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Total v. Argentina

Type of decisionDecision on objections to jurisdiction
Date of decision25 August 2006
Tribunal
Giorgio Sacerdoti (President)
Henri C. Alvarez
Luis Herrera Marcano
Legal instrumentBIT between Argentina and France (1991)
Related decision(s)Decision on Liability, 27 December 2010
Further information

Statements from this decision

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The Barcelona Traction case is not relevant for the protection accorded to foreign shareholders under an IIT
The fact that "derivative suits" are inadmissible under local law is not relevant for the treaty based protection of a foreign shareholder owning shares in a local company
Minority shareholdings can constitute investments
A measure by a state being general in its application does not exclude it from being challenged as a breach of an IIT
An exclusive choice of forum clause in a contract cannot bar a tribunal from examining treaty based claims
At the jurisdictional stage, a tribunal has a limited ability to scrutinize the claims as formulated by the claimant. If the facts asserted by the claimant are capable of being regarded as alleged breaches of the IIT, the claimant should be able to have them considered on their merits
At the jurisdictional phase, it may be sufficient to establish a prima facie case concerning aspects of the tribunal’s jurisdiction
The Barcelona Traction case is not relevant for the protection accorded to foreign shareholders under an IIT
If shares constitute the investment, the protection by an IIT is not limited to their free enjoyment, but extends to the respect of the treaty standards as to the substance of the investment
A measure of a host state can affect an investment directly even if the measure is not specifically aimed at that investment, e.g. in case a general measure is taken for the general welfare; it is sufficient that the measure was applicable to the investment as a matter of law and was implemented in respect of the investment
At the jurisdictional stage, a tribunal will only consider arguments relevant to the objections to jurisdiction
At the jurisdictional stage, a tribunal will only consider arguments relevant to the objections to jurisdiction

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