First Objection: There is no claim for a prima facie violation of the BIT;
Second objection: There is no consent to arbitrate because Claimants failed to accept Argentina's offer to arbitrate in the BIT; and
Third Objection: There is not jurisdiction ratione materiae.
"(The Court) jurisdiction is based on the consent of the parties and is confined to the extent accepted by them... When that consent is expressed in a compromissory clause in an international agreement, any conditions to which such consent is subject must be regarded as constituting the limits thereon. The Court accordingly considers that the examination of such conditions relates to its jurisdiction and not to the admissibility of the application." (Case Concerning Armed Activities in the Territory of Congo (New Application 2002), (DR of Congo v. Rwanda), ICJ Reports 2006, p. 39, para. 88) (AL RA 39).
As the above statement of the ICJ appears quoted in paragraph 141 of the Decision on Jurisdiction of the Philip Morris v. Uruguay Tribunal of 2 July 2013 (CL-134), a decision referred to in various contexts by Claimants, the present arbitrator presumes that they are aware of that Court's statement but reject it, notwithstanding that the Court's jurisprudence thereon is declaratory of the fundamental principle of State's consent to jurisdiction of public international law. The same applies mutatis mutandis to my coarbitrators because otherwise their conclusions in paragraphs 263 to 328 of the present Decision would be incomprehensible.
" Artículo 8
Solución de controversias relativas a las inversiones
(1) Toda controversia relativa a las inversiones entre un inversor de una de las Partes Contratantes y la otra Parte Contratante sobre las materias regidas por el presente Convenio será, en la medida de lo posible, solucionada por consultas amistosas entre las partes en la controversia.
(2) Si estas consultas no aportaran una solución en un plazo de seis meses, la controversia podrá ser sometida a la jurisdicción administrativa o judicial competente de la Parte Contratante en cuyo territorio se realizó la inversión.
(3) La controversia podrá ser sometida a un tribunal arbitral en los casos siguientes:
a) cuando no haya una decisión sobre el fondo, luego de la expiración de un plazo de dieciocho meses contados a partir de la notificación de la iniciación del procedimiento ante la jurisdicción arriba citada;
b) cuando tal decisión haya sido emitida pero la controversia subsista. En tal caso el recurso al tribunal de arbitraje privará de efectos a las decisiones correspondientes adoptadas con anterioridad en el ámbito nacional;
c) cuando las dos partes en la controversia lo hayan así convenido.
(4) Con este fin, cada Parte Contratante otorga, en las condiciones del presente Convenio, su consentimiento anticipado e irrevocable para que toda controversia sea sometida a este arbitraje. A partir del comienzo de un procedimiento de arbitraje, cada parte en la controversia tomará todas las medidas requeridas para su desistimiento de la instancia judicial en curso.
(6) El órgano arbitral decidirá en base al derecho de la Parte Contratante que sea parte en la controversia - incluidas las normas de derecho internacional privado -, en base a las disposiciones del presente Convenio y a los términos de eventuales acuerdos específicos concluidos con relación a la inversión, como así también según los principios de derecho internacional en la materia.
A los fines del presente Convenio:
(1) El término "inversión" designa todo activo invertido o reinvertido en cualquier sector de la actividad económica, siempre que la inversión haya sido realizada conforme con las leyes y reglamentaciones de la Parte Contratante en cuyo territorio ha sido efectuada y, en particular, aunque no exclusivamente:
b) los derechos de participación y otras formas de participación en las empresas;
e) las concesiones de derecho público para la prospección y la explotación de los recursos naturales.
El contenido y el alcance de los derechos correspondientes a las diversas categorías de los activos, serán determinados por las leyes y reglamentaciones de la Parte Contratante en cuyo territorio la inversión está situada."
Tratamiento de las inversiones
(1) Cada Parte contratante otorgará a los inversores de la otra Parte Contratante y a sus inversiones, un tratamiento no menos favorable que el otorgado a sus propios inversores y a sus inversiones o a los inversores de terceros Estados y a sus inversiones."
... Recognizing that mutual consent by the parties to submit such disputes [investment disputes] to conciliation or to arbitration through such facilities [Centre facilities] constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with;.
Article 25 (1)
(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy...
(1) The Tribunal shall be the judge of its own competence.
(2) 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.
(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.
(2) The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law.
(3) The provisions of paragraphs (1) and (2). shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree."
"164.... The general principle is that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context (including the preamble and annexes) and in the light of its object and purpose (Vienna Convention, Article 31(1), (2)) and also the circumstances of its conclusion (Article 32).
165. Article 31 of the Vienna Convention reflects the primacy of the text as the basis for the interpretation of a treaty, while also giving a role to extrinsic evidence of the circumstances of its conclusion and to the objects and purposes of a treaty as a means of interpretation. It is based on the view that the text is presumed to be the authentic expression of the intentions of the parties, and that in consequence the starting point of interpretation is the elucidation of the meaning of the text by reference to the intention of the drafters: International Law Commission, Yb ILC, 1966, vol II, pp 218, 220.
166. The ordinary meaning approach has been adopted in many investor-State arbitrations to confirm that the presumed intentions of the parties should not be used to override the explicit language of a BIT (Fraport v. Philippines at ) or to override the agreed-upon framework (Daimler Financial Services v. Argentina at ), or be used as an independent basis of interpretation (Wintershall v. Argentina at )."
"... as international treaties, BITs constitute an exercise of sovereignty by which States strike a delicate balance among their various internal policy considerations. For this reason, the Tribunal must take care not to allow any presuppositions concerning the types of international law mechanisms (including dispute resolution clauses) that may best protect and promote investment to carry it beyond the bounds of the framework agreed upon by the contracting state parties. It is for States to decide how best to protect and promote investment. The texts of the treaties they conclude are the definitive guide as to how they have chosen to do so" (para. 164) (AL RA 96).
"It is a general principle of the law of treaties that a third beneficiary of a right under it must comply with the conditions for the exercise of the right provided for in the treaty or established in conformity with the treaty. On the analogy of Article 36(2) of the Vienna Convention on the Law of Treaties of 1969 (the "Vienna Convention") the ‘secondary right-holder' under a bilateral treaty (the investor) who is conferred certain rights, being in no different position from "the third State" (mentioned in Article 36) - must comply with the conditions stipulated for the exercise of the rights provided for in the treaty concerned, which in the instant case is the ‘basic' treaty" (Award of 8 December 2008, para. 114) (AL RA 38).
