Date of dispatch to the parties: July 14, 2006
INTERNATIONAL CENTRE FOR SETTLEMENT
OF INVESTMENT DISPUTES
WASHINGTON, D.C.
IN THE PROCEEDING BETWEEN
AZURIX CORP.
(CLAIMANT)
AND
THE ARGENTINE REPUBLIC
(RESPONDENT)
ICSID CASE No. ARB/01/12
AWARD
Members of the Tribunal
Dr. Andrés Rigo Sureda, President
The Honorable Marc Lalonde P.C., O.C., Q.C., Arbitrator
Dr. Daniel Hugo Martins, Arbitrator
Secretary of the Tribunal
Ms. Claudia Frutos-Peterson
Table of Contents
I. INTRODUCTION..................................................................................................................1
II. PROCEDURAL BACKGROUND ........................................................................................2
III. BACKGROUND TO THE DISPUTE ..................................................................................10
IV. PRELIMINARY OBSERVATIONS.....................................................................................13
1. Responsibility of the Respondent for Actions and Omissions of the Province ..........13
(a) Positions of the Parties.....................................................................................13
(b) Considerations of the Tribunal..........................................................................14
2. Scope of the Jurisdiction of the Tribunal ...................................................................15
3. The ENRON relationship...........................................................................................17
4. Corruption..................................................................................................................17
5. Argentina’s Economic Crisis......................................................................................18
V. APPLICABLE LAW...........................................................................................................18
1. Positions of the parties..............................................................................................18
2. Considerations of the Tribunal ..................................................................................20
VI. THE FACTS.......................................................................................................................21
1. The Takeover of the Concession ..............................................................................21
(a) Positions of the Parties.....................................................................................21
(b) Considerations of the Tribunal..........................................................................24
2. Measures related to the tariff regime.........................................................................24
(a) Zoning Coefficients...........................................................................................25
(i) Positions of the parties.........................................................................25
(ii) Considerations of the Tribunal.............................................................28
(b) Construction Variations: Resolution 7/00 .........................................................29
(i) Factual background...............................................................................29
(ii) Considerations of the Tribunal.............................................................31
(c) Valuations 2000................................................................................................32
(i) Positions of the Parties.........................................................................32
(ii) Considerations by the Tribunal............................................................33
(d) Retail Price Index (RPI) issue...........................................................................34
(i) Background............................................................................................34
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(ii) Positions of the Parties.........................................................................36
(iii) Considerations of the Tribunal.............................................................37
3. The Works in Circular 31(A)......................................................................................39
(a) Bahía Blanca: Algae Removal Works...............................................................39
(i) Positions of the Parties.........................................................................39
(ii) Considerations of the Tribunal.............................................................45
(b) Moctezuma.......................................................................................................47
(i) Positions of the Parties.........................................................................47
(ii) Considerations by the Tribunal............................................................50
(c) Polo Petroquímico (“Polo”) ...............................................................................50
(i) Positions of the Parties.........................................................................50
(ii) Considerations of the Tribunal.............................................................52
(d) Florencio Varela ...............................................................................................52
(i) Positions of the Parties.........................................................................52
(ii) Considerations of the Tribunal.............................................................54
4. Rejection of Financing by the Overseas Private Investment Corporation (“OPIC”) ..55
(a) Positions of the Parties.....................................................................................55
(b) Considerations of the Tribunal..........................................................................57
5. Memorandum of Understanding (MOU)....................................................................57
(a) Positions of the Parties.....................................................................................57
(b) Considerations of the Tribunal..........................................................................60
6. The Program for Optimizing and Expanding Service (POES)...................................61
(a) Positions of the Parties.....................................................................................61
(b) Considerations of the Tribunal..........................................................................66
7. Circular 52(A) and Canon Recovery .........................................................................66
(a) Introduction.......................................................................................................66
(b) Positions of the Parties.....................................................................................67
(c) Considerations of the Tribunal..........................................................................75
(i) Circular 52(A): The Canon as an Investment ......................................77
(ii) The Addition of Article 12.1.1. ..............................................................78
(iii) Rationale of the Concession ................................................................79
(iv) Article 7.8................................................................................................82
8. Termination ...............................................................................................................86
(a) Introduction.......................................................................................................86
(b) Positions of the Parties.....................................................................................86
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(c) Considerations of the Tribunal..........................................................................89
9. Conduct of the Province after Service Transfer ........................................................92
(a) Positions of the Parties.....................................................................................92
(b) Considerations of the Tribunal..........................................................................96
VII. BREACH OF THE BIT.......................................................................................................96
1. Expropriation without compensation .........................................................................96
(a) Positions of the Parties.....................................................................................96
(b) Considerations of the Tribunal........................................................................108
(i) Interpretation of the BIT......................................................................109
(ii) Effect, Intent and Duration of Expropriation Measures ...................109
(iii) Breach of Contract and Expropriation...............................................112
(iv) Legitimate Expectations .....................................................................113
2. Fair and Equitable Treatment..................................................................................116
(a) Positions of the Parties...................................................................................116
(b) Considerations of the Tribunal........................................................................129
3. Failure to Observe Obligations................................................................................137
(a) Positions of the Parties...................................................................................137
(b) Considerations of the Tribunal........................................................................138
4. Arbitrary Measures..................................................................................................139
(a) Positions of the Parties...................................................................................139
(b) Considerations of the Tribunal........................................................................141
5. Full Protection and Security ....................................................................................142
(a) Positions of the Parties...................................................................................142
(b) Considerations of the Tribunal........................................................................145
VIII. COMPENSATION............................................................................................................147
1. Positions of the Parties............................................................................................147
2. Considerations of the Tribunal ................................................................................149
IX. INTEREST .......................................................................................................................157
X. COSTS.............................................................................................................................157
XI. DECISION........................................................................................................................158
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AWARD
I. Introduction
1. The Claimant, Azurix Corp., is a corporation incorporated in the State of
Delaware of the United States of America (hereinafter “Azurix” or “the Claimant”). It is
represented in this proceeding by:
Mr. Doak Bishop
King & Spalding
1100 Louisiana, Suite 4000
Houston, TX 77002
United States of America
Mr. Guido Santiago Tawil
M&M Bomchil
Suipacha 268, Piso 12
C1008AAF Buenos Aires
Argentina
2. The Respondent is the Argentine Republic (hereinafter “Argentina” or “the
Respondent”), represented in this proceeding by:
Mr. Osvaldo César Guglielmino
Procurador del Tesoro de la Nación
Procuración del Tesoro de la Nación Argentina
Posadas 1641
CP 1112 Buenos Aires
Argentina
1
II. Procedural background
3. On September 19, 2001, Azurix filed a request for arbitration against the
Argentina Republic, with the International Centre for Settlement of Investment Disputes
(hereinafter the “Centre”). Azurix claims that Argentina has violated obligations owed to
Azurix under the 1991 Treaty Concerning the Reciprocal Encouragement and
Protection of Investment between the Argentine Republic and the United States of
America (hereinafter “the BIT”), international law and Argentine law in respect of
Azurix’s investment in a utility which distributes drinking water and treats and disposes
of sewerage water in the Argentine Province of Buenos Aires. Azurix alleges such
breaches were made by Argentina both directly through its own omissions and through
the actions and omissions of its political subdivisions and instrumentalities.
4. On October 23, 2001, the Secretary-General of the Centre registered
Azurix’s request for arbitration, pursuant to Article 36(3) of the ICSID Convention on the
Settlement of Investment Disputes between States and National of other States
(hereinafter “the Convention”).
5. On November 12, 2001, the parties agreed that the Arbitral Tribunal would
consist of three arbitrators, one to be appointed by each party and the third presiding
arbitrator to be appointed by the Chairman of the Administrative Council of the Centre.
Accordingly, the Claimant appointed Professor Elihu Lauterpacht, C.B.E. Q.C., a British
national, and the Respondent appointed Dr. Daniel H. Martins, an Uruguayan national.
Dr. Andrés Rigo Sureda, a Spanish national, was appointed President after consultation
with the parties.
6. The Tribunal was deemed to have been constituted on April 8, 2002 and
the proceeding to have commenced. On the same date, the parties were notified that
Ms. Claudia Frutos-Peterson, Counsel, ICSID, would serve as Secretary of the Arbitral
Tribunal.
7. In accordance with Arbitration Rule 13, the Tribunal held its first session
with the parties in Washington D.C. on May 16, 2002. Mr. R. Doak Bishop of King &
Spalding represented the Claimant at the first session, and Mr. Hernán Cruchaga and
Ms. Andrea G. Gualde of the Procuración del Tesoro de la Nación, Buenos Aires, acting
2
on instruction from the then Procurador del Tesoro de la Nación, Dr. Rubén Miguel
Citara, represented the Respondent at the first session.
8. At the first session, the parties agreed that the Tribunal had been properly
constituted and that they had no objection to any of the members of the Tribunal, and it
was noted that the proceedings would be conducted under the ICSID Arbitration Rules
in force since September 26, 1984 (hereinafter “the Arbitration Rules”). In respect of the
pleadings to be filed by the parties, their number, sequence and timing, it was
announced after consultation with the parties that the Claimant would file its Memorial
within 150 days of the date of the first session, the Respondent would file its CounterMemorial
within 150 days of the date of receipt of the Memorial, the Claimant’s Reply
would be filed within 60 days of the date of receipt of the Counter-Memorial, and the
Respondent’s Rejoinder would be filed within a further 60 days of its receipt of the
Reply. It was further noted by the Tribunal that, in accordance with the Arbitration
Rules, the Respondent had the right to raise any objections it might have to jurisdiction
no later than the expiration of the time limit fixed for filing its Counter-Memorial. If such
objections to jurisdiction were made by the Respondent and rejected by the Tribunal, it
was agreed that the above timetable would be resumed following the resumption of
proceedings on the merits.
9. In accordance with the timetable decided during the first session, Azurix
filed its Memorial on the merits on October 15, 2002, claiming that Argentina had
breached the BIT by expropriating its investment by measures tantamount to
expropriation without prompt, adequate and effective compensation (Article IV(1)), by
failing to accord to it fair and equitable treatment, full protection and security, and
treatment required by international law (Article II(2)(a)), by taking arbitrary measures
that impaired Azurix’s use and enjoyment of its investment (Article II(2)(b)), by failing to
observe obligations Argentina entered into with regard to Azurix’s investment (Article
II(2(c)), and by failing to provide transparency concerning the regulations, administrative
practices and procedures and adjudicatory decisions that affect Azurix’s investment
(Article II(7)). In addition, Azurix requested orders for the payment of compensation for
all damages suffered and the adoption by Argentina of all necessary measures to avoid
further damages to Azurix’s investment. Azurix expressly reserved its right to request a
3
decision on provisional measures under Article 47 of the ICSID Convention and
Arbitration Rule 39.
10. On March 7, 2003, Argentina filed a Memorial on jurisdiction raising two
objections to the Tribunal’s jurisdiction. The first was that Azurix agreed to submit this
dispute to the courts of the city of La Plata and waived any other jurisdiction and forum;
the second was that Azurix had already made a forum selection under Article VII of the
BIT by submitting the dispute to Argentine courts. On March 12, 2002 the Tribunal
suspended the proceeding on the merits pursuant to Arbitration Rule 41(3), and set
dates for filing pleadings on jurisdiction. Accordingly, Azurix filed its Counter-Memorial
on jurisdiction on May 13, 2003.
11. Azurix filed a request for provisional measures on July 15, 2003 (dated
July 14, 2003), subsequently supplemented by two letters dated July 21 and 28, 2003.
The request sought a provisional measure recommending that Argentina refrain from
incurring by itself or through any of its political subdivisions in any action or omission
capable of aggravating or extending the dispute, taking into account especially the
reorganization of Azurix’s Argentine subsidiary, Azurix Buenos Aires S.A. (hereinafter
“ABA”), or any other measure having the same effect.
12. At the request of the Tribunal, Argentina filed observations on Azurix’s
request for provisional measures on July 24, 2003, seeking dismissal of the request for
provisional measures together with costs and requesting that the Tribunal request the
Claimant to produce an original copy of the Decision of the Appeals Chamber of the
Province of Buenos Aires.
13. The Tribunal, in a decision of August 6, 2003, rejected Azurix’s request for
provisional measures, considering that, in the circumstances of the case and at that
stage of proceedings, it was not in a position to recommend the specific measure
requested or to propose others with the same objective. The Tribunal did, however,
invite the parties to abstain from adopting measures of any character which could
aggravate or extend the controversy submitted to arbitration, and took note of
statements made by Argentina affirming that the Province of Buenos Aires (hereinafter
“the Province”) recognizes that the receivables for services rendered by ABA before
4
March 7, 2002 belong to ABA, and that those collected or to be collected in the future
have been or will be deposited in a special banking account, and that the situation
described in Azurix’s request would not affect the enforceability or execution of any
award rendered on the merits. The Tribunal postponed its decision on costs in respect
of the provisional measures request to a later stage of the proceedings and considered
it unnecessary to request the Claimant to furnish the Tribunal with the Decision of the
Appeals Chamber.
14. Argentina filed its Reply on jurisdiction on August 4, 2003
15. Azurix filed a Rejoinder on jurisdiction on August 29, 2003.
16. The hearing on jurisdiction took place in London on September 9 and 10,
2003. The parties were represented by Messrs. R. Doak Bishop, Guido Santiago Tawil,
Ignacio Minorini Lima and Craig S. Miles, on behalf of the Claimant. Messrs. Carlos
Ignacio Suárez Anzorena, and Jorge Barraguirre, and Ms. Beatriz Pallarés, from the
Procuración del Tesoro de la Nación, and Mr. Osvaldo Siseles, from the Secretaría
Legal y Administrativa del Ministerio de Economía y Producción, represented the
Respondent. On December 8, 2003 the Tribunal issued its Decision on Jurisdiction,
which is part of this Award, declaring that the dispute was within the jurisdiction of the
Centre and the competence of the Tribunal.
17. During the hearing on jurisdiction, the Respondent had requested an
extension of 90 days to file its Counter-Memoral on the merits should the Tribunal find
that it had jurisdiction. On December 8, 2003, the Tribunal issued Procedural Order No.
1 establishing the schedule for the further procedures on the merits. According to that
schedule, the Respondent was granted an extension of 50 days and its CounterMemorial
on the merits was due within 60 days from the date of that Procedural Order;
the Claimant was to file its Reply within 60 days from its receipt of the Respondent’s
Counter-Memorial, and the Respondent was to file its Rejoinder within 60 days from its
receipt of the Claimant’s Reply.
18. On February 9, 2004, the Respondent filed its Counter-Memorial on the
merits. In the Counter-Memorial, Argentina requested the Tribunal to order the Claimant
to produce all reports, analysis and other documentation related to the Claimant’s
5
participation in the privatization of the water supply and sewerage services of the
Province and the Claimant’s IPO. The Respondent also requested, if considered
appropriate by the Tribunal, that the Tribunal ask the United States Congress to furnish
the reports related to ENRON’s scandal and its relationship to Azurix.
19. On February 20, 2004, it was agreed that the hearing on the merits would
take place in Paris from October 4 to 8, 2004 and, if necessary, extend it to October 11-
12.
20. On March 8, 2004, the Tribunal invited Azurix to comment on Argentina’s
evidence request in the Counter-Memorial. Azurix objected to the request on March 15,
2004 and requested the Tribunal that, in case it would agree to Argentina’s request,
Argentina be invited in turn to produce all documentation related to AGOSBA’s services,
their privatization, the original setting of the tariffs, all documents of the Privatization
Commission, the ORAB, and the files related to ABA, AGOSBA and ABSA. The
Respondent commented on Azurix’s objection on March 29, 2004 and manifested its
willingness to request the Province to produce evidence that the Tribunal considered
relevant under Arbitration Rule 34.
21. On March 29, 2004, the parties agreed to extend by three weeks the
schedule for the presentation of the Reply and the Rejoinder.
22. On April 19, 2004, the Tribunal issued Procedural Order No. 2 inviting the
Respondent to request the Province to furnish the documentation filed with the Province
for participating in the bidding process (Envelop No. 1 –the technical offer- and Envelop
No. 2 –the economic offer) (“Envelops No. 1 and No. 2”), and postponed consideration
of the production of the remainder of the evidence requested until the Tribunal had an
opportunity to review the Reply, which was due by May 7, 2004.
23. The Respondent furnished the documentation requested under Procedural
Order No. 2 on May 17, 2004. At the same time, the Respondent requested that the
Tribunal do not distribute such documentation until Azurix had furnished its own copies
of Envelops No. 1 and No. 2. At this point, the Respondent alleged certain irregularities
in Circulars 51(b) and 52(a) and pointed out changes in the Concession Agreement
which were not part of the draft agreement included in the bidding documents.
6
24. On May 24, 2004, the Tribunal issued Procedural Order No. 3 requesting
Azurix to furnish the Tribunal its own copies of Envelops No. 1 and No. 2 and withheld
the documentation received from the Respondent.
25. Azurix, instead of presenting its own copies of Envelops No. 1 and No. 2,
sought copies directly from the Province allegedly for convenience’s sake. On May 31,
2004, the Respondent objected that, by seeking the documents from the Province,
Azurix had not complied with Procedural Order No. 3, withdrew its request related to the
production of Envelops No. 1 and No. 2, informed the Tribunal on irregularities it had
detected in Envelop No. 2 and requested that the Tribunal charge to the Claimant the
costs related to this procedural incident.
26. On July 24, 2004, the Respondent requested an extension of 10 days to
file its Rejoinder. The extension was granted on August 10, 2004.
27. On July 29, 2004, the Tribunal issued procedural Order No. 4 rejecting the
request for production of evidence formulated in the communication of the Respondent
of July 22, 2004 because of its general nature and failure to justify it.
28. On August 3, 2004, the Secretariat notified the parties that Professor
Lauterpacht had resigned as an arbitrator for health reasons, and suspended the
proceedings in accordance with Arbitration Rule 10(2). On the same date, the
Secretariat notified the parties that the Tribunal had consented to Professor
Lauterpacht’s resignation in accordance with Arbitration Rule 8(2). On August 4, 2004,
Mr. Marc Lalonde, a Canadian national, was appointed as an arbitrator by the Claimant
in replacement of Professor Lauterpacht. On August 10, 2004, the Tribunal was
reconstituted and the proceedings were resumed.
29. On August 16, 2004, the Tribunal issued Procedural Order No. 5 rejecting
a further Respondent’s request, dated August 2, 2004, for production of evidence
because it considered that it was not adequately justified even if more precise than the
request of July 22, 2004. On the same date, Argentina notified the appointment of Mr.
Osvaldo César Guglielmino as the Procurador del Tesoro de la Nación Argentina.
30. On August 17, 2004, the Respondent filed its Rejoinder on the Merits.
7
31. On August 23, 2004, the Respondent requested the Tribunal to reconsider
Procedural Order No. 5. The Claimant reiterated its objections to the Respondent’s
request on August 26, 2004. The Tribunal, after considering anew the Respondent’s
request and having then had the opportunity to review the Rejoinder, issued Procedural
Order No. 6, requesting the Claimant to submit, not later than September 17, 2004, the
study prepared by Hytsa Estudios y Proyectos, S.A. (“Hytsa”) referred to in paragraph
35 of the Rejoinder, and the Respondent to submit by the same date the bid evaluation
reports related to each stage of the bidding for the Concession.
32. As previously decided, the hearing on the merits was held, from October
4-13, 2004, at the World Bank’s office in Paris, France. Present at the hearing were:
Members of the Tribunal
Dr. Andrés Rigo Sureda, President
The Hon. Marc Lalonde, P.C, O.C., Q.C., Arbitrator
Dr. Daniel H. Martins, Arbitrator
ICSID Secretariat
Ms. Claudia Frutos-Peterson, Secretary of the Tribunal
On behalf of the Claimant
Mr. R. Doak Bishop (King & Spalding, Houston, Texas)
Mr. John P. Crespo (King & Spalding, Houston, Texas)
Mr. Craig S. Miles (King & Spalding, Houston, Texas)
Ms. Zhennia Silverman (King & Spalding, Houston, Texas)
Ms. Carol Tamez (King & Spalding, Houston, Texas)
Mr. Guido Santiago Tawil (M & M Bomchil, Buenos Aires, Argentina)
Mr. Francisco Gutiérrez (M & M Bomchil, Buenos Aires, Argentina)
Mr. Federico Campolieti (M & M Bomchil, Buenos Aires, Argentina)
8
Also attending on behalf of the Claimant
Mr. Steve Dowd (Azurix Corp.)
Mr. Lou Stoler (Azurix Corp.)
On behalf of the Respondent
Mr. Osvaldo César Guglielmino (Procurador, Procuración del Tesoro de la
Nación, Buenos Aires, Argentina)
Mr. Raúl Vinuesa (Procuración del Tesoro de la Nación, Buenos Aires,
Argentina)
Mr. Gabriel Bottini (Procuración del Tesoro de la Nación, Buenos Aires,
Argentina)
Mr. Juan José Galeano (Procuración del Tesoro de la Nación, Buenos Aires,
Argentina)
Mr. Ignacio Pérez Cortés (Procuración del Tesoro de la Nación, Buenos Aires,
Argentina)
Ms. María Soledad Vallejos Meana (Procuración del Tesoro de la Nación,
Buenos Aires, Argentina)
Also attending on behalf of the Respondent
Ms. Guillermina Cinti (Provincia de Buenos Aires)
Mr. Roberto Salaberren (Provincia de Buenos Aires)
Mr. Juan Carlos Schefer (Provincia de Buenos Aires)
33. On November 29, 2004, the Respondent filed an application to disqualify
the President of the Tribunal under Article 57 of the ICSID Convention. In accordance
with Arbitration Rule 9(6), the proceedings were suspended. Pursuant to Article 58 of
the Convention, the co-arbitrators issued a Decision dated February 25, 2005 on the
Challenge to the President of the Tribunal declining the Respondent’s disqualification
proposal, which was notified to the parties on March 11, 2005.
9
34. On March 14, 2005, the proceedings were resumed in accordance with
Arbitration Rule 9(6).
35. On March 15, 2005, the Centre transmitted to the Tribunal the parties’
Post- Hearing Briefs of November 29, 2004.
36. The Tribunal met in Washington, DC from September 7 to 9, 2005 to
discuss a draft of this award, and decided to request Azurix to explain, not later than
September 28, 2005, certain discrepancies in the amounts in the financial statements of
ABA for fiscal years 2000 and 2001. Azurix furnished its explanation on September 27,
2005 and the Tribunal invited the Respondent to comment on it by October 17, 2005.
The Respondent sent comments on October 14, 2005.
37. On April 17, 2006, the Tribunal declared the proceedings closed pursuant
to Arbitration Rule 38. By letter of June 13, 2006 the Tribunal extended by a further 30
days the period by which the award would be drawn up, in accordance with ICSID
Arbitration Rule 46.
III. Background to the Dispute
38. In 1996 the Province started the privatization of the services of
Administración General de Obras Sanitarias de la Provincia de Buenos Aires
(“AGOSBA”), the Province owned and operated company which provided potable water
and sewerage services in the Province. The Province passed Law 11.820 (“the Law”) to
create the regulatory framework for privatization of AGOSBA’s services. The future
operator of the water services would be granted a concession which would be overseen
and regulated by a new regulatory authority established for the purpose - Organismo
Regulador de Aguas Bonaerense (“ORAB”). The concessionaire was required to be a
company incorporated in Argentina. The Province engaged Schroeders Argentina S.A.
(“Schroeders”) as adviser for the privatization of AGOSBA and requested Schroeders to
distribute an information statement to potential investors. Schroeders sent the
information statement to ENRON Corporation (“ENRON”) inviting this company to
participate in the bidding. ENRON requested from a consulting company, Hytsa
Estudios y Proyectos S.A. (“Hytsa”) a preliminary report on the information furnished by
the Province in the Data Room on AGOSBA and its operations.
10
39. The privatization process was conducted by the Privatization Commission,
which tendered the concession on the international market on the basis of the Law and
of a set of contract documents prepared in accordance with the Law by ORAB, including
the Bidding Terms and Conditions and a draft Concession Agreement.
40. A bid offer was made by two companies of the Azurix group of companies
established for this specific purpose: Azurix AGOSBA S.R.L. (“AAS”) and Operadora de
Buenos Aires S.R.L. (“OBA”). AAS and OBA are indirect subsidiary companies of
Azurix. AAS is registered in Argentina and is 0.1% owned by Azurix and 99.9% owned
by Azurix Argentina Holdings Inc. (a company incorporated in Delaware), which in turn
is 100% owned by Azurix. OBA, also registered in Argentina, is 100% owned by Azurix
Agosba Holdings Limited which is registered in the Cayman Islands. Azurix owns 100%
of the shares in Azurix Agosba Holdings Limited.
41. Having successfully won their bid, AAS and OBA incorporated Azurix
Buenos Aires S.A. (“ABA”) in Argentina to act as concessionaire. On June 30, 1999,
ABA (also referred to as “the Concessionaire”) made a “canon payment” of 438,555,554
Argentine pesos (“the Canon”) to the Province. On payment of the canon, ABA,
AGOSBA and the Province executed a concession agreement (“the Concession
Agreement”) which granted ABA a 30-year concession for the distribution of potable
water, and the treatment and disposal of sewerage in the Province (“the Concession”).
Handover of the service took place on July 1, 1999.
42. Azurix declared to know and accepted the bidding conditions and
committed itself to undertake all measures necessary to ensure that OBA would fulfill
the obligations set forth in the bidding conditions and the Concession Agreement as
operator of the Concession during the first 12 years of operation. Similarly, Azurix
accepted to be jointly responsible for the obligations of AAS and that during the first six
years of the Concession there would be no change in the control of AAS.
43. The Claimant contends that its investment in Argentina has been
expropriated by measures of the Respondent tantamount to expropriation and that the
Respondent has, in addition, violated its obligations, under the BIT, of fair and equitable
treatment, non-discrimination and full protection and security; that such measures are
11
actions or omissions of the Province or its instrumentalities that resulted in the non
application of the tariff regime of the Concession for political reasons; that the Province
did not complete certain works that were to remedy historical problems and were to be
transferred to the Concessionaire upon completion; that the lack of support for the
concession regime prevented ABA from obtaining financing for its Five Year Plan; that
in 2001, the Province denied that the canon was recoverable through tariffs; and that
“political concerns were always privileged over the financial integrity of the
Concession”,1
and “[w]ith no hope of recovering its investments in the politicized
regulatory scheme, ABA gave notice of termination of the Concession and was forced to
file for bankruptcy”.2
44. The Respondent has disputed the allegations of the Claimant. For the
Respondent, the dispute is a contractual dispute and the difficulties encountered by the
Concessionaire in the Province were of its own making. In particular, the Respondent
has argued that the case presented by the Claimant is intimately linked to Enron’s
business practices and its bankruptcy; that the price paid for the Concession was
excessive and opportunistic and related to the forthcoming IPO of Azurix at the time
Azurix bid for the Concession through AAS and OBA and that the Concessionaire did
not comply with the Concession Agreement, in particular its investment obligations, and
the actions of the Province, including the termination of the Concession Agreement by
the Province, were justified.
45. Before proceeding to examine the facts and the parties’ allegations, the
Tribunal will make the following preliminary observations concerning the responsibility of
the Respondent for actions or omissions of the Province, the scope of the jurisdiction of
the Tribunal, the Claimant’s ENRON relationship, allegations of corruption, Argentina’s
economic crisis and the law applicable to the merits of the dispute.
1
Memorial, p.7.
2
Ibid.
12
IV. Preliminary Observations
1. Responsibility of the Respondent for Actions and Omissions of the
Province
(a) Positions of the Parties
46. The Claimant alleges that Argentina is responsible for the actions of the
Province under the BIT and customary international law. Indeed, the definition of
investment covers investments made in the territories of the parties to the BIT, and the
BIT in its preamble refers to the territory of each of the parties in reference to its reach.
Furthermore, Article XIII makes the BIT explicitly applicable to the political subdivisions
of the parties. The Claimant also refers to the responsibility of the State for acts of its
organs under customary international law and cites, as best evidence, Articles 4 and 7
of the Draft Articles on Responsibility of States for Internationally Wrongful Acts of the
International Law Commission (“ILC”) (“Draft Articles”).
47. The Claimant also notes the decision on the merits in Compañia de Aguas
del Aconquija S.A. and Vivendi Universal v. Argentine Republic (“Vivendi”) where the
tribunal stated that: “It is well established that actions of a political subdivision of [a]
federal state, such as the Province of Tucumán in the federal state of the Argentine
Republic, are attributable to the central government.” 3
The Annulment Committee
confirmed that statement: “in the case of a claim based on a treaty, international rules of
attribution apply, with the result that the state of Argentina is internationally responsible
for the acts of its provincial authorities.”4
48. The Respondent has not disputed that the BIT applies to the Province or
the responsibility of the central State for acts of provincial authorities under customary
international law. The Respondent has based its counter-argument on the fact that the
Claimant’s allegations are in all instances based on breaches of obligations
contractually assumed by the Province. Hence, according to the Respondent, the
Tribunal does not need to reach the stage of whether the BIT imposes absolute
3
Compañia de Aguas del Aconquija, S.A. & Vivendi Universal v. Argentine Republic, (ICSID Case No.
ARB/97/3), Award of Tribunal of November 21, 2000. para. 49.
4
Compañia de Aguas del Aconquija, S.A. & Vivendi Universal v. Argentine Republic, (ICSID Case No.
ARB/97/3), Decisión on Annulment, July 3, 2002. para. 96
13
responsibility on the central government for actions of a political subdivision because
the Claimant has failed to allege facts that are attributable to the Argentine Republic
under the BIT.
49. The Respondent considers that the Claimant takes for granted the highly
debatable proposition that contractual breaches result in a violation of the BIT. The
Respondent then refers, among others, to statements in the Annulment Decision in
Vivendi II to the effect that: “As to the relation between breach of contract and breach of
treaty in the present case, it must be stressed that Articles 3 and 5 of the BIT do not
relate directly to breach of a municipal contract. Rather they set an independent
standard”, and “A state may breach a treaty without breaching a contract, and vice
versa, and this is certainly true of these provisions of the BIT… It may be that “mere”
breaches of contract, unaccompanied by bad faith or other aggravating circumstances,
will rarely amount to a breach of the fair and equitable treatment standard …” From
these statements, the Respondent concludes that “a claimant in similar cases may not
invoke as events or facts giving rise to international responsibility the same facts that
constitute a breach of contract … international rules are ‘independent rules’. Therefore,
a State’s international responsibility may not be asserted by disguising mere contractual
breaches.” The Respondent concludes by recalling that to address the conflicts of a
contractual nature raised by the Claimant, both ABA and Azurix have waived their right
to submit them to any other jurisdiction other than the administrative courts of the city of
La Plata.5
(b) Considerations of the Tribunal
50. The responsibility of States for acts of its organs and political subdivisions
is well accepted under international law. The Draft Articles, as pointed out by the
Claimant, are the best evidence of such acceptance and as such have been often
referred to by international arbitral tribunals in investor-State arbitration. Moreover,
Article XIII of the BIT states clearly: “This Treaty shall apply to the political subdivisions
of the Parties.” This is not in dispute between the parties. The issue is whether the acts
upon which Azurix has based its claim can be attributed to the Respondent. The
5
Counter-Memorial, paras. 932-937.
14
Respondent contends that such attribution is not feasible because all the acts are
contractual breaches by the Province. This is a different matter to which the Tribunal will
now turn.
2. Scope of the Jurisdiction of the Tribunal
51. The Tribunal recalls that its decision on jurisdiction is based on the finding
that the Claimant had shown a prima facie claim against the Respondent for breach of
obligations owed by Argentina to the Claimant under the BIT. In that decision, the
Tribunal noted that:
“The investment dispute which the Claimant has put before this Tribunal invokes
obligations owed by the Respondent to Claimant under the BIT and it is based on
a different cause of action from a claim under the Contract Documents. Even if
the dispute as presented by the Claimant may involve the interpretation or
analysis of facts related to performance under the Concession Agreement, the
Tribunal considers that, to the extent that such issues are relevant to a breach of
the obligations of the Respondent under the BIT, they cannot per se transform
the dispute under the BIT into a contractual dispute”.6
52. The Tribunal also recalls that Azurix and the Respondent have no
contractual relationship. The Concession Agreement is a contract between the Province
and ABA, and Azurix made certain commitments and undertook certain guarantees to
the Province at the time of the bidding for and signature of the Concession Agreement.
None of the allegations made by the Claimant refer to breaches of the Province in
relation to Azurix itself. The obligations undertaken by the Province in the Concession
Agreement were undertaken in favor of ABA not Azurix. As the Respondent itself has
asserted, Argentina is not party to the Concession Agreement, and ABA is not party to
these proceedings. Therefore, the underlying premise of Article II(2c) of the BIT – that a
party to the BIT has entered into an obligation with regard to an investment – is
inexistent. Neither the Respondent nor the Province, as a political subdivision of the
Respondent, has entered into a contractual relationship with Azurix itself.
6
Decision on Jurisdiction, para. 76.
15
53. The Tribunal, in evaluating the facts and the allegations of the parties, is
mindful that its task is to determine whether the alleged actions or omissions of the
Respondent and the Province, as its political subdivision, amount to a breach of the BIT
itself. For this purpose, and since the allegations of the Claimant are based on disputes
related to the Concession Agreement, the Tribunal will need to determine the extent to
which the Province was acting in the exercise of its sovereign authority, as a political
subdivision of the Respondent, or as a party to a contract. As stated by the tribunal in
the case of Consortium FRCC c. Royaume du Maroc, a State may perform a contract
badly, but this will not result in a breach of treaty provisions, “unless it be proved that
the state or its emanation has gone beyond its role as a mere party to the contract, and
has exercised the specific functions of a sovereign.”7
It should be noted, however, that
this was not just any contract as between two private parties. It was a Concession
Agreement embodying the tariff regime of the Concession and the actions taken by the
Province were taken in its capacity as a public authority and by issuing resolutions
through its regulator and decrees, actions which can hardly be treated as those of “a
mere party to the contract.”
54. As noted earlier, Argentina has questioned the ability of a claimant to
invoke as events or facts giving rise to international responsibility the same facts that
constitute a breach of contract. The Tribunal has no doubt that the same events may
give rise to claims under a contract or a treaty, “even if these two claims would coincide
they would remain analytically distinct, and necessarily require different enquiries.”8
To
evoke the language of the Annulment Committee in Vivendi II, the Tribunal is faced with
a claim that it is not “simply reducible to so many civil or administrative law claims
concerning so many individual acts alleged to violate the Concession Contract or the
administrative law of Argentina”, but with a claim that “these acts taken together, or
some of them, amounted to a breach” of the BIT.9
This is the nature of the claim in
7
Consortium FRCC v. Royaume du Maroc (ICSID Case. No. ARB/00/6), Sentence arbitrale, para. 65.
See also Impregilo S.p.A. v. Islamic Republic of Pakistan (ICSID Case No ARB/03/3), Decision on
jurisdiction (Impregilo), para. 260.
8
Ibid., para. 258.
9
Decision of Annulment Committee, para. 112.
16
respect of which the Tribunal held that it had jurisdiction and which the Tribunal is
obliged to consider and decide.
3. The ENRON relationship
55. Argentina has placed substantial emphasis on the fact that Azurix was a
subsidiary of ENRON and has alleged that Azurix followed the aggressive and dubious
practices of ENRON in its bidding for and subsequent operation of the Concession. For
purposes of the dispute before this Tribunal and based on the documentation submitted
by the parties, the Tribunal considers that nothing has been proven that relates the case
before this Tribunal to ENRON’s case. The proven facts are that ENRON was invited by
the Province to bid for the Concession and ENRON declined in 2001 to guarantee a
loan of Banco de la Nación Argentina to ABA under the program of the National
Sanitation Works Agency (“ENOHSA”) financed by the Inter-American Development
Bank (“IDB”).
