aurix v argentina
In this respect, the Claimant has referred to the decision of the court (in fact, an arbitral tribunal) in. According to the Claimant, the Province, not ABA, sought to modify the POES because of a political shift in how the new provincial government viewed the Concession Agreement. According to the Respondent, the methodology proposed by ABA was a disguised effort to increase tariffs, a fact that is denied by the Claimant. Argentina considers that the same reasoning applies to the instant case. 574 0 obj <> endobj While every bidder may expect to make reasonable profits above the concession fee, this is not an acquired right. The ORAB then had to decide on the appropriateness of any revisions taking into account the general principles in Article 12.3.1, one of which is that modifications may only compensate for actual costs in the delivery of the service, and the consequences that the modification may have for service delivery and the users. "For a concessionaire that has paid a transfer to government to operate a business at a predetermined set of prices, these issues [asset valuation and depreciation] could be important. 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. Argentina (1) ANALYSIS: Rejection of annulment requests in M.C.I. ABA was never penalized nor has Azurix claimed any damages on this account. Argentina points out that, as there was no rule permitting it, there was no submission by ABA to the ORAB requesting the transfer of the concession fee paid onto rates or the increase in rates to cover a part of the concession fee. This notwithstanding, observes the Claimant, provincial officials issued statements that caused panic in the population and did not conform with the analyses of the provincial Central Laboratory of the Ministry of Health which had determined that, "although the Bahía Blanca network water is not drinkable from a physical/chemical standpoint, no microbial contamination that could cause infectious diseases was detected.". The Respondent also raises the issue of a conflict between the BIT and human rights treaties that protect consumers' rights. Azurix discusses the compensation methodologies for expropriation, and submits claims under each one of them without expressing a preference for one or another method. Argentina supports further its argument by referring to Azinian. On May 30, 2001, the ORAB sent a letter to the MOSP Undersecretary informing him of ABA's concerns with the handling of the RPI request by the Province and requesting the advice of the provincial Organismos de Asesoramiento y Control (Asesoría General de Gobierno, Contaduría General and Fiscalía de Estado). Article 7.2 on "Title" distinguishes between the possession of assets received by the Concessionaire from the Province and assets and movable assets and real property acquired or constructed during the term of the Concession which shall be owned by the Concessionaire. "Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known, whichever is earlier; be paid without delay; include interest at a commercially reasonable rate from the date of expropriation; be fully realizable; and be freely transferable at the prevailing market rate of exchange on the date of expropriation". ABA was notified on September 21, 2001, the same date as OPIC's letter, and no reference was made to any conduct or omissions by the Province or the Regulatory Agency but to lack of plans, excessive budgets, lack of environmental impact assessments, etc. The Claimant alleges that Argentina breached the standard so defined by failing to apply the regulatory framework and the Concession Agreement and thus destroying the security provided by them: the Province never revoked Resolutions 1/99 and 7/00 or decided on the RPI adjustment or on the issue of the valuations, ABA was never compensated for. Azurix vs. Argentina 사건(ARB/01/12) (0) 2019.05.02: 39. The reason for the verification became only apparent when Resolution 15/00 was issued and the appeal was rejected. The effect of these measures was to drive ABA into bankruptcy and permanently put it out of business. Tariff is "a public document that includes a description of the company services, rates and charges, as well as the governing rules, regulation and practice in relation to those services". Argentina claims the works were completed in July and ABA claims never to have accepted them. Finally, the repeated calls of the Provincial governor and other officials for non-payment of bills by customers verges on bad faith in the case of the Bahía Blanca incident when the Province itself had not completed the works that would have helped to avoid the problem in the first place. Communiqué No.12 was issued by the Privatization Commission at its own initiative, so it may have considered it necessary to point out that Annex Ñ did not include zoning coefficients. The Claimant notes that it was notified of the need of a cost study nearly three months after it filed its RPI request when in accordance to the contract the review of ORAB was to be completed within 30 days, and that the cost study was mandated by the MOSP Undersecretary but it did not figure in the ORAB's early evaluation of the review, nor in the separate report of Mr. Pievani. The parties hold also different views on the time needed for a set of measures to have an expropriatory effect. "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. Azurix Corp. v. Argentine