"137. The Tribunal disagrees with the position expressed by some tribunals, and echoed by the Claimants, which would disregard the domestic litigation requirement [as] ‘nonsensical', since, allegedly, the domestic court would not be in a position to render a decision within the time-limit prescribed by the applicable treaty. The Tribunal also considers that a finding that domestic litigation would be ‘futile' must be approached with care and circumspection. Except where this conclusion is justified in the factual circumstances of the particular case, the domestic litigation requirement may not be ignored or dispensed with as futile in view of its paramount importance for the host State. Its purpose is to offer the State an opportunity to redress alleged violations of the investor's rights under the relevant treaty before the latter may pursue claims in international arbitration." (Decision on Jurisdiction of 2 July 2013) (CL-134).
"... The Court could not act in that way in the present case. It has simply to ascertain whether by rendering the disputed Award the Tribunal acted in manifest breach of the competence conferred on it by the Arbitration Agreement, either by deciding in excess of, or by failing to exercise, its jurisdiction.
Such manifest breach might result from, for example, the failure of the Tribunal properly to apply the relevant rules of interpretation to the provisions of the Arbitration Agreement which govern its competence. An arbitration agreement (compromis d'arbitrage) is an agreement between States which must be interpreted in accordance with the general rules of international law governing the interpretation of treaties." (Case concerning Arbitral Award of 31 July 1989, ICJ Reports 1991, p. 69, paras.47-48);
"The Court recalls its jurisprudence, as well as that of its predecessor, the Permanent Court of International Justice, regarding the forms which the parties' expression of their consent to its jurisdiction may take. According to that jurisprudence, ‘neither the Statute nor the Rules require that this consent should be expressed in any particular form' and ‘there is nothing to prevent the acceptance of jurisdiction. from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement'. The attitude of the respondent State must, however, be capable of being regarded as ‘an unequivocal indication' of the desire of that State to accept the Court's jurisdiction in a ‘voluntary and indisputable manner'." (Case Concerning Armed Activities in the Territory of Congo (New Application 2002), (DR of Congo v. Rwanda), ICJ Reports 2006, p. 18, para. 21) (AL RA 39).
"... the Court has jurisdiction in respect of States only to the extent that they have consented thereto.When a compromissory clause in a treaty provides for the Court's jurisdiction, that jurisdiction exists only in respect to the parties to the treaty who are bound by the clause and within the limits set out therein" (Ibid., p. 32, para. 65)
"... Article 29 of this Convention [on Discrimination against Women] gives the Court jurisdiction in respect of any dispute between States parties concerning its interpretation or application, on condition that: it has not been possible to settle the dispute by negotiation; that, following the failure of negotiations, the dispute has, at the request of one such State, been submitted to arbitration; and that, if the parties have been unable to agree on the organization of the arbitration, a period of six months has elapsed from the date of the request for arbitration.
"In the view of the Court, it is apparent from the language of Article 29 of the Convention that these conditions are cumulative. The Court must therefore consider whether the preconditions on its seisin set out in the said Article 29 have been satisfied in this case"
(Ibid., p. 39, para. 87)
"When that consent [of the parties] is expressed in a compromissory clause in an international agreement, any conditions to which such consent is subject must be regarded as constituting the limits thereon. The Court accordingly considers that the examination of such conditions relates to its jurisdiction and not to the admissibility of the application. It follows that in the present case the conditions for seisin of the Court set out in Article 29 of the Convention on Discrimination against Women must be examined in the context of the issue of the Court's jurisdiction. This conclusion applies mutatis mutandis to all of the other compromissory clauses invoked by the DRC" (Ibid., pp. 39-40, para. 88)
"The Court further notes that, even if the DRC had demonstrated the existence of a question or dispute falling within the scope of Article 75 of the WHO Constitution, it has in any event not proved that the other preconditions for seisin of the Court established by that provision have been satisfied, namely that it attempted to settle the question or dispute by negotiation with Rwanda or that the World Health Assembly had been unable to settle it" (Ibid., p. 43, para. 100)
"... the Court is called upon to determine whether a State must resort to certain procedures before seising the Court. In this context it notes that the terms ‘condition', ‘precondition', ‘prior condition', ‘condition precedent' are sometimes used as synonyms and sometimes as different from each other. There is in essence no difference between those expressions save for the fact that, when unqualified, the term ‘condition' may encompass, in addition to prior conditions, other conditions to be fulfilled concurrently with or subsequent to an event. To the extent that the procedural requirements of [a dispute settlement clause] may be conditions, they must be conditions precedent to the seisin of the court even when the term is not qualified by a temporal element" (Case concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), ICJ Reports 2011 (I), p. 124, para. 130).
"The consent allowing for the Court to assume jurisdiction must be certain. That is so, no more and no less, for jurisdiction based on forum prorogatum. As the Court has recently explained whatever the basis of consent, the attitude of the respondent State must "be capable of being regarded as ‘an unequivocal indication' of the desire of that State to accept the Court's jurisdiction in a ‘voluntary and indisputable' manner". For the Court to exercise jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State" (Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ Reports 2008, p. 204, para. 62) (AL RA 35).
"... the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes" (Case Concerning East Timor (Portugal v. Australia), ICJ Reports 1995, p. 102, para. 29) (CL-107 / AL RA 200).
"The jurisdiction of the Court in this case is based solely on Article IX of the [Genocide] Convention. [the Court] has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict. That is so even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes" (Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, p. 104, para. 147).
"Nowadays, arbitration is the generally accepted avenue for resolving disputes between investors and states. Yet, that phenomenon does not take away the basic prerequisite for arbitration: an agreement of the parties to arbitrate. It is a well-established principle, both in domestic and international law, that such an agreement should be clear and unambiguous. In the framework of a BIT the agreement to arbitrate is arrived at by the consent to arbitration that a state gives in advance in respect of investment disputes falling under the BIT, and the acceptance thereof by an investor if the latter so desires." (para. 98 of the Decision) (AL RA 36).
