Avocats, autres représentants, expert(s), secrétaire du tribunal

Decision on Jurisdiction (Ancillary Claim)

Procedural History

1.
On March 25, 2003, Enron Corporation and Ponderosa Assets, L.P. ("Claimants") submitted before the International Centre for Settlement of Investment Disputes ("ICSID" or "Centre") a request for arbitration against the Argentine Republic ("Argentine Republic" or "Argentina") for alleged violations of the provisions of the 1991 Treaty between the United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investments ("Treaty"). The request concerns the adoption by the Government of Argentina of certain measures that allegedly affect the Claimants' investment in a gas transportation company.
2.
The Claimants had previously submitted a request for arbitration against the Argentine Republic, also for alleged violations of the Treaty. However, at that time the Claimants disputed the assessment of Stamp Taxes that certain Argentinean provinces applied to the gas transportation company where the Claimants have their investment ("first dispute"). This request was registered by the Centre on April 11, 2001.
3.
After requesting observations from the Argentine Republic with respect to the Claimants' request for arbitration of March 25, 2003, the Tribunal decided, in accordance with Article 46 of the Convention on the Settlement of Investment Disputes between States and Nationals of other States ("Convention"), to accept such request as a claim ancillary to the one already registered by the Centre ("ancillary claim").
4.
In its decision, the Tribunal proposed to handle both disputes independently until it decided on the exceptions to jurisdiction in both cases. In addition, the Tribunal also proposed an expeditious schedule in order for the parties to file their written submissions on jurisdiction in connection with the ancillary claim. Based on this schedule, Argentina filed its memorial on jurisdiction on August 20, 2003, while the Claimants filed their countermemorial on jurisdiction on October 17, 2003. Then, on November 19, 2003, Argentina filed its reply and on December 22, 2003, the Claimants filed their rejoinder.
5.
The exceptions to jurisdiction regarding the first dispute were resolved by the Tribunal on January 14, 2004. In its decision, the Tribunal declared that it has jurisdiction over the first dispute.
6.
Subsequently, a hearing on jurisdiction regarding the ancillary claim was held in Paris, on April 1 and 2, 2004. At the hearing the Claimants were represented by Messrs. R. Doak Bishop and Craig S. Miles from the law firm of King & Spalding, Houston, United States, as well as by Messrs. Guido Santiago Tawil, Alix M. Martínez and Ms. Silvia M. Marchili from the law firm of M. & M. Bomchil, Buenos Aires, Argentina. Messrs. Bishop and Tawil addressed the Tribunal on behalf of the Claimants. The Argentine Republic was represented by Ms. Cintia Yaryura, Ms. Ana Badillos, and Mr. Ignacio Pérez Cortés from the office of the Procuración del Tesoro de la Nación Argentina. All of them addressed the Tribunal on behalf of the Argentine Republic.
7.
During the hearing, the Tribunal also put questions to the parties in accordance with the Rule 32(2) of the Rules of Procedure for Arbitration Proceedings of the Centre ("Arbitration Rules").

The Dispute between the Parties

9.
The extent of the participation by the Claimants in the privatization of the gas industry in Argentina has been explained in the Stamp Tax Decision, and shall not be repeated here. The same holds true of the various shareholding arrangements and companies set up to this end. The Tribunal notes, however, that the parties have continued to argue about the shareholding arrangements connected with the participation of Enron in Transportadora de Gas del Sur Sociedad Anónima ("TGS") and related companies.
10.
The Argentine Republic has requested that Enron explain these arrangements and the Claimants have provided the Tribunal and Argentina with a number of documents to this effect. The Tribunal is satisfied that the shareholding arrangements have not changed, or not in any significant manner, since the Stamp Tax Decision. Should these arrangements change, evidently the Tribunal will take any developments into account. The Claimants have undertaken the commitment of informing the Tribunal promptly of any changes in this matter.