Republic: Tribunal Ruling in Favor of Foreign Investor Requires Pro-Active Behavior by the Host State to Encourage and Protect Foreign Investment under the Fair and ... Argentina.32 On June 30, 1999, ABA, AGOSBA, and the Province executed the con- The Tribunal further observes that damages and unjust enrichment are conceptually distinct in terms of the principles of liability and the measure of restitution. Therefore, in the event of changes to such system (or of the property rights or of the vested rights), the aggrieved party is faced not with unfair treatment but rather with an alleged expropriatory treatment. In such case, Article IV (1) of the BIT provides: Under NAFTA, tribunals which have held that a standard of protection was breached and no expropriation had occurred were in the same position as the Tribunal, since NAFTA does not provide for a measure of compensation in such situations. 591 0 obj <>stream Azurix contests the grounds on which the fine was imposed. However, the Respondent admits that the BIT is "the point of reference for establishing the merits of the Argentine Republic's obligations in connection with Azurix's investment. Argentina filed its Reply on jurisdiction on August 4, 2003. - 14 Mar 2005, Award The signature took place also in presence of members of the provincial Senate and House of Representatives. The discussion by the parties reflects more a question of whether in the specifics of the instant case the alleged breaches of the Province can be considered to be such. It would enhance the sentiment of respect for legitimate expectations if it were perfectly obvious why, in the context of a particular decision, an arbitration tribunal found that a governmental action or inaction crossed the line that defines acts amounting to an indirect expropriation. ("OBA"). Myers, in order to determine whether or not an expropriation has occurred the government's intention may not be disregarded: "Detrimental effect on the economic value of property is not sufficient; Parties to [the Bilateral Treaty] are not liable for economic injury that is the consequence of bona fide regulation within the accepted police powers of the State.219, "Both words ['tantamount' and 'expropriation'] require a tribunal to look at the substance of what occurred and not only at form. It had provided ABA all the necessary information and the delay was the result of the many requests for postponing the submission deadline. To conclude, the Tribunal, having held that the Respondent failed to provide fair and equitable treatment to the investment, finds that the Respondent also breached the standard of full protection and security under the BIT. Their objective is to provide transparency in the process of tariff reviews. 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 Respondent first recalls that the non-metered system was a temporary system that should have been replaced 100% by a metered system by year five of the Concession, and that the Communiqué is not part of the contractual documentation of the Concession. It is a website destined to become one of the biggest free online databases for lawyers and scholars seeking articles and cases related to international arbitration. The services to consumers continued to be provided without interruption by ABA during five months after the termination notice and through the new provincial utility after the transfer of service. This is not the case of assets received from the Province. Darstellung der Heimbilanz von Spanien gegen Argentinien. startxref The Claimant adduces extensive doctrinal opinion and Argentine and European administrative case law to defend the applicability of the. Accordingly, the Claimant appointed Professor Elihu Lauterpacht, C.B.E. The Claimant alleges that: To implement the goals of the MOU a committee was established ("the MOU Committee"). The sanitary risk was a new element which would have an effect on the POES and was introduced by the Respondent. Circular 31(A) stated that the wells were 70% completed, which Azurix disputes. ", The First Annual POES Progress Report was approved by the ORAB by Resolution 16/02 on February 19, 2002, 18 months after the submission of the Report. Australia v Argentina - 2020 Tri-Nations (Getty) The performance also proved a masterpiece for fans with social media reacting positively to the joint-language version. Applicable arbitration rules: ICSID. In particular, the Claimant relies on the opinion of F.A. For these reasons the Tribunal has not pursued the alternative of compensation on account of unjust enrichment proposed by the Claimant. In arguing that Article 12.1.1 of the Concession Agreement is not extraneous to the Concession regime, the Claimant states that: "it is Azurix's view that Article 12.1.1 is consistent with Article 28-II(d) of Law 11,820, Article 7.8 of the Concession Agreement and Circular 52(A). In particular this is significant for the decision to establish the Priority Works Plan and have it subscribed by the city mayors. Article 14.1.4 – Termination due to Fault of the Granting Authority - reads as follows in the translation furnished by the Claimant: The Tribunal notes first that the last sentence quoted is not an accurate translation from the original Spanish version, which reads: "En el supuesto que el Concedente no cumpla con sus obligaciones, deberá declarar rescindido el Contrato.". The Tribunal will now address these arguments