"At the time of commencing dispute resolution under the treaty, the investor can only accept or decline the offer to arbitrate, but cannot vary its terms. The investor regardless of the particular circumstances affecting the investor or its belief in the utility or fairness of the conditions attached to the offer of the host State, must nonetheless contemporaneously consent to the application of the terms and conditions of the offer made by the host State, or else no agreement to arbitrate may be formed. As opposed to a dispute resolution provision in a concession contract between an investor and a host State where subsequent events or circumstances arising may be taken into account to determine the effect to be given to earlier negotiated terms, the investment treaty presents a "take it or leave it" situation at the time the dispute and the investor's circumstances are already known. This point is equally poignant in the context of jurisdiction grounded on an MFN clause..(Award of 10 February 2012, para. 272) (AL RA 40).
"(12) Article 8 of the BIT contains an offer by Argentina to submit to arbitration within the scope of the treaty. CAI and CASAG initiated amicable consultation in accordance with Article 8(1) and (2) of the BIT with letter dated 30 April 2014. With the same letter, CAI accepted Argentina's offer to submit the dispute to arbitration. CASAG accepted Argentina's offer to submit the dispute to arbitration with letter dated 7 August 2014. CAI and CASAG submit this Request for Arbitration to ICSID in accordance with Article 8(5) of the BIT as the applicable dispute resolution mechanism and thereby repeat and ratify their consent to arbitration.
"(13) The acceptance of Argentina's jurisdictional offer forms the parties' consent in writing to submit to ICSID.
"(14) Pursuant to Rule 2(3) of the Institution Rules, the date of consent to ICSID arbitration is 30 April 2014 for CAI and 7 August 2014 for CASAG." (Emphasis added)
What is essential is to know whether or not Claimants' alleged consent matches the scope of Respondent' consent of the offer or whether because the non-fulfilment of the preconditions to arbitration in Article 8(1), (2) and (3) and the by-passing of the sequential system of settlement of the Article, Claimants' consent falls outside of the scope of the offered Respondent's consent with the result that the indispensable "arbitration agreement" (acuerdo de arbitraje) between the Parties to the dispute has not be formed or executed between them. But, before examining in detail these failures a few general comments on the "applicable law" and the "burden of proof" seem in order.
"Regarding burden of proof, it is commonly accepted that at the jurisdictional stage the facts as alleged by the claimant have to be accepted when, if proven they would constitute a breach of the relevant treaty. However, if jurisdiction rests on the satisfaction of certain conditions, such as the existence of an ‘investment' and of the parties' consent, the Tribunal must apply the standard rule of onus of proof actori incumbit probatio, except that any party asserting a fact shall have to prove it." (Decision on Jurisdiction of 2 July 2013, para. 29) (CL-134).
(i) On prior negotiations qualified by a temporal element:
"To the extent that the procedural requirements [of a dispute settlement clause] may be conditions, they must be conditions precedent to the seisin of the Court even when the term is not qualified by a temporal element" (see whole quotation of the passage in paragraph 35 of the present Opinion).
(ii) On the absence of a genuine attempt to negotiate:
"Manifestly, in the absence of evidence of a genuine attempt to negotiate, the precondition of negotiation is not met. However, where negotiations are attempted or have commenced, the jurisprudence of this Court and of the Permanent Court of International Justice clearly reveals that the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked" (Case concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation), ICJ Reports 2011, p. 133, para. 159).
(iii) On the distinction between negotiations or mere protest or disputations:
"Furthermore, ascertainment of whether negotiations, as distinct from mere protests or disputations, have taken place, and whether they have failed or become futile or deadlocked, are essentially questions of fact ‘for consideration in each case'" (Ibid., p. 133, para. 160).
(iv) On the relationship between the precondition of negotiations and the subject-matter of the treaty containing the resolution clause:
"However, to meet the precondition of negotiation in the compromissory clause of a treaty, these negotiations must relate to the subject-matter of the treaty containing the compromissory clause. In other words, the subject-matter of the negotiations must relate to the subject-matter of the dispute which, in turn, must concern the substantive obligations contained in the treaty in question" (Ibid., p. 133, para. 161).
(i) To define the "amicable consultation obligation" under consideration by reference to Article 8(1) of the Argentina-Austria BIT only, namely without major attention to the temporal element of the obligation;
(ii) To characterize the "amicable consultations" obligation of Article 8(1) and (2) of the Argentina-Austria BIT as a "soft obligation";
(iii) To interpret of the words "as far as possible" in Article 8(1) as encompassing mere unilateral party's allegation of unwillingness of the other party or compliance with time-limits under a given domestic law and without taking account in the matter of the six months temporal element of the amicable consultations obligation as provided by Article 8(2);
(iv) To affirm that in no case the requirement of "amicable consultations" of Article 8 (1) and (2) of the BIT may be read as limiting the scope of Respondent's consent offer to arbitrate in paragraph Article 8(4) notwithstanding the jurisprudence on the matter of the ICJ and paragraphs 12 to 14 of Claimants' Request for Arbitration;
(v) To affirm that Claimants have fulfilled their obligation to comply with the requirement of "amicable consultations" of Article 8(1) and (2) of the BIT since 27 August 2013 when Mr. Tucek, the CEO of CASAG, met with representatives of the Province of Salta and of NREJA in order discuss how to reinstate ENJASA's exclusive license, namely at a time when there is no hint at all for any of the interested participants of any eventual "treaty claims dispute" between Claimants and Respondent;
(vi) To affirm without evidence in support Claimants' hypothetical argument that the reinstatement of ENJASA's license by the Province of Salta a "contract claim dispute" would have settled the present "treaty claim dispute" between Claimants and Argentina Republic before this ICSID Arbitral Tribunal when in fact since 4 December 2014 Claimants by their own initiative are participating simultaneously in the Salta proceedings and the ICSID proceedings;
(vii) To affirm without further ado that the acts, all the acts, of the Province of Salta are attributable under public international law to the Argentine Republic mixing up thereby the situation under international responsibility for international wrongful acts of international law with the attribution of contractual rights and obligations under the domestic laws of a given country;
(viii) To affirm that the "amicable consultations" obligation of Article 8(1) contains a broad understanding to the effect that the "dispute" subject to amicable consultations could be any dispute with regard to investment, including negotiations concerning the reinstatement of ENJASA's license, disregarding the text of the provision, the definition of "investment" in Article 1(1) of the Argentina-Austria BIT, the exclusive "treaty claims dispute" competence of the Arbitral Tribunal and without providing in support of such affirmation any preparatory work or any other kind of evidence;
(ix) To affirm that the meetings which took place on 27 August 2013 between representatives of Claimants and the Province of Salta fulfil the need for Claimants to attempt the settlement of the present "treaty claims dispute" with the Argentine Republic through consultations, in full contradiction with CAI's "Notification for the commencement of amicable consultations" to the President of the Argentine Republic dated 30 April 2014 and the six subsequent letters (the last one of 21 October 2014) inviting Respondent for such a commencement;
(x) To affirm that the consultations Claimants attempted to initiate through these letters, which remained without response in substance because of their own lack of preparation, equally fulfil the requirement under Article 8(1) of the BIT, again without reference to the temporal element of the "amicable consultation obligation" in Article 8(2).
