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AES v. Argentina

Type of decisionDecision on Jurisdiction
Date of decision26 April 2005
Tribunal
Pierre-Marie Dupuy (President)
Domingo Bello Janeiro
Karl-Heinz Böckstiegel
Legal instrumentBIT between Argentina and USA (1991)
Further information

Statements from this decision

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While different tribunals should seek to act consistently with one another, there is no doctrine of precedent
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention
Treaty obligations prevail over rules of customary international law, as long as the latter do not have peremptory character
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention
An exclusive forum selection clause in a contract cannot be compared to "Calvo clauses"
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
A tribunal has to distinguish between the international and national legal order
In ICSID arbitration, a tribunal has to be convinced prima facie that the claimant's interest has been hurt
Ongoing negotiations between the parties do not deprive a tribunal of jurisdiction
Article 42 ICSID Convention does not govern the nationality of the investor
The "directness" requirement of Article 1101 NAFTA deals with the way in which a measure affected an investor or an investment; on the other hand, Article 25 ICSID Convention concerns the relationship between the dispute and the investment
The terms used in Article 25 ICSID Convention should not be interpreted restrictively
Consent can be based on the IIT
In ICSID arbitration, a tribunal has to be convinced prima facie that the claimant's interest has been hurt
A dispute is a disagreement on a point of law or fact, a conflict of legal views or interest between parties; it must relate to clearly identified issues between the parties
Although a tribunal does not have jurisdiction over measures of general state policy, it has jurisdiction to examine specific measures of that policy if they have a direct bearing on the investment
The "directness" requirement of Article 1101 NAFTA deals with the way in which a measure affected an investor or an investment; on the other hand, Article 25 ICSID Convention concerns the relationship between the dispute and the investment
Article 42 ICSID Convention does not govern the nationality of the investor
A claimant does not need to exhaust local remedies, if the IIT does not provide otherwise
Article 42 ICSID Convention does not govern the nationality of the investor
A tribunal may apply a rule of customary international law that it deems compatible with the IIT and the ICSID Convention

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