Awards and Decisions. On the other hand, silence by the ORAB in the case of non-movable assets registered in the name of the Province shall be understood as rejection of the request (Article 7.6.1). The standard in NAFTA is different from the standard in the BIT. The Concession Agreement stipulated the tariff structure for the entire term of the Concession, "an error in the Concession fee calculation might not be invoked for amending the tariffs. Sigue EN VIVO Perú vs Argentina, por la fecha 4 de la Eliminatorias Sudamericanas. "357, "There must have been an enrichment of one party to the detriment of the other, and both must arise as a consequence of the same act or event. Exclude grammatical variations of your search terms. S.A. v. Argentina (Award of November 21, 2000, 40 ILM 426 (2001), in the Decision of the ad hoc Committee of July 3, 2002, 41 ILM 1135 (2002)), and in Salini v. Morocco (Decision of July 23, 2001, 42 ILM 609 (2003)). Marc Lalonde, P.C, O.C., Q.C., ArbitratorDr. The conclusions reached by the Tribunal on the recovery of the Canon and the RPI are also significant for purposes of the determination of the degree of impact that the actions of the Province had on Azurix's investment. Their installation was the responsibility of the Concessionaire. The real question that Argentina is raising is whether Azurix is claiming double recovery. The Claimant alleges that Argentina is responsible for the actions of the Province under the BIT and customary international law. 4 rejecting the request for production of evidence formulated in the communication of the Respondent of July 22, 2004 because of its general nature and failure to justify it. 591 0 obj <>stream This committee had to produce an interim report of the negotiations within 30 days and a resolution of the issues outlined in 60 days. The difficulty is no less severe, unless the decision is based on a single act creating liability, when the Tribunal concludes that an investor has not received fair and equitable treatment or that it has been subjected to arbitrary treatment or that the host State has not provided the investor the full protection and security guaranteed by the BIT. The Respondent concludes that this is the standard applied in NAFTA, which delimits the level of violation from the object of the protection, and the scope that the Claimant gives to the standard would make irrelevant all the standards of protection because it would encompass them all. William Hewett. 2598/01 and 3039/01 were issued, ABA was fined seven times for a total of US$555,000, (iii) seven more fines were imposed after the transfer of the service for a total of US$1,960,000, and (iv) four fines for a total of US$1,800,000 were levied between the filing of reorganization proceedings and the deadline for creditors to file a petition for allowance of claims. Article 43-II reads as follows: "Assets that are transferred to the Concessionaire are part of a group known as the appropriated unit [‘unidad de afectación' in Spanish].". The Respondent has not disputed that the BIT applies to the Province or the responsibility of the central State for acts of provincial authorities under customary international law. It is represented in this proceeding by: Mr. Doak BishopKing & Spalding1100 Louisiana, Suite 4000Houston, TX 77002United States of America, Mr. Guido Santiago TawilM&M BomchilSuipacha 268, Piso 12C1008AAF Buenos AiresArgentina. This interpretation has not been contested by the Respondent and it follows from the alternative way in which the term "measures" is qualified by the adjectives "arbitrary or discriminatory". Azurix argues that the expropriation of its contract rights – and contract rights are included in the definition of investment - is the consequence of a series of acts that alone may not be sufficient to constitute expropriation but taken together constitute creeping expropriation. In fact, numerous complaints were filed with the Privatization Commission, the ORAB, the Provincial Governor and Argentine federal officials.23, "Question No. Report. xÚb```b``™ÀÀÂÀÀö���øX؀‘酄†YΕ’=V‹œŞò³¨=¸yä3ƒë‡WGE>H8eÔS4å™a_°Ü%v�M �Ï*rk0ó* It consists of three elements: the amortization of assets in service acquired or built by the Concessionaire and the improvements made thereon by the Concessionaire. The Privatization Commission was asked the following question on Communiqué No. […] If the criterion is the largest lump sum offered to run a franchise, however, the outgoing concessionaire could receive the highest bid, since this bid reflects the value of the assets as they currently exist. Even if the tariff increases could be applied retroactively and the number of variations to be verified was large, this seems to have been an unduly protracted process. Azurix Corp v. Argentina. In holding that Article 1105(1) refers to customary international law, the FTC interpretations incorporate current international law, content, the content of which is shaped by the conclusion of more than two thousand bilateral investment treaties and many treaties of friendship and commerce. Enron v. Argentina; 2001. The Respondent considers that the definition in, In its Reply, the Claimant insists that the meaning in the BIT should be the ordinary meaning of its terms. The Tribunal disagrees with the understanding of the Claimant of the terms of the Law and the Concession Agreement on these matters. Therefore, according to the Respondent, ABA was not entitled to the alleged rights which supposedly the Province ignored. The Respondent concludes by