(i) Because Claimants as admitted did not try first to solve that "treaty claims dispute" before the Arbitral Tribunal through "amicable consultations", as provided for in the sequential dispute settlement system of Article 8 of the BIT;
(ii) Because Claimants' affirmation to have complied with the "amicable consultations "of Article 8(1) and (2) has not been proven or the affirmation relate to facts concerning a dispute other than a "treaty claims dispute" before this ICSID Arbitral Tribunal;
(iii) Because Claimants did not comply with the six months term established by Article 8 of the BIT for the "amicable consultations" considering that the earliest available date, in the circumstances of the case, to begin to count the said temporal term is 7 August 2014 and that Claimants filed with the Centre their Request for Arbitration on 4 December 2014, namely before completion of that term;
(iv) Because Claimants invoke the exchanges held at the meeting between Mr. Tucek and representatives of the Province of Salta on 27 August 2013 when such invocation is not admissible under international law as declared by ICJ jurisprudence according to which to meet the precondition of negotiations prescribed in a dispute settlement clause of a given treaty the later must relate to the subject-matter of the treaty containing the dispute resolution clause so that the subjectmatter of the negotiations must relate to the subject-matter of the dispute which, in turn, must concern the substantive obligations contained in the treaty in question;
(v) Because Claimants' invocation of Mr. Tucet's meeting of 27 August 2013 as complying with the "amicable consultations" requirement of Article 8(1) and (2) of the BIT is absolutely incompatible with CAI' Notification to the President of the Argentine Republic of 30 April 2014 (joined in August 2014 by CASAG) of Claimants' readiness to commence "amicable consultations" pursuant to the Argentina-Austria BIT and the six subsequent Claimants' letters (the last one of 21 October 2014) insisting on the commencement of the said consultations; and
(vi) Because CAI and CASAG never actually engaged in "amicable consultations" with the Argentine Republic and, therefore, according to international law as declared by ICJ jurisprudence Claimants are not entitled now to allege impossibility of compliance or a failure of consultations which never took place or that consultations would have become futile or deadlocked.
"It is in principle admitted that with respect to a BIT claim an arbitral tribunal has no jurisdiction where the claim at stake is a pure contract claim. This is because a BIT is not meant to correct or replace contractual remedies, and in particular it is not meant to serve as a substitute to judicial or arbitral proceedings arising from contract claims. Within the context of claims arising from a contractual relationship, the tribunal's jurisdiction in relation to BIT claims is in principle only given where, in addition to the alleged breach of contract, the Host State further breaches obligations it undertook under a relevant treaty. Pure contract claims must be brought before the competent organ, which derives its jurisdiction from the contract, and such organ - be it a court or an arbitral tribunal - can and must hear the claim in its entirety and decide thereon based on the contract only" (Decision of 4 August 2011, para. 316) (CL-131).
"The key concept in Article X of the BIT [Argentina/Germany BIT] is the ‘dispute', not the relief requested. There is no indication whatsoever that the investor should not be entitled to present its dispute ‘in full' before a domestic court. The Wintershall Tribunal therefore correctly noted that the 18 month[s] rule is premised on the submission of ‘the entire dispute for resolution in local courts'.
"The claim before the local courts must be ‘coextensive' with a dispute relating to investments made under the BIT. The nature of the "dispute" brought before domestic courts may be broad. The objective of the judicial filing is indeed to provide the domestic court with an opportunity to fashion a suitable remedy that may obviate international arbitration. For such a result to be reached, it is not necessary for the domestic court to adjudicate the claim within the framework of the BIT. What is required, however, is that the cause of action to be adjudicated at the domestic level be of such a nature as to allow for the resolution of the dispute to the same extent as if the claim had been brought before an international arbitration under the BIT. As the Wintershall tribunal stated, it must be possible to bring the ‘entire dispute' before the competent local court" (Urbaser v. Argentina, Decision on Jurisdiction of 19 December 2012, paras. 180-181) (AL RA 41).
Argentina-Spain BIT (Requirements in Article 10(1) and (2))
"1. Disputes arising between a Party and an investor of the other Party in connection with investments within the meaning of this Agreement shall, as far as possible, be settled amicably between the parties to the dispute.
2. If a dispute within the meaning of section 1 cannot be settled within six months as from the date on which one of the parties to the dispute raised it, it shall be submitted, at the request of either party, to the competent tribunals of the Party in whose territory the investment was made." (Teinver v. Argentina, Decision on Jurisdiction of 21 December 2012, para. 74) (CL-137).
Switzerland-Uruguay BIT (Requirements in Article 10(1) and (2)
"1. Disputes with respect to investments within the meaning of this Agreement between a Contracting Party and an investor of the other Contracting Party shall, as far as possible, be settled amicably between the parties concerned.
2. If a dispute within the meaning of paragraph (1) cannot be settled within a period of six months after it was raised, the dispute shall, upon request of either party to the dispute, be submitted to the competent courts of the Contracting Party in the territory of which the investment has been made. If within a period of 18 months after the proceedings have been instituted no judgment has been passed, the investor concerned may appeal to an arbitral tribunal which decides on the dispute in all its aspects." (Philip Morris v. Uruguay, Decision on Jurisdiction of 2 July 2013, para. 25) (CL-134).
