A tribunal would not be concerned with a minimum, maximum or average standard. 2. Furthermore, there is no doubt that the loss in value is partly attributable to the actions of the Province and the politicization of the Concession. Goal verrät Euch, wie Ihr die Partie live im TV und im LIVE-STREAM verfolgen könnt. The company owned and operated facilities in North America (mainly Canada), Europe, and South America.In 2007, Azurix was awarded a $165 million claim against the government of Argentina by an international arbitrator, the company is currently involved in a dispute over Argentina's refusal to pay the claim. "260, "Both the authorization to operate as landfill, dated May 1994, and the subsequent permits granted by INE, including the Permit, were based on the Environmental Impact Declaration of 1994, which projected a useful life of ten years for the Landfill [footnote deleted]. The Tribunal considers that the Claimant has failed to prove that the irregularities that may have occurred had the serious consequences that the Claimant has alleged and that can be attributable to the Province. Azurix Corp v. Argentina. The reservoir was kept by the Province only 25% full to permit completion of the works. The Priority Works Program was not additional to the POES. 12: On April 23, 1999, the Privatization Commission replied: The Claimant concludes from this exchange that it was reaffirmed that Annex Ñ would govern the application of the non-metered tariff regime and that water bills would be increased for those persons who previously benefited from zoning coefficients. 0000002905 00000 n Regulatory disputes could emerge relating to what the concessionaire actually bought with that transfer – a stream of future earnings or a return on the preexisting and future asset base ? The Bahía Blanca Drinking Water Supply Monitoring Report prepared by the ORAB noted that it had not found domestic or international precedents where these micro-filtering systems were used for the primary elimination of this type of plankton organisms. ("AAS") and Operadora de Buenos Aires S.R.L. This component of work in progress for which AGOSBA took responsibility consisted of drilling four wells. For the reasons above stated, the Tribunal unanimously decides: By continuing your visit on this site, you accept the use of cookies for purposes of audience measurement and service improvement. While article 12.1.1 refers to article 28-II of the Law, it introduces a notion, "return on assets", not present in this article 28, and, conversely, there is no reference to the "profit margin" of Article 28-II in Article 12.1.1. The Respondent has affirmed that it would not be legitimate to award compound interest and that, were the Tribunal to find for Azurix, a simple rate of interest should be used. For instance, in the context of the determination of the tariff level, the Concession Agreement refers to "a reasonable return on the amounts invested by the Concessionaire," [Article 12.1.1] and "the Concessionaire does hereby undertake to make all necessary investments to execute… [Article 7.8]", The Claimant also addresses the need for the competent authorities to intervene in case of termination of a concession required by Article 49-II of the Law. 2, informed the Tribunal on irregularities it had detected in Envelop No. In the case of movable assets owned by the Province, and those owned, whether movable or not, by the Claimant, silence to a request for their disposal shall be understood as approval (Article 7.6.2). In applying this standard it is relevant that the treatment is in breach of representations made by the host State which were reasonably relied on by the claimant."289. CMS Gas Transmission Co. v. Republic of Argentina, ICSID Case No. ("OBA"). For the Tribunal, the significance of the reasons given by OPIC and the due diligence analysis on which they are based stems from the fact that OPIC is unrelated to any of the parties involved and the consultants hired to do the due diligence had no allegiance to any of the parties to this proceeding. In this respect, the Respondent refers to the tribunal's finding in, Furthermore, the Respondent argues that the effect and intent of measures cannot be separated as Azurix has done. We offer car rent from our offices in Riga International Airport (RIX), Riga centre (Downtown included), Liepāja, Ventspils, as … Alvarez & Khamsi, supra note 3, at 379. Thus, "[o]nly the reasonableness of the measure claimed to be grievous must be measured, and this, with deference."271. Non-contractual international law is relevant to the extent that the Treaty refers to it, or to the extent relevant to interpretation of the contract, or to the extent included in Argentine law. The Respondent has pointed out that Claimant alleged no difficulties at the takeover of the Concession in the request for arbitration, in the grounds for the termination of the Concession Agreement adduced by the Claimant or in the discussions on the Memorandum of Understanding (MOU). This statement evaded the answer to the question asked and left ample room for misunderstanding. In the Memorial, the Claimant alleges that the Algae Removal Works had serious defects in their design and construction. Deutschland und Argentinien vergleichen: Demografie, Wirtschaft, Energie, Sprachen und weitere Gegenüberstellungen. Therefore, suggestions that this introduction substantially changed the scope of the Concession Agreement are wrong. 1. 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. For the Respondent, the dispute is a contractual dispute and the difficulties encountered by the Concessionaire in the Province were of its own making. 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. At least in this respect, the MOU was more than a simple agreement to establish a committee as has been submitted by the Respondent. Argentina reaffirmed, in the Rejoinder, its understanding of arbitrary as defined by the ICJ and not by its ordinary meaning as pretended by the Claimant. "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". In that meeting, the MOSP Minister stated: "We are aware that, in association with the ORAB, we have forced certain decisions that are of a political nature, particularly by requesting the ORAB to apply a resolution whereby the Concessionaire is to receive no payment for each day in which water supply quality is not as agreed; by doing so, we breached the concession agreement, and this was a political decision. 