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FaGal · 24-03-05, 19:58

International Centre for Settlement of Investment Disputes (ICSID): Siemens, A.G. v. The Argentine Republic, Decision on Jurisdiction, Case No. ARB 02/8 (August 3, 2004)

The Tribunal concluded that it has jurisdiction over the investor’s claims against the Argentine Republic (“Argentina”).

In August 1996, Argentina invited bids for a contract to create a system of migration control and personal identification. The bidding terms required that any bidder be a local company to participate. Siemens, a German company, established a wholly-owned local corporation in Argentina, “Siemens IT Services, S.A. (“SITS”). SITS’s bid won the contract, which was signed on October 6, 1998 and approved by Decree No. 1342/98 (“the Contract”). On December 10, 1999, a new government came to power in Argentina. In February 2000, the government of Argentina suspended the contract allegedly due to technical problems. A commission was established to review the Contract in March 2000. SITS agreed to a proposal by the commission in November 2000 within the scope of Emergency Law 25.344. It sent a new and different proposal on May 3, 2001, and then on May 18, 2001, the commission terminated the Contract by Decree No. 669, issued under Emergency Law 25.344. SITS filed three administrative appeals against Decree No. 669 on June 5, June 19, and July 5, 2001. These appeals were rejected by Decree No. 1205/01, dated September 24, 2001. On July 23, 2001, Siemens notified Argentina of a breach under its bilateral investment treaty with Argentina, the Treaty between the Federal Republic of Germany and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investments (“the Treaty” or “BIT”). This notification triggered a six-month negotiating period under the BIT. On March 18, 2002, Siemens confirmed its agreement to arbitration before the International Centre for Settlement of Investment Disputes (ICSID).

Like the Claimant in an earlier ICSID decision, Maffezini v. Spain, Siemens invoked the most-favored-nation (“MFN”) clause of the Treaty to bypass a waiting period under the German-Argentina BIT that was not present in the Argentina-Chile BIT (the Treaty between Argentina and Chile concerning the Reciprocal Encouragement and Protection of Investments of October 2, 1991). The waiting requirement in the German-Argentine treaty allows 18 months for a decision of the local courts to the satisfaction of the parties.

Argentina contended, inter alia, that in looking at two cases in which the International Court of Justice (“ICJ”) dealt with MFN clauses, it is clear that the ICJ “opposed the application of the clause to extend the benefit of most-favored-nation to the jurisdictional scope.” Argentina further maintained that if the parties had intended to include the terms of dispute settlement within the scope of application of the MFN clause, it would have done so expressly. Argentina further contended that the Tribunal should not consider as purely temporal the requisite that investors bring an investment dispute before a local court, and that application of the MFN clause to bypass such requirement would deprive the provision of any meaning, a result incompatible with the Vienna Convention on the Law of Treaties.

Siemens challenged Argentina’s restrictive interpretation of the MFN clause, contending that in accordance with the Vienna Convention on the Law of Treaties, the MFN clause comprises all matters covered by the Treaty, except those expressly excluded in Article 3(3) and (4) and Article 3(b) of the Protocol and the Reversal Note dated April 9, 1991. Siemens contended that the dispute settlement mechanisms were part of the guarantees for the promotion and protection of foreign investments granted to investors.

The Tribunal found that access to dispute settlement such as ICSID arbitration under Treaty is part of the treatment of foreign investors and forms part of the protections offered under the Treaty. In this regard the Tribunal concurred with Maffezini. It noted that, “[t]he Tribunal concurs with Maffezini that the beneficiary of the MFN clause may not override public policy considerations judged by the parties to a treaty essential to their agreement. As already indicated, the Tribunal considers that the public policy considerations adduced by the Respondent are not applicable.”

Members of the Tribunal

Dr. Andrés Rigo Sureda, President

Judge Charles N. Brower, Arbitrator

Professor Domingo Bello Janeiro, Arbitrator

http://www.asil.org/ilib/Siemens_Argentina.pdf

Essì, quindi via libera al contenzioso senza il termine dei 18 mesi....