"... by submitting their domestic law claim through the Requests for Annulment filed with the TCA to the Uruguayan Courts the Claimants satisfied the domestic litigation requirement under Article 10(2) of the BIT. The term ‘disputes', as used in Article 10(2), is to be interpreted broadly as concerning the subject matter and facts at issue and not as limited to particular legal claims, including specifically BIT claims. The dispute before domestic courts under Article 10(2) does not need to have the same legal basis or cause of action as the dispute brought in the subsequent arbitration, provided that both disputes involve substantially similar facts and relate to investments as this term is defined by the BIT." (Decision on Jurisdiction of 2 July 2013, para. 113) (CL-134);
"The domestic litigation requirement had not been satisfied at the time this arbitration was instituted. The present case differs from the other cases where jurisdiction has been denied due to the absence either of a dispute expressed in legal terms or of any actions by the investor to address its claims to the domestic court before resorting to arbitration. Nonetheless, even if the requirement were regarded as jurisdictional, the Tribunal concludes that it could be, and was, satisfied by actions occurring after the date the arbitration was instituted. The Tribunal notes that the ICJ's decisions show that the rule that events subsequent to the institution of legal proceedings are to be disregarded for jurisdictional purposes has not prevented that Court from accepting jurisdiction where requirements for jurisdiction that were not met at the time of instituting the proceedings were met subsequently (at least where they occurred before the date on which a decision on jurisdiction is to be taken)." (Ibid., para 144).
"Article 10(2) [Article 8(2) in the present case] contains a time-bound prior-recourse-to-local-courts-clause, which mandates (not merely permits) litigation by the investor (for a definitive period) in the domestic forum - which both Contracting Parties have considered to be an appropriate judicial body. It does not mention what relief should be sought in the domestic courts, nor does it require that it should be the same or similar relief to that sought in international arbitration. Whatever may have been the object in contemplation of the Contracting States when the Argentina-Germany BIT [Argentina-Austria in the present case] was agreed to and adopted, (and there is no evidence of this in the present case apart from the text of the treaty - i.e. the BIT) it does definitely indicate a compulsion to comply -(not, as erroneously stated in paragraph 95 of Claimant's CounterMemorial on Preliminary Objection of Jurisdiction a mere ‘option' to comply)." (Wintershall v. Argentina, Award of 8 December 2008, para. 118) (AL RA 38).
"In light of the above, the Tribunal concludes that ENJASA's Action for Annulment of Resolutions Nos. 240/13 and 315/13 complied with the need to have recourse to domestic remedies under Article 8(3) of the BIT. This recourse has also been submitted after amicable consultations had been initiated with the meeting of Mr. Tucek with representatives of the Province of Salta of 27 August 2013 and pursued in subsequent meetings. Since this recourse has now been pending for more than 18 months without a decision on the merits, the Tribunal finds that it can exercise its jurisdiction in the present case and proceed to the merits." (present Decision, para. 328).
"Compliance with municipal law and compliance with the provisions of a treaty are different questions. What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision." (Case Concerning Elettronica Sicula S.p.A., ICJ Reports 1989, p. 51, para. 73) (AL RA 193).
1. The notion of dispute in Article 8 of the Argentina/Austria BIT
(i) That for determining Claimants' compliance with the precondition of having recourse to the competent administrative or judicial jurisdiction of the host State provided for in Article 8(2) and (3) of the BIT it would be necessary for the Tribunal in the instant case to address first the nature of one or the other of domestic recourses instituted under the law of the Salta Province by ENJASA against the revocation of its license by ENREJA. Irrelevant.
(ii) To affirm as a general proposition that the recourse to the domestic jurisdictions of Article 8(3) of the BIT cannot be understood narrowly in the sense that the domestic dispute or disputes and the dispute submitted to ICSID arbitration be identical (in parties and cause of action), because it would hardly be in line with the object and purpose of BITs. Wrong under the present Argentina -Austria BIT.
(iii) To affirm as a general proposition that investment treaty tribunals have generally adopted a broader notion of dispute for the purpose of determining whether domestic-remedies-first in investment treaties have been complied with. Wrong, depending on the text of the dispute-settlement-clause of the applicable BIT.
(iv) To suggest that the quoted passages of the Teinver and Philip Morris decisions on jurisdiction would endorse a broad notion of dispute in the matter as a kind of rule or guidance of general application by investments tribunal. And that the fact that Article 8 (2) provides that the dispute in question may be "submitted to the competent administrative or judicial jurisdiction" would support a broad notion of the term dispute. Wrong because the text of the disputesettlement-clauses of the Argentina-Spain BIT and Switzerland-Uruguay BIT differ from the text of Article 8 of the Argentina-Austria BIT and, because the alternative "administrative" or "judicial" jurisdiction is irrelevant to the interpretation of the term ‘dispute' in Article 8 of the BIT.
(v) To affirm, on the basis of the Teinver and Philip Morris conclusions, that the domestic recourses by ENJASA under Salta law against the revocation of the license or the annulment of ENREJA's decisions are able to fulfill the domestic-remedy-recourse of Article 8 of the Argentina/Austria BIT. And that the so-called narrow reading of the notion of dispute would be incompatible with a good faith reading of Article 8(2) and 8(3) of the BIT under the interpretation rules of the VCLT. Wrong inter alia because Article 8 of the present BIT limits the competence of this Arbitral Tribunal to "treaty claims disputes" exclusively and because a good faith reading of Article 8(2) and (3) commands to respect the text of the applicable treaty provision concerned
2. Compliance with Article 8(2) of the BIT
(vi) The affirmation that for the determinations to be made by the Arbitral Tribunal in the present phase of the case the question arises as to which one, if any, of ENJASA's recourses pursuant to the laws of the Salta Province complied with Article 8(2) of the BIT. Irrelevant.
(vii) That the different conclusions reached by the majority to the effect that the "recourse for reconsideration ENJASA submitted against Resolution N°. 240/13 to ENREJA" which would not meet the requirement that the dispute must have been submitted to an ‘administrative jurisdiction' in the sense of Article 8(2) of the BIT (which I accept), while ‘the recourse for annulment initiated by ENJASA on 5 February 2014 of ENREJA Resolutions N° 240/13 and 315/13 with the First Instance Court of Salta qualifies as a recourse to domestic courts as required by Article 8(2) of the BIT are relevant in the case for the determination by the Arbitral Tribunal of it jurisdiction. Both hypotheses irrelevant
(viii) The qualification of the temporal element of six months period of the "amicable consultations obligation" in Article 8(2) as a "waiting period" which cannot be complied with "slavishly" before going to the second prior condition of "competent administrative or judicial jurisdiction" of the host State. Wrong, as it is contrary to the text of the provision.
