According to the Claimants, these actions and omissions constituted a violation of the fair and equitable treatment (FET) and full protection and security standards in Articles 3 and 5(1) of the BIT, and an expropriation of the Claimants’ investment contrary to Article 5(2) of the BIT. Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. (Claimants) and. The dispute arose out of the troubled relationship that developed between the parties to a 1995 concession agreement (the “Concession Contract”) to privatize the water and sewage services of the Province of Tucumán in Argentina. UNCTAD’s Investment Policy Monitor (Special Issue) on recent developments in investment policies for, The Investment Policy Review of Seychelles argues that to achieve the country’s objectives, stated in, With the expansion of global trade, investment and technology over the last decades, international investment. The Claimants asserted, inter alia, that the provincial authorities acted wrongfully when they unilaterally modified tariffs contrary to the Concession Contract; used the media to generate local hostility toward them; made numerous, unjustified accusations against the concessionaire while themselves acting in flagrant violation of the agreement; interfered directly with CAA’s customer relationships, including inciting its customers not to pay their bills; and, after forcing the Claimants to renegotiate the Concession Contract, used their law-making powers to reject or undermine proposals that could have resolved issues with the concession and saved it from failure. ), Decisions and awards available at https://www.italaw.com/cases/309, Arbitrator independence, attribution, broad dispute resolution clause, contractual forum selection clause, damages, expropriation, fair and equitable treatment, jurisdiction, legitimate expectations, Request for Arbitration: 26 December 1996, Constitution of Tribunal: 1 December 1997, Award (original proceeding): 21 November 2000, Request by Argentina for Annulment of Award: 23 March 2001, Decision on Challenge to President of Annulment Committee: 3 October 2001, Request by Argentina for Supplementary Decisions and Rectification of, Decision on Argentina’s Request for Supplementary Decisions and Rectification: 28 May 2003, Request for Resubmission of Dispute to Arbitration: 24 October 2003, Decision on Jurisdiction in Resubmitted Proceeding: 14 November 2005, Award in Resubmitted Proceeding: 20 August 2007, Application for Annulment of Award in Resubmitted Proceeding: 19 December 2007, Decision on Argentina’s Request for a Continued Stay of Enforcement of Award: 4 November 2008, Mr. Peter D. Trooboff (claimant appointee), Judge Thomas Buergenthal (appointed by ICSID after Argentina failed to appoint an arbitrator), Prof. Gabrielle Kaufmann-Kohler (claimant appointee), Prof. Carlos Bernal Verea (respondent appointee), International Centre for Settlement of Investment Disputes (ICSID), ICSID Rules of Procedure for Arbitration Proceedings, France–Argentina Bilateral Investment Treaty (BIT). In particular, the Tribunal and Annulment Committee in the original arbitration proceeding made it clear that a host state can be responsible under a BIT for acts of its provincial authorities in breach of the BIT, even if the host state itself had no previous direct dealings with the investor. It requires policymakers, negotiators, civil society and other stakeholders to be well informed about foreign direct investment, international investment agreements (IIAs) and their impact on sustainable development. Rights under a concession contract concluded between claimant's Argentine affiliate company and the Province of Tucumán for operating the water and sewage system of Tucumán. ICSID annulment proceedings or domestic judicial review), are marked according to the outcome of the original arbitral proceeding (i.e. • The Navigator only records treaty-based disputes or treaty-based aspects of "mixed" disputes. Arbitral rules The Tribunal held that if it concluded that the challenged measures were expropriatory, there would be a violation of Article 5(2) of the BIT, even if the measures might be for a public purpose and non-discriminatory, because no compensation had been paid. AWG Group v. Argentina, Decision on Liability (UNCITRAL 2015). 90 Vivendi Universal v Argentina ICSID Case No ARB/97/3, Decision on Annulment (3 July 2002) para 96: ‘In accordance with this general principle (which is undoubtedly declaratory of general international law), whether there has been a breach of the BIT and whether there has been a breach of contract are different questions. The Tribunal disagreed and held that it was well established that actions of a political subdivision of a federal state, such as the Province of Tucumán in the federal state of the Argentine Republic, were attributable to the central government under international law. In a companion case, $383,581,241 was awarded to AWG’s co-investors. 