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International Centre for Settlement of Investment Disputes (ICSID): CMS Gas Transmission Company v. the Republic of Argentina

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 42 , Issue 4 , July 2003 , pp. 788 - 810
Copyright
Copyright © American Society of International Law 2003

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Footnotes

*

This document was reproduced and reformatted from the text provided by the law firm of Freshfields Bruckhaus Deringer.

References

1 Treaty between the United States of America and the Argentine Republic conceit Line the Reciprocal Encoi of Investment. November 14, 1991, in force from October 20, 1994. Hereinafter cited as the U.S.Argentina BIT.

2 Under Article 38 of the ICSID Convention, if the Tribunal is not yet constituted within 90 days after the notice of registration of the request has been dispatched, the Chairman of ICSID's Administrative Council shall, at the request of either party, and after consulting both parties as far as possible, appoint the arbitrator or arbitrators not yet appointed and designate an arbitrator to be the President of the Tribunal.

3 Law No. 23.696 of 1989 on the Reform of the State.

4 Law No. 23.928 of 1991 on Convertibility.

5 Law 24.076 of 1992 on the Privatisation of the Gas Sector.

6 Decree 1738/92 of 1992 on the implementation of the Gas Law.

7 Information Memorandum on the Initial Public Tender Offer, 1992.

8 Decree 2255/92 of 1992 on the terms and conditions of licenses.

9 Law No. 25.561 of 2002 on Public Emergency and Reform of the Currency Exchange Regime, Decree 71/2002 on Public Emergency and Decree 214/2002 on “pesification”.

10 See supra, note 1.

11 Decree 1570/2001, December 1, 2001 on Financial Entities.

12 Supra, note 9.

13 Supra, note 4.

14 Sulkowski, J.: “Questions Juridiques soulevées dans les Rapports Internationaux par les Variations de Valeur des Signes Monétaires”, Recueil des Cours de I’ Académie de Droit International, Vol. 29, 1929. 5 and ff.Google Scholar

15 Maffezini v. Spain, ICSID Award of November 13, 2000, par. 64.

16 Counter-Memorial on Jurisdiction, at 18, par. 50.

17 Hearing, April 8, 2003, at 84.

18 Supra, note 11.

19 Counter-Memorial on Jurisdiction, at 50, note 118.

20 Hearing, April 8, 2003, at 40.

21 Carlos Suarez Anzorena: "Personalidad de las Sociedades", Cuadernos de Derecho Societario, 1973, as cited in the Memorial on Jurisdiction, note 82

22 Law no. 19.550 of 1972 on Commercial Corporations, Article 52, par. 3.

23 Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), Judgment of February 5, 1970, ICJ Reports 1970, 3.

24 Case Concerning the Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment of July 20, 1989, ICJ Reports 1989, 15.

25 International Law Commission: Preliminary Report on Diplomatic Protection, by Mohammed Bennouna, Special Rapporteur, A/CN.4/484, 4 February 1998, at 5.

26 David J. Bederman: "Interim Report on Lump Sum Agreements and Diplomatic Protection", International Law Association, Committee on Diplomatic Protection of Persons and Property, Report of the Seventieth Conference, New Delhi, 2002, 230, at 253-256.

27 For the jurisprudence of the Untied States-Iran Claims Tribunal see generally George H. Aldrich: The Jurisprudence of the Iran- United States Claims Tribunaels 1996; Charles N. Brower and Jason D. Brueschke: The Iran-United States Claims Tribunal, 1998.

28 United Nations Compensation Commission, Decision of the Governing Council on Business Losses of Individuals, S/AC.26/1191/4, 23 October 1991, par. F and Decision 123 (2001).

29 International Law Association, Committee on Diplomatic Protection of Persons and Property, First Report, Sixty-Ninth Conference, London, 2000.

30 Fedax v. Venezuela, Decision of the ICSID Tribunal on Objections to Jurisdiction, July 11, 1997, pars. 21-26 with citations to the relevant cases and lirature.

31 Ibid., par. 22, note 18.

32 Ibid., par. 24.

33 AAPL v. Sri Lanka, ICSID Award of June 27, 1990.

34 AMT v. Zaire, ICSID Award of February 21, 1997.

35 Antoine Goetz et consorts v. Republique du Burundi, Sentence du CIRDI du 10 Fevrier 1999.

36 Supra, note 15.

37 Lanco v. Argentina, Preliminary Decision of the ICSID Tribunal of December 8, 1998.

38 Genin et al. v. Estonia, ICSID Award of June 25, 2001.

39 Compani'a de Aguas del Aconquijaet al. v. Argentina, ICSID Award of November 21, 2000.

40 Vivendi, ICSID Annulment Decision of July 3, 2002.

41 CME v. Czech Republic, Partial Award of September 13, 2001.

42 Supra, note 35, par. 89.

43 Supra, note 37, pars. 10, 11.

44 Supra, note 40, par. 50.

45 TGN License of December 18, 1992, Article 1.3.4, approved by Decree 2457/92.

46 Supra, note 37, par. 36.

47 Supra, note 37, par. 40.

48 Supra, note 39, pars. 53-54.

49 Wena v. Egypt, ICSID Annulment Decision of February 5, 2002, par. 35. The IPPA is the relevant Bilateral Investment Treaty between Egypt and the United Kingdom.

50 See for example Aguas, supra, note 39, Genin, supra, note 38, Olguin v. Paraguay, Decision of the ICSID Tribunal on Objections to Jurisdiction of August 8, 2000.

51 Hearing, April 7, 2003, at 75.

52 Letter of Submittal by the President of the United States, January 13,1993, U.S. Government Printing Office, Treaty Doc. 103-2,1993.

53 Exhibit 25 of the Request for Arbitration.

54 Exhibit 26 of the Request for Arbitration.

55 Exhibit 27 of the Request for Arbitration.

56 Exhibit 30 of the Request for Arbitration.

57 Supra, note 15.

58 James Crawford: The International Law Commission's Articles on State Responsibility, 2002, Comments on Article 4 at 94-99.

59 Hearing of April 7, 2003, at 113.

60 Article 46 of the ICSID Convention and Rule 40 of the Arbitration Rules.

61 Metalclad v. Mexico, Case No. ARB(AF)/97/l, Award, (August 30, 2000), 40ILM (2001), 36; Pope ' Talbot Inc. v. Canada (Award Concerning the Motion by Government of Canada Respecting the Claim Based upon the Imposition of the “Super Fee” (August 7, 2000)). Legal Authorities No. 95.

62 It is worth noting that the UNCITRAL Rules do not provide for ancillary claims as such. Article 20 of those Rules states that: “During the course of arbitral proceedings either party may amend or supplement his claim or defense unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement.” In many instances, the distinction between supplementing a claim and introducing an ancillary claim may be more semantic than real. However, Article 46 of the ICSID Convention and Arbitration Rule 40 are more restrictive in the sense that the ancillary claim must arise directly out of the subject-matter of the dispute and that it must be made no later than in the reply, if it is an additional or incidental claim, and no later than the counter-memorial, if it is a counter-claim. In the Pope ' Talbot case, the tribunal concluded that the issue raised by the Claimant “is not a new claim and consequently no amendment of the Claim is required.“

63 Supra, note 61, par. 67.