4. Corruption
56. In 2002, at the time Argentina was preparing the Rejoinder on jurisdiction,
it realized that Section 12.1.1 of the Concession Agreement was added after the award
of the Concession. ABA’s exemption of fines during the first six months of the
Concession for failure to meet the Concession’s performance standards was also added
after the award of the Concession. The Tribunal was informed by Argentina that an
investigation of this matter had been initiated by the office of the Procurador del Tesoro.
During the hearing on the merits, and as a reaction to insinuations of corruption during
the examination by Argentina of a witness presented by Argentina, counsel for the
Claimant asked the witness whether to his knowledge there had been any corruption in
connection with the award of the Concession. The witness replied that he was not
aware of any improper conduct, and the Procurador General present at the hearing
confirmed that the investigation was continuing but that no evidence of improper
conduct had surfaced. No further information has been transmitted to the Tribunal.
17
5. Argentina’s Economic Crisis
57. Argentina has pleaded that the institutional, social and economic crisis
that it endured in the period 1998-2002 was the worst in its history.10
On the other hand,
the Claimant has alleged that the Respondent deliberately confuses the economic
recession starting in 1998 with the economic and political crisis that began in 2001.
According to the Claimant, the recession and economic crisis took place after
termination of the Concession Agreement, are irrelevant for the purposes of this
arbitration and cannot justify the Province’s breaches of the Concession Agreement.
The Claimant further observes that Argentina does not claim any justification based on
the recession and only notes it as a background fact.11
The Tribunal notes that the
parties have not argued that the actions of the Province, ABA or Azurix had been
influenced by the economic crisis. The crisis may provide context to the dispute, but
none of the parties has pleaded that the economic crisis was the cause of the actions
taken by the Province, ABA or Azurix.
V. Applicable law
1. Positions of the parties
58. The Claimant has argued that Article 42 of the Convention, in its first
sentence, directs the Tribunal to look first to the rules of law agreed by the parties.
Since the parties have not agreed to the governing law, the Tribunal should apply the
BIT as lex specialis between the parties, and international law. The BIT expressly
requires Argentina to comply with international law, and the BIT and international law
have been incorporated by Argentina in its domestic law.12
59. The Claimant refers, among others, to Professor Weil’s opinion that: “the
existence of a Bilateral Investment Treaty raises the question of compliance with the
rights and obligations contained therein to the level of a matter under international law,
with respect not only to relations between the States party to the treaty but also to
relations between the host State and the investor.” According to the Claimant, the BIT
10
Counter-Memorial, para. 851, pp.243-245.
11
Reply, pp. 193-194.
12
Memorial, p. 149.
18
requires “the Argentine Republic to afford U.S. investors like Azurix treatment no less
favorable than that required by international law, both with respect to investment
generally, and in particular with respect to expropriations or measures tantamount to
expropriation of an investment.”
60. The Claimant also relies on the statement of the Annulment Committee in
Vivendi II on the law applicable to the determination of whether a breach of the BIT has
occurred, “In such a case, the inquiry which the ICSID tribunal is required to undertake
is one governed by the ICSID Convention, by the BIT and by applicable international
law. Such an inquiry is neither in principle determined, nor precluded, by any issue of
municipal law, including any municipal law agreement of the parties.”13
61. The Claimant adds that international law also applies under the second
sentence of Article 42(1) of the Convention. The Claimant relies here again on the
authority of Professor Weil,
“no matter how domestic and international law are combined, under the second
sentence of Article 42(1), international law always gains the upper hand and
ultimately prevails. It prevails indirectly through the application of domestic law
where the latter is deemed consistent with international law or incorporates it. It
prevails directly where domestic law is deemed deficient or contrary to
international law. Thus, under the second sentence of Article 42(1), international
law has the last word in all circumstances: international law is fully applicable and
to classify its role as ‘only’ ‘supplemental and corrective’ seems a distinction
without a difference.” 14
62. The Respondent draws a different conclusion from the fact that the parties
have not agreed on the applicable law. In such a case, the Tribunal shall apply “the law
of the Contracting State party to the dispute, including its rules on the conflicts of laws,
and such rules of international law as may be applicable.” (Article 42(1) of the
Convention). In accordance with this article, the dispute is basically governed by
Argentine law, which is also applicable to contractual matters and provincial
13
Ibid., p. 151.
14
Ibid., 155-156.
19
administrative law underlying the claim. However, the Respondent admits that the BIT is
“the point of reference for establishing the merits of the Argentine Republic’s obligations
in connection with Azurix’s investment. Non-contractual international law is relevant to
the extent that the Treaty refers to it, or to the extent relevant to interpretation of the
contract, or to the extent included in Argentine law.” 15
63. In its Reply, the Claimant concurs in that the BIT is the point of reference
to judge the merits and reaffirms that the BIT is the lex specialis between the parties.
The Claimant is unsure about the meaning of “non-contractual international law” and
affirms that all relevant international law may be applicable. The Claimant adds that
customary international law provides a floor or minimum standard of treatment for
foreign investment while the terms of the BIT may provide a higher standard.16
64. In its Rejoinder, the Respondent reaffirms its considerations in the
Counter-Memorial whereby, pursuant to Article 42 of the Convention, “the dispute is
basically governed by Argentine law which is also applicable to contractual matters and
by the provincial administrative law underlying Azurix’s claim.”17
2. Considerations of the Tribunal
65. The Tribunal notes first the agreement of the parties with the statement
that the BIT is the point of reference for judging the merits of Azurix’s claim. The
Tribunal further notes that, according to the Argentine Constitution, the Constitution and
treaties entered into with other States are the supreme law of the nation, and treaties
have primacy over domestic laws.18
66. Article 42(1) has been the subject of controversy on the respective roles of
municipal law and international law. It is clear from the second sentence of Article 42(1)
that both legal orders have a role to play, which role will depend on the nature of the
dispute and may vary depending on which element of the dispute is considered. The
Annulment Committee in Wena v. Egypt considered that “The law of the host State can
indeed be applied in conjunction with international law if this is justified. So too
15
Counter-Memorial, p. 47.
16
Reply, paras. 18-20.
17
Rejoinder, para. 21.
18
Section 31 and Section 75(22).
20
international law can be applied by itself if the appropriate rule is found in this other
ambit.”19
67. Azurix’s claim has been advanced under the BIT and, as stated by the
Annulment Committee in Vivendi II, the Tribunal’s inquiry is governed by the ICSID
Convention, by the BIT and by applicable international law. While the Tribunal’s inquiry
will be guided by this statement, this does not mean that the law of Argentina should be
disregarded. On the contrary, the law of Argentina should be helpful in the carrying out
of the Tribunal’s inquiry into the alleged breaches of the Concession Agreement to
which Argentina’s law applies, but it is only an element of the inquiry because of the
treaty nature of the claims under consideration.
68. Before the Tribunal considers the meaning of each of the standards
allegedly breached by the Respondent, and because this discussion is closely related to
the conflicting views of the parties on the facts of the dispute and their implications, the
Tribunal will now consider at length the facts and then each of the standards of
treatment of the BIT supposedly breached by the Respondent. In considering the
allegations of the parties under each of the factual situations, the Tribunal will assess to
which extent the established facts evidence actions on the part of the Province in the
exercise of its public authority or as a party to a contract. The Tribunal will follow the
order in which the facts have been presented in the memorials taking into account the
witness statements, the documentation submitted, expert opinions and the written and
oral arguments made by the parties.
VI. The Facts
1. The Takeover of the Concession
(a) Positions of the Parties
69. The Claimant has alleged that on the day of the transfer of the
Concession, July 1, 1999, no representatives of the Province or AGOSBA were present
to ensure an orderly and safe transfer. According to the Claimant, critical documents
were burnt in the facility located at the Plaza San Martín, and in nearly all branches
19
Wena Hotels Limited v. Arab Republic of Egypt, (ICSID Case No. ARB/98/4). Ad hoc Committee
Decision on Application for Annulment, dated February 5, 2002, 41 ILM (2002) p. 941.
21
tools and equipment to operate the Concession were missing. The Claimant alleges
also to have found certain anomalies in the customer database, – i.e. the archives of
large account customers were missing and so were the methodology for calculating
VAT amounts, interest calculation, whether or not a property was a vacant lot, the due
date of installments, etc. According to the Claimant, ABA communicated the specific
deficiencies of the database to the MOSP and ORAB in October 1999 after it received
an inadequate response from AGOSBA, and did not receive an “effective response”
from either.20
70. The Respondent has pointed out that Claimant alleged no difficulties at
the takeover of the Concession in the request for arbitration, in the grounds for the
termination of the Concession Agreement adduced by the Claimant or in the
discussions on the Memorandum of Understanding (MOU). According to the
Respondent, the execution of the Concession Agreement took place in the presence of
all the relevant provincial authorities, the Concession area is very large and it was not
possible for officials to be present physically at all locations, and the Bidding Conditions
provided a remedy in Article15.1.3 for such a situation. ABA never notified the Province
of any conflict or negligence by the Province in connection with the takeover.
71. The Respondent affirms that all necessary information was made
available to the bidders as part of the privatization related documentation and drawings
and maps were made available to ABA on July 2, 1999 and that, in accordance with
Section 2.4 of the Terms of Reference, Azurix acknowledged full access to all
information and waived any claim to insufficient or non-delivery of information. The
Respondent also points out that no claim was ever made in connection with defective
equipment or tools and considers that the allegations of the Claimant in respect of the
database are inadmissible. The Respondent refers in this respect to a communication
of ABA to AGOSBA in terms that show deference and gratitude rather than offense for
lack of cooperation. According to the Respondent, the database may have contained
20
Memorial, pp. 25-29.
22
errors and defects but they were known to all bidders. The Respondent concludes by
affirming that the takeover took place in a “context of mutual cooperation.”21
72. In its Reply, the Claimant alleges that the Respondent relies on
formalisms. It disputes the meaning given by the Respondent to Article 15.1.1, since
this section could only be invoked if the ‘legal’ transfer was not made. Equally, the
Claimant considers misplaced the reference to Section 2.4, since this Section presumes
good faith in the Province’s discharge of its duties and cannot be invoked when
insufficient information was not received because of obstruction and sabotage by
provincial employees.22
The Claimant contests the affirmation that no complaints were
ever made. In fact, numerous complaints were filed with the Privatization Commission,
the ORAB, the Provincial Governor and Argentine federal officials.23
73. The Claimant admits in its Reply that 12,700 maps were received on
July 2, 1999, but that they were in total disarray and ABA had to engage the services of
Halcrow to digitalize and organize the documentation. The maps were old, outdated and
failed to describe the current state of the Concession. In contrast, ABA’s employees
were approached by former AGOSBA staff to offer them digitalized updated maps of the
Concession, that, according to them, could substantially reduce the number of network
expansions required under the Concession Agreement.24
74. The Respondent in the Rejoinder reaffirms its understanding of Article
15.1.3 of the Bidding Conditions and disputes that it only applies to the “legal” transfer.
The takeover was a defined term in the Concession Agreement: “The act whereby the
Concessionaire assumes the provision of service according to Chapter 15.”25
The
Respondent confirms that all documentation, including blueprints, maps and the users’
database, was provided to the Concessionaire. ABA had the obligation under the
Concession Agreement to digitalize the maps, and, if the Concessionaire employed
Halcrow for this purpose, it was to fulfill an obligation not because the Province did not
21
Counter-Memorial, paras. 167-194.
22
Reply, paras. 76-77.
23
Ibid., para. 68.
24
Ibid., paras. 70-72.
25
Rejoinder, paras. 148-152.
23
comply with providing the pertinent information.26
The Respondent finds that none of
the evidence provided by the Claimant shows that ABA voiced any complaints during
the six-month period following the takeover. ABA did not even mention it at the time of
submitting its First Five-Year Plan proposal.27
75. The Respondent concludes by alleging that the evidence shows that the
conflict identified as “takeover” was created by Azurix for these proceedings and that
ABA and Azurix raised concerns about facts related to the takeover before provincial
and federal authorities when their officers were warned about possible international
arbitration proceedings.28
(b) Considerations of the Tribunal
76. The Tribunal considers that the Claimant has failed to prove that the
irregularities that may have occurred had the serious consequences that the Claimant
has alleged and that can be attributable to the Province. The item with most serious
implications would seem to be the destruction and removal of documentation, in
particular of Concession’s maps. As admitted in the Reply, these maps were supplied
by AGOSBA to ABA and ABA had the obligation to digitalize them. It would appear that
the maps that the former employees had digitalized were more current than those
furnished to ABA by the Province but no evidence has been furnished to the Tribunal
showing that the alleged up to date maps offered by former employees of AGOSBA had
been updated while in the service of AGOSBA and removed before the handover of the
Concession, or that they were ever in the possession or control of the Province.
2. Measures related to the tariff regime
77. The measures under this heading include the elimination of zoning
coefficients, the valuation applicable to non-metered customers whose property had
undergone construction changes, the so-called Valuations 2000, and the RPI. The
Tribunal will consider them in that order.
26
Ibid., para. 170.
27
Ibid., para. 185.
28
Ibid., para. 186.
24
(a) Zoning Coefficients
(i) Positions of the parties
78. On April 9, 1999, the Privatization Commission issued Information
Communiqué No.12 on zoning coefficients. This communiqué attached a list of
coefficients that “will apply for the correction of fiscal valuation of property and allow for
determining the billing ranges as per Sanitary Rates in each district to which AGOSBA
provides services according to provisions of Act 10.474 Section 7”. The communiqué
added: “Please note that the tariff scheme that shall apply to the Concession shall be
the one contained in Annex Ñ, which does not contemplate any zoning coefficients.”
79. The Privatization Commission was asked the following question on
Communiqué No. 12:
“Question No. 160: Annex Ñ Concession Contract. The information communiqué
No. 12 leaves evidence that the tariff system, which will rule the concession, will
be the one included in Annex Ñ, which does not contemplate zoning coefficients.
Is it correct to assume that the new billing could surpass the one determined in
the last billing previous to the taking over due to the fact that it was affected by
such adjustment?”
80. On April 23, 1999, the Privatization Commission replied:
“It is clarified that as regards the tariff system, it is governed by what is
established in Annex Ñ of the Concession Agreement and the tariffs set not only
for metered system but also for the non-metered system in Section 4 of the
aforesaid Annex should be especially taken into account.”
81. The Claimant concludes from this exchange that it was reaffirmed that
Annex Ñ would govern the application of the non-metered tariff regime and that water
bills would be increased for those persons who previously benefited from zoning
coefficients.29
82. According to Circular 59(A) of June 25, 1999, AGOSBA issued the first
billing cycle after the transfer of the Concession so that the new Concessionaire would
29
Memorial, p. 33.
25
have sufficient time to prepare. When ABA sent the bills for its first billing cycle (the
second billing cycle after the transfer) without applying the zoning coefficients,
consumers reacted badly to the resulting price increase. This event happened during
the presidential campaign in which the governor of the Province, Mr. Duhalde, was
running for president of the country.
83. On August 4, 1999, the ORAB issued Resolution 1/99. According to this
resolution, ABA was precluded from billing amounts in excess of those amounts billed
by AGOSBA for non-metered service prior to the granting of the Concession, and it
ordered ABA to credit those amounts that exceeded AGOSBA’s final billing for nonmetered
service during the month of August. ORAB based Resolution 1/99 on Article
4a-1 of Title II of Annex Ñ which states: “The tariff that results due to the application of
the scale shall not exceed the one determined by the final billing prior to the Taking of
Possession, for the same real estate, i.e., provided no building developments have
been recorded.”
84. ABA appealed administratively Resolution 1/99. ABA argued that
Resolution 1/99 equated the terms tariff and bill, that a bill increase is not necessarily a
tariff increase, that it did not change the tariff; and that it had simply eliminated the zone
coefficient and, while the bills were higher, the tariff remain unchanged. The ORAB
rejected the appeal by Resolution 2/00 of January 19/00 and dismissed ABA’s
interpretation of Annex Ñ as inconsistent with the regulatory framework promulgated by
the Law.
85. The Claimant alleges that the action taken by the ORAB was politically
motivated under pressure of the Government of the Province which was concerned that
higher water bills would damage the chances of Mr. Duhalde in the presidential race.
According to the Claimant, the press reported statements by the Minister of Public
Works (MOSP) to the effect that the bills issued by ABA were incorrect and that
consumers should not pay them until the issue was clarified (testimony of Mr. Castillo
quoted in the Memorial p. 33). The Claimant further alleges that the Minister of MOSP
26
“wanted to ease and postpone the solution in any way” till after the presidential
election.30
86. The Claimant maintains that the action taken by ABA was correct and
permitted under the Concession Agreement. The Claimant bases its position on the
interpretation provided by Circular 27(A) and on the different meanings of the terms bill
and tariff. Tariff is “a public document that includes a description of the company
services, rates and charges, as well as the governing rules, regulation and practice in
relation to those services”.31
It is inappropriate to use tariff as a synonym of rates or
prices, “the tariff is nothing else that a list of prices or rates”.32
According to the
Claimant, the ORAB contravened the Law by not providing a well-founded decision in
dismissing the appeal of ABA as required by Chapter III, article 13-II of the Law.
87. The Respondent argues that the position of the Claimant has no basis on
the Contract or on the Communiqué or the Circular. The Respondent first recalls that
the non-metered system was a temporary system that should have been replaced 100%
by a metered system by year five of the Concession, and that the Communiqué is not
part of the contractual documentation of the Concession. In rejecting the understanding
by the Claimant of the Communiqué and the Circular, the Respondent explains that,
according to article 4 of Annex Ñ, the Concessionaire needed to follow two criteria for
billing purposes: first, the bill should be the result of multiplying the presumed
consumption by the price per cubic meter established on the basis of the valuation of
the building concerned, and second, the resulting bill should not exceed that of the last
bill prior to the takeover of the Concession. Thus, if the bill resulting from applying the
values in the table included in article 4 exceeded the bill before the takeover, then the
consumer should be charged only what had been charged then. The exceptions were
only for new customers that, by definition, would not have received a bill prior to the
Concession takeover, and in the case of construction variations which would affect the
fiscal valuation of the building.
30
Testimony of Mr. Guaragna quoted in the Memorial, p. 34.
31
L. Goodman, The Process of Ratemaking, Virginia: Public Utilities Reports, Inc. (1999) p. 45 quoted
in the Memorial, p. 37.
32
Villegas Basavilbaso, Derecho Administrativo, vol. 3, p. 178, quoted by M. Marienhoff in Tratado de
Derecho Administrativo, 1981, vol. II p. 133 (Exhibit 33 to the Memorial).
27
88. The Respondent expresses its inability to understand how the Claimant
can rely on the distinction between tariffs and rates to justify its position. The
Respondent agrees with the definition of tariffs and rates provided by the Claimant and
affirms that the Province never maintained that these concepts were the same or were
used indistinctly.33
The Respondent cannot follow how a bill for a building for a nonmetered
service may be increased without at the same time increasing the tariffs.34
89. The Respondent considers that it was always clear that Annex Ñ did not
contemplate zoning coefficients and the clarification in Communiqué No.12 would have
been unnecessary. This does not mean that bills for the first month of the Concession
could be increased; the function of article 4 (a-1) was to avoid this effect.35
Equally
irrelevant, for purposes of the Claimant’s interpretation, is Circular 27(A). This circular
replied to the question by simply referring to the provisions of Annex Ñ, in particular
what is provided in article 4.36
According to the Respondent, once the appeal of
Resolution 1/99 was rejected, the decision of the ORAB became administratively firm
and unassailable under the administrative law of the Province.37
(ii) Considerations of the Tribunal
90. Both parties agree that zoning coefficients are not included in Annex Ñ.
They also agree on the meaning of the terms tariff, bills and rates. Communiqué No.12
was issued by the Privatization Commission at its own initiative, so it may have
considered it necessary to point out that Annex Ñ did not include zoning coefficients.
When applied to a bill, coefficients had the effect of reducing it. Hence the follow up
question to the Privatization Commission - question No. 160 - specifically asking
whether “Is it correct to assume that the new billing could surpass the one determined in
the last billing previous to the taking over due to the fact that it was affected by such
adjustment?” The Commission replied – item No. 20 of Circular 27(A) - by referring
generally to the tariff regime in Annex Ñ and stating that “the tariffs set not only for the
33
Counter-Memorial, para. 277.
34
Ibid., para. 280.
35
Ibid., para. 293.
36
Ibid., para 297-298.
37
Ibid., paras. 301-303.
28
metered system but also for the non-metered system in Section 4 of the aforesaid
Annex should be especially taken into account”.
91. This statement evaded the answer to the question asked and left ample
room for misunderstanding. The interpretation of paragraph 4(a) by the Claimant is
based on the difference between tariffs and bills which is reflected in the terminology of
the Concession Agreement. In the key subparagraph of article 4, we read: “the resulting
tariff from the application of said scale shall not exceed that determined in the last
billing…” The paragraph clearly refers to tariffs and billing as two different matters, what
should not be exceeded is the tariff applied in the last billing, not the billing itself. This
being the case, the reading by the Claimant of the Concession Agreement and of the
information provided by the Privatization Commission would seem reasonable. Indeed,
if there is a subsidy resulting from the application of a zoning coefficient and such
subsidy ceases to be applicable, the bill will necessarily be higher without any increase
in the underlying tariff. To interpret the Contract otherwise, it is to admit that the
Information Communiqué No. 12 was openly misleading and Circular 27(a), at best,
evasive.
92. To conclude, the ORAB provided an interpretation of the Concession
Agreement not in accordance with the concepts of tariff, rates and bills underlying it and
with the information provided the bidders at the time they prepared the tenders. The
decision of ORAB seems to reflect a concern with the political consequences of the
elimination of the coefficients rather than with keeping to the terms of the Concession
Agreement.
(b) Construction Variations: Resolution 7/00
(i) Factual background
93. The Concession Agreement permitted the Concessionaire to re-categorize
non-metered customers whose fiscal valuation had changed because of construction
improvements. On February 17, 1999, March 8, 1999 and March 24, 1999, the Claimant
requested the Privatization Commission for the updated records of property valuations
of the Dirección Provincial de Catastro Territorial (DPCT). On May 5, 1999, the
Commission issued Circular 44(A) stating that the records had not been updated since
29
1994 except for individual updates “which occurred on a daily basis by customers
visiting local branch offices.”38
Allegedly the Claimant continued to press for the
records39
and on June 23, 1999, the Commission issued Circular 58(A) with a CD
containing the valuations of the DPCT.
94. Based on this information, ABA identified about 60,000 non-metered
customers whose properties reflected a valuation increase. In January 2000, ABA
informed the ORAB that it would re-categorize these customers into a higher tariff scale.
On February 8, 2000, the ORAB issued Resolution 7/00 ordering ABA to abstain from
re-categorizing these customers until the ORAB would have verified the valuation
changes with DPTC. After three weeks, ABA appealed Resolution 7/00.
95. On March 17, 2000, the ORAB, by Resolution 15/00, authorized
retroactive increases for construction variations of lands that were paying for the water
service as uncultivated land and appeared as built lots in the CD attached to Circular
58(A). In these cases, it was evident that the different valuation was due to construction.
96. On June 26, 2000, the ORAB issued Resolution 54/00 rejecting the appeal
of ABA. Resolution 54/00 recalled that, in the presentation made by ABA, it was not
evident that the changes in fiscal valuation were due to construction variations and,
therefore, the ORAB considered it necessary to conduct a study to determine the
rationale of the variations. Resolution 54/00 affirmed that Resolution 7/00 only
requested the Concessionaire to abstain from re-categorizing the properties and did not
alter the procedure established in the Concession Agreement for the application of the
valuations furnished by the Cadastre.40
97. The study conducted by the ORAB revealed that 76% of the variations
presented by the Concessionaire were due to construction on the properties
concerned.41
On November 22, 2001, after ABA had terminated the Concession, the
ORAB issued Resolution 62/01 authorizing the re-categorization of those properties
subject to the approval of a business plan to mitigate the impact on users. ABA
38
Memorial, p. 42.
39
Idem.
40
Counter-Memorial, paras. 321-325.
41
Ibid., para. 328.
30
presented the business plan on December 11, 2001. The ORAB requested further
information on the plan on December 28, 2001. ABA responded on January 29, 2002.
According to the Respondent, the relationship of ABA with the Province and the ORAB
and the delivery of the service had deteriorated to such an extent that the ORAB
requested the MOSP Undersecretary to include this matter among those to discuss
between the Province and ABA.42
Thereafter, the MOSP Undersecretary advised ABA
by letter not to proceed with the re-categorization. According to Azurix and based on
press reports, the re-categorization took place once the Concession was transferred to
Aguas Bonaerenses.
98. The facts as described have not been contested by the parties.
(ii) Considerations of the Tribunal
99. Resolution 7/00 did not refer to the reasons why the ORAB considered it
necessary to verify the variations with DPCT. The Resolution ordered ABA to refrain
from re-categorization until the ORAB had determined whether the variations were
actually construction variations. The ORAB acted on the basis of an internal report of
February 8, 2003 that alerted it to the fact that the CD attached to Circular 58(A) did not
distinguish between variations in fiscal valuations for construction or other reasons. This
simple factual information was not referred to in Resolution 7/00.
100. Construction variations had been the subject of several questions during
the bidding process so a clear understanding of what the term meant seems to have
been important from the bidders’ point of view. According to Annex Ñ, the real estate
fiscal valuations to be applied were those furnished by the DPTC. When the information
was furnished to the bidders with Circular 58(A), this Circular did not refer to variations
in fiscal value. When ABA identified the variations, it had no way to know whether they
were caused by construction activity or other reasons. When the ORAB became aware
of the issue, it would have seemed appropriate to base its reasoning on this fact, rather
than to simply refer to the need to verify the valuation changes, which was understood
as a delay tactic by the Concessionaire. The reason for the verification became only
apparent when Resolution 15/00 was issued and the appeal was rejected.
42
Ibid., para. 332.
31
101. The ORAB proceeded to identify the previously uncultivated lots with
relative speed as compared with the time that it took to verify the other valuation
changes. Resolution 15/00 was issued within 5 weeks of Resolution 7/00. On the other
hand, Resolution 62/01 was issued more than 21 months after Resolution 7/00. Even if
the tariff increases could be applied retroactively and the number of variations to be
verified was large, this seems to have been an unduly protracted process. The delay
also meant that the application of the new level of tariff would result in larger amounts to
be paid retroactively with the consequent negative perception from the consumers’ point
of view. When the ORAB authorized the re-categorization, a plan to mitigate the impact
was required from ABA and, even when such plan had been approved by the provincial
authorities, the re-categorization by ABA was not authorized by MOSP.
102. To conclude, the bidders were not provided with accurate information on
the variations, and the Province seems to have engaged in a protracted dilatory
process; first in identifying the construction variations and then in delaying the recategorization.
As in the case of the zone coefficients, the concern was on the political
effect rather than with applying the terms of the Concession Agreement.
(c) Valuations 2000
103. The Concession Agreement specified that the 1958 valuations
methodology or its equivalent be used to determine the appropriate tariff schedules for
non-metered customers. The 1958 valuation was discontinued by the DPCT in early
2000 by law 12.397 of the Province.
(i) Positions of the Parties
104. The Claimant argues that the change in property valuation methodology
caused a fundamental problem for ABA as it became impossible to apply accurately
Valuations 2000 to the existing non-metered tariff scale.43
The new methodology
prevented the application of the tariff regime to new real estate created and to updated
valuations for existing real estate that had experienced construction variances.44
Since
the Province did not provide an equivalent methodology, as required by the Concession
43
Memorial, p. 50.
44
Ibid. p. 51.
32
Agreement, ABA proceeded to prepare an equivalent methodology and presented it to
the ORAB on November 22, 2000. According to the Claimant, the ORAB avoided
responding on the equivalent methodology proposal notwithstanding persistent
communications of ABA, and no determination was ever made by the ORAB.45
105. The Respondent argues that it was not the role of ABA to prepare
equivalent valuations and that the Concession Agreement was clear that the equivalent
valuations had to be determined by the DPCT. Furthermore, the change to Valuations
2000 would have a minimum impact on the Concessionaire since it would only affect
construction variations in existing properties and new properties in the Concession area.
In any case, the Concession Agreement provided the way to calculate the applicable
tariffs when there was inadequate real estate valuation. According to the Respondent,
the methodology proposed by ABA was a disguised effort to increase tariffs, a fact that
is denied by the Claimant.
106. The Respondent points out that ABA in fact made a proposal to valuate ex
officio properties which had no valuation on February 29, 2000. The DPCT informed
ABA that it could not decide on this matter because the system in effect did not permit
the establishment of a valuation mechanism such as proposed by ABA. However, the
ORAB, by Resolution 45/00 of June 13, 2000, permitted ABA and AGBA to carry out ex
officio valuations as proposed by ABA.46
(ii) Considerations by the Tribunal
107. The Province proceeded to change the valuation system in the first
quarter of 2000, shortly after the Concession was awarded. The bidders were not
informed of the upcoming change. When the change occurred no alternative
methodology was provided. The complaint of Azurix seems to be more on the lack of a
meaningful response by the Province than anything else. Even the arrangement
proposed by ABA in February 2000 was put forward at its own initiative, although it was
the Province’s responsibility to provide alternative methodologies as explained by the
Respondent. Irrespective of the merits of ABA’s proposal and whether it meant a raise
45
Reply, paras. 173-190.
46
Counter-Memorial, paras. 345-371.
33
on applicable tariffs to the properties affected by the valuations, this tariff conflict could
have been avoided by simply instructing the Concessionaire on what to do at the time
the new law was issued and as part of its implementation. It seems that the
administration of the Province was not very pro-active in search of solutions to a
problem that the Province itself had created.
(d) Retail Price Index (RPI) issue
(i) Background
108. The Concession Agreement provides for extraordinary revisions of the
tariffs on account of, inter alia, variations in cost indices. According to Article 12.3.5.1,
the concept of such revisions is as follows: “These revisions shall be carried out where
the Concessionaire or the Regulatory Entity alleges an increment or fall in the
Concession cost indexes when its absolute value exceeds three per cent (3%), in
accordance with the provisions set out in clause 12.3.5.2.” Article 12.3.5.2 sets forth the
formula for the calculation of the percentage cost index variation. For this purpose, the
formula uses as a basis 50% of the change in the Consumer Price Index of the United
States and 50% of the change in the Producer Price Index, Industrial Commodities, also
of the United States.
109. ABA requested the commencement of the procedures for the tariff review
foreseen in Article 12.3.5.3 of the Concession Agreement on December 20, 2000 based
on a 6.659% increase in the RPI. On January 3, 2001, the ORAB regulatory department
noted in a letter to the Board of the ORAB that ABA had met the formal regulatory
requirements of said article and was authorized to seek an RPI review.47
On January
30, 2001, Mr. Pievani, the head of the economic regulation area of the ORAB, sent a
further report to the ORAB president confirming the 6.659% RPI increase but
considering the request inadmissible based on consequences related to the provision of
the service and to the users, in particular, he referred to the Bahía Blanca incident,
which is considered later in this award. On February 8, 2001, the President of the ORAB
notified the MOSP Undersecretary of ABA’s request and recommended the denial of the
tariff review. On February 27, 2001, the MOSP instructed the ORAB to solicit from ABA
47
Exhibit 70 to the Memorial.
34
a detailed cost study justifying the impact of the variance of prices on ABA’s cost
structure, to conduct its own cost study and to condition the review and ultimate
submission of the request to the Executive Branch on ABA’s presentation of the cost
study. On March 9, 2001, the ORAB notified ABA of the need to present a cost study.
110. ABA responded to the cost study request in a note to the ORAB, dated
March 18, 2001, requesting ORAB to clarify the procedural or contractual framework on
which ORAB based its request.48
The ORAB reiterated the request for a cost study
within five days on April 5, 2001. On April 16, 2001, ABA responded by explaining “the
economic and financial principles behind the RPI adjustment as an integral element of
price cap regulation and price controls, and the importance of the regulator’s objectivity
to insure the transparency of the regulatory process”.49
On May 14, 2001, ABA sent the
ORAB a more comprehensive analysis of the economic and financial principles
underlying inflationary adjustments and a discussion of the automatic and objective
nature of the inflationary review process.50
111. On May 30, 2001, the ORAB sent a letter to the MOSP Undersecretary
informing him of ABA’s concerns with the handling of the RPI request by the Province
and requesting the advice of the provincial Organismos de Asesoramiento y Control
(Asesoría General de Gobierno, Contaduría General and Fiscalía de Estado). After
these organs had expressed their opinion, the ORAB issued, on October 24, 2001(after
ABA had terminated the Concession Agreement) Resolution 53/01 whereby it
summoned ABA “to furnish the ORAB with a study on costs that warrant the incidence
of such indexes on tariffs in order to verify the admissibility of an extraordinary tariff
revision” within ten days under the penalty of the tariff revision request be disallowed.
Since ABA did not provide the cost study requested, the ORAB issued Resolution 23/02
on March 26, 2002 (after the Province had taken over the Concession) dismissing the
request.
48
Memorial, p. 61.
49
Ibid., p. 62.
50
Ibid., p. 63.
35
(ii) Positions of the Parties
112. The controversy on the RPI is related to the extent that the review had an
automatic character under the Concession Agreement. The Claimant argues that such
review was automatic once the correctness of the elements underlying the percentage
calculation had been verified, that this was an essential element of price-cap regulation
and that there was no need to present a cost study. Such study was required only for
the extraordinary tariff review foreseen elsewhere in the Concession Agreement. The
Claimant notes that it was notified of the need of a cost study nearly three months after
it filed its RPI request when in accordance to the contract the review of ORAB was to be
completed within 30 days, and that the cost study was mandated by the MOSP
Undersecretary but it did not figure in the ORAB’s early evaluation of the review, nor in
the separate report of Mr. Pievani. The Claimant alleges that the protracted process
outlined by the Regulatory Group in the ORAB and the addition of a cost study were
politically motivated and that there is no basis for them in the Concession Agreement.
Furthermore, the public hearings do not have the role in the case of the RPI review
attributed to them by the Respondent. Their objective is to provide transparency in the
process of tariff reviews. According to the Claimant, the last paragraph of Article
12.3.5.3 proves that, once the revision is considered pertinent, the percentage of
variation in the RPI had to be applied to the tariffs established in US dollars.
113. The Respondent has alleged that the procedure for the extraordinary
tariffs reviews was common to all such reviews, and that there was no automatic raise
of tariffs simply by the fact that a review had been triggered by a certain level of
inflation. The steps required to be undertaken for such review were followed by the
ORAB without the cooperation due by ABA to the regulatory organ of the Province and
without any political motivation on the part of the Province which at all times followed
the provisions of the Law and the Concession Agreement. The function of the public
hearing goes beyond that attributed to it by the Claimant and it is the same for all tariff
reviews. The ultimate decision to approve a tariff review request was the function of the
provincial Governor.
36
(iii) Considerations of the Tribunal
114. As in the other controversies under the generic heading of tariff conflicts,
the issues are based to a large extent on the interpretation of the Concession
Agreement, in particular, Article 12. This Article has the following structure: General
Principles (12.3.1), Procedure (12.3.2), Automatically Unacceptable Assumptions for
Increases in the Tariffs and Prices (12.3.3), Ordinary Five-Year Reviews (12.3.4),
Extraordinary Reviews based on Variations in the Indices of Costs (12.3.5), and
General Extraordinary Reviews (12.3.6).
115. One of the general principles applicable to all revisions (“modificaciones”)
is that revisions of the tariffs and prices can compensate only the costs arising from the
delivery of the Service provided that there is compliance with the terms of the
Agreement. The procedure to be followed is common for all revisions and includes,
inter alia, the requirements that the revisions be based “on prior analyses and technical,
economic, financial and legal reports, and on proof of the facts and actions that justify
the revision”, and that there be an evaluation of the consequences that may result from
the revision in respect of the delivery of the service and of the users. In addition, the
proposed revisions shall be debated in a public hearing before the executive approves
or rejects proposed revisions.