7.5.20–7.5.21, Vivendi II Award). 8.2.8). Without much elaboration and evidencing an apparently high degree of deference to the Tribunal’s decisions, the ad hoc Committee then stated that no findings in or aspects of the Vivendi II award met the high standards warranting annulment. Originally filed in late 1996, this long-running ICSID case may have finally terminated with the second decision on annulment, issued in August 2010. Short case name It agreed with the Tribunal’s determination that it had jurisdiction over the dispute. Vivendi Universal acquired MP3.com and a leading American publisher, Houghton Mifflin in year 2001. ISDS data set in excel format (as of 31 July 2019) Concluded original arbitration proceedings: Open this in NEW TAB "Vivendi (Compañía de Aguas del Aconquija) v Argentina Case" published on by Oxford University Press. In the resubmitted proceeding (Vivendi II), the Tribunal determined that Argentina had breached the BIT’s provisions on FET, protection and full security, and expropriation. Prior IAReporter Coverage of Compania de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentina (1) Looking Back: Vivendi v. Argentina saga explored the relation between contract and treaty claims Jul 5, 2017 Content. The claimant investor was a shareholder in a concessionaire which provided water and sewerage services in the Province of Buenos Aires, Argentina. The date of the last update is displayed on the Navigator’s home page. "Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentina, Decision on Argentina’s Request for Annulment of the Award, ICSID Case No ARB/97/3, IIC 446 (2010), 3rd August 2010, despatched 10th August 2010, United Nations [UN]; World Bank; International Centre for Settlement of Investment Disputes [ICSID]" published on by Oxford University Press. 53, Vivendi I Award). The investments of Claimants Suez and Vivendi Universal S.A. ("Vivendi"), both incorporated in France, are protected by the 1991 Bilateral Investment Treaty between France and the Argentine Republic (the "France-Argentina BIT") 1, the investments of Claimant Sociedad General de Aguas de Barcelona S.A. ("AGBAR"), incorporated in Spain, are protected by the 1991 Bilateral Investment Treaty between the … In doing so, it relied on Article 8 of the BIT, which grants investors the right to submit “dispute[s] relating to investments” to ICSID. We work closely together to foster culture in all its diversity. In 1998, SITS and Argentina entered into a Contract for the provision of these services for a six-year term that was renewable for two further three-year terms (investment). TheVivendi I Tribunal and first Annulment Committee also determined that a contractual forum selection clause in an agreement between an investor and a government entity that requires disputes relating to the investment to be pursued before local courts will not prevent the investor from initiating an ICSID case based on claims under a BIT. Follow-on (post-award) proceedings include three types of legal proceedings: They noted that although an arbitrator’s professional relationship with a party could warrant his or her disqualification, in this case it did not. The Claimants sought damages totalling US$316.9 million, plus compound interest from November 1997, for the harms inflicted upon them (paras. At various stages in the proceedings, issues were raised regarding arbitrator independence and impartiality, including conflicts that may arise from arbitrators performing other roles such as serving as counsel in other investor–state disputes or serving on the board of directors of an international bank. These are individuals who serve as members of the arbitral tribunal adjudicating the dispute (arbitrators). The investor was a French company and its Argentine affiliate who entered into a concession agreement with the Province of Tucuman to provide water and sewage services. Based on citation analysis, the most-often cited case is Compañía de Aguas del Aconquija and Vivendi Universal v Argentina (Vivendi I) but no single decision rendered in that proceeding (there were eight) tops the list of the ten most-often cited investment treaty decisions, which are: The Annulment Committee stated that by failing to determine the Claimants’ claims alleging wrongful conduct of the Tucumán authorities, the Tribunal had manifestly exceeded its powers, an