(ix) The affirmation that the recourse to the "amicable consultations obligation" being qualified by the words "as far as possible" means that the parties can only be expected to exhaust the negotiations period of six months to the extent this is feasible Wrong as it is contrary to the text of the provision.
(x) That any other construction would create contradictions between Article 8(1) and Article 8(2) of the BIT and, at the same time, suggest replacing in the process of interpretation the notion of "dispute" by the notion of the "investment" and making wider the object of the required negotiations . Wrong, the alleged contradiction is self-induced, the object of the interpretation is the term "dispute" and the object of the required negotiations is the dispute before the Arbitral Tribunal.
(xi) That in the light of the time-limits and other requirements of ENJASA's local proceedings challenging the revocation of the license, no breach of the negotiation period in article 8(2) of the BIT has occurred. Wrong because time-limits and requirements of the Salta local proceeding are irrelevant for the interpretation and application of Article 8 of the BIT.
3. Compliance with the 18 months requirement in Article 8(3)(a) of the BIT
(xii) That whether the non-compliance with the 18 months requirement at the time of initiating the ICSID arbitration may make Claimants' claims inadmissible under Article 8(3) of the BIT. Irrelevant because the 18 months requirement is part and parcel of a jurisdictional precondition and not a cause of inadmissibility.
(xiii) That Claimants have complied with the temporal element of the prior obligation of submitting the dispute to the competent administrative o judicial jurisdiction of the host State because by now (May 2018) 18 months have passed since 5 February 2014 when ENJASA submitted its claim for annulment to the courts of Salta. Wrong because ENJASA's domestic courts proceeding is irrelevant for the interpretation and application of the 18 months term of Article 8(3)(a) of the BIT.
(xiv) That requiring that 18 months must have passed before international arbitration is initiated is overly formalistic and not in line with the object and purpose of the domestic-remedies-first requirement as contained in Article 8(3) of the BIT and, furthermore, the allegation that because the dispute may be submitted to international arbitration "whenever" they have agree to do so (Article 8 (3) (c)) it must also, mutatis mutandis, be irrelevant for purposes of timing of seisin under Article 8 (3) Wrong because it is contrary to the text of Article 8(3)(a) of the BIT and because under that provision of the BIT the parties are not acting pursuant to a particular agreement directly concluded by the parties to the dispute concerned.
(xv) That the purpose of a domestic-remedies-first requirement is not to stall or to cause delay, nor to increase the costs for the investors by requiring them to pursue domestic remedies first. Quite irrelevant for the interpretation and application of Article 8 of the BIT.
(xvi) That to insist on strict compliance would be an exaggerated formalism that is incompatible with the fair administration of international justice and the principle of good faith in aiming to settle international disputes. Quite irrelevant for the interpretation and application of Article 8 of the BIT.
(xvii) That strict insistence on the 18 months term would no longer at present prevent Claimants from reinitiating an identical arbitration without facing jurisdictional obstructions because of the 18 months requirement from Article 8(3)(a) of the BIT. Irrelevant. Claimants did not comply with that term before or after instituting the present case because they never complied with the precondition to which the term refers.
(xviii) That the quoted conclusions of Teinver v. Argentina and Philip Morris v. Uruguay are applicable in the circumstances of the present case and with the same effect. Wrong, because those conclusions do not correspond to the prescriptions of the BIT applicable in the present case.
(xix) That ENJASA's recourse to annul Resolutions N° 240/13 and N° 315/13 submitted to the domestic courts of Salta concerned "substantially similar facts" as the dispute instituted by Claimants before the Arbitral Tribunal and fulfils the temporal element of domestic-remedies-first requirement in Article 8 (3) of the BIT and, therefore, the Tribunal has jurisdiction in the case to proceed to the merits. Quite wrong because Article 8 of Argentina-Austria BIT refers in all its paragraphs to a "single treaty dispute", not to two or more disputes eventually of different kinds, as does the majority Decision.
(i) Because Claimants did not try to solve the present "treaty dispute" after trying "amicable consultation" as provided for in the sequential dispute settlement system of Article 8 of the BIT;
(ii) Because Claimants has never submitted the present "treaty dispute" to the competent administrative or judicial jurisdiction of the Argentine Republic as prescribed by Article 8(2) and (3) (a) of the BIT;
(iii) Because Claimants' contention that they have complied with the present precondition because of the filing by ENJASA on 5 February 2014 before the First Instance Court of Salta of a request for annulment of ENREJA's Resolutions N° 240/13 and N°315/13 and related Decrees is rejected by this arbitrator on the ground that these domestic judicial proceedings relate to "contract claims" alien to the subject-matter of the "treaty dispute" before this Arbitral Tribunal (Article 8(1) of the BIT) and, furthermore, the scope of the Tribunal's competence defined by the BIT does not encompass "contract disputes" and, still further, the competence over these contract dispute belongs, according to the forum-selection-clause applicable, to the local courts of Salta;
(iv) Because Claimants' invocation of the conclusions in Teinver and Philip Morris in the present case is out of place in the light of the wording of the dispute-settlement-clauses of the BITs applicable to these cases that refer to "disputes" in the plural, while Article 8 of the Argentina-Austria BIT, like the Argentina - Germany BIT of Wintershall, is premised on a single "treaty dispute" to be submitted for resolution in local courts, as well as on the submission that the claims before the local courts should be coextensive with the "treaty dispute" for breaches of the Argentina - Austria BIT. Consequently, the issue of the relationship between two disputes posed to the Teinver and Philip Morris Tribunals by the wording of their respective BITs is alien to the present ICSID case;
(v) Because Claimants having never submitted the present "treaty dispute" to the competent administrative or judicial jurisdiction of the Republic of Argentina did not comply either with the eighteen months temporal term of the present precondition established in Article 8(3)(a) of the BIT. It is because of that that some references in the Decision to certain jurisprudence of the ICJ is not opposable in the present case;
(vi) Because Claimants have not proven that the competent administrative or judicial jurisdiction of the Argentine Republic to entertain the present "treaty dispute" between CAI and CASAG versus Argentine Republic is the First Instance Court of Salta;
(vii) Because Claimants never complied with the treaty obligations set forth in Article 8(2) and (3)(a) of the BIT they are not entitled now to allege that compliance would have been futile because of the impossibility for Argentine courts to solve the present "treaty dispute" in 18 months, ignoring the context provided for by Article 8(3)(b), according to which even if the domestic courts rendered the decision within the 18 months, but the dispute persists, it may be submitted by the investor to international arbitration, and the arbitral tribunal's decision could render ineffective the previously adopted decision at the domestic level, notwithstanding the encompassing delays and costs incurred.