116. In the specific context of the revisions for reason of variations in the cost
indices, Article 12.3.5.3 entitled “Verification of Revision Admissibility” provides that,
once it is established that a variation is above the percentage set forth in Article
12.3.5.1, the procedure moves on to “the verification stage” where the ORAB is required
to verify the existence of the elements that justify the revision in accordance with the
general principles of Article 12.3.1 and the provisions of Article 12.3.5. Once the
verification is completed, the ORAB shall determine whether the revision is justified and
the modification to be introduced to the existing tariffs and prices. If the ORAB finds the
revision justified, then a public hearing on the proposed revision should take place. The
conclusions of the ORAB and the minutes of the hearing are sent to the executive which
decides whether to agree to the revision or reject it.
37
117. It is evident from a reading of the contractual provisions that the
Concession Agreement applies the same procedure to all reviews, therefore, a review
for variations in cost indices is not more or less automatic than an ordinary five-year
review. The elements that trigger the review are objective and whether a review should
or should not take place could be seen as automatic once the correctness of the
calculations have been verified, but this is the first step in the process. The ORAB then
had to decide on the appropriateness of any revisions taking into account the general
principles in Article 12.3.1, one of which is that modifications may only compensate for
actual costs in the delivery of the service, and the consequences that the modification
may have for service delivery and the users. The fact that the revision would be the
subject of a public hearing and that the executive may or may not approve it show that a
cost indices variation revision was not assured, under the terms of the Concession
Agreement, to produce the result of simply transferring the variation in the costs indices
to the tariffs and prices.
118. The parties have also argued whether the cost study requested from ABA
by the ORAB was appropriate. The Claimant has placed special emphasis on the
political motivation of the request since it was not in the original assessment of the
ORAB. Given that under the terms of the Concession Agreement the ORAB was
obliged to evaluate whether the modification based on variation in the cost indices was
justified in terms of the general principle that modifications should reflect the costs of the
service, the request would seem to be legitimate.
119. In interpreting the Concession Agreement and as affirmed by the parties
and required by the Agreement itself, it is necessary to proceed with a harmonious
reading of all the relevant provisions. While the last paragraph of Article 12 would seem
to indicate that once the review is considered justified then the price index increase
shall be applied to the tariffs retroactively as calculated, this provision cannot be read in
such a manner as to contradict the general principle established in Article 12.3.1. The
Tribunal is not convinced that the position taken by the Province would have changed
the economic equilibrium of the Concession, as Azurix has claimed, as long as the
principle to reflect actual cost variations due to inflation had been respected. In any
case, this point is speculative since the review was never completed.
38
3. The Works in Circular 31(A)
120. The Privatization Commission issued Circular 31(A) on April 23, 1999 on
the subject of works under execution. This circular lists works in progress for purposes
of Article 15.3.1 of the Concession Agreement and explains that, once the works would
have been completed, they would be transferred without charge to the Concessionaire.
Each work is listed with the location, a brief description, the amount budgeted and the
percentage of completion. It is disputed whether the works were ever completed. ABA
either refused to accept them because it considered them defective, or accepted them
provisionally, according to ABA, in order to prevent a collapse of the water supply
system. We will consider each of these works in the sequence presented by the
Claimant in its Memorial and the allegations made by the parties in their respect.
(a) Bahía Blanca: Algae Removal Works
121. The so-called “Algae removal works at the Paso de las Piedras Dam” in
Circular 31(A) consisted of the construction of a micro-filtering plant, refurbishment of
certain key aspects of the Patagonia WTP filters, the repair of the system that evenly
distributes the incoming water between the two filtration modules at the Patagonia WTP
(“the Equipartition system”), the modification of certain elements of the direct filtration
system at the Patagonia WTP (“Direct Filtration”), and the construction of a chlorine
dioxide dosing facility (“Chlorine Dioxide Dosing System”). The Province retained the
responsibility for the operation of the Reservoir and supplying raw water to the
Patagonia WTP.
(i) Positions of the Parties
122. In the Memorial, the Claimant alleges that the Algae Removal Works had
serious defects in their design and construction. The Claimant gives as examples that
the Micro-Filtration Plant as designed permitted raw untreated water to by-pass
microfiltration, the Direct Filtration system was only partially completed and the items
installed were never connected, the Equipartition System was only partially completed
and did not allow even distribution of water to the filter modules, the Patagonia Filters
were not completed, and the Chlorine Dioxide Dosing system was defective in its design
and construction and posed operational safety hazards.
39
123. On August 24, 1999, explains the Claimant, ABA provided the ORAB with
a list of necessary short-term corrective measures to be completed prior to ABA taking
possession of the Algae Removal Works, including that the water level at the Reservoir
was unusually low, the new Micro-Filtering Plant was overloaded, the sand filters at the
Patagonia WTP were old and overloaded, and the repairs to the Equipartition system
failed to evenly distribute water. ABA also proposed the creation of a technical
committee for the operation of the dam and reservoir to define contingency plans for
drought periods and determine minimum quality standards to be met by the raw water
supplied by the Province.51
124. The Claimant alleges that the failure to complete the Algae Removal
Works caused an extraordinary algae bloom in the reservoir on April 10-11, 2000
resulting in the water appearing cloudy and hazy and with earth-musty taste and odor.
According to the Claimant, the complaints of the consumers were picked up by the
press and politicians and it became a major media and political event. The Claimant
contends that none of the factors that caused the algae bloom were subject to ABA’s
control nor could the algae bloom have been foreseen based on the information
supplied by the Province. This notwithstanding, observes the Claimant, provincial
officials issued statements that caused panic in the population and did not conform with
the analyses of the provincial Central Laboratory of the Ministry of Health which had
determined that, “although the Bahía Blanca network water is not drinkable from a
physical/chemical standpoint, no microbial contamination that could cause infectious
diseases was detected.”52
125. The Claimant points out that, as reported in the press, the Governor
invited the citizens not to pay the bills, and that the ORAB ordered ABA to discount the
invoices from April 12 until the ORAB deemed the drinking water to meet quality
standards. The Claimant alleges that the ORAB took this action bowing to political
pressure even if the president of the ORAB had indicated to the press that there were
no grounds for a penalty because the quality parameters were in accordance with the
51
Memorial, pp. 71-73.
52
Ibid., Exhibit 104.
40
standards defined in the bidding terms and conditions.53
On April 28, 2000, the ORAB,
by Resolution 24/00, prevented ABA from invoicing any amounts until the service was
normalized. The prohibition was lifted by Resolution 33/00, dated May 8, 2000. On May
18, 2000, at the request of MOSP, the Provincial Domestic Trade Bureau forbade ABA
from invoicing and collecting for services until water quality was deemed acceptable to
users.
126. The Claimant notes that this action was taken under the Consumer
Defense Act which applies to situations not covered by a specific regulatory framework,
and disputes the authority of the Provincial Domestic Trade Bureau to issue this
measure because the ORAB had exclusive jurisdiction on billing matters. The Claimant
also notes that the press reported that the governor was studying the means to remove
the ORAB officials responsible for the decision to allow ABA to receive payments when
the service was not in good condition and that a lawsuit was filed against these
officials.54
Under such pressure, ABA agreed with the ORAB to extend the service
discount from May 5 to May 31, 2000 but stating that it did not accept responsibility for
the water problems and reserved the right to seek reimbursement for its damages from
the Province. On June 2000, the ORAB issued Resolution 43/00 ordering a 100%
discount on invoices for services provided in Bahía Blanca and Punta Alta from April 12
through May 31, 2000.55
127. The Committee of Control for Privatized Public Services and Companies,
and the Consumer and User Defense Committee of the Provincial Legislature held
hearings on the algae incident. According to the Claimant, ABA, MOSP and the ORAB
were summoned to appear before said committees. MOSP and the ORAB arranged for
a separate meeting closed to the public. In that meeting, the MOSP Minister stated:
“We are aware that, in association with the ORAB, we have forced certain
decisions that are of a political nature, particularly by requesting the ORAB to
apply a resolution whereby the Concessionaire is to receive no payment for each
day in which water supply quality is not as agreed; by doing so, we breached the
53
Ibid., p. 82.
54
Ibid., Exhibit 127.
55
Ibid., p. 83.
41
concession agreement, and this was a political decision. We took a step further
beyond the general meaning of the agreement itself.”56
According to the Claimant, the MOSP Minister also recognized that the problems that
occurred had pld causes and the Mayor of Bahía Blanca attributed them to the lack of
investments for many years.57
128. In the Counter-Memorial, the Respondent recalls that, according to
Circular 31(A), 98% of the works had been completed. This percentage reflected the
fact that the Micro-Screening Plant of the Paso de las Piedras dam had been
refurbished and started up by June 23, 1998, and on December 9, 1998 eight additional
filters were released for use.58
The Respondent points out that Azurix was aware of the
condition of the works at the time it submitted the bid for the Concession and ABA had
taken over the operation of the service, including algae treatment.59
129. The Respondent explains that, under the Concession Agreement, the
Concessionaire was responsible for carrying out all tasks to guarantee efficient
provision to users, the protection of public health and the rational use of resources, and
it was specifically responsible for the quality of unfiltered water and the quality and
quantity of drinking water. The Respondent further notes that the Concessionaire was
also responsible for the quality of unfiltered and drinking water taken from the Paso de
las Piedras dam. The Respondent affirms, based on Article 1 of Exhibit O to the
Concession Agreement, that “even when the Province was in charge of the operation
and maintenance of the Dique Paso de las Piedras dam, the latter was explicitly
exempted from any responsibility regarding the ‘quality and quantity of water delivered’
to the Concessionaire.”60
130. The Respondent affirms that ABA infringed the biological parameters for
drinking water required in the Concession Agreement. The Respondent points out that
the audit report ordered by the ORAB stated that all water coming from superficial
sources is susceptible of being treated for human consumption and what varies is the
56
Ibid., p. 84, quote from the parliamentary record.
57
Ibid., p.85.
58
Counter-Memorial, paras. 605-606.
59
Ibid., para. 607 and ff.
60
Ibid., para. 624.
42
intensity of the required treatment. The same report considered that the Concessionaire
managed the crisis in an improvised and imprudent manner and the measures adopted
by ABA were not technically suitable to remedy the problem and, hence, the ORAB
imposed a fine for not non-compliance with its obligations under the Concession
Agreement.61
131. The Respondent further notes that a crisis in the drinking water supply is a
serious and alarming event for the community and, if the image of ABA deteriorated in
the eyes of the users, it was because of the negligent manner in which ABA addressed
the problem.62
132. In its Reply, Azurix alleges that the Province did not disclose to the
bidders information in its possession related to the reservoir situation and points out that
Argentina fails to recognize that the April 2000 algae bloom was an extraordinary
occurrence that ABA could not predict or avoid on the basis of the information or assets
under its management.63
133. Azurix contests Argentina’s assertion that since the beginning ABA was in
charge of algae treatment operations. Azurix recalls that the Algae Removal Works
were the exclusive responsibility of the Province, and the works that concerned the
Patagonia plant were never completed. Furthermore, ABA could not avoid operating this
plant in its existing condition because of its critical importance. Azurix also explains in
this context that it needed the ORAB’s prior permission for any operation to be carried
out in connection with the Algae Removal Works and to access the Micro Filtration Plant
facilities. The Claimant notes that this plant was never transferred to ABA and ABA was
involved in its operation during the algae crisis in order to take emergency measures.64
134. The Claimant disputes the interpretation of the Concession Agreement by
the Province and argues that Article 3.6.1 only applied to raw water sources under
ABA’s management and considers it nonsensical the extension of ABA’s obligation to
sources exclusively controlled and operated by the Province. In fact, according to the
61
Ibid., para. 643 and ff.
62
Ibid., paras. 650-651.
63
Reply, para. 318 and ff.
64
Ibid., para. 326 and ff.
43
Claimant, none of the action that could have prevented the algae incident was under
ABA’s control: the Province had exclusive control of the dam and reservoir, could
control agricultural run-off into the reservoir, fail to complete the Algae Removal Works
and lowered the water level of the reservoir favoring algae blooms.65
135. The Claimant explains that the fine imposed by the ORAB on account of
the algae incident was imposed after the service had been transferred to the Province
more than two years after the algae bloom event and four days before the deadline for
filing petitions in ABA’s bankruptcy proceedings. The Claimant also points out that the
fine was in excess of the amounts permitted under the Concession Agreement. Azurix
contests the grounds on which the fine was imposed. Azurix argues that the guidelines
values in Table IV of Annex C to the Concession Agreement are only reference values
in line with the World Health Organization (WHO)’s recommendations and that the
Respondent turns them in strict limits.66
136. The Claimant affirms that ABA took all measures required to remedy or
mitigate the effects of the situation caused by the Province and that at no time was
there any risk to public health, and observes that the Respondent relies exclusively on
the audit report prepared by the ORAB to argue that ABA was negligent in dealing with
the crisis. Azurix further observes that such report is not reliable given the lack of
independence of the ORAB from the Province’s political will.67
137. The Claimant contests the Respondent’s assertion that ABA voluntarily
gave a discount to customers and affirms that ABA was forced by the ORAB to apply
such discount to the water bills.68
Furthermore, it is unacceptable to Azurix that public
statements by officials with a view “to inciting fear, uncertainty and even violence
against ABA” be described by the Respondent as “the free exercise of a democratic
society’s rights.”69
138. In the Rejoinder, Argentina reiterates in substance its previous arguments,
mainly, that at the time of the bidding for the Concession the Algae Removal Works
65
Ibid., para. 335.
66
Ibid., para. 339 and ff.
67
Ibid., para. 344-345.
68
Ibid., paras. 346-347.
69
Ibid., para. 352.
44
were 98% completed, that Azurix and ABA were aware of the condition of the works and
submitted themselves to Section 2.4 of the Bidding Conditions,70
that Azurix inspected
the works before submitting its offer, that since the beginning of the Concession ABA
was in practice responsible for the operation of the Service and the treatment of the
algae, that the Concessionaire was responsible for the quantity and quality of raw water
from the Paso de las Piedras dam even if the operation and maintenance was under the
charge of the Province, that Table IV of Exhibit C to the Concession Agreement
required that the drinking water had no phytoplankton and zooplankton, and that failure
to meet these biological parameters meant that the ORAB was required to impose a
fine.71
139. The Respondent alleges that the community unrest was not due to
intervention of provincial officials, as claimed by Azurix, on the contrary, these officials
were responding to the population concern over the foul smelling and tasting water. The
Respondent argues that Azurix has admitted as much by recounting how the problem
with the water smell and taste had “gradually attracted the attention of politicians and
journalists and became an issue widely covered by the media.”72
(ii) Considerations of the Tribunal
140. The allegations of the parties relate to their understanding of the
Concession Agreement, the causes of the algae incident and the reaction of the
provincial authorities.
141. It is a matter of dispute between the parties whether the Concessionaire
was responsible for the quantity and quality of the water from a source not under its
management. The dispute relates to whether Article 3.6.1 of the Concession Agreement
applies to the raw water supplied from the Paso de las Piedras reservoir. The Tribunal
notes that this Article does not differentiate between sources of raw water and Annex O
specifically exempts the Province from responsibility from the quantity and quality of
water supplied from said reservoir.
70
This section provides, inter alia, that bidders by the fact of submitting a bid recognize that they had
sufficient access to information to prepare it correctly and that the bid was based exclusively on their
own investigation and evaluation.
71
Rejoinder, para. 630 and ff.
72
Ibid., para. 636 and ff. Quote from p. 79 of the Memorial.
45
142. It is also disputed between the parties whether the Concessionaire
breached the biological parameters set forth in Annex C to the Concession Agreement.
The Tribunal has difficulty with the Claimant’s understanding of the wording of Annex C
and the concordant provisions in the Concession Agreement. Article 3.6.2 is very clear
in requiring that the Concessionaire meet the parameters established in Annex C and in
specifying that in all cases the failure to meet the technical parameters shall be
considered a potential risk for the public health.
143. However, the Concession Agreement was based on certain factual
assumptions that did not turn out to be correct. It is not contested that the Algae
Removal Works were not completed notwithstanding that at the time of bidding for the
Concession they were represented to be 98% complete and expected to be completed
by April 1999, at least two months before the beginning of the Concession and a full
year before the extraordinary algae bloom occurred. The reservoir was kept by the
Province only 25% full to permit completion of the works. In turn the low water level
contributed to the extraordinary nature of the algae bloom. The works undertaken by the
Province had the objective to obtain treated water at the outlet of the Patagonia plant
with “levels of the chlorophyll photosynthetic pigment below 1mg/m3, irrespective of the
species or number of cells, pH, etc. present in the water.” This objective was not
achieved. The filters installed at the micro-filtering plant were inadequate for filtering
algae, a fact on which the ORAB and the consultants of Azurix agreed. The Bahía
Blanca Drinking Water Supply Monitoring Report prepared by the ORAB noted that it
had not found domestic or international precedents where these micro-filtering systems
were used for the primary elimination of this type of plankton organisms.73
Similarly, the
report prepared by the consulting firm JVP employed by ABA concluded that the direct
filtration system at Paso de las Piedras was not fit for the treatment of water because of
the high concentration of algae/chlorophyll reaching the Patagonia plant due to the
properties of the water from the reservoir and the removal capacity of the micro-screens
system.74
Since August 1999, ABA had repeatedly advised the ORAB, to no avail, of
the measures necessary for ABA to take possession of the Algae Removal Works. For
73
Halcrow Report, p. 32. Exhibit 90 to the Memorial.
74
Ibid., p.33.
46
instance, in a letter to the ORAB dated August 24, 1999 (less than two months into the
Concession and eight months before the April 2000 incidents) ABA alerted the ORAB
that there was an increase in “the algae problem” due to the unusual low level in the
reservoir.75
In the same vein, ECODYMA, the contractor engaged by AGOSBA to carry
out the Algae Removal Works, wrote to the General Administrator of Sanitary Works of
the Province on July 19, 1999 to bring to her attention that the quality of the water of the
reservoir did not meet the standards used as a base for its bid because of the high level
of turbidity of the water and the algae bloom in large number and variety.76
144. Given this factual situation, the reaction of the provincial authorities shows
a total disregard for their own contribution to the algae crisis and a readiness to blame
the Concessionaire for situations that were caused by years of disinvestment and to use
the incident politically, as admitted by the MOSP Minister in hearings held by
commissions of the provincial parliament on the algae incident. It equally shows the
willingness of high placed provincial officials, including the Governor, to interfere in the
operation of the Concession for political gain whether by forcing ABA not to bill the
customers or threatening the staff of the ORAB for lifting the billing interdiction. These
actions by the Province are clearly actions taken in use of its public authority and go
beyond the contractual rights as a party to the Concession Agreement. The Tribunal
understands that governments have to be vigilant and protect the public health of their
citizens but the statements and actions of the provincial authorities contributed to the
crisis rather than assisted in solving it.
(b) Moctezuma
(i) Positions of the Parties
145. As explained by the Claimant in its Memorial, the works as described in
Circular 31(A) included two elements: “Drilling Construction Works” and “Construction of
Aqueduct and Injection Pipelines”. These works were only 10% and 25% completed
according to Circular 31(A). The drilling component consisted of drilling 16 wells
capable of extracting 300 m³ per hour. Under the drilling contract, AGOSBA had the
75
Exhibit 94 to the Memorial.
76
Exhibit 95 to the Memorial.
47
right to reject the work performed if the water flow was lower than 50% of the required
capacity or the water did not meet sanitary requirements. The aqueduct was intended to
transport water from Moctezuma to the cistern in Carlos Casares for delivery to this
town and the town of Pehuajó. These works were to be completed in 18 months, by
June or early July 2000.
146. According to the Claimant, on March 14, 2000, AGOSBA informed the
ORAB that there would be a two-month delay and the works would be completed by
September 2000. The dateline was postponed further and the Claimant finds it
disconcerting that the ORAB, instead of pressing the Province to fulfill its obligations,
informed ABA that “Azurix [sic] cannot assert completion of works as the grounds of
non-compliance of the parameters for water quality in such localities.”77
The completion
occurred nearly 18 months after the original completion date and after ABA had
terminated the Concession. The Claimant explains that ABA was willing to accept the
works provisionally subject to a technical and functional evaluation and that the
evaluation performed on January 3, 2002 showed that the works were unsuitable for the
purpose and were not accepted by ABA. In particular, the wells could supply only a third
to half the agreed water flow.78
147. In the Counter-Memorial, Argentina describes a different situation. It
refers to the study submitted by ABA to the ORAB in May 2000 where it acknowledges
that the wells have been drilled and 13 km. of aqueduct completed. In the same study,
ABA recommended to cut the extraction of water by 50% to preserve the geological
reserves. The works were completed and ABA was notified on October 2, 2001. ABA
accepted the works provisionally on October 10 because it had terminated the
Concession on October 5. The civil works were completed by end of August but the
electricity connection could not be installed because of flooding in the area. The
External Audit of September 2001 presented by ABA to the ORAB states that access to
some drillings was not gained because they were in a flooded area. The works were not
essential to meet service quality targets because of the 3-year exemption in Annex F of
77
Ibid., pp. 89-90.
78
Ibid., pp. 90-91.
48
the Concession related to physical and chemical parameters of water quality. ABA was
never penalized nor has Azurix claimed any damages on this account.
148. In its Reply, Azurix points out that Argentina has failed to mention that the
wells were expected to solve quantity of water issues and not only quality, and that the
quality of the water did not comply with the parameters originally provided in the work
specifications.79
The fact that there was no deadline in Circular 31(A) does not mean
that this Circular can be considered in isolation of the contracts and specifications for
the works in question. The flooding only took place after April 15, 2001, more than eight
months after the expiration of the deadline and after the works had been suspended
because of lack of payment to the contractor.80
Azurix maintains that ABA did not even
accept the works provisionally but “subject to the conditions mentioned in Note GRP
1882/01, particularly its completion in accordance with the specifications and the
contract signed for their execution…”81
As already pointed out, the ORAB warned ABA
that non-completion of the works in Moteczuma could not be used as excuses for noncompliance
with water quality parameters. The ORAB also determined that there was
decreased pressure in the cities of Pehuajó and Carlos Casares and ordered ABA to
solve this issue. ABA had to drill five new wells, implement a pumping scheme to
optimize drinking water distribution in Pehuajó, and started the construction of an
arsenic treatment plant because the Moctezuma wells failed to meet the standard
required in relation to arsenic levels.82
According to the Claimant, the worst part was the
damage to the image of ABA among the customers since the works had been
presented by the Province as the solution to the water problems of the previous 40
years and created high expectations among the authorities and local people.
149. Argentina in its Rejoinder claims that the temporary acceptance of the
works on October 10, 2001 was linked to the unilateral termination of the Concession 5
days earlier and that the additional works and studies claimed to have been necessary
because of the deficient Moctezuma works were already included in the Five-Year Plan
presented by ABA to the ORAB in November 1999. No fine was ever imposed on ABA
79
Reply, para. 355.
80
Ibid., paras. 365-366.
81
Ibid., para. 368.
82
Ibid., p. 120 footnotes 382 and 383.
49
related to the alleged consequences of the Moctezuma works on ABA’s delivery of
services. The only fines were related to the interruption of service because of breakage
of the Nueve de Julio aqueduct on May 2 and June 29, 2000 because of improper
operating procedures. The breakage happened before the original delivery dates.83
(ii) Considerations by the Tribunal
150. It is accepted by the parties that the works were late. It is clear from the
evidence presented that the works stopped first because the contractor was not paid by
the Province and later because of flooding. It is also clear that the quantity of the water
that could be extracted from the wells was below expectations. For the Tribunal this is a
simple contractual matter not involving the exercise of the provincial public authority.
(c) Polo Petroquímico (“Polo”)
(i) Positions of the Parties
151. AGOSBA had entered into an agreement with Profértil and the Province
for the supply of industrial water for a fertilizer plant under construction. The water
supply contract was assigned to ABA as part of its takeover of the Concession. To meet
the water requirements, the Province had started construction of an aqueduct which
was listed as 95% complete in Circular 31(A). Azurix claims that the Province failed to
deliver the aqueduct. In a letter of August 25, 1999 to ABA and AGOSBA, Profértil
noted the defects “in the construction and design of the Industrial Aqueduct and the
inferior quality of the equipment and materials used”. In January 2000, ABA informed
Profértil that the aqueduct did not meet the requirements to provide the service and it
would not be possible to supply Profértil with the quantity and quality of water agreed by
the Province. Azurix received the Industrial Aqueduct in March 2000 provisionally and
subject to “final acceptance upon the satisfactory result of routine technical evaluation
and the Province assuming full responsibility for any service failures not caused by
ABA”.84
On August 2000, the Province, Profértil, PBB and Polisur (other industries in
the Polo) signed a letter of intent to construct a new pipeline. Azurix considers this fact
as an admission that the existing aqueduct was “not fit for its intended purpose”. Azurix
83
Rejoinder, para. 661.
84
Memorial, p. 92.
50
lists a series of steps that it took to minimize the deficiencies of the aqueduct, including
the building of a by-pass between the aqueduct and an existing water pipeline, and
supplying the companies in the Polo with industrial water while bearing the cost of the
raw water paid to the Province.85
152. Argentina points out that pursuant to Article 15.4.1 of the Concession
Agreement, the contracts signed by OSBA listed in Annex N would be transferred to the
Concessionaire. Circular 39(B), item 2, Annex O, established guidelines for the supply
of industrial water to the companies in the Polo. The guidelines established the price to
be paid to the Province and the responsibility of the Province for the amount of water
delivered. The quality of the water should be that of water in its natural state at the Paso
de las Piedras dam treated at the micro-screening plant.86
The President of the ORAB
informed ABA about the transfer of the aqueduct on March 28, 2000. In the “Inventory of
Fixed Assets” of ABA, the aqueduct was listed as an asset assigned to the Concession
with April 15, 2000 as “Date of Origin” and in excellent condition.87
Argentina argues
that ABA tried to generate conflicts with Profértil because it did not consider the contract
advantageous, and with the Province to renegotiate the Concession.88
153. Azurix in its Reply reaffirms that the poor condition of the work prevented
adequate service provision to the industries in the Polo. In addition, the deficient
operation of the dam affected the quality of the water to such an extent that ABA could
not “invoice the industrial water it delivered in order not to become committed to an
operation that it could not guarantee through the Province’s facilities”.89
Furthermore,
the commercial negotiations that ABA may have held with the industries of the Polo are
alien to the issues raised by Azurix. There is no doubt that the deficiencies experienced
by the aqueduct created a negative image of ABA in the eyes of the industries located
in the Polo.90
85
Ibid., pp. 93-94.
86
Counter-Memorial, para. 196.
87
Ibid., para. 698.
88
Ibid., paras. 699-704.
89
Reply, para. 384.
90
Ibid., para. 388.
51
154. In the Rejoinder, Argentina reaffirms its previous arguments on the
assignment of the contract and ABA’s acceptance of the aqueduct. If ABA had made
investments to ensure the continuity of service, it is because ABA considered it
necessary to comply with its obligations. They are not the Province’s or Argentina’s
responsibility.
(ii) Considerations of the Tribunal
155. The Tribunal considers that the fact that the Province agreed to build a
new aqueduct proves that the one delivered to the Concessionaire was inadequate. The
tests conducted by ABA, which have not been disputed by Argentina, provide also
evidence of the low level of pressure acceptance by the water pipeline. The letter of
August 1999 from Profertil to AGOSBA and ABA speaks by itself and its content has not
been refuted by Argentina. However, this is a matter of a contractual nature that does
not go beyond the relationship between the parties to the Concession Agreement acting
as such.
(d) Florencio Varela
(i) Positions of the Parties
156. This component of work in progress for which AGOSBA took responsibility
consisted of drilling four wells. According to the drilling contract, the wells were to be
completed in 180 days from the date of the contract, December 30, 1998. Circular 31(A)
stated that the wells were 70% completed, which Azurix disputes. Azurix alleges that
the Province failed to deliver the wells and hence it was impossible to keep up with the
summer water demands and such failure caused service interruptions. On December
27, 1999, the ORAB ordered ABA “to conform the service to the established service
levels within 24 hours”. To comply, ABA “took control of the Florencio Varela Extraction
Wells on a provisional basis in order to begin providing water service to the local
citizens”.91
On December 28, 1999, ABA explained to the ORAB that the Province’s
failure to complete the wells made it impossible for ABA to comply with its obligations to
provide water service. ABA’s first Annual Report noted that the drilling ended before
91
Memorial, p. 96.
52
reaching the aquifer “to avoid more complicated works, which rendered said works
useless”.92
157. According to Argentina, the wells were “practically completed” at the end
of July 1999 and the final measurement was carried out. ABA’s Service Report states
that the wells were available for service. The wells were included in the inventory of
assets on June 15, 1999. The wells needed to be supplemented with the pertinent
interconnection pipes. Their installation was the responsibility of the Concessionaire.
ABA’s Annual Progress Report on the POES and Service levels for the year July 1999June
2000 includes at least three of the wells in the actual service provision. In any
case, ABA did not suffer any damages nor did the ORAB impose any penalties.93
158. In its Reply, Azurix finds that Argentina has failed to address the evidence
presented in the Memorial. Azurix notes that it took five months for the ORAB to
authorize ABA to assume operation of the Florencio Varela wells, to conduct tests, to
adapt them and to complete them in order to address the summer increased
demands.94
Azurix contests the significance of the quoted reports and the measurement
statement. According to Azurix, the purpose of the Service Report was “to evaluate the
condition of the water system ‘at the time of ABA’s take over of the Concession’”.95
The
Report noted that the four wells were not in operation and the equipment was missing.
The date of origin in the Fixed Assets Inventory does not have the relevance that
Argentina attributes to it. Date of origin is merely a technical term that does not explain
why the ORAB did not authorize ABA to take material possession till December 27,
1999. Prior delivery of the wells was essential for the installation of the water pipes.
Once ABA obtained the authorization, it immediately proceeded to complete them at its
own expense and connect them to the network. Only three wells were put in operation,
the fourth could not be used due to construction problems, was abandoned and new
drillings had to be made at ABA’s own expense.96
92
Ibid., p. 97.
93
Counter-Memorial, paras.706-717.
94
Reply, para. 390.
95
Ibid., para. 393. Emphasis in the original.
96
Ibid., paras. 394-395 and footnote 429.
53
159. In the Rejoinder Argentina contends that the completion of the works
during the first month of the Concession was duly proved by Argentina. Argentina points
out that Azurix quoted only partially from the Service Report which stated that “only the
ducted well was available. The equipment is missing. The equipment is stored at the
‘Centro’ operating location”.97
Contrary to Azurix’s allegations, it was not necessary to
equip the wells to interconnect them. In any case, no fine was imposed since no fines
could be imposed during the first six months of the Concession.98
(ii) Considerations of the Tribunal
160. From the parties allegations it emerges that Argentina does not contest
that ABA was authorized to use the wells on December 27. The inventory of fixed
assets showing the wells as an asset added on June 15, 1999 indicates that assets
were added before work was completed or were in service. On June 15, the Concession
Agreement had not been signed yet and there is no dispute that, on that date, the works
were not completed. Argentina claims the works were completed in July and ABA
claims never to have accepted them. There is no dispute that only three out of the four
original wells went into service and that they produced low water flow. The certificate of
measurement of July 20, 1999 simply recorded the fact that the final measurement took
place and it is signed by OSBA and the Contractor. Hazen & Sawyer (“H&S”) stated
that: “The concessionaire had to unilaterally take over the unfinished wells from
AGOSBA and to put them into production before they were formally transferred as
stipulated in ABA’s concession contract”.99
There seems to be a difference of view
between simply executing the works and accepting them as works satisfactorily
completed under the terms of the civil works contract concerned. ABA considered works
completed when accepted in terms of the specifications in the contract, while the
Province seems to have been concerned with the physical completion of the works even
if they did not meet the contract specifications. The Tribunal concludes from these
considerations that that this is a matter in which the Province did not exercise its public
authority and acted as any other contractual party.
97
Rejoinder, para. 679.
98
Ibid., para. 686.
99
Exhibit 163 to the Memorial, pp. 2-11.
54
4. Rejection of Financing by the Overseas Private Investment
Corporation (“OPIC”)
(a) Positions of the Parties
161. Azurix submits that, in the privatization of public water systems, the private
investor usually needs to compensate for under-investment in the infrastructure during
the previous State-run operation.100
ABA estimated that it would need $311 million to
comply with the POES goals. ABA contacted OPIC and the Inter-American
Development Bank (“IDB”) to obtain $100 and $150 million loans, respectively, in the fall
of 1999. In April 2000, both institutions expressed interest in providing financing and in
May 2000 Azurix submitted formal applications.101
These institutions engaged H&S to
perform a comprehensive due diligence investigation of the Concession and H&S staff
visited Argentina in August 2000. During a second visit in October 2000, H&S focused
primarily on ascertaining “how the Provincial authorities viewed the ongoing
development of the Concession and what role the Province would play in promoting
investment security and stability over the course of the Concession”.102
On September
21, 2001, OPIC rejected formally the application. The letter described the issues
identified by their due diligence that required “clear and definitive resolution to ensure
the concession’s long-term viability and render it an acceptable credit capable of
borrowing funds.”
162. The issues identified by H&S were uncertainty on tariffs, substantial scope
of the capital plan required to meet the service goals compared to the level of cash ABA
is expecting to generate from forecasted revenues based on tariffs in place, lack of clear
definition of roles or responsibilities and unclear commitment of the Province to the
Concession given unmet obligations.103
The letter concluded:
“We understand that since our meeting in Argentina during November 2000, ABA
has continued discussions with ORAB and Buenos Aires Provincial government
and no significant progress has been made regarding the core issues related to
100
Memorial, p. 98.
101
Ibid., p. 101.
102
Ibid., p. 103
103
Ibid., pp. 107-108 and Exhibit 173.
55
tariff setting and the capital expenditures program. From a creditworthiness
perspective, this failure to reach an agreement regarding modifications to the
concession to restore a sustainable situation for ABA precludes us from moving
forward with potential financing.”
163. According to Azurix, the denial of financing by OPIC made it impossible to
obtain long-term financing from other sources. It meant that Azurix would have to fund
ABA’s operational expenses itself.104
164. In the Counter-Memorial, Argentina alleges that Azurix was always short
of funding. Argentina points out that Azurix prepared an IPO to obtain funds that it could
not obtain otherwise but that the IPO funds benefited ENRON instead. Furthermore, the
World Bank denied funding to Azurix in Ghana because of its totally non-transparent
policy. In any case, Azurix was responsible for obtaining funding, and it was its decision
where to find it whether using its own capital or becoming indebted to multilateral
institutions or other entities.105
165. Azurix contests the assertions of Argentina on financing, the link of OPIC
financing to the denial of a World Bank loan to Ghana and the lack of resources. Azurix
draws attention to the fact that the denial of financing in Ghana took place in March
2000 while OPIC and the IDB expressed interest in providing financing in April and June
2000. The H&S report in January 2001 did not mention the issue and the letter of OPIC
sent on September 21, 2001 neither.106
166. Argentina points out in its Rejoinder that the conflicts that eventually led
OPIC to deny funding were generated by Azurix itself. The notification of Azurix on
January 5, 2001 of a dispute under the BIT would have affected the denial of funding by
OPIC. Argentina adds another instance of funding denial not mentioned by Azurix. ABA
requested a US$50 million loan from ENOHSA under an IDB-financed program. The
loan was denied because the lender requested the guarantee of ENRON or a suitable
bank guarantee, which ABA could not provide. ABA was notified on September 21,
2001, the same date as OPIC’s letter, and no reference was made to any conduct or
104
Memorial, p. 109.
105
Counter-Memorial, pp. 162-167.
106
Reply, para. 284.
56
omissions by the Province or the Regulatory Agency but to lack of plans, excessive
budgets, lack of environmental impact assessments, etc.