annullable error under ICSID Convention Article 52(1)(b). ISSN 2519-8823 (French ed.) ARB/97/3 (formerly Compañía de Aguas del Aconquija, S.A. and Compagnie Générale des Eaux v. Argentina further argued that annulment was warranted because the Tribunal improperly relied on some evidence and information—including … On 30 July 2010, the ICSID tribunal in Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal v. 21–22. The Tribunal sided with Argentina on this point. Prior IAReporter Coverage of Compania de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentina (1) Looking Back: Vivendi v. Argentina saga explored the relation between contract and treaty claims Jul 5, 2017 With respect to the remaining claims whose resolution did not depend on interpretation and application of the Concession Contract, the Vivendi I Tribunal dismissed them on the merits, stating that the evidence failed to establish that Argentina had breached the BIT either through its own actions or omissions, or through the actions or omissions of provincial authorities attributable to the national government. Applying the ICSID Arbitration Rules governing challenges to arbitrators, the other two members of the Annulment Committee decided, and rejected, Argentina’s proposal to disqualify Mr. Fortier. ARB/03/19. The Annulment Committee agreed with the Tribunal that the exclusive forum selection clause in the Concession Contract did not prevent the Tribunal from having jurisdiction over the claims brought pursuant to the BIT. As some proceedings (or certain aspects of proceedings) remain confidential, the information contained in the Navigator cannot be deemed exhaustive. Composition of tribunal Please contact us using the online contact form. To access a full list of documentation available with respect to a case, users are invited to use (i) the link to the case page on http://italaw.com, and/or (ii) links to the websites of governments and/or arbitral institutions provided in the “Additional information” section. Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. (Claimants) and. "Compañía de Aguas del Aconquija SA and Vivendi Universal SA v Argentina, Decision on Argentina’s Request for Annulment of the Award, ICSID Case No ARB/97/3, IIC 446 (2010), 3rd August 2010, despatched 10th August 2010, United Nations [UN]; World Bank; International Centre for Settlement of Investment Disputes [ICSID]" published on by Oxford University Press. This amount, the Tribunal continued, would be based on the “fair market value” of the concession (para. 244–45). The details of investment are presented as argued by the claimant, unless otherwise expressly identified by an arbitral tribunal in its decisions or awards. • Cases in which a final award has been rendered but which are later subject to follow-on (post-award) proceedings (e.g. ARB/03/19) Introductory Note In January 2005, fi ve non-governmental organizations, based in Buenos Aires and Washington, D.C., fi led with ICSID a request for leave to submit amicus curiae briefs in a case instituted against Argentina by French and Spanish The Tribunal additionally declared that there was “no doubt” that the fair and equitable standard includes a “government’s obligation not to disparage and undercut a properly granted concession (a ‘do no harm’ standard)…albeit one granted by a predecessor government,” in order to rescind the concession or to “force” a renegotiation (para. The $405m victory for Freshfields’ clients brought to … • Settled: the disputing parties settled the case and the arbitral proceedings were discontinued for that reason. (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010; republished on this website on October 18, 2018. Additional notes: These may include links to websites of arbitral/administering institutions, governments, international organisations, specialised reporting services (including subscription-based), media and other resources. In the resubmitted arbitration proceeding (Vivendi II), the Tribunal considered the significance of the host state’s intent to a potentially expropriatory measure, taking the view that intention was a peripheral consideration and that the effect of the measure was the critical issue. The Tribunal refused to make such an order. ICSID annulment proceeding), the status of the case is marked according to the outcome of the original arbitral proceeding (i.e. ICISD Decision, Suez v Argentina, ICSID ARB/03/17 & 19. EDF and others v. Argentina EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic (ICSID Case No. In Vivendi v. Argentina, a case arising under the France-Argentina BIT, laimants investment had obtained a concession to operate a water distribution system undergoing privatization. 