|TABLE OF ABBREVIATIONS|
|2006 Agreement||Letter of Intent between the National State and Argentine Airlines S.A. and Interinvest S.A. signed on 21 June 2006|
|2006 Addendum||Addendum to Letter of Intent between the National State and Argentine Airlines S.A. and Interinvest S.A. signed on 21 June 2006|
|AASE||Aerolineas Argentinas Sociedad del Estado|
|ACCP||Argentina’s Code of Criminal Procedure|
|AFIP||The Argentine tax authority, Administration Federal de Ingresos Piiblicos|
|APTA||Association of Aeronautics Technical Personnel|
|Arbitration Rules||ICSID Rules of Procedure for Arbitration Proceedings |
|ARSA||Aerolineas Argentinas S.A.|
|Assignment Agreement||Credit Assignment Agreement among Teinver, Transportes de Cercanias and Autobuses Urbanos as the assignors and Air Comet as the assignee, dated 18 January 2010|
|AUSA||Austral-Cielos del Sur S.A.|
|C-[#]||Claimants’ Exhibits and Legal Authorities|
|Cl. Mem.||Claimants’ Memorial on the Merits, 29 September 2010|
|Cl. Reply||Claimants’ Reply on the Merits, 10 August 2013|
|Cl. CC.Rej.||Claimants’ Rejoinder on the Counterclaim, 13 January 2014|
|Cl. PHB||Claimants’ Post-Hearing Brief, 30 June 2014|
|Cl. Rej. on Juris.||Claimants’ Rejoinder on Jurisdiction, 27 April 2011|
|Cl. Skeleton||Claimants’ Pre-Hearing Skeleton Submission, 17 February 2014|
|Decision on Jurisdiction||Tribunal’s Decision on Jurisdiction, 21 December, 2012|
|FET||Fair and equitable treatment standard|
|Funding Agreement||Funding Agreement made between Claimants and Burford Capital Limited, effective as of 14 April 2010|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of other States, Washington D.C., 1965|
|ICSID or the Centre||International Centre for Settlement of Investment Disputes|
|JMM||Juzgado Mercantil de Madrid|
|July 2008 Agreement||Agreement between the Government of Argentina and Intervest of 17 July 2008|
|LA AR||Respondent’s Legal Authorities|
|May 2008 Agreement||Framework Agreement between the Government of Argentina and the shareholders of the Air Comet/Interinvest Group and the Airlines of 15 May 2008|
|MFN clause||Most-Favored Nation clause|
|PROCELAC||Office of the Prosecutor for Economic Crimes and Money Laundering, La Procuraduria de Criminalidad Economica y Lavado de Activo|
|RFA||Claimants’ Request for Arbitration, filed on 11 December 2008|
|Resp. CM||Respondent’s Counter-Memorial and Counterclaim, 6 May 2013|
|Resp. PHB||Respondent’s Post-Hearing Brief, 30 June 2014|
|Resp. Rej.||Respondent’s Rejoinder on the Merits and Reply on the Counterclaim, 4 November 2013|
|Resp. Mem. on Juris.||Respondent’s Memorial on Jurisdiction, 6 December 2010|
|Retainer Agreement||Retainer Agreement between King & Spalding and Claimants of June 2011|
|Representation Agreement||Representation Agreement between Claimants and Burford of 24 April 2010|
|SEPI||Sociedad Estatal de Participaciones Industriales|
|Side Agreement||List of non-contractual arrangements attached to the July 2008 Agreement, Listado de Acuerdos Extracontractuales|
|SPA||Share Purchase Agreement between SEPI and Air Comet S.A.|
|TER||Economically reasonable airfares (tarifa economica retributiva)|
|the Airlines||Aerolineas Argentinas S.A. ("ARSA") and Austral-Cielos del Sur S.A. ("AUSA") and their subsidiaries|
|Treaty||Agreement between the Argentine Republic and the Kingdom of Spain on the Reciprocal Promotion and Protection of Investments of 3 October 1991|
|TTN||Tribunal de Tasaciones de la Nation|
|US-Argentina BIT||Agreement between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment of 1991, which entered into force on October 20, 1994|
|Vienna Convention||Vienna Convention on the Law of Treaties, 1969|
a) The Claimants’ request for an emergency temporary order is denied. Having heard from both parties, the Tribunal is not persuaded, given in particular the Respondent’s assertions in paragraphs 6 through 8 of its submission of April 20, 2011, that there is an urgency that would warrant such an order.
b) The Tribunal notes that a hearing is scheduled to be held on May 27-31, 2011, during which, the parties will have the opportunity to fully present their arguments on this matter. The Tribunal will decide on the Claimants Application shortly thereafter.
c) The parties are invited to refrain from aggravating or extending the dispute; and
d) Either party may bring to the Tribunal's attention, any new, relevant, facts that may emerge fundamentally changing the current circumstances.