2. Article 31(1) of the Convention requires that a treaty be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". In the Counter-Memorial, Argentina considered that Article 12.1.1 established a general principle already taken into account in Annex Ñ of the Concession Agreement in order to determine the tariff regime. In the specific context of the revisions for reason of variations in the cost indices, Article 12.3.5.3 entitled "Verification of Revision Admissibility" provides that, once it is established that a variation is above the percentage set forth in Article 12.3.5.1, the procedure moves on to "the verification stage" where the ORAB is required to verify the existence of the elements that justify the revision in accordance with the general principles of Article 12.3.1 and the provisions of Article 12.3.5. Arbitral tribunals under NAFTA have found, after the interpretation of the FTC, that the customary international law to be applied is the customary international law as it stood in 1994 not in 1927. The BIT falls in the last category; the two phrases describing the protection of investments appear sequentially as different obligations in Article II.2(a): "Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and…" The tribunal in. The Concession Agreement specified that the 1958 valuations methodology or its equivalent be used to determine the appropriate tariff schedules for non-metered customers. The ORAB continued to impose sanctions on ABA even after the service was transferred. The Respondent also contests the interpretation of MIGA's General Conditions and observes that they have been only partially quoted by the Claimant. That the Respondent did not breach Article IV(1) of the BIT. The witness replied that he was not aware of any improper conduct, and the Procurador General present at the hearing confirmed that the investigation was continuing but that no evidence of improper conduct had surfaced. On August 3, 2004, the Secretariat notified the parties that Professor Lauterpacht had resigned as an arbitrator for health reasons, and suspended the proceedings in accordance with Arbitration Rule 10(2). Hoy martes 17 de noviembre minuto a minuto EN DIRECTO de Perú vs Argentina. "250, "Is not the State in both cases (that is, either by a taking for a public purpose, or by regulating) purporting to act in the common good? 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. Azurix assessed them in order to submit the bid that secured Azurix the award of the contract; and the Province should assess them in order to determine the costs of the failure and seek fair compensation. In, For the Tribunal, the issue is not so much whether the measure concerned is legitimate and serves a public purpose, but whether it is a measure that, being legitimate and serving a public purpose, should give rise to a compensation claim. Thus, if the bill resulting from applying the values in the table included in article 4 exceeded the bill before the takeover, then the consumer should be charged only what had been charged then. It is disputed whether the works were ever completed. Accordingly, the Claimant appointed Professor Elihu Lauterpacht, C.B.E. There can be legitimate disagreement as to the date in 2001 at which the cumulative actions of the Province led to breaches of the Treaty; but, in the Tribunal's view, there can be no doubt that, by March 12, 2002 when the Province put an end to the Concession, alleging abandonment by ABA, its breaches of the BIT had reached a watershed. Argentina alleges that, in the Reply, the Claimant tries to reformulate the standard so that it can be read "exactly in the same way as what is under the protection of the general clauses (umbrella clauses)." In any case, ABA did not suffer any damages nor did the ORAB impose any penalties. In particular, the Respondent has argued that the case presented by the Claimant is intimately linked to Enron's business practices and its bankruptcy; that the price paid for the Concession was excessive and opportunistic and related to the forthcoming IPO of Azurix at the time Azurix bid for the Concession through AAS and OBA and that the Concessionaire did not comply with the Concession Agreement, in particular its investment obligations, and the actions of the Province, including the termination of the Concession Agreement by the Province, were justified. The Claimant explains that the fine imposed by the ORAB on account of the algae incident was imposed after the service had been transferred to the Province more than two years after the algae bloom event and four days before the deadline for filing petitions in ABA's bankruptcy proceedings. ARB/01/12) Expand / Collapse All Applicable IIA. Resolution 54/00 recalled that, in the presentation made by ABA, it was not evident that the changes in fiscal valuation were due to construction variations and, therefore, the ORAB considered it necessary to conduct a study to determine the rationale of the variations. The External Audit of September 2001 presented by ABA to the ORAB states that access to some drillings was not gained because they were in a flooded area. In such instances, an international tribunal may deem that the failure to seek redress from national authorities disqualifies the international claim, not because there is a requirement of exhaustion of local remedies but because the very reality of conduct tantamount to expropriation is doubtful in the absence of a reasonable – not necessarily exhaustive – effort by the investor to obtain correction. While the principle of amortization may have applied to the initial Canon as a matter of principle, whether it was amortized or not during the duration of the Concession would depend on whether the Concessionaire had estimated correctly the worth of the future earnings of the Concession based on the initial tariff and the discount rate to be applied to this estimate of future earnings. 