Continental Casualty Company v. Argentine Republic

Abstract

Jurisdiction — Dispute — ICSID Convention, Article 25(1) — Whether dispute was of a legal nature — Whether the dispute arose out of an investment — Whether the claim was premature

Jurisdiction — Investment — Whether a foreign investor had standing to bring claims for damages suffered by the assets, investments and activities of its local subsidiary

Procedure — Addition of a party — ICSID Convention, Article 25(2)(b) — ICSID Convention, Article 46 — Whether the local subsidiary of the claimant could be added as a party to the dispute — Whether the request for addition could be made by the claimant — Whether the claims of the local subsidiary needed to be different from those of the foreign parent

Interpretation — World Trade Organization — International Monetary Fund — Whether the norms of multilateral economic institutions assisted in investment treaty interpretation

Defence — Necessity — Exclusions and reservations — Public order — Essential security interests — Margin of appreciation — Customary international law — World Trade Organization — Whether the strict conditions of application for the plea of necessity under customary international law applied to the safeguard clause — Whether the economic crisis required the maintenance of public order or the protection of essential security interests — Whether the law of the World Trade Organization assisted in the interpretation of the defence — Whether the State had any reasonably available alternatives that were more compliant with its international obligations — Whether the State was barred by its own conduct from relying on the defence

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether the defence under general international law was available in the alternative

Free transfer — Interpretation — International Monetary Fund — Whether a currency transfer impeded by a bank freeze was related to an investment — Whether the provisions and principles of the International Monetary Fund assisted in interpretation of the investment treaty standard

Fair and equitable treatment — Legal stability — Legitimate expectation — Taxation — Whether the expectation of stability in the exchange and currency regime was legitimate and protected by the BIT — Whether unilateral restructuring of governmental financial instruments was reasonable once the economic crisis had ended — Whether imposition of a capital tax on a nominal gain resulting from currency devaluation was in breach of fair and equitable treatment

Expropriation — Indirect expropriation — Monetary sovereignty — Municipal law — Constitutional law — Taxation — Whether sovereign management of the exchange rate could result in an indirect expropriation — Whether compulsory currency conversion was protected from expropriation under constitutional law — Whether constitutional court decisions were relevant — Whether a breach of constitutional law amounted to an expropriation under international investment law — Whether losses for payment delays could be considered an expropriation — Whether unilateral restructuring of governmental financial instruments was an expropriation — Whether imposition of a capital tax on a nominal gain resulting from currency devaluation was an expropriation

Umbrella clause — Whether the State entered into any commitments with regard to investments — Whether the standard applied to contractual undertakings made to a local subsidiary — Whether domestic laws addressed to the general public created obligations specific to a foreign investor

Remedies — Interest — Compound interest — Whether simple or compound interest should be awarded in the circumstances

Annulment — Manifest excess of powers — Failure to state reasons — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the tribunal failed to decide the investor’s claim for loss after the state of necessity was over — Whether the tribunal failed to determine the investor’s expropriation claim in relation to unilateral restructuring of governmental financial instruments — Whether the tribunal failed in its construction of the scope of freedom of transfer — Whether the tribunal failed to explain why the State could no longer rely on the necessity defence — Whether the tribunal had awarded damages on a ground not invoked by the investor

Annulment — Procedure — Whether an annulment committee may consider an additional ground on its own motion