After careful consideration, and in light of the proximity of the hearing to be held on May 27-31, 2011, the Tribunal has determined that at this time there is no imminent, or no sufficiently imminent, threat between now and the hearing. Accordingly, the Tribunal has denied Claimants’ request for an Emergency Temporary Order of April 29, 2011.
The Tribunal would like to once again invite the parties to (i) refrain from aggravating or extending the dispute, and (ii) bring to the Tribunal’s attention, any new, relevant, facts that may emerge fundamentally changing the current circumstances.
|Mr. R. Doak Bishop||King & Spalding|
|Mr. Roberto Aguirre Luzi||King & Spalding|
|Mr. Craig S. Miles||King & Spalding|
|Ms. Margrete Stevens||King & Spalding|
|Mr. Guillermo Aguilar-Alvarez||King & Spalding|
|Ms. Silvia Marchili||King & Spalding|
|Mr. Esteban Leccese||King & Spalding|
|Ms. Lorraine de Germiny||King & Spalding|
|Prof. Joost Pauwely||King & Spalding|
|Ms. Valeria Dentoni||King & Spalding|
|Mr. Esteban Sanchez||King & Spalding|
|Ms. Ashley Grubor||King & Spalding|
|Mr. Diego Fargosi||Estudio Fargosi & Asociados|
|Mr. Hector Alonso||Estudio Fargosi & Asociados|
|Mr. Ivan Losada||Claimants’ Representative|
|Dra. Angelina M.E. Abbona||Procuradora del Tesoro de la Nacion|
|Mr. Horacio Pedro Diez||Subprocurador del Tesoro de la Nacion|
|Mr. Eduardo Barcesat||Procuracion del Tesoro de la Nacion|
|Mr. Gabriel Bottini||Procuracion del Tesoro de la Nacion|
|Ms. Adriana Busto||Procuracion del Tesoro de la Nacion|
|Ms. Gisela Makowski||Procuracion del Tesoro de la Nacion|
|Mr. Tomas Braceras||Procuracion del Tesoro de la Nacion|
|Ms. Alejandra Mackluf||Procuracion del Tesoro de la Nacion|
|Mr. Javier Pargament||Procuracion del Tesoro de la Nacion|
|Ms. Mariana Lozza||Procuracion del Tesoro de la Nacion|
|Mr. Ignacio Torterola||Procuracion del Tesoro de la Nacion|
|Mr. Nicolas Duhalde||Procuracion del Tesoro de la Nacion|
|Mr. Julian Negro||Procuracion del Tesoro de la Nacion|
|Ms. Magdalena Gasparini||Procuracion del Tesoro de la Nacion|
|Mr. Pablo Ceriani||Aerolineas Argentinas|
On behalf of Claimants:
Mr. Gerardo Diaz Ferran Claimants’ Witness
Mr. Gonzalo Pascual Arias Claimants’ Witness
Judge Stephen M. Schwebel Claimants’ Expert
On behalf of Respondent:
Mr. Juan de Dios Cincunegui Respondent’s Witness
Mr. Rafael Llorens Respondent’s Witness
Mr. Vicente Munoz Perez Respondent’s Expert
The Tribunal, having reviewed Respondent’s letter of October 26, 2011 and Claimants’ letter of November 8, 2011, has taken note of the arguments made therein as they relate to the pleadings on Jurisdiction, with the exception of the expert report of the Spanish attorney, Mr. Juan Antonio Cabezudo Alvarez, attached to Respondent’s letter, and Respondent’s arguments based thereon. The Tribunal has made this determination without prejudice to the excluded material being resubmitted to the Tribunal by Respondent at a later stage of these proceedings, if any.