"Each Contracting Party shall grant to investors of the other Contracting Party and to their investments treatment no less favorable than that which it grants to its own investors and their investments or to investors of any third State and their investments."
The expression "generally drafted MFN clause" is used in this Opinion for reasons of convenience, namely to distinguishing an MFN clause drafted generally speaking along the lines of the above quoted Article 3(1) of the Argentina-Austria BIT from broad "all matters" or "any matter" language MFN clauses in some other BITs and MFN clauses which provide expressly, clearly and unambiguously, that the Contracting States intended that the scope of the clause encompasses dispute-settlement (as, for example, in some UK Model BIT and practice).
"It is well established in international law that no State can, without its consent, be compelled to submit its disputes... either to mediation or to arbitration, or to any other kind of peaceful settlement" (Status of Eastern Carelia, 1923, PCIJ, Series B, N° 5, p. 27);
"The Court is not departing from the principle, which is well established in international law and accepted by its own jurisprudence as well as that of the Permanent Court of International Justice, to the effect that a State may not be compelled to submit its disputes to arbitration without its consent" (Ambatielos Case (Greece v. United Kingdom), ICJ Reports 1953, p. 19) (AL RA 235).
Claimants did not provide that explanation. But the question remains because in international law "substantive rights" and "means of dispute settlement for protecting those rights" are different things and confusion with each other is inadmissible in the light of a distinction which is inherent to a basic systemic principle of the international legal order in force. This dichotomy prevents indeed an ejusdem generis relationship between these two sets of rights absent the required substantial identity between both. Even if access to international arbitration can broadly be considered part of "treatment", the investor is not entitled to have access to the two aspects of that treatment under the same conditions (see, for example, Brigitte Stern, Concurring and Dissenting Opinion in Impregilo v. Argentina, p. 13, para. 45).
The situation would of course be different if the MFN clause at issue (or for that matter some other provision of the BIT, including the dispute settlement-clause) would provide expressly in a clear and unequivocal manner that the MFN treatment of the clause in the basic treaty is intended to import a more favourable arbitration dispute-resolution from another treaty, as stated in the Plama decision. In this hypothesis, the interpreter cannot but give effect to that common intention of the Contracting States manifested in the BIT (or eventually in conformity with the BIT) because for the VCLT the text must be presumed to be the authentic expression of the intention of the Parties to the BIT and further because, in such a hypothesis, the commands of the rule of State's consent to jurisdiction would have been in general terms satisfied.
"The fundamental point is that the more favourable treatment granted in a third treaty must be claimed through the MFN clause in the basic treaty. That is how the MFN clause works. It does not operate to amend or supplement the text of the basic treaty....One can appreciate the wisdom of the International Law Commission's decision to avoid the language of ‘incorporation of [by] reference' in its Draft Articles on MFN clauses and of the International Court's rejection of that approach. It is a domestic contract law analogy that is probably the root cause of the mistaken approach taken by investment treaty tribunals to the MFN clause. Reliance upon an MFN clause is not the same as reliance upon an express term in a commercial contract making reference to the standard terms of a trade organization, for instance" (The MFN clause in Investment Arbitration: Treaty Interpretation Off the Rails, Journal of International Law Dispute Settlement, Vol. 2, N° 1 (2011), p. 106).
1. The non-application of Articles 31 and 32 on interpretation of treaties of the VCLT;
2. The non-application Article 36(2) on application of treaties providing for rights for third parties of the VCLT;
3. The non-application of the systemic rule of international law on State's consent to the jurisdiction of international courts and tribunals, as manifested and defined by the ICJ in its established jurisprudence; and
4. The non-application of the general principle of international law that international arbitration required an agreement to arbitrate between the parties to the dispute, as provided for in the Preamble and Articles 25(1) and 26 (first sentence) of the ICSID Convention.
1. By following all along an unfit totum revolutum approach - which, inter alia, tends to confuse "claims" and "disputes" in detriment of the meaning of the term "dispute" in Article 8 of the Argentina-Austria BIT as defined in Article 1(1) the BIT itself;
2. By extrapolating into the present ICSID arbitral proceedings on a "treaty dispute" ENJASA's actions concerning a "contract dispute" instituting first administrative proceedings before ENREJA and then in a judicial proceeding before the First Instance Court of Salta as a remedy for Claimants' failure to comply with the preconditions of "amicable consultations" and "referral to local jurisdictions" of Article 8 of the BIT.
3. By blurring, for so doing, the established legal distinction that a breach of a treaty like the BIT and a breach of contract are quite different legal questions as has been declared by the ICJ in the Siccula case and with respect to ICSID arbitration as, for example, in the following statement by the Ad hoc committee in Vivendi Universal v. Argentina Annulment decision:
"For example, in the case of a claim based on a treaty, international law rules of attribution apply, with the result that the state of Argentina is internationally responsible for the acts of its provincial authorities. By contrast, the state of Argentina is not liable for the performance of contracts entered into by Tucumán, which possesses separate legal personality under its own law and is responsible for the performance of its own contracts." (Decision on Annulment of 3 July 2002, para. 96) (AL RA 22).
"It cannot be seen in a pure inter-State context but is in fact addressed to investors, entitled to protection, and consequently has to be interpreted in that light. This does not mean that pre-arbitration requirements are optional. On the contrary, they remain, in principle, mandatory requirements. But - again, unless the pre-arbitration requirements are formulated clearly and unmistakably to require the same formalistic approach in assessing compliance with them - an investment treaty tribunal should accord greater flexibility to the disputing parties than the ICJ accords to conditions of seisin under compromissory clauses. It is against this background that the Tribunal proceeds to analyzing Article 8 of the Argentina-Austria BIT" (majority Decision, para. 276).
