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Siemens v. Argentina

Type of decisionDecision on Jurisdiction
Date of decision3 August 2004
Tribunal
Andrés Rigo Sureda (President)
Charles N. Brower
Domingo Bello Janeiro
Legal instrumentBIT between Argentina and Germany (1991)
Related decision(s)Award, 6 February 2007
Further informationFull text of the decision

Statements from this decision

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Where the title or the preamble of the relevant treaty indicates that the parties have agreed to “protect” and to “promote” investments they did so in order to create favourable conditions for investments of one of the two states in the territory of the other state
The acceptance of a clause from a model text does not invest this clause with either more or less legal force than other clauses which may had been more difficult to negotiate; the end result of the negotiations is an agreed text and the legal significance of each clause is not affected by how arduous was the negotiating path to arrive there
If a matter is dealt within an IIT provision and not specifically mentioned under other provisions, it does not necessarily follow that the other provisions should be considered to exclude the matter especially covered
States recognize that the promotion and protection of investments through IITs may stimulate private economic initiative and increase the well-being of the peoples of both countries
An investment is any kind of asset considered to be such under the law of the Contracting Party where the investment has been made
A dispute must exist at the time of the notice of arbitration; it must also exist at the time the dispute is filed with the ICSID Secretariat and at the time of registration
An MFN clause operates in two directions: it protects the investor against discrimination for being a foreigner and at the same time guarantees every benefit accorded to other foreign investors
An MFN clause is only related to the advantages that the treaty of reference may grant, not to the disadvantages; this applies regardless of the fact that sometimes disadvantages may have been a trade-off for advantages
When relying on an MFN clause an investor may not override public policy considerations judged by the parties to a treaty essential to their agreement
IITs grant access to a distinctive dispute settlement mechanism normally not open to investors; it is part of the treatment of foreign investors and investments and of the advantages accessible through a MFN clause
An IIT as such does not restrict the investors’ and the host state’s access to the national judicial system, it just provides for additional remedies normally not open to investors
The acceptance of a clause from a model text does not invest this clause with either more or less legal force than other clauses which may had been more difficult to negotiate; the end result of the negotiations is an agreed text and the legal significance of each clause is not affected by how arduous was the negotiating path to arrive there
At the jurisdictional stage, a tribunal has a limited ability to scrutinize the claims as formulated by the claimant. If the facts asserted by the claimant are capable of being regarded as alleged breaches of the IIT, the claimant should be able to have them considered on their merits
Where the title or the preamble of the relevant treaty indicates that the parties have agreed to “protect” and to “promote” investments they did so in order to create favourable conditions for investments of one of the two states in the territory of the other state
“Directly” relates to dispute and not to investment; accordingly, investments may also be of an indirect character
A dispute must exist at the time of the notice of arbitration; it must also exist at the time the dispute is filed with the ICSID Secretariat and at the time of registration
Article 26 ICSID Convention presumes exclusivity of the remedies under the Convention unless the parties had agreed otherwise; it does not provide that what may be agreed otherwise excludes the remedies under the Convention, in which case the remedies under the Convention are additionally applicable to those otherwise agreed

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