ICSID, 23 March 2018, Salini Impregilo S.p.A. v. Argentine Republic, no. ARB/15/39, Decision on Jurisdiction and Admissibility

In 1997, a construction consortium (“Claimant”) won a bid for a contract for the construction, maintenance and operation of a toll road in Argentina. The consortium formed Puentes del Litoral S.A., an Argentina-incorporated company. On the merits, the Claimant alleges that Argentina’s acts started in 2002 led to the termination of the contract in 2014.

By the award, the Tribunal upholds its jurisdiction.

Argentina presents four objections.

First, Argentine alleges that the Claimant’s claim is time-barred, the claim being based on measures adopted more than a decade ago.

The Tribunal rejects the argument. The delay here was not unreasonable (was linked to participation in negotiations and to domestic actions), did not entail any acquiescence by the Claimant in the lapse of its claim and did not trigger the principle of extinctive prescription.

Second, Argentina argues that the Claimant has not satisfied the jurisdictional pre-conditions. The BIT required to submit the dispute to local administrative process or to the local courts for eighteen months before the start of arbitration. The Claimant never engaged local proceedings. However, if the Tribunal decides to take into account the two proceedings brought by Puentes, the Claimant failed to discontinue them in order to start arbitration.

The Tribunal rejects the argument. The arbitration was indeed started fifteen months after the first Puentes’ court case commenced. However, the Tribunal decides that to require the Claimant to start over and re-file the arbitration now that the 18 months has passed would be a waste of time and resources.

Moreover, the administrative jurisdiction was triggered by Puentes more than 18 months before the arbitration was commenced.

The Tribunal equally rejects the “abandonment” argument as the Claimant was not in a position to withdraw proceedings brought by Puentes to which it was not a party.

Third, Argentina alternatively submits that the national courts are the proper venue to hear the dispute. The argument fails. The Tribunal decides that even if it has the power to stay the present proceedings, it has not been shown that it is forum non conveniens and it would decline to exercise that power.

Forth, Argentina objects to Salini Impregilo’s standing because the claim belongs to Puentes. The Tribunal dismissed the objection. The Claimant’s shares in Puentes are an investment pursuant to the BIT. It therefore has standing to bring this claim.

2018-06-27T06:46:41+00:00 March 23rd, 2018|ICSID, International awards|0 Comments

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