(b) Considerations of the Tribunal
167. The rejection of the loan by OPIC was very clear and specific in its
reasons. The World Bank was not mentioned nor ENRON. The Tribunal has no reason
to second guess the management of OPIC in its reasoning for rejecting the request. As
regards the ENOHSA loan, ENRON was not prepared to guarantee the loan as required
by Banco de la Nación Argentina, the administrator of the program. By September 21,
2001, ABA had already requested the Province to cure its noncompliance with the
Concession Agreement. Evidently, each institution had a different choice of reasons for
denying funding. For the Tribunal, the significance of the reasons given by OPIC and
the due diligence analysis on which they are based stems from the fact that OPIC is
unrelated to any of the parties involved and the consultants hired to do the due diligence
had no allegiance to any of the parties to this proceeding. The H&S report shows that
the lack of funding for ABA could not be attributed to the relationship of Azurix with
ENRON or to whichever denial of funding by the World Bank. H&S’s assessment noted
the politicization of the Concession, the lack of commitment of the provincial authorities
to the Concession, and the impact of those two factors on its viability. However, these
were not the only reasons adduced by OPIC to reject Azurix’s financing request. OPIC’s
letter also referred to “the substantial scope of the capital plan required to meet the
service goals of the concession in terms of both aggressive timing and cost, as
compared to the level of cash ABA is expecting to generate from forecasted revenues
based on tariffs currently in effect.”107
In other words, the current tariff level was
insufficient to sustain the scope of the capital plan.
5. Memorandum of Understanding (MOU)
(a) Positions of the Parties
168. On January 5, 2001, the Claimant notified Argentina of the existence of a
dispute under the BIT. According to the Claimant, at that point the Province renewed its
107
Exhibit 173 to the Memorial.
57
discussions with ABA to remedy the breaches of the Concession Agreement, and on
February 15, 2001 the MOSP and ABA signed a Memorandum of Understanding
(MOU). The Claimant alleges that:
“the MOU implicitly recognized that the guarantees given by the Privatization
Commission (including Circular 52(A) were essential to the attraction of qualified
investors. Moreover, it implicitly recognized that the Province, as the granting
authority, had the ability to revisit the purpose and goals of the Concession
Agreement to optimize intended social purposes. Finally, and importantly, it
recognized implicitly that the economic equilibrium of the contract was broken.
These principles were incorporated into the MOU under the mutual
understanding by ABA and the Province that the economic equilibrium of the
Concession needed to be restored.”108
169. To implement the goals of the MOU a committee was established (“the
MOU Committee”). This committee had to produce an interim report of the negotiations
within 30 days and a resolution of the issues outlined in 60 days. During the
discussions, the MOSP Undersecretary took the view that the Canon was subject to
business risk and he proposed an amortization scheme as a percentage over sales and
the remaining unamortized value to be recovered through the re-bidding of subdivided
areas of the Concession. According to the Claimant, throughout the discussions “the
approach of the MOSP was centered on questioning the privatization process and
discarding key assurances that had been provided to ABA”, and the affirmation that the
Concession was based on the risk principle.109
The Claimant alleges that by the end of
the negotiating period “the repeated promises that the Province made to cure the
outstanding breaches related to the application of the tariff regime remained unfulfilled”
and the Province opted for deferring ABA’s rights under the Concession. Thus as told
by Mr. Clark, a member of the MOU Committee representing ABA, in his witness
statement:
108
Memorial, pp.120-121.
109
Ibid., pp. 123 and 125.
58
“As a condition to the signing of MOU II, the Province asked Azurix to withdraw
its arbitral claim with ICSID and to release the Province from any claims... when
ABA stressed the urgent need to increase cash flow, the Province responded
that ABA should address this at the first tariff review at the end of the five-year
period … ABA was not in a position to wait until the end of the five-year period,
and needed immediate solutions to the threat of its financial collapse.”110
170. The Claimant summarizes the MOU process results by affirming that by
September 2001 the promises made by the Province to resolve the tariff issues were
conditioned to withdrawal of the arbitration claim and the renunciation to recover the
Canon, “In essence, after nearly a year of pursuing the rectification of Provincial
breaches through the MOU efforts, nothing had changed to make the Concession
economically viable. The breaches of the Concession Agreement, which affected the
viability of Azurix’s investment, were still uncured.”111
According to the Claimant, this
situation prompted ABA to consider the termination of the Concession Agreement due
to the Province’s continuous breaches.
171. From the Respondent’s point of view, the MOU was simply an agreement
to create a committee to look into possible negotiating procedures.112
It was “a
negotiating process in which the parties, regardless of the rights to which they are
legally entitled or for which they may have a rightful claim, try to reach a sustainable
understanding for the Concession Contract within the framework of Law No. 11.820 and
the rules and regulations applicable to the service.”113
172. The Respondent alleges that no agreement was reached in the context of
the MOU negotiations because ABA adopted an unyielding position to be released of its
obligations and transfer entrepreneurial risk to the Province. As a result, no proposals
were ever submitted to the MOSP as it had been foreseen in Article 2 of the MOU, and
110
Ibid., quote in pp. 126-127.
111
Ibid., p. 127.
112
Counter-Memorial, para. 494.
113
Ibid., para. 495.
59
the quality and expansion targets in the Concession Agreement and in the approved
First Five-Year Plan were never modified.114
(b) Considerations of the Tribunal
173. The MOU was part of a process to revisit certain aspects of the
Concession. Its purpose and function was to conduct “the joint analysis of the issues”
listed in Section 2 of the MOU. All items listed are couched in terms of work to be done
– studies, discussions, preparation of a “regulatory model” - except for the second item
– POES goals (Section 2.2) – which in part is drafted as a decision to establish, right
there and then, a “priority works” plan to be performed during the current year because
“the current critical service condition cannot be resolved by goals based contracts.” (2.2,
first paragraph) A detailed plan of works and actions for 2001 was attached as an
exhibit to the MOU.
174. The second paragraph of Section 2.2 recognizes the need to revise the
goals of the POES in view of Resolution 179/00 of the MOSP and Resolution 59/00 of
the ORAB which established sanitary vulnerability, risk and access criteria. The third
paragraph of this section entrusts the ORAB with the control and regulation of the
service “by following up on the Priority Works Plan.”
175. The MOU was signed by the Minister of Public Works and Services and
the General Manager of the Concessionaire in the presence of the Secretary General of
FENTOS and the Secretary General of SOSBA and city mayors, all of whom
acknowledged the contents by subscribing the exhibit on works and actions for 2001.
The signature took place also in presence of members of the provincial Senate and
House of Representatives.
176. While the Respondent has played down the importance and significance
of the MOU, it seems that it reflected a moment in which the parties were prepared to
give serious consideration to the problems that had surfaced during the first year of the
Concession. The level of the positions held by the persons who signed it and the
context of the signature ceremony show the importance that the parties attached to the
114
Ibid., paras. 497-498.
60
MOU. In particular this is significant for the decision to establish the Priority Works Plan
and have it subscribed by the city mayors. At least in this respect, the MOU was more
than a simple agreement to establish a committee as has been submitted by the
Respondent. The Tribunal will now consider the implications of the MOU for purposes of
assessing the performance of the Concessionaire against the POES in 2001.
6. The Program for Optimizing and Expanding Service (POES)
(a) Positions of the Parties
177. The Respondent points out in its Counter-Memorial that the Claimant had
failed to comply with the POES, the core of the Concession. It argues that as part of the
POES, the Concessionaire presented a Five-Year Plan proposal with serious
shortcomings because from the very beginning it knew that it would not fulfill its
obligations. As early as June 2000, ABA tried to reformulate the POES so as not to
comply with the Five-Year Plan. The POES obligations were enforceable from the
beginning and the MOU did not exempt ABA from complying with them. ABA did not
meet the POES goals and investment commitments to such an extent that it prompted
the Province to impose fines and terminate the Concession Agreement by fault of the
Concessionaire.
178. In response, the Claimant alleges that the Province failed to provide
accurate information to the Concessionaire necessary to define the POES goals and
delayed approval of these goals for so long that they were no longer relevant. According
to the Claimant, the POES goals were superseded by the MOU which recognized that
“the economic equilibrium of the concession had been materially altered, and the parties
agreed to a finite Priority Work Plan to replace the POES.”115
Furthermore, the
compliance with the POES was subject to certain pre-conditions, such as the proper
application of the tariff regime and the cooperation of the Province and the ORAB with
the Concessionaire.
179. The Claimant alleges that the provincial authorities failed to provide the
Concessionaire with complete and accurate information for purposes of the definition,
115
Reply, para. 402.
61
presentation and subsequent performance of the First Five-Year Plan. The documents
promised in Circular 66(A) were not delivered to the extent promised and ABA had to
request information on, among others, updated network plans, business documentation,
computer center documentation, billing unit records and documents, information and
documents related to personnel, debits and credits and technical operating
documentation. The documentation requested was never delivered to ABA
notwithstanding that it existed: ”It was held by former AGOSBA officials – closely
connected to the Union - who sought to require ABA to enter into commercial
arrangements to acquire the same information that should have been delivered by the
Province at the takeover.”116
180. The Claimant maintains that it presented the Five-Year Plan diligently
given the circumstances and that delays in its approval occurred by factors not
mentioned by the Respondent such as the request, on February 23, 2000, three months
after filing the Five-Year Plan, for information that was in fact in the hands of former
officers of AGOSBA to pressure ABA into arrangements with them, or the introduction of
the sanitary risk concept that the Province requested that be included by Resolution No.
59/00 of July 21, 2000. According to the Claimant, the introduction of this concept
meant that the Concessionaire was instructed to prioritize investment based on new
criteria –accessibility, risks and sanitary vulnerability- and “with no consideration to the
relevant compensation required to preserve the economic balance of the
concession.”117
The Five-Year Plan was not approved until February 21, 2001 by
Resolution 11/01.
181. The First Annual POES Progress Report was approved by the ORAB by
Resolution 16/02 on February 19, 2002, 18 months after the submission of the Report.
According to the Claimant, “these delays jeopardized the Concessionaire’s performance
and evidenced the ORAB’s arbitrary conduct. Furthermore, the lack of certainty and the
impossibility to foresee the plan that would be approved by the ORAB or the criteria that
116
Ibid., para. 428.
117
Ibid., para. 445.
62
would be used to measure compliance with the goals placed ABA in an uncertain
situation, which affected its operations.”118
182. The Claimant disagrees with Argentina’s argument that the Priority Work
Plan included in the MOU was independent from the POES. For the Claimant, this
would mean that ABA would have undertaken new investment obligations in addition to
those in the POES notwithstanding that the MOU recognized the economic imbalance
of the Concession; it was clear that the MOU suspended the goals for the second year
of the Concession.119
183. According to the Claimant, the Province, not ABA, sought to modify the
POES because of a political shift in how the new provincial government viewed the
Concession Agreement. Minister Sícaro had expressed the intent in February 2001 to
change the model from one based on objectives to a model based on investments and
a return to a cross-subsidy scheme implementing a social tariff for low income users.120
184. The Claimant disagrees with the description of POES non-compliance
provided by the Respondent. According to the Claimant, the Respondent carries the
evaluation without taking into account the non-application of the tariff regime and the
agreement on a Priority Work Plan in the MOU. According to the Claimant, the ORAB
could never have evaluated compliance with the POES because it had failed to define
the methodology to assess the goals of the POES. The Claimant points out that the
evaluation is based on investment amounts rather than goals as required in the
Concession Agreement, that the analysis of the expansion goals disregards the
setbacks concerning determination of serviced populations, excludes the connections
installed within the serviced areas, and that includes, as alleged breaches, goals to be
reached in a three or five-year term.121
185. The Claimant also alleges discriminatory treatment to the extent that
public – ABSA - and private companies – AGBA - were exempted from POES
compliance. According to the Claimant, this exemption was due to the
118
Ibid., para. 463.
119
Ibid., para. 474.
120
Ibid., para. 469.
121
Ibid., paras. 480 and 482.
63
unreasonableness of the POES goals when the Province refused for political reasons to
apply the tariff regime. The Claimant points out that, in the case of AGBA, the goals for
year 2001 were suspended even though the economic crisis did not start until the end of
2001.122
186. The Respondent affirms that the MOU did not operate to amend the
Concession Agreement or the targets under the POES, “it was merely an attempt by the
parties to create a committee to consider the issues and submit a proposal designed to
overcome certain difficulties, which was never put together”.123
The POES was
enforceable from the beginning of the Concession. The quantitative and qualitative
targets were established in the Concession Agreement and the Five-Year Plans were
merely designed to provide additional details, adjustments or updates.124
The POES
and the Five-Year Plans were specific contractual obligations to be discharged in
accordance with the terms of the Concession Agreement and were not merely
guidelines towards the targets as argued by the Claimant.125
Compliance with the
POES was an exclusive obligation of the Concessionaire and the Province did not
hinder or affect negatively compliance of ABA with the POES.
187. The Respondent also contests that the Province discriminated in favor of
other companies. AGBA, a private company, had complied with the applicable POES
notwithstanding that it had higher targets during the first year of its concession and had
only requested, on July 20, 2001, a temporary postponement of the POES deadline for
the second year in view of the extraordinary economic crisis of the country. The
postponement was not related to the rate system as asserted by the Claimant.126
188. As regards ABSA, the Respondent justifies the exemption from the service
expansion obligations because it was owned by the Province, the temporary nature of
the service transfer, the fact that the Concession had been abandoned, and the deep
crisis prevailing at the time.127
122
Ibid., para. 407.
123
Rejoinder, para. 327.
124
Ibid., para. 336.
125
Ibid., paras. 339-340.
126
Ibid., paras. 350-375.
127
Ibid., para. 382.
64
189. The Respondent contests that the Province had any responsibility for the
delayed approval of the First Five-Year Plan. It had provided ABA all the necessary
information and the delay was the result of the many requests for postponing the
submission deadline. The original deadline of three months from the date of takeover of
the Concession was first postponed by two months, and then it was extended by an
additional 45 days. As this was not yet enough, two further postponements were
granted by ORAB. All together these postponements delayed presentation of the draft
Five-Year Plan by nearly nine months. It was submitted on June 12, 2000.
190. According to the Respondent, it was always ABA that attempted to change
the POES. When ABA was supposed to submit the Five-Year Plan, in fact it submitted
an Emergency Investment Plan and sketched the structure of a plan for the five years,
there was a second draft Five-Year Plan, an appeal for reversal of Resolution 10/00, a
Supplementary Report to the Five-Year Plan, and a letter to ORAB of July 17, 2001.
191. The Respondent considers that the notions of vulnerability, accessibility
and sanitation risk did not modify substantially the POES. Inclusion of these notions was
to direct the targets already established to areas that were more intensely exposed to
sanitation risks.128
192. The Respondent argues that the MOU was only the first step in a process
of renegotiation that was never completed because of ABA’s desire to walk away from
its obligations and transfer all business risks to the Province. The Priority Work Plan
never became effective and it could not have amended the Concession Agreement or
changed the targets established in the POES for the second year of the Concession.129
193. The Respondent affirms that the obligations under the POES were not
conditional upon the definition of evaluation criteria regarding performance under the
POES, and the achievement of the targets regarding the expansion of drinking water
and sewerage works did not call for any regulatory criterion beyond the terms of the
Concession Agreement.130
ABA did not comply with the minimum requirements for
region and county during the first two years, the annual renovation and reconditioning of
128
Ibid., para. 406.
129
Ibid., paras. 409-410.
130
Ibid., paras. 415 and 418.
65
pipes’ target, and the target of maintenance or reconditioning of effluent primary and
secondary treatment plants. ABA failed to make sufficient progress in the micromeasurement
by year two of the Concession to such an extent as to make it unlikely
that the 40% target prescribed in the Concession Agreement could be reached by year
five. ABA equally failed to complete the infrastructure works contemplated in Exhibit I to
the approved Five-Year Plan. In the second year, ABA prepared the second progress
annual report for the POES based exclusively on the Priority Works Plan attached to the
MOU and hence failed to reach the targets established in Exhibit F of the Concession
Agreement.131
(b) Considerations of the Tribunal
194. The Priority Works Program was not additional to the POES. It is doubtful
that, in its financial condition, ABA would have undertaken new obligations in addition to
the POES. The sanitary risk was a new element which would have an effect on the
POES and was introduced by the Respondent. It is evident that the MOU was an
attempt to solve the problems that had developed and the attempt failed. The POES
was never amended and the parties to the Concession Agreement continued to be
bound by its original terms, including the tariff regime. However, the failure by the
Province to honor the tariff regime contributed significantly to Azurix’s inability to
implement the POES as planned.
7. Circular 52(A) and Canon Recovery
(a) Introduction
195. The issue of Canon recovery and the meaning of Circular 52 (A) first
emerged during the discussions in 2001 in the context of the MOU as we have already
seen. On July 18, 2001, ABA sent a communication to the Province requesting that the
Province cure the breaches of the Concession and warning that, if these were not
cured, ABA would terminate the Concession. The Province replied on August 29, 2001
denying any wrongdoing and, in particular, denying “ABA’s right to recover its
investment (including the initial Canon), as expressly stated in Circular 52(A) and Article
131
Ibid., paras. 423-449.
66
12.1.1 of the Concession”.132
The controversy is linked to the level of risk assumed by
the Concessionaire and the principles inspiring the Concession.
(b) Positions of the Parties
196. Azurix claims that the Province issued Circular 52(A) in an attempt to
attract the highest bids from prospective investors. Azurix maintains that Circular 52(A)
assured bidders that the Canon would be considered an investment fully amortizable
through tariffs.133
In this respect, Azurix refers to LECG’s expert report: in which it is
stated:
“Although the Province did not issue ex-ante details on regulatory methodology
and accounting principles for the tariff reviews, it issued Circular 52(A). In this
Circular, the Province indicates very clearly that the initial payment will be treated
as an investment. As such, bidders, including Azurix Corp. must have properly
assumed that, in the context of a price-cap regime, the canon would be included
in the asset base for tariff review purposes, after accounting for its amortization.
This expectation was based on international and Argentine regulatory
experience.”134
197. Argentina contests the interpretation given by Azurix to Circular 52(A). In
its Counter-Memorial, Argentina explains that the fee paid for the Concession is the
price to run a monopoly. Argentina considers that this issue was not “a real conflict
between ABA and the Province as Law No. 11,820 and the Contract would have never
allowed such transfer. The issue was introduced within the framework of negotiations
with the Province, in a desperate attempt by Azurix to alter the obligations assumed and
the Contract”.135
Argentina draws attention to Article 12.3.1 of the Concession which
provides that the tariffs shall be in force during the term of the Concession and their
review may only occur based on events after the takeover of the Concession (Article
12.3.4, 5 and 6 of the Contract and Section 23-II of the Law).
132
Counter-Memorial, para. 130.
133
Memorial, p. 178.
134
Ibid., p.125.
135
Counter-Memorial, para. 854.
67
198. Argentina refers to the expert report of Mr. Chama, one of Argentina’s
experts, who explains that the bidding process for the Concession sought to select “the
economic player that is willing to pay the highest price, usually called ‘fee’, for the right
to exercise the monopoly; and the selection consists simply of determining who is willing
to pay the highest price as from a certain rate level, with a rate adjustment system
primarily based on service conditions established in the bidding documents and in the
regulatory framework governing the service.”136
199. According to Argentina, the offer of Azurix was opportunistic in the sense
that the purpose was the immediate renegotiation of the Concession Agreement to
recover the profits renounced in the competitive bidding process. Mr. Chama states that
“it could never be argued that the concession fee can be defined as a component of the
cost of service and become a factor determining the rates or prices of the service
itself”.137
Argentina wonders what would be the point of competing in a bidding process
if the concession fee would be subsequently transferred to users.138
Argentina further
argues that the transfer of the concession fee to the tariffs would result in “the absurdity
of having different tariffs in different areas depending on the concession fee offered by
the winning bidder.”139
200. Argentina points out that, in the letter of August 29, 2001, the Minister of
Public Works of the Province stated that Azurix’s representative, after several months of
negotiations, requested “an additional condition: to study the mechanisms to adjust the
Tariff Regime, aiming at recouping the concession fee paid for taking over the
Concession.”140
The Minister adds: “under the Bidding Conditions, payment of the
concession fee corresponded to the price that you bid for the concession, assuming the
risk that you may not recoup it, considering that if the [C]oncession guaranteed the
reimbursement of the price paid plus a rate of return thereon, the business started by
136
Ibid., para. 861.
137
Ibid., para. 864.
138
Ibid., para. 867.
139
Ibid., para. 868.
140
Ibid., para. 875.
68
Azurix would not be a risky one, as it is stated in Article 12.3.1 of the Concession
Contract.”141
201. As part of Argentina’s arguments on this issue, Argentina brings to the
attention of the Tribunal certain alleged irregularities regarding Circulars 51(B) and
52(A) and Section 12.1.1 of the Contract. According to Argentina, these two circulars
were the last circulars issued by the Privatization Committee before bidders presented
their economic offer.142
Circular 51(B) reduced the volume of water that the
Concessionaire was to deliver annually free of charge established only the week before,
on May 5. The reduction for ABA exceeded 57%. In contrast, the water volumes fell only
by 1.48% in Region B, the only Region not awarded to ABA.143
202. As regards Article 12.1.1 of the Contract, Argentina draws the attention of
the Tribunal to the statement of Azurix in the Memorial whereby the Province, in need of
money to balance the budget in 1999, wanted to maximize the Canon and “To this end,
it issued Circular 52(A), saying that the Canon would be recognized as an amortizable
investment, and thus, included in the tariff rate base. The Province confirmed this by
adding Article 12.1.1 to the Contract.”144
Argentina observes that this section of Article
12 was not in the model contract which was part of the bidding documents and did not
establish that the concession fee could be transferred through tariffs. The original Article
12 simply stated a general principle to be taken into account in the determination of the
tariff regime. Azurix’s interpretation would make this section contrary to law. The
Concession Agreement could not be substantially altered after the bidding process.
Amendments to the Concession Agreement were done through letters of amendment,
no such letter was used in this case and it might have also been absent in another
change also introduced after the award of the contract, i.e. the introduction of a 6-month
period of grace for penalties on account of any infringements.145
203. Argentina alleges that the Tribunal took Article 12.1.1 of the Concession
Agreement into account as a decisive factor in its decision on jurisdiction in disregard of
141
Ibid.
142
Ibid., para.878
143
Ibid., paras. 878-881.
144
Ibid., para. 882. Emphasis added by the Respondent.
145
Ibid., paras. 898-899.
69
the possible irregularities that affect this section which “could have led the tribunal to
error.”146
Argentina informs that its courts will solve the issues dealing with the inclusion
of Article 12.1.1 and considers that, “In any case, the impact on the progress of Azurix’s
claim before this Tribunal is evident, as well as the fact that the Tribunal is not
competent to decide on the facts described.”147
204. Azurix contests that the Canon is only an access fee for the Concession.
Circular 52(A) explained that the Canon constitutes an investment to be amortized.
According to Azurix, utility investors understand that, when access to other markets is
prohibited, canon payments are considered investments to be recovered through
regulated tariffs. This is standard regulatory practice in Argentina and the Province.
Azurix refers to an internal MOSP report on the MOU process in which Mr. Sícaro
states: “the proposed scheme accounts for the fact that there is a canon to be amortized
by the expiration of the Concession term”.148
This is in contrast with the statements
made by him before the Tribunal as a witness. According to Azurix, the Province simply
lacked the political will to allow its recovery in accordance with representations made by
the Privatization Commission, the Concession Agreement and Circular 52(A).149
205. Azurix dismisses the concept of “unbounded risk” claimed by Argentina.
According to Azurix and relying on LECG rebuttal: “The ‘unbounded risk’ concept
introduced by Mr. Chama, is deadly off the mark. Were concessions based on the
‘unbounded risk’ concept, no private investor will ever pay anything for the
concession.”150
206. Azurix also dismisses the unconstitutionality alleged by Argentina if
similarly situated customers would pay different prices for public services. This is
actually a fact in the Province and Argentina.151
207. Azurix also rebuts the notion that Circular 52(A) is only an accounting
clarification and points out that Argentina fails to explain how this clarification was to be
146
Ibid., para. 900.
147
Ibid., para. 902.
148
Reply, 251.
149
Ibid., para. 252.
150
Ibid., para. 255.
151
Ibid., paras. 256-257.
70
applied or its practical meaning. Furthermore, argues Azurix, Argentina’s allegations in
respect of the Canon are not consistent with the facts and recognized utility practice.
Azurix points out that in the case of another Argentine public utility, Transener, specific
provisions like Article 7.8 and Circular 52(A) were not deemed necessary to include the
Canon in the tariff rate base.152
208. Azurix affirms that it was the behavior of the Province that was
opportunistic. The additional capital contributions made by Azurix and exceeding
US$106 million do not indicate behavior of an opportunistic investor seeking additional
advantages through a post-bid negotiation. Azurix observes that if the Province, advised
by Mr. Chama himself during the bidding process judged Azurix’s bid opportunistic or
reckless could have rejected the bid and did nothing of the sort.153
On this point, Azurix
concludes that, ‘in light of the guarantees offered by the Regulatory Framework, the
Concession Agreement and Circular 52(A), the Province should have recognized the
implications of accepting Azurix bid. If the Province chose to ignore long-term effects for
the benefit of short-term political interests, then it did so under the legal obligation to
honor commitments made.”154
209. Azurix also contests the supposed irregularities of Circular 52(A) and
Article 12.1.1. As Argentina itself admits, this Article merely reiterates what is already
contemplated in the Regulatory Framework and the Concession Agreement: “It is
Azurix’s view that Article 12.1.1 is consistent with Article 28-II(d) of Law 11.820, Article
7.8 of the Concession Agreement and Circular 52(A). They all fit together into a
harmonious and systematic whole. Therefore any suggestions that this introduction
substantially changed the scope of the Concession Agreement is wrong. It merely
clarified it.”155
According to Azurix, by its actions, the Province repudiated Circular
52(A).
152
Ibid., paras. 258-263.
153
Ibid., paras. 266-267.
154
Ibid., para. 268.
155
Ibid., para. 272.
71
210. In the Rejoinder, Argentina refers to statements made by a World Bank
expert, Mr. Guasch, to support the allegation of opportunistic behavior of Azurix.
According to Mr. Guasch,
“…operators should be held accountable to their bids, and if petitions for
renegotiation are turned down, operators ought to feel free to abandon the
projects, if they choose to do so (with the corresponding penalties). The
appropriate behavior for the government is to uphold the sanctity of the bid and
not concede to opportunistic request for renegotiation and, in such cases, allow
concessions to fail. Such outcomes would reduce the incidence of renegotiation.
That is a key issue in private concessions of infrastructure services –yet one that
is often resolved in favor of operators. Thus aggressive bidding and the high
incidence of renegotiation should not be surprising.”156
211. And again more specifically on the issue of valuation of concession
assets:
“What clearly should not be used for the value of the concession in the capital
base –from which the operator is allowed to earn a fair rate of return- is the value
paid at the bidding stage, regardless of depreciation method. Doing that would
take away the efficiency-competitive angle of the auction, by allowing a rate of
return on whatever price was paid for the concession.”157
212. Argentina considers reasonable that the bidders take into account the
return on the investment in order to calculate the concession fee, but it is illogical and
unreasonable that the fee be passed through to rates. While every bidder may expect to
make reasonable profits above the concession fee, this is not an acquired right.158
213. Argentina denies Azurix’s allegation that in the natural gas and electricity
sectors the amounts paid as concession fees had been taken into account to determine
applicable rates.159
Furthermore, Argentina considers that the concession fees in these
sectors may reflect accurately the value of assets transferred because there are no
156
Rejoinder, p. 1.
157
Ibid., para. 868.
158
Ibid., paras. 870-871.
159
Ibid., paras. 877-878.
72
cross-subsidies or an obligation to expand the grid.160
Then Argentina refers to the
specific example of Transener, an electricity distribution company. In the context of a
five-year rate review, Transener argued that the price paid for the concession should be
used to determine the asset value for rate-setting purposes. The regulatory agency for
the power sector did not accept the argument. In fact, NERA, an expert consulting
company in the instant case, advised the regulator that, if the price paid at the time of
the privatization:
“constituted the basis of the calculation, then, any amount paid should be
recovered through rates (circularity of rates)” and, “if the rates can be calculated
on the basis of the value of the company at the time of privatization or, if the rate
of return of the company is guaranteed on the bid price, there is nothing to
prevent an economic agent from offering a large amount if the implicit regulatory
rate of return is higher than its own weighted capital cost.”161
214. Argentina refers also to NERA’s advice to defend the concepts of
regulatory and accounting amortization advanced in the Counter-Memorial. According to
NERA:
“Regulatory amortization is the annual percentage of the asset base that is
deducted from the regulatory book value in accordance with the standards
established by the regulator. Accounting amortization is the percentage of the
asset base that may be written off the accounting books every year in
accordance with the standards set by the tax authority and the professional
council of economic sciences. These are two different concepts. While regulatory
amortization serves the purpose of setting rates, accounting amortization is used
to calculate taxes and determine the accounting book value.”162
According to Argentina, ENRE, the regulator, took into account these
observations.
160
Ibid., para. 881.
161
Ibid., paras. 889-890.
162
Ibid., para. 261.
73
215. Argentina considers Article 7.8 of the Contract to be very clear. It consists
of three elements: the amortization of assets in service acquired or built by the
Concessionaire and the improvements made thereon by the Concessionaire.163
As
regards Article 1.8, Argentina considers that this Article is also clear in showing that the
concession fee was not an investment but the price paid to be awarded an area.
Argentina refers to Mr. Chama’s expert advice and affirms that, for the Concessionaire
to earn a reasonable return, Azurix’s assessment underlying its Offer would have to
have been reasonable and the fee compatible with the financial equilibrium of the
Concession. The Concession fee presupposed an appropriate economic offer,
otherwise the Concessionaire would offset its deficits derived from ordinary business
risks, a compensation expressly prohibited in the Concession Agreement.164
216. Argentina points out that, as there was no rule permitting it, there was no
submission by ABA to the ORAB requesting the transfer of the concession fee paid onto
rates or the increase in rates to cover a part of the concession fee. Argentina alleges
that the dispute only arose at the end of the negotiations with the Province in search of
an overhaul of the rate system or an excuse to provide grounds for termination.165
The
circulars issued by the Privatization Commission could only introduce clarifications of or
amendments to the Terms of Reference provided they were not substantial in nature. If
Circular 52(A) would be interpreted as Azurix suggests, it would have introduced a
substantial amendment to the rate system contemplated in the Contract. Professor
Comadira in his expert opinion states that, in that case, “it would be unreasonable and
incompatible with the rest of the provisions of the terms of reference.’”166
According to
the same expert, the rate system could only be modified after the third year of the
Concession (Article 30-II(c)), the rates167
and prices should have been effective during
the term of the Concession (Article 12.3.1), and the values and prices could only be
modified by virtue of the procedures and for the reasons disclosed in Article 12.3.2.
Therefore, ABA’s interpretation of Circular 52(A), “apart from being inconsistent with
163
Ibid., para. 911.
164
Ibid., para. 917.
165
Ibid., para. 921.
166
Expert Opinion of Professor Comadira (Comadira), p. 41, quoted in the Rejoinder, para. 928.
167
It should be pointed out that Article 12.3.1 does not refer to “rates” but to “tariff values.”
74
the harmonic and systematic interpretation of all the clauses of the Terms of Reference,
which it may only clarify but never modify substantially under penalty of becoming an
absolute nullity, disregards clear legal regulations applicable to the Concession
Contract.”168
Professor Comadira even affirms that:
“A modification of the contracting conditions as the one provided for in the
Circular under analysis should have necessarily meant a new call for bids to
enable the possible participation of any potential bidders that would have been
self excluded under the original conditions. Since that was not the case, the
equality guarantee has been clearly violated, thus corrupting the whole
procedure.”169
217. In addition, Professor Comadira explains that the addition of Article 12.1.1
and its interpretation by Azurix would mean that the essential principle of equality in a
bidding process would have been violated, this being “a fundamental principle of the
general law and administrative law.” He concludes by inviting the Tribunal to rule this
article as manifestly void of absolute and incurable nullity in response to “an ethical or
juristic requirement.”170
218. According to Argentina, the studies leading to the presentation of the offer
could not have taken into “account an interpretation that would have distorted the rate
system contemplated in the contract, on the grounds of a nonexistent provision.” Azurix
could not have entertained any expectations in this respect.171
(c) Considerations of the Tribunal
219. It will be useful to quote first in full the relevant legislative and contractual
provisions:
168
Comadira, p. 40, quoted in the Rejoinder, para. 930.
169
Ibid., p. 37, quoted in the Rejoinder, para. 933.
170
Ibid. p. 44, quoted in the Rejoinder, para. 940.
171
Rejoinder, paras. 942-943.
75
Article 28 of the Law:
“Prices and tariffs will tend to reflect the economic cost of providing potable
water and sewer services, including the Concessionaire’s margin of profit for and
the resulting basic infrastructure costs of the POES.”
Concession Agreement:
Article 12.1.1:
“Determination of the tariff level required under Article 28-II of Law No. 11.820,
shall be based on the general principle under which tariff values shall cover the
operating, maintenance and amortization costs of the services and allow for a
reasonable rate of return on the amounts invested by Concessionaire within an
efficient operation and management environment, as well as full achievement of
the agreed-upon service expansion and quality goals.”
Article 7.8:
“The Service-related assets acquired or built by the Concessionaire and
belonging to it as well as all improvements made thereon shall be capitalized by
accounting procedures and shall be depreciated integrally over the term of the
Concession or over their Useful Lives, whichever term is shorter; the provisions
of the fourth paragraph hereof notwithstanding.
The investments the Concessionaire makes in the assets received by/from the
Province upon Take Over shall be considered as acquisition and/or maintenance
costs of the Concession in accordance with provisions of clause 1.8 and shall be
amortized over the term of the Concession.”
Article 1.8:
“The grant of the Concession shall be in consideration of payment of an initial
canon equal to … by the Concessionaire. Said amount has been paid up by the
Concessionaire to the Province upon the signing of the Agreement, and it is
equivalent to the amount offered by the Awardee [sic] under the Bidding Process,
to be credited as the price for the Concession Area. However, the
Concessionaire does hereby undertake to make all necessary investments to
76
execute the POES and to secure the correct provision of Service under the
Agreement, the description of which is detailed in Annex F hereto, the tariffs
increments being subject to the guidelines stated in Annex Ñ being subject to
compliance with said obligations.”
Circular 52(A):
“It is clarified that the initial royalty which is referred to in Section 1.8 of the
Concession Contract constitutes an amortizable investment during the
concession period (article 7.8 correlative and concordant of the Concession
Contract).”
220. The Tribunal will turn first to the relationship of Circular 52(A) to Article
1.8, second to the meaning of the additional provision 12.1.1 of the Concession
Agreement, third to the rationale of the Concession, and fourth to asset depreciation in
the asset regime of the Concession Agreement (Article 7.8).
(i) Circular 52(A): The Canon as an Investment
221. The parties have discussed the meaning of the term “canon” and whether
the Canon is an investment. Article 1.8 of the Contract refers to the Canon as “the
consideration” for the granting of the Concession and, in the next sentence, as “the
price for the Concession Area.” The following sentence deals with the undertaking
related to the POES investments. It starts with the word “however” as a counterpoint to
the consideration paid by the Canon, as if to emphasize that the payment of the Canon
were not the only contribution to be made by the Concessionaire. This reading of Article
1.8 is reinforced if compared with the terms of Article 28 of the Law. Article 28 sets forth
the general principle that: “the prices and tariff will tend to reflect the economic cost of
the provision of the services of water supply and sewer services”, and continues by
saying: “including a profit margin and the cost arising from the POES related to basic
infrastructure.” The economic cost of a service would include, by definition, all costs
related to the provision of the service. The specific reference to investments arising out
of the POES would seem to be a clarification rather than an exclusion of other
investment costs. In case there was any doubt about its meaning at the time of the
bidding for the Concession, the Privatization Commission issued Circular 52(A) which
77
clearly states that “the initial canon…constitutes an investment.” The Tribunal has no
reason to doubt the interpretation given by the Privatization Commission. It had the
power to issue clarifications of the Bidding Terms and Conditions and all bidders would
have been aware of the clarification when they submitted the bid as in the case of any
other circular issued by the Privatization Commission. Argentina had argued that
Circular 52(A) was issued close to the deadline for the submission of bids and was the
last circular issued by the Commission. The evidence provided to the Tribunal shows
that Circular 52(A) was not the last circular to be issued by the Commission and that
other significant circulars were issued after the date of Circular 52(A). The issue is not
so much whether the Canon is an investment but whether being an investment makes it
a recoverable investment beyond the given tariff at the time of bidding and as adjusted
through the extraordinary reviews.
