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National Grid P.L.C. v. Argentine Republic

Published online by Cambridge University Press:  27 February 2017

Nick Gallus
Nick Gallus*
Affiliation:
Canadian Department of Foreign Affairs and International Trade
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Type
International Decisions
Information
American Journal of International Law , Volume 103 , Issue 4 , October 2009 , pp. 722 - 727
Copyright
Copyright © 2009 by The American Society of International Law

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References

1 National Grid P.L.C. v. Argentine Republic, Award (UNCITRAL Arb. Trib. Nov. 3, 2008).

2 LG&E Energy Corp. v. Argentine Republic, ICSID Case No. ARB/02/1, Liability, para. 232 (Oct. 3, 2006). Legal materials relating to many of the arbitrations under the auspices of the International Centre for Settlement of Investment Disputes are available online at http://www.worldbank.org/icsid.

3 Id, para. 234.

4 Law No. 25561, Jan. 6, 2002, 29810 B.O. 1 (Public Emergency and Exchange Rate Reform Law), available at http://infoleg.mecon.gov.ar/infolegInternet/verNorma.do?id=7l477.

5 National Grid appointed Judd Kessler to the arbitration tribunal; Argentina appointed Alejandro Garro; and Andrés Rigo Sureda was selected by the party–appointed arbitrators as the third arbitrator and president.

6 Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Argentine Republic, Dec. 11, 1990 (entered into force Feb. 19, 1993).

7 In addition to National Grid, see CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, Award (May 12, 2005); LG&E Energy Corp. v. Argentine Republic, ICSID Case No. ARB/02/1, Liability (Oct. 3, 2006); Siemens A.G. v. Argentine Republic, ICSID Case No. ARB/02/8, Award (Feb. 6, 2007); Enron Corp. v. Argentine Republic, ICSID Case No. ARB/01/3 , Award (May 22,2007); Sempra Energy Int’l v. Argentine Republic, ICSID Case No. ARB/02/16, Award (Sept. 28, 2007); BG Group PLC v. Argentine Republic, Final Award (Dec. 24, 2007); Metalpar S.A. v. Argentine Republic, ICSID Case No. ARB/03/5, Award (June 6, 2008); Continental Casualty Co. v. Argentine Republic, ICSID Case No. ARB/03/9, Award (Sept. 5, 2008). Note that, in addition to these decisions on liability, other ICSID decisions have considered a tribunal’s jurisdiction to hear claims that Argentina’s response to the crisis breached its BIT obligations.

8 Compare LG&E Energy Corp., pan. 245, with Sempra Energy Int’l, paras. 348–55, BG Group PLC, para. 407, Enron Corp., para. 313, and CMS Gas Transmission Co., para. 331.

9 CMS Gas Transmission Co., para. 281; LG&E Energy Corp., paras. 133–39; Enron Corp., paras. 264–68; Sempra Energy Int’l, paras. 303–04; BG Group PLC, para. 307.

10 Sempra Energy Int’l, para. 396.

11 Id.

12 Id., para. 397.

13 See also Argentina’s argument that the CMS decision should be annulled because the tribunal failed to lower the standard of fair and equitable treatment on account of Argentina’s financial crisis:

The Tribunal had no authority to determine what was fair and equitable or a breach of an investment–related obligation in a vacuum. Nowhere in its decision is there any explanation of what is fair and equitable treatment of foreign investors in the midst of a severe economic crisis. . . . The Tribunal’s authority was limited to determining what was fair and equitable during the actual crisis ravaging Argentina, not during a period of idyllic stability which did not exist during the relevant time period.

Application for Annulment and Request for Stay of Enforcement of Arbitral Award, para. 58 (Sept. 8, 2005), CMS Gas Transmission Co. v. Argentina, at http://www.iisd.org/pdf/2005/investsd_cms_annulment_petition.pdf. The annulment committee did not accept Argentina’s argument. CMS Gas Transmission Co. v. Argentina, Decision of the Ad Hoc Committee on the Application for Annulment of the Argentine Republic (Sept. 25, 2007).

14 See, e.g., EDF Int’l S.A. v. Argentine Republic, ICSID Case No. ARB/03/23; Azurix v. Argentine Republic, ICSID Case No. ARB/03/30; Anglian Water Group v. Argentine Republic (an UNCITRAL dispute discussed in Investment Arb. Rep., June 3, 2008, at http://www.iareporter.com/Archive/IAR–06–03–08.pdf).

15 This question and others were recently addressed in a British Institute of International and Comparative Law Investment Treaty Forum roundtable entitled “Global Financial Crisis: Implications for Investment Arbitration” (Feb. 18, 2009) (for announcement, see http://www.biicl.Org/events/view/–/id/365/).

16 See Parkerings–Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award, paras. 278, 306, 335 (Sept. 11, 2007) (holding that the “equitable and reasonable” standard was the same as the fair and equitable treatment standard, and that Lithuania’s transition from Communism was relevant to determining if there had been a breach of the standard); Genin v. Republic of Estonia, ICSID Case No. ARB/99/2, Award, para. 348 (June 25, 2001); Eudoro Armando Olguin v. Republic of Paraguay, ICSID Case No. ARB/98/5, Award, para. 75 (July 26, 2001); see also Richard, Kreindler, Perspectives on State Party Arbitration: The Future of BITs—The Practitioner’s Perspective, 23 Arb. Int’l 43, 53 (2007)Google Scholar; Ioana, Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment 235 (2008)Google Scholar; Campbell, Mclachlan, Laurence, Shore, & Matthew, Weiniger, International Investment Arbitration: Substantive Principles, para. 7.17 (2007)Google Scholar (drawing from Georg Schwarzenberger, The Abs–Shawcross Draft Convention on Investments Abroad: A Critical Commentary, 9 J. Pub. L. 147, 152 (1960)Google Scholar, to conclude that the “inclusion of the reference to equitable treatment also provides a means by which an appropriate balance may be struck between the protection of the investor and the public interest which the host State may properly seek to protect in the light of the particular circumstances then prevailing”).

17 See Eastern Sugar B.V. (Netherlands) v. Czech Republic, Partial Award, para. 273 (Stockholm Chamber of Commerce Arb. Inst. Mar. 27,2007) (stating that the tribunal “does not believe that for historical reasons the Czech Republic should be held to a less stringent standard than other countries, say the Netherlands”); SwemBalt AB v. Republic of Latvia, Award (UNCITRAL Arb. Trib. Oct. 23, 2000), in 2004 Stockholm Arb. Rep. 97 (level of development not considered); Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17, Award (Feb. 6, 2008) (same). For a discussion of the influence of the host state’s stage of development on the fair and equitable treatment standard, see Nick, Gallus, The Influence of the Host State’s Level of Development on International Investment Treaty Standards of Protection, 6 J. World Investment & Trade 711 (2005)Google Scholar. It is worth noting, too, that in the only arbitration addressing the question of whether the customary international law minimum standard of treatment of aliens differs between countries, the tribunal in Glamis Gold, Ltd. v. United States, Award (Nafta Ch. 11 Arb. Trib. June 8, 2009), at http://www.state.gOv/s/l/cl0986.htm, held that it does not.