Prior to establishing its position with regard to the five objections made by the Argentine Republic to its jurisdiction, the Tribunal shall address some preliminary considerations made by both parties in their respective argumentations. All of them were raised in relation with an opinion expressed by the Claimant in its Counter-Memorial on Jurisdiction.2 In reaction to the objections filed by Argentina to the jurisdiction of this Tribunal, AES argued that:
"Each of Argentina's five objections are based on similar or identical arguments presented by it in other factually similar arbitrations in which Argentina is the respondent. In every instance, the same arguments have either been rejected or the corresponding ICSID tribunal has decided to join this objection to the merits."
See The AES Corporation Counter-Memorial on Jurisdiction, February 20, 2004 at 8-12, §§ 1830.
In its Counter-Memorial, AES further referred to several ICSID tribunal decisions on jurisdiction, including the Vivendi decisions I3 and II4, together with the CMS5 and the Azurix decisions on jurisdiction6. Later, and in particular during the hearing, AES further referred to other decisions which, in the meantime, had become available, such as the LG&E v. Argentina7, the ENRON v. Argentina8 and the SIEMENS A.G. v. Argentina9 decisions on jurisdiction. The argument made by the Claimant on the basis of these decisions, treated more or less as if they were precedents, tends to say that Argentina's objections to the jurisdiction of this Tribunal are moot if not even useless since these tribunals have already determined the answer to be given to identical or similar objections to jurisdiction.
Compañía de Aguas del Aconquija S.A. and Compagnie Générale des Eaux v. Argentine Republic, ICSID Case N° ARB/97/3, Award, November 21, 2000, 40 I.L.M. 426 (2001). Also available at http://www.worldbank.org/icsid/cases/ada_AwardoftheTribunal.pdf
Ibid., Decision on Annulment, July 3, 2002, 41 I.L.M. 1135 (2002). Also available at http://www.worldbank.org/icsid/cases/vivendi_annul.pdf
Enron Corporation and Ponderosa Assets, L.P. v. Argentine Republic, ICSID Case N° ARB/01/3, Decision of Jurisdiction (Ancillary Claim), August 2, 2004.
Siemens A.G. v. Argentine Republic, ICSID Case N° ARB/02/8, Decision on Jurisdiction of August 3, 2004.
"Each bilateral Treaty for the protection of investments has a different and defined scope of application. It is not a uniform text"10.
"The reading of some awards may lead to believe that the tribunal has forgotten that it is acting in a sphere ruled by a lex specialis where generalizations are not usually wrong, but, what is worst, are illegitimate. Repeating decisions taken in other cases, without making the factual and legal distinctions, may constitute an excess of power and may affect the integrity of the international system for the protection of investments".12
SGS Société Genérale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case N° ARB/01/13 and SGS Société Genérale de Surveillance S.A v. Republic of the Philippines, ICSID Case N° ARB/02/6.
SGS Société Genérale de Surveillance S.A v. Republic of the Philippines, ICSID Case N° ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, January 29, 2004, available at http://www.worldbank.org/icsid/cases/SGSvPhil-final.pdf
ENRON v. Argentina, Decision on Jurisdiction (Ancillary Claim), August 2, 2004, at 8, § 25.
"Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute."
In that respect, it should be noted that the US-Argentina BIT, in conjunction with the ICSID Convention, provides the very same basis for the jurisdiction in this case and in some previous ones, as, in particular, those in which Argentina faced or is still facing a dispute with ENRON Corp., CMS, AZURIX Corp, or LG&E and others; in each and every of these cases the tribunals respectively constituted have already delivered their decisions on jurisdiction.
1995 ICJ Reports 89, § 99 with reference to earlier cases.
Ch. Schreuer, The ICSID Convention, op.cit. at 102, § 36.
"a clear distinction between measures of a general economic nature, particularly in the context of the economic and financial emergency discussed above, and measures specifically directed to the investment's operation."30
In the US-Argentina BIT, Article VII(2) provides:
"In the event of an investment dispute, the parties to the dispute should initially seek a resolution through consultation and negotiation. If the dispute cannot be settled amicably, the national or company concerned may choose to submit the dispute for resolution (...).
"... it is not for the Tribunal to rule on the perspectives of the negotiation process or on what TGN might do in respect of its shareholders, as these are matters between Argentina and TGN or between TGN and its shareholders."37
"a) in view that the BIT with USA includes no specific provision on the applicable law, pursuant to article 42 of the ICSID Convention the law of the State that is a party to the dispute should apply, including its international private law rules and those international law rules that may be applicable, b) therefore, the determination of the rules applicable to the nationality of the parties under the BIT with USA shall be judged by the Argentine international private law, c) consequently, AES should have proven its lawful creation. This is so pursuant to Argentine international private law."40
"Company' of a Party means any kind of corporation, company, association, state enterprise, or other organization, legally constituted under the laws and regulations of a Party or political subdivision thereof whether or not organized for pecuniary gain, and whether privately or governmentally owned."
"[An] issue that is not governed by the rule of Art. 42 is the nationality of the investor. The nationality of a natural person is determined primarily by the law of the State whose nationality is claimed (.). The nationality of a juridical person is determined by the criteria of incorporation or seat of the company in question subject to pertinent agreements, treaties and legislation."43
"During the Convention's preparatory work, it was generally acknowledged that nationality would be determined by reference to the law of the State whose nationality is claimed subject, where appropriate, to the applicable rules of international law (History, Vol. II, pp. 67, 286, 321, 448, 580, 705, 839)."44
"Ownership of or control over national are merely claimed and appear exclusively on information issued by claimant. For the purpose of determining the jurisdiction, AES should have proven in a certifying way the above mentioned requirements."46
"The Tribunal shares the views expressed in those precedents. It therefore holds that the clauses in the License or its Terms referring certain kinds of disputes to the local courts of the Argentine Republic are not a bar to the assertion of jurisdiction by an ICSID tribunal under the [US-Argentina BIT], as the functions of these various instruments are different."62
"The tribunals in the cases cited concluded that such forum selection clauses did not exclude their jurisdiction because the subject-matter of any proceeding before the domestic courts under the contractual agreements in question and the dispute before the ICSID tribunal was different and therefore the forum selection clauses did not apply. This reasoning applies equally to the waiver of jurisdiction clause in this case."63