(ii) The Addition of Article 12.1.1.
222. In arguing that Article 12.1.1 of the Concession Agreement is not
extraneous to the Concession regime, the Claimant states that: “it is Azurix’s view that
Article 12.1.1 is consistent with Article 28-II(d) of Law 11.820, Article 7.8 of the
Concession Agreement and Circular 52(A). They all fit together into a harmonious and
systematic whole. Therefore, suggestions that this introduction substantially changed
the scope of the Concession Agreement are wrong. It merely clarified it.”172
In support
of this statement, the Claimant refers to the expert opinion of Professor Fernández who
affirms:
“Section 12.1.1 of the Contract is not a word-by-word reproduction of the section
with the same number of the sample agreement attached to the Bidding Terms
and Conditions; however, under no means does it imply a modification to the
agreed-upon terms since it merely incorporates into the contract the provisions of
Section 28(ii) of Law 11.820 and the statement made at the time by means of
Circular 52(A), acknowledging that the Canon was an ‘investment to be
amortized throughout the term of the concession.’”173
172
Reply, para. 272.
173
Legal Opinion of Professor Fernández, para. 56, Reply, Annex 1, para. 271.
78
223. In the Counter-Memorial, Argentina considered that Article 12.1.1
established a general principle already taken into account in Annex Ñ of the Concession
Agreement in order to determine the tariff regime. The resulting rate for the duration of
the Concession was “fair and reasonable and allowed a reasonable return.”174
For
Argentina, it was impossible to build Azurix’s interpretation into the terms of Circular
52(A) and Article 12.1.1 of the Concession Agreement without amending substantially
the terms of the agreement against the provisions of the Law, which did not permit the
passing through of the Canon to the rates.
224. In the Rejoinder, Argentina argued differently and, instead of admitting
that Article 12.1.1 established a general principle, it stated that the insertion of Article
12.1.1 is not being supported by any legal provision and that this article could not have
been part of the considerations present when Azurix submitted its bid for the
Concession.175
225. Article 12.1.1 provides that the tariff level required under article 28-II shall
be based on the general principle that the tariff values cover the operation, maintenance
and amortization costs of the service and permit a reasonable return on the investments
of the Concessionaire in the context of an efficient administration and operation and
exact fulfillment of the agreed quality and expansion objectives of service. While article
12.1.1 refers to article 28-II of the Law, it introduces a notion, “return on assets”, not
present in this article 28, and, conversely, there is no reference to the “profit margin” of
Article 28-II in Article 12.1.1. Taking a long term view of the Concession, profit margins
and rates of return may come to the same result, but they are different concepts and the
concession regime does not contemplate a regime based on rates of return as
explained by the Claimant’s own experts and to which we will now turn.
(iii) Rationale of the Concession
226. At the time of bidding, the bidders knew the tariff level and that this level
could not be changed except as provided in the model contract. These provisions are
usual in concession tariff regimes known as price cap regulatory regimes. Both parties
174
Reply, para. 887.
175
Ibid., para. 941.
79
agree that the tariff regime under the Concession Agreement followed the price cap
model.176
However, the parties’ experts draw different implications for purposes of
determining whether the Canon was part of the tariff review. The expert report of LECG
submitted by the Claimant explains this regime and affirms that:
“The strong incentives for greater efficiency are probably the major innovation of
the price cap regulatory regimes, and reflect an essential benefit of the system. A
second benefit…is the reduction in regulatory costs as compared to the
traditional rate of return regulation, which required continuous supervision of
investments and costs, thus increasing regulatory costs.”177
227. This report quotes from a World Bank study:
“For a concessionaire that has paid a transfer to government to operate a
business at a predetermined set of prices, these issues [asset valuation and
depreciation] could be important. Regulatory disputes could emerge relating to
what the concessionaire actually bought with that transfer – a stream of future
earnings or a return on the preexisting and future asset base? Issues
relating to the depreciation profile of both old and new assets therefore assume
particular importance and should be signaled by the government during the
bidding process.
[…] If the criterion is the largest lump sum offered to run a franchise, however,
the outgoing concessionaire could receive the highest bid, since this bid
reflects the value of the assets as they currently exist. However, this value is
based on the future stream of earnings, which is determined by the price set by
the regulator throughout the new franchise. If the regulator unreasonably ratchets
down prices for the period of the new concession, this effectively expropriates the
value of the assets built in the previous concession. Generally, therefore, new
176
Argentina explains in its Counter-Memorial that there are different ways to regulate utilities, “One is to
adjust tariffs based on the actual costs of the service provider and the other way is to fix in advance a
fair and reasonable tariff capable of covering the costs of an efficient operator and yielding a
reasonable profit. In the latter case, to earn a reasonable profit, the service provider must be
efficient.” (para. 959). According to Argentina, the privatizations during the nineties followed generally
the second model (Counter-Memorial, para. 960).
177
Exhibit 19A to Memorial, p. 32. Emphasis added by the Tribunal.
80
investment by the concessionaire needs to be transparently treated by the
regulator at each review, as part of the process of rolling forward the asset base
and charging depreciation on it.”178
228. Somehow contradictorily, the LECG report argues for linking the Canon to
the tariff review in a price cap regime when the quoted literature explains that in lump
sum situations the value of the assets has been calculated by the bidder on the basis of
the stream of estimated earnings within the set level of tariffs and the periodic
adjustments permitted by the Concession Agreement.
229. LECG analyzes what would be the evolution of tariffs if the Canon were
not included in the tariff base,
“At the first ordinary rate review the regulator, following standard regulatory
practice as well as the regulatory framework and the Concession Contract, would
consider the expected investment and operating costs, add the amortization of
capital additions for the previous four years, and derive a tariff rate that would
provide a normal rate of return only on the additions to the capital following the
privatization. The result would be a price that would fall substantially below the
long run marginal cost of the system. This is because such rates would
remunerate only the capital added since privatization but not the capital already
in place when the company started operations. Since, to be able to provide the
service efficiently and effectively, both kinds of assets (i.e., that in place prior to
privatization and the additional post-privatization) are needed, rates have to
remunerate both of them.”179
230. LECG concludes,
“Adding the canon to the tariff base provides the right incentives for both
consumption and investment. Consumers will be facing the long run cost of
providing the system and investors will have incentives to invest.”180
178
Ibid., pp. 59-60. Emphasis added by the Tribunal.
179
LECG “An Economic Assessment of Argentina’s Counter-Memorial and of Mr. Chama’s Report”,
Exhibit 4 to the Reply, p. 29.
180
Ibid., p. 30.
81
231. In its reasoning, LECG ignores the current tariff level at the time that the
Concession was granted. That tariff level was already in effect and future adjustments
were meant precisely to remunerate the capital added since privatization. LECG’s
argument assumes that the current tariff would not be taken into account in the
calculation of the adjustment, while the Concession Agreement considers it the base
from which to start the review. The existing tariff provides the remuneration for the
capital invested in the Concession ab initio.
232. Paradoxically, LECG itself seems to agree with this conclusion. When
discussing the issue of the elimination of monopolistic rents through a competitive
bidding process, the report adds a footnote stating that:
“Observe that although the investor bids the expected net present value of future
cash flows, the investor makes money on the investment. Indeed, when
discounting future cash flows, the investor uses a discount rate. This discount
rate is the rate of return the investor gets on the initial investment (the canon)
over the life of the concession.”181
233. The Tribunal will now analyze asset depreciation in the asset regime of
the Concession Agreement.
(iv) Article 7.8
234. Article 7.8 on depreciation (“amortización”) is part of Article VII of the
Concession Agreement on “Assets” (“Régimen de Bienes”). The first paragraph of this
article provides for the capitalization and depreciation of assets over the term of the
Concession or their useful lives whichever is shorter, with an exception which we do not
need to refer to for purposes of this analysis. The assets to be capitalized and
depreciated are those assets, and improvements on them, which are service-related,
have been acquired or built by the Concessionaire and belong to the Concessionaire.
They need to meet these three conditions. The term “belonging” is a translation of “que
sean de su titularidad.” They need to be assets to which the Concessionaire has legal
title. Article 7.2 on “Title” distinguishes between the possession of assets received by
181
Ibid., p. 31, footnote 53.
82
the Concessionaire from the Province and assets and movable assets and real property
acquired or constructed during the term of the Concession which shall be owned by the
Concessionaire. Title to these assets shall be recorded in the Real Property Registry
and in the respective registries of movable assets. This is not the case of assets
received from the Province.
235. The distinction becomes clearer when Article 7.2 and 7.8 are read
together with Article 7.6 on disposition of assets. In the case of disposition of assets
“owned by the Province … the Concessionaire shall act as the Province’s agent.” This
distinction then carries over to the second paragraph of Article 7.8 which establishes
that, “The investments made by the Concessionaire in the assets received by [sic] [“de”
in Spanish, “from” would be the correct translation] the Province upon Take Over shall
be considered as acquisition of and/or upkeep costs of the Concession in accordance
with provisions of clause 1.8 and shall be depreciated over the term of the Concession.”
This paragraph limits the definition of investments to those made in the properties
received from the Province without including the properties themselves.
236. The distinction between assets received and those acquired or
improvements on the assets received carries over to the requirement for approval of
acquisition and disposal of assets and how administrative silence to a request for
acquisition or disposal of assets needs to be interpreted. In the case of movable assets
owned by the Province, and those owned, whether movable or not, by the Claimant,
silence to a request for their disposal shall be understood as approval (Article 7.6.2). On
the other hand, silence by the ORAB in the case of non-movable assets registered in
the name of the Province shall be understood as rejection of the request (Article 7.6.1).
237. The distinction is particularly relevant when it comes to the termination of
the Concession. In the case of termination due to acts of God or force majeure (Article
14.2.1), the Province is required to pay the non-amortized value of investments and
Service-related assets acquired or built by the Concessionaire in accordance with
Article 7.8. Under the terms of this article, the assets received from the Province are not
acquired assets. The Concessionaire did not become the owner of the assets
transferred by the Province, nor did it ever have registered title to them.
83
238. The Claimant has argued that the existing assets at the time of the
transfer and those acquired later form a unit. The argument is based on Articles 42-II
and 43-II of the Law. Article 42-II provides that: “The assets that are covered by this
article and which must be included in the Concession Contract are the assets the
Concessionaire receives by virtue of the Contract. Also included are assets that the
Concessionaire acquires or builds in order to fulfill its obligations under the Concession
Contract.” Article 43-II reads as follows: “Assets that are transferred to the
Concessionaire are part of a group known as the appropriated unit [‘unidad de
afectación’ in Spanish].”
239. The Tribunal considers that the indivisibility of the unit has to be
considered in the light of the other provisions on assets in the Concession Agreement
and it cannot override the distinctions made between them regarding the ownership of
assets, and their administration and disposal.
240. The Tribunal concludes after this analysis of the relevant provisions of the
Law and the Concession Agreement that a harmonious interpretation of these
provisions does not permit to consider the Canon as if it would be an investment not
included in the existing tariff at the time of the transfer. The Tribunal has no doubt that
the Canon is an investment, but, for purposes of tariff setting and amortization, the
investor, in preparing the bid for the Concession, had to make a calculation of the value
of the earnings stream of the Concession, and the price paid for the Concession was
the result of this calculation. It is interesting to note, in that regard, that the Claimant
seems to be the only bidder to have interpreted Circular 52(A) as it did, the other
bidders presenting canons with values at least ten times lower than that submitted by
the Claimant.
241. While the principle of amortization may have applied to the initial Canon
as a matter of principle, whether it was amortized or not during the duration of the
Concession would depend on whether the Concessionaire had estimated correctly the
worth of the future earnings of the Concession based on the initial tariff and the discount
rate to be applied to this estimate of future earnings. The discount rate used by the
Claimant in the preparation of the bid was the rate of return on the Canon as an
84
“investment”. This seems to be inherent to a price cap concession regime and the terms
of the Concession Agreement.
242. To conclude the consideration of the issue of Canon recovery, the
Tribunal refers to the statement made by Argentina that the Tribunal may have erred by
disregarding the irregularities of Article 12.1.1 in affirming its jurisdiction. According to
Argentina, the Tribunal took this Article as a decisive factor in its decision. The
Respondent refers specifically to paragraph 62 of the decision on jurisdiction, which
reads as follows:
“The Tribunal finds difficulty in following the Respondent’s reasoning on the basis
of the definition of investment in Article I.1(a) of the BIT. First, a concession
contract, such as that entered by ABA with the Province, qualifies as an
investment for purposes of the BIT given the wide meaning conferred upon this
term in the BIT that includes “any right conferred by law or contract.” The
Concession Agreement itself refers repeatedly to investments. For instance, in
the context of the determination of the tariff level, the Concession Agreement
refers to “a reasonable return on the amounts invested by the Concessionaire,”
[Article 12.1.1] and “the Concessionaire does hereby undertake to make all
necessary investments to execute… [Article 7.8]”
243. In that paragraph, the Tribunal refers to Article 12.1.1 as an example of
references to investments for purposes of the definition of this term under the BIT. The
reasoning of the Tribunal would be the same without this example, which is not the only
example in the paragraph. The other example, Article 7.8, has not been questioned by
the Respondent. It should be apparent from the preceding discussion that what is an
investment under the BIT and what is a recoverable investment under the Concession
Agreement are different matters, and that whether an investment is or is not recoverable
may be irrelevant for purposes of it being considered an investment under the BIT.
85
8. Termination
(a) Introduction
244. As has already been noted, ABA requested the Province to cure its
breaches of the Concession Agreement on July 18, 2001. The Province replied on
August 29, 2001 denying any wrongdoing; in particular, the letter denied the right of the
Concessionaire to recover its investment, including the initial Canon. On October 5,
2001, ABA terminated the Concession Agreement. On November 1, 2001, the Province
issued an Executive Order rejecting the termination of the Concession Agreement and
ordering ABA to cease and desist from claiming that it had terminated the Concession
Agreement, and to refrain from engaging in conduct that would disturb the provision of
the service.
245. ABA filed for bankruptcy reorganization proceedings on February 26,
2002. On March 7, 2002, the Province deemed that ABA had abandoned the service.
On March 12, 2002, the Province terminated the Concession Agreement alleging ABA’s
fault: non-fulfillment of service expansion and quality goals, fines imposed on ABA,
difficulties of ABA in obtaining chemical supplies in February 2002 and paying for
electric power, Enron’s bankruptcy and service abandonment. On March 15, 2002, ABA
delivered the service to the Province.
(b) Positions of the Parties
246. The Claimant has asserted that Article 48-II of the Law expressly
delegated the definition of the right to terminate the Concession to the Concession
Agreement, and that Article 14.1.4 of the Concession Agreement did not require the
intervention of any authority to be terminated. On the other hand, Article 14.4.4 provides
for court intervention for purposes of the reception of the service. Thus, concludes the
Claimant, when the Province had considered it necessary to include reference to court
intervention, it did so.182
247. The Claimant also addresses the need for the competent authorities to
intervene in case of termination of a concession required by Article 49-II of the Law.
182
Reply, para. 520.
86
According to the Claimant, this Article has to be construed appropriately and can “only
be interpreted as appointing the competent governmental authorities for the purposes of
declaring termination of the Concession Agreement upon the occurrence of events
allowing the grantor its right of termination […] It cannot be construed as a reference to
termination when it is not declared by ‘an authority’”.183
248. The Claimant also draws the attention of the Tribunal to the different
treatment of termination on account of the grantor’s fault in the case of the Concession
Agreement as compared to other concession agreements previously entered into by the
Province and in which intervention of the courts is required to declare the agreement
terminated in the event of resistance on the part of the Province. The Claimant draws
the conclusion that these previous agreements were taken into account by provincial
officials in drafting the Concession Agreement and departed from them, inter alia, in
respect of the Concessionaire‘s right to terminate the Concession Agreement.184
249. The Claimant maintains that the many serious breaches of the
Concession Agreement caused an irreversible imbalance of the economics of the
Concession and that, in these circumstances, the demand by the Government that ABA
continue to provide the service and complying with the expansion goals constituted
overt and unwarranted abuse of its rights.185
On the basis of Professor Fernández’s
legal opinion, the Claimant affirms that, if it were not possible for the Concessionaire to
terminate the Concession Agreement unilaterally without further intervention of the
Province the contractual provision would lack any practical application; because the
final settlement of this matter would be entirely left to the discretion of the Government,
ignoring what the law specifically intended to avoid.186
The same expert considers that:
“whenever the Law or the agreement recognizes in contractors the right to
terminate said agreement, the general rule that sets forth that the termination of
the agreement always requires a formal pronouncement by the Government
must be replaced by the maxim exceptio non adimpleti contractus, as the only
183
Ibid., para. 517.
184
Ibid., para. 525.
185
Ibid., para. 503.
186
Ibid., para. 528.
87
possible way of avoiding an abuse by the Government under this rule,
disregarding the contents of its provisions and forcing the contractor into a
ruinous situation.”187
250. The Claimant adduces extensive doctrinal opinion and Argentine and
European administrative case law to defend the applicability of the exceptio non
adimpleti contractus to the termination of the Concession Agreement.188
The Claimant
also refers to Aucoven where the arbitral tribunal, when faced with a similar situation
found that, if the parties had intended to subject the termination of the concession
agreement to a ruling by a judicial body, they would have expressly referred to such
requirement in the clause in question.189
The Claimant further argues that, if Article
14.1.4 is ambiguous, then it should be construed against its drafter.190
251. According to the Claimant, the Province fabricated a case against Azurix
to hide its own breaches while the Concessionaire continued to provide the service. The
Concessionaire informed the Province on the day of the termination that it would
continue to provide service for 90 days. In fact, it provided it for more than five months,
which proves that the Concessionaire did not abandon the Concession.191
252. The Claimant draws the attention of the Tribunal to the fact that the
Respondent continued to take measures that have aggravated the situation
notwithstanding the Tribunal’s order to refrain from doing so. In particular, the Province
indicated that it would not approve ABA’s proposal to creditors, collected payments of
ABA’s customers, and cashed ABA’s and OBA’s performance bonds.192
253. The Respondent argues that the Province had the exclusive power to
terminate the Concession, that the Concessionaire had to request termination from the
Province and, if the Province denied it, then the Concessionaire could file an action in
the local courts to seek a judgment declaring contractual termination. In fact, ABA
lodged an appeal against the Province’s termination before the Argentine Courts.
187
Ibid., para. 528, quote from Professor Fernández’s legal opinion, Reply, Annex 1, para.160.
188
Reply, paras. 541-555.
189
Ibid., para. 557.
190
Ibid., paras. 558-559.
191
Ibid., para. 571 and ff.
192
Ibid., para. 580 and ff.
88
According to Argentina’s expert, Dr. Solomoni, Article 14.1.4 does not authorize the
Concessionaire to declare the Concession Agreement terminated but it regulates the
Province’s prerogative to terminate the Concession Agreement even in the event of
non-compliance by the Province. The Respondent alleges that the defense of the
Claimant based on the exceptio non adimpleti contractus is not applicable here because
it was never used by ABA when it defended its action. ABA always maintained that it
had the right to terminate the Concession Agreement unilaterally.193
254. The Respondent also raises the issue of a conflict between the BIT and
human rights treaties that protect consumers’ rights. According to Argentina’s expert, a
conflict between a BIT and human rights treaties must be resolved in favor of human
rights because the consumers’ public interest must prevail over the private interest of
service provider.194
On this point, the Claimant argues that the user’s rights were duly
protected by the provisions made in the Concession Agreement and the Province fails
to prove how said rights were affected by the termination.195
(c) Considerations of the Tribunal
255. Article 14.1.4 – Termination due to Fault of the Granting Authority - reads
as follows in the translation furnished by the Claimant:196
“The Concessionaire may claim termination of the Agreement based on the
Concession Grantor’s fault where a rule, act, fact or omission by the Concession
Grantor results in a substantial noncompliance with the obligations undertaken by
the Concession Grantor under the Agreement reasonably impairing its
performance.
In such event, within thirty (30) days from knowledge or occurrence of said event,
the Concessionaire shall demand the Concession Grantor to cease such
noncompliance, and grant a reasonable term of at least thirty (30) days. In the
event that Grantor fails to observe its obligations, the Agreement shall terminate.”
193
Rejoinder, paras. 809-917.
194
Dr. Solomoni’s expert opinion, pp. 27-28.
195
Reply, para. 565.
196
Memorial, p. 128, footnote 528.
89
256. The Tribunal notes first that the last sentence quoted is not an accurate
translation from the original Spanish version, which reads: “En el supuesto que el
Concedente no cumpla con sus obligaciones, deberá declarar rescindido el Contrato.”
257. The Claimant has read this sentence as if the subject of the verb “deberá”
were the Concessionaire. However, the Concessionaire is not mentioned at all in the
sentence and it is more logical to consider the “Concedente” (the Grantor) as the
subject. This reading is consistent with the first paragraph of the Article which refers to
the ability of the Concessionaire to request the termination of the Agreement (“podrá
solicitar”). The mandatory use of “deberá” (“shall”) would also seem to refer to the
obligation of the Grantor since the Concessionaire may or may not wish to pursue its
right. If the subject of the sentence were the Concessionaire, the term “may” would have
been more appropriate.
258. This interpretation fits with Article 49-II of the Law that provides:
“The rescission of the contract or the salvaging of the services must be resolved
by the Provincial Executive Authority with the intervention of ORAB.”
This text does not differentiate between rescission at the initiative or the
nonperformance of one or the other of the parties. In all cases, the issue must be
resolved by the Grantor. In the specific case of the Concession Agreement, the Grantor
had no alternative but to declare the termination if its noncompliance continued, but this
is where the parties disagreed. Both parties alleged noncompliance as a cause for their
respective rescission of the Concession Agreement.
259. The above interpretation does not match the procedure for the rescission
of the Concession Agreement on grounds of the Grantor’s fault in Article 14.4.4. When
the Concession Agreement is terminated because of the Concessionaire’s fault, Article
14.4.3 provides that the Concessionaire shall deliver the service once it has been
notified of the decree of the Grantor terminating the Concession. In contrast, Article
14.4.4 does not refer to any administrative act of the Grantor to rescind the Concession
Agreement. It simply states that “Once the Contract shall have been terminated
because of the Grantor’s fault…” without indicating by whom or by what action. The
comparison of the two provisions seems to reflect the difference between the procedure
90
to be followed by a public authority which acts through decrees and resolutions and a
private party which may simply notify the Grantor.
260. The difficulty in interpreting the provisions of Article 14 harmoniously is
compounded by Article 49-II of the Law which, as already noted, prescribes that
termination “must be resolved by the Provincial Executive Authority with the intervention
of ORAB.” The Law does not distinguish between termination by the Grantor or the
Concessionaire. It would seem appropriate that the Concession Agreement be
interpreted consistently with the provisions of the Law. On the other hand, the Tribunal
cannot ignore the practical result of this interpretation: if taken to the extreme, a
concessionaire would be obliged to continue to provide the service indefinitely at the
discretion of the government and its right to terminate the Concession Agreement would
be deprived of any content. For this reason, the application of the maxim exceptio non
adimpleti contractus provides a balance to the relationship between the government and
the concessionaire. The Tribunal considers it immaterial whether ABA raised this
defense in its recourse to the Argentine courts. The Tribunal is assessing the conduct of
the Respondent and its instrumentalities in the exercise of its public authority against
the standards of protection of foreign investors agreed in the BIT, and the application of
the maxim exceptio non adimpleti contractus has been raised by the Claimant in these
proceedings. This exception is not unknown to Argentine law and to legal systems
generally as it is a reflection of the principle of good faith. The Tribunal will take it into
account when evaluating the actions of the Province under the standards of protection.
261. The Respondent has also raised the issue of the compatibility of the BIT
with human rights treaties. The matter has not been fully argued and the Tribunal fails to
understand the incompatibility in the specifics of the instant case. The services to
consumers continued to be provided without interruption by ABA during five months
after the termination notice and through the new provincial utility after the transfer of
service.
91
9. Conduct of the Province after Service Transfer
(a) Positions of the Parties
262. The Claimant points out that, on March 20, 2002, the ORAB issued
Resolution 20/02 preventing ABA from collecting amounts owed in its accounts
receivables for services provided prior to the date the service was transferred. Two days
later an announcement in the press advised the public that all amounts payable to ABA
for service before March 7, 2002 and not yet paid should be paid to the new service
provider, and that payments made to ABA would not be honored. ABA requested the
bankruptcy court to issue a protective measure. This measure was issued on June 4,
2002, “ordering the appropriate entities and agencies to refrain from collecting
payments on invoices issued for services rendered by Azurix during periods preceding
March 7, 2002, which shall only be paid to the debtor in these reorganization
proceedings, at the domicile of such company. Furthermore, in the event that payments
have already been collected on any such invoice, the appropriate entities shall deposit
such amounts into an account opened for these proceedings and all other amounts
shall be deposited at the Tribunales branch of Banco de la Ciudad de Buenos Aires.”197
263. The Claimant notes that only one sanction had been imposed on ABA
before the letter of July 18, 2001. Thereafter, there was a radical change and numerous
penalties were levied against ABA as a clear harassment by the Province. The ORAB
continued to impose sanctions on ABA even after the service was transferred. The
Province was driven by the bankruptcy proceedings and the deadline to request the
court to allow their claims. The deadline was June 3, 2002 and on such date the
Province and its instrumentalities filed claims for AR$187 million and US$2.85 million as
compared to AR$15 million by all other creditors. The Claimant points out that the
claims were filed four days before ABA itself was notified by Resolution No. 46/02,
dated June 7, 2002, and that ABA was denied access to the documentation on which
the penalty was based and an extension of the deadline to file an appeal. ABA filed an
197
Memorial, p. 144 and Exhibit 203.
92
appeal to the trustee in bankruptcy who, according to the Claimant, considered most of
the claims without merit.198
264. Based on the report of the University of La Plata (“UNLP Report”),199
the
ORAB adopted Resolution No. 52/02 approving the final credit and debit account of the
Concession resulting in a credit of the Province against ABA of AR$640 million.
According to the Claimant, the supporting documentation and a request for an extension
of the deadline to file an appeal were denied. ABA filed an appeal on September 30,
2002 based on the hypothetical nature of the claims and their lack of grounds.
Specifically, the Claimant alleges that damages concerning assets were estimated even
though the ORAB never made the inventory required by Sections 14.4.3 and 14.4.4 of
the Concession Agreement; the cost of new water and sewage connections were
claimed although the Province released the new provider of making such investments;
obligations not enforceable until years 3 and 5 of the Concession were considered
unfulfilled and related damages were claimed; and damages concerning the same
assets were duplicated. Furthermore, the credit and debit account includes hypothetical
damages such as the loss in tax collections caused by the loss of possible increases in
real estate properties value due to the interruption of the POES, the cost of a new
bidding for the Concession which was never organized, increases in tax collection that
the Province could have obtained from hotel, restaurant and tourism activities if ABA
had continued as Concessionaire for 30 years.200
265. In the Counter-Memorial, the Respondent contests that the penalties
reflected anything more than the non-performance of ABA. The Respondent notes first
that the Claimant had failed to indicate to the Tribunal that ABA had a penalty holiday of
six months after the takeover of the Concession. This grace period was a change
introduced to the model contract included in the Bidding Documents. There was no
doubt that such grace period was not part of the draft contract as confirmed by a reply
of the Privatization Commission to a question.201
The Respondent cites two other
penalties imposed on ABA by Resolution No. 34/00 and Resolution No. 50/00. The
198
Ibid., p. 135 and pp.145-146.
199
Exhibit 175 to the Counter-Memorial.
200
Memorial, pp. 146-148.
201
Rejoinder, para. 551, footnote 397, and Circular 21(A), reply to question 92.
93
Respondent points out that before imposing a penalty ORAB had to determine nonperformance
and follow the pertinent administrative proceedings. It was not a hostile
attitude but respect for the administrative procedures to impose sanctions.202
266. According to the Respondent and on the basis of the UNLP Report, the
damages to be borne by the Province as a result of failure to meet the goals undertaken
in the POES and termination of the Concession Agreement for causes attributable to
ABA exceeded AR$149 million and the economic impact of the environmental damages
caused by ABA amounted to over AR$467 million.203
The Respondent observes that, in
the statement of credits in favor of the Province, the amount collected for service prior to
March 7, 2002 has been taken into account and that the relevant protective measure
was revoked on appeal by the Commercial Court of Appeal. The Respondent also notes
that ABA brought an action against Decree 508/02 terminating the Concession
Agreement before the Supreme Court of the Province.204
267. In its Reply, the Claimant alleges that the sanctions imposed on ABA were
part of a strategy to overwhelm Azurix’s claim in these proceedings. They were a set of
measures taken in a wider context of abusive measures by the Province and Argentina,
including measures taken after the Decision on Provisional Measures of this Tribunal.205
268. In its analysis of the penalties imposed, the Claimant finds that: (i)14 out
16 fines were imposed after the termination of the Concession Agreement by ABA, (ii)
during the two months that Decrees No. 2598/01 and 3039/01 were issued, ABA was
fined seven times for a total of US$555,000, (iii) seven more fines were imposed after
the transfer of the service for a total of US$1,960,000, and (iv) four fines for a total of
US$1,800,000 were levied between the filing of reorganization proceedings and the
deadline for creditors to file a petition for allowance of claims.206
269. The Claimant points out, in particular, that the fine for the violation of
biological parameters in Bahía Blanca related to an incident that happened in April 2000
202
Counter-Memorial, paras. 559-569.
203
Ibid., pp. 240-241.
204
Ibid., para. 823.
205
Ibid., paras. 602-603.
206
Ibid., para. 590.
94
and ORAB did not file the charge until August 2001, and that in the case of 14 out of 16
fines, the drafts were prepared from July 2001 onwards.207
270. The Claimant observes that the six-month grace period is customary in
this type of agreements to allow the concessionaires to adapt to the poor service
management conditions that existed before privatization.208
271. In the Rejoinder, the Respondent enumerates 12 procedures underway at
the time when ABA terminated the Concession Agreement to show that the process had
started long before July 18, 2001 and before the penalties were imposed. The failures of
ABA range from the breakage of an aqueduct, to over billing, breakage of a master
pipe, deficiencies in operation and reconditioning of effluent purifying plants, lack of
water quality standards at Bahía Blanca and Vedia.209
According to the Respondent,
every single fine was imposed for a specific violation of the Concession Agreement by
ABA. It was ABA that was exclusively responsible for supplying drinking water that met
the quality and standards agreed in the Concession agreement and for performing
under the POES.210
272. The Respondent further notes that the Claimant in its Reply did not refer
to the specific grounds of termination set forth in Decree 508/02, nor the effect of ABA’s
filing for bankruptcy and ENRON’s bankruptcy on the Concession Agreement, nor
ABA’s filing against Decree 508/02.211
273. As to the damage sustained by the Province, the Respondent defends the
calculation of the economic impact of the termination of the Concession as part of the
damages for which ABA is liable and quotes from the UNLP Report: “The reasons that
led the Province to start the bidding process – in which Azurix voluntarily submitted its
bid – were to achieve positive environmental, sanitary, economic, fiscal, and operating
results. All these privatization purposes may be assessed in economic terms. Azurix
assessed them in order to submit the bid that secured Azurix the award of the contract;
207
Ibid., paras. 591-592.
208
Ibid., para. 600.
209
Ibid., para. 571 and Rejoinder, paras. 456-533.
210
Rejoinder, paras. 555 and 557.
211
Ibid., paras. 842-850.
95
and the Province should assess them in order to determine the costs of the failure and
seek fair compensation.”212
274. The Respondent concludes on this point by observing that the allowance
of the Province’s claim against ABA has yet to be adjudicated by the bankruptcy
court.213
(b) Considerations of the Tribunal
275. The Claimant has not questioned the underlying reasons for the penalties
except in the case of Bahía Blanca and the fines and claims taken into account in the
credit and debit account of the Concession, in particular the claims based on the UNLP
Report. As noted by the Claimant, it is striking to note the contrast of administrative
speed with which the fines and claims were processed after ABA gave notice of
termination of the Concession and the deliberate pace with which other administrative
matters were handled such as the construction variations or the valuations 2000. The
Tribunal is surprised that the underlying documentation on which Resolutions 46/02 and
52/02 were based would be denied to ABA for purposes of filing an administrative
appeal. The Tribunal is equally surprised that damages against ABA would be assessed
in part on considerations that do not find any basis in the Concession Agreement or the
Law.
VII. Breach of the BIT
1. Expropriation without compensation
(a) Positions of the Parties
276. Azurix claims that its investment, the Concession Agreement, has been
expropriated as a result of “measures tantamount to expropriation”. For Azurix, what is
important is not the form of the measures or their intent but their consequences. Azurix
argues that the expropriation of its contract rights – and contract rights are included in
the definition of investment - is the consequence of a series of acts that alone may not
be sufficient to constitute expropriation but taken together constitute creeping
212
Ibid., quoted in para. 854. Emphasis of the Respondent.
213
Ibid., para 858.
96
expropriation. Based on a review of case law and authorities, the Claimant defines this
type of expropriation as “unreasonable or incidental interference that significantly
deprives an owner of the control, use, benefits, enjoyment, access to, or reasonably-tobe-expected
economic benefits of property, rights or interests to an extent that is more
than ephemeral.”214
Azurix notes that public utility companies are particularly exposed
to this type of measures because the privatizing State “may be tempted to exploit the
company once it has constructed a water system. When the water system is built the
company can no longer walk away and take the pipelines with it, but is at the mercy of
the regulator.”215
The Claimant further observes that “The political capture of rents is
equivalent to asset expropriation, as the company – whether public or private – will be
unable to reap the rewards associated with those sunk costs.”216
277. According to Azurix, the Province took away Azurix’s rights under the tariff
regime of the Concession, compromised the ability of ABA to obtain financing, saddled
ABA with unexpected expenses by not finishing the promised infrastructure included in
Circular 31(A), and took away Azurix’s right to recover fully the Canon. After paying for
the Concession, “Provincial officials used Azurix’s investment as their personal
‘whipping boy’ to stir the pot of ratepayer anger caused by years of neglect of the water
infrastructure and misdirect it towards ABA.” The Province broke the Regulatory
Compact and signaled that it was not committed to a sustainable Concession. To
conclude, “Under any plausible construction of expropriation, the Province and the
Republic deprived Azurix of the use and enjoyment of the reasonably-to-be-expected
economic benefits of the Concession and expropriated its investments.”217
278. The Respondent contests the definition of creeping expropriation arrived
at by the Claimant. The Respondent argues that a central aspect of the test related to
the notion of unlawfulness or unreasonableness is missing in that definition: “only if
Buenos Aires Province has ignored ABA’s contractual rights may an evaluation be
made about whether or not an expropriation has occurred. If Buenos Aires Province has
214
Memorial, p.166.
215
Ibid., p. 169 quoting from a World Bank study.
216
Ibid., p. 168.
217
Ibid., p. 180.
97
not ignored Azurix’s contractual rights, there is no expropriation to complain about.”218
According to the Respondent, the Province acted at all times in accordance with the
Law and the Concession Agreement. On the other hand, there has been a gradual
violation of both by ABA which, from the beginning, attempted to renegotiate the
Concession Agreement under more convenient terms to its own satisfaction and has
failed to meet its obligations under the POES. According to Argentina, citing Lauder and
S.D. Myers, in order to determine whether or not an expropriation has occurred the
government’s intention may not be disregarded:
“Detrimental effect on the economic value of property is not sufficient; Parties to
[the Bilateral Treaty] are not liable for economic injury that is the consequence of
bona fide regulation within the accepted police powers of the State.219
“Both words [‘tantamount’ and ‘expropriation’] require a tribunal to look at the
substance of what occurred and not only at form. A tribunal should not be
deterred by technical or facial considerations from reaching a conclusion that an
expropriation has occurred. It must look at the real interests involved and the
purpose and effect of the government measure.” (emphasis added by the
Respondent).220
279. The Respondent argues that respecting a contract may never be held to
be an expropriation. The Concession Agreement stipulated the tariff structure for the
entire term of the Concession, “an error in the Concession fee calculation might not be
invoked for amending the tariffs.”221
If investment risk in the case of utilities is usually
considered low, as stated by Azurix, this is because the utility provider knows “in
advance the tariff regime to be applied throughout the term of the concession before
submitting the Offer.”222
218
Counter-Memorial, para. 944.