Order Argentina to stop any procedures aimed at approving any formal or material changes to the financial statements of the Argentine Airlines for any year prior to 2008;
Order Argentina to stop any procedures aimed at approving the 2008 Amended Financial Statements;
Make available to Claimants’ representatives in Interinvest, in their capacity as shareholders of the Argentine Airlines, all information available and subject to discussion and vote in the shareholders meeting to be scheduled in this respect; and
Authorize Claimants’ representatives in Interinvest to attend, participate and/or exercise their voting rights in the shareholders meeting that will presumably be scheduled in connection with the alleged "adjustments" to the Argentine Airlines financial statements, and in all cases free of any coercion, or physical or legal threat.
a) The Tribunal rejects Claimants’ Application for Provisional Measures in its entirety.
b) The Tribunal reminds the Parties that they are obligated to refrain from aggravating the dispute.
c) The Tribunal reserves its decision on the costs of the procedure relating to the Application for Provisional Measures to a later stage of this arbitration.
a) Having been rendered moot by the approval of the 2008 Financial Statements on June 1, 2012, the Claimants’ Second Application for Provisional Measures, including its request for an emergency temporary order, is denied.
b) The Tribunal notes that it had explicitly instructed both Parties on April 1.2012 to take no actions or steps to aggravate the dispute or render Claimants’ Second Application moot during the Tribunal’s consideration of it. Therefore, the Tribunal reserves any further consideration of the approval of the 2008 Financial Statements for another appropriate stage of these proceedings.
c) Notwithstanding that the 2008 Financial Statements may be available by request through the Inspeccion General de Justicia, the Tribunal orders Respondent to produce the 2008 Financial Statements of Aerolineas Argentinas S. A., Austral Lineas Aereas - Cielos del Sur S. A., Jet Paq S.A., and Aerohandling S.A., production should be made promptly, and in any event, by October 17, 2012. This Order should not be understood to prejudge any issue on the merits.
d) The Tribunal reminds both Parties of the requirement that they preserve all relevant documents and information in their possession, custody or control, including all documents and information relating to the Financial Statements of the Argentine Airlines for the period of 2002 to date.
e) The Tribunal reserves its decision on the costs of the procedure relating to the Claimants’ Second Application for Provisional Measures to a later stage of this arbitration.
On March 3, 2015, Respondent requested leave from the Tribunal to submit into the record a copy of the criminal complaint filed by the Treasury Attorney-General of the Argentine Republic with the Argentine Public Prosecutor’s office (Procuracion General de la Nacion) on February 23, 2015. This complaint named as respondents, among others, Burford Capital, Teinver, Air Comet, Autobuses Urbanos del Sur and Transporte de Cercanias. On March 17, 2015, Claimants submitted their observations on Respondent’s request of March 15, 2015.
|Mr.||Guillermo Aguilar Alvarez||King & Spalding|
|Mr.||Roberto Aguirre Luzi||King & Spalding|
|Mr.||R. Doak Bishop||King & Spalding|
|Ms.||Ashley Grubor||King & Spalding|
|Ms.||Silvia Marchili||King & Spalding|
|Mr.||Craig S. Miles||King & Spalding|
|Ms.||Margrete Stevens||King & Spalding|
|Mr.||Diego Fargosi||Estudio Fargosi & Asociados|
|Mr.||Luis Arqued Alsina||Teinver|
|Mr.||Christopher Bogart||Burford Capital|
|Mr.||Mariano Hernandez||Air Comet|
|Mr.||Alvaro Martinez||Air Comet|
|Via video conference from Madrid, Spain|
|Mr.||Esteban Leccese||King & Spalding|
|Mr.||Jesus Verdes Lezana||Transportes de Cercanias|
|Mr.||Miguel Vilella Barrachina||Transportes de Cercanias|
|Mr.||Jose Carlos Gonzalez Vazquez||Autobuses Urbanos del Sur|
|Mr.||Ramon Soler Amaro||Autobuses Urbanos del Sur|
|Dr. Angelina Abbona||Procuradora del Tesoro|
|Mr.||Horacio Diez||Procuracion del Tesoro de la Nacion|
|Mr.||Carlos Mihanovich||Procuracion del Tesoro de la Nacion|
|Ms||. Mariana Lozza||Procuracion del Tesoro de la Nacion|
|Mr.||Sebastian Green||Procuracion del Tesoro de la Nacion|
|Ms||. Soledad Romero||Procuracion del Tesoro de la Nacion|
|Ms||. Magdalena Gasparini||Procuracion del Tesoro de la Nacion|
|Mr.||Nicolas Duhalde||Procuracion del Tesoro de la Nacion|
|Mr.||Manuel Dominguez Deluchi||Procuracion del Tesoro de la Nacion|
Mr. Nicolas Sykes Aerolineas Argentinas S.A.