24-03-05, 19:58	#20 (permalink)
FaGal Member Data registrazione: Jul 2002 Messaggi: 21,553 Popolarità: 0	International Centre for Settlement of Investment Disputes (ICSID): Siemens, A.G. v. The Argentine Republic, Decision on Jurisdiction, Case No. ARB 02/8 (August 3, 2004) The Tribunal concluded that it has jurisdiction over the investor’s claims against the Argentine Republic (“Argentina”). In August 1996, Argentina invited bids for a contract to create a system of migration control and personal identification. The bidding terms required that any bidder be a local company to participate. Siemens, a German company, established a wholly-owned local corporation in Argentina, “Siemens IT Services, S.A. (“SITS”). SITS’s bid won the contract, which was signed on October 6, 1998 and approved by Decree No. 1342/98 (“the Contract”). On December 10, 1999, a new government came to power in Argentina. In February 2000, the government of Argentina suspended the contract allegedly due to technical problems. A commission was established to review the Contract in March 2000. SITS agreed to a proposal by the commission in November 2000 within the scope of Emergency Law 25.344. It sent a new and different proposal on May 3, 2001, and then on May 18, 2001, the commission terminated the Contract by Decree No. 669, issued under Emergency Law 25.344. SITS filed three administrative appeals against Decree No. 669 on June 5, June 19, and July 5, 2001. These appeals were rejected by Decree No. 1205/01, dated September 24, 2001. On July 23, 2001, Siemens notified Argentina of a breach under its bilateral investment treaty with Argentina, the Treaty between the Federal Republic of Germany and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investments (“the Treaty” or “BIT”). This notification triggered a six-month negotiating period under the BIT. On March 18, 2002, Siemens confirmed its agreement to arbitration before the International Centre for Settlement of Investment Disputes (ICSID). Like the Claimant in an earlier ICSID decision, Maffezini v. Spain, Siemens invoked the most-favored-nation (“MFN”) clause of the Treaty to bypass a waiting period under the German-Argentina BIT that was not present in the Argentina-Chile BIT (the Treaty between Argentina and Chile concerning the Reciprocal Encouragement and Protection of Investments of October 2, 1991). The waiting requirement in the German-Argentine treaty allows 18 months for a decision of the local courts to the satisfaction of the parties. Argentina contended, inter alia, that in looking at two cases in which the International Court of Justice (“ICJ”) dealt with MFN clauses, it is clear that the ICJ “opposed the application of the clause to extend the benefit of most-favored-nation to the jurisdictional scope.” Argentina further maintained that if the parties had intended to include the terms of dispute settlement within the scope of application of the MFN clause, it would have done so expressly. Argentina further contended that the Tribunal should not consider as purely temporal the requisite that investors bring an investment dispute before a local court, and that application of the MFN clause to bypass such requirement would deprive the provision of any meaning, a result incompatible with the Vienna Convention on the Law of Treaties. Siemens challenged Argentina’s restrictive interpretation of the MFN clause, contending that in accordance with the Vienna Convention on the Law of Treaties, the MFN clause comprises all matters covered by the Treaty, except those expressly excluded in Article 3(3) and (4) and Article 3(b) of the Protocol and the Reversal Note dated April 9, 1991. Siemens contended that the dispute settlement mechanisms were part of the guarantees for the promotion and protection of foreign investments granted to investors. The Tribunal found that access to dispute settlement such as ICSID arbitration under Treaty is part of the treatment of foreign investors and forms part of the protections offered under the Treaty. In this regard the Tribunal concurred with Maffezini. It noted that, “[t]he Tribunal concurs with Maffezini that the beneficiary of the MFN clause may not override public policy considerations judged by the parties to a treaty essential to their agreement. As already indicated, the Tribunal considers that the public policy considerations adduced by the Respondent are not applicable.” Members of the Tribunal Dr. Andrés Rigo Sureda, President Judge Charles N. Brower, Arbitrator Professor Domingo Bello Janeiro, Arbitrator http://www.asil.org/ilib/Siemens_Argentina.pdf Essì, quindi via libera al contenzioso senza il termine dei 18 mesi....