219
Lauder v. Czech Republic, UNCITRAL, Final Award, September 3, 2001, para. 198, quoted in
Counter-Memorial, para. 950.
220
S.D. Myers v. Canada, Partial Award of November 13, 2000, para. 285, quoted in the CounterMemorial,
para 950.
221
Ibid., para. 952.
222
Ibid., para. 953.
98
280. The Respondent affirms that the sunken cost argument made by Azurix
does not apply in this case; it was the Province that installed the infrastructure and the
fee paid was to exercise “the natural monopoly facilitated by the investment previously
made by the State.”223
281. The Respondent comments in relation to the tariff conflicts that, except in
one case, they all referred to the non-metered regime which was a temporary regime,
and, as regards the exception, no damage occurred because the tariff increase sought
was based on a cost increase that never existed. The Respondent refers again to S.D.
Myers where the tribunal held, on the facts of the case that a temporary measure should
not be characterized as an expropriation, “the evidence did not support a transfer of
property or benefit directly to others, simply an opportunity was delayed”.224
The
Respondent points out that a reasonable period of time needs to pass to examine
whether or not measures actually have the expropriating effect attributed to them, and
that time is also important to determine when the expropriation took place:
“According to Azurix’s conduct … the investment conflict had already arisen by
January 5, 2001, that is to say only a few months after having executed the
contract. This position is untenable and purely speculative. The operability of a
Concession such as Azurix had in its hand is not defined in less than eighteen
months. Moreover, validating the way Azurix acted would mean rewarding selffulfilling
prophecies. Azurix could not have negotiated in good faith because the
investment conflict it was claiming could not have possibly arisen.”225
282. In the Reply, the Claimant argues that the measures alleged to constitute
tantamount to expropriation are not limited to mere breaches of contract. The Claimant
brings to the attention of the Tribunal that the tariff regime incorporated into the contract
also represents “part of a regulatory system established by law whereby the regulatory
agency … -which is not a direct party to the contract – unilaterally interprets the Tariff
Regime and holds the power to order the implementation of its interpretations. That is
not a normal contract situation, and the refusal of the ORAB properly to interpret and
223
Ibid., para. 957.
224
Ibid., para. 967.
225
Ibid., para. 971.
99
implement the Tariff System is not a mere contract breach, although it does breach the
contract as well.”226
283. The Claimant lists, as other measures tantamount to expropriation beyond
the repudiation of the tariff regime, the repudiation by the Province of representations
and assurances provided in the bidding process through circulars and information
communiqués, the public call for customers not to pay their bills in August 1999 when
the equalization subsidy was eliminated, the public calls by the provincial Governor and
the Mayor of Bahía Blanca for users not to pay their water bills, the incorrect public
statements by provincial office holders that the Concessionaire was wholly responsible
for the incident, the incorrect public statements by public officials creating hysteria by
suggesting that the water was toxic, the ORAB resolutions not allowing ABA to collect
for its services, etc.227
284. The Claimant argues that, in any case, breaches of contract may
constitute an expropriation and cites internal legislation of the United States, a party to
the BIT, where it is stated that ‘any abrogation, repudiation, or impairment by a foreign
government of its own contract with an investor … and [which] materially adversely
affects the continued operation of the project …’”228
According to the Claimant, breach
of contract or actions affecting contract rights may constitute an expropriation in certain
situations: a breach of contract which is part of a series of acts that combined would
have the effect of a creeping expropriation (Waste Management), a fundamental
breach of contract, which goes to the heart of the performance promised and adversely
affects the continued operation of the project subject of the contract (BP v. Libyan Arab
Republic), regulatory conduct that denies contract rights or requires their alteration
(CME v. Czech Republic), repudiation of specific contract rights or a contract as a whole
(Phillips Petroleum v. Iran), and a breach of a stabilization clause in a contract (Agip v.
Congo). 229
226
Reply, para. 641.
227
Ibid., paras. 643-644.
228
Ibid., para. 647.
229
Ibid., para. 648.
100
285. As regards whether the deprivation of rights or benefits is ephemeral, the
Claimant observes that the relevant inquiry is the duration of the deprivation of rights or
benefits, nor the duration of the expropriatory acts themselves. First, there is no set
duration for a period of time to be classified as being more than ephemeral in
international law. The Claimant in this respect refers to the General Conditions of
Guarantee for Equity Investments of MIGA which require that the failure by an
administrative agency to act remain uncured for one year. Second, the measures of the
Province were permanent measures: ABA was permanently deprived from its right to
eliminate the zoning subsidy, so were the repudiation of Circular 52(A) and the contract
rights embodied in Articles 7.8 and 12.1.1 of the Concession Agreement to treat the
Canon payment as an investment, the actions of the Province resulted in the permanent
denial of multilateral financing, the Province permanently refused to return the
unamortized portion of the Canon payment, the Province permanently repudiated the
contractual rights to calculate tariffs in US dollars and to index the tariffs by US indexes.
The effect of these measures was to drive ABA into bankruptcy and permanently put it
out of business.230
286. According to the Claimant the notion advanced by the Respondent - that
there cannot be an expropriation without an effect on an investor’s contractual rights ignores
the authorities and the case law. According to the Claimant, “Conduct contrary
to an investor’s legitimate expectations that constitute a norm or were induced by the
government also can amount to expropriation.”231
The Claimant refers to a long line of
case law to prove this point, “Middle East Cement, Goetz, Metalclad, Tecmed, and
other recent cases, “demonstrate that a State’s actions need not affect formal
contractual rights in order to constitute expropriation. Contrary to the GOA’s assertions,
the case law shows that actions that have the effect of depriving a foreign investor of
the ‘reasonably-to-be-expected economic benefit’ of an investment can amount to an
expropriation even if the actions do not affect or alter contract rights.”232
230
Ibid., para. 655
231
Ibid., para. 660.
232
Ibid., para. 666.
101
287. According to the Claimant, expropriation also exists when a State
repudiates former assurances or refuses to give assurances that it will comply with its
obligations, “which deprives the investor, in whole or significant part, of the use or
reasonably-to-be-expected economic benefit of its investment constitutes an
expropriation. Similarly, Azurix was deprived of the reasonably-to-be-expected
economic benefit of its investment in the Concession and is entitled to compensation for
this expropriation.”233
288. The Claimant alleges also loss of control of its investment as grounds for
expropriation. The effect of the measures taken not only took away the financial benefits
from the Concession by making it unsustainable, but also stripped the investment of its
legal security. The Claimant relies in particularly on Revere where the tribunal held that
“the government’s actions were expropriatory because they repudiated contract rights
resulting in the inability of the investor to make rational, calculated decisions based on
known contract rights, thus causing the investor to lose control of the investment.”234
289. The Respondent in its Rejoinder explains that its reference to contract
rights in the Counter-Memorial was motivated by the fact that Azurix had based its
claims on breaches of contract rights. The Respondent then relies on Serbian Loans,
Woofruff, ELSI and, in particular, Vivendi, SGS v. Pakistan and SGS v. Philippines to
contest that contractual claims should be heard before arbitral tribunals. It is clear,
according to the Respondent, that “arbitration tribunals do not accept hearing domestic
contractual claims as if they were genuine international claims.”235
According to the
Respondent, if “the Tribunal understood the substance of the claim in the way Azurix
does, said Tribunal would lack jurisdiction and the award would be clearly null.”236
290. The Respondent then alleges that Azurix introduces a confusion by
contending that umbrella clauses apply beyond specific investment agreements, in
reality, these clauses can only be applied in case of an investment agreement breach
but not for a breach of a concession agreement governed by the domestic and
233
Ibid., para. 228.
234
Ibid., para. 681.
235
Rejoinder, para. 971. Emphasis in the original.
236
Ibid., para. 980.
102
administrative law agreed in the forum clause: “Azurix intently confuses Investment
Agreement with investment, terms that are not equivalent or amalgamable.”237
291. Argentina also argues against a pro-investor interpretation of the BIT. By
protecting investors and investment broadly, the treaties would come to be regarded as
guarantees and assurances, eliminating the notion of risk and venture as stated by the
tribunal in Tecmed. According to Argentina, in this case the tribunal had, “to consider
the elements forming the standard banning expropriation without compensation, it was
far from claiming broad and vague interpretative assumptions in favor of the investor
based on BIT supposed purposes. On the contrary, it acknowledged the principle of
deference to the State in order to define the public interest or usefulness reasons upon
which its actions are founded.”238
292. Argentina alleges that, in the Reply, the Claimant tries to reformulate the
standard so that it can be read “exactly in the same way as what is under the protection
of the general clauses (umbrella clauses).” According to Argentina, the Claimant alleges
that some of the actions were expropriatory per se. The Respondent explains that in a
progressive expropriation no action in itself is expropriatory. The Respondent relies on
the dissident opinion of Keith Highet in Waste Management:
“a ‘creeping expropriation’ is comprised of a number of elements, none of which
can - separately – constitute the international wrong. These constituent elements
include non-payment, non-reimbursement, cancellation, denial of judicial access,
actual practice to exclude, non-conforming treatment, inconsistent legal blocks,
and so forth. The ‘measure’ at issue is the expropriation itself; it is not merely a
sub-component part of expropriation.”239
293. The Respondent also quotes from Santa Elena,
“As it is well known, there is a wide spectrum of measures that a state may take
in asserting control over property, extending from limited regulation of its use to a
complete and formal deprivation of the owner’s legal title. Likewise, the period of
237
Ibid., para. 981.
238
Ibid., quote in para. 985.
239
Ibid., quote in para. 1001.
103
time involved in the process may vary – from an immediate and comprehensive
taking to one that gradually and by small steps reaches a condition in which it
can be said that the owner has truly lost all attributes of ownership. It is clear,
however, that a measure or a series of measures can still eventually amount to a
taking though the individual steps in the process do not formally purport to
amount to a taking or to a transfer of title. What has to be identified is the extent
to which the measures taken have deprived the owner of the normal control of
his property.”240
294. Furthermore, according to the Respondent, in a creeping expropriation
what matters is not the duration of the effects but the intensity of the expropriatory
process. The Respondent contests the affirmation by the Claimant that international law
fixes an exact limit as regards when to determine a creeping expropriation, only a
reasonable period of time is required. The Respondent also contests the interpretation
of MIGA’s General Conditions and observes that they have been only partially quoted
by the Claimant. These Conditions require that, for some measures, the company
concerned should not have been able, for three years, to operate without losses. In any
case, the time would run from the measure that culminates in the expropriation, since
none of the preceding measures per se constituted expropriation.
295. The Respondent concludes that the individual effect of each measure may
never be expropriatory; to determine if a series of measures has an expropriatory effect,
the intensity of the process globally considered should be measured; the expropriatory
effect should have lasted until it consolidated and could be considered a permanent
effect; the set time to lapse is not defined by international law as an algorithm, but it
requires the passing of reasonable time.241
296. The Respondent disagrees with Azurix’s insistence exclusively on the
effect of the measures as the key element to determine whether an expropriation has
occurred. There is another element. The investor needs to have a right to the specific
treatment expected, “If there is no legal right to be treated in a specific manner, no
240
Ibid., quote in para. 1003.
241
Ibid., para. 1017.
104
expropriation can be considered when someone is treated according to the law.” In this
respect, the Respondent refers to the tribunal’s finding in Feldman that NAFTA and
principles of customary international law do not require a State to permit a gray market
of cigarette exports. Mexican law did not afford cigarette resellers a right to export
cigarettes and the claimant’s investment remained under its complete control and with
the right to export other Mexican products.242
297. Furthermore, the Respondent argues that the effect and intent of
measures cannot be separated as Azurix has done. The intent is important to
differentiate between legitimate regulation and confiscatory regulation. The Respondent
refers approvingly to the statement in Feldman that,
“not all government regulatory activity that makes it difficult or impossible for an
investor to carry out a particular business, change in the law or change in the
application of existing laws that makes it uneconomical to continue a particular
business, is an expropriation under Article 1110. Governments, in their exercise
of regulatory power, frequently change their laws and regulations in response to
changing economic circumstances or changing political, economic or social
considerations. Those changes may well make certain activities less profitable or
even uneconomic to continue.”243
298. The Respondent further refers to Generation Ukraine,
“Predictability is one of the most important objectives of any legal system. It
would be useful if it were absolutely clear in advance whether particular events
fall within the definition of an ‘indirect’ expropriation. It would enhance the
sentiment of respect for legitimate expectations if it were perfectly obvious why,
in the context of a particular decision, an arbitration tribunal found that a
governmental action or inaction crossed the line that defines acts amounting to
an indirect expropriation. But there is no checklist, no mechanical test to achieve
that purpose. The decisive considerations vary from case to case, depending not
only on the specific facts of a grievance but also on the way the evidence is
242
Ibid., para. 1022.
243
Ibid., quote in para. 1024.
105
presented, and the legal bases pleaded. The outcome is a judgment, i.e., the
product of discernment, and not the printout of a computer program.”244
299. Faced with the task of judging, the tribunal in Generation Ukraine, set
some negative criteria that the Respondent quotes as supporting its argument that mere
effect is not enough:
“The fact that an investment has become worthless obviously does not mean that
there was an act of expropriation; investment always entails risk. Nor is it
sufficient for the disappointed investor to point to some governmental initiative, or
inaction, which might have contributed to its ill fortune. Yet again, it is not enough
for an investor to seize upon an act of maladministration, no matter how low the
level of the relevant governmental authority; to abandon his investment without
any effort at overturning the administrative fault; and thus to claim an
international delict on the theory that there had been an uncompensated virtual
expropriation. In such instances, an international tribunal may deem that the
failure to seek redress from national authorities disqualifies the international
claim, not because there is a requirement of exhaustion of local remedies but
because the very reality of conduct tantamount to expropriation is doubtful in the
absence of a reasonable – not necessarily exhaustive – effort by the investor to
obtain correction.”
300. And further,
“There is, of course, no formal obligation upon the Claimant to exhaust local
remedies before resorting to ICSID arbitration pursuant to the BIT. Nevertheless,
in the absence of any per se violation of the BIT discernible from the relevant
conduct of the Kyiv City State Administration, the only possibility in this case for
the series of complaints relating to highly technical matters of Ukrainian planning
law to be transformed into a BIT violation would have been for the Claimant to be
denied justice before the Ukrainian courts in a bona fide attempt to resolve these
technical matters.”245
244
Ibid., quote in para. 1027.
245
Ibid., quote in para. 1029.
106
301. Argentina agrees with this consideration of the tribunal “to avoid becoming
an administrative tribunal that conscientiously goes through the actions and omissions
of the host State administrative bodies.”246
302. As regards the protection of the investor’s expectations, the Respondent
affirms that the cases adduced by the Claimant do not support the Claimant’s
contentions because Azurix’s claim is based completely on alleged contractual
breaches by the Province.247
Addressing the specific cases, Argentina argues that the
Aminoil tribunal never analyzed whether Kuwait had expropriated legitimate
expectations from the private petroleum company, but it considered that contractual
rights have been expropriated. Legitimate expectations are not the basis for
expropriation but the measure of compensation. Argentina considers that the same is
true of Middle East Cement. This case simply shows that the contractual rights of the
investor are able to be expropriated even when a contract has not been formally
terminated and its contractual rights had been de facto revoked. Argentina points out
that, in Goetz, the tribunal did not make a finding regarding legitimate expectations, but
whether rights conferred by a unilateral act –such as granting of a license- can also be
expropriated. Argentina considers that Metalclad and Tecmed are not applicable
because in neither of these cases Mexico had entered into a contract with the investor
and hence it was impossible for the tribunals to decide in favor of the expropriation of
contractual rights.248
303. The Respondent emphasizes that there were no contractual breaches by
the Province and that, if there had been, as held in Waste Management, contractual
breaches did not generate international responsibility:
“In the Tribunal’s view, an enterprise is not expropriated just because its debts
are not paid or other contractual obligations towards it are breached. There was
no outright repudiation of the transaction in the present case, and if the City
entered into the Concession Agreement on the basis of an over-optimistic
assessment of the possibilities, so did Acaverde. It is not the function of Article
246
Ibid.
247
Ibid., para. 1049.
248
Ibid., paras. 1053-1062.
107
1110 to compensate for failed business ventures, absent arbitrary intervention by
the State amounting to a virtual taking or sterilising of the enterprise.”249
304. And,
“The Tribunal concludes that it is one thing to expropriate a right under a contract
and another to fail to comply with the contract. Non-compliance by a government
with contractual obligations is not the same thing as, or equivalent or tantamount
to, an expropriation. In the present case the Claimant did not lose its contractual
rights, which it was free to pursue before the contractually chosen forum. The law
of breach of contract is not secreted in the interstices of Article 1110 of NAFTA.
Rather it is necessary to show an effective repudiation of the right, unredressed
by any remedies available to the Claimant, which has the effect of preventing its
exercise entirely or to a substantial extent.”250
305. The Respondent concludes by referring to the Regulatory Framework, the
Bidding Conditions and the Concession Agreement. The Respondent affirms that the
circulars and information communiqués had no power to modify substantially the
established contractual system, which had been known and accepted by Azurix and
ABA and hence “it is not possible that Azurix may construe, in good faith, that there had
been alleged rights or expectations, which are manifestly in conflict with this normative
system.“251
(b) Considerations of the Tribunal
306. The parties’ arguments raise issues ranging from whether the BIT should
be interpreted in favor of the investor to the requirements of expropriation measures in
terms of effect, intention and duration, and whether such measures may, or may not
necessarily, be contractual breaches which cumulatively may be tantamount to
expropriation or the taking of the benefits legitimately expected by the investor. The
Tribunal will now address these arguments in that order.
249
Ibid., quote in para. 1063.
250
Ibid., quote in footnote 885.
251
Ibid., para. 1067.
108
(i) Interpretation of the BIT
307. The Tribunal does not consider that the BIT should be interpreted in favor
or against the investor. The BIT is an international treaty and should be interpreted in
accordance with the interpretation norms set forth by the Vienna Convention on the Law
of the Treaties (‘the Vienna Convention”), which is binding on the States parties to the
BIT. Article 31(1) of the Vienna Convention requires that a treaty be “interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose.” The Tribunal observes that the BIT
itself is an instrument agreed by the two State parties to encourage and protect
investment. In the preamble of the BIT, the parties agreed that “fair and equitable
treatment of investment is desirable in order to maintain a stable framework for
investment and maximum effective use of economic resources”. Therefore, the BIT itself
is a document that requires certain treatment of investment which the parties have
considered necessary to “stimulate the flow of private capital”. The Tribunal in
interpreting the BIT must be mindful of the objective the parties intended to pursue by
concluding it.
(ii) Effect, Intent and Duration of Expropriation Measures
308. The parties agree that cumulative steps which individually may not qualify
as an expropriating measure may have the effect equivalent to an outright expropriation.
The parties also agree on the varied nature of possible steps, including breach of
contract: the Respondent affirms that if the Province had “ignored ABA’s contractual
rights an evaluation could be made about whether or not an expropriation has
occurred.”252
The Respondent has adduced Mr. Highet’s definition of creeping
expropriation, which includes in the list of examples of possible constituent elements
non-payment and non-reimbursement, elements which refer to contractual nonperformance.
On the other hand, the Respondent has also relied on holdings of the
tribunal in Waste Management to the effect that breach of contract is not the same as
expropriation of a contractual right.
252
Counter-Memorial, para. 180.
109
309. The parties disagree on the relevance of taking into account the intent
pursued by the measures concerned and the time needed for the measures to
consolidate into a creeping expropriation. Whether to consider only the effect of
measures tantamount to expropriation or consider both the effect and purpose of the
measures is a point on which not only the parties disagree but also arbitral tribunals. In
Santa Elena, that the Respondent found a useful point of reference for the concept of
creeping expropriation, the tribunal did not take into account the environmental purpose
of the expropriatory measures: “Expropriatory environmental measures – no matter how
laudable and beneficial to society as a whole – are, in this respect, similar to any other
expropriatory measures that a state may take in order to implement its policies: where
property is expropriated, even for environmental purposes, whether domestic or
international, the state’s obligation to pay compensation remains.”253
The same tribunal
was persuaded by the finding in Tippetts that “The intent of the government is less
important than the effects of the measures on the owner, and the form of the measures
of control or interference is less important than the reality of their impact.”254
310. For the Tribunal, the issue is not so much whether the measure concerned
is legitimate and serves a public purpose, but whether it is a measure that, being
legitimate and serving a public purpose, should give rise to a compensation claim. In the
exercise of their public policy function, governments take all sorts of measures that may
affect the economic value of investments without such measures giving rise to a need to
compensate. The tribunal in S.D. Myers found the purpose of a regulatory measure a
helpful criterion to distinguish measures for which a State would not be liable: “Parties
[to the Bilateral Treaty] are not liable for economic injury that is the consequence of
bona fide regulation within the accepted police powers of the State.”255
This Tribunal
finds the criterion insufficient and shares the concern expressed by Judge R. Higgins,
who questioned whether the difference between expropriation and regulation based on
public purpose was intellectually viable:
253
Compañia del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica (ICSID Case No. ARB/96/1),
Award, para. 72.
254
Ibid., para. 77. Translation by the Tribunal.
255
Counter-Memorial, quote in para. 950.
110
“Is not the State in both cases (that is, either by a taking for a public purpose, or
by regulating) purporting to act in the common good? And in each case has the
owner of the property not suffered loss? Under international law standards, a
regulation that amounted (by virtue of its scope and effect) to a taking, would
need to be ‘for a public purpose’ (in the sense of in general, rather than for a
private interest). And just compensation would be due. At the same time,
interferences with property for economic and financial regulatory purposes are
tolerated to a significant extent.”256
311. The argument made by the S.D. Myers tribunal is somehow contradictory.
According to it, the BIT would require that investments not be expropriated except for a
public purpose and that there be compensation if such expropriation takes place and, at
the same time, regulatory measures that may be tantamount to expropriation would not
give rise to a claim for compensation if taken for a public purpose. The public purpose
criterion as an additional criterion to the effect of the measures under consideration
needs to be complemented. The parties have referred in their exchanges to findings of
the tribunal in Tecmed. That tribunal sought guidance in the case law of the European
Court of Human Rights, in particular, in the case of James and Others. The Court held
that “a measure depriving a person of his property [must] pursue, on the facts as well as
in principle, a legitimate aim ‘in the public interest’”, and bear “a reasonable relationship
of proportionality between the means employed and the aim sought to be realized”. This
proportionality will not be found if the person concerned bears “an individual and
excessive burden”. The Court considered that such “a measure must be both
appropriate for achieving its aim and not disproportionate thereto.” The Court found
relevant that non-nationals “will generally have played no part in the election or
designation of its [of the measure] authors nor have been consulted on its adoption”,
and observed that “there may well be legitimate reason for requiring nationals to bear a
greater burden in the public interest than non-nationals.”257
256
“The Taking of Property by the state: Recent Developments in International Law”, Recueil des Cours,
vol. III (1982), p. 331.
257
In the case of James and Others, sentence of February 21, 1986, paras. 50 and 63, and Técnicas
Medioambientales Tecmed, S.A. v. The United Mexican States (ICSID Case No. ARB(AF)/00/2),
paras. 121-122.
111
312. The Tribunal finds that these additional elements provide useful guidance
for purposes of determining whether regulatory actions would be expropriatory and give
rise to compensation.
313. The parties hold also different views on the time needed for a set of
measures to have an expropriatory effect. There is no specific time set under
international law for measures constituting creeping expropriation to produce that effect.
It will depend on the specific circumstances of the case. Arbitral tribunals have
considered that a measure is not ephemeral if the property was out of the control of the
investor for a year (Wena) or an export license was suspended for four months (Middle
East Cement), or that the measure was ephemeral if it lasted for three months (S.D.
Myers). These cases involved a single measure. When considering multiple measures,
it will depend on the duration of their cumulative effect. Unfortunately, there is no
mathematical formula to reach a mechanical result. How much time is needed must be
judged by the specific circumstances of each case. As expressed by the tribunal in
Generation Ukraine: “The outcome is a judgment, i.e., the product of discernment, and
not the printout of a computer program.”258
(iii) Breach of Contract and Expropriation
314. Whether contract rights may be expropriated is widely accepted by the
case law and the doctrine. The discussion by the parties reflects more a question of
whether in the specifics of the instant case the alleged breaches of the Province can be
considered to be such. As repeatedly stated by the Respondent, the Province with its
actions did no more than to comply with the Concession Agreement and the Regulatory
Framework. Therefore, according to the Respondent, ABA was not entitled to the
alleged rights which supposedly the Province ignored.
315. The Tribunal agrees that contractual breaches by a State party or one of
its instrumentalities would not normally constitute expropriation. Whether one or series
of such breaches can be considered to be measures tantamount to expropriation will
depend on whether the State or its instrumentality has breached the contract in the
exercise of its sovereign authority, or as a party to a contract. As already noted, a State
258
Rejoinder, quote in para. 1027.
112
or its instrumentalities may perform a contract badly, but this will not result in a breach
of treaty provisions, “unless it be proved that the state or its emanation has gone
beyond its role as a mere party to the contract, and has exercised the specific functions
of a sovereign.”259
In considering each of the grounds which the Claimant has advanced
to justify its expropriation claim and to the extent that they may be characterized as
breaches of the Concession Agreement, the Tribunal will assess them from the
perspective of possible breaches of the BIT and of whether they reflect the exercise of
specific functions of a sovereign.
(iv) Legitimate Expectations
316. The issue of whether an expropriation may take place without formally
affecting the contract rights has been discussed by the parties in the context of the
frustration of the investor’s legitimate expectations when a State repudiates former
assurances, or refuses to give assurances that it will comply with its obligations
depriving the investor in whole or significant part, of the use or reasonably-to-beexpected
economic benefit of its investment. Tecmed is a clear example in which a
tribunal took into account the expectations of the investor. Argentina has dismissed the
relevance of this case on the basis that Mexico had no contract with the investor. In fact,
the tribunal in that case considered attributable to Mexico, as the sovereign, certain acts
that frustrated the expectations generated in the investor even when Mexico was not
party to the contract. That tribunal determined that the conduct of INE, the Mexican
federal agency which had issued the license, was attributable to the government.
Hence, the considerations of that tribunal are not without significance for these
proceedings:
“The political and social circumstances […] which conclusively conditioned the
issuance of the Resolution, were shown with all their magnitude after a
substantial part of the investment had been made could not have reasonably
been foreseen by the Claimant with the scope, effects and consequences that
those circumstances had. There is no doubt that, even if Cytrar [the vehicle used
259
Consortium FRCC c. Royaume du Maroc (Aff. No. ARB/00/6), Sentence arbitrale, para. 65 See also
Impregilo, para. 260.
113
by the investor] did not have an indefinite permit but a permit renewable every
year, the Claimant’s expectation was that of a long-term investment relying on
the recovery of its investment and the estimated return through the operation of
the Landfill during it entire useful life.”260
317. The tribunal then adds:
“Both the authorization to operate as landfill, dated May 1994, and the
subsequent permits granted by INE, including the Permit, were based on the
Environmental Impact Declaration of 1994, which projected a useful life of ten
years for the Landfill [footnote deleted]. This shows that even before the Claimant
made its investment, it was widely known that the investor expected its
investments in the Landfill to last for a long term and that it took this into account
to estimate the time and business required to recover such investment and
obtain the expected return upon making its tender offer for the acquisition of the
assets related to the Landfill. To evaluate if the actions attributable to the
Respondent – as well as the Resolution – violate the Agreement, such
expectations should be considered legitimate and should be evaluated in light of
the Agreement and of international law.”261
318. The expectations as shown in that case are not necessarily based on a
contract but on assurances explicit or implicit, or on representations, made by the State
which the investor took into account in making the investment. That tribunal, for
instance, took into account the declaration of 1994 and the implicit need of a long-term
operation of the landfill for the investor to be able to have a reasonable return on the
expected investment even when the specific permit was only a one-year permit. In the
case before this Tribunal, the Respondent has questioned that any of the alleged
expectations may have been created by the Province when these expectations are in
conflict with the normative system.262
Whether they actually are in conflict with the
normative system of the Concession and they have been frustrated to the extent of
260
Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States(ICSID Case No.
ARB(AF)/00/2), para 149.
261
Ibid., para. 150.
262
Rejoinder, para 1067.
114
depriving the investor of the benefits of the investment is a matter that the Tribunal will
now proceed to determine.
319. The measures and actions taken by the Province to be considered for
purposes of determining whether they amounted to an expropriation are those related to
the so called tariff conflicts, Canon recovery, the works under Circular 31(A) and the
consequential effect on the ability of ABA to obtain financing. The actions of the
provincial authorities in the case of the first tariff conflict and the Bahía Blanca works
exceeded any contractual rights by inviting customers not to pay bills even before the
administrative appeal of ABA against the decision of the ORAB was resolved, or
notwithstanding the fact that the Province had not completed the works in the Paso las
Piedras reservoir that it represented it would complete at the time of the bidding for the
Concession. The same can be said of the public threats against officials of the ORAB
for allowing ABA to resume billing of customers after the Bahía Blanca incident. These
instances show the politicization of the Concession, as H & S noted, and the lack of
commitment of the new provincial authorities to the privatization process undertaken by
their predecessors.
320. The unhelpful attitude of the authorities is also evident in the
procrastination in resolving the issue of the construction variations when the information
given the bidders proved to be incorrect and in completing the works under Circular
31(A). Even if no specific date was established for their completion, the percentage of
works completed given the bidders and the dates of completion in the respective
contracts created a reasonable expectation that the works would be completed. Even if
ABA had no right under the Concession Agreement to a revision of tariffs to recover the
Canon, it had the right to recover it to the extent that this was feasible within the existing
tariff framework; thus statements made by government officials that the Canon was not
recoverable were not in accordance with the financial terms of the Concession. There is
also no doubt that the image of the Concessionaire was damaged by the actions of the
Province vis-à-vis its customers at the time when it was crucial for the privatized service
to take hold.
115
321. However, the politicization of the Concession or the actions taken by the
Province were not the only cause of OPIC’s denial of financing. The letter of OPIC
referred also to the capital requirements of the Concession as compared to the
revenues generated by the existing tariff level were the tariff regime not amended. The
conclusions reached by the Tribunal on the recovery of the Canon and the RPI are also
significant for purposes of the determination of the degree of impact that the actions of
the Province had on Azurix’s investment. The Tribunal disagrees with the understanding
of the Claimant of the terms of the Law and the Concession Agreement on these
matters. Were this not the case, the Tribunal would agree that the breaches of the
Concession Agreement would have had a devastating effect on the financial viability of
the Concession, but the Claimant has been unable to convince the Tribunal of the
correctness of its understanding of the terms of the Law and the Concession
Agreement.
322. Therefore, the Tribunal finds that the impact on the investment attributable
to the Province’s actions was not to the extent required to find that, in the aggregate,
these actions amounted to an expropriation; Azurix did not lose the attributes of
ownership, at all times continued to control ABA and its ownership of 90% of the shares
was unaffected. No doubt the management of ABA was affected by the Province’s
actions, but not sufficiently for the Tribunal to find that Azurix’s investment was
expropriated.
323. The Tribunal will turn now to whether the other standards of protection in
the BIT were violated as claimed by Azurix. The Tribunal has grouped the arguments
made under the heading of “Transparency” under ”Fair and Equitable Treatment.”
2. Fair and Equitable Treatment
(a) Positions of the Parties
324. Azurix first refers to Article II(2)(a) of the BIT which provides that
“[i]nvestment shall at all times be accorded fair and equitable treatment,…and shall in
no case be accorded treatment less than required by international law.” The BIT
emphasizes this treatment by including it in the preamble: “agreeing that fair and
equitable treatment of investment is desirable in order to maintain a stable framework
116
for investment and maximum effective use of economic resources…” Azurix notes that
the BIT does not include a definition of the phrase “fair and equitable” and that its
meaning revolves on whether it means the minimum standard required by international
law or whether “the phrase represents an independent, self-contained principle, which
must be given its ‘plain meaning’ pursuant to the general principle for interpreting
treaties in Article 31 of the Vienna Convention.”263
325. The Claimant argues that, on the basis of the text of Article II(2)(a),
doctrine and case law, the phrase in question does not refer to the minimum standard.
In particular, the Claimant relies on the opinion of F.A. Mann:
“[t]he terms ‘fair and equitable treatment’ envisage conduct which goes far
beyond the minimum standard and afford protection to a greater extent and
according to a much more objective standard that any previously employed form
of words. A tribunal would not be concerned with a minimum, maximum or
average standard. It will have to decide whether in all the circumstances the
conduct in issue is fair and equitable or unfair and inequitable. No standard
defined by other words is likely to be material. The terms are to be understood
and applied independently and autonomously.”264
326. The Claimant analyzes the text of the provision and considers that the
comma separating the phrase of fair and equitable treatment from the treatment
required by international law would seem to indicate a sequence of standards and,
“strongly suggests that the latter is intended to be a self-contained standard
independent of the former. Moreover, the introductory phrase, ‘in no case … less than
that required by international law‘, appears to establish the international law standard
as the minimum standard against which, ipso facto, the ‘fair and equitable treatment’
standard must be deemed a higher, more rigorous standard.”265
327. The Claimant notes that a position paper of UNCTAD on the meaning of
‘fair and equitable treatment” reaches the conclusion that “[t]hese considerations point
263
Memorial, p. 181.
264
F.A. Mann, “British Treaties for the Promotion and Protection of Investments,” 52 Brit. & B.
International Law (1982) p. 244. Quoted in the Memorial, p. 181.
265
Memorial, p. 182.
117
ultimately towards fair and equitable treatment not being synonymous with the
international minimum standard.”266
328. The Claimant refers to Pope & Talbot, and to the fact that the tribunal in
that case relied on Mann’s article and UNCTAD’s paper extensively in its reasoning.
That tribunal held that the standard under NAFTA was different from the minimum
international law requirement and considered that “compliance with the fairness
elements must be ascertained free of any threshold that might be applicable to the
evaluation of measures under the minimum standard of international law”. The tribunal
rejected that the State’s conduct needed to be egregious, outrageous, shocking or
otherwise extraordinary, which is the standard applied in Neer.267
329. The Claimant also refers to the plain meaning of fair and equitable. Fair
means impartial, honest, free from prejudice, favoritism and self interest, equitable is
just, conformable to the principles of justice and right.
330. The Claimant alleges that Argentina breached this standard because as it
occurred in Pope & Talbot,
“Azurix’s Investment was subjected by the Province to refusals to provide
necessary information (DPTC records), indefinite delays in verifying information
and taking decisions (Resolution 7/00, property improvements and ABA’s
proposal for equivalence of Valuations 1958), assertions of non-existent policy
reasons and requests for unnecessary information (cost study for RPI
adjustment), manipulation of contract language while ignoring express
representations during the contracting process (Resolution 1/99 and Information
Communiqué No. 12), changes of position (Canon), public vilification and
administrative fines for actions for which the Province was responsible (Circular
31(A) Works), and threats of criminal action against ABA’s directors.”268
266
UNCTAD, “Fair and Equitable Treatment,” No. E. 99, II.D.15 (1999) Quoted in the Memorial, p. 182.
267
Memorial, pp.182-183.
268
Ibid., p. 190.
118
331. All this occurred, according to the Claimant, because the Province needed
money to balance its budget deficit and was unwilling to allow water increases because
it would be a political problem for the new administration.269
332. In its Counter-Memorial, Argentina disagrees on the meaning of fair and
equitable, which it considers inextricably attached to the international minimum
standard, on the controversial appreciation of the facts, which do not constitute a
violation of the standard, and on the autonomous characterization of the standard.
