordered a stay of the proceedings in National Grid P.L.C. v Argentine Republic (UNCITRAL), even though this arbitration did not have its seat in Argentina.

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