a) orders that Respondent refrain from publicizing the Complaints or the criminal investigation and any relation they may have to this arbitration, whether by communications to the press or otherwise;
b) defers its decision in respect of Claimants’ Application for Provisional Measures as it relates to the suspension of the criminal proceedings in regard of counsel for Claimants and Claimants’ court-appointed receivers, with liberty to Claimants to bring this Application back before the Tribunal in this respect should it become necessary;
c) reminds the Parties that they are obligated to refrain from aggravating the dispute;
d) denies the remaining aspects of Claimants’ Application for Provisional Measures; and
e) reserves its decision on the costs of the procedure relating to Claimants’ Application for Provisional Measures to the final award.
An advanced draft of the Tribunal’s Award has been under discussion. The Tribunal Members have deliberated in person and by other means, and have exchanged several thorough notes expressing their particular, and sometimes opposed views on several key issues. The Tribunal is aware that the Parties have been waiting for a long period of time for the Tribunal’s Award. The Tribunal is also fully aware how important this case is for the Parties. It therefore regrets the delay very much. As the Parties know, however, this is a complicated case that requires the Tribunal to consider a vast factual background, extensive submissions, massive volume of documents and very complex legal issues in dispute.
The Tribunal wishes to assure the Parties that it is doing its very best to finalize the Award as soon as possible.
The maintenance in office, despite a serious conflict of interest, of an Undersecretary of Air Transportation who had formerly served as the head of a powerful air transportation union in Argentina
Acts taken by the "government-supported" air transportation unions
Respondent’s failure to comply with a number of agreements it entered with Claimants’ subsidiaries between 2006 and 2008, including a memorandum of agreement for the sale of Claimants’ shares in the Airlines to the Govermnent of Argentina
Claimants allege that these and other acts constituted both creeping expropriation in violation of Article V of the Treaty and constituted violations of the fair and equitable treatment standard under Article IV(1 of the Treaty. Claimants also allege that Respondent failed to protect their investment in Argentina, in violation of Article III(1) of the Treaty; that Respondent took unjustified and/or discriminatory measures against Claimants, in violation of Article III(1) of the Treaty; and that Respondent’s conduct amounts to a breach of the umbrella clause, invoked through the MFN clause contained in Article IV(2) of the Treaty.3
A declaration that Argentina has violated the BIT;
A declaration that Argentina’s actions and omissions at issue and those of its instrumentalities for which it is internationally responsible are unlawful, arbitrary, discriminatory, unfair and inequitable, constitute an expropriation or measures tantamount to expropriation without appropriate and timely compensation, and that the GOA [Govermnent of Argentina] failed to protect Claimants’ investment and failed to fulfill obligations assumed with respect to the treatment of Claimants’ investments;
A declaration that the necessity defense does not apply;
An award to Claimants of restitution or the monetary equivalent of all damages caused to its investments, including historical and consequential damages;
Pre-and-post award compound interest until the effective date of payment; and
An award to Claimants for all costs of these proceedings, including attorneys’ fees.
(a) to declare that King & Spalding lacks the necessary legal capacity to represent Claimants in this arbitration, which would result in the annulment of all actions taken, as well as to declare the forfeiture of Claimants’ right to file an action;
(b) to reject all of the claims put forward by Claimants;
(d) to order Claimants to pay for all costs and expenses arising from this arbitration proceeding.