affirming that the takeover took place in a "context of mutual cooperation.". The unhelpful attitude of the authorities is also evident in the procrastination in resolving the issue of the construction variations when the information given the bidders proved to be incorrect and in completing the works under Circular 31(A). Hier auf SofaScore Live Ticker können Sie alle vorherigen Argentina vs Uruguay Ergebnisse, sortiert nach ihren Kopf-an-Kopf-Matches. Accordingly, Azurix filed its Counter-Memorial on jurisdiction on May 13, 2003. Argentina recalls that the bid of Azurix was out of line with the other bids for the concession areas and calculates that, "considering the bids that would have maximized the revenues of the Province from those regions [A, C1, C2, C3, and C4] excluding Azurix's bid, the maximum amount that would have been paid by the other bidders for the ABA Concession is 38.52 million dollars. As to the second issue, various dates in 2001 have been proposed by Azurix. 1 and No. These are two different concepts. The effect of these measures was to drive ABA into bankruptcy and permanently put it out of business. Goal . The Claimant lists, as other measures tantamount to expropriation beyond the repudiation of the tariff regime, the repudiation by the Province of representations and assurances provided in the bidding process through circulars and information communiqués, the public call for customers not to pay their bills in August 1999 when the equalization subsidy was eliminated, the public calls by the provincial Governor and the Mayor of Bahía Blanca for users not to pay their water bills, the incorrect public statements by provincial office holders that the Concessionaire was wholly responsible for the incident, the incorrect public statements by public officials creating hysteria by suggesting that the water was toxic, the ORAB resolutions not allowing ABA to collect for its services, etc. Argentina has placed substantial emphasis on the fact that Azurix was a subsidiary of ENRON and has alleged that Azurix followed the aggressive and dubious practices of ENRON in its bidding for and subsequent operation of the Concession. On the other hand, the Tribunal has also found that ORAB's request for a study in the context of the RPI was a legitimate request. This being the case, the reading by the Claimant of the Concession Agreement and of the information provided by the Privatization Commission would seem reasonable. Nevertheless, in the absence of any per se violation of the BIT discernible from the relevant conduct of the Kyiv City State Administration, the only possibility in this case for the series of complaints relating to highly technical matters of Ukrainian planning law to be transformed into a BIT violation would have been for the Claimant to be denied justice before the Ukrainian courts in a bona fide attempt to resolve these technical matters. William Hewett: All Blacks v Argentina, Bankwest Stadium - Player ratings. The responsibility of States for acts of its organs and political subdivisions is well accepted under international law. Argentina’s defense is otherwise known as a “necessity defense,” and such term will be used to describe Argentina’s defense claim throughout this paper. To meet the water requirements, the Province had started construction of an aqueduct which was listed as 95% complete in Circular 31(A). The evidence provided to the Tribunal shows that Circular 52(A) was not the last circular to be issued by the Commission and that other significant circulars were issued after the date of Circular 52(A). The Province replied on August 29, 2001 denying any wrongdoing; in particular, the letter denied the right of the Concessionaire to recover its investment, including the initial Canon. Azurix Corp v Argentina (ICSID Case No ARB/01/12) - Annulment proceeding Practical Law Resource ID 4-504-4006 (Approx. Azurix recalls that the Algae Removal Works were the exclusive responsibility of the Province, and the works that concerned the Patagonia plant were never completed. The purpose of the third sentence is to set a floor, not a ceiling, in order to avoid a possible interpretation of these standards below what is required by international law. The ORAB acted on the basis of an internal report of February 8, 2003 that alerted it to the fact that the CD attached to Circular 58(A) did not distinguish between variations in fiscal valuations for construction or other reasons. These provisions are usual in concession tariff regimes known as price cap regulatory regimes. When ABA identified the variations, it had no way to know whether they were caused by construction activity or other reasons. Regardless of this fact, the decisions of the ORAB were controlled and dictated by the MOSP. 574 0 obj <> endobj The Priority Work Plan never became effective and it could not have amended the Concession Agreement or changed the targets established in the POES for the second year of the Concession. The H&S report in January 2001 did not mention the issue and the letter of OPIC sent on September 21, 2001 neither. 