333. Argentina argues that there are very few awards and authors that
postulate the assertion that the standard of fair and equitable treatment is different from
the minimum international standard. Based on the findings of the tribunals in Genin,
Azinian, and S.D. Myers, Argentina considers that the meaning of this standard is
“related to the purpose of providing a basic and general principle”, “constitutes a
minimum international standard”, and “for it to be violated it is necessary that the State
receiving the investment incur in acts that demonstrate a premeditated intent to not
comply with an obligation, insufficient action falling below international standards or
even subjective bad faith.”270
The Respondent emphasizes that in Myers the tribunal
stated that Article 1105(1) of the NAFTA imposes “fair treatment at a level acceptable to
the international community, measured with the highest degree of deference towards
domestic authorities.” Thus, “[o]nly the reasonableness of the measure claimed to be
grievous must be measured, and this, with deference.”271
334. Argentina expresses its agreement with the binding interpretation of Article
1105(1) of NAFTA by the Free Trade Commission (“FTC”). The FTC interpreted the
article as follows:
“1. Article 1105(1) prescribes the customary international law minimum standard
of treatment of aliens as the minimum standard of treatment to be afforded to
investments of investors of another Party.
269
Ibid., p. 191.
270
Counter-Memorial, para. 981.
271
Ibid., para. 987. Emphasis added by the Respondent.
119
2. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’
do not require treatment in addition to or beyond that which is required by the
customary international law minimum standard of treatment of aliens.
3. A determination that there has been breach of another provision of the
NAFTA, or of a separate international agreement, does not establish that there
has been a breach of Article 1105(1).”
335. The Respondent also manifests its agreement with the provision of Article
10.4 of the Free Trade Agreement between the United States of America and Chile
which in reference to “fair and equitable treatment” and “full protection and security”
“does not require treatment in addition or beyond that which is required by that standard
and does not create additional substantive rights.”272
336. The Respondent denies the contention of Azurix that this standard would
refer to the expectations of the investor not being frustrated by legislation, rules and
regulations and adduces as reasons for casting aside this conception that, “Fairness
and equitableness may require (not merely allow) the amendment of a legal system.
Such would be the case if, for example, the beneficiary of such legal system is causing
harm to others. This is frequently true in environmental and health matters…thus
violating the fundamental juristic principle forbidding causing harm.” The Respondent
argues that, “Any acceptable concept of what constitutes ‘property’ incorporates as
property rights the expectations based on the legal system that begets them. Therefore,
in the event of changes to such system (or of the property rights or of the vested rights),
the aggrieved party is faced not with unfair treatment but rather with an alleged
expropriatory treatment. The legitimate expectations, as part of any reasonable concept
of property, are protected by a different standard.”273
337. Argentina questions the facts on which the alleged breach of this standard
is claimed by Azurix. Referring to the list of expectations reproduced early here,
Argentina qualifies them as rash or extremely vague or semantic labels rather than
272
Ibid., para. 993.
273
Ibid., para. 985.
120
description of the facts.274
Argentina argues that, in terms of the standard proposed,
Argentina cannot be held responsible for a breach of the BIT nor can it be held to have
breached it even under the standard proposed by Azurix. Neither the Province nor
Argentina departed from applicable legislation, rules and regulations.
338. Argentina disagrees with the autonomous categorization of unfair and
inequitable acts. The facts, measures, events, acts and omissions described by the
Claimant in violation of the fair and equitable standard are the same as those alleged to
be expropriatory, “[s]uch is the extent of this identification that when it comes to claiming
a compensation only the expropriation of the investment is taken into account.”275
339. Argentina maintains that the events or acts that qualify as expropriation
cannot be the same as those that qualify as unfair and inequitable treatment.
Depending on their legal qualification, facts produce different legal consequences.
According to Argentina, ”confusion between expropriatory acts and acts constituting
unfair treatment renders one of the two claims invalid.”276
Argentina then contests the
supposed strategy of Azurix to pursue the two claims so that if the Tribunal would not
consider the measures expropriatory then they could be considered as constituting
unfair and inequitable treatment with a claim to the same compensation. Argentina
questions that this could be the case,
“unfair treatment can never be characterized as the loss of a property right
because that is precisely the core of an expropriation … The unfair treatment
should generate some other form of damage, a detrimental consequence other
than the alleged loss of property rights. It should be a consequence as
independent from the expropriation damage consequence as the acts that trigger
the application of this second standard are (or ought to be) independent and
autonomous of the events that caused the application (or non-application) of the
first standard.”277
274
Ibid. para. 998.
275
Ibid., para 1000.
276
Ibid., para. 1004.
277
Ibid., para. 1006.
121
340. Argentina supports further its argument by referring to Azinian. In that
case, the claimant had alleged violations of Articles 1110 and 1105 of NAFTA. The
tribunal reasoned that,
“The only conceivably relevant substantive principle of Article 1105 is that a
NAFTA investor should not be dealt with in a manner that contravenes
international law. There has not been a claim of such a violation of international
law other than the one more specifically covered by Article 1110. In a feeble
attempt to maintain Article 1105, the Claimants’ Reply Memorial affirms that the
breach of the Concession Contract violated international law because it was
‘motivated by non-commercial considerations, and compensatory damages were
not paid.’ This is but a paraphrase of a complaint more specifically covered by
Article 1110. For the avoidance of doubt, the Arbitral Tribunal therefore holds that
under the circumstances of this case if there was no violation of Article 1110,
there was none of Article 1105.”
Argentina considers that the same reasoning applies to the instant case.
341. In its Reply, the Claimant alleges that the interpretation of Article II(2)(a) of
the BIT by the Respondent is erroneous. According to the Claimant, the basic
touchstone of fair and equitable treatment is to be found in the legitimate and
reasonable expectations of the parties. The Claimant considers that, as recommended
by Jan Paulsson, the Tribunal should examine ”the impact of the measure on the
reasonable investment backed-expectations of the investor, and whether the state is
attempting to avoid investment-backed expectations that the state created or reinforced
through its own acts.”278
The Claimant finds support for this view in Tecmed where the
tribunal held that fair and equitable treatment requires treatment by the Contracting
Parties “that does not affect the basic expectations that were taken into account by the
foreign investor to make the investment.”279
342. The Claimant argues that this standard encompasses more specific
standards recognized by international tribunals the breach of which entails the breach of
278
Reply, quote in para. 685.
279
Ibid.
122
the fair and equitable treatment standard, such as that a government will obey its own
laws and customary international law, will act honestly, transparently, consistently with
representations made and in good faith. As part of good faith, according to the
Claimant, the State’s rights must be exercised reasonably and within the limits of
international law, domestic law and the contract, otherwise it incurs in abuse of those
rights.280
343. The Claimant questions the interpretation of ICSID awards by the
Respondent. According to the Claimant, in Genin the tribunal did not attempt to develop
a comprehensive definition of the meaning of fair and equitable treatment, as opposed,
for instance, to the full analysis provided in Tecmed. The standard in NAFTA is different
from the standard in the BIT. Article 1105(1) of NAFTA states that investments must be
provided “treatment in accordance with international law, including fair and equitable
treatment and full protection and security” (emphasis added by the Claimant). This text
differs from the corresponding provision of the BIT in the way “international law” and
“fair and equitable treatment” are connected. For the Claimant, it is evident that, under
the BIT, “fair and equitable treatment” is “a separate requirement and additional
requirement from the international law standard, and that international law sets a floor,
indicating that ‘fair and equitable treatment’ requires something different from and more,
but never less, than international law.”281
344. According to the Claimant, even in S.D. Myers the tribunal did not say
what the Respondent pretends. The tribunal held that the standard is breached when
“an investor has been treated in such an unjust or arbitrary manner that the treatment
rises to the level that is unacceptable from the international perspective.” That tribunal
concluded that Canada had acted in a discriminatory manner and had breached Article
1102, and such breach also entailed a breach of the fair and equitable standard
provided in Article 1105.282
345. The Claimant observes that the minimum standard argument of the
Respondent is based on the standard set in Neer in the 1920s and that the standard
280
Ibid., paras. 687-693.
281
Ibid., para. 699.
282
Ibid., para. 701.
123
has evolved as pointed out in Mondev: The minimum standard today cannot be limited
to the content of customary international law as recognized in arbitral decisions in the
1920s; what is unfair or inequitable to today’s eye need not equate with the outrageous
or egregious. In that tribunal’s view: “there can be no doubt that, by interpreting Article
1105(1) to prescribe the customary international law minimum standard of treatment of
aliens as the minimum standard of treatment to be afforded to investments of investors
of another Party under NAFTA, the term “customary international law” refers to
customary international law as it stood no earlier than the time at which NAFTA came
into force.” The customary international law standard is defined by the ordinary
meaning of the terms “fair and equitable”.283
Tecmed, on the other hand, maintains that
this standard requires the contracting parties “to provide to international investments
treatment that does not affect the basic expectations that were taken into account by the
foreign investor to make the investment.”284
346. Then the Claimant turns to the Respondent’s contention that Azurix’s
confuses the meaning of expropriatory acts and acts constituting unfair and inequitable
treatment. The Claimant argues that the BIT provides rights that are independent from
each other and the breach of any one of them would entitle the investor to resort to the
dispute settlement procedure provided by the BIT and would give rise to a right to
compensation for the economic harm sustained. What are independent are the rights
under the BIT not necessarily the measures that have breached those rights.285
347. The Claimant addresses the question of which losses suffered by Azurix
could be attributed to unfair and inequitable treatment and which to expropriation.
According to the Claimant, unfair and inequitable treatment does not generate a
different form of damage. The real question that Argentina is raising is whether Azurix is
claiming double recovery. The Claimant affirms that this is not the case. Azurix is
entitled to recover its full damages, but only once. The Claimant quotes from S.D. Myers
on the cumulative nature of the rights and remedies under BITs:
283
Ibid., para. 703.
284
Tecmed, para. 154, quoted in the Reply, para. 705.
285
Reply, paras. 715-718.
124
“When both Article 1102 and 1105 have been breached, as the Tribunal has
found in this case, the usual principle to be applied is that rights and remedies
under trade agreements are cumulative unless there is actual conflict between
different provisions. The fact that a host Party has breached both Article 1102
and Article 1105 cannot be taken to mean that the investor is entitled to less
compensation than if only Article 1103 were breached. A host Party does not
reduce the extent of its liability by breaching more than one provision of the
NAFTA.”286
348. The Claimant argues that it has provided the Tribunal a discrete damage
evaluation that identifies which damages were caused by each of the measures. This
should be sufficient to answer Argentina’s question. As regards the Respondent’s
question about the causal relationship between an unfair act and the damage that the
expropriatory is alleged to have caused, the Claimant considers that this concern has
become meaningless once it has been shown that the same measure may breach more
than one right under the BIT and the analysis of damages presented by Azurix allows
the Tribunal to identify the impact caused by each measure of Argentina.287
349. The Claimant observes that the Respondent qualifies Azurix’s claims as
rash and states that they are not independent and cannot be analyzed, but it does not
explain the reasons for these statements. The Claimant alleges that Argentina is wrong
on both counts and lists in non-exhaustive form the ways in which the Province
frustrated Azurix’s expectations by not allowing to charge tariffs in accordance with the
Concession Agreement, by repudiation of Circular 52(A), by refusing to accept ABA’s
termination of the Concession, by refusal to return the non-amortized portion of the
investments, by not allowing ABA to collect the receivables, by requiring that ABA
continue to operate the service for more than 90 days, by imposing arbitrary penalties,
by politicizing the tariff regime, by publicly calling on customers not to pay their bills, by
provoking the illegal intervention of the Provincial Domestic Trade Bureau to enjoin ABA
from billing for its services.288
286
Ibid., paras. 715-722.
287
Ibid., paras. 723-725.
288
Ibid., paras. 725-727.
125
350. In the Rejoinder, the Respondent points out that it never referred to Neer
in the Counter-Memorial, and contests the interpretation given by the Claimant to
Tecmed. According to the Respondent, Tecmed and Genin arrive to the same
conclusion. The Mexican authorities had engaged in conduct that was notoriously
unfair. This was not the case of ABA’s treatment, which was never a cooperative
investor and had breached the Concession Agreement. Tecmed supports the Argentine
position because it distinguishes between “the object of protection (that could be
legitimate expectations, good faith and transparency) from the level of protection
granted by the Treaty”. The Respondent emphasizes that its own concept of fair and
equitable permits to differentiate between standards rather than collapse them. The
Respondent notes that the Reply does not change the fact that NAFTA tribunals apply a
minimum standard defined more recently in Waste Management:
“…despite certain differences in emphasis, a general standard for Article 1105
arises. Taken together, cases S.D. Myers, Mondev, ADF and Loewen suggest
that the minimum standard of fair and equitable treatment is infringed by conduct
attributable to the State and harmful to the claimant if the conduct is arbitrary,
grossly unfair, unjust or idiosyncratic, is discriminatory and exposes claimant to
sectional or racial prejudice or involves a lack of due process leading to an
outcome which offends judicial propriety- as may be the case with a manifest
failure of natural justice in judicial proceedings or a complete lack of transparency
and candour in an administrative process. In applying this standard it is relevant
that the treatment is in breach of representations made by the host State which
were reasonably relied on by the claimant.”289
351. The Respondent concludes that this is the standard applied in NAFTA,
which delimits the level of violation from the object of the protection, and the scope that
the Claimant gives to the standard would make irrelevant all the standards of protection
because it would encompass them all.290
289
Rejoinder, quote in para. 1077.
290
Ibid., paras. 1078 and 1080.
126
352. As regards Article II(7) of the BIT, the Claimant has argued that the
Respondent breached its duty of transparency under this article. The Claimant points
out that Article II(7) of the BIT requires that “each Party shall make public all laws,
regulations, administrative practices and procedures, and adjudicatory decisions that
pertain to or affect investments.” This requirement prevents States, according to the
Claimant, from imposing undisclosed laws, regulations or practices that adversely affect
investments. The Claimant refers to how the tribunal in Metalclad understood a similar
provision in NAFTA. That tribunal understood the concept of transparency “to include
the idea that all relevant legal requirements for the purpose of initiating, completing and
successfully operating investments made, or intended to be made, under the [NAFTA]
should be capable of being readily known to all affected investors of another Party.
There should be no room for doubt or uncertainty on such matters.”291
The Claimant
argues that the transparency provision under the BIT is reinforced by the requirement of
a transparent regulatory environment under the Law and the Concession Agreement.
Specifically, the ORAB never made public its “regulations, administrative practices and
procedures”. The Concession Agreement requires the ORAB to rule on any proposals
for tariff adjustment within the period set in the “procedural regulation”. If such regulation
had been issued, compliance with it would have prevented the dilatory tactics that
compromised the tariff regime.292
353. The Claimant observes that the ORAB was established as an autonomous
entity under the Law and had exclusive authority to supervise the Concession.
Regardless of this fact, the decisions of the ORAB were controlled and dictated by the
MOSP. To this allegedly improper influence, the Claimant attributes the request of the
RPI study and other instances may be established circumstantially:
“because the ORAB candidly told ABA that, although they believed it was correct
in its position on Resolution 1/99, they could not undo it because of political
pressures. This is confirmed by the statements to ABA by Minister Romero and
Undersecretary García about the political problems created by increased water
bills. And in fact (based on Minister’s Romero’s comments) newspapers reported
291
Memorial, p. 216.
292
Ibid., pp. 216-217.
127
that the ORAB would issue a resolution forcing withdrawal of the bills before the
ORAB ever met to issue Resolution 1/99. Similarly, the ORAB President told
ABA the ORAB could not grant the RPI adjustment because of political pressure
from the MOSP, and ORAB directors said the Bahía Blanca ‘crisis’ was not
ABA’s fault, but when the Governor and the MOSP Minister publicly attacked
ABA, the ORAB also took actions against the company. These actions are
consistent with the Governor’s pronouncement to Azurix and ABA.”293
354. The Minister also admitted before the provincial House of Representatives
that there was still a great lack of transparency on the regulation of the concessionaires:
“The other element we consider worth mentioning is Resolution 16 under which
controlling entities are to make public all their decisions. This is a point we should
like to emphasize since we consider there used to be a great lack of
transparency – and there still is – on the control of companies under concessions
in Argentina”.294
355. In its Counter-Memorial, the Respondent considered that the Metalclad
case was not relevant because of the different circumstances of that case which
concerned a regulatory conflict between different jurisdictions of a Federal State.295
356. Azurix insists in its Reply that the case is analogous to the instant case
and provides useful guidance on the application of the transparency standard: “the facts
of the present case are more compelling than Metalclad since the BIT explicitly requires
that ‘[e]ach party shall make public all…administrative practices and procedures […],’
and the Province indisputably failed to do so.”296
The Claimant also observes that this
standard has been applied by other tribunals besides in Metalcald. In Maffezini the
tribunal held that the lack of transparency in a loan transaction was incompatible with
Spain’s commitment to ensure fair and equitable treatment of the investor, and in
Tecmed the tribunal found that the State had an obligation in applying the fair and
293
Ibid., p. 217.
294
Quoted in the Memorial, p. 216.
295
Counter-Memorial, para. 1049.
296
Reply, para. 756.
128
equitable treatment standard to act ‘totally transparently in its relations with the foreign
investor…’”297
357. The Respondent, in the Rejoinder, simply affirms its previous defense,
and points out its surprise that the Province is accused of lack of transparency when it
was Azurix and ABA “who after being in charge of the Service provision, pretended to
make an attempt against the terms of the Contract that they had known and
accepted.”298
(b) Considerations of the Tribunal
358. The arguments exchanged by the parties raise the following issues:
1. Whether the standard of fair and equitable treatment is a standard which entails
obligations for the parties to the BIT in the treatment of foreign investment which are
additional to those required by the minimum standard of treatment of aliens under
customary international law;
2. What conduct attributable to the State can be characterized as unfair and
inequitable? In other words, what is the substantive content of the standard?; and
3. Whether Article II(7) of the BIT has been breached.
359. In discussing the first issue, the Tribunal will start by considering the
specific provision of the BIT on fair and equitable treatment and recall that the BIT is an
international treaty that should be interpreted in accordance with the norms of
interpretation established by the Vienna Convention. As already noted, the Vienna
Convention is binding on the parties to the BIT. Article 31(1) of the Convention requires
that a treaty be “interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose”.
360. In their ordinary meaning, the terms “fair” and “equitable” used in Article
3(1) of the BIT mean “just”, “even-handed”, “unbiased”, “legitimate.”299
As regards the
purpose and object of the BIT, in its Preamble, the parties state their desire to promote
297
Ibid., para. 757.
298
Rejoinder, para. 1087.
299
Oxford English Dictionary. These terms are similarly defined in Diccionario de la lengua española,
22nd
edition at www.rae.es.
129
greater cooperation with respect to investment, recognize that “agreement upon the
treatment to be accorded such investment will stimulate the flow of private capital and
the economic development of the Parties”, and agree that “fair and equitable treatment
of investment is desirable in order to maintain a stable framework for investment and
maximum effective use of economic resources.” It follows from the ordinary meaning of
the terms fair and equitable and the purpose and object of the BIT that fair and
equitable should be understood to be treatment in an even-handed and just manner,
conducive to fostering the promotion of foreign investment. The text of the BIT reflects a
positive attitude towards investment with words such as “promote” and “stimulate”.
Furthermore, the parties to the BIT recognize the role that fair and equitable treatment
plays in maintaining “a stable framework for investment and maximum effective use of
economic resources.”
361. Turning now to Article II.2(a), this paragraph provides: “Investment shall at
all times be accorded fair and equitable treatment, shall enjoy full protection and
security and shall in no case be accorded treatment less than required by international
law.” The paragraph consists of three full statements, each listing in sequence a
standard of treatment to be accorded to investments: fair and equitable, full protection
and security, not less than required by international law. Fair and equitable treatment is
listed separately. The last sentence ensures that, whichever content is attributed to the
other two standards, the treatment accorded to investment will be no less than required
by international law. The clause, as drafted, permits to interpret fair and equitable
treatment and full protection and security as higher standards than required by
international law. The purpose of the third sentence is to set a floor, not a ceiling, in
order to avoid a possible interpretation of these standards below what is required by
international law. While this conclusion results from the textual analysis of this provision,
the Tribunal does not consider that it is of material significance for its application of the
standard of fair and equitable treatment to the facts of the case. As it will be explained
below, the minimum requirement to satisfy this standard has evolved and the Tribunal
considers that its content is substantially similar whether the terms are interpreted in
130
their ordinary meaning, as required by the Vienna Convention, or in accordance with
customary international law.300
362. Argentina has declared its agreement with the interpretation of Article
1105 of NAFTA by the “FTC. This article bears the heading of the “Minimum Standard
of Treatment”. Paragraph 1 reads as follows: “Each Party shall accord to investments of
investors of another Party treatment in accordance with international law, including fair
and equitable treatment and full protection and security.” In this provision, the standards
of fair and equitable and full protection and security are defined as part of the treatment
in accordance with international law. As interpreted by the FTC, the standard of
treatment, and as indicated in the title of the article, is the minimum required under
customary international law.
363. Argentina has also drawn the attention of the Tribunal to recent Free
Trade Agreements (FTAs) entered by the United States, such as the Free Trade
Agreement with Chile, where the minimum treatment required is that required under
international law. The interpretation of the FTC or the examples of FTAs adduced by the
Respondent may be evidence of a significant practice by one of the parties to the BIT,
but the Tribunal has difficulty in reading it in the text of the BIT which governs these
proceedings. The fact that the FTC interpreted Article 1105 in reaction to a tribunal’s
different understanding of this article and that, in recent agreements, the correlative
clause has been drafted to reflect the FTC’s interpretation show that the meaning of that
article and similar clauses in other agreements could reasonably be understood to have
a different meaning.
364. The question whether fair and equitable treatment is or is not additional to
the minimum treatment requirement under international law is a question about the
substantive content of fair and equitable treatment and, whichever side of the argument
one takes, the answer to the question may in substance be the same.
365. In 1927, the US-Mexican Mixed Claims Commission considered in the
Neer case that a State has breached the fair and equitable treatment obligation when
300
See Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States (ICSID Case No.
ARB(AF)/00/2), para. 155.
131
the conduct of the State could be described as outrageous, egregious or in bad faith or
so below international standards that a reasonable and impartial person would easily
recognize it as such. This description of conduct in breach of the fair and equitable
treatment standard has been considered as the expression of customary international
law at that time. In deciding the determinant elements of fair and equitable treatment,
the question for the Tribunal is whether, at the time the BIT was concluded, customary
international law had evolved to a higher standard of treatment.
366. The parties have interpreted differently how arbitral tribunals have
understood this standard. We will turn to the cases discussed. Argentina has placed
particular emphasis on Genin. In that case, the tribunal had to decide on whether the
investor had been treated fairly and equitably in the context of the revocation of a
banking license. The tribunal found no breach of the standard because there were
ample grounds for the action taken by the Bank of Estonia. The tribunal in considering
the meaning of fair and equitable did not engage in a textual analysis of the fair and
equitable treatment clause in the US-Estonia BIT but simply referred to how this
requirement has been generally understood under international law, namely, an
international minimum standard separate from domestic law but “that is, indeed, a
minimum standard.”301
According to the same tribunal, for State conduct to breach
such standard, it would need to reflect “a willful neglect of duty, an insufficiency of action
falling far below international standards, or even subjective bad faith.”302
367. Notwithstanding the finding that, in the circumstances of the case, Estonia
did not breach the duty of fair and equitable treatment, the tribunal seems to have been
uneasy about letting the conduct of Estonia stand without criticism and considered it
necessary to express the hope that “Bank of Estonia will exercise its regulatory and
supervisory functions with greater caution regarding procedure in the future.”303
In
considering the award of costs, the same tribunal noted that “the awkward manner by
which the Bank of Estonia revoked EIB’s license, and in particular the lack of prior
notice of its intention to revoke EIB’s license and of any means for EIB or its
301
Para. 367.
302
Ibid.
303
Ibid., para. 372.
132
shareholders to challenge that decision prior to its being formalized, cannot escape
censure.”304
368. Arbitral tribunals under NAFTA have found, after the interpretation of the
FTC, that the customary international law to be applied is the customary international
law as it stood in 1994 not in 1927. In Mondev, the tribunal considered that “the content
of the minimum standard today cannot be limited to the content of customary
international law as recognized in arbitral decisions in the 1920s.”305
The tribunal noted
that the parties in that case agreed that the international standard of treatment has
evolved as all customary international law had evolved, and that the two other State
parties to NAFTA also agreed with this point.306
Therefore, the customary international
law to be applied “is not limited to the international law of the 19th
century or even of the
first half of the 20th
century, although decisions from that period remain relevant. In
holding that Article 1105(1) refers to customary international law, the FTC
interpretations incorporate current international law, content, the content of which is
shaped by the conclusion of more than two thousand bilateral investment treaties and
many treaties of friendship and commerce. Those treaties largely and concordantly
provide for ‘fair and equitable’ treatment of and, and for ‘full protection and security’ for,
the foreign investor and his investments.”307
Applying this evolutionary concept to
customary international law, the tribunal found that “To the modern eye, what is unfair or
inequitable need not equate with the outrageous or the egregious. In particular, a State
may treat foreign investment unfairly and inequitably without necessarily acting in bad
faith.”308
369. The tribunal in Loewen came to a similar conclusion: “Neither State
practice, the decisions of international tribunals nor the opinion of commentators
304
Ibid., para. 381.
305
Mondev International Ltd. v. United States of America (ICSID Case No. ARB(AF)/99/2), Award of
October 11, 2002, para. 123.
306
Ibid., para. 124.
307
Ibid., para. 125.
308
Ibid., para.116. The tribunal in ADF affirmed the same point: “what customary international law
projects is not a static photograph of the minimum standard of treatment of aliens as it stood in 1927
when the Award in the Neer case was rendered. For both customary international law and the
minimum standard of treatment of aliens it incorporates, are constantly in a process of development.”
ADF Group, Inc. v. USA, (ICSID Case No. ARB(AF)/00/1) Award of January 9, 2003, para.179.
133
support the view that bad faith or malicious intention is an essential element of unfair
and inequitable treatment or denial of justice amounting to a breach of international
justice.”309
370. After an analysis of arbitral decisions and awards under NAFTA, the
tribunal in Waste Management reached the conclusion that:
“the minimum standard of treatment of fair and equitable treatment is infringed by
conduct attributable to the state and harmful to the claimant if the conduct is
arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the
claimant to sectional or racial prejudice, or involves a lack of due process leading
to an outcome which offends judicial propriety – as might be the case with a
manifest failure of natural justice in judicial proceedings or a complete lack of
transparency and candor in an administrative process. In applying this standard it
is relevant that the treatment is in breach of representations made by the host
State which were reasonably relied on by the claimant.”310
371. The parties have also referred to Tecmed, which describes just and
equitable treatment as requiring:
“the Contracting Parties to provide to international investments treatment that
does not affect the basic expectations that were taken into account by the foreign
investor to make the investment. The foreign investor expects the host State to
act in a consistent manner, free from ambiguity and totally transparently in its
relations with the foreign investor, so that it may know beforehand any and all
rules and regulations that will govern its investments, as well as the goals of the
relevant policies and administrative practices or directives, to be able to plan its
investment and comply with such regulations.”311
309
The Loewen Group, Inc. and Raymond L. Loewen v. United States of America (ICSID Case No.
ARB(AF)98/3), Award of June 26, 2003, para. 132.
310
Waste Management, Inc. v. The United Mexican States (ICSID Case No. ARB(AF)/3) Award of 30
April 2004, para. 98.
311
Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States (ICSID Case No.
ARB(AF)/00/2), para. 154. Unofficial translation from the Spanish original published by ICSID on its
web site.
134
372. Except for Genin, there is a common thread in the recent awards under
NAFTA and Tecmed which does not require bad faith or malicious intention of the
recipient State as a necessary element in the failure to treat investment fairly and
equitably. As recently stated in CMS, it is an objective standard “unrelated to whether
the Respondent has had any deliberate intention or bad faith in adopting the measures
in question. Of course, such intention and bad faith can aggravate the situation but are
not an essential element of the standard.”312
It is also understood that the conduct of the
State has to be below international standards but those are not at the level of 1927. A
third element is the frustration of expectations that the investor may have legitimately
taken into account when it made the investment. The standards of conduct agreed by
the parties to a BIT presuppose a favorable disposition towards foreign investment, in
fact, a pro-active behavior of the State to encourage and protect it. To encourage and
protect investment is the purpose of the BIT. It would be incoherent with such purpose
and the expectations created by such a document to consider that a party to the BIT
has breached the obligation of fair and equitable treatment only when it has acted in
bad faith or its conduct can be qualified as outrageous or egregious.
373. Based on these considerations, the Tribunal will now turn to whether the
Respondent breached its obligation to treat the Claimant’s investment fairly and
equitably. To this effect, the Tribunal considers the instances described below to be
particularly relevant:
374. The Tribunal is struck by the conduct of the Province after the Claimant
gave notice of termination of the Concession Agreement. ABA had requested to
terminate it in agreement with the Province. The Province refused what was a
reasonable request in light of the previous behavior of the Province and its agencies.
The refusal by the Province to accept that notice of termination and its insistence on
terminating it by itself on account of abandonment of the Concession is a clear case of a
breach of the fair and equitable treatment standard. It is evident from the facts before
this Tribunal that the Concession was not abandoned.
312
CMS Gas Transportation Company v. Argentine Republic (ICSID Case No. ARB/01/8) Award of May
12, 2005, para. 280.
135
375. Although the Tribunal has rejected to a certain extent the interpretations of
the Concession Agreement and the Law alleged by the Claimant regarding the RPI and
the Canon, it is also clear that the tariff regime was politicized because of concerns with
forthcoming elections or because the Concession was awarded by the previous
government. The issues of the zoning coefficients and the construction variations are
cases in point. It is significant that, once the service was transferred, the new service
provider was allowed to raise tariffs reflecting the construction variations.
376. Finally, the repeated calls of the Provincial governor and other officials for
non-payment of bills by customers verges on bad faith in the case of the Bahía Blanca
incident when the Province itself had not completed the works that would have helped
to avoid the problem in the first place.
377. Considered together, these actions reflect a pervasive conduct of the
Province in breach of the standard of fair and equitable treatment.
378. It remains to be considered whether Argentina also breached Article II(7)
of the Treaty. Azurix bases its claim on the fact that ORAB never published its
regulations and lacked independence. Article II(7) requires publication of the laws,
regulations, adjudicatory decisions and administrative practices and procedures
pertaining or affecting investments. The Tribunal has already found that the politicization
of the Concession is an element in the Tribunal’s determination that the fair and
equitable standard has been breached. On the other hand, the Tribunal has also found
that ORAB’s request for a study in the context of the RPI was a legitimate request. The
Tribunal considers that, in view of the facts, what is at issue here is the conduct in the
application of the regulatory framework rather than its publicity. There is no doubt that
publication of ORAB’s regulations would have been a desirable improvement, but the
lack of it as argued by the Claimant is not sufficient to conclude that Article II(7) has
been breached.
136
3. Failure to Observe Obligations
(a) Positions of the Parties
379. In its Memorial, the Claimant argues that the Province and the Republic
have failed to observe their obligations as required by Article II(2)(c) of the BIT: “Each
Party shall observe any obligation it may have entered into with regard to investments.”
The Claimant refers to the fact that Article XIII of the BIT extends its application to the
political subdivisions of the Respondent and concludes from it that the BIT imposes an
obligation directly on the Province to observe its obligations to foreign investors.313
380. In the Counter-Memorial, Argentina contends that contractual claims do
not become automatically treaty claims, and that no tribunal has accepted such an
argument. Furthermore, Azurix and ABA specifically renounced to raise contractual
issues before an ICSID tribunal, and Article II(2)(c) of the BIT refers to obligations
undertaken towards specific investment agreements and not to concession contracts
governed by domestic administrative law. Argentina also observes that the Claimant
has failed to prove the existence of a cause and effect link between the event and the
loss and to povide a precise assessment of the losses. Argentina concludes its
argument by affirming that it had not undertaken any contractual obligation whatsoever
with Azurix and the same is true of the Province.314
381. In its Reply, the Claimant notes that Article II(2)(c) refers to “any
obligation”, it includes obligations arising under international law and under municipal
law; it is not limited to breaches of international agreements, which in any case is a term
that would include concession agreements. The Claimant alleges that “To limit this BIT
provision to any one category of obligations would require that limiting language be read
into the treaty, something the drafters could have done but intentionally chose not to do.
The Tribunal’s task, of course, is to construe the treaty as written, not rewrite it as the
GOA would prefer.” Any uncertainties should be interpreted in favor of the investor
given the objectives of the BIT as expressed in its preamble.315
313
Memorial, p. 192.
314
Counter-Memorial, paras. 1009-1015.
315
Reply, para. 732.
137
382. Azurix adds that the phrase “entered into” is not limited to any particular
mode or method and encompasses obligations undertaken through contract, legislation,
decrees, resolutions or regulations. Moreover, the BIT does not limit the application of
this clause to a specific investment as claimed by the Respondent, Article II(2)(c) refers
to obligations in respect of investments in plural and generically. As regards the issue
of the forum for contractual disputes provided for in the Concession Agreement, the
Claimant argues that Article VII(2) of the BIT is very clear in giving a choice to the
private party concerned between submitting the dispute to the forum previously agreed
or international arbitration. Azurix re-affirms that it had already proved that damages
had occurred during the Concession and were continuing annually as a result of the
Province’s breaches.316
383. In its Rejoinder, Argentina recalls the findings of the PCIJ in Serbian
Loans, the ICJ in ELSI, the arbitral tribunal in Woodruff, the Ad hoc Annulment
Committee in Vivendi, and the arbitral tribunals in the SGS cases, and concludes that
general international law bluntly separates contractual claims from those under
international law, that even in the case of BITs the prohibition to transubstantiate a
contractual claim into a BIT claim remains, and that when a tribunal has established
conditions for the application of an umbrella clause it has required the claimant to abide
by the contract forum clause.317
(b) Considerations of the Tribunal
384. As already stated by the Tribunal in affirming its jurisdiction within the
limits permitted by the Convention and the BIT, the Tribunal finds that none of the
contractual claims as such refer to a contract between the parties to these proceedings;
neither the Province nor ABA are parties to them. While Azurix may submit a claim
under the BIT for breaches by Argentina, there is no undertaking to be honored by
Argentina to Azurix other than the obligations under the BIT. Even if for argument’s
sake, it would be possible under Article II(2)(c) to hold Argentina responsible for the
316
Ibid., paras. 729-737.
317
Rejoinder, para. 987.
138
alleged breaches of the Concession Agreement by the Province, it was ABA and not
Azurix which was the party to this Agreement.
4. Arbitrary Measures
(a) Positions of the Parties
385. The Claimant argues that arbitrary or discriminatory measures are listed
as alternatives in the BIT and, therefore, it is sufficient that a measure be arbitrary to
constitute a breach of the BIT. In its ordinary meaning arbitrary means “a
characterization of a decision or action taken by an administrative agency… [as] willful
and unreasonable action and without consideration or in disregard of facts or law or
without determining principle.”318
The Claimant also refers to the definition of arbitrary
by the ICJ in ELSI, “Arbitrariness is not so much something opposed to a rule of law, as
something opposed to the rule of law… It is willful disregard of due process of law, an
act which shocks, or at least surprises, a sense of judicial propriety.” The Claimant
observes that this definition is too narrow and does not accord with the ordinary
meaning of arbitrariness. The Claimant refers to Pope & Talbot and its comments on the
evolution of international law, as characterized by the ICJ decision, that moves away
from the Neer formulation. According to that tribunal, the formulation in ELSI:
“leaves out any requirement that every reasonable and impartial person be
dissatisfied and perhaps permits a bit less injury to the psyche of the observer,
who need no longer be outraged, but only surprised by what the government has
done. And, of course, replacing the neutral ‘governmental action’, with the
concept of ‘due process’ perforce makes the formulation more dynamic and
responsive to evolving and more vigorous standards for evaluating what
governments do to people and companies.”319
386. The Claimant maintains that to determine whether an action is or not
arbitrary in its ordinary meaning should meet four tests: it should be taken by the proper
authority, for the proper purpose, because of relevant circumstances and should not be
patently unreasonable. In accordance with these tests, the measures taken by the
318
Memorial, p. 217.