"As to the relation between breach of contract and breach of treaty … (a) State may breach a treaty without breaching a contract, and vice versa... In accordance with this general principle (which is undoubtedly declaratory of general international law) whether there has been a beach of the BIT and whether has been a breach of contract are different questions. Each of these claims will be determined by reference to its proper or applicable law - in the case of the BIT by international law; and in the case of the (contract), by the proper law of the contract, in other words, the (municipal law) (decision of the ad hoc Committee of 3 July 2002, paras. 95-96).
"It is now established in international law that States are not liable to pay compensation to a foreign investor when, in the normal exercise of their regulatory powers, they adopt in a non-discriminatory manner bona fide regulations that are aimed at the general welfare" (Partial Award of 17 March 2006, para. 255) (CL-018).
"What is relevant is rather that the Province, with some justification, considered that AGBA had grossly failed in fulfilling its contractual obligations and terminated the Concession Contract on this basis. This is sufficient, in the Arbitral Tribunal's opinion, to exclude that the termination could be regarded as an act of - direct or indirect -expropriation or other appropriation of AGBA's property or Impregilo's investment. It has also in no way been proven that the termination of the Concession Contract was the last step in a successive series of measures taken by the Province with a view to depriving AGBA of the concession, or, in other words, that AGBA was exposed to ‘creeping expropriation'." (Impregilo v. Argentina, Award of 21 June 2011, para. 283) (AL RA 46).
"The other aspect of Respondent's third objection that the Tribunal lacks jurisdiction ratione materiae because of limits the BIT imposes for the protection of shareholder-investors, in the Tribunal's view, does not, properly understood, concern a question of jurisdiction ratione materiae, but concerns the scope of the substantive protections the BIT grants to shareholder-investors. This is a question pertaining to the merits of the claim. At the present stage of the proceedings, any limitation on the substantive scope of protection is only relevant to the extent it results in the lack of a prima facie claim. See infra Section VI.2."
"This does not mean, however, that interferences with ENJASA's assets are irrelevant for Claimants' rights as shareholder-investors protected under the BIT. Yet, the question to which extent Claimants enjoy protection as (indirect) shareholders against interferences with ENJASA's assets, such as the revocation of its operating license and subsequent events, is, in principle, an issue for the merits of the case. At the present jurisdictional stage, and despite Respondent's formulation as part of its objection that the Tribunal lacks jurisdiction ratione materiae, the issue (i.e., the scope of protection of Claimants as shareholder-investors) is only relevant in order to assess whether Claimants have successfully_presented a prima facie claim. This issue is discussed in connection with Respondent's objection that Claimants have failed to present a prima facie claim." (majority Decision, para. 185)
"224. In making this determination, the Tribunal therefore addresses not only aspects that are part of Respondent's first objection that Claimants have failed to show the existence of a prima facie claim proper, but also those aspects of Respondent's third objection that the Tribunal lacks jurisdiction ratione materiae which concern Respondent's claim that, in light of Respondent's construction of Article 4(3) of the BIT, Claimants, as indirect shareholders in ENJASA, are unable to bring claims relating to assets held by ENJASA, in particular claims arising out of the revocation of ENJASA's operating license unless the revocation of the license resulted in an expropriation of "assets"/"financial assets" of ENJASA.
"225. The Tribunal will first turn to the question whether Claimants have been able to show a prima facie breach of Article 4 of the BIT. In this context, the Tribunal will also address Respondent's argument on the impact of Article 4(3) of the BIT on claims by shareholderinvestors, both in respect of expropriation and other causes of action under the Argentina-Austria BIT."
"It is not necessary that the Tribunal comes to an ultimate conclusion on the interpretation of Article 4(3) of the BIT at the present stage of the proceedings. Instead, it is sufficient that Claimants have presented a prima facie plausible construction of Article 4(3) of the BIT. Paraphrasing Ambatielos, ‘[i]f the interpretation [...] relied upon appears to be one of the possible interpretations that may be placed upon it, though not necessarily the correct one, then the [...] claim must' proceed to the merits"
"All in all, with respect to Article 4 of the BIT, in the Tribunal's view, Claimants have made a prima facie claim that the revocation of ENJASA's license and subsequent events constituted an indirect expropriation of Claimants' shareholding in L&E and ENJASA contrary to Article 4(1) and (2) of the BIT. Furthermore, Claimants have presented a prima facie claim that the revocation of ENJASA's license and subsequent events constituted an expropriation of certain of ENJASA's assets or of ENJASA as a whole which could entitle Claimants to compensation pursuant to Article 4(3) of the BIT".
"In conclusion, in light of Article 4(3) of the BIT, this Tribunal has no jurisdiction (a) over the claim put forward by Claimants since it is not related to a financial asset owned by ENJASA and, in any case, (b) in relation to the alleged violation of the fair and equitable treatment and national treatment standards, since the Tribunal may only exercise jurisdiction in case of expropriation of assets of the company in which the investor owns shares." (Respondent's PHB, para. 132)
"...Thus, so long as the objection goes only to the authority of the Tribunal to hear claims for the breach of the legal right identified by the Claimant, the Tribunal's review of the sufficiency of the legal allegations, like its review of the factual allegations, is limited.
"A fundamentally different approach is required, however, for issues that are directly determinative of the Tribunal's jurisdiction - such as, for example, issues of consent, nationality, covered investment, territoriality, or the temporal scope of treaty protection. If the Tribunal is to make jurisdictional determinations on such issues in a threshold jurisdictional stage (rather than joining them to the merits), the Tribunal must reach definitive findings of fact and conclusions of law. Without such determinations, the Tribunal cannot satisfy itself that it has jurisdiction to hear the merits of the dispute". (Société Générale de Surveillance and Republic of Paraguay, Decision on Jurisdiction of 12 February 2010, paras. 52 and 53),
"It follows that matters that are decisive for purposes of establishing jurisdiction, such as whether a particular claimant qualifies as an investor or whether an investment falls under the protection of the relevant treaty, must be proven and decided at the jurisdictional stage. In the present instance, the burden of proof that all the jurisdictional requirements of the case are met, insofar as they are contested by the Respondent, lies with the Claimant" (Blue Bank International v. Venezuela, Award of 26 April 2017, para.73).
"El contenido y el alcance de los derechos correspondientes a las diversas categorías de los activos, serán determinados por las leyes y reglamentaciones de la Parte Contratante en cuyo territorio la inversión está situada".