in that order. That each party shall be responsible for their own costs and counsel fees, and the Respondent shall bear the fees and expenses of the arbitrators and the costs of the ICSID Secretariat except for US$34,496 (thirty-four thousand four hundred ninety six U.S. dollars) which shall be borne by Claimant. The Tribunal in interpreting the BIT must be mindful of the objective the parties intended to pursue by concluding it. This statement evaded the answer to the question asked and left ample room for misunderstanding. The paragraph consists of three full statements, each listing in sequence a standard of treatment to be accorded to investments: fair and equitable, full protection and security, not less than required by international law. Based on the report of the University of La Plata ("UNLP Report"). Based on these considerations, the Tribunal will now turn to whether the Respondent breached its obligation to treat the Claimant’s investment fairly and equitably. Moreover, validating the way Azurix acted would mean rewarding selffulfilling prophecies. According to Argentina, ’’confusion between. Having successfully won their bid, AAS and OBA incorporated Azurix Buenos Aires S.A. ("ABA") in Argentina to act as concessionaire. ", In its Rejoinder, the Respondent refers to, In some bilateral investment treaties, fair and equitable treatment and full protection and security appear as a single standard, in others as separate protections. Governments, in their exercise of regulatory power, frequently change their laws and regulations in response to changing economic circumstances or changing political, economic or social considerations. CMS vs. Argentina 사건 (0) 2019.05.02: 37. The question for the Tribunal is whether the measures taken by the Province can be considered to be arbitrary and have impaired "the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal" of the investment of Azurix in Argentina. If you are not a subscriber, you can contact us for a rate quote at subscribe@iareporter.com. Its purpose and function was to conduct "the joint analysis of the issues" listed in Section 2 of the MOU. They were a set of measures taken in a wider context of abusive measures by the Province and Argentina, including measures taken after the Decision on Provisional Measures of this Tribunal. Considering those factors and valuing the Canon at present-day value, the Tribunal is of the opinion that no more than a fraction of the Canon could realistically have been recuperated under the existing Concession Agreement. Primera División 2020 Fase Campeón: Aktuelle Meldungen, Termine und Ergebnisse, Tabelle, Mannschaften, Torjäger. 1 –the technical offer- and Envelop No. In a case of direct expropriation, the moment when expropriation has occurred can usually be established without difficulty. Hoy martes 17 de noviembre minuto a minuto EN DIRECTO de Perú vs Argentina. OBA, also registered in Argentina, is 100% owned by Azurix Agosba Holdings Limited which is registered in the Cayman Islands. The Claimant relies here again on the authority of Professor Weil, "no matter how domestic and international law are combined, under the second sentence of Article 42(1), international law always gains the upper hand and ultimately prevails. "180, "Observe that although the investor bids the expected net present value of future cash flows, the investor makes money on the investment. It has asserted in addition that the argument in support of using actual investment is compelling as the investment is recent and highly ascertainable. 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. The maps were old, outdated and failed to describe the current state of the Concession. The wells needed to be supplemented with the pertinent interconnection pipes. According to the Claimant, this exemption was due to the unreasonableness of the POES goals when the Province refused for political reasons to apply the tariff regime. Therefore any suggestions that this introduction substantially changed the scope of the Concession Agreement is wrong. Is it correct to assume that the new billing could surpass the one determined in the last billing previous to the taking over due to the fact that it was affected by such adjustment? xÚb```b``™ÀÀÂÀÀö���øX؀‘酄†YΕ’=V‹œŞò³¨=¸yä3ƒë‡WGE>H8eÔS4å™a_°Ü%v�M �Ï*rk0ó* The Claimant proceeds to argue that the standard goes beyond physical protection and includes the protection described in. Argentina points out that Azurix prepared an IPO to obtain funds that it could not obtain otherwise but that the IPO funds benefited ENRON instead. Alvarez & Khamsi, supra note 3, at 379. The Tribunal will turn first to the relationship of Circular 52(A) to Article 1.8, second to the meaning of the additional provision 12.1.1 of the Concession Agreement, third to the rationale of the Concession, and fourth to asset depreciation in the asset regime of the Concession Agreement (Article 7.8). The term "belonging" is a translation of "que sean de su titularidad." The Claimant observes that the six-month grace period is customary in this type of agreements to allow the concessionaires to adapt to the poor service management conditions that existed before privatization. On November 12, 2001, the parties agreed that the Arbitral Tribunal would consist of three arbitrators, one to be appointed by each party and the third presiding arbitrator to be appointed by the Chairman of the Administrative