319
Ibid, p. 208.
139
Province were arbitrary. Resolution 1/99 was issued for an improper purpose, the tariff
regime was improperly applied, the issues related to Circular 58(A) were not dealt within
reasonable periods of time, the RPI was denied for irrelevant reasons, the Province
induced a high bid price with Circular 52(A) and then claimed that the bidder paid too
much and it could not be fully included in the base rate. The Province acted according
to the electoral needs of its officials rather than in accordance with the rule of law.320
387. The Respondent considers that the definition in ELSI is the most
appropriate. Argentina contests the relevance of Pope & Talbot, which was referring to
the concept of fair and equitable treatment not to a definition of discriminatory
measures.. The Respondent points out that, in Genin, the tribunal held that “in order to
amount to a violation of the BIT, any procedural irregularity that may have been present
would have to amount to bad faith, a willful disregard of due process of law or an
extreme insufficiency of action.”321
388. In its Reply, the Claimant insists that the meaning in the BIT should be the
ordinary meaning of its terms. Article II.2(b) uses the most general of terms, “in any
way” either party shall “impair” the management, operation, use, enjoyment,
acquisition, expansion, or disposal of investment.” The verb “impair” means “to diminish,
lessen, damage, deteriorate, or make worse.” From this the Claimant concludes that the
terms used “indicate that the prohibition is to be applied broadly to any conduct that
directly or indirectly achieves the prohibited result.”322
If the drafters would have wished
to limit the import of arbitrary measures to meaning a violation of the rule of law, they
could have said it in no uncertain terms, directly and without bothering to draft the
clause “with such precision and detail.”323
389. Argentina reaffirmed, in the Rejoinder, its understanding of arbitrary as
defined by the ICJ and not by its ordinary meaning as pretended by the Claimant.
320
Ibid, p. 211.
321
Counter-Memorial, para. 1024.
322
Reply, para. 742.
323
Ibid., 746.
140
(b) Considerations of the Tribunal
390. Article II.2(b) provides: “Neither Party shall in any way impair by arbitrary
or discriminatory measures the management, operation, maintenance, use, enjoyment,
acquisition, expansion, or disposal of investments. For the purposes of dispute
resolution under Articles VII and VIII, a measure may be arbitrary or discriminatory
notwithstanding the opportunity to review such measure in the courts or administrative
tribunals of a Party.”
391. The Tribunal agrees with the interpretation of the Claimant that a measure
needs only to be arbitrary to constitute a breach of the BIT. This interpretation has not
been contested by the Respondent and it follows from the alternative way in which the
term “measures” is qualified by the adjectives “arbitrary or discriminatory”. The parties
disagree on whether the meaning of arbitrary should be the ordinary meaning of
“arbitrary” or the meaning to arbitrary given by the ICJ in ELSI. The parties also
disagree on the relevance of Pope & Talbot to this case and Argentina has pointed out
the description of arbitrary given in Genin. The Tribunal is required to consider the
ordinary meaning of the terms used in the BIT under Article 31 of the Vienna
Convention. The findings of other tribunals, and in particular of the ICJ, should be
helpful to the Tribunal in its interpretative task.
392. In its ordinary meaning, “arbitrary” means “derived from mere opinion”,
“capricious”, “unrestrained”, “despotic.”324
Black’s Law Dictionary defines the term, inter
alia, as “done capriciously or at pleasure”, “not done or acting according to reason or
judgment”, “depending on the will alone.” Pope & Talbot did not define arbitrary as it
stood today. It only commented on the fact that the ICJ itself had moved from the
standard advocated by Canada based on Neer to a less demanding standard. Genin
does not seem to take notice of the change that has taken place when it adds the
requirement of bad faith. The Tribunal finds that the definition in ELSI is close to the
ordinary meaning of arbitrary since it emphasizes the element of willful disregard of the
law.
324
Oxford English Dictionary. This term is similarly defined in the Diccionario de la lengua española,
22nd edition at www.rae.es.
141
393. The question for the Tribunal is whether the measures taken by the
Province can be considered to be arbitrary and have impaired “the management,
operation, maintenance, use, enjoyment, acquisition, expansion, or disposal” of the
investment of Azurix in Argentina. The Tribunal finds that the actions of the provincial
authorities calling for non-payment of bills even before the regulatory authority had
made a decision, threatening the members of the ORAB because it had allowed ABA to
resume billing, requiring ABA not to apply the new tariff resulting from the review of the
construction variations and affirming that zone coefficients apply in contradiction with
the information provided to the bidders at the time of bidding for the Concession,
restraining ABA from collecting payment from its customers for services rendered
before March 15, 2002, and denying to ABA access to the documentation on the basis
of which ABA was sanctioned are arbitrary actions without base on the Law or the
Concession Agreement and impaired the operation of Azurix’s investment.
5. Full Protection and Security
(a) Positions of the Parties
394. In its Memorial, the Claimant argues that the standard of full protection
and security imposes an obligation of vigilance and due diligence upon the government,
as stated in APPL, “according to modern doctrine, the violation of international law
entailing the state’s responsibility has to be considered constituted by ‘the mere lack or
want of diligence’, without any need to establish malice or negligence”. The Claimant
defines further the standard by referring to AMT. The tribunal in that case found that:
“It would not appear useful for the Tribunal to enter into the debate whether in the
case on hand Zaire is bound by an obligation of result or simply an obligation of
conduct. The Tribunal deems it sufficient to ascertain, as it has done, that Zaire
has breached its obligation by taking no measure whatever that would serve to
ensure the protection and security of the investment in question … Zaire is
responsible for its inability to prevent disastrous consequences of these events
affecting the investments of AMT which Zaire had the obligation to protect.”325
325
Memorial, p. 213.
142
395. The Claimant proceeds to argue that the standard goes beyond physical
protection and includes the protection described in CME Czech Republic B.V.: “The
host State is obligated to ensure that neither by amendment of its laws nor by actions of
its administrative bodies is the agreed and approved security and protection of the
foreign investor’s investment withdrawn or devalued.”326
396. The Claimant alleges that Argentina breached the standard so defined by
failing to apply the regulatory framework and the Concession Agreement and thus
destroying the security provided by them: the Province never revoked Resolutions 1/99
and 7/00 or decided on the RPI adjustment or on the issue of the valuations, ABA was
never compensated for, inter alia, the Bahía Blanca damages, the Province insisted that
ABA give up the right assured by the Law, Circular 52(A) and the Concession
Agreement to recover the Canon in full, and the Respondent failed to take any action to
protect the Claimant’s investment.
397. In its Counter-Memorial, the Respondent observes that Azurix had simply
requested the use of its good offices to ensure the Province’s compliance with the
Concession Agreement. Thus Azurix was requesting assistance in a contractual dispute
between ABA and the Province.327
The Respondent refers to the view held by the ad
hoc Committee in Aguas del Aconquija and the assertion of the tribunal in that case that
“federal authorities could have reasonably considered the difference as being one of a
contractual nature, and the scope of any federal obligation to react could have been
reasonably influenced by this perception.”328
398. The Respondent argues that the nature of the dispute brought to its
attention was a contractual dispute not a dispute related to an investment, and that no
new ground may be adduced after filing, otherwise, either the claim was immature or
there was a new dispute.329
The Respondent notes that the Claimant has not
determined what specific duty to act it has breached under the BIT, and that the
326
Idem.
327
Counter-Memorial, para. 1035.
328
Ibid., para. 1037.
329
Ibid., para. 1039.
143
standard allegedly breached requires active behavior and not simply omissions in the
duty of care.330
399. The Respondent also contests the relevance of cases such as AAPL and
AMT which involved physical destruction of facilities of the investor by the armed forces.
As for the relevance of CME, the Respondent points out that it is questionable to
adduce CME without referring to Lauder where, on the basis of the same facts, the
tribunal reached the opposite conclusion.331
400. As a final argument, the Respondent requests the Tribunal, in examining
Argentina’s liability, to consider that, “during the period under review the country was
undergoing the worst economic, social and institutional crisis in its history.”332
401. In its Reply, the Claimant observes that the Respondent confuses ”its
obligation to comply affirmatively with the BIT standards in its own conduct with its
ultimate responsibility under international law for violations of the BIT by its political
subdivisions.”333
Acts or omissions of the Province that violate the BIT are “necessarily
and automatically” the responsibility of Argentina under international law. Furthermore, it
is not correct that Azurix simply requested the good offices of Argentina in a contractual
dispute. In its response, Argentina ignores clear statements in the communications of
the Claimant addressed to Argentina whereby the latter is informed not only of
contractual breaches but also of deviations from the regulatory framework and arbitrary
acts of the officers and entities of the Province which constitute violations of the BIT “for
which the Argentine Republic is directly responsible.” (letter of January 5, 2001). In
another letter dated May 24, 2001, Azurix stated:
“The purpose of this letter is to reiterate the need for the Argentine Republic to
rectify the failure to comply with its obligations under the BIT, international law
and the Concession Agreement. The Argentine Republic has an obligation to
prevent violations of the BIT and international law within its territory whether
committed by the federal government or its political subdivisions. The federal
330
Ibid., paras. 1043 and 1047.
331
Ibid., para. 1050.
332
Ibid., 1051.
333
Reply, para. 749.
144
government has an obligation to prevent expropriations [without compensation]
by it or its political subdivisions. Azurix requests that the Argentine Republic take
all necessary actions to prevent such violations …”334
402. The Claimant considers that it has amply made its case on the
responsibility of Argentina for the acts and omissions of the Province under international
law, and that , “It is unnecessary, and perhaps confusing, to analyze the GOA’s liability
as ‘absolute’ or ‘strict’ for the acts of its political subdivisions”, as mentioned by the
Respondent.335
403. As regards the allegation of the Respondent that no new grounds may be
stated, Rule 40 of the Arbitration Rules permits a party to present incidental, ancillary or
additional claims arising directly out of the subject matter of the dispute not later than
the reply memorial.336
404. The Claimant re-affirms that the standard of full protection and security is
not limited to basic police functions as alleged by Argentina. The Claimant finds nothing
in the language of the BIT that would limit the application of this standard to issues of
physical security and protection. According to the Claimant, this standard requires the
government to exercise “vigilance and use due diligence within its political and legal
system to protect investments.”337
405. In its Rejoinder, the Respondent refers to Tecmed that held that “the
guarantee of full protection and security is not absolute and does not impose strict
liability upon the State that grants it.” Based on this interpretation of the standard, the
Respondent concludes that the argument of the Claimant cannot be accepted.338
(b) Considerations of the Tribunal
406. While the cases of APPL and AMT refer to physical security, there are
other cases in which tribunals have found that full protection and security has been
breached because the investment was subject to unfair and inequitable treatment –
334
Ibid., para. 753.
335
Ibid., para. 754.
336
Ibid., para. 755.
337
Ibid., para. 758.
338
Rejoinder, para. 1088.
145
Occidental v. Ecuador – or, conversely, they have held that the obligation of fair and
equitable treatment was breached because there was a failure to provide full protection
and security – Wena Hotels v. Egypt. The inter-relationship of the two standards
indicates that full protection and security may be breached even if no physical violence
or damage occurs as it was the case in Occidental v. Ecuador.
407. In some bilateral investment treaties, fair and equitable treatment and full
protection and security appear as a single standard, in others as separate protections.
The BIT falls in the last category; the two phrases describing the protection of
investments appear sequentially as different obligations in Article II.2(a): “Investment
shall at all times be accorded fair and equitable treatment, shall enjoy full protection and
security and…” The tribunal in Occidental based its decision on a clause worded exactly
like in the BIT, and nonetheless considered that, after it had found that the fair and
equitable standard had been breached, “the question of whether in addition there has
been a breach of full protection and security under this Article becomes moot as a
treatment that is not fair and equitable automatically entails an absence of full protection
and security.”339
408. The Tribunal is persuaded of the interrelationship of fair and equitable
treatment and the obligation to afford the investor full protection and security. The cases
referred to above show that full protection and security was understood to go beyond
protection and security ensured by the police. It is not only a matter of physical security;
the stability afforded by a secure investment environment is as important from an
investor’s point of view. The Tribunal is aware that in recent free trade agreements
signed by the United States, for instance, with Uruguay, full protection and security is
understood to be limited to the level of police protection required under customary
international law. However, when the terms “protection and security” are qualified by
“full” and no other adjective or explanation, they extend, in their ordinary meaning, the
content of this standard beyond physical security. To conclude, the Tribunal, having
held that the Respondent failed to provide fair and equitable treatment to the
339
Occidental Exploration and Production Company v. Ecuador (LCIA Administered Case No. UN 3467)
Award, dated July 1, 2004, para. 187.
146
investment, finds that the Respondent also breached the standard of full protection and
security under the BIT.
VIII. Compensation
1. Positions of the Parties
409. Azurix has requested full compensation for expropriation as required by
the BIT under Article IV paragraph 1. Azurix has also argued that the expropriation was
unlawful because it did not satisfy the form and substance requirements of due process
nor was full or fair compensation paid. Therefore, Azurix claims that it is entitled to
enhanced compensation that, in the words of the Permanent Court of International
Justice in the Chorzów Factory case, “wipe-out all the consequences of the illegal act
and re-establish the situation which would, in all probability, have existed if the act had
not been committed.”340
410. Azurix has proposed four possible dates for purposes of determining the
compensation due for expropriation: (A) July 1999 just before the issuance of
Resolution 1/99 on August 4; (B) December 2000, when the MSP Undersecretary had
promised that the tariff issues would be resolved in favor of Azurix and they were not;
(C) August 2001 when the Province denied any breaches of the Concession
Agreement, the Tariff Regime or the Regulatory Framework and refused to permit ABA
to fully recover the Canon payment; and (D) November 2001 when Decree No 2598/01
was issued refusing to accept ABA’s notice of termination of October 5, 2001.
Professor Riesman in his opinion cautioned that, in a case of creeping expropriation, the
use of a later date may reward the Province for its own arbitrary conduct in regulating
the Concession.341
Azurix takes the position that “No matter what date is fixed by this
Tribunal, the Province should not be permitted to benefit from its own unlawful acts.”342
411. Azurix discusses the compensation methodologies for expropriation, and
submits claims under each one of them without expressing a preference for one or
another method. Under the actual investment method, Azurix claims to have invested
340
Memorial, pp. 218-221.
341
Exhibit to the Memorial, pp. 71-72.
342
Memorial, p. 223.
147
$449 million when it acquired the Concession, $102.4 million in additional capital
contributions to ABA, and $15 million on consequential costs including corporate
expenditures and legal costs related to negotiations with the Province. Under the book
value method and based on NERA’s report calculation for each of the four dates
referred to above, Azurix considers that the book value of the Concession in August
1999 was $516.9 million, in January 2001 $484.6 million, in August 2001 $483.9, and in
November 2001 $482.2 million.343
Alternatively, Azurix submits the possibility for the
Tribunal to consider compensation based on unjust enrichment - on the benefits
received by the Province. On this basis, the Province was enriched by the Canon, the
further investment of $102.4 million, and the time value - interest - of the funds. In the
case of the Canon, Azurix submits that in accordance with the NERA report, the
consideration of the time value would raise it to $450.5.344
412. Additionally, Azurix has claimed the amount due by customers to ABA
when the Concession was taken over by the Province and which the Province publicly
requested the customers not to pay to ABA. According to Azurix, these accounts
receivable amounted approximately to AR$120 million.
413. In its Counter-Memorial, the Respondent does not comment on the
compensation claimed by Azurix. Azurix in its Reply, considers that, by not responding,
Argentina has conceded Azurix’s damages and reaffirms them. In its Rejoinder,
Argentina notes that Azurix claimed compensation only for expropriation and questioned
the dates chosen by the Claimant as possible dates for purposes of calculating
compensation. Furthermore, Argentina argues that the standard of compensation under
the BIT is the fair market value and that value cannot be the amount paid for the
Concession when extraneous considerations influence it. Argentina recalls that the bid
of Azurix was out of line with the other bids for the concession areas and calculates
that, “considering the bids that would have maximized the revenues of the Province
from those regions [A, C1, C2, C3, and C4] excluding Azurix’s bid, the maximum
amount that would have been paid by the other bidders for the ABA Concession is
343
Ibid., pp. 225-227.
344
Ibid., pp. 227-228.
148
38.52 million dollars.”345
In any case, argues Argentina, Azurix would not be entitled to
more than 90% of the fair market value of ABA and the effect of the deep economic
crisis that affected the country on asset values cannot be disregarded.346
414. In the Post-Hearing Memorial, the Claimant has defined “full
compensation” as including, as a minimum, “(i) the unamortized value of all investments
made, including the US$438.55 million Canon payment and Azurix’s additional capital
contributions to ABA through 2002 of US$114,864,000, which were lost as a result of
the GOA [Government of Argentina]‘s actions, (ii) discrete damages in excess of US$55
million, and (iii) costs.”347
2. Considerations of the Tribunal
415. On compensation, three issues have to be addressed by the Tribunal: (i)
the difference in compensation claimed by Azurix in its various submissions, (ii) the
starting point for the calculation of damages, and (iii) the principle upon which those
damages should be based.
416. First, the Tribunal notes that Azurix’s request for compensation in its
Memorial is limited to amounts related to the Canon payment, the additional capital
contributions made, the accounts receivable and consequential costs. This request is
confirmed in the Reply. In the Post-Hearing Memorial the accounts receivable are not
included in the definition of “full compensation” and, on the other hand, an amount in
excess of $55 million is claimed on account of discrete damages detailed in the NERA
report. The Tribunal considers that the Post-Hearing Memorial is not the place to
change the submissions for compensation since the simultaneous timing of the
memorials of the parties does not permit the other party to comment on the changes
made. Thus, the Tribunal shall retain for consideration the compensation requested in
the Memorial and confirmed in the Reply. The Tribunal is aware that the discrete
damages listed in the NERA report are part of the allegations made in the Memorial but
they were not included in the calculation of compensation pleaded then by the Claimant.
345
Rejoinder, para. 1107.
346
Ibid., para. 1112.
347
Post-Hearing Memorial, para. 68.
149
417. As to the second issue, various dates in 2001 have been proposed by
Azurix. In a case of direct expropriation, the moment when expropriation has occurred
can usually be established without difficulty. In the case where indirect or “creeping”
expropriation has taken place or, as the Santa Elena tribunal put it, “the date on which
the governmental ‘interference’ has deprived the owner of his rights or has made those
rights practically useless”348
, it will be much more difficult for the tribunal to establish the
exact time of the expropriation. The difficulty is no less severe, unless the decision is
based on a single act creating liability, when the Tribunal concludes that an investor has
not received fair and equitable treatment or that it has been subjected to arbitrary
treatment or that the host State has not provided the investor the full protection and
security guaranteed by the BIT. The Iran-U.S. Claims Tribunal, in one of its awards,
decided that “where the alleged expropriation is carried out by way of a series of
interferences in the enjoyment of property”, the date of the expropriation is “the day
when the interference has ripened into a more or less irreversible deprivation of the
property rather than on the beginning date of the events”.349
It has been sometimes
argued that applying this formula would lead to an inequitable situation where the
investment’s value would be assessed at the time when the cumulative actions of the
State would have led to a dramatic devaluation of the investment. However, such a
view does not take into account that, in assessing fair market value, a tribunal would
establish that value in a hypothetical context where the State would not have resorted to
such maneuvers but would have fully respected the provisions of the treaty and the
contract concerned.
418. There can be legitimate disagreement as to the date in 2001 at which the
cumulative actions of the Province led to breaches of the Treaty; but, in the Tribunal’s
view, there can be no doubt that, by March 12, 2002 when the Province put an end to
the Concession, alleging abandonment by ABA, its breaches of the BIT had reached a
watershed. For purpose of calculating the compensation due to Azurix, this is the date
which will be retained by the Tribunal.
348
Compañía del Dessarollo de Santa Elena, S.A. v. Costa Rica (ICSID Case No. ARB/96/1), Award of
February 17, 2000, 39 ILM 1317, 1330 (2000).
349
Malek v. Iran, award 534-193-3, para. 114 (1992) (citing Int’l Technical Prods. Corp. v. Iran, Award
No. 190-302-3, at 49, 9 Iran-U.S. Cl. Trib. Rep. 206, 240-241 (1985)).
150
419. The Tribunal will now proceed to deal with the third issue relating to
compensation, i.e., the basis upon which the damages should be assessed. The
Tribunal points out that the Treaty only provides for the measure of compensation in the
case of an expropriation that meets the Treaty’s requirements that it be done for a
public purpose and be non-discriminatory. In such case, Article IV (1) of the BIT
provides:
“Compensation shall be equivalent to the fair market value of the expropriated
investment immediately before the expropriatory action was taken or became
known, whichever is earlier; be paid without delay; include interest at a
commercially reasonable rate from the date of expropriation; be fully realizable;
and be freely transferable at the prevailing market rate of exchange on the date
of expropriation”.
420. The tribunal, in the recent CMS v. Argentina case, when faced with a
similar situation, was “persuaded that the cumulative nature of the breaches discussed
here is best dealt with by resorting to the standard of fair market value. While this
standard figures prominently in respect of expropriation, it is not excluded that it might
also be appropriate for breaches different from expropriation if their effect results in
important long-term losses”.350
421. Under NAFTA, tribunals which have held that a standard of protection was
breached and no expropriation had occurred were in the same position as the Tribunal,
since NAFTA does not provide for a measure of compensation in such situations. In
three NAFTA cases, tribunals awarded damages for breaches other than expropriation,
S.D. Myers, Pope & Talbot and Feldman. The tribunal in Feldman after having
considered the other two cases concluded: “It is obvious that in both of these earlier
cases, which as here involved non-expropriation violations of Chapter 11, the tribunals
exercised considerable discretion in fashioning what they believed to be reasonable
approaches to damages consistent with the requirements of NAFTA.”351
350
CMS Gas Transmission Company v. Argentine Republic (ICSID Case No. ARB/01/8), para. 410.
351
Marvin Roy Feldman Karpa v. The United Mexican States (ICSID Case No. ARB(AF)/99/1), Award of
December 16, 2002, para. 197.
151
422. In fact, in S.D. Myers the tribunal considered that the lack of a measure of
compensation in NAFTA for breaches other than a finding of expropriation reflected the
intention of the parties to leave it open to the tribunals to determine it in light of the
circumstances of the case taking into account the principles of both international law
and the provisions of NAFTA.352
423. In MTD, another ICSID case, the tribunal found that the respondent had
breached the fair and equitable treatment obligation and accepted the Claimants’
proposal to apply the standard of compensation formulated in Chorzów. The tribunal
noted that the Respondent had not objected to the application of this standard and that
“no differentiation has been made about the standard of compensation in relation to the
grounds on which it is justified. Therefore, the Tribunal will apply the standard of
compensation proposed by the Claimants to the extent of the damages awarded.”353
424. In the present case, the Tribunal is of the view that a compensation based
on the fair market value of the Concession would be appropriate, particularly since the
Province has taken it over. Fair market value has been defined as: “the price, expressed
in terms of cash equivalents, at which property would change hands between a
hypothetical willing and able buyer and a hypothetical and able seller, acting at arm’s
length in an open and unrestricted market, when neither is under compulsion to buy or
sell and when both have reasonable knowledge of the relevant facts.”354
425. Azurix has submitted, in its Memorial, two methodologies to measure fair
market value in the present case: the actual investment and the book value. It has
asserted in addition that the argument in support of using actual investment is
compelling as the investment is recent and highly ascertainable. The Tribunal agrees
that the actual investment method is a valid one in this instance. However, the Tribunal
considers that a significant adjustment is required to arrive at the real value of the
Canon paid by the Claimant.
352
S.D. Myers v. Canada, Partial Award of November 13, 2000, paras. 303-319.
353
MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Chile (ICSID Case No. ARB/01/7), Award of May 21,
2004, para. 238.
354
International Glossary of Business Valuation Terms, American Society of Appraisers, ASA website,
June 6, 2001, p. 4.
152
426. First of all, in the Tribunal’s view, no well-informed investor, in March
2002, would have paid for the Concession the price (and more particularly, the Canon)
paid by Azurix in mid-1999, irrespective of the actions taken by the Province and of the
economic situation of Argentina at that time. In that regard, the Tribunal refers to some
of the concerns expressed by OPIC at the time it denied financing the investment plan
of ABA. As already noted, OPIC pointed out the size of the investments needed to
achieve the Concession’s objectives as compared to the estimated revenues expected
from the tariffs in effect, and considered that failure to agree on a modification of the
Concession in order to establish a sustainable situation was an obstacle to OPIC’s
financing. Yet, at the time Azurix won the Concession, the Province accepted the price
paid by Azurix as the fair market price for the Concession and the Province benefited
from the alleged aggressive price paid. Furthermore, there is no doubt that the loss in
value is partly attributable to the actions of the Province and the politicization of the
Concession.
427. More importantly, the Tribunal refers to the conclusions it reached
concerning the RPI review process and the impossibility of including the Canon in the
recoverable asset base for the purpose of tariff increases. Azurix has argued that the
right price for an auctioned item is the price paid by the winning bidder. Argentina, for
its part, argues that the fair market value of the Concession should be based on the
much lower competing bids. The function of the Tribunal is not to second-guess the
values established by the various bidders at the time of the privatization of AGOSBA,
but to try and determine what an independent and well-informed third party would have
been willing to pay for the Concession in March 2002, in a context where the Province
would have honored its obligations. In that regard, being aware that the RPI tariff
adjustment was not automatic and that the Canon could only be recoverable over the
remaining duration (some 27 years and 9 ½ months) of the Concession and on the
basis of the existing tariffs as adjusted periodically through the review process spelled
out in the Concession Agreement, such investor would have realized that his only hope
of recouping the Canon was essentially through expansion of the system and through
efficiency improvements between the periodic 5-year tariff reviews. On the other hand,
as to the RPI review process, it would have been reasonable for such an investor to
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conclude that the ORAB would have approved tariff increases from time to time to take
into account the Argentine inflation rate, if not the American one.
428. At the same time, the Tribunal cannot ignore the fact that the Province,
through its actions and inaction, contributed to the loss in value of the Concession.
When the Province accepted Azurix`s bid, it considered it as the fair market value for
the Concession and the Province benefited from the alleged aggressive price paid.
429. Considering those factors and valuing the Canon at present-day value, the
Tribunal is of the opinion that no more than a fraction of the Canon could realistically
have been recuperated under the existing Concession Agreement. The Tribunal
therefore concludes that the value of the Canon on March 12, 2002 should be
established at US$60,000,000 (sixty million US dollars).
430. Secondly, Azurix should be compensated, as part of the fair market value
of the Concession, for the additional investments to finance ABA. In its Memorial, Azurix
has claimed US$102.4 million in additional capital contributions to the initial sum
invested of US$449 million of which US$438,555,551 represent the payment for the
Canon. The amount of US$102.4 million when added to the difference between the
initial sum invested and the Canon results in investments additional to the Canon of
US$112,844,446 (one hundred and twelve million eight hundred forty-four thousand four
hundred forty-six US dollars). However, the Tribunal considers that this amount should
be reduced by US$7,603,693 (seven million six hundred and three thousand six
hundred ninety-three US dollars) which represent the aggregate of the claims presented
by Azurix on account of damages which the Tribunal has found to be related to
contractual claims -those related to the works listed in Circular 31(A) except for Bahía
Blanca355
- and that should be borne by Azurix as part of its business risk. Therefore, the
amount awarded on account of additional investments is US$105,240,753 (one hundred
and five million two hundred forty thousand seven hundred fifty-three US dollars).
431. Thirdly, Azurix has claimed AR$120 milllion on account of unpaid bills to
ABA for services rendered prior to the take over of the Concession by the Province and
which the Province directed customers not to pay to ABA. According to Argentina, only
355
NERA Report, p.170. Exhibit 19-C to the Memorial.
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an amount of about half million pesos has been paid and it is held separately. The
Tribunal notes that the amount claimed by Azurix represents all bills due by customers
on March 7, 2002. The Tribunal considers that this amount is owed by the Province to
ABA and, therefore, should not be part of the compensation awarded to Azurix..
432. Fourthly, Azurix has claimed US$15,000,000 (fifteen million US dollars) on
account of consequential damages in order to wipe out the consequences of a breach
of an international obligation. This amount relates to: (i) corporate expenditures for
negotiations with the Province, termination of the Concession and transfer of the service
(US$7.1 million), and (ii) costs for the preparation, registration, and participation in these
proceedings (US$7.9million). The Tribunal will consider the second component as part
of the award of costs of these proceedings. As for the first component, the Tribunal finds
that it has not received sufficient evidence in support of such costs and that, in any
case, these are costs related to the business risk that Azurix took when it decided to
make the investment. Therefore, while the Tribunal agrees that in principle
compensation should be such that wipes out the consequences of an illegal act, in the
circumstances of this particular case, the Tribunal does not find the amount claimed to
be justified.
433. Fithly, bearing in mind the responsibility of the Province in the failure of the
Concession and the fact that the implementation of the POES was spread over a fiveyear
period, while the Concession was cancelled after less than half of that time, the
Tribunal concludes that Azurix should bear no liability with regard to the non-execution
of that plan.
434. The Claimant has proposed, as an alternative to the fair market value of
the investment, that compensation be based on “the theory of unjust enrichment”. In this
respect, the Claimant has referred to the decision of the court (in fact, an arbitral
tribunal) in Lena Goldfields which chose to base the award on unjust enrichment rather
than damages. As stated by the court and quoted in the Memorial:
“The Court further decides that the conduct of the Government was a breach of
the contract going to the root of it. In consequence, Lena is entitled to be relieved
from the burden of further obligations thereunder and to be compensated in
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money for the value of the benefits of which it had been wrongfully deprived. On
ordinary legal principles this constitutes a right of action for damages, but the
Court prefers to base its award on the principle of “unjust enrichment,” although
in its opinion the money result is the same.”356
435. The Tribunal observes that the court did not give any reason for its choice
of unjust enrichment as opposed to damages. This decision has been criticized for its
lack of clarity and the reference to the same result in monetary terms,
“raises the suspicion that these considerations, far from being decisive for the
outcome of the award, were merely used to add an appearance of broad general
justice. This case, although frequently quoted in support of a ‘principle against
unjustified enrichment’ in international law, has probably contributed nothing but
a great deal of confusion.”357
436. The Tribunal further observes that damages and unjust enrichment are
conceptually distinct in terms of the principles of liability and the measure of restitution.
In the case of damages, liability rests on an unlawful act, which is not necessarily the
case in unjust enrichment. As to compensation on account of an unlawful act, it is based
on the loss suffered, while, in the case of unjust enrichment, it is based on restitution:
for instance, what can be claimed, at least under some civil law regimes, is restitution of
the lower of the amount contributed by the impoverished or the gain made by the
enriched. 358
437. The Iran-US Tribunal, which has dealt with claims based on the principle
of unjust enrichment on several occasions, defined the principle of unjust enrichment
and its applicability as follows:
“There must have been an enrichment of one party to the detriment of the other,
and both must arise as a consequence of the same act or event. There must be
356
Memorial, p. 227.
357
Christoph Schreuer, “Unjust Enrichment in International Law”, The American Journal of Comparative
Law, vol. XXII, No. 2, p. 289.
358
Bryce Dickson, “Unjust Enrichment Claims: a Comparative Overview”, Cambridge Law Journal, 54(1),
March 1995, pp. 100-126; G. Bonet, “L’enrichissement sans cause, droit privé et droit public”, LITEC,
Extrait du Juris-Classeur Civil, 1989; Jason W. Neyers, Mitchell McInnes & Stephen G.A. Pitel,
Understanding Unjust Enrichment, Oxford: Hart, 2004.
156
no justification for the enrichment, and no contractual or other remedy available
to the injured party whereby he might seek compensation from the party
enriched.”359
438. The Tribunal has found that Argentina breached the Treaty, an unlawful
act under international law. The Claimant has chosen the remedy provided for in the
Treaty and the Tribunal has also found that the measure of compensation applicable in
this case is not the restitution of the Claimant’s investment in respect of which the
breach has been found but its fair market value before the breach occurred. For these
reasons the Tribunal has not pursued the alternative of compensation on account of
unjust enrichment proposed by the Claimant.
IX. Interest
439. The Claimant has requested the award of interest on all damages suffered
at the average rate applicable to US six-month certificates of deposit compounded
semi-annually. The Respondent has affirmed that it would not be legitimate to award
compound interest and that, were the Tribunal to find for Azurix, a simple rate of interest
should be used.
440. The Tribunal considers that compound interest reflects the reality of
financial transactions, and best approximates the value lost by an investor. Therefore,
compound interest should be paid on the amount of damages awarded as from the date
at which the Province terminated the Concession – March 12, 2002 - until the date of
dispatch of this award to the parties at the average rate applicable to US six-month
certificates of deposit. In case the amount awarded is not paid in full 60 days after such
date, the Respondent shall pay interest at the rate applicable to US six-month
certificates of deposit until the day of payment in full and such rate shall also be
compounded.
X. Costs
441. The Claimant has partially prevailed on the merits. The Tribunal declined
to issue the provisional order requested by the Claimant and Argentina failed in its
359
Sea-Land Service, Inc. v. Iran (6 Iran-U.S.C.T.R.) p. 169.
157
objections to the jurisdiction of the Tribunal and its challenge to the president of the
Tribunal. The Claimant did not submit its own copy of envelopes 1 and 2 as requested
by the Tribunal, and Argentina requested that the Claimant bear the costs related to this
procedural incident. For these reasons, the Tribunal decides: (1) that each party shall
pay its own costs and counsel fees, and (2) that the arbitrators’ fees and expenses and
the cost of the ICSID Secretariat shall be borne by Argentina, except for the amount of
US$34,496 (thirty-four thousand four hundred ninety six U.S. dollars), which shall be
borne by the Claimant and correspond to the said provisional measures and the
procedural incident.
XI. Decision
442. For the reasons above stated, the Tribunal unanimously decides:
1. That the Respondent did not breach Article IV(1) of the BIT.
2. That the Respondent breached Article II(2)(a) of the BIT by failing to accord
fair and equitable treatment to Azurix’s investment.
3. That the Respondent failed to accord full protection and security to Azurix’s
investment under Article II(2)(a) of the BIT.
4. That the Respondent breached Article II(2)(b) of the BIT by taking arbitrary
measures that impaired Azurix’s use and enjoyment of its investment.
5. To award compensation to Azurix on account of the fair market value of the
Concession in the amount of US$165,240,753 (one hundred sixty-five million two
hundred forty thousand seven hundred fifty-three US dollars), including in part
the additional investments made by Azurix to finance ABA.
6. To award interest compounded semi-annually on the amount referred to in
paragraph 5 of this decision: (i) as from March 12, 2002 to June 30, 2006 at the
rate of 2.44%, which is the average rate applicable to US six-month certificates of
deposit during that period, and (ii) as from 60 days after the dispatch of this
award to the parties until such amount has been fully paid at the average rate
applicable to US six-month certificates of deposit.
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7. That each party shall be responsible for their own costs and counsel fees, and
the Respondent shall bear the fees and expenses of the arbitrators and the costs
of the ICSID Secretariat except for US$34,496 (thirty-four thousand four hundred
ninety six U.S. dollars) which shall be borne by Claimant.
8. That all other claims are dismissed.
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160
Made in Washington, DC, in English and Spanish, both versions equally authentic.
___________[SIGNED]_____________
Dr. Daniel Hugo Martins
Arbitrator
Date: 19 June 2006
_____________[SIGNED]_______________
Mr. Marc Lalonde, P.C., O.C., Q.C.
Arbitrator
Date: 14 June 2006
___________[SIGNED]___________
Dr. Andrés Rigo Sureda
President
Date: 23 June 2006