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Impregilo v. Argentina

Type of decisionAward
Date of decision21 June 2011
Tribunal
Hans Danelius (President)
Brigitte Stern (dissenting)
Charles N. Brower (dissenting)
Legal instrumentBIT between Argentina and Italy (1990)
Further information

Statements from this decision

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If a clear case law exists, a tribunal should make determinations on the basis of this case law
The host state has to prove that the requirements of a rule precluding wrongfulness were met
Even well-intended but ill-conceived policies can be considered a contribution by the host state to the situation of necessity within the meaning of Article 25 (2) (b) ILC Articles on State Responsibility
"Essential interest" within Article 25 ILC Articles on State Responsibility also encompasses a state's social, economic and environmental stability
The interests of the investor are not relevant when examining the requirements of Article 25 (1) (b) ILC Articles on State Responsibility
If shares are protected by an IIT, a shareholder can claim a breach of the IIT even if the state's measures were directed at the company and not him or her personally
Definition of an expropriatory act
The termination of a concession does not necessarily amount to an expropriation
The fact that it was a political goal of the respondent to transfer public services back to public entities does not necessarily erase the existence of a public purpose as required by the standard of expropriation
The FET standard requires at least respect for the international minimum standard of international customary law
The concept of "legitimate expectations" within the FET standard and the existence of contractual rights are two different issues; a measure can, however, at the same time constitute a breach of the contract and of the FET standard
The legitimate expectations of the investor can be a relevant factor within the standard of fair and equitable treatment
If an IIT requires the host state to accord fair and equitable treatment to investments and prohibits arbitrary or discriminatory measures in two sentences of the same paragraph, the prohibition of arbitrary and discriminatory measures is just a specification of the FET standard
If the tribunal found that respondent did not accord fair and equitable treatment to an investment, it does not need to examine whether there has also been a breach of the full protection and security standard
A "losses due to war" clause cannot be interpreted as precluding the wrongfulness of a host state's breach of another standard of protection
MFN clauses can apply to dispute settlement provisions, at least if the MFN clause extends to "all matters regulated by the IIT"
If an IIT requires the host state to accord fair and equitable treatment to investments and prohibits arbitrary or discriminatory measures in two sentences of the same paragraph, the prohibition of arbitrary and discriminatory measures is just a specification of the FET standard
If the tribunal found that respondent did not accord fair and equitable treatment to an investment, it does not need to examine whether there has also been a breach of the full protection and security standard
Even if an IIT does not explicitly require proceedings in domestic courts for a certain amount of time, domestic proceedings may still be a condition for submitting the dispute to international arbitration
Even if an IIT does not explicitly require proceedings in domestic courts for a certain amount of time, domestic proceedings may still be a condition for submitting the dispute to international arbitration
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
Distinction between violation of a contract and a treaty
The concept of "legitimate expectations" within the FET standard and the existence of contractual rights are two different issues; a measure can, however, at the same time constitute a breach of the contract and of the FET standard
The termination of a concession does not necessarily amount to an expropriation
According to the principle derived from the Chorzów Factory case, reparation should eliminate the consequences of the illegal act and re-establish the situation which would have existed if that act had not been committed
A tribunal may award compound interest
If interest is awarded for several measures, which cumulatively amounted to unfair treatment, the starting-point for the respondent's duty to pay interest is the date where the breaches had culminated

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