(c) to sustain the Counterclaim filed by the Argentine Republic, to award damages—plus pre-and post-Award interest from the moment the Argentine Republic suffered the damage—as well as to grant the Argentine Republic such further relief as the Tribunal may deem appropriate;
It should be noted that all of these individuals that have been found guilty in criminal and civil courts have testified throughout these proceedings, so that this Tribunal cannot hold the Argentine Republic liable based on the statements of those who are suspected and/or have been convicted of having caused their own bankruptcy, concealed information and who have been prosecuted for serious crimes, [emphasis added]37
Arbitration proceedings that are pending at the time of the reorganization proceeding declaration shall continue until the award becomes final, and the rules contained in paragraphs 2 and 3 of the preceding article shall apply, [emphasis added]70
In case of suspension of the debtor’s powers of administration and disposition, the reorganization administrators shall, within the scope of their powers, replace the debtor in the pending legal proceedings. To that effect, the law clerk shall grant the reorganization administrators a period of five days to get acquainted with the proceedings. The reorganization administrators shall need the bankruptcy judge’s authorization to withdraw, to accept the claim, in whole or in part, and to settle disputes. In every case, the law clerk shall give notice to the debtor and to those intervening parties that the judge considers should be heard on the subject.71
• November 14, 2008: Original Representation Contract between Claimants and King & Spalding.73
• November 21, 2008: Each of the three Claimants, Teinver, Autobuses Urbanos and Transportes de Cercanias granted broad Powers of Attorney to King & Spalding and other lawyers to represent them in negotiations with the government and to file and pursue arbitration proceedings against them before ICSID.
• December 9, 2008: Powers of Attorney were issued by the Boards of Directors and were subsequently notarized.
• December 11, 2008: Claimants’ Request for Arbitration is submitted by King & Spalding with a number of exhibits, including the Powers of Attorney, as required by Rule 2(2) of the ICSID Rules.
• January 30, 2009: ICSID registered the Request for Arbitration.
• January 18, 2010: Assignment Agreement between Claimants and Air Comet ("Assignment Agreement").74
• April 14, 2010: Funding Agreement between Claimants and Burford ("Funding Agreement").75
• April 20, 2010: Air Comet commences voluntary re-organization procedure.
• April 24, 2010: Representation Agreement between Claimants and King & Spalding ("Representation Agreement").76
• June 21, 2010: Agreement between Air Comet and its re-organization administrators, Messrs. Mariano Hernandez, Luis Arqued and Luis Sierra.77 In this agreement, Air Comet’s re-organization administrators state that they have been informed of the claim by Teinver, Autobuses Urbanos and Transportes de Cercanias at ICSID and that on January 18, 2010 these Claimants signed an agreement with Air Comet by which they assigned the net benefit which they might recover in the arbitration to Air Comet. The agreement also records that Air Comet’s re-organization administrators are familiar with the funding arrangement with Burford and that they expressly agree to the provisions of the Funding Agreement and undertake to abide by the provisions of that agreement regarding the amounts provided for therein.
• December 22, 2010: The Spanish court (the Juzgcido Mercantil de Madrid, "JMM" No. 8) in the Air Comet re-organization proceedings approves the terms of the Funding Agreement and authorizes Air Comet’s re-organization administrators to consent to it. In its reasons, the court reviews the terms of the Funding Agreement which, in the circumstances, it concludes are justified.
• December 22, 2010: JMM No. 8 suspended Air Comet’s powers of administration and disposition of assets and appointed Air Comet’s re-organization administrators to exercise the powers of Air Comet.78
• December 23, 2010: Teinver requests voluntary re-organization proceedings before the Spanish court (JMM No. 7 of Madrid). In its record, the court records that the debtor (Teinver) conserves its faculties of administration and disposition of its assets, subject to the intervention of its re-organization administrators, Messrs. Edorta Etxarandio Herrera and Luis Arqued Alsina.79
• January 28, 2011: Autobuses Urbanos requests voluntary re-organization in terms similar to those of Teinver.
• February 16, 2011: Transportes de Cercanias requests voluntary re-organization which is recorded by the Spanish court (JMM No. 9 of Madrid) in terms similar to those in the case of Teinver.
• May 27-31, 2011: Hearing on Jurisdiction in Washington, D.C.
• June 16, 2011: Letter from Claimants responding to the Tribunal’s requests set out in Procedural Order No. 3. As part of their response, Claimants supply letters from the re-organization administrators for each of the Claimants: Teinver,80 Autobuses Urbanos,81 and Transportes de Cercanias.82 In their letters, the three sets of reorganization administrators state that they are responding to the inquiry by the Tribunal to confirm that the Request for Arbitration was submitted approximately two years before the commencement of the voluntary re-organization procedures and that the decision to commence the arbitration was validly taken by the companies in question. The letters state that Spanish law does not require the ratification of the commencement of the arbitration by the re-organization administrators. With respect to the continuation of the arbitration, the letters advise that the powers of administration of the officers of the companies have not been suspended and that no further authorization is required by the re-organization administrators or the judges responsible for the respective re-organization proceedings. They also point out that Spanish law provides that pursuant to the Spanish Bankruptcy Law, arbitration proceedings commenced prior to reorganization proceedings are to continue through to the issuance of an award. The administrators advise that they have reviewed the evolution of the arbitration and confirm that they are fully aware of these proceedings and have discussed them with counsel and are in full agreement that the arbitration proceedings continue. They also add that King & Spalding are fully authorized to continue the arbitral proceedings pursuant to the Powers of Attorney previously granted to them and which remain in full force and effect. Each of these letters was dated and signed by the relevant re-organization administrators.