11,820 and the Contract would have never allowed such transfer. Aurix är juristbyrån där visionen är att modernisera en traditionell bransch. The appropriate behavior for the government is to uphold the sanctity of the bid and not concede to opportunistic request for renegotiation and, in such cases, allow concessions to fail. The Respondent emphasizes that there were no contractual breaches by the Province and that, if there had been, as held in, The Respondent concludes by referring to the Regulatory Framework, the Bidding Conditions and the Concession Agreement. The Argentine Republic has an obligation to prevent violations of the BIT and International law within Its territory whether committed by the federal government or Its political subdivisions. The Concession Agreement permitted the Concessionaire to re-categorize non-metered customers whose fiscal valuation had changed because of construction improvements. The Tribunal is surprised that the underlying documentation on which Resolutions 46/02 and 52/02 were based would be denied to ABA for purposes of filing an administrative appeal. Become a Contributor, submit your candidacy to author this Wiki Note. The date of origin in the Fixed Assets Inventory does not have the relevance that Argentina attributes to it. The Claimant also notes that the press reported that the governor was studying the means to remove the ORAB officials responsible for the decision to allow ABA to receive payments when the service was not in good condition and that a lawsuit was filed against these officials. Darstellung der Heimbilanz von Brasilien gegen Argentinien. ARB/01/8 (Originally published in 2011 in International Investment Law and Sustainable Development: Key cases from 2000–2010 ; republished on this website on October 18, 2018. Such outcomes would reduce the incidence of renegotiation. The study conducted by the ORAB revealed that 76% of the variations presented by the Concessionaire were due to construction on the properties concerned. This expectation was based on international and Argentine regulatory experience. The Claimant disputes the interpretation of the Concession Agreement by the Province and argues that Article 3.6.1 only applied to raw water sources under ABA's management and considers it nonsensical the extension of ABA's obligation to sources exclusively controlled and operated by the Province. The Claimant defines further the standard by referring to AMT. In its Counter-Memorial, Argentina explains that the fee paid for the Concession is the price to run a monopoly. In accordance with this article, the dispute is basically governed by Argentine law, which is also applicable to contractual matters and provincial administrative law underlying the claim. By Michael Casey, Dow Jones Newswires. In its Rejoinder, Argentina notes that Azurix claimed compensation only for expropriation and questioned the dates chosen by the Claimant as possible dates for purposes of calculating compensation. The Respondent concludes by affirming that the takeover took place in a "context of mutual cooperation.". However, the politicization of the Concession or the actions taken by the Province were not the only cause of OPIC's denial of financing. For this purpose, and since the allegations of the Claimant are based on disputes related to the Concession Agreement, the Tribunal will need to determine the extent to which the Province was acting in the exercise of its sovereign authority, as a political subdivision of the Respondent, or as a party to a contract. Before the Tribunal considers the meaning of each of the standards allegedly breached by the Respondent, and because this discussion is closely related to the conflicting views of the parties on the facts of the dispute and their implications, the Tribunal will now consider at length the facts and then each of the standards of treatment of the BIT supposedly breached by the Respondent. "307 Applying this evolutionary concept to customary international law, the tribunal found that "To the modern eye, what is unfair or inequitable need not equate with the outrageous or the egregious. The parties disagree on whether the meaning of arbitrary should be the ordinary meaning of "arbitrary" or the meaning to arbitrary given by the ICJ in, In its ordinary meaning, "arbitrary" means "derived from mere opinion", "capricious", "unrestrained", "despotic.". The Respondent sent comments on October 14, 2005. Exclude grammatical variations of your search terms. Accounting amortization is the percentage of the asset base that may be written off the accounting books every year in accordance with the standards set by the tax authority and the professional council of economic sciences. It is interesting to note, in that regard, that the Claimant seems to be the only bidder to have interpreted Circular 52(A) as it did, the other bidders presenting canons with values at least ten times lower than that submitted by the Claimant. There is no specific time set under international law for measures constituting creeping expropriation to produce that effect. Even if for argument's sake, it would be possible under Article II(2)(c) to hold Argentina responsible for the alleged breaches of the Concession Agreement by the Province, it was ABA and not Azurix which was the party to this Agreement. The first was that Azurix agreed to submit this dispute to the courts of the city of La Plata and waived any other jurisdiction and forum; the second was that Azurix had already made a forum selection under Article VII of the BIT by submitting the dispute to Argentine courts. Azurix observes that if the Province, advised by Mr. Chama himself during the bidding process judged Azurix's bid opportunistic or reckless could have rejected the bid and did nothing of the sort.153 On this point, Azurix concludes that, 'in light of the guarantees offered by the Regulatory Framework, the Concession Agreement and Circular 52(A), the Province should have recognized the implications of accepting Azurix bid. It is also clear that the quantity of the water that could be extracted from the wells was below expectations. 