11,820 and the Contract would have never allowed such transfer. On March 12, 2002 the Tribunal suspended the proceeding on the merits pursuant to Arbitration Rule 41(3), and set dates for filing pleadings on jurisdiction. According to the Claimant, the Respondent carries the evaluation without taking into account the non-application of the tariff regime and the agreement on a Priority Work Plan in the MOU. The other example, Article 7.8, has not been questioned by the Respondent. As regards the Respondent's question about the causal relationship between an unfair act and the damage that the expropriatory is alleged to have caused, the Claimant considers that this concern has become meaningless once it has been shown that the same measure may breach more than one right under the BIT and the analysis of damages presented by Azurix allows the Tribunal to identify the impact caused by each measure of Argentina. In the Post-Hearing Memorial the accounts receivable are not included in the definition of "full compensation" and, on the other hand, an amount in excess of $55 million is claimed on account of discrete damages detailed in the NERA report. In three NAFTA cases, tribunals awarded damages for breaches other than expropriation, In the present case, the Tribunal is of the view that a compensation based on the fair market value of the Concession would be appropriate, particularly since the Province has taken it over. The federal government has an obligation to prevent expropriations [without compensation] by it or its political subdivisions. This percentage reflected the fact that the Micro-Screening Plant of the Paso de las Piedras dam had been refurbished and started up by June 23, 1998, and on December 9, 1998 eight additional filters were released for use. The Tribunal's task, of course, is to construe the treaty as written, not rewrite it as the GOA would prefer." On April 19, 2004, the Tribunal issued Procedural Order No. The Concession Agreement itself refers repeatedly to investments. The Respondent contests the definition of creeping expropriation arrived at by the Claimant. The Tribunal observes that the BIT itself is an instrument agreed by the two State parties to encourage and protect investment. According to the Claimant, the POES goals were superseded by the MOU which recognized that "the economic equilibrium of the concession had been materially altered, and the parties agreed to a finite Priority Work Plan to replace the POES. In particular, a State may treat foreign investment unfairly and inequitably without necessarily acting in bad faith. This discount rate is the rate of return the investor gets on the initial investment (the canon) over the life of the concession. In its Counter-Memorial, Argentina explains that the fee paid for the Concession is the price to run a monopoly. Circular 31(A) stated that the wells were 70% completed, which Azurix disputes. The Claimant did not submit its own copy of envelopes 1 and 2 as requested by the Tribunal, and Argentina requested that the Claimant bear the costs related to this procedural incident. In a very consistent manner, the tribunal in each of these cases reached However, these were not the only reasons adduced by OPIC to reject Azurix’s financing request. Under the drilling contract, AGOSBA had the right to reject the work performed if the water flow was lower than 50% of the required capacity or the water did not meet sanitary requirements. Noble Ventures vs. Romania 사건(ARB/01/11) (0) 2019.05.02: 38. Consumers will be facing the long run cost of providing the system and investors will have incentives to invest. The Respondent also contests the relevance of cases such as, As a final argument, the Respondent requests the Tribunal, In examining Argentina’s liability, to consider that, "during the period under review the country was undergoing the worst economic, social and Institutional crisis In Its history.". Q.C., a British national, and the Respondent appointed Dr. Daniel H. Martins, an Uruguayan national. ABA responded to the cost study request in a note to the ORAB, dated March 18, 2001, requesting ORAB to clarify the procedural or contractual framework on which ORAB based its request. Azurix expressly reserved its right to request a decision on provisional measures under. 3. Whether to consider only the effect of measures tantamount to expropriation or consider both the effect and purpose of the measures is a point on which not only the parties disagree but also arbitral tribunals. The Claimant argues that the BIT provides rights that are independent from each other and the breach of any one of them would entitle the investor to resort to the dispute settlement procedure provided by the BIT and would give rise to a right to compensation for the economic harm sustained. On July 29, 2004, the Tribunal issued procedural Order No. The Concession Agreement provides for extraordinary revisions of the tariffs on account of. However, this is a matter of a contractual nature that does not go beyond the relationship between the parties to the Concession Agreement acting as such. The Tribunal understands that governments have to be vigilant and protect the public health of their citizens but the statements and actions of the provincial authorities contributed to the crisis rather than assisted in solving it. To conclude, the ORAB provided an interpretation of the Concession Agreement not in accordance with the concepts of tariff, rates and bills underlying it and with the information provided the bidders at the time they prepared the tenders. 1. OBA, also registered in Argentina, is 100% owned by Azurix Agosba Holdings Limited which is registered in the Cayman Islands. The conclusions of the ORAB and the minutes of the hearing are sent to the executive which decides whether to agree to the revision or reject it. Matter has not been a claim of such a violation of international law minuto minuto. 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