• August 30, 2011: Claimants provide a copy of the decision of the Buenos Aires Commercial Court (of June 17, 2011) terminating the re-organization proceedings of ARSA commenced on June 22, 2001.
• December 21, 2012: The Tribunal issues its Decision on Jurisdiction.
• April 10, 2013: Order of JMM No. 7 suspending the powers of administration and disposition of assets of Autobuses Urbanos and granting these to the re-organization administrators.83
• April 23, 2013: Commencement of the liquidation proceedings of Transportes de Cercanias by JMM No. 7. The court’s order states that the relevant terms of Title 3 of the Bankruptcy Law, including the suspension of the exercise by the company’s officers of its powers of administration and disposal of assets, applies.84
• April 26, 2013: Commencement of the liquidation proceedings of Teinver by JMM No. 7. The court’s order goes on to state that the relevant terms of Title 3 of the Bankruptcy Law, including the suspension of the exercise by the company’s officers of its powers of administration and disposal of assets, applies.85
• August 10, 2013: With their Reply, Claimants submit three letters, one from each of the sets of re-organization administrators for Teinver, Autobuses Urbanos and Transportes de Cercanias.86 The letters are not dated, but are signed by each of the re-organization administrators. In the letters, the administrators give their names and say they are making an appearance before the Tribunal and make certain declarations, including express ratification of the powers of attorney and all acts performed on behalf of Claimants since the beginning of the arbitration.
• March 4, 2014: the hearing on the merits was attended by Mr. Arqued, one of the court appointed administrators/receivers in the Teinver and the Air Comet re-organization/insolvency proceedings (for a number of days). The daily transcript of the hearing also lists Mr. Hernandez, one of the re-organization administrators of Air Comet, and Mr. Alvaro Martinez Domingo as attending the hearing as "Claimants’ Representative".
• October 22, 2015: in the course of their Third Application for Provisional Measures, Claimants submitted three public deeds executed in Spain by the court-appointed receivers acting on behalf of Claimants in the various insolvency proceedings in Spain, all before notaries public in which, among other things, they confirmed their identity and powers to act on behalf of the respective Claimant in their capacity as court-appointed receivers, and attached evidence of their appointment.87
• November 3, 2015: the hearing concerning Claimants’ Third Application for Provisional Measures was attended by Messrs. Arqued, Hernandez and Martinez, court appointed administrators/receivers in the various re-organization and insolvency proceedings, as well as a number of other representatives of Claimants.88
The administrators or liquidators of the insolvent legal person shall continue to represent it within the context of the insolvency proceedings. In the event of suspension, the management and disposition powers of the administrator or liquidators shall be transferred to the trustees in insolvency. In the event of controllership, those powers shall continue to be exercised by the administrators or liquidators, under the supervision of the trustees in insolvency, who will be in charge of authorizing or validating all acts of management or disposition. Any power of attorney existing at the time of the initiation of the insolvency proceedings shall be affected by the suspension or control of financial and property-related powers.
El mandato se acaba: 1° Por su revocation. 2.° Por renuncia o incapacitation del mandatario. 3.° Por muerte, declaracion de prodigalidad o por concurso o insolvencia del mandante o del mandatario. / El mandato se extinguira, tambien, por la incapacitation sobrevenida del mandante a no ser que en el mismo se hubiera dispuesto su continuacion o el mandato se hubiera dado para el caso de incapacidad del mandante apreciada conforme a lo dispuesto por este. En estos casos, el mandato podra terminar por resolucion judicial dictada al constituirse el organismo tutelar o posteriormente a instancia del tutor.