251). After determining that Argentina violated Articles 3 and 5 of the BIT, the Vivendi II Tribunal proceeded to determine the amount of damages owed. Initiation of a follow-on proceeding by either disputing party does not affect the field “Case Status/Outcome” of the original proceeding, until the follow-on proceeding is completed. Woodruff Case (United States v Venezuela) (1903) 9 RIAA 213, 222, applied in Compañía de Aguas del Aconquija SA and Compagnie Générale des Eaux v Argentina, ICSID Case No ARB/97/3, Decision on Annulment (3 July 2002), para 101 (Vivendi I Annulment). Tribunal found that after sharp rate increases and a temporary but harmless discoloration of the water had stirred local opposition, These errors, Argentina argued, supported annulment under subsections (b), (d) and (e) of ICSID Convention Article 52(1), which, respectively, permit annulment if a tribunal manifestly exceeds its powers, seriously departs from a fundamental rule of procedure, or fails to state reasons upon which the award is based. [1] Compañía del Desarrollo de Santa Elena S.A. v. The Republic of Costa Rica, ICSID Case No. • Research and policy analysis: monitoring trends, identifying key emerging issues and providing cutting-edge knowledge on IIAs from a sustainable development perspective, In reaching that conclusion, it rejected Argentina’s argument that a forum selection clause in the Concession Contract, which required the contracting parties to submit all disputes regarding that contract to the exclusive jurisdiction of Tucumán’s local administrative tribunals, prevented it from hearing the case. • Provide comprehensive analysis on key issues arising from the complexity of the international investment regime, ARB/96/1, Award (17 February 2000), 15 ICSID REV–FILJ 169 (2000). Whenever a claimant or the tribunal refer to “expropriation”, without distinguishing between “direct” or “indirect”, such distinction is made on the basis of the factual background of the case and the context of the claimant’s claims and tribunal’s findings. 2, 17. Status/Outcome of original proceedings • ICC: International Chamber of Commerce (International Court of Arbitration) These are the arbitral rules in accordance with which the proceedings are conducted. • Decided in favour of investor: the tribunal found that the respondent State committed one or more breaches of the applicable IIA and awarded monetary compensation or non-pecuniary relief to the claimant investor. Looking Back: In resubmitted Vivendi proceedings following annulment, tribunal confirms jurisdiction and finds Argentina in breach of FET Jul 5, 2017 Arbitral award will stand in Vivendi v. Argentina case, but an arbitrator is criticized over lack of disclosure Sep 15, 2010 Otherwise, it is derived from other publicly available sources that are deemed reliable. Vivendi Universal SA was created on 8 December 2000 with the merger of the Vivendi media empire with Canal+ television networks and the acquisition of media assets of Canadian company Seagram Company Ltd, owner of Universal Studios. IIA breaches alleged and found 1 Suez, Sociedad General de Aguas de Barcelona, S.A.and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/97/3) Argentina - France BIT (1991) ICSID : ICSID Argentina claimed that, far from constituting an expropriation or unfair and inequitable treatment, the Province of Tucumán’s conduct merely discharged the Province’s responsibilities, both as a contracting party and as a government, and therefore the Claimants’ case should be dismissed (paras. Follow-on (post-award) proceedings ISSN 2519-8831 (Spanish ed. Discontinuance orders and settlement agreements are also recorded if such information is available. 26, Separate Opinion). When the relevant decision is not publicly available, information about breaches found may be obtained from other public sources that are deemed reliable. This marks the end of the long-running proceedings between Vivendi and Argentina which were commenced over … See Suez, Sociedad General de Aguas de Barcelona S.A. & Vivendi Universal S.A. v. Argentina, No. Please cite as: UNCTAD, Investment Dispute Settlement Navigator, available at https://investmentpolicy.unctad.org/investment-dispute-settlement. Professor Dalhuisen concluded by suggesting that if the “self- cleaning forces in the international arbitration system are no longer sufficiently strong,” “a treaty change probably involving the creation and operation of a specialised international court” would be necessary (para. 7.5.20–7.5.34, Vivendi II Award). 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