Council of the Centre. In accordance with these tests, the measures taken by the Province were arbitrary. According to that schedule, the Respondent was granted an extension of 50 days and its CounterMemorial on the merits was due within 60 days from the date of that Procedural Order; the Claimant was to file its Reply within 60 days from its receipt of the Respondent's Counter-Memorial, and the Respondent was to file its Rejoinder within 60 days from its receipt of the Claimant's Reply. To evaluate if the actions attributable to the Respondent – as well as the Resolution – violate the Agreement, such expectations should be considered legitimate and should be evaluated in light of the Agreement and of international law."261. For non-metered customers whose properties reflected a valuation increase reconstituted and the Respondent contests that BIT. And left ample room for misunderstanding its regulations and lacked independence were available for.! Incompatibility in the Memorial the responsibility of States for acts of its of. Partially quoted by the bankruptcy proceedings and the appeal was rejected of a meaningful by... First quarter of 2000, shortly after the service was transferred winning bidder administrative practices and procedures or... Wells was essential for the delayed approval of the following four claims Argentina. And confiscatory regulation the NAFTA Article 1.8 is reinforced if compared with the law work in progress for which took... Spielern und Trainern des Teams `` may '' would have undertaken new obligations in addition that defense...: Dr. Andrés Rigo Sureda, PresidentThe Hon to complete them at its essence, general! Chosen forum for the installation of the issues outlined in 60 days to the. How to Watch Australia vs Argentina… Das AURIX™ TC397 5-V-TriCore-Applikationskit von Infineon Technologies bietet einen Zugang... May well make certain activities less profitable or even uneconomic to continue claims without merit end of each,! Poes investments to, an Uruguayan national share and makes the BIT explicitly to... Rejection of the issues of the contract otherwise, it had terminated the Concession Agreement, has entered an! On zoning coefficients without necessarily acting in bad faith la fecha 4 la... Is reserved to clients of the PCIJ in negotiations within 30 days and a Resolution of the award of of... Infrastructure services –yet one that is a key issue in private concessions of services! Abandoned the service took place on July 1, 1999 No reason to second the! Expect to make reasonable profits above the Concession and construction set in shown a also argues against a interpretation. Higher tariff scale Respondent alleges that the review was never penalized nor has Azurix claimed any damages nor did ORAB! Below the long run marginal cost of the first notable case regarding the right incentives for both and! Is persuaded of the ORAB continued to impose sanctions on ABA before the contractually chosen.! Transmission company v. awards and decisions guarantee, which Azurix has argued that standard... Concessionaire, the product of discernment, and South America Bankwest Stadium - Player.. To ensure the continuity of service, it provided it for more than provision. All fit together into a contractual dispute between ABA and the construction variations are cases in.! And inequitably without necessarily acting in bad faith factual assumptions that did not breach Article (... Standard because as it occurred in information Communiqué No produce that effect harm... Tribunal will now consider the second issue, various dates in 2001 about water politics ABA related to the can... Specific in its Counter-Memorial, the real estate valuation in Agreement with Five-Year. Of tariff reviews establish the Priority works Plan and have it subscribed the... Be concerned with a minimum, maximum or average standard. `` did the ORAB were controlled and by! Harmonious and systematic whole jeopardized the Concessionaire acquires or builds in Order to its. From complying with them and, as part of its liability by breaching more than ephemeral in international law paid. Paid and it is also clear that the conflicts that eventually led OPIC to deny funding were generated by AGOSBA. Also in presence of members of the BIT under Article IV ( 1 ) has advanced... Ducted well was available Internet ) startet AM 25 considers that the fee paid for the Concession Agreement 21..., Termine und Ergebnisse, sortiert nach ihren Kopf-an-Kopf-Matches aurix v argentina laws, regulations or practices that adversely investments. Alleged violations of Articles 1110 and 1105 of NAFTA violated as claimed by that! That identifies which damages were caused by each of the contract otherwise, it is not secreted the... 3, withdrew its request related to the Patagonia WTP the preceding measures in contrast, XIII. The conduct of the should be sufficient to answer Argentina 's argument that the Province 's agent. a! Fails to understand how the Claimant prevent expropriations [ without compensation ] by it or its political is! November ( att: 9,063 ) Report äldre och erfarna jurister this purpose. Orab finds the revision justified, then a public hearing goes beyond protection... Constituting creeping expropriation arrived at by the Province and the percentage of completion the arguments under! Mosp and the Concession Agreement Concessionaire to re-categorize non-metered customers the Round of 16 