The Claimant undertakes to grant to the Nominated Lawyers a full power of attorney (or local law equivalent) in the Funder’s usual fonn to cause and allow any and all Award proceeds to be paid forthwith as set out above. The Parties acknowledge and agree that such power of attorney (or local law equivalent) is of the essence of this Agreement and is a condition thereof and that any variation or tennination of such power of attorney shall entitle the Funder to tenninate this Agreement pursuant to Clause 10.1.96
If the full powers of attorney granted to K&S in the year 2008 were affected by a declaration of bankruptcy against their clients, then the effectiveness of the Funding Agreement would come to an end and, therefore, the whole scheme would fall apart, because if K&S were granted a new power of attorney, this time by the trustees in insolvency, such power of attorney would force K&S to report to the trustees of insolvency and the respective groups of creditors in the insolvency proceedings resulting in a declaration of bankruptcy and, as a result, the private and confidential Funding Agreement would cease to have legal effect.
1) Assignors hereby expressly agree to assign to AIR COMET S.A.U. any and all collection rights that may arise out of the claim filed with the ICSID...
2) Parties hereto agree that the final amount to be assigned to AIR COMET S.A.U. shall be equal to the amount the ICSID may possibly award to the Assignors after deducting all necessary and relevant costs, as well as any and all payments due to the ICSID Tribunal. All fees and expenses related to legal advisers, consultants, expert witnesses, witnesses, experts, reports, assessments, as well the interests or commissions due to any and all institutions, companies or offices contributing to the funding of the claim shall also be deducted from the amount to be assigned. Finally, in order to fix the final amount of the collection rights to be assigned to AIR COMET S.A.U., success fees agreed upon in contract in favor of those intervening during the proceedings before the ICSID Tribunal shall be deducted as well, whether they are due for tasks performed prior to the filing of the formal claim, during the relevant proceedings, or during any appeal or during the enforcement thereof.114
... Respondent has advanced a number of policy arguments against Claimants’ standing in this dispute. According to Respondent, the Claimants are upsetting the hierarchy of creditor claims against the Argentine Airlines and Interinvest, and it is inappropriate to award damages to a shareholder rather than to the company that has actually suffered injury. Respondent also expresses its concern that this suit could increase the risk that Respondent could be subjected to double-payment, because Interinvest could recover through the Argentine Courts in addition to any recovery by the Claimants under the Treaty.118
Respondent’s assertions could have relevance in the merits proceeding of this case, but Respondent fails to demonstrate why these assertions are relevant at the jurisdictional stage. Moreover, Respondent lias failed to articulate why these policy issues, as specifically applied to the facts at hand, should affect the outcome of this jurisdictional objection. Respondent lias not attempted to demonstrate the extenuating nature of the facts here, or to differentiate the facts in this case from the large number of other ICSID cases in which claimant shareholders were found to have standing.119
• Assumption of the assets and liabilities of ARSA and AUSA (including responsibility for all liabilities going forward from the relevant financial statements for ARSA May 31, 2001 and for AUSA fiscal year 2000);
• Leading the negotiation of the Creditors Agreement/re-organization proceedings of ARSA and negotiations with the creditors of AUSA;
• Commitment to maintaining the headcount of the various airlines and companies;
• Maintenance and expansion of flight routes and of the fleet of the airlines; and
• Contribution of capital.