Argentina's Economic Emergency

11.
An extensive portion of the pleadings of the Argentine Republic and the documents submitted in this dispute concern explanations about the economic and social emergency affecting that country.
13.
The Tribunal also notes that while for Argentina there are two different disputes involved in this claim, one relating to the PPI and the other to legislative emergency measures, in the Claimants' view the dispute is just one evolving set of measures that have ended up affecting the investor's rights.

Argentina's Objections to Jurisdiction

14.
Like in the Stamp Tax dispute, the Argentine Republic has raised five objections to the jurisdiction of the Center and the competence of the Tribunal. These are first that the Claimants lacks ius standi because the dispute concerns contractual rights that appertain to TGS and not the Claimants. Second, an indirect claim such as that asserted by the Claimants is in violation of Article 25(2)(b) of the Convention. Third, the dispute does not arise directly out of an investment as required by Article 25(1) of the Convention. Fourth, the existence of a forum selection clause in the License Contract prevails over any other forum. And fifth, the dispute has already been submitted to the local courts of Argentina.
15.
Since these arguments have already been discussed in the Stamp Tax Decision, and the situation in respect of this dispute is not different, the Tribunal will address them briefly and devote more attention to certain aspects that the Argentine Republic has emphasized in respect of this particular dispute.

Jurisdictional Objection Based on the Lack of Ius Standi and Related Questions

Jurisdictional Objection Concerning the Existence of a Contractual Forum Selection Clause and the Submission of the Dispute to Local Jurisdiction

23.
Two other objections raised by the Argentine Republic concern the issue of the existence of a forum selection clause in the License Contract and the related question of whether the dispute was submitted to the local courts. Argentina believes that the forum selection clause of the Contract, assigning exclusive jurisdiction to the Administrative Courts of Buenos Aires, prevails. The Claimants, it is argued, are a third party to that Contract without a right of action of their own. Moreover, it is argued that TGS appealed the PPI measures and submitted to administrative courts other aspects of the dispute.
24.
The Claimants oppose such conclusions and are of the view that contractual choice of forum provisions do not impede ICSID jurisdiction when a Treaty-based claim is involved.6 In addition, the Claimants argue that they have not resorted to any local court in Argentina and that eventual actions by TGS do not preclude resort to ICSID arbitration by the Claimants, as held in Alex Genin and others v. Republic of Estonia ("Genin")7 and CMS.8

The Tribunal's Findings in Respect of Jurisdiction

The Mondev Case Distinguished

The Vacuum Salt Case Distinguished

Contract Claims and Treaty Claims

47.
A number of questions raised by the jurisdictional objections of the Argentine Republic concern the discussion about Contract claims and Treaty claims, in so far it is argued that the forum selection clause of the License Contract and the alleged submission of claims to Argentine courts are separate and distinct from Treaty claims, which are precluded because of the lack of ius standi and connected arguments.
48.
Many tribunals have had to deal with the difference between contract-based claims and treaty-based claims, as evidenced by Lauder,18Genin,19Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic ("Aguas del Aconquija"),20CMS21 and Azurix22 as well as the Annulment Committees in Compañía de Aguas del Aconquija S.A. and Vivendi Universal v. Argentine Republic (Annulment Proceeding) ("Vivendi")23 and Wena Hotels Limited v. Arab Republic of Egypt ("Wena").24SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan ("SGS v. Pakistan")25 and SGS Société Générale de Surveillance S.A. v. Republic of the Philippines ("SGS v. Philippines")26 are two other recent instances of this discussion.
51.
In this case, although there are no doubt questions concerning the Contract between the parties, the essence of the claims, like in the Stamp Tax Claim, relates to alleged violations of the Treaty rights. Having the Tribunal concluded that there are no reasons to change the conclusions on jurisdiction reached in the Stamp Tax Claim Decision, the distinction between contract-based claims and treaty-based claims looses to a great extent its significance in the present phase of the case.

Decision

52.
For the reasons stated above the Tribunal decides that the present dispute is within the jurisdiction of the Centre and the competence of the Tribunal. The Order necessary for the continuation of the procedure pursuant to Arbitration Rule 41(4) has accordingly been made.
So decided.
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