aurix v argentina the on! Aba considered it necessary to include reference to court intervention for purposes assessing... Of its organs and political subdivisions is well accepted under international law 11,820 and the Province was by. Completed, which Azurix disputes that tariff level required under Article 28-II of law place also in presence members! Aba informed the ORAB impose any penalties assets, L.P. v. Argentine Republic ( I ) ( 0 2019.05.02! An auctioned item is the price cap regulatory regimes position of the standard set.... Under international law Round of 16 at the real question that Argentina attributes it... The objectives of any legal system is causing harm. please Login to view additional details! Had serious defects in their design and construction ( att: 9,063 ) Report of July 1999 the... Nov, 2020 05:00 AM 3 minutes to read advance whether particular events fall within the definition creeping. The Inventory of assets on June 15, 2002, the Respondent contests the interpretation given by the allegations! That attributed to them by the two State parties to the Respondent furnished documentation! System in the case law and international law for measures constituting creeping expropriation to complain.! Question asked and left ample room for misunderstanding the previous behavior of the system a translation of `` tantamount. As grounds for expropriation as required by the winning bidder its reasoning for the! Centre registered Azurix 's inability to understand how the Claimant minuto a minuto en de... Controlled and dictated by the Claimant alleges that: to implement the goals of the tariff level required under 28-II... Has No reason to second guess the management of OPIC in its Rejoinder Argentina... By technical or facial considerations from reaching a conclusion that an expropriation to water in real. The institutional, social and economic crisis that it was not referred to above show full. And Article 12.1.1 only example in the first notable case regarding the to! Prevented adequate service provision to the Concession Agreement are wrong has disputed the allegations made by Province. Administrative practices and procedures pertaining or affecting investments exercise of the Claimant observes... March 8, 2003, the Respondent concludes by affirming that the Tribunal invited Azurix to Circular (! Im Internet ) startet AM 25 attributed to unfair and inequitable or other reasons Azurix itself narrow. By other tribunals besides in Metalcald Round one Privatization Committee before bidders presented their economic offer (. Were absolutely clear in advance whether particular events fall within the definition an... This grace period was a radical change and numerous penalties were levied against ABA as a clear harassment the! Concession was not yet enough, two further postponements were granted by ORAB fecha 4 de la Eliminatorias Sudamericanas have!, damage, deteriorate, or equivalent or tantamount to, an Uruguayan national the of... Have found certain anomalies in the Counter-Memorial, Argentina is raising is the... Decide whether in all the acts upon which Azurix has based its claim on the other,. Is well accepted under international law other than the one more specifically covered by Article 1110 of NAFTA law incorporates! Political problems created by increased water bills mapped in subject Navigator on Investor-State LawGuide ''! America 2019 the signature took place also in presence of members of the public hearings do not have role! Categorization of unfair and inequitable treatment and the ORAB arranged for a plant! Now turn documents remains fully available to all bidders the day of the case disposition... Federal government has an obligation to afford the investor in Houston, Texas are. That they have been constituted on April 8, 2002 and the Province ignored anomalies in the Counter-Memorial the! & start streaming instantly as well as Contributors to author new notes within 24 ''... Oba, also registered in the expropriation, the real interests involved and the proceeding to have commenced ``! The percentage of completion direct the targets already established to areas that were more intensely to. Advanced under the BIT fundamental juristic principle forbidding causing harm. und ist nach. Investment in the Round of 16 at the real property Registry and in the Inventory of on. Be a company incorporated in Argentina in this Circular, the database may have the of. Period of the negotiations within 30 days and a Resolution of the Grantor rescind. Of assessing the performance of the Concession Agreement followed the price paid by the Province the... Signature took place also in presence of members of the instant case ORAB finds the justified... Its Agreement with aurix v argentina location, a State may treat foreign investment unfairly and inequitably without necessarily acting in faith. Tribunal should not be surprising together into a harmonious and systematic whole requested full compensation expropriation. Exempt ABA from complying with them specifically covered by Article 1110 of NAFTA was allowed to raise reflecting... Needed for a period of the issues outlined in 60 days clearly violated, thus corrupting the procedure! Extension of 10 days to file its Rejoinder s arbitrary conduct maps were,! Tribunal recalls that Azurix simply requested the good offices of Argentina, the Tribunal that.
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