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. Mainly because they were just a little bit rubbish.So instead we kick proceedings off at 1500 BST with Argentina v Germany.Two footballing giants, and a fixture almost literally dripping in history. Conduct of the Province after Service Transfer, (ii) Effect, Intent and Duration of Expropriation Measures, (iii) Breach of Contract and Expropriation, Article 36(3) of the ICSID Convention on the Settlement of Investment Disputes, Article 10.4 of the Free Trade Agreement between the United States of America and Chile. The actions of the provincial authorities in the case of the first tariff conflict and the Bahía Blanca works exceeded any contractual rights by inviting customers not to pay bills even before the administrative appeal of ABA against the decision of the ORAB was resolved, or notwithstanding the fact that the Province had not completed the works in the Paso las Piedras reservoir that it represented it would complete at the time of the bidding for 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. 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. ARB/01/12) Argentina - United States of America BIT (1991) ICSID : ICSID : Investment: Indirect controlling interest in local subsidiary that had a concession agreement for water distribution and sewerage treatment services The works were not essential to meet service quality targets because of the 3-year exemption in Annex F of the Concession related to physical and chemical parameters of water quality. The Respondent also contests that the Province discriminated in favor of other companies. On April 19, 2004, the Tribunal issued Procedural Order No. 14/11/2020. And in each case has the owner of the property not suffered loss? Applicable legal instruments: Argentina-United States BIT. 5 rejecting a further Respondent's request, dated August 2, 2004, for production of evidence because it considered that it was not adequately justified even if more precise than the request of July 22, 2004. The Tribunal notes that this Article does not differentiate between sources of raw water and Annex O specifically exempts the Province from responsibility from the quantity and quality of water supplied from said reservoir. In its Reply, Azurix points out that Argentina has failed to mention that the wells were expected to solve quantity of water issues and not only quality, and that the quality of the water did not comply with the parameters originally provided in the work specifications. The Claimant draws the attention of the Tribunal to the fact that the Respondent continued to take measures that have aggravated the situation notwithstanding the Tribunal's order to refrain from doing so. However, the Tribunal considers that this amount should be reduced by US$7,603,693 (seven million six hundred and three thousand six hundred ninety-three US dollars) which represent the aggregate of the claims presented by Azurix on account of damages which the Tribunal has found to be related to contractual claims -those related to the works listed in Circular 31(A) except for Bahía Blanca. The scores are based on the level of engagement as reflected in the number of comments, threads, likes, shares and replies. Darstellung der Heimbilanz von Spanien gegen Argentinien. According to the Claimant, this Article has to be construed appropriately and can "only be interpreted as appointing the competent governmental authorities for the purposes of declaring termination of the Concession Agreement upon the occurrence of events allowing the grantor its right of termination […] It cannot be construed as a reference to termination when it is not declared by 'an authority'".183, "whenever the Law or the agreement recognizes in contractors the right to terminate said agreement, the general rule that sets forth that the termination of the agreement always requires a formal pronouncement by the Government must be replaced by the maxim exceptio non adimpleti contractus, as the only possible way of avoiding an abuse by the Government under this rule, disregarding the contents of its provisions and forcing the contractor into a ruinous situation."187. Resolution 1/99 was issued for an improper purpose, the tariff regime was improperly applied, the issues related to Circular 58(A) were not dealt within reasonable periods of time, the RPI was denied for irrelevant reasons, the Province induced a high bid price with Circular 52(A) and then claimed that the bidder paid too much and it could not be fully included in the base rate. Aurix Mayorista is on Facebook. The equipment is missing. More importantly, the Tribunal refers to the conclusions it reached concerning the RPI review process and the impossibility of including the Canon in the recoverable asset base for the purpose of tariff increases. Article 28 sets forth the general principle that: "the prices and tariff will tend to reflect the economic cost of the provision of the services of water supply and sewer services", and continues by saying: "including a profit margin and the cost arising from the POES related to basic infrastructure." In Mondev, the tribunal considered that "the content of the minimum standard today cannot be limited to the content of customary international law as recognized in arbitral decisions in the 1920s. Tri Nations rugby updates: All Blacks v Argentina. According to Azurix, the purpose of the Service Report was "to evaluate the condition of the water system 'at the time of ABA’s take over of the Concession".95 The Report noted that the four wells were not in operation and the equipment was missing. The Draft Articles, as pointed out by the Claimant, are the best evidence of such acceptance and as such have been often referred to by international arbitral tribunals in investor-State arbitration. 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