Mr. R. Doak Bishop
King & Spalding
1100 Louisiana, Suite 3300
Houston, Texas 77002
Mr. Guido Santiago Tawil
Suipacha 268, Piso 12
Buenos Aires, Argentina
1. The proceeding of the Stamp Tax Claim is hereby discontinued without prejudice to the Parties' claims on the merits;
2. Either Party shall be entitled to file the Stamp Tax Claim as a new proceeding with ICSID;
3. In such new proceeding,
- the Parties shall remain bound by the decision on jurisdiction rendered by the Arbitral Tribunal in the Stamp Tax Claim of January 14, 2004,
- the arbitral tribunal to be appointed shall have the same members as currently the Arbitral Tribunal -- or if one or more arbitrators become unavailable for any reason he shall be replaced by using the method in which he was appointed,
- the memorials, evidence and other submissions already submitted in the Stamp Tax Claim shall become part of the record;
4. The discontinuance of the Stamp Tax Claim shall in no way affect the disposition of the Ancillary Claim;
5. The costs incurred in the Stamp Tax Claim until its discontinuance shall be borne in equal shares by the Parties.
"Although there was consensus in applying US Dollar-based tariff rates, the manner by which such criteria would be expressed in the official documents was a matter of some discussion.
Government officials decided that expressing tariff rates in Convertible Pesos according to the Convertibility Act and its Regulatory Decrees was sufficiently clear and that it was not prudent to state in the official documents that Argentina could eventually abandon convertibility in the future. This was the criterion argued by Government representatives on the Committee. I wanted it stated clearly in the section of the license where the tariff rates, service terms and conditions were addressed that the tariff rates were established in US Dollars and invoiced in local currency at the exchange rate prevailing at the billing date.
After much discussion, it was decided that the license would state that tariff rates have to be calculated in US Dollars and that invoicing would be made in Convertible Pesos [...]
Therefore, in order to attract many well-qualified bidders, the licensees were protected from this risk. It was established in item 7.1 of Annex F to the Pliegos, that in case of an eventual variation in the parity of the local currency to the US Dollar, tariff rates would be "immediately and automatically" adjusted."12
"Enron holds 35.5 percent corporate rights in TGS, but it has no right from the economic viewpoint (...) to receive 35.5 of the dividends distributed by TGS [...] when CIESA receives the dividends, it has to first pay the interest of the debt and then distribute the dividends"22.
"...it is not useless to remind, as the Tribunal has done for long, that restrictions imposed by the State on the normal exercise of patrimonial rights must be reasonable, limited in time, and constitute a remedy and not a mutation in the substance or essence of the right acquired by judicial decision or contract..."35.
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) The International obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity.82
Nationals or companies of either Party whose investments suffer losses in the territory of the other Party owing to war or other armed conflict, revolution, state of national emergency, insurrection, civil disturbance or other similar events shall be accorded treatment by such other Party no less favorable than that accorded to its own nationals or companies or to nationals or companies of any third country, whichever is the more favorable treatment, as regards any measures it adopts in relation to such losses.83
This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the Protection of its own essential security interests.87