Further, pursuant to the obligations under the SPA, SEPI transferred funds to Interinvest and Air Comet in Argentina and Spain. In turn, these funds were invested in the Airlines. While the origin of the funds in question was SEPI and not Claimants, this is irrelevant, as the funds were contributed as a result of the obligations undertaken by Air Comet and Claimants under the SPA. This is consistent with other cases where tribunals have found that the actual source of the funds is irrelevant provided that these were contributed by the investor.123 While there may be some dispute as to the precise amounts contributed, there seems no doubt that a number of sums were contributed to Interinvest and the Airlines by Air Comet:
• USD 300 million to acquire ARSA's liabilities as of October 2001;124
• USD 248 million in accordance with the SPA - to operate and modernize the Airlines;125
• USD 13.5 million in Interinvest;126
• USD 8 million (ARS 6.05 million) in ARSA;127 and
• USD 0.8 million in AUSA.128
To pay off liabilities of the Airlines up to USD 300 million, in accordance with a list of liabilities to be determined by SEPI. (SPA Article 9)
To pay for economic commitments resulting from the execution or implementation of the Industrial Plan, in an amount of up to USD 248 million. (SPA Article 9)
To pay for "any deviations in the [Airlines’] assets and liabilities between July 31, 2001 and the closing." (SPA Article 11) The amount to be paid by SEPI was not specified at the time of the SPA, although Respondent puts the final amount at USD 205 million.144
These agreements provided as follows: (i) Air Comet would acquire credits against ARSA directly from ARSA’s creditors; (ii) Air Comet would lead the renegotiation with ARSA’s creditors and reorganization proceeding; (iii) Air Comet would subrogate in ARSA’s creditors’ rights to facilitate ARSA’s negotiation with its creditors in the reorganization proceedings, and (iv) Air Comet would then transfer those credits to Interinvest, which would make a capital increase in ARSA, and consequently, increase Interinvest’s stockholdings in that airline.161
SEPI contributed USD 300 million to Interinvest which pursuant to the contract had to be used to pay debts. From this amount, USD 273 million were used by Air Comet to purchase those debts, leaving it subrogated in the position of the creditors against ARSA in order for it to intervene in the re-organization proceedings of ARSA. All of this was with the consent of SEPI which even sold to Air Comet one of its own credits owed to it by ARSA. Air Comet undertook to capitalize ARSA’s credits within six months from the date on which the Argentine judicial authority approved the rearrangement plan. That deadline elapsed on 26 June 2003 and to date it is unknown whether the contributions to ARSA’s capital were made.172
2. SEPI contributed USD 300 million to Interinvest that, under the Agreement, should have been allocated to the payment of liabilities of the Argentine group. From that amount Air Comet used 273 million with SEPI’s consent, to purchase those liabilities and undertook to capitalize the credits in ARSA by June 26, 2003. The documents finally furnished by SEPI with its allegations evidence that the liabilities were ultimately contributed to ARSA’s capital, although with more than four years’ delay.179
BUYER may allocate the amount of USD D 248,000,000 to the payments or investments to be made by the CORPORATIONS or the COMPANY in favor of the CORPORATIONS executing, or for the purpose of implementing, the INDUSTRIAL PLAN.
If the auditor’s certificate shows that amounts were used other than for making payments or investments to be made by the CORPORATIONS or the COMPANY in favor of the CORPORATIONS executing, or for the purpose of implementing, the INDUSTRIAL PLAN, BUYER shall reimburse such amounts, although SELLER may offset them against pending payment obligations. No reimbursed amounts may be requested again by BUYER; therefore, it will be deemed that SELLER’S primary obligation lias been reduced accordingly.194
By means of a timely increase of capital, BUYER shall admit new institutional partners within a term of NINE MONTHS since the CLOSING, and undertakes to make such a capital increase during that term of at least USD 50,000,000 (or its equivalent in Pesos argentinos). BUYER undertakes that at least 15% of the new partners shall be Argentine eligible investors. Such capital increase could be made as a one-time contribution or by installments during the above mentioned period. Compliance with this capital increase is guaranteed by a penalty clause of THREE MILLION (3,000,000) United States Dollars (USD) to be paid by BUYER to SELLER, upon SELLER’S mere demand, without BUYER’S right to claim any exception, as soon as it is proved that BUYER lias defaulted in its obligation and such default is not cured within a term of 4 months.
As any well-managed entities within an integrated group of companies, ARSA and AU S A were able to benefit from the other companies’ activities (including sales of Viajes Marsans—the largest Spanish travel group—or Astra’s negotiating) and resources (Air Comet’s Madrid hub to Emope, Viajes Marsans’ access to Amadeus and IATA, to cite a few). Claimants’ management allowed the Argentine Airlines to double-down on their strengths (in the maintenance area, for instance) and to mitigate their liabilities (in part by sending aircraft to Air Comet).208
[O]ut of the 248 million dollars destined to the Industrial Plan, AIR COMET only allocated a reduced portion to investments, although the Plan established the need for investments to expand the fleet. The Marsans Group incorporated old aircrafts and models different than those typified in the purchase agreement. If it had incorporated the models established in that contract in 2001, by 2004 the airlines would have had 12 Airbus 320/321, seven Airbus 340-200/300 and another four aircrafts of other types, a fleet that would have meant a completely different operating situation for the airlines.229
Proceedings before the Court in Charge of Preliminary Investigations No. 35 of Madrid